Introduction
Wоn Shil Park sued First American Title Company (First American) for mishandling the preparation of a deed of trust on a property Park sold. First American’s motion for summary judgment was granted on the ground Park could not prove damages.
Park’s opposition to the motion did not raise a triable issue of material fact. The trial court did not err in sustaining certain evidentiary objections or in denying Park’s request tо continue the hearing on the motion. We therefore affirm.
Statement of Facts and Procedural History
Park owned real property in Fresno, California. In March 2006, she sold the property for $7.3 million, taking back a second deed of trust securing a purchase money note in the amount of $2.45 million. First American, the escrow holder for the transaction, prepared the grant deed, the purchase money note, and the deеd of trust securing Park’s note. The buyers failed to make payments on Park’s note, and, in September 2006, at Park’s request, First American prepared a notice of default.
In late December 2006, First American informed Park that the deed of trust contained a defect, in that it named the individual buyers as trustors, while the grant deed identified the buyers’ corporation as the entity holding title to the property. First American assured Park it had the authority to proceed with a scheduled trustee’s sale despite the defect in the deed of trust. First American nevertheless encouraged Park to accept an offer by the buyers to a stipulated reformation of the deed of trust in exchange for a rollover of the unpaid balance of the note, and an extension of the note’s term. On Fеbruary 13, 2007, Park refused the buyers’ rollover offer, and proceeded with the trustee’s sale, scheduled for February 23.
On February 15, 2007, Park’s attorney was informed by First American’s vice-president and regional counsel that First American did not have the authority to proceed with the trustee’s sale, and the deed of trust would have to be reformed. After the reformation was complete, First American restarted the foreclosure procedures, and scheduled a trustee’s sale for July 24, 2007. The buyers filed for bankruptcy one day before the scheduled sale, causing the trustee’s sale to be cancelled again. The bankruptcy was dismissed in May 2008.
Park sued First American for negligence, fraud, and breach of fiduciary duty. First American filed a motion for summary judgment. The trial court granted First American’s motion, judgment was entered, and Park appealed.
Discussion
I.
Summary Judgment
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” (Merrill v. Navegar, Inc. (2001)
First American moved for summary judgment, in part, оn the ground that Park could not establish damages, because there was no triable issue of material fact regarding the existence of a bona fide purchaser at the time of the noticed February 2007 foreclosure sale. First American’s separate statement set forth as undisputed facts that Park had not identified any ready, willing, and able buyers who could and would have purchased the property had the foreclosure sale occurred as originally noticed in February 2007.
Park opposed the motion, claiming there were triable issues of material fact regarding the alleged lack of damages: “Plaintiff has identified Ms. Si Oak Kim, a bona fide purchaser who was ready, willing, and financially able to purchase the property at a trustee’s sale held in 2007, or at a subsequent sale in 2007, for a purchase price of up to $6.8 million.” In opposition to the motion, Park submitted her own declaration, and the declarations of her
First American objected to the following statement from Attorney Kim’s declaration: “[The broker] confirmed the existence of numerous buyers for the property in 2007 and identified one such buyer as [the prospective buyer].” First American also objected to the following paragraph from the broker’s declaration: “Among those buyers, [the prospective buyer] was the one who was a ready, willing and financially able buyer who was intent on purchasing the [property because she was looking for a property that would enable her to obtain a permanent resident status in the United States. As a successful developer in South Korea, she was very interested in the [property because of the large vacant lot that was part of the [property, which she planned on developing.” First American’s objections were based on the grounds of lack of personal knowledge, lack of foundation, assumption of facts not in evidence, and hearsay. The trial court sustained First American’s objections.
The trial court’s minute order granting the motion for summary judgment reаds, in relevant part, as follows: “Defendant met its initial burden of proof and Plaintiff failed to present admissible evidence of the existence of a bona fide purchaser at the time Plaintiff initially desired to foreclose. Disputed Facts 46, 47 and 56 reference supporting evidence. Plaintiff cannot make out the element of damages to support any of the claims.”
On apрeal, Park argues her declaration and the admitted portions of the broker’s declaration created a triable issue of material fact. Park also argues the trial court erred in sustaining the evidentiary objections to the declarations of Attorney Kim and the broker. Finally, Park argues that if the evidence she presented was insufficient, the court should have granted her requеst for a continuance to permit her to obtain a declaration from the prospective buyer. We address each argument in turn.
The Trial Court Did Not Err in Determining Park Had Failed to Show the Existence of a Triable Issue of Material Fact.
The parties agree that the issue before the trial court was whether Park had presented admissible evidence that there was at least one ready, willing, and able buyer who would hаve purchased the property but for the delay in the foreclosure proceeding resulting from the error in the deed of trust. The trial court did not err in granting the motion for summary judgment because Park did not establish the existence of a triable issue of disputed material fact regarding (1) a contract between herself and a potential buyer, or an offer from a potential buyer, tо purchase the property on Park’s terms, or (2) any potential buyer who had the financial ability to satisfy Park’s terms. The parties agree that a ready, willing, and able buyer was required to prove damages. As we describe, the law so requires.
