Filed 7/8/26 Van Taylor v. Optima Escrow CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THRIS VAN TAYLOR, et al., B328348
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. 22STCV06520)
OPTIMA ESCROW, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin C. Brazile, Judge. Affirmed.
Thris Van Taylor, a Law Corporation and Thris Van Taylor
for Plaintiffs and Appellants.
Forry Law Group and Craig B. Forry for Defendants and
Respondents.
Attorney Thris Van Taylor (and his firm, Thris Van Taylor,
a Law Corporation; collectively, “Van Taylor”) brought this action
against a former client, Katie L. Little, to recover unpaid fees and
other debt. Van Taylor also sued Optima Escrow, Inc., and two
affiliated individuals, Marty Rangel, and Mumtaz Thakor
(collectively, “Optima”).1 Using Optima as the escrow company,
Little sold real property to a third party. Van Taylor contends
Optima should have disbursed part of the sale proceeds directly
to him to satisfy Little’s debt.
On appeal, Van Taylor argues the trial court erroneously
sustained Optima’s demurrer to his first amended complaint and
abused its discretion by denying leave to amend. He also
contends the trial court erroneously denied his motion to tax
Optima’s memorandum of costs. We reject these arguments and
affirm the judgment.
OPTIMA’S DEMURRER
After the trial court sustained Optima’s demurrer to Van
Taylor’s first amended complaint without leave to amend, it
entered a judgment of dismissal for Optima. Van Taylor timely
appealed.
I. Legal Standard on Demurrer
On review of a judgment entered after demurrer, we
“examine the operative complaint de novo to determine whether
it alleges facts sufficient to state a cause of action under any legal
theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4
Cal.5th 145, 162.) We assume ultimate facts are true, but do not
1 For clarity and ease of reading, we refer to Van Taylor and
Optima in the singular.
2
accept contentions or conclusions of law or fact. (Fox v. JAMDAT
Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Where “the
allegations in the complaint conflict with attached exhibits, we
rely on and accept as true the contents and legal effect of the
exhibits.” (Chisom v. Board of Retirement of Fresno County
Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400, 410.)
II. Summary of Allegations
Beginning in 2015, Van Taylor represented Little in several
actions and other matters. Little owed Van Taylor at least
$200,000 in legal fees. Three retainer agreements between Van
Taylor and Little provided that Van Taylor would be “given a lien
on any recovery, as security for payment of . . . fee[s] and
disbursements.” Little later agreed to pay Van Taylor from
proceeds received from selling a residential property. Van Taylor
also lent Little $23,000 to repair and remodel the property before
sale.
Little entered an agreement to sell the property for
$950,000. She and the buyer opened an escrow with Optima.
Three times during escrow, Van Taylor demanded that Optima
directly pay him to satisfy Little’s unpaid fees. Little initially
instructed Optima to pay Van Taylor $200,000.2 But shortly
afterwards, Little told Optima “ ‘not to pay any money to Thris
Van Taylor . . . at the close of escrow.’ ” She then instructed
Optima “ ‘to disregard any invoices’ ” from Van Taylor. Little
2 The attached exhibit shows Little’s letter to Optima stated
she disputed the amount she owed Van Taylor and was “willing
to pay, at most, $200,000.” The letter does not specifically
instruct Optima to pay Van Taylor directly from the sale
proceeds.
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wrote, “ ‘Payment to Thris Van Taylor shall be handled outside of
escrow and Escrow Holder is only authorized to pay liens of
record payments to third parties stated by me through written
instructions.”
Via Little’s instructions, Van Taylor became “a party to
the” escrow “or a third party beneficiary” or “assignee” to the
escrow. Optima “advised, aided, abetted, conspired, prepared,
[and] counseled Little” to sign the escrow instructions and
thereby deprived Van Taylor of the money Little owed him.
Based on these allegations, Van Taylor brought seven
causes of action against Optima.
