Pladott v. Blankstein
Filed 1/10/13
Pladott v. Blankstein CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ALEX PLADOTT,
Plaintiff and Appellant,
v.
JOSEF
BLANKSTEIN et al.,
Defendants and Respondents.
B237164
(Los Angeles County
Super. Ct. No. LC070878)
APPEAL
from judgments of the Superior Court of the County of
Frank Johnson, Judge. Affirmed.
Alex
Pladott, in pro. per., for Plaintiff and Appellant.
Manning
& Kass, Ellrod, Ramirez, Trester, Rinat Klier Erlich, and Candace E. Kallberg
for Defendants and Respondents Josef Blankstein and Carmella Blankstein.
McCurdy
& Leibl, Michael Miretsky, and Lee M. Moulin for Defendant and Respondent
Laura Avants Garbell.
Klinedinst,
G. Dale Britton, Neil R. Gunny, Jose A. Mendoza; Coldwell Banker Residential
Brokerage Company and Michael B. Hull for Defendants and Respondents Marc
Garbell and Coldwell Banker Residential Brokerage Company.
>
INTRODUCTION
Defendants
and respondents (defendants) Josef and Carmella Blankstein (the Blanksteins),
Marc and Laura Garbell (the Garbells), and Coldwell Banker Residential
Brokerage Company (Coldwell Banker) each filed motions for summary judgment
that the trial court granted. Plaintiff
and appellant Alex Pladott (Pladott) appeals from the judgments entered in
favor of defendants and also appeals from certain orders entered by the trial
court prior to the entry of the judgments.
Defendants
each submitted facts in support of their summary
judgment motions showing that Pladott could not establish one or more
elements of his causes of action or that they had a complete defense to one or
more of his causes of action, thereby shifting the burden to Pladott to show
the existence of a triable issue of fact.
Therefore, because Pladott failed to submit sufficient admissible facts
to show the existence of a triable issue of fact as to each of his claims, the
trial court properly granted the defendants’ motions for summary judgment. The trial court did not abuse its discretion
when it entered the orders denying the motions from which Pladott appeals.
FACTUAL BACKGROUND
A. The
Blanksteins’ Facts
Pladott
and Carmella Blankstein are sister and brother.
Pladott is an experienced real estate developer. From 1985 through 1998, Pladott was a
self-employed real estate developer.
Pladott was the exclusive owner of a development company called Syco,
which developed 500 condominiums in Israel that were later sold to the State of
Israel. Pladott took the money he
received from that sale in Israel and bought several tracts of land in the
United States, at least one of which he developed into 20 condominiums.
In
1994, as a result of the Northridge Earthquake, several homes and parts of
Pladott’s developments were damaged. As
a result of the damage, Pladott was having “cash flow†problems. He was paying between $20,000 and $25,000 a
month to service the loans on all the properties he owned as of 1996.
To
solve his “cash flow†problems and pay for repairs to his other earthquake
damaged properties, in May of 1996, Pladott suggested that the Blanksteins
enter into an agreement by which the Blanksteins would buy from him the real
property located at 20000 Winnetka Place, Woodland Hills, California (the
property), and that he would have the right to buy the property back within
three years (by May 31, 1999) at the same price for which he sold it
(regardless of its later fair market value), plus any expenses. The sale to the Blanksteins was a “short
saleâ€â€”that is, the sale price was less than the balance of the outstanding debt
secured by a deed of trust, and the lender agreed to release the deed of trust
for less than the amount of the debt.
Pladott asked the Blanksteins to participate in this transaction with
the specific purpose of reducing his monthly payments on the property (even
though he was still living in it), and, in fact, the mortgage payments after
the Blanksteins’ purchase were lower, as were the property taxes. It was Pladott’s idea to limit the repurchase
time period to three years, which at the latest would expire at the end of May
1999. Presumably, Pladott was required
to either pay the new mortgage payments, taxes, and other expenses concerning
the property or reimburse the Blanksteins for those expenses.
