Opinion
G056800
04-27-2020
JEFFREY L. LICHT, Plaintiff and Appellant, v. KATHY LADD et al., Defendants and Respondents.
Lara R. Shapiro for Plaintiff and Appellant. Harbin & McCarron, Andrew McCarron, and Nathan Brecht for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. A239884) OPINION Appeal from a judgment of the Superior Court of Orange County, Aaron Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Lara R. Shapiro for Plaintiff and Appellant. Harbin & McCarron, Andrew McCarron, and Nathan Brecht for Defendants and Respondents.
* * *
Jeffrey L. Licht appeals from the trial court's judgment of dismissal in favor of Kathy Ladd and University Escrow (University) after sustaining their demurrer to Licht's third amended petition (TAP or petition). Licht, an attorney, filed the petition in probate court to recoup attorney fees he alleged his client, Jan M. Hahn, failed to pay in trust proceedings. Asserting causes of action for fraud, breach of fiduciary duty, and unfair business practices, Licht alleged Ladd and University, the real estate agent and the escrow company, respectively, interfered with his access, as Hahn's creditor, to escrow funds from the sale of trust property as a source of payment. As we explain, Licht's pleadings failed to establish the existence of a fiduciary relationship between himself and Ladd or University; likewise, the pleadings established no other basis for his claims, including fraud. Accordingly, the court did not err in sustaining the demurrer without leave for Licht to file a fourth amended petition. We therefore affirm the judgment.
On our own motion, we take judicial notice of respondents' demurrer and the trial court's minute order sustaining the demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
"For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We also look to exhibits attached to the complaint for the operative facts. (Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1 (Jibilian).) With these principles in mind, we briefly summarize the TAP's factual allegations.
In 2008, Licht represented Hahn in trust proceedings initiated against her by her brother, Randy Nachtrieb. Hahn and Nachtrieb were the only children of Paul and Eileen Nachtrieb and sole beneficiaries of the family trust they created. Hahn was the successor trustee of the trust; the trust's primary asset was real property "commonly known as 6392 Park Avenue" in Garden Grove. Hahn lived in the residence at that location.
In July 2008, Hahn and Nachtrieb entered into a settlement agreement that required Hahn to purchase Nachtrieb's interest under the trust in the Park Avenue property for $200,000; the agreement also authorized Hahn to refinance the property to make the payment, if necessary. If Hahn failed to make the payment by November 20, 2008, the agreement authorized entry of judgment in favor of Nachtrieb for $250,000, plus costs.
Additionally, if Hahn failed to make the November payment, the agreement authorized either party to obtain a court order for the sale of the property. The agreement also provided, "In the event of a sale of the Real Property hereunder, the Court shall order all proceeds from the sale thereof . . . to pay the Judgment of Nachtrieb," assuming he obtained one, and "any remaining sums to be split equally between Hahn and Nachtrieb." This payout, Hahn and Nachtrieb agreed, would be "after payment of all outstanding obligations of the Trust and/or Hahn, including, but not limited to, any outstanding mortgage obligations, any delinquent mortgage obligations, current and/or delinquent real property taxes, normal closing costs and commissions, or any other obligations of Hahn and/or the Trust . . . ." (Italics and underscoring added.)
In reaching this agreement to resolve the trust proceedings, the parties agreed to the court's continued jurisdiction to enforce the settlement if necessary. The agreement provided, "The Court shall retain jurisdiction over the enforcement of the terms and conditions of this Settlement Agreement and Stipulation for Judgment, including but not limited to the purchase contemplated hereunder, the execution of all documents necessary to effectuate the same, and the entering of any Judgment pursuant to . . . [any applicable statute or stipulated settlement agreement] or the enforcement of any provision of this Stipulation for Judgment."
The parties executed the settlement agreement in late July 2008, and Licht signed the agreement under the words, "Approved as to Form and Content," as Hahn's attorney "individually and as Successor Trustee of the Nachtrieb Family Trust." John M. Gantus, similarly signed the agreement as Nachtrieb's attorney. On July 29, 2008, the court entered the settlement agreement as a stipulated order. (Code Civ. Proc., § 664.6.)
