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THERESA HOANG et al., Cross- and Respondents, v. LESLIE B. RAND-LUBY et al., Cross-complainants and Appellants.

G041992

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE

2010 Cal. App. Unpub. LEXIS 4380

June 10, 2010, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL OPINION REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES This appeal arises from what the court described FROM CITING OR RELYING ON OPINIONS NOT as a "real estate deal gone bad" involving a four-unit CERTIFIED FOR PUBLICATION OR ORDERED rental property in Huntington Beach The would-be buyer, PUBLISHED, EXCEPT AS SPECIFIED BY RULE Mylan Hoang (Hoang, or the buyer), is not a party to the 8.1115(b). THIS OPINION HAS NOT BEEN appeal, but she commenced the litigation by suing Leslie CERTIFIED FOR PUBLICATION OR ORDERED and Thomas Rand-Luby (the sellers) for failing to return PUBLISHED FOR THE PURPOSES OF RULE 8.1115. her earnest money deposit after the deal soured. The sellers cross-complained against Hoang and other PRIOR HISTORY: [*1] cross-defendants, including Hoang's mortgage broker, Appeal from a of the Superior Court of Valley Financial Services (Valley), and its loan agent, Orange County, No. 06CC08023, Charles Margines, Theresa Hoang (collectively, the brokerage Judge. cross-defendants). The sellers appeal from an adverse judgment dismissing their breach of contract, fraud, and DISPOSITION: Affirmed. related claims against the brokerage cross-defendants. [*2] As we explain, the sellers fail to show the trial court COUNSEL: Gary Rand & Suzanne E. Rand-Lewis, abused its discretion in hearing the brokerage Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for cross-defendants' belated for judgment on the Cross-complainants and Appellants. . On the merits, we also conclude the sellers failed to state breach of contract, tort, or other claims Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lisa against the brokerage cross-defendants. We therefore W. Cooney; Sunderland McCutchan and Ann Marie affirm the judgment. Thompson for Cross-defendants and Respondents. I JUDGES: ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J., O'LEARY, J. STANDARD OF REVIEW AND PERTINENT BACKGROUND OPINION BY: ARONSON Page 2 2010 Cal. App. Unpub. LEXIS 4380, *2

"On review of an order sustaining a Cal.App.4th 1702, 1704, fn. 1.) without leave to amend, our standard of review is de novo, 'i.e., we exercise our independent judgment about That did not occur. Instead, according to the sellers, whether the states a as a matter Theresa and Valley had no intention of processing the $ of law.' [Citation.]" (Santa Teresa Citizen Action Group 390,000 loan and were not making any effort to obtain v. State Energy Resources Conservation & Development funding. Rather, Theresa knew, and failed to disclose to Com. (2003) 105 Cal.App.4th 1441, 1445.) We turn to the sellers, that Hoang had entered an agreement and the pleadings for the operative facts, "'"treat[ing] the initiated financing to purchase a two-unit rental property demurrer as admitting all material facts properly pleaded, on Oswego Avenue in Huntington Beach. According to but not contentions, deductions or conclusions of fact or the sellers, Theresa failed to disclose the Oswego Avenue law. [Citation.] . . ." . . .'" (Zelig v. County of Los Angeles property to the sellers because she acted as Hoang's real (2002) 27 Cal.4th 1112, 1126.) estate agent in the transaction and stood to earn a $ 20,000 commission. On April 4, 2006, Hoang accepted the sellers' counteroffer and agreed to purchase their property The 17-day loan contingency window closed on May located on Blanton Street for just over $ 1.3 million. The 4, 2006. On May 11, Hoang's attorney wrote Hoang's real counteroffer set [*3] Hoang's earnest money deposit at $ estate agent stating, "Ms. Hoang asked this office to write 25,000 and her downpayment at $ 327,500, and required you this letter regarding the [*5] cancellation of the her to obtain a $ 962,500 mortgage to complete the purchase agreement for the above property due to her purchase. The parties also agreed that "if Buyer fails to [i]nability to procure the loan to conclude the purchase notify Seller in writing that Buyer has removed [the] loan agreement." The letter directed the agent to "instruct contingency within seventeen (17) calendar days of escrow to cancel the escrow relating to the above opening escrow, this Agreement shall [be] voidable at the property and return the deposit to Ms. Hoang." option of the Seller and the entire Deposit shall be returned to Buyer." Hoang promised expressly to use her Enclosed with the letter was a denial of funding "best efforts" to obtain the necessary financing. The notice on Valley letterhead from Theresa to Hoang, dated counteroffer also required the parties to initial a May 5th. The notice stated, "Dear Home-Loan customer: liquidated term providing for forfeiture of [P] We are sorry to inform you that we can not approve Hoang's earnest money deposit "in the event that Buyer your loan in the amount of $ 967,500 as you[] requested." breaches this Agreement by defaulting [o]n completion of According to the sellers, the brokerage cross-defendants the purchase . . . ." But neither party initialed the "falsified and backdated [the Valley letter] so as to enable liquidated damages term as required. The parties opened Hoang to attempt to cancel the purchase." The sellers do escrow on April 17, 2006. not explain what Theresa or Valley "falsified" in the letter. 