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Willemsen v. Mitrosilis

California Court of Appeals, Fourth District, Third Division

September 24, 2014

RON WILLEMSEN, Plaintiff and Appellant,
v.
ANDREW P. MITROSILIS et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of San Bernardino County, No. CIVRS912024 Ben T. Kayashima, Judge.

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[Copyrighted Material Omitted]

Page 624

COUNSEL

Law Offices of Eric Michael Papp and Eric Michael Papp for Plaintiff and Appellant.

Garrett & Tully, Ryan C. Squire and Scott B. Mahler for Defendants and Respondents.

OPINION

MOORE, J.

Plaintiff and appellant Ron Willemsen, a purchaser of vacant land, sued various parties involved in the sale of the land, including defendant and respondent AppraisalPacific, Inc., the appraisal company hired by Willemsen’s lender. AppraisalPacific, Inc. and its individual appraisers, codefendants and respondents Andrew P. Mitrosilis and Kraig S. Takacs (collectively, the AppraisalPacific Defendants), filed a motion for summary judgment, in which they asserted that Willemsen’s negligent misrepresentation cause of action against them failed as a matter of law. The court granted the motion and Willemsen appeals.

We affirm the summary judgment. Willemsen failed to raise a triable issue of material fact to show the AppraisalPacific Defendants intended to supply information to him to influence his decision whether to buy the property. We also hold the trial court did not abuse its discretion in denying Willemsen’s request for leave to file an amended complaint to assert a cause of action for breach of third party beneficiary contract.

I

FACTS

In his first amended complaint, Willemsen alleged as follows: On February 27, 2007, he entered into a written contract to purchase 4.83 acres of vacant land in San Bernardino County from Avista Development, LLC (Avista). Real estate broker Nicholas Quackenbos, his partner Richard Bell, and their partnership, Quackenbos-Bell Commercial Real Estate (collectively, the Quackenbos-Bell Defendants), were the dual agents of Willemsen and Avista with respect to the sale. Willemsen asserted that the Quackenbos-Bell Defendants failed to properly draft the purchase agreement so as to correctly articulate his contingencies, passed along material misstatements without investigation, and made material misstatements of their own. In so doing, he

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said, they breached their fiduciary duties to him and committed negligence, with the result that he was left with a piece of property that was not suitable for his intended purpose.[1]

In addition to the foregoing, Willemsen asserted a cause of action for negligent misrepresentation against the AppraisalPacific Defendants. He alleged that: (1) his lender had hired them to perform an appraisal of the property; (2) they knew he, or the class of persons to which he belonged, would rely on the appraisal to determine the value of the property; and (3) they intended for him to rely on the valuation in obtaining financing from the bank. Willemsen further alleged that the property value stated in the appraisal was in excess of the true value of the property, that the AppraisalPacific Defendants had failed to account for either an earthquake fault line running across the property or the loss of land that would be suffered when a local government entity ran a planned road over the property, and that his reliance on the appraisal was a substantial factor in causing him monetary harm.

In response, the AppraisalPacific Defendants filed a motion for summary judgment. They asserted that: (1) by June 2007, Willemsen’s contingencies under the purchase agreement had expired; (2) on July 3, 2007, his lender, Farmers and Merchants Bank (the bank), retained the AppraisalPacific Defendants to perform an appraisal of the property in connection with its underwriting of the loan; (3) on July 25, 2007, the appraisal was issued; and (4) on August 15, 2007, the escrow closed.

The AppraisalPacific Defendants claimed Willemsen’s cause of action for negligent misrepresentation failed as a matter of law because: (1) Willemsen was not the intended beneficiary of their appraisal; (2) Willemsen could not establish that he justifiably relied on the appraisal; and (3) neither they nor the lender intended the appraisal to influence Willemsen’s decision to buy the property.

The trial court granted the motion. The court’s reasoning is reflected in the reporter’s transcript. The court stated the evidence showed that the appraisal was prepared for the bank’s underwriting purposes and that Willemsen was only an incidental beneficiary with respect to the appraisal. It further stated Willemsen had offered no evidence sufficient to raise a triable issue of material fact to the contrary. The court also acknowledged the AppraisalPacific Defendants’ argument that Willemsen could not have relied on the appraisal, though the court did not specifically state whether it was basing its decision in any part on that argument.

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II

DISCUSSION

A. SUMMARY JUDGMENT:


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