III. Van Taylor Does Not Allege Sufficient Facts for His
Causes of Action Against Optima
The first amended complaint alleges insufficient facts to
state a cause of action against Optima under any legal theory.
A. 2nd Cause of Action for “Breach of Third Party
Contract”
An escrow holder generally owes no duty to third parties.
(Summit Financial Holdings, Ltd. v. Continental Lawyers Title
Co. (2002) 27 Cal.4th 705, 711 (Summit).) The holder need not
“ ‘police the affairs of its depositors’; rather, [its] obligations are
‘limited to faithful compliance with [the depositors’]
instructions.’ ” (Ibid.) Van Taylor does not allege facts
establishing an exception to this principle.
Van Taylor contends he was a party to the contract or a
third party beneficiary of the contract between Little and
Optima. “A fundamental rule of contract formation and
interpretation is that the terms of a contract are determined by
the parties’ objective manifestations of consent.” (Tufeld
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Corporation v. Beverly Hills Gateway, L.P. (2022) 86 Cal.App.5th
12, 30.) Someone who is not a party to a contract can sue for
breach of the contract if the defendant breaches “a promise
which, if performed, would have benefited the third party.”
(Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879,
891.)
The first amended complaint alleges only bare legal
conclusions that Van Taylor was a party or third party
beneficiary to the escrow. He does not allege facts establishing
either conclusion. Van Taylor alleges he “became a party
to . . . or a third party beneficiary to” the escrow because Little
initially told Optima she was “willing to pay Mr. Taylor no more
than $200,000.” These allegations expressly rely on attached
exhibits that negate these legal conclusions. Little’s letter to
Optima dated February 13, 2020, states, “I am willing to pay, at
most $200,000.” She reiterated, “Again, I am willing to pay Mr.
Taylor no more than $200,000.” Nothing in this writing
objectively manifests an intention to make Van Taylor a party to
or beneficiary of the contract. By using “I” in these statements,
Little indicated an amount she personally was willing to pay Van
Talor. This letter does not instruct Optima to directly pay him.
Moreover, we interpret part of a writing “ ‘ “in the context
of that instrument as a whole.” ’ ” (Harper v. Wausau Ins. Co.
(1997) 56 Cal.App.4th 1079, 1086.) Little’s letter dated February
13, 2020, consistently asserts her opposition to Van Taylor’s
demands. She wrote she was “in distress about the excessive
bill,” the amount was “exorbitant,” and she believed she was
“being taken advantage of because of [her] age.” The letter
states, “[I]f this is not resolved I feel I must seek other legal
remedies.” Given this context, one cannot reasonably interpret
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the letter as instructing Optima to directly pay Van Taylor the
$200,000 she was “willing to pay.”
Van Taylor further alleges he “became a third party
beneficiary to the escrow” because, when Little entered a listing
agreement with a real estate agent, one purpose of the agreement
was for Little to use the sale proceeds to pay Van Taylor “through
[e]scrow.” He does not, however, allege facts showing the parties
objectively manifested any intent to benefit him. This paragraph
of the first amended complaint cites attached exhibits
(correspondence) that are dated months after the listing
agreement. In any event, the exhibits do not indicate any intent
to benefit Van Taylor.
Van Taylor also argues he can enforce the escrow contract
as Little’s assignee. “ ‘[An] assignment, to be effectual, must be a
manifestation to another person by the owner of the right
indicating his intention to transfer . . . the right to such other
person, or to a third person.’ ” (Dameron Hospital Assn. v. AAA
Northern California, Nevada & Utah Ins. Exchange (2022) 77
Cal.App.5th 971, 989–990.) “In determining whether an
assignment has been made, ‘the intention of the parties as
manifested in the instrument is controlling.’ ” (California Ins.
Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2012) 203
Cal.App.4th 1328, 1335.)