2 Hoang sought financing from her niece, Theresa Hoang, a loan broker at Valley Financial Services. 1 2 Possibilities may include: (1) the letter falsely According to the sellers' cross-complaint, Hoang stated Hoang did not qualify for a $ 967,500 loan, "represented" that "if necessary [she] had agreed to sell (2) the letter omitted that Hoang did not qualify her home to [Theresa] as [Hoang] intended to occupy one for a loan in that amount because of her pending of the units of the apartment building." The sellers Oswego Avenue purchase, which the brokerage received [*4] notice in late April that Theresa began the cross-defendants failed to disclose, or perhaps (3) loan process for a mortgage of just $ 390,000. the letter omitted disclosing Hoang deliberately Presumably the sellers assumed Theresa would purchase failed to exert better efforts to obtain the requisite Hoang's existing home and thereby furnish the balance of funds, [*6] declining, for example, to prevail on funds Hoang needed. her niece to buy her home. As we will discuss, vagueness can be fatal to a fraud cause of action. 1 For clarity and ease of reference, we refer to Theresa by her first name and her aunt by the In any event, the sellers alleged they never received family surname, and intend no disrespect to notice from Hoang, her attorney, or her real estate agent Theresa. (In re Marriage of Olsen (1994) 24 that she intended to cancel the purchase of their property. Escrow was due to close in early June 2006. Not hearing Page 3 2010 Cal. App. Unpub. LEXIS 4380, *6

from Hoang, the sellers placed their property back on the burden on appeal to affirmatively demonstrate error -- it market and suffered $ 100,000 in lost profits and will not be presumed"]; accord, Cal. Const., art. II, § 13.) expenses, including attorney fees, when it sold approximately a month later, in mid-July 2006. 3 Code of Civil Procedure section 438 establishes the procedure for entering judgment When Hoang later sued the sellers for the return of on the pleadings. Section 438, subdivision (e), her $ 25,000 earnest money deposit, the sellers answered states: "No motion may be made pursuant to this with a cross-complaint against Hoang, her attorney, and section if a pretrial conference order has been the brokerage cross-defendants. The sellers asserted entered pursuant to [s]ection 575, or within 30 causes of action against the brokerage cross-defendants days of the date the action is initially set for trial, for breach of contract, breach of the implied covenant of whichever is later, unless the court otherwise good faith and fair dealing, promissory fraud, permits." (Italics added.) concealment, negligent misrepresentation, unfair business practices (Bus. & Prof. Code, § 17200; all further Additionally, ample authority provides that the trial statutory references are to this code unless noted), court may consider a nonstatutory motion for judgment interference with prospective business advantage, and on the pleadings at any time. (E.g., Smiley v. Citibank conspiracy. After an initial trial date [*7] was continued (1995) 11 Cal.4th 138, 145, fn. 2; Stoops v. Abbassi more than a year, the brokerage cross-defendants filed a (2002) 100 Cal.App.4th 644, 650; see Weil & Brown, motion for judgment on the pleadings. The trial court Cal. Practice Guide: Civil Procedure Before Trial (The granted the motion on all but the fraud causes of action, Rutter Group 2009) P 7:277, p. 7(1)-75 (rev. [*9] # 1, permitting the sellers to amend these claims. After 2009) [observing, "There is no point in forcing a case to amendment, the trial court sustained the brokerage go to trial" if no valid cause of action is alleged].) We cross-defendants' demurrer, entered judgment against the therefore turn to the merits. sellers, and they now appeal. B. The Sellers Failed to State a Cause of Action for II Breach of Contract