The
Blanksteins agreed to purchase the property and did so in May of 1996 for
$475,000, a purchase price Pladott chose as being “convenient,†although
Pladott was aware that the property was being listed at the time for $790,000. Pladott would have lost the property if his
sister had not purchased it. But Pladott
still believed he was the owner of the property. The entire repurchase agreement was 100
percent oral, with no written agreements.
According to Pladott, the contract negotiations were definitely concluded
and, at the time of the oral repurchase agreement, there were no ambiguities or
vagueness as to the terms; on the contrary, “everything was very clear†to all
parties.
On
or around December 11 or 12, 1997, Pladott claims he sent the Blanksteins escrow
instructions to repurchase the property, but the Blanksteins refused to sign
those escrow instructions. Pladott and
the Blanksteins continued to attempt to negotiate the terms of the repurchase
of the property throughout 1998, without success. Pladott retained an attorney and mentioned
going to court. Part of the reason the
Blanksteins were hesitant to agree to the repurchase terms proposed by Pladott
was that Pladott’s credit was, “admittedly, poor.â€
Pladott
never signed the draft proposed agreement sent to him by the Blanksteins’
attorney. Pladott stopped trying to
repurchase the property by the end of 1998, or no later than the year
2000. According to Pladott, he did
everything he could to buy the property back.
Pladott admitted that he has not reimbursed the Blanksteins for all
their expenses related to the property, including the mortgage payments and
property taxes.
At
the time of the filing of this lawsuit, Pladott conceded he only paid the
Blanksteins approximately $50,000, even though the admitted repurchase price
negotiated and agreed upon in 1997 was $503,000, which reflected certain
expenses. As of the time of the
Blanksteins’ motion, Pladott had not made ant rent or mortgage payment on the property
to the Blanksteins or anyone else since 1997, but in any event, at the latest,
since May of 1998.
Pladott
continued to reside at the property through 2006, even though he had not paid
for the mortgage or any property taxes since May 1998. By 2005, the burden of maintaining the costs of
the property with no income or reimbursement from Pladott was “weighing heavyâ€
on the Blanksteins. On February 22,
2005, the Blanksteins filed an unlawful detainer action against Pladott.
The Blanksteins
were residents of Chicago, Illinois, and had only visited California a handful
of times. Pladott reached out to the
Blanksteins and engaged them to buy the property. Then, as admitted by Pladott, money and title
to real property changed hands as between individuals in California and others
in Illinois.
The
Garbells, the Blanksteins’ buyers, resold the property. The individuals or entities that ultimately
purchased the property are not parties to this action.
B. Coldwell
Banker’s and Marc’s
name="_ftnref2" title="">[2] Facts
The
Blanksteins evicted Pladott from the property on or about March 6, 2006. On May 1, 2006, a trial court entered an
order expunging various lis pendens that had been recorded on the property by
Pladott and that order was recorded on May 22, 2006. In late April or early May 2006, the
Blanksteins contacted Marc, a Coldwell Banker real estate agent or broker,
about the property. The Blanksteins
advised Marc that they owned the property and asked him whether he knew of any
potential real estate investors who would be interested in the property.
Within
a week of his conversation with the Blanksteins, Marc viewed the property,
noticed that it was vacant and, inter alia, in need of maintenance. After inspecting the property, Marc advised
the Blanksteins that he might be interested in purchasing it, and, in response,
the Blanksteins asked him to make an offer.
In May 2006, Marc submitted an offer to the Blanksteins to purchase the
property for $1,125,000, which the Blanksteins rejected as too low. On or about May 19, 2006, Marc submitted a
residential purchase agreement and joint escrow instructions (the agreement) to
the Blanksteins with a purchase price of $1,350,000. The Blanksteins accepted that offer on May
31, 2006, and an escrow was opened.
Before escrow
was opened, Marc was advised by the Blanksteins’ attorney that there was an
order expunging the various lis pendens on the property. At no time prior to the close of escrow did
the Blanksteins advise Marc or Coldwell Banker about any purported agreement
between them and Pladott. At no time
prior to the close of escrow did Marc or Coldwell Banker know of any purported
agreement between Pladott and the Blanksteins pursuant to which Pladott would
buy back the property from the Blanksteins.
Marc and Coldwell Banker did not have any economic or contractual
relationship with Pladott with respect to the property.
