Opinion
B155494
Filed March 4, 2003
Appeal from a judgment of the Superior Court of Los Angeles County, No. SC058113, Robert M. Letteau, Judge. Affirmed in part, reversed in part.
Paul D. Fitzgerald for Plaintiff and Appellant.
Reish Luftman McDaniel Reicher and Joseph C. Faucher for Defendants and Respondents.
Appellant Phyllis Douglas (Douglas) appeals from a judgment entered after the trial court granted the demurrers of respondents Eileen Bennett and Antonino Rodolico (referred to individually as Bennett and Rodolico, or collectively as respondents), and the motion for summary judgment of Bennett. We affirm in part and reverse in part.
CONTENTIONS
Douglas contends that: (1) her complaint and first amended complaint alleged facts sufficient to state causes of action; and (2) the trial court abused its discretion in granting the motion for summary judgment since triable issues of material fact existed.
FACTS AND PROCEDURAL BACKGROUND
Douglas filed a complaint against respondents alleging causes of action for: (1) fraud and deceit; (2) constructive fraud; (3) fraud and deceit; (4) constructive fraud; (5) fraud and deceit; (6) constructive fraud; and (7) rescission. According to the allegations of the complaint, Douglas was the owner of real property located in Pacific Palisades (the subject property). Bennett, a real estate agent, was Douglas's friend and neighbor for 25 years. Without a listing agreement, Bennett acted as Douglas's agent to facilitate the sale of the subject property by Douglas to Bennett's son-in-law, Rodolico, for $325,000. However, Bennett knew or should have known that the subject property was worth far more than $325,000. Bennett did not inform Douglas that Rodolico intended to rent the subject property or of Bennett's profit from her commission on renting the subject property.
As to the first, third and fifth causes of action, Douglas alleged that Bennett had a duty to disclose all material facts relating to the sale of the subject property, including the estimated fair market value of the subject property, and subsequent profit on rental of the subject property, but that Bennett failed in her duty. As to the second, fourth, and sixth causes of action for constructive fraud, Douglas alleged that the true value of the subject property was $450,000, and that Bennett and Rodolico agreed to receive additional funds from the subsequent rental of the subject property. Bennett allegedly received a commission from the subsequent rental of the subject property. As to the seventh cause of action, Douglas sought rescission of the contract for sale of the subject property.
The trial court sustained Rodolico's demurrer without leave to amend as to the second, fourth, sixth and seventh causes of action, and with leave to amend as to the first, third and fifth causes of action.
Despite the terms of the trial court's order, Douglas filed the first amended complaint (FAC) on February 9, 2001, alleging causes of action for: (1) fraud and deceit (against Bennett); (2) constructive fraud (against Bennett); (3) fraud and deceit (against respondents); (4) constructive fraud (against Bennett); (5) fraud and deceit (against respondents); (6) constructive fraud (against Bennett); (7) civil conspiracy to commit fraud (against respondents); and (8) civil conspiracy to commit constructive fraud (against respondents).
The first, third and fifth causes of action alleged that Bennett had a duty to disclose all material facts, that she failed to do so, that she underrepresented the value of the subject property, that she concealed the fact that the true value of the subject property was not less than $450,000, and that Bennett had an arrangement with Rodolico to receive additional funds from the rental of the subject property. As to the second, fourth and sixth causes of action, the FAC alleged that Bennett had a fiduciary duty to Douglas, and that she and Rodolico intended to deceive Douglas by purchasing the subject property at a bargain price. The FAC added a seventh cause of action for civil conspiracy to commit fraud, alleging that respondents conspired to deceive Douglas by misrepresenting or concealing the true value of the subject property. The FAC alleged an eighth cause of action for civil conspiracy to commit constructive fraud, in that respondents conspired to deceive Douglas, and that Bennett acted as the agent of Douglas when she misrepresented the value of the subject property.
Respondents filed a demurrer to the FAC. The trial court overruled the demurrer as to the first cause of action against Bennett, but sustained the demurrer as to the second, third, fourth, fifth, sixth, seventh and eighth causes of action without leave to amend, "for the reasons set forth in the Demurrer, and because the First Amended Complaint exceeds the permissible scope of the Order sustaining the Demurrer to Plaintiff's original Complaint, dated January 10, 2001."
