Coast Loans v. Scripps Investment

Filed 12/24/08 Coast Loans v. Scripps Investment CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Reversed and remanded.

Coast Loans, Inc. (Coast) appeals from a summary judgment in favor of Scripps Investment & Loans, Inc. and Jeffrey Lubin (at times collectively Scripps) on Coast's causes of action for breach of contract and fraud arising from Scripps' alleged failure to pay loan referral fees. Coast contends it presented evidence raising triable issues of material fact with respect to each of these causes of action. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

We set out the facts in the light most favorable to Coast, the party opposing summary judgment. (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Where Coast's version is supported by admissible evidence in the record or where the inferences Coast asks that we draw from the evidence are reasonable, we set out its version of the facts.

Scripps is a company that makes private money loans (also known as "hard money" loans, generally, loans where a private investor takes the place of a bank) to persons or entities seeking financing for real estate or construction development. Jeffrey Lubin is Scripps' president. Coast, originally founded in 1997 by Steven Schaffer and another broker, provides real estate mortgages and handles some sales as brokers. On transactions between Coast and Scripps, Scripps paid Coast "points" (also referred to by the parties as referral fees or commissions) constituting an agreed-upon percentage of the loan.

In November 1998, Schaffer was contacted by a developer, Matthew DiNofia, for financing in connection with a project in La Jolla. Schaffer referred the loan proposal to Lubin, who was then with Frank Schaeffer Construction, Inc. (FSCI),^[1]and the men agreed Coast would be entitled to a one point (1 percent of the loan amount) referral commission. In December 1998, FSCI loaned DiNofia $460,000, and FSCI paid Coast $4,600. Schaffer and Lubin did not discuss any limitation on FSCI's obligation to pay referral fees on additional loans to DiNofia, and Schaffer understood their agreement to be that Coast would earn such a fee on all future loans; he expected Lubin and FSCI to "protect" his interests and pay Coast even if the borrower tried to deal with Lubin directly.

Schaffer came to believe Lubin had reached the same understanding after DiNofia approached Lubin directly for another loan. In June of 2000, DiNofia contacted Lubin seeking an additional loan for a different project. When Lubin gave him the loan terms, DiNofia asked how he could reduce his costs. Lubin told DiNofia that the points were higher than they would otherwise be because of the one-point fee due to Coast from the original referral. Although DiNofia argued that Coast was not involved with the transaction, Lubin told DiNofia he was obligated to pay the referral fee to Coast even on subsequent loans whether or not Coast was involved. Lubin suggested DiNofia contact Coast and ask it to reduce or waive the charge. At some point, Lubin informed Schaffer that he had told DiNofia he could not "go around" Coast; that FSCI was still obligated to pay Coast. DiNofia eventually appealed to Schaffer directly based on their friendship and the prospect of future business, and Schaffer agreed to waive Coast's referral fees on future loans from FSCI to DiNofia.

In October 2001, an independent contractor working for Coast, Eric Borwell, approached Lubin, who had since incorporated Scripps, about some funding for a development project in Fresno (the AB parking project or AB parking). Scripps eventually funded a $6 million loan to the AB parking developers. As compensation, various parties received points including Scripps, which received six points, and Coast, which received a one half-point ($30,000) commission. In March 2002, Scripps made another loan to AB parking for $4,800,000, and Coast received a one half-point ($24,000) commission. In September 2002, Scripps made four additional loans to AB parking, one of which was a refinance of the October 2001 loan. Coast received a total of $35,000 for those loans: $20,000 on an $8 million loan, $12,500 on a $5 million loan, $2,500 on a $1 million loan, and nothing on the refinance. Schaffer did not learn until he filed suit against Scripps that Coast had been paid only one-quarter of a point on three of the loans and no commission on the fourth loan. Scripps paid the commissions to Coast, not Borwell, who was paid by Coast under his employment agreement.