DISCUSSION The sellers assert their cross-complaint "clearly alleged the existence of a contract between" the sellers A. Timeliness and the brokerage cross-defendants. The record reference the sellers provide on appeal, however, does not refer to The sellers contend the trial court should not have their cross-complaint, but rather to the trial court's heard the brokerage cross-defendants' motion for docket. Needless to say, nothing in the court's docket judgment on the pleadings because they did not file it 30 establishes the existence of a contract between the sellers days before the initial trial setting. (See Code Civ. Proc., and the brokerage cross-defendants. The sellers therefore § 438, subd. (e).) 3 The trial court initially set a 2007 trial forfeit review of their breach of contract claim by failing date but, after continuances pushed the matter back more to provide accurate record citations necessary for review. than a year, the brokerage cross-defendants filed their (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba July 2008 motion, which they labeled a "non-statutory" (2004) 122 Cal.App.4th 1229, 1246.) motion for judgment on the pleadings. The sellers argue the motion was untimely because it did not precede the Had the sellers preserved their claim, it nevertheless 2007 trial date by 30 days. But the sellers overlook that fails on the merits. We find nothing in the the statute on which they rely for the 30-day limit cross-complaint remotely suggesting the sellers had a expressly vests the trial court with discretion to permit a contract with the brokerage cross-defendants. The late filing. (Code Civ. Proc., § 438, subd. (e); see ante, cross-complaint includes numerous references to the real fn. 3.) The [*8] sellers make no argument the trial court estate purchase agreement the sellers reached with the abused its discretion in permitting the belated filing. buyer [*10] for the Blanton Street property. But as the Accordingly, we must presume the trial court acted trial court aptly observed, "The cross-complaint is within its discretion. (Denham v. Superior Court (1970) 2 completely devoid of allegations that either [brokerage Cal.3d 557, 564 (Denham); see People v. Garcia (1987) cross-] was a party to the sales agreement." The 195 Cal.App.3d 191, 198 (Garcia) ["it is defendant's absence of an agreement between the sellers and the Page 4 2010 Cal. App. Unpub. LEXIS 4380, *10

brokerage cross-defendants is unsurprising given the accordingly, the seller is only an incidental beneficiary of nature of a real estate transaction in which the buyer, not the relationship and may not assert a third party the seller, needs brokerage services to obtain financing. beneficiary claim. Civil Code section 1559 authorizes The sellers' insistence they had a contract with the third party beneficiary claims, but "'[t]he contracting brokerage cross-defendants though they nowhere parties must have intended to confer a benefit on the third identified one puzzled the trial court, and we are similarly party.' [Citation.]" (Spinks v. Equity Residential at a loss to understand the claim. Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) Consequently, Civil Code section 1559 On appeal, the sellers misplace reliance on Shafer v. "'exclude[s] enforcement by persons who are only Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone incidentally or remotely benefited.' [Citation.]" (Ibid.) (2003) 107 Cal.App.4th 54, 68 [insurance company's Thus, the trial court properly denied the sellers leave to attorney may not fraudulently misstate scope of insured's amend to state an invalid third party beneficiary claim. coverage to a nonclient].) While Shafer holds tort liability may arise, despite a lack of privity, for an agent's The trial court did not err in concluding the sellers misstatements to a third party, this unremarkable stated no claim for breach of the covenant of good faith principle of tort law has nothing to do with establishing and fair dealing. This covenant is implied by law in every the existence of a contract, let alone breach of that contract. (Racine & Laramie, Ltd. v. Department of Parks contract. & Recreation (1992) 11 Cal.App.4th 1026, 1031.) [*13] But because the cross-complaint alleged no facts that The sellers contend the trial court erred in not would establish a contract with the brokerage permitting them leave [*11] to amend to plead a breach cross-defendants and because the sellers fail on appeal to of contract claim based on their purported third party establish they could amend the contract to state a beneficiary status. The sellers noted in their cognizable third party beneficiary claim, they also fail to cross-complaint that the buyer contracted with them in state a claim for breach of the covenant of good faith and the purchase agreement "to use [buyer]'s best efforts to fair dealing. They simply fail to show any possible obtain a loan." (Original emphasis.) Without expressly contract on which to predicate the claim. (Id. at p. 1032 mentioning a third party beneficiary claim, the sellers [no good faith and fair dealing cause of action "absent an arguably suggested a third party beneficiary theory by existing contract"].) Consequently, the trial court implying in the cross-complaint that the buyer's properly entered judgment for the brokerage obligation to use "best efforts to obtain funding" led her cross-defendants on the sellers' contract claims, including to form a borrower-broker agency relationship or contract breach of the covenant of good faith