On June 20, 2001, Bennett filed a motion for summary judgment. The trial court granted Bennett's motion for summary judgment, finding that: Bennett made no fraudulent representations to Douglas regarding the fair market value of the subject property; Bennett never intended to deceive Douglas; Douglas did not justifiably rely on any representations made by Bennett; Douglas suffered no resulting damage; any representation Bennett may have made to Douglas was a statement of opinion which is not actionable; and there are no triable issues of material facts.
This appeal followed.
Declaration of Douglas
Douglas testified that in June 1997, she called Bennett and asked her to be the agent for the sale of the subject property. Bennett agreed and told her to look at condominiums to purchase before selling the subject property. Bennett took Douglas to see condominiums on July 6, 1997. Again, Douglas asked Bennett to be the agent in the sale of the subject property, and Bennett agreed. On July 13, 1997, Douglas noticed that the house next to hers was for sale, and asked Bennett what the subject property was worth. Bennett told Douglas the subject property was worth $350,000. On July 24, 1997, Bennett called Douglas and told her that Rodolico had lost a bid on the house next door, and wanted to view Douglas's home. On July 25, 1997, Bennett, Rodolico and his wife walked through Douglas's home while Douglas was out. Bennett called Douglas that evening and told her that Rodolico would like to make an offer the next day. On July 26, 1997, Bennett called Douglas and asked her to come to Bennett's home so that Rodolico could present the offer. Rodolico, with help from Bennett, presented the offer in the amount of $325,000. He believed the property was worth $350,000, but deducted a 7 percent real estate commission that Douglas would have had to pay to Bennett. Bennett agreed that the commission should be passed onto Rodolico. Douglas accepted the offer of $325,000 based on the claim by Bennett that the subject property was worth $350,000. On July 27, 1997, Bennett prepared the residential purchase agreement and receipt for deposit (purchase agreement), contacted the building inspector and the termite company, and took care of Douglas's paperwork. The next week, Bennett took Douglas back to a condominium she was interested in purchasing for a walk through. Douglas inspected the unit, bought it, and paid a commission directly to Bennett. Both escrows were handled by Bennett and were scheduled to close within a day of each other. A month after the close of escrow, Douglas learned from friends that the value of the subject property was much higher. She later discovered that the value of the subject property was $435,000.
Deposition Testimony of Douglas
Douglas stated that Bennett knew that the value of the subject property was greater than $350,000, because Bennett was a real estate agent handling other properties. However, no one had ever informed Douglas that Bennett knew the value of the subject property was greater than $350,000. She testified that Rodolico offered her $325,000 for the subject property, and that she accepted the offer without countering because she trusted Bennett. The whole discussion took 10 minutes. Douglas conceded that she had an opportunity to negotiate the purchase price, and to retain a certified real estate appraiser to obtain an appraisal of the subject property. Bennett filled out the purchase agreement on behalf of both Douglas and Rodolico, whose primary language was Italian. Douglas understood that the purchase of the condominium was a separate transaction.
Declaration of Donald Condit
According to Donald Condit, real estate appraiser and consultant, the market value of the subject property on September 1, 1997, was $435,000.
Declaration of Rodolico
Rodolico declared that he resides in Italy, but spends summers in California, typically with his mother-in-law, Bennett. He had known Douglas 10 years prior to the purchase of the subject property. In June 1997, Rodolico offered to purchase another property located next door to the subject property, for the amount of $400,000. After that offer was rejected, Douglas offered to sell the subject property to Rodolico. Rodolico believed that the subject property was smaller and in worse condition than the property for which he had offered $400,000. The day after the walk through, Rodolico offered $325,000 for the subject property to Douglas at Bennett's house. At that time, Bennett clarified that she was not representing either party in the matter, and did not offer advice regarding the amount Rodolico offered. Rodolico asked Bennett to fill out the purchase agreement because he did not feel comfortable completing a lengthy document relating to the purchase of real property printed entirely in English. Douglas also indicated she would like Bennett's assistance. Neither he nor Douglas paid Bennett any compensation with respect to the transaction.
