Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC392786 Ernest M. Hiroshige, Judge.
Grace & Grace, Michael K. Grace, Pamela D. Deitchle, and Jill M. Abasto for Plaintiff and Appellant.
Horvitz & Levy, Lisa Perrochet, Robert H. Wright and James A. Sonne; Soltman Levitt Flaherty & Wattles and Garth M. Drozin for Defendants and Respondents.
ALDRICH, J.
INTRODUCTION
After plaintiff Wallingford Capital, LLC (Wallingford) completed its case-in-chief in its breach of contract action against defendants Emergency Groups’ Office, Inc. (EGO) and Del Brault, the trial court granted defendants’ nonsuit motion and entered judgment in defendants’ favor. Wallingford appeals contending it had adduced evidence that it found a ready, willing, and able buyer for EGO on terms that were acceptable to EGO, and that defendants arbitrarily or in bad faith refused to consummate the sale thereby depriving Wallingford of its earned commission. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The parties
Viewing the evidence according to the applicable rules (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327), it shows that defendants Del and his wife Jane Brault founded EGO in 1990. EGO provides billing services for emergency medical businesses, including physician groups. Del and Jane are co-CEOs of EGO and their daughter, Dr. Andrea Brault, is its president. Andrea has a much closer knowledge of the day-to-day activities of the company than do her parents. Jane and Del Brault own 51 percent of EGO’s stock and 100 percent of the voting rights. Andrea has an equal vote in deciding whether to sell EGO and on what conditions. The remaining shares are owned by individuals who have no voting rights.
Wallingford Capital, LLC, a Maryland-based broker of businesses in the health care industry, has provided EGO with various business services since 1998. Wallingford founder Christopher W. Kellogg served as senior principal, and his nephew Andrew Pierce Kellogg is also a principal.
In 2007, Del Brault called Kellogg because he felt, with the market improving significantly, that it was time to put EGO up for sale.
2. Wallingford and EGO enter into a brokerage contract to sell EGO.
To gain information about EGO for the sale, Kellogg asked the Braults for a list of the components of an “ ‘ideal’ ” transaction. EGO responded that while the market would dictate the size of the offers, Del was considering nine or ten times EBITDA, in the $36 to $40 million range if “the rest of the offer is not too objectionable, ” but no less than seven times EBITDA. EGO also required, inter alia: (1) Job security for EGO management, i.e., EGO’s executive team of Andrea, James Blakeman, and Bob Acker. Andrea expected her executive team to remain in place. (2) Retention of EGO’s clients.
“EDBITDA” stands for Earnings Before Interest, Tax, Depreciation, and Amortization. In 2007, EGO’s EBITDA was approximately $4 million. Thus, EBITDA’s multiple of 10 would equal $40 million.
EGO and Wallingford signed an exclusive representation agreement (the brokerage contract). Of particular importance to this case, the brokerage contract defined when Wallingford could be paid: “EGO agrees to pay [Wallingford], with respect to a successfully completed transaction with a Candidate Acquirer, a fee (a ‘Success Fee’) for such services based on the modified ‘Lehrman’ formula....” (Italics added.) “Transaction” was defined “for purposes of this agreement” as “the transfer of greater than 10% of the shares of EGO from any holder to any purchaser, provided that [Wallingford] is asked to participate and becomes actively involved in the negotiation of such transfer, and aids in the consummation of such transaction.” The brokerage contract’s term was one year and could be terminated in writing “at any time with written notice from the terminating party.”
Wallingford received offers to purchase EGO for $20 million or more from four companies, including MCI Acquisition Corp. (MCI). Located in Oklahoma, MCI, the parent company of Emergency Physician Billing Specialist (EPBS), is the “other premier emergency physician biller in the country.” MCI is active outside of California whereas EGO is active inside California. MCI had made inquiries in the past about purchasing EGO, and so it was not unfamiliar to the Braults.
3. MCI’s first letter of intent
MCI’s letter of intent in November 2007 proposed a purchase price of $35 million, which fell within EGO’s price range. The offer included post-sale indemnity by EGO and employment agreements for senior management, including Andrea. The letter of intent stated, “This letter is intended to be a summary evidencing the current intentions of the parties with respect to the Acquisition as reflected in discussions between the parties as of this date, and it is expressly understood that (a) this letter is not intended to, and does not, constitute an agreement to consummate the Acquisition or to enter into a Definitive Agreement and (b) the parties hereto will have no rights or obligations of any kind whatsoever relating to the transactions set forth herein by virtue of this letter or any other written or oral expression unless and until the Definitive Agreement is executed and delivered....” (Italics added.)
