Filed 8/21/20 Hernandez v. Mang Yip Group Arrowhead Country Club, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ROBERT HERNANDEZ,

Plaintiff and Appellant,

v.

MANG YIP GROUP ARROWHEAD COUNTRY CLUB, INC.,

Defendant and Respondent.

E072022

(Super.Ct.No. CIVDS1723174)

OPINION

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed.

Julie N. Nong; The Hemming Firm and Krista R. Hemming for Plaintiff and Appellant.

Fullerton, Lemann, Schaefer & Dominick, Wilfrid C. Lemann and David P. Colella for Defendant and Respondent.

In a first amended complaint (FAC) Robert Hernandez (Hernandez) sued Mang Yip Group Arrowhead Country Club, Inc. (Mang Yip) for (1) breach of contract; (2) specific performance; (3) breach of the implied covenant of good faith and fair dealing; and (4) intentional interference with contractual relations. The trial court sustained Mang Yip’s demurrer without leave to amend. Hernandez contends the trial court erred by denying him leave to amend. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. FAC

1. STATEMENT OF FACTS

In the Statement of Facts in Hernandez’s FAC, he alleged the following: Arrowhead Country Club, Inc. (Arrowhead) owned a country club. On March 24, 2015, Thee Aguila, Inc. (Thee Aguila) entered into two contracts with Arrowhead. One contract was for Thee Aguila to purchase the real property associated with the country club. The second contract was for Thee Aguila to purchase the business and inventory associated with the country club. The business and inventory sale was contingent upon Thee Aguila obtaining a “City license.” In the business and inventory contract, the “City license” contingency was directly beneath a paragraph discussing liquor licenses. The contracts required that the escrows for the property and the business close simultaneously.

Thee Aguila informed Arrowhead that Hernandez would own and operate the business at the country club upon the close of escrow. Arrowhead consented to Hernandez procuring a liquor license for the future business. Hernandez needed to obtain a public liquor license; Arrowhead held a private liquor license. Hernandez entered into escrow for a public liquor license; Hernandez did not identify the party selling the license. Neighbors of the country club protested the proposed change in ownership of the country club and the proposed public liquor license. The protests delayed the processing of the liquor license. In the meantime, Hernandez “obtained a contractual commitment from Amazon Inc.” for Amazon to host an annual weekend party at the country club starting May 21, 2016. Hernandez obtained a special alcohol permit for the event.

On May 5, 2016, frustrated by the problems associated with the liquor license protests, Arrowhead unilaterally issued cancellation instructions for the two escrows with Thee Aguila. As a result, Hernandez was unable to host the Amazon party. On April 6, 2017, Arrowhead sold the property to Mang Yip.

2. CAUSES OF ACTION

In the FAC, Hernandez’s first cause of action against Mang Yip was for breach of contract. Hernandez alleged he was a third-party beneficiary of the contracts between Thee Aguila and Arrowhead, in which Thee Aguila would purchase Arrowhead’s real property and business assets. Hernandez alleged that Mang Yip enabled Arrowhead’s breach of contract by “agreeing to purchase the Property and Business while its disposition was in legal limbo.”

Hernandez’s second cause of action was for specific performance. Hernandez alleged he had demanded the property be conveyed, but that his demands had been refused by Arrowhead and Mang Yip. Hernandez’s third cause of action was for breach of the implied covenant of good faith and fair dealing. Hernandez alleged: “Termination by Arrowhead of the [Thee Aguila] agreement unilaterally, a contract that directly benefited Hernandez, and subsequent accession to his impending ‘owner’ status by the informed (intermeddling) later . . . Mang Yip[] . . . has truly destroyed, not merely impaired [Hernandez’s] expectations and expenditures to date.”