Because
paragraph 27(c) of the agreement erroneously stated that Coldwell Banker and
Marc were the real estate agent/broker for the Blanksteins, the parties
executed an addendum which clarified that (i) Marc was a licensed real estate
agent; (ii) he was only representing himself in the transaction; and (iii) the
Blanksteins were represented in the transaction by their attorney. The escrow for the purchase of the property
closed on or about July 7, 2006.
C. Laura’s
Facts
The
Blanksteins evicted Pladott from the property on or about March 6, 2006. By court order dated May 1, 2006, all lis
pendens previously filed by or on behalf of Pladott were expunged and Pladott
was ordered to obtain leave of court before filing any further lis pendens on
the property. Pladott did not file any
further lis pendens on the property following the trial court’s May 1, 2006,
order expunging the lis pendens.
On
or about May 31, 2006, Marc and the Blanksteins entered into a residential
purchase agreement (the agreement) whereby the Blanksteins agreed to sell the
property to Marc. Marc obtained an
appraisal of the property at his own expense incident to obtaining a mortgage
after he and the Blanksteins entered into the agreement. Laura was not personally involved in
requesting or arranging the appraisal of the property. Laura did not become a party to the agreement
until the escrow instructions were modified on June 22, 2006, to include her as
a buyer.
On
or about June 21, 2006, the R.J. Peters appraisal report was completed and
thereafter obtained by Laura. Prior to
this litigation, Laura never communicated with Pladott and never communicated
with the Blanksteins.
At
no time prior to the close of escrow on or about July 7, 2006, was Laura aware
of a prospective economic relationship between Pladott and the
Blanksteins. Laura did not intend to
disrupt any relationship between Pladott and the Blanksteins, did not make any
material misrepresentations of fact to Pladott or the Blanksteins, and
committed no independently wrongful act.
PROCEDURAL BACKGROUND
In
response to the Blankstein’s unlawful detainer action against him, Pladott
filed this action. In the operative
fourth amended complaint, he asserted causes of action against Coldwell Banker
and the Garbells for interference with contract,
prospective economic advantage, and fraud.
He also asserted causes of action against the Blanksteins for breach of
oral contract, specific performance, fraud, and declaratory relief.
In
May 2011, Pladott filed a motion to compel production of documents from the
Blanksteins, seeking the production of two e-mails between and among Carmella
Blankstein, her former counsel, and her brother Emmanuel who resided in
Israel. The Blanksteins opposed the
motion on the grounds, inter alia, that the e-mails were no longer in their
possession, the e-mails were irrelevant, and the e-mails were privileged
documents in any event. The trial court
denied the motion on the grounds that the e-mails, which at the time of the
hearing had been located, were not relevant to this action.
In
June 2011, the Blanksteins, Laura, and Coldwell Banker/Marc filed their three
respective motions for summary judgment.
Pladott opposed the motions and filed a separate motion to stay the
proceedings. At the hearing on the
motions, the trial court denied the motion to stay, sustained all of the
defendants’ evidentiary objections to Pladott’s declarations in opposition to
the motions for summary judgment, and granted each motion in its entirety. The trial court subsequently entered three
judgments in favor of the defendants.
Pladott filed an appeal from the order granting the summary judgment
motions.
DISCUSSION
A. Standard
of Review
Our
review of the trial court’s rulings on the summary judgment motions is governed
by the well established principles.
“‘“A trial court properly grants
a motion for summary judgment only if no issues of triable fact appear and the
moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also
id., § 437c, subd. (f) [summary adjudication of issues].)
the burden of showing the court that the plaintiff ‘has not established, and
cannot reasonably expect to establish,’†the elements of his or her cause of
action. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460 [30 Cal.Rptr.3d 797, 115 P.3d
77].)’ (Wilson v. 21st Century Ins.
Co. (2007) 42 Cal.4th 713, 720 [68 Cal.Rptr.3d 746, 171 P.3d 1082].)
court’s decision de novo, liberally construing the evidence in support of the
party opposing summary judgment and resolving doubts concerning the evidence in
favor of that party. (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 [32 Cal.Rptr.3d 436, 116
P.3d 1123].)†(State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008,
1017-1018.)