Andrea was skeptical about MCI’s intention to retain her, Blakeman, and Acker. She opined that “[c]utting senior management (Jim, Bob, and I) and putting all of the operational functions in Oklahoma would reverse this [EGO’s higher costs and lower profit margin].... Their [MCI’s] plans for the senior management of EGO in the [letter of intent] are contained in a scant, vague paragraph, which leads me to think this is exactly what they intend to do.” The Braults later learned that MCI planned to re-sell EGO in five years.
EGO rejected MCI’s offer and the offers of the other three companies. In late November 2007, Del explained to Wallingford that the Braults’ financial objective from the sale was to generate $1.5 million in annual income, for which EGO “would need about $18,750,000 NAT proceeds” from the sale.
4. EGO’s counter offer
EGO countered with a 15-point offer. Included was a sale price of $38.33 million. The counteroffer would net a payout to the Braults of $20,556,000. EGO’s counteroffer also assured that Andrea would remain president of EGO and she and the EGO management team would retain present levels of overall compensation after the transition. EGO’s counteroffer closed with the following paragraph: “[u]pon your approval of these term modifications, the Braults are prepared to execute a Letter of Intent and enter immediately into negotiations regarding details of a Definitive Purchase & Sale Agreement. They look forward to a congenial negotiation and a most successful merger of these three very fine companies.” (Italics added.)
5. MCI responds with a second letter of intent.
MCI’s second letter of intent accepted 11 of the 15 terms and conditions in EGO’s counteroffer in December 2007. MCI’s offer did not commit MCI to refrain from re-selling EGO, but did propose that Andrea would “remain as the Senior Executive.” Again, the letter of intent stated that it was not intended as an enforceable offer or agreement.
After analyzing MCI’s second offer, EGO informed Wallingford that the offer was “unacceptable” “for several basic reasons” related the “original objectives for a sale of EGO.” Specifically, Jane and Del Brault determined that under the letter of intent, (1) most or all of EGO would be absorbed into MCI’s operations and the majority of EGO’s employees and management would have to move and would eventually lose their jobs; and (2) the offer’s transaction structure would not meet Jane’s and Del’s personal investment and income objectives.
Nonetheless, understanding that MCI was willing to remove two of EGO’s major obstacles by making assurances that it did not plan to move EGO’s work to Oklahoma City and would meet the Braults’ financial objectives, Del urged Andrea to participate in a conference call with MCI. Even after that call, however, “sticking point[s]” remained over, inter alia, concerns about Andrea’s job prospects with MCI and the Braults’ financial objectives. After further discussions, Kellogg heard reports that Andrea’s future position with MCI was resolved.
6. EGO rejects MCI’s counteroffer and decides to go off the market.
After the unsuccessful telephone call, in December 2007, Del wrote to Kellogg stating that he and Jane had decided to reject MCI’s offer because it did not meet the Braults’ “primary sale objectives.” Although it was “unquestionably the best offer anyone would reasonably make for the Company, ” Del explained that the offer did not meet his and Jane’s financial objectives and did not assure Andrea, Blakeman, and Acker control over their futures. Therefore, the Braults decided to take EGO off the market.
Wallingford called off negotiations.
On January 1, 2008, Del notified MCI’s Ted Stack by email that “[w]e have decided to take EGO out of play.” Despite Wallingford’s “successful efforts to find and interest qualified buyers to make offers, ” Del explained, “it is apparent to us now” that “the market cannot reasonably meet our requirements. And, as there is no compelling reason to sell EGO at this time, there is no reason to continue the process.”
7. MCI makes a final, unsolicited proposal.
After the Braults removed EGO from the market, MCI reiterated through Kellogg that it “would make the financial numbers work and that Andrea would be running EGO.” Del did not think a meeting would change his and Jane’s minds, but as a courtesy, the Braults agreed to meet with MCI to review its newest proposal. Later that month, Kellogg told Del that he understood MCI was willing, although “they’d prefer not, ” to make an all-cash offer to meet the Braults’ goals. As MCI was “prepared to assure Andrea, in writing, that she will remain in total control of the same ‘world’ she now rules, and that MCI has no intention of gutting EGO....” Del Brault agreed to hear MCI out.