Hernandez’s fourth cause of action was for intentional interference with contractual relations. Hernandez alleged Mang Yip “clearly knew about the contractual relationship between [Thee Aguila] and Arrowhead and knew of the terms . . . of said purchase sale agreement.” Hernandez further alleged that Mang Yip “willfully and deliberately committed the wrongful acts alleged herein with [the] intent [to] interfere with and disrupt the business relationship between [Hernandez] and the general public as well as the relationship he had with Arrowhead by facilitating the breach of the terms of the purchase/sale agreement of the business located on the property.”

Hernandez sought general damages, “compensation incidental to the decrees of Specific Performance,” punitive damages, attorney’s fees, costs, and any other proper relief.

B. DEMURRER

Mang Yip demurred to Hernandez’s FAC. In the memorandum in support of its demurrer, Mang Yip alleged, “Thee Aguila was in escrow to purchase [the property and business assets] from [Arrowhead]. That transaction stalled, Thee Aguila failed to perform, and Arrowhead cancelled escrow. Thereafter Arrowhead sold the [the property and business assets] to [Mang Yip].”

Mang Yip asserted, “Every contract-related cause of action alleged in the FAC fails because there is no contract to be enforced against [Mang Yip]. Neither Hernandez nor Thee Aguila had a contract with [Mang Yip] and none is alleged in the FAC. Hernandez cannot purport to have ‘third party beneficiary’ status against [Mang Yip] when [Mang Yip] is not a party to any applicable contract.”

In regard to the intentional interference cause of action, Mang Yip contended, “Arrowhead cancelled escrow with Thee Aguila in May 2016, well before [Mang Yip] purchased the [property and business assets] in April 2017.”

C. OPPOSITION

Hernandez opposed the demurrer. Hernandez asserted that he “stood putatively as the ‘real party in interest’ on a desired purchase & operation of the situs which was and is being interfered with. [Hernandez’s] accession to rights of operation was overtly prevented by Mang Yip entities and capable of proofs with witnesses, documentation, et al at trial.”

Hernandez wrote, “[Hernandez] invokes a duty owed by [Mang Yip], with implied privity and some distinct promises and obligations that must have applied in his favor but were summarily ignored and avoided to date. For these reasons he is seeking a full rendition of his legal rights in this action and asks that, based on authorities shown and the case’s unique facts, he be deemed a sufficient third party beneficiary. The demurrer should be overruled as to all causes of action.”

D. REPLY

Mang Yip replied to Hernandez’s opposition. Mang Yip wrote, “The Opposition’s rambling way seems intent on trying to confuse this Court as to the actual contractual relationship of the different players. . . . [¶] It is undisputed that Thee Aguila had a contract with Arrowhead for the purchase of the [property and business assets]. Hernandez never had a contract with Arrowhead (nor does he allege one). Hernandez never had a contract with [Mang Yip] (nor does he allege one). Thee Aguila never had a contract with [Mang Yip] (nor does [it] allege one).”

Mang Yip asserted, “No matter the proposed amendment, this action is doomed to fail.” Mang Yip contended, “Hernandez’s claims are based on the purchase agreement between Thee Aguila and Arrowhead. [Mang Yip] is not a party to that contract. Even if Hernandez were a beneficiary of the Thee Aguila-Arrowhead contract, there is no contract for which [Mang Yip] can be held in breach. There is no contract which can be specifically enforced against [Mang Yip]. There is no contract for which [Mang Yip] can be held to have acted in bad faith. There is no articulable breach by [Mang Yip].”

In regard to the interference cause of action, Mang Yip asserted, “Hernandez cannot show any interference by [Mang Yip] caused the non-performance (the Thee Aguila-Arrowhead contracts were already cancelled for about a year prior to [Mang Yip’s] purchase of the Club.”

E. HEARING

The trial court held a hearing on Mang Yip’s demurrer. Hernandez’s attorney did not attend the hearing but conveyed through Mang Yip’s attorney that Hernandez submitted on the court’s tentative decision. The tentative decision was to sustain the demurrer without leave to amend. The trial court said, “The problem I have with this is no contract existed between any party [to] whom Hernandez was a third-party beneficiary, so how can you get third-party beneficiary if a contract doesn’t exist?” The trial court sustained the demurrer without leave to amend.