Van Taylor does not allege sufficient facts showing Little
assigned her right to payment from Optima. As with his
contentions he was a party to or third party beneficiary of the
escrow, Van Taylor alleges he “became . . . an assignee of the
$200,000” because of Little’s letter to Optima dated February 13,
2020. Nothing in this letter objectively manifests Little intended
to transfer her right to $200,000 from Optima. The letter states
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she was “willing to pay” him $200,000 but does not assign him
ownership of that sum and does not instruct Optima to pay him.
Van Taylor cites authority stating, “ ‘In the event of a
conflict or apparent error in instructions, the escrow holder is
obliged to take corrective steps before obeying questionable
instructions.’ ” (Kirk Corp. v. First American Title Co. (1990) 220
Cal.App.3d 785, 807.) The obligation is part of the duty an
escrow holder owes to its principal. (Id. at pp. 806–807; Diaz v.
United California Bank (1977) 71 Cal.App.3d 161, 171.) This
authority does not mean an escrow holder owes any such duty to
third parties.
This cause of action also fails because, assuming Van
Taylor once was a party, third party beneficiary, or Little’s
assignee, the first amended complaint’s allegations and exhibits
show Little rescinded any such contract. “A contract, made
expressly for the benefit of a third person, may be enforced by
him at any time before the parties thereto rescind it.” (Civ. Code,
§ 1559.) Just as “a party to an escrow may issue new instructions
to the escrow holder in the form of an assignment” (Summit,
supra, 27 Cal.4th at p. 714), a party may issue new instructions
to not pay the former assignee. (See Feinberg v. Intrastate
Escrow Corporation (1963) 216 Cal.App.2d 80, 83 (Feinberg) [“An
escrow, even one made for the benefit of a third party, is subject
to cancellation before the third party enforces it”].)
Before Van Taylor brought this action, Little expressly
instructed Optima not to pay him. Van Taylor alleges no facts
establishing (nor makes any argument for) any basis to limit
Little’s power to modify or rescind her instructions to Optima.
Contrary to Van Taylor’s assertion, Feinberg does not
support his position. There, the court held that—based on
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equitable estoppel—an escrow holder owed a duty to a third party
beneficiary of a cancelled escrow. (Feinberg, supra, 216
Cal.App.3d at p. 85.) Equitable estoppel requires: “(1) the party
to be estopped must be apprised of the facts; (2) he must intend
that his conduct shall be acted upon, or must so act that the
party asserting estoppel had the right to believe that it was so
intended; (3) the party asserting the estoppel must be ignorant of
the true state of facts; and (4) he must rely on the conduct to his
prejudice.” (Butler America, LLC v. Aviation Assurance
Company, LLC (2020) 55 Cal.App.5th 136, 147.) In Feinberg, the
escrow holder “actively lulled plaintiff into continuing his patient
wait for the escrow to close by saying nothing of the cancelled
instructions and by assuring him that all was well with the
escrow and counseling further patience.” (Feinberg, at p. 85.)
Van Taylor does not allege sufficient facts to invoke
equitable estoppel. Rather than being ignorant of the fact that
Optima would not directly pay him, the exhibits attached to the
first amended complaint show Van Taylor received a copy of
Little’s letter disputing the debt. And Van Taylor does not allege
Optima did anything to mislead him. To the contrary, the
attached exhibits show Optima informed him Little disputed the
debt and told him to direct any questions to her. Nor does Van
Taylor allege facts showing he relied on any conduct by Optima.
Instead, he repeatedly demanded money from Optima, including
after receiving Little’s letter opposing his demands.
Lastly, Van Taylor argues Little’s answer admitted
plaintiffs were parties, third party beneficiaries, or assignees to
the escrow. Van Taylor did not include Little’s answer in the
appellate record and therefore forfeited any argument relying on
it. Appellants bear the burden of presenting an adequate record
8
on appeal to establish that the trial court erred. (Jameson v.
Desta (2018) 5 Cal.5th 594, 608–609.)