“We
review the trial court’s decision [on a summary judgment motion] de novo,
considering all of the evidence the parties offered in connection with the
motion (except that which the court properly excluded) and the uncontradicted
inferences the evidence reasonably supports.
(Artiglio v.
Corning, Inc. (1998) 18 Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d
1313].) In the trial court, once a
moving defendant has ‘shown that one or more elements of the cause of action,
even if not separately pleaded, cannot be established,’ the burden shifts to
the plaintiff to show the existence of a triable issue; to meet that burden,
the plaintiff ‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts showing that a
triable issue of material fact exists as to that cause of action . . . .’ (Code Civ. Proc., § 437c, subd. (o)(2);
see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 854-855
[107 Cal.Rptr.2d 841, 24 P.3d 493].)†(
Cal.4th 465, 476-477.)
B. Blanksteins’
Motion
The
trial court ruled, inter alia, that Pladott’s claims against the Blanksteins
were barred by the applicable statutes of limitations. On appeal, Pladott contends that there were
triable issues of fact concerning whether his claims against the Blanksteins
were time-barred.
The
California Supreme Court has discussed the statute of limitations in
detail. We quote at length from one of
its most recent opinions on the subject.
“A statute of limitations strikes a balance among conflicting
interests. If it is unfair to bar a
plaintiff from recovering on a meritorious claim, it is also unfair to require
a defendant to defend against possibly false allegations concerning
long-forgotten events, when important evidence may no longer be available. Thus, statutes of limitations are not mere
technical defenses, allowing wrongdoers to avoid accountability. (Norgart v. Upjohn Co. (1999) 21
Cal.4th 383, 395-397 [87 Cal.Rptr.2d 453, 981 P.2d 79].) Rather, they mark the point where, in the
judgment of the Legislature, the equities tip in favor of the defendant (who
may be innocent of wrongdoing) and against the plaintiff (who failed to take
prompt action): ‘[T]he period allowed
for instituting suit inevitably reflects a value judgment concerning the point
at which the interests in favor of protecting valid claims are outweighed by
the interests in prohibiting the prosecution of stale ones.’ (Johnson v. Railway Express Agency
(1975) 421 U.S. 454, 463-464 [44 L.Ed.2d 295, 95 S.Ct. 1716].)†(Pooshs
v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 (Pooshs).)
“Critical to
applying a statute of limitations is determining the point when the limitations
period begins to run. Generally, a
plaintiff must file suit within a designated period after the cause of action accrues. (Code Civ. Proc., § 312.) A cause of action accrues ‘when [it] is
complete with all of its elements’—those elements being wrongdoing, harm, and
causation. (Norgart v. Upjohn Co.,
supra, 21 Cal.4th at p. 397.) [¶] Application of the accrual rule becomes rather
complex when . . . a plaintiff is aware of both an injury and its wrongful
cause but is uncertain as to how serious the resulting damages will be or
whether additional injuries will later become manifest. Must the plaintiff sue even if doing so will
require the jury to speculate regarding prospective damages? Or can the plaintiff delay suit until a more
accurate assessment of damages becomes possible? Generally, we have answered those questions
in favor of prompt litigation, even when the extent of damages remains
speculative. Thus, we have held that
‘the infliction of appreciable and actual harm, however uncertain in amount,
will commence the statutory period.’ (Davies
[v. Krasna (1975)] 14
Cal.3d [502,] 514.)†(
“The most
important exception to that general rule regarding accrual of a cause of action
is the ‘discovery rule,’ under which accrual is postponed until the plaintiff
‘discovers, or has reason to discover, the cause of action.’ (Norgart v. Upjohn Co., supra, 21
Cal.4th at p. 397.) Discovery of the
cause of action occurs when the plaintiff ‘has reason . . . to suspect a
factual basis’ for the action. (Id.
at p. 398; see also Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1110-1111 [245 Cal.Rptr. 658, 751 P.2d 923].) ‘The policy reason behind the discovery rule
is to ameliorate a harsh rule that would allow the limitations period for
filing suit to expire before a plaintiff has or should have learned of the latent
injury and its cause.’ (Buttram v.
Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 531 [66 Cal.Rptr.2d
438, 941 P.2d 71].)†(
797-798.)
by the Applicable Statutes of Limitations
In
support of their motion, the Blanksteins submitted evidence showing that their
agreement with Pladott, if any, entitled him to repurchase the property at any
time within the three year time period following their May 1996 purchase, i.e.,
on or before May 31, 1999. Pladott’s
claims against the Blanksteins—breach of oral agreement and specific
performance, fraud, and declaratory relief—were predicated upon their alleged
failure to sell him the property within that time, notwithstanding his efforts
to repurchase the property. The
Blanksteins also submitted evidence showing that no repurchase of the property
occurred prior to the May 31, 1999, deadline.
Therefore, Pladott’s claims accrued, if at all, by May 31, 1999, the last
date upon which Pladott could have repurchased the property. The evidence in support of the motion
supported a reasonable inference that Pladott knew or should have known of the
Blanksteins’ failure to reconvey the property to him by that date on the terms
he demanded. That evidence also
supported a reasonable inference that Pladott was aware, as of May 31, 1999, of
the damage he suffered as a result of the Blanksteins’ alleged failure to keep
their promise to reconvey. Although he
may not have been aware of the precise amount of damage he had suffered by that
date, he knew or should have known that the Blanksteins’ alleged conduct had
inflicted upon him appreciable injury or actual damage in some unspecified
amount, presumably based upon his inability to own the property in which he was
residing and which he wanted (including the likelihood of the appreciation of
the value of the property).
Under the
authorities discussed above, Pladott’s claims against the Blanksteins accrued,
at the latest, at the end of the three-year repurchase period. But the record shows that Pladott did not
file his complaint against them until March 17, 2005, i.e., over five and a
half years from the accrual of his claims against the Blanksteins. Because none of the statutes of limitations
applicable to Pladott’s claims was longer than three years,
concluded that those claims were untimely filed and time-barred.
Pladott suggests
that the statutes of limitations applicable to his claims against the
Blanksteins were tolled for some unspecified period of time due to the conduct
of the Blanksteins and that there was delayed discovery of those claims. The trial court sustained each of the
defendants’ objections to his declarations submitted in opposition to the
motions. Pladott did not challenge on
appeal the trial court’s exclusion of that evidence, thereby forfeiting on
appeal any contentions based on such excluded evidence. (See Salas
v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1074 [“Because
[the] plaintiffs failed to properly raise a challenge to the [trial] court’s
many evidentiary rulings and failed to support such challenge with reasoned
argument and citations to authority, they have forfeited their challenge to the
exclusion of most of [the witness’s] declaration. (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785 [79 Cal.Rptr.2d 273]â€].) Thus, there was
insufficient factual evidence in the record to support his tolling and delayed
discovery assertions. Absent such factual
evidence, Pladott failed to sustain his evidentiary burden on the motion to
rebut the Blanksteins’ prima facie factual showing in support of their statute
of limitations defense.
C. Coldwell
Banker’s and Marc’s Motion
Interference Cause of Action
Pladott
contends that he raised triable issues of fact concerning each of the elements
of his claim for interference with prospective economic advantage. “In order to prove a claim for intentional
interference with prospective economic advantage, a plaintiff has the burden of
proving five elements: (1) an economic
relationship between the plaintiff and a third party, with the probability of
future economic benefit to the plaintiff; (2) the defendant’s knowledge of the
relationship; (3) an intentional act by the defendant, designed to disrupt the
relationship; (4) actual disruption of the relationship; and (5) economic harm
to the plaintiff proximately caused by the defendant’s wrongful act, including
an intentional act by the defendant that is designed to disrupt the
relationship between the plaintiff and a third party. (Korea Supply Co. v. Lockheed Martin Corp.