and fair dealing. with the brokerage cross-defendants, which "benefitted [the sellers]." C. The Sellers Failed to Adequately Plead Tort, Statutory, or Common Law Claims The trial court did not err in denying the sellers leave to amend to state expressly a third party beneficiary The sellers argue the trial court erred in concluding claim. Simply put, a seller is only an incidental they failed to state fraud or fraud-related claims against beneficiary of a buyer's relationship with a mortgage the brokerage cross-defendants. Specifically, the sellers broker. Like an attorney, the broker's duty is to his or her alleged the brokerage cross-defendants committed one or client. While there are "[i]nnumerable instances . . . in more species of fraud including promissory fraud, which services performed by an attorney will benefit concealment, and negligent misrepresentation. In contrast others besides his client," these persons remain only to the sellers' contract claims, the trial court permitted the "incidental beneficiaries" unless the client retained the sellers an opportunity [*14] to amend their attorney for "the principal purpose" of providing a benefit cross-complaint to plead these fraud causes of action [*12] to the third party. (Goldberg v. Frye (1990) 217 adequately. Had the sellers successfully amended their Cal.App.3d 1258, 1268.) cross-complaint to plead these fraud claims, the trial court would have had to revisit its earlier ruling The same principle applies here. A buyer does not concluding the sellers failed to state fraud-related causes seek out a mortgage broker principally to benefit the of action that included misleading or unfair business seller of a parcel of property, but rather to enable the practices in violation of section 17200, interference with buyer to obtain the funds to purchase the property; Page 5 2010 Cal. App. Unpub. LEXIS 4380, *14

a contract or prospective business advantage, and home, which apparently would have helped Hoang conspiracy. As we explain with respect to each alleged finance the Blanton Street parcel, failed to cure the fraud claim and related causes of action, the trial court sellers' defects in their promissory fraud claim. did not err in concluding the sellers failed to meet their pleading burden despite a second opportunity. First, the statement lacks the requisite specificity for a fraud claim: it does not state when, how, or by what 1. Promissory Fraud means Theresa made the alleged statement to the sellers. (Lazar, supra, 12 Cal.4th at p. 645.) Notably, the sellers The sellers failed to plead a cause of action against had alleged in their original cross-complaint that Hoang the brokerage cross-defendants for promissory fraud. had represented that, "if necessary," she would sell her "'Promissory fraud' is a subspecies of the action for fraud home to Theresa. Suddenly placing the promise of such a and deceit." (Lazar v. Superior Court (1996) 12 Cal.4th sale in Theresa's mouth in the amended cross-complaint 631, 638 (Lazar).) "An action for promissory fraud may --without a date or contextual detail -- raises an inference lie where a defendant fraudulently induces the to of artful pleading aimed at preserving the sellers' claim enter into a contract." (Ibid., italics added.) The sellers against the brokerage [*17] cross-defendants. (See allege the brokerage cross-defendants committed Wilhelm, supra, 186 Cal.App.3d at p. 1331 [courts must promissory fraud by "represent[ing] they would procure guard against "'vague but artful pleading of fraud simply financing [*15] for Hoang in order for the purchase of to get a foot in the courtroom door'"].) [the Blanton] property to go forward." But the sellers pleaded no facts suggesting the brokerage In any event, a second problem is evident in the verb cross-defendants induced the sellers to enter the Blanton tense of Theresa's alleged statement. Simply put, the fact property purchase agreement by making financing that "she is processing the loan" (italics added) when she promises to them. (See Wilhelm v. Pray, Price, Williams allegedly told the sellers she would purchase Hoang's & Russell (1986) 186 Cal.App.3d 1324, 1331 (Wilhelm) home means the alleged statement came after the parties ["every element of the cause of action for fraud must be executed the purchase agreement. Consequently, the alleged in full, factually and specifically"].) "'This statement could not have induced the sellers to enter that particularity requirement necessitates pleading facts agreement, as occurs in promissory fraud. (See Lazar, which "show how, when, where, to whom, and by what supra, 12 Cal.4th at p. 638.) Accordingly, the promissory means the representations were tendered."'" (Lazar, at p. fraud claim fails. 645, original italics.) 