In November 2002, Coast referred another borrower, Michael LaMelza, to Scripps in connection with a development in Palm Springs. The Palm Springs project was expected to cost between $72 million and $86 million, and LaMelza was seeking a $25 million loan partly to refinance prior land loans and partly for the project's initial construction phase. Schaffer forwarded a memorandum concerning the transaction to Lubin. Due to his past dealings with Lubin, as well as the fact they had never discussed limiting Scripps's obligation to pay on only the first loan made to a referred borrower, Schaffer understood their agreement required Scripps to pay Coast referral fees or commissions on all future business generated from LaMelza's referral, including subsequent loans. He also understood it was common practice to "protect" referral sources to reduce a referring broker's motivation to seek other lenders; Schaffer knew LaMelza would be seeking additional funding and if he did not believe Scripps would protect and pay Coast on later loans, he would have taken LaMelza to another lender.

Eventually, LaMelza told Lubin he only needed a loan of $10 million. Though LaMelza could not promise he would do additional financing with Scripps, he asked that his fees be reduced based on the prospect of many more deals. In view of the decreased loan amount, Lubin and Schaffer renegotiated the points between themselves, agreeing that Coast would give up a point so that Scripps would receive five points and Coast would receive one point. That loan closed in December 2002 and Scripps paid Coast a $100,000 commission.

Schaffer wanted to ensure Lubin stayed on top of the situation so he would provide LaMelza with the additional financing, and so in the ensuing months he spoke with Lubin on several occasions about the possibility of further loans to LaMelza. Schaffer and Lubin travelled to Palm Springs in January or February of 2003 to meet with LaMelza. As they drove out, Schaffer reminded Lubin that LaMelza's project was large and urged him to keep following up with him. Lubin acknowledged he needed to do that. At the meeting, the men talked about the progress of LaMelza's project and Schaffer reminded LaMelza they were there for him; he acted as a cheerleader for Scripps, assuring LaMelza they were available for future loans. LaMelza essentially told the men he would call if he needed them. Though he and Lubin had no written agreement, Schaffer understood from their prior dealings as well as Lubin's response to Schaffer's statements about keeping in contact with LaMelza for additional business, that Coast was "part of the team" and would receive commissions on future loans to LaMelza.

Thereafter, Schaffer and Lubin made another trip to Palm Springs and stopped by LaMelza's office. LaMelza was not there, but the men nevertheless looked at the project and Schaffer asked Lubin about follow up efforts. Lubin told Schaffer he had been in contact with LaMelza but he had not yet asked for additional money.

In May 2003, Schaffer met with Lubin and another individual at Lubin's office regarding another deal. At that time, Lubin was short to the point of being rude, telling Schaffer he had not spoken to LaMelza and that LaMelza was not returning his calls. Schaffer took this to mean that Lubin was telling him LaMelza no longer wanted to do business with them, that it did not appear Scripps would be making further loans, and there was little prospect of additional referral fees to Coast. According to Schaffer, Lubin never said anything to indicate to him that Scripps would not pay Coast's commission on future loans to LaMelza, and Schaffer relied on Lubin's representations. Schaffer returned to Lubin's office at the end of the month with another prospective deal, which Lubin summarily rejected. At the end of that encounter, Schaffer took Lubin aside and asked whether he had talked to LaMelza; Lubin responded there had been no calls and ushered them out the door. When Schaffer later contacted LaMelza directly, he told Schaffer he had gotten all of the financing he needed.

Unbeknownst to Schaffer, Lubin had sent a letter proposal to LaMelza in March 2003 for an additional $21 million loan, which LaMelza accepted, and that loan closed in June of 2003. In February 2004, Schaffer demanded that Scripps pay Coast $210,000 in connection with that loan. In July and November 2004, Scripps loaned LaMelza an additional $16.5 million and $34.5 million without paying Coast any commission.

Coast filed the present action against Scripps and Lubin. The first amended complaint, on which summary judgment was granted, set forth a cause of action for breach of oral or implied contract (against Scripps) as well as separate fraud causes of action (against both Scripps and Lubin) labeled "fraud by concealment," "fraud by promise without intent to perform," and "fraud by intentional misrepresentation." Coast alleged it and Scripps had an "oral and/or implied" agreement, which it characterized as a "single global agreement between Coast and Scripps with a referral fee/commission points (percentage of the funds loaned) that is negotiated for each borrower that was referred by Coast" or alternatively as multiple, "separate agreements pertaining to each borrower with terms that are identical except for the identity of the borrower and the referral fee/commission points applicable to that borrower." Coast alleged its contract with Scripps was implied in fact through their conduct in that Coast performed as it did as a result of its understanding with Scripps, and Scripps accepted its performance with both parties expecting that Coast would receive compensation.