On January 29, 2008, MCI sent a revised letter of intent. As with the previous offers, the letter stated it was not an agreement to consummate the acquisition or to enter into a definitive agreement, but a summary of current intentions. With respect to retention of the executive team, the letter of intent proposed an employment contract for Andrea, Blakeman, and Acker, providing an alternative pay method and including assurances they would not be required to move more than 20 miles from their current locations. Andrea would remain Senior Executive of EGO, although the parties would “visit this aspect of the deal in more detail” when they met. (Italics added.) The offer neither guaranteed Andrea “total control” nor committed to not “gutting EGO.”
The Braults “were blown away. [MCI’s offer] was above and beyond anything they could hope to expect, ” Andrew testified. Del responded to the offer by thanking MCI’s Stack “for what is a very generous and responsive offer” and informed MCI that he would be reviewing the offer with advisors.
After review of the offer, Del announced to Kellogg that the MCI proposal was “not acceptable.” In February 2008, Del sent an email to MCI’s Stack explaining they had made “a hard decision. One we didn’t take lightly. On one side was MCI’s historically generous offer, a chance to diversify our investment in EGO into a broader market, the opportunity to merge EGO into something larger and safer and an opportunity for Jane and me to perhaps increase our leisure time. On the other side were the major reasons I stated earlier plus other factors that may or may not have been stoppers had we continued our discussions. But, we did not think further negotiations would be a good investment of everyone’s time as our major concerns were external to our discussions and we believe they will not change in the near term.” (Italics added.) Accordingly, the Braults reiterated that they would “not sell EGO....” Stunned because MCI’s offer was everything EGO had asked for, the Kelloggs tried to contact EGO numerous times by telephone and email.
In mid-February 2008, Del wrote to Kellogg that EGO was exercising its right to terminate EGO’s brokerage contract with Wallingford. Wallingford responded by demanding payment of a commission under the “Success Fee” term of the brokerage contract based on MCI’s last, unsolicited proposal. Andrew testified that Wallingford had brought a buyer that had met every condition EGO had proposed and the project had consumed approximately six months of his working time. EGO refused to pay the bill. Both Kelloggs acknowledged at trial that there was never a successfully completed transaction as defined by the brokerage contract.
8. Procedural background
Wallingford brought the instant action against EGO and Del Brault seeking damages for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) intentional interference with contractual relations. Wallingford alleged it had performed its obligation under the brokerage contract by obtaining at least one offer that met EGO’s objectives, but that EGO had arbitrarily refused to close the deal. Wallingford also alleged that Del intentionally and without justification disrupted EGO’s contractual relationship with Wallingford by refusing to proceed with an approved transaction to sell EGO based on the sale requirements Del had enumerated for Wallingford.
At the close of Wallingford’s case-in-chief, defendants moved for nonsuit on the grounds: (1) The breach of contract cause of action failed because plaintiffs adduced no evidence of a “successfully completed transaction.” (2) The bad faith cause of action failed because, where no agreement was reached as to the terms and conditions of sale between EGO and a buyer, there was no contract with which EGO could have arbitrarily or in bad faith interfered. (3) With respect to the cause of action for intentional interference with prospective economic relations, Wallingford adduced no evidence that a buyer and Wallingford were in an economic relationship that probably would have resulted in an economic benefit to Wallingford. After further briefing and argument, the trial court granted defendants’ motion for nonsuit and Wallingford filed its timely appeal.
CONTENTIONS
Wallingford contends that the trial court erred in granting EGO’s nonsuit motion on each of the three causes of action and in denying its request to produce more evidence.
DISCUSSION
a. Standard of review
“ ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.]’ ” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262.)
When reviewing a judgment of nonsuit in favor of defendant at the close of plaintiff’s case (Code Civ. Proc., § 581c), we consider only the grounds specified by the moving party in support of its nonsuit motion. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) Following the same analysis utilized by the trial court, we determine whether the plaintiff presented “any substantial issue of fact for the determination of the jury.... [T]here must be a substantial conflict in evidence to deprive the court of this power. [Citation.]” (Gerard v. Ross (1988) 204 Cal.App.3d 968, 981.) We do not weigh the evidence or consider the credibility of the witnesses. Instead, we are required to accept as true the evidence most favorable to the plaintiff, while disregarding conflicting evidence. (Alpert v. Villa Romano Homeowners Assn., supra, 81 Cal.App.4th at p. 1327.) “ ‘ “ ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” ’ [Citation.]” (Ibid., fn. omitted.) “ ‘ “When there is doubt in the court’s mind about the inferences that may reasonably be drawn from the evidence it is the duty of the court to let the case go to the jury.... [Citations.]” [Citation.]’ [Citation.]” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313, italics omitted.)