Letter of Rodolico
In a letter dated May 25, 1998, directed to Douglas's counsel, Rodolico stated that "This figure of $325,000 was based on the selling price (sold at the same time) of the house immediately next door to Mrs. Douglas. From the selling price of the house next door was subtracted a calculated percentage because Mrs. Douglas's house and lot were smaller, plus, we also deducted the commission that Mrs. Douglas would have paid to an agent if one had been engaged."
Declaration of Bennett
Bennett testified that she did not represent Rodolico or Douglas in connection with Douglas's sale of the subject property to Rodolico. Douglas never listed her property for sale nor signed any documentation appointing Bennett as her agent. Nor did Bennett request a commission in connection with the sale of the subject property. Bennett was never asked to conduct an analysis of the fair market value of the subject property. In June 1997, Bennett showed prospective purchasers, including Rodolico, a neighboring property. Rodolico's full price offer of $400,000 was not accepted by the sellers. In June 1997, Douglas mentioned that she was thinking about selling the subject property, and that she wanted approximately $330,000. Bennett told her she did not know if that was a reasonable price because she had not seen the interior in its entirety, and presumed that painting and yard work would be done before putting it on the market. Bennett did not believe that the subject property was as large or well maintained as the property for which Rodolico had put a full price offer, and did not believe it would command a price as high as that property. Douglas approached Rodolico and offered to sell him the subject property. Both Bennett and Rodolico inspected the property. The following day, Bennett advised Douglas that Rodolico wanted to make an offer on the subject property. When Douglas came to Bennett's house, Bennett stated that she was not representing either party, and advised Douglas that Rodolico wanted to purchase the property for $325,000. Bennett filled out the purchase agreement at both Rodolico and Douglas's request. She crossed out the paragraphs relating to agency confirmation, brokers, and broker confirmation.
As a separate transaction, prior to the sale of the subject property, Douglas asked Bennett to take her to see condominiums in Pacific Palisades. After Rodolico and Douglas entered into their agreement for the purchase of the subject property, Douglas asked to look at the condominium again. Bennett represented Douglas in the purchase of the condominium and negotiated the purchase price on her behalf.
Deposition of Bennett
Bennett testified that Douglas had told her that if she ever sold the subject property, Bennett would be her agent. Bennett told Douglas that she guessed the subject property to be worth approximately $350,000, without having seen the interior, and only having seen the front of the exterior. Bennett denied telling Rodolico the conversation she had with Douglas regarding the value of the subject property. Bennett testified that the neighboring property that Rodolico had previously offered to purchase sold for $402,000 or $405,000.
Bennett advanced $10,000 to Rodolico for the deposit in order to purchase the subject property. She also represented Rodolico through a power of attorney to sign any documents on his behalf after escrow was opened. Bennett signed on at least 25 different occasions as Rodolico's attorney-in-fact during the escrow. She also signed on behalf of Rodolico for the deed of trust as well as the note securing the subject property.
DISCUSSION
I. Whether the trial court erred in granting the motion for summary judgmentA. Standard of review
Summary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that an affirmative defense to that cause of action exists. (Code Civ. Proc., § 437c, subd. (n); see Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Code Civ. Proc., § 437c, subd. (o).) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. ( Ibid.)
In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. ( Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548.) We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. ( Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed. ( Ibid.)
B. Whether an agency relationship existed
Normally the existence of an agency relationship is a question of fact. ( Troost v. Estate of DeBoer (1984) 155 Cal.App.3d 289, 299.) However, if the essential facts are not in conflict, the question of the legal relations arising therefrom is a question of law. ( Ibid.)
It is undisputed that Douglas and Bennett did not have a written agreement for Bennett to act as Douglas's agent for the sale of the subject property. According to Douglas, she verbally retained Bennett as her agent for the sale of the subject property, prior to looking at the condominiums. Bennett insists, however, that Douglas did not retain her, and indeed, when Bennett assisted the parties in executing the purchase agreement, she announced to both parties that she was not acting as their agent, and crossed out the portions of the purchase agreement pertaining to duties of the broker and compensation. However, the lack of a written agreement, in itself, is not dispositive of the issue of whether Douglas retained Bennett as her agent. Creation of an agency relationship may be express or implied. That is, a written agreement is not necessary, and the defendant's conduct may establish an agency relationship. ( Montoya v. McLeod (1985) 176 Cal.App.3d 57, 62-65.)