Hahn apparently failed to pay Nachtrieb his $200,000 share by the November 20, 2008 deadline. Almost four years later, on October 3, 2012, Nachtrieb obtained a court order for the sale of the Park Avenue property. Licht signed the court order, "Approved as to form," as Hahn's attorney.
The order directed that the property "be placed on the market for sale forthwith," and required Hahn to "cooperate at no out of pocket cost in all respects with the sale," including "cooperation with the realtor in showing" the property. The order further directed that, "to effect the sale of the Real Property, the Court hereby appoints Kathy Ladd . . . as the realtor in this matter." The court's order specified it "shall retain jurisdiction over all matters pertaining to this Order, and for all matters related to the Settlement Agreement and Stipulation for Judgment and Order Thereon" filed in July of 2008.
Less than three weeks later, the events unfolded that formed the basis for Licht's petition asserting causes of action against Ladd and University, among others, including Gantus and Nachtrieb. Licht's petition alleged that "[o]n October 22, 2012, after [he] learned that the close of escrow had been set for [the next day] without any consultation with Licht or consideration of Licht's claim [for attorney's fees and interest from Hahn], . . . Licht faxed a letter to University Escrow, Karen Ladd and John Gantus demanding payment of $63,963.21 to him from escrow proceeds . . . ." Licht further demanded a halt to the escrow and that "no disbursement[s] be made if the escrow holder did not intend to honor his demand, so that he could seek a court order relating to his rights therein." Licht alleged that Gantus had "insinuated himself into the Escrow process by becoming the 'attorney for the escrow' [on behalf of Nachtrieb when Nachtrieb obtained the sale order] without disclosing this role to the Court or Licht."
Licht's petition further alleged that Gantus "had concealed Licht's existence as attorney for Hahn from University Escrow and Ladd." In his letter to University, Licht stated, "I represent Jan Hahn, the seller ('Seller') in the above referenced escrow (the 'Escrow')." Licht explained his escrow payment demand as follows: "In this regard, I am advising you that Ms. Hahn presently owes me $48,570.85 for the unpaid balance of legal fees and costs due me from her for legal services rendered to her prior to the filing of her now dismissed bankruptcy case that was filed on March 25, 2009." The balance of Licht's payment demand involved interest on that amount.
University did not close escrow the next day. Instead, Licht's petition recounted that "on or about October 24, 2012, Gantus, on his own behalf and on behalf of Nachtrieb, filed in this Court [i.e., the probate court] an Ex Parte Application For Order to Compel Payments of the First Mortgage, Payment of the Second Mortgage," another escrow payment, and "Payment to the Petitioner . . . , Mr. Nachtrieb, and to Compel the Closing of Escrow."
Licht personally appeared at the ex parte hearing the following day, October 25, 2012, a Thursday. According to Licht's petition, the court's staff attorney met with him and Gantus to request that the hearing on the application be trailed to Monday. Licht and Gantus agreed to this proposal. But Gantus allegedly reneged. The next day, a Friday, Gantus "falsely told Court staff that the dispute set for hearing on [Monday] had been settled," and thereby succeeded in having the hearing taken off calendar.
As a result, escrow closed on or before Monday, October 29, 2012, without payment of Licht's attorney fee demand. Licht attempted to have the court disgorge funds wired to Gantus at the closing, but the court declined to grant Licht's ex parte request. Three years later, on October 26, 2015, Licht filed his initial petition, which commenced this action against Ladd, University, Gantus, Nachtrieb, and Doe defendants.
After Licht filed a first amended petition, to which Ladd and University successfully demurred, the court granted leave to amend. Ultimately, Ladd and University demurred again to the second amended petition, and the court again sustained the demurrer with leave to amend. Licht filed his TAP in November 2017, alleging causes of action against Ladd and University for breach of fiduciary duty and fraud, with an associated unfair business practices claim (Bus. & Prof. Code, § 17200 et seq.), premised on his fraud and fiduciary duty claims. Ladd and University again demurred in March 2018.