“ ‘If a plaintiff produces no substantial evidence of liability... then the granting of a nonsuit is proper.’ And, while the court may infer facts from the evidence, those inferences must be logical and reasonable. The decision about what inferences can permissibly be drawn by the fact finder are questions of law for determination by the court, inasmuch as an inference may not be illogically and unreasonably drawn, nor can an inference be based on mere possibility or flow from suspicion, imagination, speculation, supposition, surmise, conjecture or guesswork. [Citations.]” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580-1581.)
“ ‘Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.]’ ” (Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at p. 1313.)
b. The trial court properly nonsuited the breach of contract cause of action.
(i) There was no evidence of a transaction as defined in the brokerage contract and so Wallingford did not earn its commission.
“A broker’s right to a commission is measured by the terms of his agreement [citation]; and until the conditions precedent to payment of that commission, as prescribed by that agreement, have occurred he is not entitled to recover. [Citations.]” (Olsen v. Spomer (1961) 192 Cal.App.2d 99, 102.) Likewise, “where defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove the event transpired. [Citation.]” (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.) “Where a broker’s contract provides that he will be entitled to a commission only upon consummation of a sale, he will ordinarily not be entitled to a commission unless a sale is consummated. [Citations.]” (Stromer v. Browning (1966) 65 Cal.2d 421, 424.)
Turning to the pertinent part of the brokerage contract, as noted, Wallingford would earn its commission only when there was a “successfully completed transaction with a Candidate Acquirer ....” A “[t]ransaction” is defined in the brokerage contract “as the transfer of greater than 10% of the shares of EGO from any holder to any purchaser, provided that [Wallingford] is asked to participate and becomes actively involved in the negotiation of such transfer, and aids in the consummation of such transaction Except as provided below, the full fee is due at closing of the transaction.... [¶] In the event that some portion of the purchase price is contingent, either upon the Seller’s performance or otherwise, and to be paid after closing, [Wallingford] will accept its appropriate percentage of that portion when the amount is actually transferred to Sellers.” (Italics added.)
Wallingford produced no evidence of a “successfully completed transaction, ” let alone one in which at least 10 percent of EGO shares were transferred to a purchaser. Indeed, both Kelloggs testified that there was never a successfully completed transaction as defined by the brokerage contract, and so Wallingford did not earn its commission. “Where a broker has seen fit to allow payment of his compensation to be contingent upon performance of a contract between parties other than himself, he cannot complain if, through the nonperformance of that contract, his own contingent rights be lost.” (Cochran v. Ellsworth (1954) 126 Cal.App.2d 429, 440.) Inasmuch as no binding purchase and sale agreement was executed, and “the transfer of greater than 10% of the shares of EGO from any holder to any purchaser” never occurred, Wallingford’s right to a commission never arose and so EGO did not breach the brokerage contract by failing to pay Wallingford its commission. Accordingly, the trial court did not err in granting EGO’s nonsuit motion with respect to the breach of contract cause of action.
(ii) There is no evidence MCI was ready, willing, and able to purchase EGO on terms satisfactory to the seller.
Nonetheless, Wallingford contends it is entitled to its commission under the brokerage contract because it produced a ready, willing, and able buyer.
In California, a broker must satisfy certain conditions to demonstrate entitlement to a commission when the seller is unable or unwilling to complete the sale. “ ‘[I]t is well established, [(1)] in the absence of any specific agreement to the contrary, that a broker employed to sell real or personal property has earned his commission when, within the life of his contract, or any extension thereof, he has produced a person who is ready, willing, and able to purchase the property [(2)] on terms satisfactory to the seller, and has obtained a binding and valid contract for a sale on the terms proposed by the seller, or has brought the seller and buyer together and thus enabled them to enter into a contract of sale, or has produced such a purchaser who has verbally accepted the seller’s terms and offered to enter into a written contract embodying the said terms and binding upon both parties. In such cases the broker’s right to commission accrues when the contract of sale is executed, or when opportunity to make such contract is given the seller, and the broker becomes entitled to his commission even though the seller is unable or unwilling to complete the sale. [Citations.]’ ” (R. J. Kuhl Corp. v. Sullivan (1993) 13 Cal.App.4th 1589, 1600, italics added, fn. omitted, quoting from Twogood v. Monnette (1923) 191 Cal. 103, 107.)