In Montoya v. McLeod, supra, 176 Cal.App.3d 57, the defendant, a licensed real estate salesperson who was employed by an investment broker, solicited the plaintiffs' unsecured loan. The defendant had the power to communicate terms and conditions of investments, to accept and reject offers and transmit counteroffers, and to execute promissory notes. The court found that by her conduct, the defendant had established an agency relationship with the plaintiffs. ( Id. at p. 64.)
Here, Douglas declared that Bennett, in addition to verbally agreeing to act as her agent: called Douglas to tell her Rodolico was interested in viewing the subject property; assisted Rodolico in presenting the offer at Bennett's house; prepared the paperwork for both parties; and contacted the building inspector and termite company on behalf of Douglas. Furthermore, Bennett concedes that she acted as Douglas's realtor in the purchase of the condominium, and Douglas stated that Bennett arranged the escrows so that they were scheduled to close within a day of each other. In furtherance of her denial of agency, on the other hand, Bennett avers that she never listed the subject property for sale nor did she receive compensation. However, Douglas contends that she agreed to a price of $325,000 rather than $350,000 so that the 7 percent commission that Bennett would have received in representing Douglas in the sale would be passed along to Rodolico. In his letter to Douglas's counsel, Rodolico stated that the commission that Douglas would have had to pay to an agent was deducted from the sales price. If true, such evidence tends to show an agency relationship. Moreover, lack of compensation is not determinative of an agency relationship. While a broker must obtain a license in order to be compensated, compensation is not necessary for the creation of an agency. ( Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 504, fn. 11.) Thus, an agent working without the expectation of compensation still owes the principal fiduciary obligations. ( Ibid.)
We conclude that there are sufficient disputed factual issues to defeat a motion for summary judgment on the issue of whether an agency relationship existed between Douglas and Bennett. Nor are we convinced otherwise by Bennett's citation to Tyrone v. Kelley (1973) 9 Cal.3d 1, 9 for the proposition that she merely acted as a finder, not a broker. That case states that "the distinction between the finder and the broker frequently turns upon whether the intermediary has been invested with authority or duties beyond merely bringing the parties together, usually the authority to participate in negotiations." ( Ibid.) However, a principal may limit the terms of the agency through agreement. ( Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755-760.) Thus, an agent may be engaged only to locate a potential purchaser with the principal being responsible for all negotiations and the consummation of the agreement. (2 Miller Starr, Cal. Real Estate (3d ed. 2000) Contractual Limitations on the Agent's Duties, § 3.25, pp. 122-123.) Moreover, whether Bennett acted as a finder or was retained as a broker merely raises another issue of fact. (See Batson v. Strehlow (1968) 68 Cal.2d 662, 670-675 [no evidence in record that defendant was a finder rather than a broker when he was compensated as a broker, referred to in all documentation as a broker, and rendered services typically performed by a broker].) Nor is it probable that Bennett would act as a finder without the expectation of some sort of benefit, which she now disavows.
We conclude that triable issues of fact exist as to whether an agency relationship existed between Douglas and Bennett.
C. Whether a legal duty of care existed
Whether a duty of care existed is a question of law for the court. ( Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1279.) We cannot resolve that issue until the trier of fact determines whether an agency relationship existed.
D. Whether Bennett breached her fiduciary duty or committed constructive fraud
"The law imposes on a real estate agent `the same obligation of undivided service and loyalty that it imposes on a trustee in favor of his beneficiary.' [Citations.] This relationship not only imposes upon him the duty of acting in the highest good faith towards his principal but precludes the agent from obtaining any advantage over the principal in any transaction had by virtue of his agency. [Citation.] `Such an agent is charged with the duty of fullest disclosure of all material facts concerning the transaction that might affect the principal's decision.' [Citations.]" ( Batson v. Strehlow, supra, 68 Cal.2d at pp. 674-675.)
"Breach of a real estate agent's fiduciary duty to his or her client may constitute negligence or fraud, depending on the circumstances of the case. [Citation.]" ( Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) In order to show fraud, the plaintiff must prove that (1) the defendant made a false representation as to a material fact; (2) the defendant knew the representation was false at the time it was made; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff reasonably relied upon the representation; and (5) the plaintiff suffered damages. ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
The realtor may also be liable under the theory of constructive fraud. "`[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.' [Citation.]" ( Assilzadeh v. California Federal Bank, supra, 82 Cal.App.4th at p. 415.)