The trial court heard argument on the demurrer on April 25, 2018; after taking the matter under submission, the court issued a detailed ruling in a minute order. The court concluded Licht "failed to plead a cause of action against either Ladd or University Escrow for breach of fiduciary duty." The court explained: "Still missing, for example, are any allegations sufficient to establish Ladd or University Escrow owed a fiduciary duty directly to Licht (as opposed to Hahn and/or Nachtrieb), or any breach of such a duty. Conspicuously absent is any suggestion that Ladd owed anyone any escrow-related duties at all, that University Escrow failed to comply with escrow instructions given to it, or that University Escrow was confronted with clear evidence of collusion or fraud in the fund disbursement that would have adversely affected any party to the escrow."
The court similarly found Licht "failed to plead a cause of action for common law fraud (either misrepresentation or concealment) against Ladd or University Escrow. Missing, for example, are any allegations sufficient to establish that Licht reasonably relied on any alleged misrepresentation by Ladd or University Escrow, or that Licht would have acted differently had he known of any material fact allegedly concealed by Ladd or University Escrow, which Ladd and/or University Escrow owed a duty to disclose to Licht." Accordingly, the trial court sustained Ladd and University's demurrer to Licht's TAP without leave to amend; it subsequently entered a judgment of dismissal in favor of Ladd and University in July 2018. Licht now appeals.
DISCUSSION
1. Standard of Review
"We review de novo the trial court's order sustaining a demurrer." (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1468.) Our task is to determine whether the plaintiff—or here the petitioner—has stated a cause of action in his or her pleadings. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824 (Gentry).) The party challenging the demurrer "'has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer.'" (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.) "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken.'" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
If, however, "the factual allegations of the complaint state a cause of action on any available legal theory, the trial court's order of dismissal must be reversed." (Gentry, supra, 99 Cal.App.4th at p. 825.) We review a decision not to grant further leave to amend for abuse of discretion. (Code Civ. Proc., § 472c, subd. (a); Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458 (Rosen).)
2. Fiduciary Duty
Licht contends his TAP stated a cause of action for breach of fiduciary duty against Ladd and University. We disagree.
"The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach." (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.) "[T]he absence of any one of these elements is fatal to the cause of action." (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) Here, Licht's pleadings failed to state a factual basis on which Ladd or University owed a fiduciary duty to him, rather than to the parties to the escrow. It is undisputed Licht was not a party to the escrow.
Licht alleged University owed a fiduciary duty to him because he claimed funds it held in escrow. Licht's petition asserted that once he made a claim on the funds, University had "only three legally permissible options," all of which required "halt[ing] the escrow." Licht claimed that by failing to take action in one of these three ways on Licht's behalf, University "violated fiduciary duties owed to Licht as a conflicting claimant to the Escrowed funds." Specifically, once Licht notified University of his claim, he alleged University was required to halt the escrow to: (1) interplead on its own motion the escrow funds with the probate court; (2) await an application by Gantus, Licht, "or some other party's request for a Court determination" concerning the funds; or (3) "find some other way to resolve the conflict that was satisfactory to the conflicting claimants."
Licht's fiduciary duty allegation against University fails because it contravenes the well-established rule that "'[a]n escrow holder is an agent and fiduciary of the parties to the escrow.'" (Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 526 (Markowitz), italics added.) In other words, "'an escrow holder's obligations are "limited to faithful compliance with [the depositors'] instructions."'" (Ibid.) Thus, the "'agency created by the escrow is limited—limited to the obligation of the escrow holder to carry out the instructions of each of the parties to the escrow.'" (Ibid.) Since Licht was not a party to the escrow, his petition asserting breach of fiduciary duty by University lacked the necessary supporting factual basis.
Licht's fiduciary duty claim against Ladd was similarly void on its face because it expressly stated Ladd owed a fiduciary duty to others, including Hahn—but not to Licht. Licht's petition alleged that "Ladd, when she accepted the Court appointment to sell the Real Property of the Estate to satisfy the debts of the Estate, including Licht's priority claim, became a fiduciary of the Estate and Jan Hahn as Trustee of the Estate." (Italics added.) This is a correct—but irrelevant—statement of law. While it is true that a real estate agent must provide "diligent and faithful service" to his or her client, and dutifully obey the client's instructions (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 607 (Thomson)), identifying a fiduciary duty owed to someone other than Licht furnished no basis for Licht's petition alleging a breach of duty owed to him.
