STANFORD K. RUBIN et al., Plaintiffs and Appellants, v. DOUGLAS ELLIMAN OF CALIFORNIA, INC., Defendant and Respondent.
B341122
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 3/30/26
Mark H. Epstein, Judge
(Los Angeles County Super. Ct. No. 22SMCV00454)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark H. Epstein, Judge. Affirmed.
Sklar Kirsh, Jerry L. Kay and Loren N. Cohen for Plaintiffs and Appellants.
Manning & Kass Ellrod, Ramirez, Trester, Ari L. Markow and Mark R. Wilson for Defendant and Respondent.
We conclude plaintiffs fail to demonstrate a viable cause of action against Elliman based on Moore‘s alleged malfeasance. We also conclude the trial court did not abuse its discretion in denying plaintiffs’ motion to amend their operative complaint to add new causes of action made after the court granted summary judgment. We thus affirm the judgment in favor of Elliman.
PROCEDURAL BACKGROUND
In March 2022, plaintiffs Stanford K. Rubin, Adrienne S. Rubin individually and as co-trustees of the Stanford and Adrienne Rubin Family Trust (collectively plaintiffs) sued Scott Moore, Moore‘s construction company, So Cal Custom Construction & Design, Inc. (SCCCD), and Elliman. The second amended complaint — the operative pleading — alleges causes of action for breach of contract, fraud, elder abuse, negligent supervision, and breach of fiduciary duty.1 Plaintiffs describe Elliman as “a licensed real estate broker” and “successor in interest to [Teles] Properties.”2
The trial court sustained Elliman‘s demurrer to the breach of fiduciary duty cause of action. Later, the trial court summarily adjudicated the causes of action against Elliman for fraud and negligent supervision.3 Plaintiffs challenge these rulings on appeal.
After the trial court issued an order granting summary judgment in favor of Elliman, plaintiffs sought leave to amend their second amended complaint to delete previously alleged claims against Elliman and substitute causes of action for joint
FACTUAL BACKGROUND
1. The parties and Scott Moore
In 2014, plaintiffs bought property located in Pacific Palisades (the Property), which was sold on December 13, 2021. Plaintiffs purchased the Property for $3.505 million, paid $11,161,942.86 in construction costs, and sold the Property for $18,999,999. Plaintiffs engaged in these transactions after meeting Scott Moore, a licensed real estate broker, licensed attorney, and licensed general contractor. Moore is the sole officer, director, and shareholder of SCCCD, and the sole officer, director, and shareholder of BBS Development, Inc. Moore coined a marketing strategy called BBS, which stands for Buy, Build, Sell. Prior to working for Elliman, Moore worked as an associate-licensee for Teles Properties.
In 2014, when Moore started working at Teles, he sent an e-mail describing the “synergy” between Teles and Moore‘s Buy, Build, Sell strategy. In that e-mail, he stated: “I just wanted to say that it was the absolutely right decision to become part of the Teles Family and that the first month has been very enjoyable and I see a bright future ahead. [¶] . . . [¶] In order for me to lay the proper foundation for a marketing blast of this new relationship the most critical element as previously discussed is the synergy between Teles and BBS Development.”
In 2017, Elliman purchased Teles. In 2018, Moore began working for Elliman as an associate-licensee. The agreement between Elliman and Moore describes Moore as an independent
2. Plaintiffs’ agreements with Moore and SCCCD
Plaintiffs attached to their second amended complaint construction documents between them and SCCCD and residential listing agreements between them and Moore and Klein. On June 24, 2014, plaintiffs and SCCCD entered into a general contractor‘s agreement. Also in June 2014, plaintiffs entered into a residential listing agreement providing Scott Moore and Devin Klein an exclusive right to sell the Property.4 Neither Teles nor Elliman was a party to the 2014 listing agreement.
3. Plaintiffs’ listing agreement with Elliman
Plaintiffs attached to their second amended complaint, two modifications to the 2015 residential listing agreement. Those modifications indicated that Elliman would serve as broker. A March 13, 2018 modification of the 2015 listing agreement identifies Elliman as broker. Another modification, dated January 1, 2019, provides: “Douglas Elliman (‘Broker‘) shall be the Broker of record for this transaction.” It further states: “Broker shall put together a first class marketing plan including an event at the Property including valet, automotive, art, spirits, catering, press, etc. at a cost/value between $10,000 to $20,000” and continues: “All other terms and conditions of the RLA dated 10/20/15 remain the same.”