This rule articulated in R. J. Kuhl Corp. does not aid Wallingford for two reasons. First, the R. J. Kuhl Corp. rule applies, “in the absence of any specific agreement to the contrary....” (R. J. Kuhl Corp. v. Sullivan, supra, 13 Cal.App.4th at p. 1600.) As we have already discussed, the brokerage agreement specifies to the contrary that Wallingford was entitled to a commission only upon “a successfully completed transaction, ” and such a condition was never satisfied. Thus, Wallingford is not entitled to rely on the rule of R. J. Kuhl Corp.
Second, even were the brokerage contract not an impediment to recovery, Wallingford adduced no evidence that MCI was ready, willing, and able to purchase the property on “terms that were satisfactory to” EGO. (R. J. Kuhl Corp. v. Sullivan, supra, 13 Cal.App.4th at p. 1600.) Wallingford cites MCI’s last, unsolicited January 2008 offer as evidence MCI was ready, willing, and able to purchase EGO for far more than EGO’s “most hopeful scenario” and that EGO “did not object to the terms of the MCI Offer.” Not so. Among the terms important to EGO were job security for EGO executives, financial security for Jane and Del, and a commitment not to dismantle EGO. Those terms were not embodied in MCI’s January 2008 letter of intent and so Del Brault explained that EGO found the offer undesirable for “the major reasons I stated earlier.” Moreover, that unsolicited offer came after EGO was no longer for sale. At the time the Braults took EGO off the market, “sticking points” remained about Andrea’s job security and the Braults’ financial objectives. Rather than show that MCI orally accepted EGO’s terms in January 2008, the evidence reveals, even after EGO was no longer for sale, that the parties did not reach an accord.
Furthermore, MCI’s own January 2008 letter of intent shows that MCI was not ready, willing, and able to enter into a binding purchase and sale contract because, as with the previous such letters, MCI’s letter was qualified and was “not intended to, and does not, constitute an agreement to consummate the Acquisition or to enter into a Definitive Agreement.” (Beck v. American Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1563 [letter of intent not binding contract].) Indeed, Kellogg told Del in January 2008 that MCI would “prefer not” to meet one of EGO’s specific requirements. The January 2008 unsolicited offer specified that MCI would visit the issue of Andrea’s job security in more detail during negotiations. MCI’s offer was never more than a nonbinding proposal that anticipated more negotiation. Thus, the evidence does not support Wallingford’s contention that MCI was ready, willing, and able to enter into a contract on terms satisfactory to EGO. (R. J. Kuhl Corp. v. Sullivan, supra, 13 Cal.App.4th at p. 1600.)
Wallingford counters that EGO’s refusal to sell was because of concerns that were “external” to the important terms of the sale. But, EGO was already off the market by the time of the offer to which Wallingford refers. EGO agreed to listen to MCI’s unsolicited offer only as a “courtesy.” After listening, Del was impressed by the unsolicited offer, but he explained in his February 11, 2008 emails why the unsolicited offer did not meet EGO’s requirements. Wallingford only quotes from a portion of Del Brault’s February 2008 email. Brault went on to reiterate that EGO was rejecting the offer because of “the major reasons I stated earlier plus other factors....” (Italics added.)
Recognizing a lack of evidence of an agreement between the buyer and sellers, Wallingford argues that a binding purchase and sale is not a necessary prerequisite to recovery of the broker’s commission. However, as R. J. Kuhl Corp. and Twogood explain, a binding purchase and sale contract is not necessary as long as the buyer and seller agree to “the seller’s terms.” (R. J. Kuhl Corp. v. Sullivan, supra, 13 Cal.App.4th at p. 1600 & Twogood v. Monnette, supra, 191 Cal. at p. 109, italics added [seller had no objection to purchaser, the terms of the proposed contract, or to the manner of, or the time for, performance].) The cases Wallingford cites all recognize that there must be an agreement between the buyer and seller, whether written or oral, as to the essential terms of the sale before the broker has earned the commission. As explained in Coulter v. Howard (1927) 203 Cal. 17, “ ‘a written contract between the seller and the purchaser is not essential to the recovery of the broker’s commission if he has produced to the seller a purchaser who is ready, willing and able to purchase upon the terms proposed by the seller and who has agreed to those terms and is willing and offers to enter into a binding written contract.’ ” (Id. at pp. 21, 25, italics added [sale was in escrow at time of breach]; Collins v. Vickter Manor, Inc. (1957) 47 Cal.2d 875, 879, 883 [commission due because buyer accepted the sale property on terms and conditions imposed by seller]; Herz v. Clarks Market (1960) 179 Cal.App.2d 471, 473 [commission due because buyer willing to purchase the property “according to the terms of [seller’s] contract with [broker]”].) By contrast to these cases, here, no agreement was ever reached as to the terms that were important to EGO, such as Andrea’s job security, continuing viability of EGO, and the Braults’ financial security, either before or after EGO was taken off the market.Consequently, nowhere is there evidence from which a jury could conclude that MCI was ready, willing and able to purchase EGO on terms satisfactory to EGO so as to entitle Wallingford to a commission in spite of the brokerage contract.
c. The trial court properly granted nonsuit on the cause of action for breach of the implied covenant of good faith and fair dealing.