Licht's petition did not allege Hahn ever instructed Ladd to tell University to distribute proceeds of the escrow to Licht. Licht's reliance in his petition on the probate court's order appointing Ladd "as the realtor in this matter" to sell the trust property does not help him. Licht premised his fiduciary duty claim against Ladd and University on the court's pre-sale appointment of Ladd and the court's order, on Nachtrieb's application, to place the trust property "on the market for sale forthwith." Specifically, Licht alleged in his petition: "Because this sale of Real Property and resulting Escrow were the subject of the Court Sale Order (See, Ex. B), the obligation of the escrow holder, University Escrow, was as directed and Ordered by the Court." Licht continued: "Because the Court Sale Order prescribed that 'the Court shall order [distribution to Nachtrieb and Hahn of] all proceeds from the sale thereof, after payment of all outstanding obligations of the Trust and/or HAHN,' and Licht's attorney fees were an obligation of Hahn and the Trust, [therefore] payment of Licht's fees from the escrow was a duty of University Escrow and Kathy Ladd." (Licht's bolding omitted.)
In the excerpt above, Licht's petition erroneously attributes the "Court shall order" language to the court's order directing that the property be sold. That language actually was part of Hahn and Nachtrieb's stipulated agreement settling their trust dispute. The stipulation stated that if Hahn did not purchase Nachtrieb's interest in the property, and if the parties returned to the probate court to sell the property, the court would first order ("the Court shall order") payment of "any outstanding mortgage obligations, any delinquent mortgage obligations, current and/or delinquent real property taxes, normal closing cost and commissions, or any other obligations of Hahn and/or the Trust." Then, and only if any funds still remained after the foregoing payments, Hahn and Nachtrieb further agreed that the court would order payment of amounts owed to Nachtrieb for his interest in the property and, thereafter, "any remaining sums to be split equally between Hahn and Nachtrieb."
Licht's petition alleged Hahn and Nachtrieb agreed to this language in their stipulation. Licht did not allege either of them ever communicated these terms to University—or directed Ladd to communicate them to University—as instructions governing escrow. Consequently, because Ladd and University owed fiduciary duties to their principals—Hahn and Nachtrieb—to faithfully follow their instructions, Licht's petition stated no fiduciary duty claim against Ladd or University. As Markowitz explained, "'In delimiting the scope of an escrow holder's fiduciary duties, then, we start from the principle that "[a]n escrow holder must comply strictly with the instructions of the parties."'" (Markowitz, supra, 142 Cal.App.4th at p. 526.)
We also observe that Licht did not allege Ladd independently knew of the settlement agreement's terms by virtue of her court appointment as the real estate agent for the sale of the trust property. To the contrary, Licht's petition alleged Gantus "violated the Settlement Stipulation . . . and the [court's] Sale Order by keeping the escrow secret from Licht and by failing to disclose Licht's existence to University Escrow and Ladd." Licht similarly alleged Gantus "concealed Licht's existence as attorney for Hahn from University Escrow and Ladd." Licht signed the settlement agreement, approving it "as to form and content" as Hahn's attorney, "individually and as Successor Trustee," and he had similarly signed the court's sale order with his approval as Hahn's attorney "as to form." Had Hahn or Nachtrieb instructed University or Ladd that Licht was to be paid out of escrow funds under the settlement agreement or the court order, they would not have been ignorant of Licht's existence, as he alleged.
Licht did allege that on learning of the escrow the day before it was set to close, he "faxed a letter to University Escrow, Karen Ladd and John Gantus" notifying them of his claim and "demanding payment of $63,963.21 to him from escrow proceeds and that no disbursement be made if the escrow holder did not intend to honor his demand, so that he could seek a court order relating to his rights therein." But this did not make Licht a party to the escrow or transform him into Ladd's client. Therefore, Licht's facsimile triggered no duty on Ladd's or University's part to obey his instructions.