In an undated presentation, Moore and Elliman made a written “listing presentation” to plaintiffs to obtain the right to sell the Property. Included in that “presentation” was a statement that Moore was “[b]acked” by Elliman. The “presentation” also stated plaintiffs’ “[t]rust can offset one hundred percent (100%) of the agent[‘]s commission (2%) less
4. Moore‘s declaration and deposition testimony5
In a declaration in support of Elliman‘s motion for summary judgment, Moore averred that in May 2018, he entered into an independent contractor agreement with Elliman where he became an associate-licensee to Elliman “for purposes of acting solely as a real estate broker and engaging in only those activities that require a real estate broker license.” Moore also averred that in 2014, he and Tony Ramsey started BBS Real Estate (BBSRE), “which was nothing more than a marketing model that solely belongs to Mr. Ramsey and me.” Moore continued: “The ‘BBS’ stands for Buy, Build, Sell. [Teles] and [Elliman] . . . did not participate in the creation and origination of BBSRE.” Moore further declared Elliman and Teles never had any ownership interest in, or any right to control the operations at SCCCD, BBS Development, Inc. (BBSI), or BBSRE.
Moore also stated Elliman and Teles never received any financial benefit from SCCCD or Moore in connection with SCCCD‘s construction contracts with plaintiffs. Moore represented he always was the sole officer, director, and shareholder of SCCCD. Moore further represented that his construction business and construction activities were “always
In a deposition, Moore testified Teles provided office space for persons helping him with SCCCD. Moore also met with plaintiffs’ son at Moore‘s office at Teles. According to Moore, Teles knew he was operating SCCCD and Teles knew about his Buy, Build, Sell marketing strategy. A flyer dated August 4, 2016 describes BBS: “BBS, helmed by CEO Scott Moore, is a full service residential firm in association with Teles Properties based in Brentwood that works with clients to buy, build, and sell their homes in West Los Angeles.” That flyer advertised an event at Moore‘s house at which one or both plaintiffs attended. With respect to Teles, the flyer stated: “Part one of the event, from 2-4pm, is a presentation by CEO of Teles Properties . . . on listing strategies in the current market. This portion is for agents only.”
Moore testified SCCCD was the “construction arm of BBS Development,” and Teles Properties and then Elliman were the “brokerage arm.” In his deposition, Moore stated he used Elliman‘s mailing address for SCCCD and BBSI. Moore‘s SCCCD project manager worked at the Elliman office. While using an office at Elliman, the project manager organized paperwork related to the construction of the Property and created a spreadsheet showing what had been completed. SCCCD‘s vendors would pick up checks from Moore at the Elliman office. Moore also met with an SCCCD accountant at Elliman‘s office.
At his deposition, Moore admitted $400,000 paid by plaintiffs “didn‘t go into the project.”
In her declaration in opposition to summary judgment, Adrienne Rubin stated she met Moore in his office at Teles at a time she did not identify. At that meeting, he described the Buy Build, Sell program to her. Moore told her that “we would buy the real property through his brokerage, Teles Properties, . . . and that Mr. Moore, who was a licensed contractor owning So Cal Construction & Design, Inc. (‘SCCCD‘) would improve the property, and then Mr. Moore and Teles would list the property for sale at a profit.” Adrienne Rubin stated that she “entered into the transaction with Scott Moore and Teles Properties in the spring of 2014 solely because of his Buy, Build, Sell Program and the fact he was a contractor. . . . The primary reason I engaged Scott Moore as a contractor for this project was that he convinced me that he was with Teles and that Teles had a strong presence as a brokerage firm both domestically and internationally.” Adrienne Rubin met Moore several times at the Elliman office to discuss the construction.
Adrienne Rubin attended a marketing event in 2016 at Moore‘s residence. The president of Elliman also was there and Adrienne Rubin was “delighted to see” the Property described as “Coming Soon.”