DISCUSSION

A. CONTENTION

Hernandez contends the trial court erred by denying him leave to amend. On appeal, Hernandez proposes amending the FAC to include the following statement of facts:

“On or about March 24, 2015, Thee Aguila . . . entered into a written agreement with [Arrowhead] to purchase the real property located at 3433 Parkside Dr., San Bernardino, CA 92404 . . . . A copy of the Property Purchase Agreement is attached as Exhibit ‘A’ and incorporated herein by this reference . . . .

“On or about March 24, 2015, [Thee Aguila] entered into a second written agreement with Arrowhead to purchase the business and inventory located on the Property (the ‘Business’). A copy of the Business Purchase Agreement is attached as Exhibit ‘B’ and incorporated herein by this reference . . . .

“By the terms of the Property Purchase Agreement and the Business Purchase Agreement, escrow for each had to close concurrently. The Business escrow had an additional condition that it could not close until such time as the Department of Alcohol Beverage Control (‘ABC’) authorized the issuance of the liquor license to be used on the Property for the operation of the Business.

“[Thee Aguila] and [Hernandez] informed Arrowhead that [Hernandez] would be its tenant and the owner of the Business upon the close of escrow. Upon receiving this information Arrowhead consented to and authorized [Hernandez] to secure the rights to a liquor license from a third party as Arrowhead’s liquor license was not transferable since it was a private club[’s] license and not the type needed by [Hernandez] to sell alcoholic beverages to the public. On May 29, 2015, upon notification that [Hernandez] had secured the rights to a liquor license from a third party[,] Arrowhead authorized ABC in writing to receive and to process [Hernandez’s] application to use the license he had secured the rights to on the Property and to relinquish Arrowhead[’s] rights to sell alcoholic beverages on the Property to [Hernandez] upon ABC approving [Hernandez’s] liquor license application and issuing a Type 47 license to [Hernandez] for use on the Property, attached as Exhibit ‘C’ and incorporated herein by this reference (the ‘ABC Surrender Agreement’) . . . .

“Upon verifying that ABC would accept [Hernandez’s] application, [Hernandez] purchased the liquor license, paid the ABC application fee and paid vendors to prepare the necessary documentation to support his application.

“As part of the ABC application process all residents within a certain radius of the perimeter of the Property have to be notified of the pending change in ownership of the Business and liquor license. The residents then have an opportunity to protest the issuance of the liquor license to the new owner and request that conditions be imposed by ABC. In this matter there were numerous protests which held up the issuance of the Type 47 license to [Hernandez] for use on the Property.

“After submitting his ABC application and with the assistance of Arrowhead, [Hernandez] was able to obtain certain entitlements for the Property and the Business from the City of San Bernardino and San Bernardino Police Department which greatly enhanced the value of the Property and the Business. [Hernandez] was also able to obtain a contractual commitment from Amazon, with the assistance of Arrowhead, for Amazon’s annual use of the Property which also greatly enhanced the value of [Hernandez’s] business. [Hernandez] with Arrowhead’s consent was able to get a special permit from ABC to hold the first Amazon event scheduled for the weekend of May 21 and 22, 2016, despite the pending resident protest.

“On or about May 5, 2016 Arrowhead, frustrated by the problems caused by the pending resident protest, notified [Hernandez] that it would not allow the scheduled Amazon event to go forward causing damages to [Hernandez] in an amount not yet fully ascertained.

“On May 27, 2016, frustrated by the problems being caused by the pending resident protest, Arrowhead issued cancellation instructions to [Thee Aguila] for the respective escrows without any notice to [Hernandez] and jeopardizing the entitlements that [Hernandez] was able to obtain for the Property and the Business. [Thee Aguila] refused to sign the escrow cancellation instructions.