In sum, while the settlement agreement and court order for the sale of the property may have been the source for Licht's claim to the escrow funds, without instructions by the parties in escrow that he be paid from those funds, he remained only a claimant on the funds. He was not a party to the escrow to whom University or Ladd owed a fiduciary duty. Consequently, Licht's petition did not state a cause of action against University or Ladd for breach of fiduciary duty. The trial court therefore properly sustained their demurrer to this cause of action.
Licht does not argue he could amend his petition to state a breach of fiduciary duty claim; he therefore does not carry his burden as the appellant '"of proving there is a reasonable possibility of amendment."' (Rosen, supra, 193 Cal.App.4th at p. 458.)
3. Fraud
Licht argues the court erroneously sustained Ladd and University's demurrer to his fraud cause of action against them. To the extent Licht's fraud claim simply recast his breach of fiduciary duty claims against Ladd and University, the claim failed in the absence of fiduciary duties owed by either party to Licht. For example, in alleging fraud, Licht charged that Ladd and University, together with Gantus, Nachtrieb, and Does 1-100, "entered into a conspiracy to cheat Petitioner out of funds he was legally entitled to receive from the Escrow . . . ." In particular, Licht alleged that, "in violation of the Stipulation and Order," Ladd, University, and the others conspired to defraud him "by committing acts in violation of the Sale Order, by committing acts in violation of fiduciary duties owed to Licht, and by committing acts of fraud."
The specific fraudulent acts Licht alleged included University's "deci[sion] to close Escrow without having the Court decide the matter," or, phrased differently, "decid[ing] to close Escrow and disperse funds before the Court could have a chance to decide the matter of who received the funds . . . ." (Italics added.) As discussed above, however, University did not owe Licht a fiduciary duty to obey his faxed payment demand or to await his application for a court order. Instead, University owed duties to the parties in escrow to close according to their instructions.
Couching his fraud claim in the language of conspiracy added nothing to it. Conspiracy in the civil context is not an independent tort or cause of action. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211 (City of Industry); Faunce v. Cate (2013) 222 Cal.App.4th 166, 172-173.) A plaintiff alleging conspiracy must allege an underlying "cognizable cause of action for a civil wrong"; the conspiracy allegation merely extends the "basis of liability . . . to more than one defendant." (Faunce, at p. 173.) We therefore turn to the elements of fraud to determine whether Licht's petition stated a fraud cause of action.
"The essential elements of fraud, generally, are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage." (City of Industry, supra, 198 Cal.App.4th at p. 211; accord, Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) "Each element must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action." (City of Industry, at p. 211.)
Licht's petition did not allege University or Ladd made any misrepresentation directly to him. Instead, Licht focused on the reliance element. Licht alleged that Ladd and University, along with Gantus and Nachtrieb, "knew that Licht was relying on the [probate court's sale] Order and on Ladd's and University Escrow's respective statuses as Court appointed realtor and escrow company to hold the disputed funds in escrow and not to disburse the funds prior to the Court ruling on the matter." Licht, however, made no allegation that Ladd or University told him the funds would be distributed in any particular manner or held in escrow pending court resolution of his claim.
Contrary to Licht's petition, the court's sale order, which Licht attached as an exhibit to his petition, did not appoint an escrow company for the Park Avenue sale. We therefore disregard the allegation because "the facts contained in [an] exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading." (Jibilian, supra, 136 Cal.App.4th at p. 864, fn. 1.)
Licht nonetheless alleged his reliance in assuming that escrow would not close pending his stated intention to apply for a court order "was reasonable" because "the Court had appointed Ladd in an Order and had also prescribed the disbursement of funds in the Order." To the contrary, the court's sale order directed that the trust property be sold, not the manner in which the proceeds were to be disbursed from escrow. And while the court's sale order appointed Ladd to sell the property, the order did not specify any terms or conditions for her to do so.