Wallingford argues that EGO breached the covenant of good faith and fair dealing because it acted arbitrarily and in bad faith by refusing to accept the offer from MCI who was a ready, willing, and able purchaser. “A prospective seller... owes a duty to the broker not to act arbitrarily or in bad faith to prevent consummation of the transaction where the broker has found a prospective buyer who is ready, able, and willing to purchase the property, and the prospective buyer and the prospective seller have agreed upon the terms and conditions of the sale. [Citations.]” (Stromer v. Browning, supra, 65 Cal.2d at p. 424, italics added.) Yet, as we have analyzed, Wallingford produced no evidence of an agreement as to the terms and conditions of sale, and no evidence MCI was actually a ready, willing, and able buyer. Accordingly, no deal existed which EGO could have prevented.
d. The trial court properly granted the nonsuit motion as to the cause of action for interference with contractual relations.
To recover for tortious interference with the performance of a contract, the plaintiff must prove: (1) a valid contract between plaintiff and another party; (2) defendant’s knowledge of that contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514, fn. 5.) “ ‘Wrongfulness independent of the inducement to breach the contract is not an element of the tort of intentional interference with existing contractual relations....’ [Citation.]” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239, italics added.)
Wallingford conceded during oral argument on EGO’s nonsuit motion that, without a purchase and sale deal between EGO and MCI, Brault could not have interfered with Wallingford’s rights under the brokerage contract with EGO. As noted, the brokerage contract required EGO to pay Wallingford in the event of a sale defined as a “transfer of greater than 10% of the shares of EGO from any holder to any purchaser.” That brokerage contract did not obligate EGO to enter into a buy sell agreement that did not comport with EGO’s terms. MCI made no offer that met EGO’s terms with respect to Andrea’s job future, the Braults’ financial security, or EGO’s future viability. The decision not to accept the offer was entirely within EGO’s right, and as a result of that decision, there was nothing with which EGO could interfere. (See Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist., supra, 106 Cal.App.4th at pp. 1240-1241 [rejecting claim of interference with exclusive negotiating contract where contract did not obligate party to enter into a development agreement].) Wallingford adduced nothing from which the jury could infer that Del Brault’s actions induced a breach or disruption of the brokerage contract.
e. The trial court did not abuse its discretion in denying Wallingford’s offer to introduce additional evidence.
Wallingford contends that the trial court erred in refusing to reopen Wallingford’s case to present additional evidence that the terms of MCI’s offer were agreeable to EGO.
“The denial of a motion to reopen a case for further evidence ‘rests upon the sound discretion of the trial court.’ [Citation.] ‘That discretion should not be overturned on appeal absent a clear showing of abuse.’ [Citation.] [¶]... [¶] In response to a motion for nonsuit, a plaintiff has the right, upon request, to reopen its case to remedy defects raised by the nonsuit motion. [Citations.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 886.) “A trial court does not abuse its discretion when its refuses to reopen a case for new evidence that will not produce a different result. [Citations.]” (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1222.)
Wallingford’s offer was to reopen testimony to show from Del Brault’s deposition that: (1) the inability to reach agreement with a large client and with EGO’s minority shareholders affected EGO’s ability to make a deal with MCI; (2) Del Brault liked MCI’s January 2008 proposal; and (3) EGO’s rejection of the January 2008 offer was driven by external considerations that prevented EGO from going forward.
Yet, this evidence shows nothing different than what had already been adduced, most important of which was that there was no agreement between EGO and MCI as to two important terms, namely, Andrea’s job security and Jane and Del Brault’s financial security. As already explained, without a buy sell agreement between EGO and MCI, all of Wallingford’s causes of action, for breach of contract and of the covenant of good faith and fair dealing, and for interference with contractual relations, fail.
DISPOSITION
The judgment is affirmed. Respondent to recover costs of appeal.
We concur: KLEIN, P. J., KITCHING, J.