Douglas asserts that Bennett failed to make the following disclosures which would have materially affected Douglas's decision to sell the subject property for $325,000: (1) the true fair market value of the subject property; (2) the potential profit that Bennett anticipated from the commissions she obtained by subsequently renting the subject property; (3) the benefit realized by Rodolico in the form of equity over and above the purchase price; and (4) that the subject property would be more saleable if improvements were made upon it.
Since the record shows that Bennett had suggested to Douglas that she expected Douglas to paint and clean up the house prior to sale, we conclude that the material issues here are whether Bennett misrepresented the true fair market value of the subject property, which Douglas now insists was $435,000, as well as the subsequent commission Bennett realized from the rental of the subject property.
From the evidence submitted, assuming agency exists, we cannot say as a matter of law, whether Bennett's statement that the value of the subject property was $350,000 was a breach of her fiduciary duty or constituted constructive fraud. It is unclear from the evidence whether the statement was made after Rodolico's bid on the neighbor's house had been rejected, in which case Bennett would have a motive to low-ball the value of the subject property, or if it was made prior to the rejection of Rodolico's bid, in which case, Bennett would have a motive to price the subject property reasonably in order to maximize her commission. On the other hand, the evidence tends to show that Bennett represented Rodolico: she set up the meeting between Douglas and Rodolico; she was present when he presented the offer to Douglas; she lent him $10,000 for the deposit; she represented him through a power of attorney; and she signed his name as his attorney-in-fact during escrow. Moreover, her interest would lie in furthering the welfare of Rodolico, her son-in-law.
Although Bennett's claim that a statement of opinion is not ordinarily actionable is true, "if a person advances an opinion in which he does not honestly or cannot reasonably believe, then an action for affirmative fraud will lie if the remaining elements of the tort are present. [Citations.]" ( Cooper v. Jevne (1976) 56 Cal.App.3d 860, 866 ( Cooper).) Thus, in Cooper, Division Three of this District held that if the defendant realtors knew of substantial defects in the condominium at issue, they could not have held the opinion that the condominiums were outstanding investments, and the plaintiffs properly stated a cause of action for misrepresentation. The court further held that even if the representations were merely reckless, the plaintiffs stated a cause of action. ( Ibid.)
This case is not like Padgett v. Phariss, supra, 54 Cal.App.4th at page 1284, where the court found that an erroneous opinion of the fair market value of real property by the broker was not an actionable misrepresentation because there was no evidence that the brokers had any knowledge of pending litigation, subsidence problems, and the property's value.
Here, the evidence shows that Bennett knew Rodolico had put a full price offer on the neighbor's house which was listed at $400,000, and that house ultimately sold for over the listing price. Although, in her declaration, Bennett characterizes as mere unconsidered opinion, her statement that the subject property was worth $350,000, she seems well able to devalue the subject property. She declared that she did not believe that the subject property was as large and well maintained as the neighboring house, and therefore could not command as high a price as the house upon which Rodolico had put a full-price offer. We conclude that a triable issue of fact exists, assuming agency, as to whether Bennett breached her fiduciary duty to Douglas or committed constructive fraud.
E. Whether Douglas reasonably relied upon the representation of Bennett
Douglas asserts that she has no special skill or knowledge in real estate matters and that she reasonably relied upon the statements of her friend and neighbor Bennett, who was a realtor sitting on other properties in the vicinity. On the other hand, Bennett argues that Douglas could have obtained an appraisal of the subject property, but did not. Nor did Douglas ask Bennett to conduct a formal evaluation of comparable sales in the neighborhood. Moreover, it seems that Douglas should have been aware of the listing price of her neighbor's house prior to selling her own. In light of the conflicting evidence, we conclude that the issue of whether Douglas reasonably relied on Bennett's representation is a matter for the trier of fact.
II. Whether the trial court erred in granting the demurrers
The appellate court assumes the truth of all properly pleaded material allegations of the complaint, and gives "the complaint a reasonable interpretation by reading it as a whole and its parts in their context [citation]." ( Silberg v. Anderson (1990) 50 Cal.3d 205, 210.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action; when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint can be cured, the trial court has abused its discretion. ( Ibid.)