“On July 21, 2016 ABC approved [Hernandez’s] Petition for Conditional License for the Property and the Business to replace Arrowhead as the license holder for the Property and the Business, attached as Exhibit ‘D’ and incorporated herein by this reference, (proposed exhibit will show approval of a Type 47 license to [Hernandez] by ABC for use on the Property).

“On September 27, 2016, frustrated by the problems being caused by the pending resident protest, which prevented the issuance of the liquor license to [Hernandez] even though [Hernandez’s] application had been approved, Arrowhead notified ABC that it was unilaterally cancelling the ABC Surrender Agreement without [Hernandez’s] consent, attached as Exhibit ‘E’ and incorporated herein by this reference, (proposed exhibit will show admission of agreement between [Hernandez] and Arrowhead for the rights to sell liquor on the Property).

“On or about April 6, 2017 [Hernandez] is informed and believes and thereupon alleges that Arrowhead sold the Property and the Business to . . . Mang Yip in violation of [Hernandez’s] contractual rights to the Property and the Business as an intended third-party beneficiary thereto and the ABC Surrender Agreement.

“[Hernandez] is informed and believes and thereupon alleges that . . . Mang Yip purchased the Property and the Business with actual knowledge of the ongoing dispute between [Thee Aguila], Arrowhead and [Hernandez] and with a complete disregard to [Hernandez’s] interest and rights thereto and with the intent to extinguish [Hernandez’s] rights and interest for their benefit, Purchase and Sales Agreement attached as Exhibit ‘F’ and incorporated herein by this reference.”

B. HERNANDEZ’S REQUEST FOR JUDICIAL NOTICE

Hernandez requests this court take judicial notice of (1) an ABC license action request form completed by Arrowhead (Exhibit C); (2) Hernandez’s petition for a conditional license before the ABC (Exhibit D); and (3) a September 27, 2016, letter from Arrowhead to the ABC, in which Arrowhead writes that it is in the process of selling the country club to Samson Michael (Exhibit E). Mang Yip opposes Hernandez’s request because the “exhibits are irrelevant.”

None of the documents are stamped or otherwise certified by the ABC to indicate they are part of the ABC’s records. (See Evid. Code, §§ 1530-1532 [listing conditions for admissibility of public documents].) Hernandez’s attorney contends the petition (Exhibit D) was received in response to a subpoena issued to the ABC; however, that contention is not set forth in a declaration or affidavit—it is simply part of Hernandez’s request. (See People v. Medina (1990) 51 Cal.3d 870, 890 [counsel made no attempt to authenticate or certify the report or the transcript].)

Hernandez contends this court may take judicial notice of the three documents pursuant to Evidence Code section 452, subdivision (h). That section permits a court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Hernandez does not explain how the three documents qualify as facts or propositions. Hernandez also does not explain how the documents are “capable of immediate and accurate determination.” Given that Hernandez asserted he had to subpoena the ABC to obtain a copy of the Petition, it seems as though the process of verifying the documents would not be immediate. Accordingly, because it is unclear under what authority we could take judicial notice of the three documents, we deny Hernandez’s request.

The three documents that Hernandez submitted are incorporated by reference into his proposed amendment. Incorporation by reference of an exhibit is a permissible method of making factual allegations (Staniforth v. Judges’ Retirement System (2014) 226 Cal.App.4th 978, 992), and a proposed amendment may be made for the first time on appeal (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43).

Accordingly, in order to fully evaluate Hernandez’s proposed amendment, we need to have access to these documents. Hernandez’s proposed amendment is set forth in his appellant’s opening brief, and these documents are incorporated by reference into that proposed amendment. Therefore, we will deem the three documents to be a supplemental brief by Hernandez—a supplemental brief that completes the “incorporated by reference” allegations made in the initial appellant’s opening brief. (See Cal. Rules of Court, rule 8.200(a)(5) [“as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal”].)