It is true that Hahn and Nachtrieb, in their agreement resolving their trust litigation, agreed to its entry as a stipulated judgment. We believe they meant to cite Code of Civil Procedure section 664.6, which provides for stipulated judgments. They further agreed that if Hahn failed to pay Nachtrieb for his share of the trust property, it would be sold by court order, and they also agreed the probate court "shall retain jurisdiction over the enforcement of the terms and conditions of this Settlement Agreement and Stipulation for Judgment." And they agreed that upon sale, if necessary, the court would order the distribution of proceeds, including any remaining funds "after payment of all outstanding obligations of the Trust and/or Hahn." (Italics added.) But this agreement was between Hahn and Nachtrieb; it did not involve Ladd or University. Nothing in Licht's petition suggested Hahn or Nachtrieb instructed Ladd or University to distribute the escrow funds in this manner.
The actual citation is to "California Civil Code § 664.6."
Hahn and Nachtrieb's stipulated settlement agreement was not self-executing. Rather, they provided in their agreement for its enforcement under the court's continuing jurisdiction "upon ex parte application of either party" for the court to "order any documents required to be executed," to "enter any Judgment, or issue any other interim relief otherwise sought by any party." (Italics added.) In short, nothing in Licht's petition suggested it was Ladd or University's responsibility to enforce the terms of the stipulated agreement.
Absent instructions from Hahn or Nachtrieb to University or Ladd to distribute the escrow proceeds according to the settlement agreement, it would have been a breach of fiduciary duty for Ladd or University to comply with Licht's payment demand. It was Hahn's and Nachtrieb's prerogative to determine when and how they wanted the terms of the settlement agreement enforced, not Licht's. Thus, Licht's repeated assertion in his petition that Ladd and University committed fraud by "circumvent[ing] the Court's Order" requiring priority payment of Hahn's creditors did not state a cause of action for fraud.
At best, Licht's petition suggested attorney Gantus impliedly represented to Licht that distribution of the escrow funds would halt pending court resolution of Licht's claim. Licht alleged in his petition that "Gantus led Licht to believe that the Court would rule on the contested matter by filing a motion for the Court to adjudicate the dispute over the disbursement of funds, and knew that Licht would reasonably rely on Gantus's filing of the motion as a representation that the funds would be held in escrow and the matter resolved by the Court." (Italics added.) Licht's conspiracy allegation indicates he intended this implied misrepresentation claim to extend to Ladd and University. He alleged that Gantus, in filing the motion, acted "on behalf of all Respondents [therefore including Ladd and University], in an effort to circumvent and frustrate Licht's communicated intention to file a motion seeking a court order compelling payment to Licht."
The flaw in Licht's theory that filing a motion constituted a fraudulent misrepresentation is that Licht did not suggest Gantus—whether acting alone or together with Ladd and University—impliedly promised not to withdraw the motion. Licht's allegation that filing the motion constituted a fraudulent misrepresentation is akin to alleging promissory fraud. "Promissory fraud or false promise '"is a subspecies of [the action for] fraud and deceit. 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."'" (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.) By statute, "[a]ctual fraud" includes "[a] promise made without any intention of performing it." (Civ. Code, § 1572, subd. (4).)
Nothing in Licht's petition, however, suggested Gantus or Ladd or University promised Licht the motion would not be withdrawn. We set out Licht's allegations in detail to illustrate the absence of such a promise. Licht alleged Gantus filed the motion on Wednesday, October 24, 2012, as an "Ex Parte Application for Order" to, among other things, compel payment of the mortgages on the trust property and other expenses, distribution of remaining funds to Gantus's client, Nachtrieb, "and to Compel the Closing of Escrow." The application was set for a hearing the next day and Licht personally appeared to oppose it, submitting "a lengthy opposition . . . that requested an order of the Court requiring that Licht's claim be paid from Escrow proceeds in accordance with the Settlement Stipulation and Order, and additional remedies." According to Licht's petition, the court's "staff attorney then conferred with Licht and Gantus," and obtained their consent to "trail[] the application to Monday October 29, 2012," so the court could "review the opposition papers filed by Licht on behalf of Hahn."