Although Van Taylor’s designation of the record on appeal
does not include Little’s answer, he attached a document he
claims is Little’s answer to his reply brief. It is improper,
however, to simply attach exhibits, not part of the record on
appeal, to an appellate brief. (Ilczyszyn v. Southwest Airlines Co.
(2022) 80 Cal.App.5th 577, 587, fn. 9; Midwife v. Bernal (1988)
203 Cal.App.3d 57, 60, superseded by statute on another ground
as noted in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 969.)
Even if we considered Little’s purported answer, it does not
support Van Taylor. This appeal concerns Optima, not Little.
Van Taylor provides no authority nor reason why Little’s answer
binds other defendants. And even if Optima admitted these
allegations, that would not suffice because (as discussed above)
they are legal conclusions. A defendant’s answer may only admit
“facts, not legal theories or conclusions” or “assertions involving a
mixed question of law and fact.” (Stroud v. Tunzi (2008) 160
Cal.App.4th 377, 384.)
B. 3rd Cause of Action for Breach of Covenant of Good
Faith and Fair Dealing
Van Taylor does not allege sufficient facts for this cause of
action because he was not a party to a contract with Optima.
Breach of the implied covenant of good faith and fair dealing
requires an underlying contract. (Bevis v. Terrace View Partners,
LP (2019) 33 Cal.App.5th 230, 252.) For the reasons given above,
Van Taylor does not allege facts establishing he had any contract
with Optima or any other right to enforce Optima’s contract with
Little.
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C. 4th Cause of Action for Negligence
Van Taylor cannot succeed on this cause of action because
he does not allege facts establishing Optima owed any duty to
him. Negligence requires “ ‘a legal duty to use due care, a breach
of such legal duty, and the breach as the proximate or legal cause
of the resulting injury.’ ” (Beacon Residential Community Assn.
v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)
An escrow holder owes no legal duty to those who are not parties
to the escrow. (Summit, supra, 27 Cal.4th at pp. 715–716;
Alereza v. Chicago Title Co. (2016) 6 Cal.App.5th 551, 558–562.)
Van Taylor does not allege sufficient facts to establish an
exception to this rule.
D. 5th Cause of Action for Intentional Infliction of
Emotional Distress
Intentional infliction of emotional distress requires:
“ ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with
the intention of causing, or reckless disregard of the probability
of causing, emotional distress; (2) the plaintiff’s suffering severe
or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous
conduct.” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)
As a matter of law, Van Taylor’s allegations against
respondents do not constitute extreme and outrageous conduct.
The conduct “ ‘must be so extreme as to exceed all bounds of that
usually tolerated in a civilized society.’ ” (Moncada v. West Coast
Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) False
representations about compensation may “demonstrate callous
disregard for plaintiffs’ professional and personal well-being” but
are insufficient for intentional infliction of emotional distress.
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(Id. at pp. 780–781.) The first amended complaint alleges
Optima schemed to deprive Van Taylor of money Little owed him.
That is a simple financial dispute, not outrageous conduct beyond
the bounds of human decency.
E. 6th & 7th Causes of Action for “Fraud and Deceit”
and “Intentional Misrepresentation”
The first amended complaint does not allege sufficient facts
for fraud or intentional misrepresentation, which are the same
cause of action. “The elements of intentional misrepresentation,
or actual fraud, are: ‘(1) misrepresentation (false representation,
concealment, or nondisclosure); (2) knowledge of falsity (scienter);
(3) intent to defraud (i.e., to induce reliance); (4) justifiable
reliance; and (5) resulting damage.’ ” (Anderson v. Deloitte &
Touche (1997) 56 Cal.App.4th 1468, 1474.) Fraud “must be pled
specifically; general and conclusory allegations do not suffice.”
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).) The
plaintiff must “ ‘plead[ ] facts which “show how, when, where, to
whom, and by what means the representations were tendered.” ’ ”
(Ibid.)
Van Taylor does not allege Optima made any
misrepresentations that can support a fraud cause of action.