Coast based its fraud causes of action on allegations that, after Lubin paid Coast its fee on LaMelza's initial $10 million loan, Lubin made express or implicit representations to Schaffer during discussions about imminent future phase of funding for LaMelza, i.e., that Lubin promised to contact LaMelza in furtherance of Coast and Scripps's mutual interest and Lubin's responses were an express or implicit representation that their relationship with LaMelza was an ongoing one in which Coast would receive its fee. Coast further alleged Lubin funded additional loans to LaMelza and failed or refused to pay Coast its fee in connection with those loans. Coast alleged Lubin concealed the fact that Scripps was then negotiating financing with LaMelza or intending not to pay Coast, and as a result Coast suffered $210,000 in damages.

Scripps moved for summary judgment or alternatively summary adjudication of issues as to Coast's causes of action for breach of contract and fraud (as well as a negligent misrepresentation cause of action on which Coast conceded summary adjudication was appropriate). Scripps argued Coast could not demonstrate any agreement existed for purposes of its breach of contract cause of action because there was no consistent pattern and practice of behavior between them. Scripps further argued the statute of frauds rendered any alleged oral agreement unenforceable because the alleged contract could not be performed within one year of its making. It argued Coast's fraud claims were without merit because (1) Schaffer's deposition testimony indicated Lubin did not make any affirmative misrepresentations; (2) the parties had no contractual relationship triggering any duty to disclose to Coast; (3) Lubin made no false promises to Coast; (4) Coast could not demonstrate intent to defraud or damages; and (5) Coast could not show Lubin used Scripps' corporate form to perpetrate fraud as to render him personally liable. Scripps submitted Lubin's declaration in which he did not dispute paying Schaffer a fee in connection with the LaMelza loan, but characterized it (as well as the other fees paid to Coast) as a "finders fee" paid by the borrower. In part, he averred that he and Schaffer had no discussion about the payment of fees on any further funding to LaMelza.

Coast opposed the motion in part with Schaffer's declaration as to the parties' dealings, as well as the declaration of DiNofia, who explained that after the initial loan from Scripps in which Coast was paid one point, he persuaded Schaffer to waive Coast's commission on additional loans to him from Scripps. Scripps did not rebut or lodge objections to Coast's evidence. Rather, in reply, it submitted a declaration from LaMelza, who stated the original fee to Coast was an "introduction fee" and denied knowing of any oral or written agreement regarding fees to Coast for any future loans. LaMelza averred that to his knowledge, there was never any ongoing oral or written agreement by him or Lubin to pay Coast or anyone else for the $21 million loan, which was arranged six months after the initial loan.

The court initially denied summary adjudication as to Coast's breach of contract, fraud by concealment and intentional fraud causes of action. It denied summary adjudication as to Lubin individually on the fraud by concealment and intentional fraud causes of action. The court granted summary adjudication of Coast's fraud by false promise cause of action on grounds the evidence did not show a false promise by Lubin. However, after hearing oral argument from Scripps' counsel (Coast's counsel was not present), the court changed its ruling, granting Scripps's motion for summary adjudication on all of Coast's causes of action. Coast then moved for a ruling with greater specificity (Code Civ. Proc.,  437c, subd. (g)), after which the court issued a modified order setting forth the evidence on which it relied and concluding it did not show a meeting of the minds as to the terms of any implied contract regarding future loans between the parties, and the contract claim was barred by the statute of frauds. It further summarily adjudicated the fraud causes of action in Scripps' favor, ruling there were no facts showing Coast owed Scripps a duty under a contract, there was no evidence any statements by Scripps were false or made with an intent to defraud, and there was no evidence Coast justifiably relied on those statements.

Coast unsuccessfully sought further specification. Thereafter, the court entered judgment in Scripps' favor. Coast filed this appeal.