2. Concealment Here, as noted in the Blanton Street purchase agreement, the buyer only promised to exert her best The sellers failed to plead a claim of concealment efforts to obtain a loan, not that she would actually against the brokerage cross-defendants. Concealment, a procure one, and the fact the buyer sought aid from the form of deceit, requires "[t]he suppression of a fact, by brokerage cross-defendants in obtaining a loan does not one who is bound to disclose it, or who gives information suggest the brokerage cross-defendants made any of other facts which are likely to mislead for want of representations to the sellers. After all, a mortgage broker communication of that fact . . . ." (Civ. Code, § 1710, is a dual agent of, and owes a fiduciary duty to, the real subd. 3.) The sellers assert the brokerage estate buyer who borrows money and the lender who cross-defendants committed the tort of concealment by provides the funds (see Montoya v. McLeod (1985) 176 failing to disclose "that Hoang was actively engaged in Cal.App.3d 57, 62-65 [*16] (Montoya)), not the seller. purchasing [*18] a second property at the same time" she had contracted to buy their property and by failing to In their amended cross-complaint, the sellers alleged disclose that Theresa "was acting as Hoang's real estate Theresa "represent[ed] to them that she is processing the agent in the purchase of the second property," for which loan for the Blanton purchase, and will be purchasing Theresa "stood to realize a commission" if completed. H[oang]'s home so the Blanton purchase can be completed." The sellers assert Theresa's alleged The intertwined premises of the sellers' argument are representation she "will be purchasing Hoang's home" that Theresa knew Hoang could not afford both properties constituted promissory fraud. There are two reasons this and that she owed a duty of disclosure to the sellers. Even new allegation of Theresa's offer to purchase Hoang's assuming the truth of the initial premise, the sellers' claim Page 6 2010 Cal. App. Unpub. LEXIS 4380, *18

falters on the second premise. (See Marketing West, Inc. sellers. (See generally National Union Fire Ins. Co. of v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, Pittsburgh, PA v. Cambridge Integrated Services Group, 612-613 ["the defendant must have been under a duty to Inc. (2009) 171 Cal.App.4th 35, 50 [causal elements of disclose the fact to the plaintiff"].) As noted, a mortgage misrepresentation claim must be specifically pleaded].) In broker serves as a dual agent for the borrower and the other words, for the brokerage cross-defendants to have entity loaning funds to the borrower, and therefore owes caused the sellers harm by a misrepresentation, it follows both a fiduciary duty. (Montoya, supra, 176 Cal.App.3d the sellers had to allege the defendants made the at pp. 62-65.) The sellers point to no facts suggesting they misrepresentation to them. The sellers assert their had an agency relationship with Theresa. (See Wyatt v. amended cross-complaint alleged the brokerage Union Mortg. Co. (1979) 24 Cal.3d 773, 782, original cross-defendants "made representations regarding their italics ["A mortgage loan broker is customarily retained ongoing efforts to obtain financing for Hoang to purchase by a borrower to act as the borrower's agent in the premises, which representations were untrue." But the negotiating an acceptable loan"].) Consequently, [*19] sellers' record citations [*21] do not bear out this claim. Theresa owed no duty to disclose to the sellers Hoang's The cited portions of the amended cross-complaint actions or her representation of Hoang in the second reiterate invalid claims, such as Theresa's failure to transaction; indeed, doing so could constitute a breach of disclose to the sellers Hoang's offer on a second property, her "'obligation of undivided service and loyalty . . . .'" or allege generally that the brokerage cross-defendants (Ibid.) "made certain promises to [the sellers] regarding various matters . . . including . . . that they would be using their The sellers misplace reliance on language in La Jolla best efforts to obtain financing for the purchase . . . ." Village Homeowners' Assn. v. Superior Court (1989) 212 This is too general, as we explain. Cal.App.3d 1131, 1151, 4 that "a duty to disclose may arise without a confidential or fiduciary relationship First, the manner in which the brokerage where the defendant, a real estate agent or broker, alone cross-defendants allegedly made the misrepresentation has knowledge of material facts which are not accessible shows it was not a misrepresentation but rather an act. to the plaintiff, a buyer of real property." In that scenario, The sellers alleged that on May 3, 2006, the brokerage however, various statutes, the common law, and often the cross-defendants obtained from the escrow company a real estate contract or escrow instructions impose a duty copy of the counteroffer that formed the Blanton on the agent and his or her principal -- the seller of the purchase agreement and a copy of the escrow receipt for real property -- to disclose latent property defects to the Hoang's $ 25,000 deposit. From this bare act, the sellers