Instead, he alleges Little made false promises to pay for his legal
services and to repay a loan. Van Taylor’s fraud causes of action
thus entirely depend on his civil conspiracy and aiding and
abetting claims.
A civil conspiracy claim fails where “the alleged
conspirator, though a participant in the agreement underlying
the injury, was not personally bound by the duty violated by the
wrongdoing and was acting only as the agent or employee of the
party who did have that duty.” (Doctors’ Co. v. Superior
Court (1989) 49 Cal.3d 39, 44.) Here, Optima did not personally
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owe any duty to Van Taylor. He seeks to hold Optima liable
solely for its actions as Little’s escrow agent. Van Taylor thus
fails to allege facts supporting liability based on civil conspiracy.
Liability for aiding and abetting a tort applies in two
circumstances. First, a defendant is liable for aiding and
abetting a tort if it “gives substantial assistance to the other in
accomplishing a tortious result and the person’s own conduct,
separately considered, constitutes a breach of duty to the third
person.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832,
846 (Saunders).) This theory fails for the same reason as civil
conspiracy: Optima had no independent duty to Van Taylor.
Second, a defendant is liable for aiding and abetting a tort
if it “knows the other’s conduct constitutes a breach of duty and
gives substantial assistance or encouragement to the other to so
act.” (Saunders, supra, 27 Cal.App.4th at p. 846.) This theory
fails because Van Taylor does not specifically allege facts showing
Optima knew Little was committing fraud. The first amended
complaint itself establishes what Optima knew: Little disputed
the debt to Van Taylor and, as Optima’s principal, she instructed
it not to pay Van Taylor and to let her resolve that dispute
outside of escrow. These allegations do not show Optima knew
that Little’s conduct was tortious.
Assuming Optima can be held liable for Little’s conduct (it
cannot), Van Taylor’s fraud causes of action still fail. The only
potential fraud here is promissory fraud: “A promise to do
something necessarily implies the intention to perform; hence,
where a promise is made without such intention, there is an
implied misrepresentation of fact that may be actionable fraud.”
(Lazar, supra, 12 Cal.4th at p. 638.)
Van Taylor does not specifically allege facts showing Little
made any promise without the intent to perform. The first
amended complaint merely makes conclusory allegations that “all
12
of Little’s representation was false and Little knew they were
false,” she “made false promises and representation[s],” and
“knew the representation was false when she made it.”
Reviewing similar assertions in a complaint, another division of
this court held “[t]hese allegations are the very sort of general
and conclusory allegations that are insufficient to state a
[promissory] fraud claim.” (Reeder v. Specialized Loan Servicing
LLC (2020) 52 Cal.App.5th 795, 804.) The same reasoning
applies here.
F. 8th Cause of Action for Conversion
Lastly, the first amended complaint does not allege
sufficient facts for conversion. “ ‘ “The elements of a conversion
are the plaintiff’s ownership or right to possession of the property
at the time of the conversion; the defendant’s conversion by a
wrongful act or disposition of property rights; and damages.” ’ ”
(Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45
(Plummer).) Plaintiffs must allege they are “ ‘ “entitled to
immediate possession at the time of conversion.” ’ ” (Ibid.) “ ‘[A]
mere contractual right of payment, without more, will not
suffice.’ ” (Ibid.)
Van Taylor does not allege facts showing he had the
immediate right to possess any of the money Optima held in
escrow. “[A] valid attorney’s lien” can give an attorney “an
immediate right to possess [the client’s] settlement funds” or
other money recovered in a proceeding. (Plummer, supra, 184
Cal.App.4th at p. 46.) Under each retainer agreement, the
attorney’s liens were “on any recovery” in the prior actions. Van
Taylor alleges Optima converted money paid from the buyer to
purchase Little’s real property. He does not allege Optima
converted money obtained as proceeds from the actions where he
represented Little.
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Van Taylor’s allegations show no more than a contractual
right to payment from Little. His pending claim against Little
did not give him the immediate right to possess $200,000 she
received from any source.