DISCUSSION

I. Standard of Review

A defendant moving for summary judgment bears the burden of persuasion to show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc.,

437c, subds. (o), (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)

The summary judgment procedure determines whether there is evidence requiring the fact-weighing procedure of a trial. (E.g. Guz, supra, 24 Cal.4th at pp. 334, 335, fn. 7.) Thus, " 'the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) A material issue of fact may not be resolved based on inferences if contradicted by other inferences or evidence. (Aguilar, supra, 25 Cal.4th at p. 856.)

On appeal, we independently review the trial court's decision, considering all of the evidence in the supporting and opposing papers and apply the same standard as the trial court. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Guz, supra, 24 Cal.4th at p. 334.) We liberally construe the evidence in support of Coast as the opposing party, resolving doubts concerning the evidence in its favor (Yanowitz, at p. 1037; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in its favor under the applicable legal standards. (Cf. Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in Coast's favor, and we must deny the motion when there is some evidence that, if believed, would support judgment in its favor. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)

II. Breach of Contract Cause of Action

A. Contentions

Characterizing the issue presented as one of contract interpretation, Coast contends the trial court erred by granting summary judgment on its contract cause of action on grounds it presented evidence from which a trier of fact may infer that in November 2002, when Coast referred LaMelza to Scripps, Scripps objectively manifested its understanding, agreement and intention to pay Coast referral fees on all subsequent loans made to any borrower referred by Coast. Coast points to the absence of any discussion between Schaffer and Lubin limiting referral fees to the borrower's first loan, the parties' prior dealings with DiNofia and AB parking, the parties' conduct after the initial loan to LaMelza, and Scripps' agreements with other brokers as evidence that Scripps understood Coast was owed referral fees on all loans to any referred borrower. Coast further challenges the adequacy and support for the trial court's factual findings as to Scripps' intent and whether or not the parties had a "meeting of the minds." Finally, Coast argues the trial court erred in finding the contract was barred by the statute of frauds.^[2]

It is not entirely clear whether Coast's arguments on appeal relate to a theory of oral contract or implied in fact contract. Scripps argues Coast is limited to an implied contract theory on grounds Coast admitted in its pleadings or via Schaffer's deposition that there was no express oral agreement. But at the referenced portion of Schaffer's deposition, Schaffer does not address his and Lubin's oral agreements on the initial loans; he testified he reached his understanding about his entitlement to future commissions for each borrower as a result of his and Lubin's past dealings and transactions. As we have indicated, in its first amended complaint, Coast alleged alternatively that the parties had entered into oral "and/or" implied in fact contracts. Coast appears to allege the parties orally agreed Scripps would pay it a percentage of all amounts loaned by or through Scripps to the referred borrower, which percentage would be reduced proportionally if total points were reduced on subsequent loans. Alternatively, Coast alleged the terms of the contract should be implied by the parties' conduct.

As to each of the borrowers including LaMelza, there is no dispute the parties had an oral agreement that Scripps would pay Coast some specified percentage referral fee on the initial loan (for LaMelza, one percent on LaMelza's $10 million loan). Because there is no dispute Schaffer and Lubin did not discuss Coast's entitlement to fees on future loans for the same borrower, the terms of any agreement as to future loans must be ascertained or implied, if at all, by extrinsic evidence including the parties' conduct or course of dealing. Whether we view the issue as one requiring a trier of fact to interpret an ambiguous oral agreement by viewing the parties' later conduct or custom (see Coleman Engineering Co. v. North Am. Aviation, Inc. (1966) 65 Cal.2d 396, 417-418; Bohman v. Berg (1960) 54 Cal.2d 787, 794-795; Iusi v. Chase (1959) 169 Cal.App.2d 83, 85-88 [applying principles to oral contract for unspecified share of commissions among brokers]), or view it as one requiring a trier of fact to decide whether the parties entered into separate contracts whose terms are implied by conduct, the question is ultimately whether the parties' course of conduct or dealing gives rise to a reasonable inference they agreed Coast would be paid a fee on all loans made by Scripps to a Coast-referred borrower. Such an inference is sufficient to create a triable issue of fact preventing summary judgment on both the existence and terms of the parties' agreement as to future lending.