Adrienne Rubin relied on Moore‘s advice to expand the scope of the construction to “increase the sale price of the home and make a bigger profit. When the budget increased, the selling price increased.” When Moore modified the construction documents, he also modified the residential listing agreement. Adrienne Rubin “viewed the entire transaction as a package of contracts . . . .”
She also averred, “Because of the actions of Scott Moore and SCCCD, we have been damaged by more than $4 million.” She stated Moore printed fraudulent invoices while he was in his office at Elliman.
DISCUSSION
A. Standards of Review
1. Demurrer
“Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we apply the de novo standard of review in an appeal following the sustaining of a demurrer without leave to amend. [Citation.] We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a
In deciding whether a demurrer was properly sustained, ” ‘[w]e are not bound by the trial court‘s stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.’ [Citation.]” (Center for Environmental Health v. Perrigo Co. (2023) 89 Cal.App.5th 1, 16.) A trial court does not abuse its discretion in sustaining a demurrer without leave to amend when there is no reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiffs have the burden to show that they could state a cause of action if allowed the opportunity to replead. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
2. Summary judgment
The standards for reviewing summary judgments are well established. “Summary judgment is appropriate only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. [Citation.] . . . A defendant moving for summary judgment . . . must show that one or more elements of the plaintiff‘s cause of action cannot be established or that there is a complete defense. [Citation.] The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain
Although we independently consider whether summary judgment was properly granted, ” ’ “it is the appellant‘s responsibility to affirmatively demonstrate error,” ’ and ‘review is limited to issues adequately raised and supported in the appellant‘s brief.’ [Citation.]” (Vasquez v. Department of Pesticide Regulation (2021) 68 Cal.App.5th 672, 685; see also Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 708 [burden is on appellant to establish error, even on de novo review].) De novo review does not require the appellate court to cull the record; “[i]t is the duty of a party to support the arguments in its briefs by appropriate reference to the record . . . .” (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
B. The Trial Court Properly Sustained Elliman‘s Demurrer to the Breach of Fiduciary Duty Cause of Action
1. Additional background
In their breach of fiduciary duty cause of action, plaintiffs allege Elliman “should have been overseeing” Moore and SCCCD.
On appeal, plaintiffs seek leave to amend their second amended complaint to add the following allegations to their breach of fiduciary duty cause of action:
- The October 20, 2015 listing agreement between plaintiffs and Moore and Klein reduced the agent‘s listing commission because of increased cost in the construction project. The listing agreement stated that this “serve[s] to provide Seller with an additional tool to compel Broker to provide proceeds from its commission to satisfy all or a portion of any outstanding Contractor liabilities related to Construction in the event Contractor has not fulfilled its financial obligations prior to the commencement of escrow.” Moore, Klein, and Adrienne Rubin signed the listing agreement.
- Moore‘s e-mail signature block included references to both BBSRE and Douglas Elliman Real Estate. Further, “[e]mails with these signature blocks were used for construction related communications.” This signature continued even though the “Vice President of Compliance[ ] at Teles Properties flagged the signature blocks to be in violation of Department of Real Estate regulation for combining BBS Real Estate with Teles Properties.”
- BBS‘s website stated, “We Buy, Build, and Sell your home. Within our team, you get the respected broker with
exclusive listings and the builder with 15 years of development experience.”
The trial court sustained Elliman‘s demurrer to the breach of fiduciary duty cause of action because as a broker, Elliman was not required to oversee the construction. “There is nothing in the contracts indicating that [Elliman] knowingly undertook or agreed to oversee the construction activities of Moore or at the property generally. Additionally, [Elliman] persuasively notes that such duties are not inherently part of the duties of a broker, nor is there any allegation that [Elliman] doubles as a general contractor.” The court continued: “All of [the] alleged wrongdoing relates to work done under the various construction contracts; none of it goes to the listing contracts to which [Elliman] was a party.” “Because the alleged breach of fiduciary duty is only based on the general contractor duties, there needs to exist a fiduciary duty to oversee general contractor-related things. The statutory broker duties simply do not extend that far.” “Operation out of the same office cannot extend a fiduciary duty related to construction without more.”