A. Contract or Offer to Purchase
“ ‘In this state it is well established, 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 ... he has produced a person who is ready, willing, and able to purchase the property 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 оf 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. . . .’ [Citation.]” (R. J. Kuhl Corp. v. Sullivan (1993)
In a different context, a junior lienholder alleging a senior lienholder’s interference with a foreclosure sale resulting in loss of profits to the junior lienholder must show that a buyer would have purchased the property but for the interference. “In order to prove it was damaged by the irregularities in the foreclosure sale which dissuaded or prevented a higher bid, the junior lienor would have to produce a ready, willing and able buyer who would have paid the higher price but for the wrongful conduct. Otherwise, damages alleged would be speculative.” (FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989)
The need to prove an existing relationship with an identifiable buyer in a case of tortious interference with prospective economic advantage is analogous to the need to prove the existence of a ready, willing, and able buyer in the present case. In Lowell v. Mother’s Cake & Cookie Co. (1978)
B. Financial Ability of the Buyer
“That [the buyers] may have been ready and willing to buy is not enough. There must have been ability to pay and the burden is on the broker to show the financial ability of his vendees.” (Herring v. Fisher (1952)
C. Park Failed to Establish the Existence of a Triable Issue of Material Fact.
As noted ante, First American met its initial burden of showing that the element of damages could not be established, shifting the burden of production to Park. However, the declarations submitted by Park in opposition to the motion for summary judgment failed to set forth evidence showing that a triable issue of material faсt existed as to the element of damages.
As discussed ante, Park was required to show a potential buyer was ready, willing, and able to purchase the property. Neither Park’s nor the broker’s declaration showed the prospective buyer made an offer, entered into a contract of sale, obtained a cashier’s check, or took any equivalent step that would have demonstrated she was ready, willing, and able to purchase Park’s property. The broker’s statement that the prospective buyer “was prepared to pay up to $6.8 million for the [property” did not meet these requirements.
Notably, the declarations of Park and the broker failed to show the prospective buyer was financially able to purchase the property. The brоker declared the prospective buyer “was prepared to pay up to $6.8 million for the [property.” He did not assert that the prospective buyer had obtained financing for the sale or preapproval for a loan. Neither did he state that the prospective buyer had sufficient funds to purchase the property in cash. In any event, a broker’s statement that its client is “prepared to pay up to” a given amount is only a statement of a professional opinion about what the property would be worth to a client and does not amount to a declaration of financial status. (See generally Diamond v. Fay (1913)
The Trial Court Did Not Err in Sustaining First American’s Objections to Portions of the Declarations of Attorney Kim and the Broker.
We review the trial court’s evidentiary ruling for abuse of discretion. (Carnes v. Superior Court (2005)
Even if the trial court erred in sustaining the objections, the error was harmless. Neither Attorney Kim’s nor the broker’s declaration shows the existence of a contract of sale or an offer to purchase the рroperty, nor does either show the prospective buyer’s financial ability to purchase the property at any specific price.
IV.
The Trial Court Did Not Err in Refusing Park’s Request to Continue the Summary Judgment Hearing.
Park argues that if she failed to offer sufficient evidence to establish a triable issue of material fact as to the existence of a bona fide purchaser for the property, the trial court should have granted her request for a continuance of the hearing on the summary judgment motion to obtain a declaration from the prospective buyer. “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the oppositiоn response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).)
Although the trustee’s sale occurred in April 2008, Park did not attempt to obtain the identities of any prоspective buyers until January 2010, when Attorney Kim left a voice mail message for the broker. The voice mail message was not returned until May 3, 2010; Attorney Kim did not provide any information about other attempts to identify any prospective buyers during the intervening four months. Park also does not explain why she did not request a continuance in an affidavit or declaration when she filed her oppоsition to the summary judgment motion on May 21, 2010, rather than waiting to make an oral request for a continuance at the hearing on June 4, 2010. The trial court did not err in denying the request to continue the hearing.
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
Bedsworth, Acting P. J., and Ikola, J., concurred.
Notes
Undisputed fact No. 46 of First American’s separate statement reads as follows: “[PJlaintiff failed to identify any prospеctive buyers who made bona fide purchase offers.” Undisputed fact No. 47 reads as follows: “Plaintiff has also failed to produce any documents identifying prospective purchasers for the trustee’s sale scheduled for February 23, 2007 despite requests for such documents.” Finally, undisputed fact No. 56 reads as follows: “[P]laintiff never identified those prospective buyers [(represented by licensed real estate brokers expressing interest in acquiring the subject property)] in her discovery responses nor did she identify them in her deposition.”