B. Legal Principles

1. Oral Contract

Contract interpretation is governed by the contracting parties' intent. "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code,

1636.) If the terms of the contract are ambiguous or uncertain, determining the contract's terms is a question of fact for the trier of fact based on "all credible evidence concerning the parties' intentions . . . . " (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165; accord, WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)

"It is a 'cardinal rule of construction that when a contract is ambiguous or uncertain the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.' " (Sterling v. Taylor (2007) 40 Cal.4th 757, 772-773, quoting Bohman v. Berg, supra, 54 Cal.2d at p. 795.) "It is well-settled law that, although an agreement may be indefinite or uncertain in its inception, subsequent performance by the parties under the agreement will cure this defect and render it enforceable. When one party performs under the contract and the other party accepts his performance without objection it is assumed that this was the performance contemplated by the agreement." (Bohman v. Berg, at pp. 794-795.)

2. Implied Contract

"An implied contract is one, the existence and terms of which are manifested by conduct." (Civ. Code,  1621; see Zenith Ins. Co. v. O'Connor (2007) 148 Cal.App.4th 998, 1010.) "An implied contract ' " . . . in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established." ' [Citation.] . . . Although an implied in fact contract may be inferred from the 'conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.' " (Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887.) A cause of action for breach of implied contract has the same elements as a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct. (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182; see also Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 773; California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134.) A course of conduct can show an implied promise. (California Emergency Physicians, at p. 1134.)

" 'It is generally held that the existence of an implied contract is usually a question of fact for the trial court. Where evidence is conflicting, or where reasonable conflicting inferences may be drawn from the evidence which is not in conflict, a question of fact is presented for decision of the trial court.' " (Caron v. Andrew (1955) 133 Cal.App.2d 412, 416.)

C. Analysis

Indulging all interferences in Coast's favor and strictly construing Scripps' evidence as we must, we conclude the evidence raises triable factual issues concerning whether the parties arrived at a mutual understanding that their oral agreements for referral commissions encompassed commissions on future loans. Alternatively, the evidence raises factual issues as to whether the parties' dealings demonstrate implied-in-fact contracts entitling Coast to commissions on additional loans to a referred borrower. The facts show more than merely a unilateral assumption or expectation by Schaffer; it is without dispute that Lubin and Schaffer had agreed Coast would be entitled to a one percent fee on DiNofia's loan, and Schaffer's unchallenged declaration (which we accept as true for purposes of our analysis) shows Lubin orally acknowledged to both DiNofia and Schaffer an obligation on his part to pay Coast its percentage fee on additional loans. Schaffer presented evidence that despite his and Lubin's mutual understanding, Coast waived its right to additional fees from DiNofia as a business courtesy. Thus, a jury could conclude the reason Scripps did not pay Coast on additional loans made to DiNofia was only because Schaffer expressly waived his right to them. Thereafter, Schaffer and Lubin engaged in a course of dealing that is, Lubin made a series of payments to Coast on the AB parking loans from which a jury could conclude they reached a mutual understanding that Lubin would pay Coast a percentage fee on all loans extended to borrowers referred by Coast. In connection with the series of loans to AB parking, Lubin made corresponding payments to Coast without voicing any objection as to whether that was a term of their agreement, and Schaffer expected to receive some percentage commission on each loan. These dealings between Coast and Scripps raise factual issues for a jury to decide the existence of an implied agreement to pay commissions on any loan made to borrowers referred by Coast.