2. Analysis
On appeal, plaintiffs argue Elliman “owed the Rubins a ‘duty to assure that Moore and SCCCD properly hired competent superintendents and subcontractors and assure that the billings that were provided to the Rubins were truthful, accurate, and after being provided, paid, to be sure that the superintendents placed on the project did not allow persons to steal materials from the jobsite, or to fraudulently bill for labor not incurred on the site.’ ” The argument is unpersuasive because Elliman‘s fiduciary duties did not involve construction of the Property. Instead, its duties were limited to the sale of the Property, for
“A fiduciary relationship is ’ “any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence can take no advantage from his acts relating to the interest of the other party without the latter‘s knowledge or consent. . . .” ’ [Citations.]” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29.) “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) ” ‘[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.’ [Citation.]” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386 (City of Hope).)
A construction contractor is not a fiduciary. (California Taxpayers Action Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115, 138.) Plaintiffs do not allege Moore or SCCCD breached a fiduciary duty. The basis of plaintiffs’ claim is the hiring of competent superintendents and subcontractors and assuring that invoices are accurate. These activities relate to construction of the Property, not its sale.
appeal: “Elliman is a real estate brokerage licensed under California law to assist its clients, members of the public, in real estate transactions.” (Italics added.) Assuming the truth of plaintiffs’ allegations, including those described above in the additional background that plaintiffs seek to add for the first time on appeal, the broker-client fiduciary relationship does not include a fiduciary duty to oversee construction on the Property or SCCCD‘s hiring of personnel. No allegation — including those in the second amended complaint and those in plaintiffs’ supplemental brief on appeal — supports the conclusion that Elliman knowingly undertook to act on behalf of plaintiffs for their benefit with respect to the construction. (City of Hope, supra, 43 Cal.4th at p. 386.)
Plaintiffs rely on Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741 to argue the trial court erred in sustaining Elliman‘s demurrer to their breach of fiduciary duty claim. The issue in that appeal from the grant of summary judgment was whether defendant Coldwell Banker was liable for purported misrepresentations about a property by a real estate broker who “independently owned and operated a Coldwell Banker franchise.” (Id. at p. 743.) The appellate court rejected liability for a franchisee‘s misrepresentations on a respondeat superior theory. It reasoned the franchisee held out
Here, in contrast to Kaplan, plaintiffs do not seek to hold Elliman liable for any misrepresentation in the context of a real estate transaction.
In their supplemental brief, plaintiffs cite to
C. The Trial Court Properly Summarily Adjudicated the Negligent Supervision Cause of Action
1. Additional background
According to plaintiffs, Elliman had knowledge of the BBS program and knew or should have known Moore operated SCCCD out of the Elliman office, and knew or should have known Moore marketed his construction services alongside his real estate services. One or more plaintiffs attended meetings about the BBS program at Elliman‘s office. Moore held himself out as a broker, contractor, and lawyer. Elliman “chose to be an active participant in the [BBS] program and therefore was obligated to supervise and oversee its implementation.” Elliman stood to gain
The trial court ruled that a cause of action for negligent supervision requires a showing that the person in a supervisorial position had prior knowledge of the actor‘s propensity to do a bad act. The trial court found no evidence Elliman had knowledge Moore defrauded clients. The trial court also concluded, “[A]bsent some reason to believe that [Elliman] was negligent, there can be no cause of action for negligent supervision or any other form of negligence.”
2. Analysis
On appeal, plaintiffs assert their negligent supervision cause of action IS CLOSELY TIED to the breach of fiduciary duty cause of action.8 (Boldface, underscoring & capitalization omitted.) Plaintiffs argue that the “trial court gave too little weight to the undisputed facts that Elliman and Moore engaged in and marketed to the Rubins the Buy Build Sell program, especially where Elliman participated in marketing events directed to the Rubins, allowed for its operation under the roof of Elliman, had its listing contracts packaged with the construction contracts, and had no policies or procedures in place to safeguard the Buy Build Sell program from the Rubins and other consumers.” Without citation to authority, plaintiffs assert,
Negligence, including negligent supervision, requires the existence of a legal duty. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff‘s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza, supra, at pp. 1339-1340.)