IV. Van Taylor Shows No Reasonable Possibility of
Amendment
Van Taylor contends the trial court abused its discretion by
sustaining the demurrer without leave to amend and by hearing
the demurrer before a pending informal discovery conference.
Where “the demurrer was sustained without leave to amend, we
consider whether there is a ‘reasonable possibility’ that the defect
in the complaint could be cured by amendment.” (King v.
CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) Plaintiffs bear
the burden of showing they can amend the pleading to cure the
defect. (Ibid.) Van Taylor does not meet this burden.
He contends the court should not have ruled on the
demurrer before a pending informal discovery conference. Van
Taylor does not adequately explain how additional discovery
could have allowed him to cure the first amended complaint’s
defects. His opening brief includes new exhibits not attached to
the first amended complaint. None of them shows Van Taylor
has a reasonable possibility of curing the defects in his first
amended complaint. To the contrary, the document titled
“proceeds instructions–seller” directly contradicts Van Taylor’s
assertions that Little instructed Optima to disburse money to
Van Taylor. The instructions state the payment of $203,146.77 is
for “legal fees,” but expressly direct that payment be made to an
account held by Little, not Van Taylor. This document indicates
Optima fulfilled its duty to comply with Little’s instructions.
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Van Taylor also notes the first amended complaint filed
below has four missing pages. But he gives no reason why the
omitted allegations would cure any defect in his causes of action.
The omitted pages include no new substantive allegations.
Sustaining Optima’s demurrer without leave to amend was
not an abuse of discretion.
VAN TAYLOR’S MOTION TO TAX COSTS
Van Taylor argues the trial court erroneously denied his
motion to tax Optima’s memorandum of costs. The motion
contended only that Optima’s memorandum of costs was
untimely. Van Taylor makes the same argument on appeal. For
reasons we shall explain, we are unpersuaded.
“A prevailing party who claims costs must serve and file a
memorandum of costs within 15 days after the date of service of
the notice of entry of judgment or dismissal by the clerk under
Code of Civil Procedure section 664.5 or the date of service of
written notice of entry of judgment or dismissal, or within 180
days after entry of judgment, whichever is first.” (Cal. Rules of
Court, rule 3.1700(a).) For this deadline, “the operative event is
entry of judgment, not” any other order or procedure that leads to
judgment. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153
Cal.App.4th 863, 880 [special verdict was not judgment].) A
memorandum of costs served and filed before judgment is
“premature.” (Ibid.)
Van Taylor argues Optima had to serve and file the
memorandum of costs within 15 days of serving the “Notice of
Entry of Judgment or Order” on March 21, 2023. Optima’s
“Notice of Entry of Judgment or Order” gave notice of the order
sustaining its demurrer on March 13, 2023. That unsigned order
was not a judgment. (See Code Civ. Proc., § 581d [“All dismissals
15
ordered by the court shall be in the form of a written order signed
by the court and filed in the action and those orders when so filed
shall constitute judgments and be effective for all purposes”].)
The court did not enter a signed judgment until May 11. The
judgment then became “effective for all purposes” (ibid.),
including triggering the deadline to serve and file a
memorandum of costs. Optima served notice of entry of the
judgment on May 12, then timely filed and served the
memorandum of costs on May 22 and the amended memorandum
of costs on May 23.
Even if Optima’s memorandum of costs were untimely, the
court had discretion to allow the costs. Courts may permit an
untimely memorandum of costs so long as the opposing party
“had the full opportunity to challenge” the prevailing party’s
costs. (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008)
169 Cal.App.4th 116, 155.) Van Taylor had (and took) that
opportunity. But he made no substantive challenge to Optima’s
costs.
The trial court did not err in denying Van Taylor’s motion
to tax Optima’s costs.
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DISPOSITION
The judgment is affirmed. Respondents Optima Escrow,
Inc., Marty Rangel, and Mumtaz Thakor shall recover their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
MORI, J.
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