buyer. (See, e.g., Assilzadeh v. California Federal Bank inferred a tort directed at them, namely that the brokerage (2000) 82 Cal.App.4th 399, 409-410, fn. 4.) The sellers cross-defendants "misrepresent[ed] that they are still here point to no similar sources of a duty in the present seeking funding . . . ." But the defect remains that the context for a mortgage broker to make disclosures about sellers identified no misstatement of fact made by the the borrower to a third party, i.e., the seller, and we are brokerage cross-defendants. The tort of negligent aware of none. In the absence of any duty of disclosure, misrepresentation requires, as its name [*22] implies, "a [*20] the trial court properly concluded the sellers failed misrepresentation of a past or existing material fact" (Fox to state a concealment claim against the brokerage v. Pollack (1986) 181 Cal.App.3d 954, 962 (Fox)), and cross-defendants. we cannot stretch the meaning to include the act of obtaining documents -- especially where the mortgage 4 Disapproved on another ground in Jimenez v. broker's principal, the buyer, presumably was entitled to Superior Court (2002) 29 Cal.4th 473, 481, those documents as a party to the real estate contract. footnote 1. Second, even assuming the brokerage 3. Negligent Misrepresentation cross-defendants had represented expressly to the sellers on May 3d, while obtaining the documents from escrow, The sellers failed to plead a cause of action for that they were still seeking funding for the buyer to negligent misrepresentation against the brokerage complete the Blanton Street purchase, the sellers can cross-defendants. Like the promissory fraud allegation, point to no detrimental reliance on this statement if it this claim fails for lack of specificity that the brokerage were untrue. The purchase agreement's 17-day window cross-defendants made any misrepresentations to the Page 7 2010 Cal. App. Unpub. LEXIS 4380, *22

provided the buyer until the next day, May 4th, to obtain cross-defendants, and the trial court did not err in denying a loan and remove the loan contingency. And because the leave to amend. purchase agreement required the buyer's best efforts to obtain funding, even if the sellers had learned these 5. Fraud-Related Causes of Action brokerage cross-defendants were not -- as they allegedly claimed -- actually seeking funding for the buyer, the Given the absence of viable fraud causes of action, sellers could not cancel the purchase agreement and put the trial court did not err in concluding the sellers failed the property back on the market because the buyer's time to state claims against the brokerage cross-defendants for to obtain a loan had not run. Put another [*23] way, the fraud-related or otherwise unfair business practices under sellers would have to recognize the possibility the buyer section 17200, interference with a contract [*25] or could seek lending assistance from another brokerage. prospective business advantage, or conspiracy. The sellers identified no statements by the brokerage Section 17200 bars "any unlawful, unfair, or cross-defendants after the 17-day financing period fraudulent business act or practice and unfair, deceptive, claiming they were still seeking funding, which might untrue or misleading advertising . . . ." Section 17200 have induced the sellers to consider continuing the deal "'borrows violations of other laws and treats them as with the buyer rather than placing the property back on unlawful practices' that the unfair competition law makes the market. Accordingly, absent the requisite showing of independently actionable." (Cel-Tech Communications, induced reliance (Fox, supra, 181 Cal.App.3d at p. 962), Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 the sellers failed to plead a claim of negligent Cal.4th 163, 180.) The sellers concede their fraud claims misrepresentation against the brokerage cross-defendants. and breach of the covenant of good faith and fair dealing 4. Amendment "formed the basis for" their section 17200 claim. Accordingly, the sellers' failure to state viable underlying A plaintiff need only show a reasonable possibility causes of action, as discussed, also vitiated their section that amendment will cure a pleading defect. (Aubry v. 17200 cause of action. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We review the trial court's denial of leave to amend for abuse Similarly, the sellers failed to state a cause of action of discretion. (Ibid.) "'[T]he burden is on the plaintiff to for interference with prospective business advantage. To demonstrate that the trial court abused its discretion. state a valid claim, "the plaintiff must allege that the [Citations.] Plaintiff must show in what manner he can defendant's conduct was 'wrongful "by some measure amend his complaint and how that amendment will beyond the fact of the interference itself." [Citations.]'" change the legal effect of his pleading. [Citation.]' (Stevenson Real Estate Services, Inc. v. CB Richard Ellis [Citations.]" (Symonds v. Mercury Savings & Loan Assn. Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, (1990) 225 Cal.App.3d 1458, 1463.) 1220; see Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154, 1164-1165; [*26] The [*24] sellers contend they were entitled to leave Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) to amend their complaint to replead their fraud causes of 11 Cal.4th 376, 392-393.) The sellers claimed they action a third time because they notified the court anticipated an economic benefit from their relationship Hoang's belated responses showed "the failure with Hoang, namely, income from the sale of their to complete the purchase of [the sellers'] property was property or, alternately, an economic benefit from due to . . . Theresa Hoang's failure to purchase Hoang's continuing to rent their property if the sale failed. But home as represented to [the sellers]." (Italics added.) The they do not explain how the brokerage cross-defendants sellers, however, provide no record reference for this interfered with these economic relationships or how the exchange with the trial court or their request to amend, if defendants' conduct was independently wrongful. they made one. In any event, their assertion is again fatally vague: they do not state Theresa represented she The sellers' sole record citation, at page 26 of their would purchase the home, nor that she made the opening brief, for the brokerage cross-defendants' alleged representation to the sellers, nor when she made it. interference is simply the general allegation in the Consequently, as discussed, the sellers' claims remained cross-complaint stating the defendants' "actions and too vague to state fraud actions against the brokerage conduct . . . at all times was designed to interfere with, disturb, thwart and defeat [the sellers]' contractual rights Page 8 2010 Cal. App. Unpub. LEXIS 4380, *26

and economic advantage . . . ." Given that a brokerage is of the seller to obtain funding, or provide the seller with not obligated to provide a borrower with funding, nor any information about the prospective borrower. owes a duty to the seller to procure funding or even to Consequently, we fail to see how an amendment to state utilize best efforts to do so, nor to provide the seller any interference with an existing contract would have made a information about the borrower, we fail to grasp how the difference. brokerage cross-defendants interfered with the sellers' economic relations or how their conduct [*27] The sellers also failed to state a conspiracy claim constituted an independent wrong. The sellers' citation to against the brokerage cross-defendants. The sellers assert their general pleading allegation does not illuminate the the cross-complaint adequately "alleged a common plan matter. Accordingly, we discern no basis for reversal. was entered into by" the brokerage cross-defendants, (Denham, supra, 2 Cal.3d at p. 564; see Garcia, supra, Hoang, and Hoang's lawyer "to create a false basis for 195 Cal.App.3d at p. 198 ["it is defendant's burden on Hoang to back out of the purchase of [the sellers]' appeal to affirmatively demonstrate error -- it will not be property." But as the trial court observed, backing out of presumed"]; accord, Cal. Const., art. II, § 13.) a contract may constitute a breach of contract, but it is not a tort. Conspiracy requires a common plan or design to The sellers also suggest that though they did not seek commit a tort. (Kidron v. Movie Acquisition Corp. (1995) an amendment, it would have been a simple matter for 40 Cal.App.4th 1571, 1582 [basis of civil conspiracy is the trial court to allow them to reword their the agreement to commit a tortious act].) Absent an cross-complaint to state interference with an existing allegation [*29] of an underlying tortious objective, the contractual relationship rather than a prospective one. trial court properly concluded the sellers failed to state a They identify the Blanton Street purchase agreement with claim for conspiracy. the buyer as the relevant contract. They also rely on caselaw stating that, unlike interference with prospective III economic advantage, interference with an existing contract does not require "that the defendant's conduct be DISPOSITION wrongful apart from the interference with the contract The judgment is affirmed. Respondents are entitled itself." (Quelimane Co. v. Stewart Title Guaranty Co. to their costs on appeal. (1998) 19 Cal.4th 26, 55.) But in arguing for amendment, the sellers provide no record citations nor otherwise make ARONSON, J. it any clearer how the brokerage cross-defendants [*28] wrongfully interfered with the parties' performance of the WE CONCUR: Blanton Street purchase contract. As noted, a brokerage is under no obligation to the buyer, let alone to a third-party BEDSWORTH, ACTING P. J. such as the sellers, to provide the funding to complete a real estate transaction, nor to exert best efforts on behalf O'LEARY, J.