C. STANDARD OF REVIEW

“When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] Plaintiff may make this showing for the first time on appeal. [Citations.] [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ ” (Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at p. 43.)

D. BREACH OF CONTRACT

We examine whether Hernandez’s proposed amendment cures the defect in his breach of contract cause of action.

“The elements of a cause of action for breach of contract are: ‘ “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” ’ ” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) “Under California law, only a signatory to a contract may be liable for any breach.” (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452 (Clemens).)

In the FAC, within the breach of contract cause of action, Hernandez identified the contracts at-issue as the two contracts between Thee Aguila and Arrowhead. In Hernandez’s proposed amendment, he alleges “Thee Aguila . . . entered into a written agreement with Arrowhead to purchase the real property located at . . . .” Also in the proposed amendment, Hernandez alleges, “[Thee Aguila] entered into a second written agreement with Arrowhead to purchase the business and inventory located on the Property.”

The contracts that Hernandez relies upon for his breach of contract claim are between Thee Aguila and Arrowhead. Mang Yip was not a party to either contract. Because Mang Yip was not a party to either contract, Mang Yip cannot be liable for breaching the contracts. (Clemens, supra, 193 Cal.App.3d at p. 452 [“Under California law, only a signatory to a contract may be liable for any breach”].) Accordingly, we conclude Hernandez’s proposed amendment does not cure the defect in the breach of contract cause of action.

Hernandez asserts that, in the proposed amendment, he “clearly alleged that [Hernandez] was a designated third party beneficiary.” Assuming, without deciding, that Hernandez was a third-party beneficiary of the contracts between Thee Aguila and Arrowhead, Hernandez’s breach of contract cause of action fails. A third-party beneficiary “may bring a breach of contract action against a party to a contract.” (Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 821.) In Hernandez’s proposed amendment, he fails to allege that Mang Yip was a party to the contracts between Thee Aguila and Arrowhead. Mang Yip cannot breach a contract to which Mang Yip was not a party. (Clemens, supra, 193 Cal.App.3d at p. 452 [“Under California law, only a signatory to a contract may be liable for any breach”].) Therefore, assuming Hernandez is a third-party beneficiary of the contracts between Thee Aguila and Arrowhead, his amendment does not cure the defect in the breach of contract cause of action because Mang Yip was not a party to those contracts and thus cannot be liable for breach of those contracts.

E. SPECIFIC PERFORMANCE

We examine whether Hernandez’s proposed amendment cures the defect in his specific performance cause of action.

Specific performance is a remedy for a breach of contract. (Rogers v. Davis (1994) 28 Cal.App.4th 1215, 1218, fn. 2.) Therefore, “[t]o obtain specific performance, a plaintiff must make several showings, in addition to proving the elements of a standard breach of contract.” (Darbun Enterprises, Inc. v. San Fernando Community Hospital (2015) 239 Cal.App.4th 399, 409, fn. omitted.)

In Hernandez’s proposed amendment, Hernandez does not allege that Mang Yip was a party to the contracts between Thee Aguila and Arrowhead. Therefore, Hernandez’s breach of contract claim against Mang Yip fails. (See Clemens, supra, 193 Cal.App.3d at p. 452 [“Under California law, only a signatory to a contract may be liable for any breach”].) Because Hernandez’s proposed amendment does not cure the defect in the breach of contract cause of action, the connected claim for specific performance also fails. (See Rogers v. Davis, supra, 28 Cal.App.4th at p. 1218, fn. 2 [specific performance is a remedy for a breach of contract].)

F. IMPLIED COVENANT

We examine whether Hernandez’s proposed amendment cures the defect in his cause of action for breach of the implied covenant of good faith and fair dealing.

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.) “There is no obligation to deal fairly or in good faith absent an existing contract. [Citations.] If there exists a contractual relationship between the parties . . . the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract.” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032.)