Elliman had a duty to supervise Moore‘s conduct when he acted as an Elliman licensed associate. (Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024, 1036 [“Brokers . . . are required to supervise the activities of their salespersons and may be disciplined and held liable based on salespersons’ conduct within the scope of their employment.“].)
Moore‘s construction activities, including the alleged improper construction billing, are not within Moore‘s scope of work described in the Moore/Elliman employment agreement and plaintiffs cite no legal authority in support of a duty on Elliman‘s part as to Moore‘s construction activities. Plaintiffs concede they were aware that SCCCD, not Teles or Elliman, would be responsible for the construction. In her declaration, Adrienne Rubin admits Moore told her “we would buy the real property through his brokerage, Teles Properties . . . and that Mr. Moore, who was a licensed contractor owning . . . SCCCD . . . would improve the property, and then Mr. Moore and Teles [which was purchased by Elliman] would list the property for sale at a profit.”
To the extent plaintiffs argue Elliman had a duty to tell plaintiffs it was not supervising construction, plaintiffs again cite no legal authority supporting such a contention. We decline to consider an argument unsupported by legal authority. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“When legal argument with citation to authority is not furnished on a
In short, plaintiffs offer no evidence supporting the first element of negligence — legal duty. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [element of negligence includes duty].) Without showing that Elliman had a legal duty to supervise the construction at the Property, plaintiffs cannot state a viable cause of action that Elliman was negligent in supervising the construction. The trial court did not err in summarily adjudicating this cause of action.
D. The Trial Court Properly Summarily Adjudicated the Fraud Cause of Action
1. Additional background
Plaintiffs allege they trusted Elliman “would be overseeing their broker in this transaction.” Plaintiffs further assert, “MOORE and SCCCD without the consent of the Plaintiffs, contracted with persons to overbill, to divert funds and divert materials away from the jobsite, causing the Plaintiffs to incur damages . . . .” As to Elliman, they allege, “ELLIMAN, as broker, is liable for the tortious actions of its agent/broker MOORE performed under their supervision and control.”
The trial court ruled for Elliman to be vicariously liable for Moore‘s fraud, “plaintiffs must establish at least a triable issue of fact that Moore was acting in his capacity as a real estate agent for [Elliman] when [he] committed the torts. But he was not. He was acting in his capacity as the contractor.”
On appeal, plaintiffs argue there are material issues of disputed fact as to whether the BBS program was within Moore‘s scope of employment with Elliman. Plaintiffs identify no evidence supporting that contention.
It was undisputed Moore created BBSRE in 2014 as “a marketing model that stands for Buy, Build, Sell.” Elliman employed Moore in 2018 as an Associate-Licensee to engage in those activities requiring a real estate broker license. Plaintiffs appear to contend Elliman‘s knowledge of Buy, Build, Sell, or Elliman‘s allowing Moore to use Elliman‘s office space for construction related activities brought the construction activities within Moore‘s scope of employment at Elliman. Plaintiffs cite no cogent authority supporting that proposition.
Plaintiffs principally rely on Alhino v. Starr (1980) 112 Cal.App.3d 158, 175 (Alhino), but to no avail. There, Alhino owned two parcels of property and Robert Senjo acted as a real estate agent in connection with the properties’ sale. (Id. at p. 165.) Senjo did not inform Alhino of loans the buyer needed for the downpayment. (Ibid.) Instead, Senjo misrepresented the buyer‘s wealth and encouraged Alhino to accept an unsecured promissory note without an attorney fee or acceleration clause for the remaining purchase price. The buyer defaulted on the promissory note. (Id. at pp. 165, 171-172.) Senjo knew some of his representations regarding the buyer‘s financial status were false. (Id. at p. 173.) The court found misrepresenting information about the buyer was a violation of the real estate agent‘s fiduciary duty and there was substantial evidence Senjo‘s employer ratified Senjo‘s conduct. (Ibid.) The court also held “under the doctrine of respondeat superior,” Senjo‘s employer‘s
Simply put, the fraud in Alhino occurred in connection with the sale of two real properties, and involved misrepresentations within the scope of the real estate agent‘s duties and with the knowledge of the real estate agent‘s employer.