Scripps argues Coast cannot look to the DiNofia transactions as evidence of any pattern or practice of behavior for purposes of an implied contract because (1) Lubin was an independent contractor for FSCI and had no control over who received payment for those loans; (2) FSCI and Scripps are "entirely separate corporate entities" and FSCI's behavior cannot be attributed to Scripps, but even if it could, the fees paid to Coast varied and were without pattern; and (3) Coast does not provide any evidence that FSCI was an alter ego of Scripps at the time of the DiNofia transactions. Scripps, however, provides no record citations for its assertions about Lubin's independent contractor status or the separate corporate relationship of FSCI and Scripps. Rather, Lubin indicated in his deposition that he at some point bought FSCI, and Coast presented evidence that Scripps was a fictitious business name of FSCI, raising a jury question as to whether the entities were separate and unrelated. Further, in the DiNofia transaction, Lubin personally negotiated with Schaffer and agreed to Coast's one percent referral fee. Thus, Scripps's assertion that Lubin had no control over DiNofia's deal is contradicted by the record. Scripps does not provide authority for the proposition that under these circumstances behavior attributed to FSCI cannot be attributed to Scripps for purposes of discerning a pattern or practice of behavior. In any event, our sole inquiry is whether the evidence of the DiNofia transaction raises a question for a jury to determine the existence and terms of an implied contract; we conclude it does under these circumstances.

Scripps likewise contends the AB parking loans do not establish any pattern or practice given the varying amount of payments or the absence of payment. It is of no moment that the evidence shows different percentages were paid to different borrowers or on different transactions. Neither law nor equity requires that every term and condition of an agreement be set forth in a contract. (King v. Stanley (1948) 32 Cal.2d 584, 588; Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268-269; Okun v. Morton (1988) 203 Cal.App.3d 805, 818.) "The usual and reasonable terms found in similar contracts can be looked to, unexpressed provisions of the contract may be inferred from the writing, external facts may be relied upon, and custom and usage may be resorted to in an effort to supply a deficiency if it does not alter or vary the terms of the agreement." (Magna Development Co. v. Reed (1964) 228 Cal.App.2d 230, 236, citing in part California Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481-485; see also Elite Show Services, at p. 269.)Based on Schaffer's testimony that he believed he had been underpaid on some of the subsequent AB parking loans, a jury could reasonably conclude that the parties' agreement was that as to each borrower, Coast was entitled to the one-half percent fee initially agreed upon for all subsequent loans unless they negotiated otherwise. Our role is not to resolve the factual question, we merely decide as a matter of law what evidence or inference could show or imply to a reasonable trier of fact. (Aguilar, supra, 25 Cal. 4th at p. 856.)

Scripps further argues Coast's unilateral assumptions are not enough to create an implied contract. Scripps maintains it believed it did not owe Coast any finder's fees as evidenced by the fact that in other deals with brokers, the brokers expressly put their fee requirements into a written contract. But on summary judgment, we are not permitted to draw such inferences in Scripps' favor. Its belief is irrelevant, as we look to the parties' objective behavior to ascertain whether it creates a triable issue of material fact as to their mutual understanding and intent relating to Coast's entitlement to future commissions.

As for the statute of frauds, we conclude Scripps did not demonstrate as a matter of law that it defeats Coast's breach of contract cause of action. Under the statute of frauds, a contract that by its terms is not to be performed within one year of its making is invalid unless it is "in writing and subscribed by the party to be charged or by the party's agent[.]" (Civ. Code, 1624, subd. (a)(1).) A contract will come within the purview of this section only if by its terms it cannot possibly be performed, or the contract expressly precludes performance, within one year. (White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343 & fn. 2; Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041-1042; Plumlee v. Poag (1984) 150 Cal.App.3d 541, 548; Blaustein v. Burton (1970) 9 Cal.App.3d 161, 185; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contract,  365, pp. 410-411.) Thus, " '[a] promise which is not likely to be performed within a year, and which in fact is not performed within a year, is not within the Statute if at the time the contract is made there is a possibility in law and in fact that full performance such as the parties intended may be completed before the expiration of a year.' " (Burgermeister Brewing Corp. v. Bowman (1964) 227 Cal.App.2d 274, 281.)

In asserting the statute of frauds below, Scripps characterized the agreement between Schaffer and Lubin as the oral 1999 agreement with respect to DiNofia and argued that agreement was without duration, i.e., applicable to all lending business anytime in the future. On that premise and analogizing to San Francisco Brewing Corp. v. Bowman (1959) 52 Cal.2d 607 (involving a court's failure to instruct the jury on a potential statute of frauds theory), Scripps argued the oral agreement fell within the statute of frauds. But contrary to the Scripps' interpretation of the doctrine, as long as performance under the contract may occur within one year (i.e., if Scripps could have lent DiNofia additional money within one year of the parties' entry into the 1999 contract, requiring Coast receive a commission payment) it will not fall within the statute of frauds whether the contract is for a definite or an indefinite term. (Abeyta v. Superior Court, supra, 17 Cal.App.4th at p. 1044.) Thus, the fact that their contract assertedly had an indefinite term is irrelevant to the analysis. As for Scripps' cited authority, application of the statute of frauds was rejected by the appellate court following retrial of that matter. (Burgermeister Brewing Corp. v. Bowman, supra, 227 Cal.App.2d at pp. 281-282.)