Licht alleged Gantus thwarted the Monday hearing by, on Friday, October 26, 2012, "contact[ing] the Court," communicating with "Court staff," and "request[ing] that the hearing be taken off calendar, which "the Court granted." Licht alleged Gantus "did not inform Licht of the matter being taken off calendar, until 4:35 p.m. on [that] Friday, October 26, 2012, when Gantus' assistant . . . left a voicemail message to that effect," which "Gantus confirmed . . . with a fax that he sent to Licht at 4:46 p.m. that same day." Licht alleged Gantus fraudulently caused the court to take the hearing off calendar when Gantus "falsely told Court staff that the dispute set for hearing on [Monday] had been settled, and requested that the hearing be taken off calendar."
Licht alleged that the escrow closed "as of October 29, 2012," when "funds were distributed out of the escrow held by University." Licht's petition stated he responded as follows, to no avail: "On Wednesday, October 31, 2012, Licht appeared by ex parte application and requested the Court to order the disgorgement of funds wired to Gantus, sanctions against Gantus, punitive damages, and the notification of the State Bar of California of Gantus' unethical conduct. The Court declined to consider the ex parte application however, on the grounds that it was beyond the Court's authority to consider these matters based on an ex parte application." Licht's petition does not state he reapplied for relief based on a motion to hold a contested hearing instead of an ex parte hearing. He filed his initial petition underlying the present appeal three years later in October 2015, and his third amended petition alleges "Contempt" as a cause of action against Gantus and Nachtrieb, but not Ladd or University.
As reflected in the foregoing chronology, Licht's petition did not allege Ladd or University promised Licht that Gantus would not withdraw his application—or otherwise that Ladd or University made any representation to Licht at all. Even assuming the existence of an implied representation based on Gantus filing his application—and Ladd and University's participation therein—there is no express or implied representation that they would not withdraw the application. Nor, in the absence of any contempt allegations against Ladd or University, is there any suggestion they participated in Gantus's alleged lie to the probate court.
Finally, Gantus's alleged misrepresentation to the court was, as Licht expressly alleged, to the court, not to him. It is not logically possible that Licht could rely on an alleged misrepresentation that was not made or communicated to him, but instead to another entity—the court through its staff. Consequently, Licht failed to state a fraudulent misrepresentation claim and the trial court properly sustained Ladd and University's demurrer to his common law fraud cause of action against them. Licht does not suggest he could adequately amend his petition. Therefore, there is no basis to reverse the trial court's decision denying Licht leave to amend a fourth time.
The court also found Licht failed to state a statutory claim for fraud "against Ladd or University Escrow under the Uniform Voidable Transactions Act (the 'UVTA', formerly the Uniform Fraudulent Transfers Act), found at Civil Code section 3439, et seq." The court explained, "Missing, for example, are any allegations sufficient to establish that either Ladd or University Escrow was a 'debtor' within the meaning of Civil Code section 3439.04, subdivision (a)(1)." Licht concedes in his appellate brief that "Gantus, Ladd, and University Escrow are not the debtor" on his claim for attorney fees. His fraudulent transfer claim therefore falls outside the scope of the UVTA. Thus, the court did not err in sustaining Ladd and University's demurrer on this claim without leave to amend.
4. Remaining Issues: § 17200 and Continuance
Licht concedes his unfair business practices claim simply "incorporate[d] all the preceding factual allegations" underlying his fraud and breach of fiduciary duty causes of action. Business and Professions Code section 17200 et seq. defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609.) The act "'"borrows" violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) Because Licht failed to allege viable fraud or breach of fiduciary duty claims, the trial court properly sustained the demurrer to this cause of action without leave to amend.
Nor did the court abuse its discretion, after the case had been pending for several years, by denying Licht's ex parte application to continue the demurrer hearing to depose Ladd or others. Licht made the ex parte motion on April 6, 2018, which Ladd and University opposed on April 9, 2018. The hearing on the demurrer was not scheduled to take place until April 25, 2018. The court denied Licht's ex parte application for failure to allege imminent harm or irreparable injury.
The decision whether to grant or deny a continuance rests in the trial court's sound discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) During the three weeks preceding the scheduled date for the hearing on the demurrer, Licht did not notice or attempt to notice any depositions, nor did he refile his continuance motion once it was denied, to allege imminent harm or irreparable injury. Nothing suggested further discovery would reveal a fiduciary duty or other basis for Licht's claims. Therefore, the court did not err in denying the requested continuance.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.