(2003) 29 Cal.4th 1134, 1153-1154 [131 Cal.Rptr.2d 29, 63 P.3d 937].) The plaintiff must also prove that the
interference was wrongful, independent of its interfering character. (Della Penna v. Toyota Motor Sales,
U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393 [45 Cal.Rptr.2d 436, 902 P.2d
740].) ‘[A]n act is independently
wrongful if it is unlawful, that is, if it is proscribed by some
constitutional, statutory, regulatory, common law, or other determinable legal
standard.’ (Korea Supply Co., supra,
29 Cal.4th at p. 1159.)†(
Cal.4th 937, 944.)
In support of
their summary judgment motion, Coldwell Banker and Marc submitted evidence that
they had no actual knowledge of the alleged repurchase agreement between
Pladott and the Blanksteins, as well as evidence that the trial court had
expunged all of the lis pendens that Pladott had recorded against the property
arising from his dispute with the Blanksteins.
The evidence showing that Marc and Coldwell Banker lacked knowledge of
the repurchase agreement supported a reasonable inference that Pladott could
not prove an essential element of his tortious interference claim against
Coldwell Banker and Marc—actual knowledge of the alleged prospective economic
advantage.
Because
the trial court sustained each of the defendants’ objections to Pladott’s
declarations, Marc’s testimony that neither he nor Coldwell Banker were aware
of the repurchase agreement was unrebutted by Pladott. As a result, that testimony, by itself, was
sufficient to show that Pladott could not prove his tortious interference
claim. Therefore, we do not need to
reach the issue of whether the evidence showing the expungement of the lis
pendens also insulated Marc and Coldwell Banker from liability on Pladott’s
claims against them.
2. Fraud Cause of Action
Pladott
contends that there were triable issues of fact concerning each of the elements
of his fraud claim against Coldwell Banker and Marc. “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. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638 [49 Cal.Rptr.2d 377, 909 P.2d 981].)†(Robinson
Helicopter Co., Inc. v. Dana Corp.
(2004) 34 Cal.4th 979, 990; see also Conroy
v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) Pladott contends specifically in this regard
that Marc and Coldwell Banker were somehow involved with the Blanksteins’
alleged misdeeds in connection with the sale of the property.
“‘[T]he
elements of a cause of action for fraud based on concealment are: “‘(1) the
defendant must have concealed or suppressed a material fact, (2) the defendant
must have been under a duty to disclose the fact to the plaintiff, (3) the
defendant must have intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff, (4) 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, and (5) as a result of the concealment or suppression of the
fact, the plaintiff must have sustained damage.
[Citation.]’ [Citation.]†[Citation.]’
(Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178
Cal.App.4th 830, 850 [100 Cal.Rptr.3d 637] (Kaldenbach); accord, Levine
v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1126-1127 [117
Cal.Rptr.3d 262].) [¶] There are ‘“four circumstances in which
nondisclosure or concealment may constitute actionable fraud: (1) when the
defendant is in a fiduciary relationship with the plaintiff; (footnote omitted)
(2) when the defendant had exclusive knowledge of material facts not known to
the plaintiff; (3) when the defendant actively conceals a material fact from
the plaintiff; and (4) when the defendant makes partial representations but
also suppresses some material facts.
[Citation.]†[Citation.]’ (LiMandri v. Judkins (1997) 52
Cal.App.4th 326, 336 [60 Cal.Rptr.2d 539] (LiMandri).)†(Bank
of America Corp. v. Superior Court (2011) 198 Cal.App.4th 862,
870-871.) When there is no fiduciary
relationship, “[e]ach of the other three circumstances in which nondisclosure
may be actionable presupposes the existence of some other relationship between
the plaintiff and defendant in which a duty to disclose can arise.†(LiMandri,
supra, 52 Cal.App.4th at pp.
336-337.)
Coldwell
Banker’s and Marc’s evidence in support of their summary judgment motion on the
fraud claim supported a reasonable inference that they were unaware of the
alleged repurchase agreement between Pladott and the Blanksteins. That evidence supported a reasonable
inference that neither Coldwell Banker nor Marc could have made any intentional
misrepresentations relevant to that agreement.
Moreover, as noted, Pladott did not have any evidence that would have
supported a reasonable inference that either Coldwell Banker or Marc made any
material misrepresentation relevant to the dispute over the alleged repurchase
agreement or Marc’s purchase of the property from the Blanksteins. That failure of proof regarding the material
misrepresentation element of Pladott’s fraud claim against Coldwell Banker and
Marc demonstrated that Pladott failed to satisfy his burden of proof concerning
that fraud claim.