III. Fraud Causes of Action

Coast contends the trial court failed to address evidence that it and Scripps had a contractual relationship giving rise to a duty of disclosure on Scripps. It maintains it presented evidence that Lubin made representations in early and mid 2003 that he would either follow up with LaMelza or that he had not spoken to LaMelza, who was not returning his calls without disclosing the material qualifying facts that his follow up would not be for Coast's benefit and that he had already made, and LaMelza accepted, a $21 million loan proposal that would close in a matter of weeks. Coast argues that even absent a contractual relationship, the law provides that when Lubin undertook to speak he was required not to suppress or conceal any known facts that materially qualified those facts stated.

"The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) With respect to the essential element of justifiable or reasonable reliance, "whether a party's reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts." (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843; see also Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) "[E]ach case in which it is claimed that fraud is involved must be considered on its own facts," in light of "the circumstances and condition of the parties." (Koch v. Williams (1961) 193 Cal.App.2d 537, 541.)

A. Nondisclosure Fraud and Promissory Fraud

In moving for summary judgment, Scripps attacked Coast's cause of action for nondisclosure fraud on grounds that in the absence of an agreement with Coast, neither it nor Lubin owed Coast a duty of disclosure. It maintained Coast could not demonstrate a false promise made without intent to perform because Lubin's statements in early 2003 concerning the status of his communications with LaMelza were true, i.e., Lubin eventually did follow up with LaMelza and provide him with additional loans. Scripps further argued Coast could not prove the essential elements of scienter, intent to defraud, reliance and damages, premised on the sole ground Coast could not prove a contract between the parties. Having concluded Coast presented evidence raising triable issues of material fact on its breach of contract cause of action, we reject the latter argument. We do not address Scripps' appellate arguments concerning damages because Scripps did not point to evidence or present any argument on that issue in the trial court. (See Jordon-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.)

" 'In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.' " (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613, quoting Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294; see also Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 292 ["Even where no duty to disclose would otherwise exist, 'where one does speak he must speak the whole truth to the end that he does not conceal any facts which materially qualify those stated' "]; Rogers v. Warden (1942) 20 Cal.2d 286, 289.) Further, with respect to a concealment claim, "the defendant must have intentionally concealed or suppressed the [material] fact with the intent to defraud the plaintiff," and "the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact." (Marketing West, at p. 613.)

We are required to accept the truth of Coast's uncontroverted evidence, particularly Schaffer's declaration, which indicates Lubin and Schaffer's business relationship with respect to LaMelza was that of lender and broker. Doing so, we conclude the evidence raises triable issues of fact as to whether, in view of the parties' prior business dealings, Lubin had a duty to disclose his intentions as to Coast's entitlement to commissions on future loans at the time he assured Schaffer he would follow up with LaMelza regarding his future funding needs. The duty of disclosure may be "fact dependent and a question for the trier of fact, not a question of law." (Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at p. 614; see also Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal.App.4th 301, 312, fn. 9 [existence of duty to disclose was "for the jury to sort out"].) That Lubin had no intention of including Coast on future deals (or that he believed Coast was not entitled to any future commissions) was a fact that would materially qualify his assurances to Schaffer. Information is considered material if " 'a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question' [citations], and as such materiality is generally a question of fact unless the '[information] is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.' " (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977.) Because the existence of a duty of disclosure in this case is one of disputable inferences, we conclude summary judgment was not appropriate on Coast's cause of action for nondisclosure fraud. (E.g., ibid.)
Further, Schaffer averred that in May 2003, following Scripps's initial loan to LaMelza and at least one follow up meeting in which Schaffer urged LaMelza to obtain additional funding through Scripps, Lubin told him he had called LaMelza repeatedly but LaMelza was not returning his calls, leading Schaffer to believe LaMelza was not interested in further dealings with Scripps. Coast presented unchallenged evidence that months earlier, in March 2003, Lubin had sent LaMelza a letter proposal for an additional $21 million loan, which LaMelza countersigned and returned in mid-April 2003. Even assuming Lubin's statement about LaMelza's failure to return his calls was literally true, a jury may reasonably conclude under the circumstances Lubin at that time was obligated to disclose his and LaMelza's letter agreement for the new loan in response to Schaffer's inquiry.