That evidence is missing here. Moore‘s and his affiliated companies’ invoice fraud occurred in the context of construction for which SCCCD was responsible, as reflected in the construction agreements and Moore‘s statement to Adrienne
E. Plaintiffs Do Not Show the Trial Court Abused its Discretion In Denying Them Leave To File a Third Amended Complaint Adding Joint Venture Causes of Action
On appeal, plaintiffs argue the trial court abused its discretion in denying leave to amend the second amended complaint to add causes of action based on a joint venture theory.
In their proposed third amended complaint, plaintiffs deleted Elliman from their breach of contract, fraud, negligent supervision, and breach of fiduciary duty causes of action. Plaintiffs substituted causes of action for fraud, negligence, and breach of the covenant of good faith and fair dealing against Elliman “IN JOINT VENTURE WITH SCCCD AND MOORE.” (Boldface & capitalization omitted.) Plaintiffs assert their “request for leave to amend was based on the same operative set of facts, but as applied to a joint venture theory of liability.”
“We review the denial of a motion for leave to amend for abuse of discretion.” (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000.) ” ’ ” ‘[T]he discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even
Central to its decision to deny plaintiffs’ request to amend their complaint after the court had already ruled against them on summary judgment was plaintiffs’ inadequate delay in seeking to amend. The court‘s reasoning bears reprinting here, particularly its recognition that the general principle of liberal leave to amend has limitations as applied to summary judgment motions: “The law is well settled that if a demurrer is sustained, leave to amend should be granted unless it is plain that no amendment can be made or plaintiff has had a number of chances to amend but has failed to do so in a way that cures the infirmity. . . . California policy suggests that leave ought to be granted liberally to cure mere pleading defects. Summary judgment is different. Summary judgment is a ‘speaking’ motion; it is based on evidence, not allegations. Parties have engaged in discovery that [has] been informed by the pleadings in the case in order to marshal the evidence needed to show that there is no triable issue of material fact (or that there is such an issue). New theories espoused after the motion can render the prior discovery ill-taken or inadequate, meaning that a second motion will need to be granted. That is not to say that a motion to amend can never be granted, but it is to say that the policies do not favor such an amendment to the same degree as a mere pleading
On appeal, plaintiffs offer no rationale for their delay in raising the joint venture theory. Citing Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1664 plaintiffs argue, as they did below, that requests to consider a previously unpleaded issue ” ‘are routinely granted and liberally granted.’ ” Plaintiffs, however, did not make a request to amend until after the court ruled against them on Elliman‘s motion even though they concede their belated proposed amended complaint was not based on any facts they did not have earlier. Indeed, they claim their new joint venture causes of action are based on the same facts as those in the operative pleading.
Plaintiffs cite no case holding that it is an abuse of discretion to deny leave to amend a complaint filed after an adverse order granting summary judgment.11 Contrary to
For all these reasons, we conclude the trial court did not abuse its discretion in denying plaintiffs’ motion to amend given their inadequate delay in waiting until after the trial court issued an order granting summary judgment in defendant‘s favor.12
Judgment in favor of respondent Douglas Elliman of California, Inc. is affirmed. Elliman is entitled to its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
Notes
“(a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers or buyers of, solicits or obtains listings of, or negotiates the purchase, sale, or exchange of real property or a business opportunity.
“(b) Leases or rents or offers to lease or rent, or places for rent, or solicits listings of places for rent, or solicits for prospective tenants, or negotiates the sale, purchase, or exchanges of leases on real property, or on a business opportunity, or collects rents from real property, or improvements thereon, or from business opportunities.
“(c) Assists or offers to assist in filing an application for the purchase or lease of, or in locating or entering upon, lands owned by the state or federal government.
“(d) Solicits borrowers or lenders for or negotiates loans or collects payments or performs services for borrowers or lenders or note owners in connection with loans secured directly or
“(e) Sells or offers to sell, buys or offers to buy, or exchanges or offers to exchange a real property sales contract, or a promissory note secured directly or collaterally by a lien on real property or on a business opportunity, and performs services for the holders thereof.” (