"To meet the plaintiff's burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.]" ( Careau Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 ( Careau).) "However, such a showing need not be made in the trial court so long as it is made to the reviewing court." ( Ibid.)
Although the appellate courts take a liberal view toward curing defects by amendment, "there is nothing in the general rule of liberal allowance of pleading amendment which `requires an appellate court to hold that the trial judge has abused his discretion if on appeal the plaintiffs can suggest no legal theory or state facts which they wish to add by way of amendment.'" ( Careau, supra, 222 Cal.App.3d at pp. 1387-1388.) That is, "[t]he burden is on the plaintiffs to demonstrate that the trial court abused its discretion and to show in what manner the pleadings can be amended and how such amendments will change the legal effect of their pleadings. [Citations.]" ( Id. at p. 1388.)
As Douglas asserts on appeal, the gravamen of the complaint and FAC is that Bennett made misrepresentations to Douglas as to the true value of the subject property, so that Rodolico could buy the subject property below market value. Since the central allegations of the complaint and FAC are duplicative, we need only address the demurrers as to the FAC.
As to the second cause of action for constructive fraud against Bennett, we conclude that the FAC stated a cause of action. The FAC alleged that Bennett was Douglas's agent, and concealed or misrepresented the true value of the subject property so that Rodolico could buy the subject property at a bargain price. However, as to the third cause of action for fraud against both Bennett and Rodolico, we conclude that it is repetitive as to the first cause of action for fraud against Bennett, and should be stricken. As to the third cause of action for fraud against Rodolico, Douglas failed to allege that she reasonably relied on Rodolico's representations, and that cause of action must fail as against him. Our reading of the fourth cause of action for constructive fraud against Bennett shows that it is duplicative of the second cause of action for constructive fraud against Bennett, and therefore was properly stricken. The fifth cause of action for fraud and deceit against Bennett and Rodolico was properly stricken for the same reasons that the third cause of action for fraud and deceit failed as against Bennett and Rodolico. The sixth cause of action for constructive fraud against Bennett was properly stricken as duplicative of the second cause of action against Bennett.
As to the seventh cause of action for civil conspiracy to commit fraud against Bennett and Rodolico, we find that Douglas has alleged the formation and operation of a conspiracy, the wrongful act or acts done pursuant thereto, and the damage resulting from such acts. ( Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316.) The FAC alleged that Bennett and Rodolico held meetings during which they conspired to deceive Douglas to misrepresent or conceal the true value of the subject property. As a result, Douglas sold her property for significantly under market value, and suffered damages. As to the eighth cause of action for civil conspiracy to commit constructive fraud against Bennett and Rodolico, we conclude that the FAC sufficiently alleged that Bennett and Rodolico conspired to deceive Douglas to misrepresent the true value of the subject property, that Bennett had a fiduciary relationship with Douglas, and that Douglas sold her house for significantly under market value as a result of the conspiracy.
DISPOSITION
The judgment is affirmed in part and reversed in part.
1. First cause of action for fraud against Bennett: The trial court's order granting Bennett's motion for summary judgment as to the FAC's first cause of action for fraud is reversed.
2. Second cause of action for constructive fraud against Bennett: The trial court's order sustaining Bennett's demurrer to the FAC's second cause of action for constructive fraud is reversed.
3. Fourth and sixth causes of action for constructive fraud against Bennett: The trial court's order sustaining Bennett's demurrer to the FAC's fourth and sixth causes cause of action for constructive fraud is affirmed.
4. Third and fifth causes of action for fraud and deceit against Bennett and Rodolico: The trial court's order sustaining the demurrer of Bennett and Rodolico to the FAC as to the third and fifth causes of action for fraud and deceit is affirmed.
5. Seventh cause of action for civil conspiracy to commit fraud and eighth cause of action for civil conspiracy to commit constructive fraud against Bennett and Rodolico: The trial court's order sustaining the demurrers of Bennett and Rodolico to the seventh cause of action for civil conspiracy to commit fraud and eighth cause of action for civil conspiracy to commit constructive fraud is reversed.
The parties shall bear their own costs on appeal.
We Concur:
BOREN, P.J.
DOI TODD, J.