Coast's evidence additionally raises triable issues of material fact with respect to Coast's cause of action for fraud by false promise. "A promise of future conduct is actionable as fraud only if made without a present intent to perform." (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481; Civ. Code,  1710(4); see Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 575.) Where a fraud or misrepresentation claim is predicated on a failure to perform contractual obligations,

" 'something more than nonperformance is required to prove the defendant's intent not to perform his promise.' " (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31; Magpali, supra, at p. 481.)

Here, there is more than just evidence that Scripps failed to compensate Coast on LaMelza's $21 million loan; in January or February of 2003, Lubin had assured Schaffer he would follow up with LaMelza but never told Schaffer when he actually did so in March 2003. Based on the parties' prior dealings, a jury may reasonably infer from Lubin's assurance a promise to keep Schaffer apprised of the situation and tell him about any further deals so Coast could obtain (or negotiate) its commission. The fact Lubin later entered into another deal with LaMelza without informing Coast permits the jury to infer that Lubin's implicit assurances to Schaffer were false when they were made. We are unconvinced by Scripps' attempt to characterize Lubin's statements of intent to follow up with LaMelza as literally true. It argues Coast cannot imply any promise in Lubin's statement where there was no agreement in place regarding Coast's entitlement to commissions on future transactions. However, to the contrary, Coast presented evidence from which a jury could find such an agreement, and thus it is reasonable (and legally permissible) to draw inferences of such a false promise from Lubin's statement. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567 [misrepresentation may be implied by conduct]; Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151 [misrepresentation need not be express but may be implied from the circumstances].)

B. Fraud by Intentional Misrepresentation

We conclude the same evidence summarized above as to Lubin's statement in May 2003 creates an issue of fact as to whether Lubin made a knowingly false representation to Schaffer concerning the status of his dealings with LaMelza. It is entirely reasonable for a jury to conclude Lubin deliberately gave Schaffer false information that he had not communicated with LaMelza though he was fully aware that he had earlier reached an agreement with LaMelza to lend him an additional $21 million.

C. Fraud Against Lubin

In seeking summary judgment, Scripps had argued Coast could not prove fraud against Lubin personally because there is no evidence Lubin acted outside his role as Scripps' corporate officer and California law does not recognize personal liability in such cases. Scripps repeats these arguments on appeal.

In response, Coast contends that it may maintain a fraud cause of action against Lubin because as an individual actor, he is personally responsible for any fraud he personally perpetrates. We agree the evidence demonstrates Lubin engaged in conduct that a jury could conclude amounts to fraud, and that summary judgment was not warranted in his favor on Scripps' asserted grounds. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505-508 [corporate director status neither immunizes a person from individual liability nor subjects him or her to vicarious liability; corporate fiction was never intended to insulate officers from liability for their own tortious conduct]; PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1380-1381.)

DISPOSITION

The judgment is reversed and the matter remanded to the trial court. Coast Loans, Inc. shall recover its costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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^[1] Lubin testified in his deposition that in 1996 or 1997 he had "teamed up" with Frank Schaeffer of FSCI, and at some point he bought FSCI from Frank Schaeffer. Coast presented evidence that Scripps was incorporated by Lubin in June of 1999, and that as of March 2002, Scripps Investment & Loans, Inc. was a registered fictitious business name of Frank Schaeffer Construction, Inc.

^[2] Coast's latter arguments are misplaced. The trial court's reasoning is irrelevant as our role on appeal is to review the parties' summary judgment papers de novo. (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 457-458.)