Moreover,
to the extent Pladott’s fraud claim against Coldwell Banker and Marc was based
on alleged intentional concealment, their evidence in support of their motion
supported a reasonable inference that they had no relationship with Pladott,
much less the type of relationship that would give rise to a duty to disclose
under the case law cited above. And,
Pladott had no evidence that would have raised a triable issue as to whether
either Coldwell Banker or Marc had a relationship with Pladott sufficient to
give rise to a duty to disclose. Absent
such evidence, Pladott failed to carry his burden of establishing a triable
issue on that duty element of a concealment
claim.
D. Laura’s
Motion
The
trial court’s ruling on Laura’s motion for summary judgment must be affirmed
for all the reasons that support our affirmance of the trial court’s ruling on
the motions brought by Coldwell Banker and Marc. Her evidence supported a reasonable inference
that she was unaware of any relationship between Pladott and the Blanksteins
based on her testimony that she lacked such knowledge, and that she made no
representations to and did not have any relationship with Pladott. Pladott’s failure to rebut that evidence
supported the conclusion that he had failed to carry his burden on Laura’s
summary judgment motion.
of Motion to Stay
Pladott
contends that the trial court should have granted his motion to stay the
action. According to Pladott, this
action embraced matters that were then pending before the Court of Appeal based
on an appeal he had filed in case number B233191 (Superior Court case number
LC081576).
“We
review the trial court’s denial
of [a] plaintiffs’ motion for a stay under the abuse of discretion standard of review.
(See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876,
889 [94 Cal.Rptr.2d 505] (Avant!) [applying abuse of discretion standard of review in
determining whether trial court
erred in denying party’s motion to stay
proceedings in light of pending related criminal proceeding].)†(Bains
v. Moores (2009) 172 Cal.App.4th 445, 480.)
Pladott’s
argument concerning the trial court’s denial of his motion to stay is
predicated on a general assertion about the similarities between certain issues
in this case and the issues that were then pending before the Court of Appeal
in case number B233191. But Pladott
fails to explain which of the issues in this case were being considered in that
appeal. Moreover, based on the opinion
in case number B233191, it appears that the matters at issue in that case were
distinct from those that were before the trial court on the summary judgment
motions in this action. As the opinion
states, that appeal involved claims by Pladott and his son against the
Blanksteins based on allegations that the Blanksteins had fraudulently misused
the unlawful detainer procedure. On
appeal, the Court of Appeal ultimately held that all of the claims in that case
were barred by the litigation privilege
because they were based on statements made by litigants in connection with a
pending judicial proceeding. Thus, the
gravamen of that action was distinct from that of this action, which involves
Pladott’s assertion that the Blanksteins failed to reconvey to him the property
as promised and does not directly implicate the litigation privilege. Given the differences between the two
actions, it was not an abuse of discretion for the trial court to deny the
motion to stay.
F. Denial
of Motion to Compel
Pladott
argues that the trial court erred when it denied his motion to compel the
Blanksteins to produce two e-mails. He
maintains that the “two e-mails are relevant as evidence of the Blanksteins’
intent at that period of time to deceive Pladott in connection with his rights
at the property under [the repurchase agreement].â€
“A
trial court’s determination of a
motion to compel discovery is
reviewed for abuse of discretion. (2,022 Ranch v. Superior Court (2003)
113 Cal.App.4th 1377, 1387 [7 Cal.Rptr.3d 197].) An abuse of discretion is shown when the
trial court applies the wrong legal standard.
(Zurich American Ins. Co. v. Superior Court (2007) 155
Cal.App.4th 1485, 1493 [66 Cal.Rptr.3d 833].)
However, when the facts asserted in support of and in opposition to the
motion are in conflict, the trial court’s factual findings will be upheld if
they are supported by substantial evidence.
(HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 60
[24 Cal.Rptr.3d 199, 105 P.3d 560]; D. I. Chadbourne, Inc. v. Superior Court
(1964) 60 Cal.2d 723, 729 [36 Cal.Rptr. 468, 388 P.2d 700].)†(Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) “In general, we review the trial court’s ruling on a motion to compel discovery for an
abuse of discretion, because the
trial court is vested with wide
statutory discretion to manage
discovery. (John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1186 [45 Cal.Rptr.3d 316, 137 P.3d 153].) ‘In addition, if the trial court reached its
decision after resolving conflicts in the evidence, or inferences that could be
drawn from the evidence, we review those factual findings to determine whether
they are supported by substantial evidence.
[Citation.]’ (County of Los
Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 12 [42 Cal.Rptr.3d
390].) [¶] However, ‘where the propriety of a discovery
order turns on statutory interpretation, an appellate court may determine the
issue de novo as a question of law.
[Citation.]’ (Britts v.
Superior Court (2006) 145 Cal.App.4th 1112, 1123 [52 Cal.Rptr.3d
185].)†(Pomona Valley Hospital Medical Center v. Superior Court (2012) 209
Cal.App.4th 687, 692-693.)
As
noted above, the trial court determined that the two e-mails were not relevant
to any issue in this action. Although
Pladott generally asserts on appeal that the two e-mails were relevant to the
Blanksteins’ intent to deceive him, he does not provide a factual basis to
support that assertion or to demonstrate that the e-mails contained facts or
statements that might lead to the discovery of admissible evidence. Moreover, he does not make any showing of
prejudice from the trial court’s denial of his motion to compel. He argues the documents are relevant to the
Blanksteins’ intent to deceive him in connection with the oral repurchase
agreement, but provides no further information.
Before the trial court, he argued that the documents concerned fraud in
connection with his tenancy and in connection with “fraudulent utilization of
the jurisdiction of Code of Civil Procedure section 1161 et seq.,†matters not
involved in this case. Accordingly, we
conclude that Pladott has not carried his burden on appeal to demonstrate
prejudicial error. The order denying his
motion to compel is therefore affirmed.
G. Leave
to Amend
Pladott
maintains that he should have been allowed to amend his fourth amended
complaint. Although the proposed
amendments are not specified, Pladott suggests that they would have been based
upon the appellate opinion in case number B233191, which, at the time of
Pladott’s motion to stay, had yet to be issued.
We
review a trial court’s denial of a request for leave to amend for abuse of
discretion. “‘[T]he trial
court has wide discretion in allowing the amendment of any pleading
[citations], [and] as a matter of policy the ruling of the trial court in such
matters will be upheld unless a manifest or gross abuse of discretion is
shown. [Citations.]’ (Bedolla v. Logan & Frazer (1975)
52 Cal.App.3d 118, 135-136 [125 Cal.Rptr. 59].)†(Record v. Reason (1999) 73
Cal.App.4th 472, 486.)
Pladott
did not make a formal motion to amend his pleading. And, the only references in the record to an
amendment are two statements in one of his opposition briefs wherein he asserts
that he intended to amend his complaint following the determination of his
appeal in case number B233191 and his statement to the trial court at the
hearing on the motion to stay that he was reserving his right to amend the
fourth amended complaint based on the outcome of his then pending appeal in
case number B233191. Moreover, Pladott
did not provide the trial court with the proposed amendments, much less a
proposed amended complaint, and he provided no explanation for the delay in
moving to amend his complaint. At best,
in connection with his motion to stay, he raised the amendment issue generally
as one ground for granting a stay, but at no point did he provide the trial
court with an adequate factual or legal basis upon which it could have granted
leave to amend. Because it does not
appear that any error occurred in the trial court concerning the amendment issue,
we conclude that Pladott has failed to carry his burden on appeal to
demonstrate prejudicial error in connection with that issue.
DISPOSITION
The
judgments and orders from which Pladott appeals are affirmed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MOSK,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
factual backgrounds relevant to the three summary judgment motions are taken
from the separate statements filed in support of those motions because, as
discussed post, most of Pladott’s
factual evidence was deemed inadmissible by the trial court.
name="_ftn2" title="">[2] For clarity, the Garbells will be referred to individually
by their first names.