In Hernandez’s proposed amendment, Hernandez does not allege that Mang Yip was a contracting party in the contracts between Thee Aguila and Arrowhead. As a result, Mang Yip had no obligation to deal fairly or in good faith. Therefore, Hernandez’s proposed amendment does not cure the defect in the cause of action for breach of the implied covenant of good faith and fair dealing.

G. INTENTIONAL INTERFERENCE

Next, we examine whether the proposed amendment cures the defect in Hernandez’s cause of action for intentional interference with contractual relations.

“The elements of a cause of action predicated on interference with contract are well defined. Accordingly, in order to plead an actionable wrong under this theory, plaintiff must allege that (1) he had a valid and existing contract; (2) the defendant had knowledge of the contract and intended to induce its breach; (3) the contract was in fact breached by the contracting party; (4) the breach was caused by the defendant’s unjustified or wrongful conduct; and (5) the plaintiff has suffered damage [citations].” (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 995.)

In Hernandez’s proposed amendment, he alleges, “On May 27, 2016, frustrated by the problems being caused by the pending resident protest, Arrowhead issued cancellation instructions to [Thee Aguila] for the respective escrows without any notice to [Hernandez] and jeopardizing the entitlements that [Hernandez] was able to obtain for the Property and the Business.” Thus, Hernandez alleges that Arrowhead breached the contracts due to frustration with “the problems being caused by the pending resident protest.” Hernandez’s proposed amendment does not reflect that an action by Mang Yip caused Arrowhead to cancel the escrow instructions.

Further, the timeline alleged by Hernandez does not support his cause of action. In the proposed amendment, Hernandez alleged (A) that Arrowhead canceled escrow with Thee Aguila on May 27, 2016; and (B) on information and belief, that Mang Yip purchased the property on April 6, 2017. In Hernandez’s proposed amendment, he incorporated by reference a letter dated September 27, 2016, from Arrowhead to the ABC. In the letter, Arrowhead wrote that it was in the process of selling the country club to Samson Michael.

Given that (1) Arrowhead’s cancellation of escrow occurred approximately 11 months before Mang Yip’s acquisition of the property, and (2) four months after the cancellation of escrow, Arrowhead was planning to sell the property to someone other than Mang Yip, it does not appear that Mang Yip was actively purchasing the property and business at the time Arrowhead canceled the escrow with Thee Aguila. (See generally Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 256 [a court may make reasonable inferences from the allegations].) For the foregoing reasons, the proposed amendment does not cure the defect in the intentional interference cause of action.

H. ASSIGNMENT

In Hernandez’s appellant’s reply brief, he writes that Mang Yip “willfully ignor[es] [Hernandez’s] remedy against [Mang Yip] as Arrowhead’s assignee.” In the brief it is unclear what Hernandez is alleging was assigned to Mang Yip. At oral argument in this court, Hernandez explained that Mang Yip was the assignee of Arrowhead’s right to sell liquor at the country club. Hernandez contended this case should be remanded to the trial court so that it may be joined with Hernandez’s pending case against Arrowhead.

Our understanding of Hernandez’s assignment theory of liability is as follows: Hernandez was a third-party beneficiary of the contracts between Thee Aguila and Arrowhead. Arrowhead cancelled the two escrows. Four months later, Arrowhead sought to sell the country club to Samson Michael. Approximately 11 months later, Mang Yip purchased the country club and is selling alcohol there. Hernandez believes Mang Yip bears liability as assignee of Arrowhead’s right to sell alcohol.

We do not find Hernandez’s theory to be persuasive because he failed to explain how these allegations are distinguishable from the intentional interference allegations. It appears Hernandez is alleging that Mang Yip interfered by being an assignee. Labeling Mang Yip as the assignee of the right to sell alcohol at the property does little to explain how Mang Yip interfered, particularly when looking at the timeline alleged by Hernandez. Because Hernandez failed to explain how he was harmed by Mang Yip, and the timeline reflects Mang Yip did not purchase the country club at or near the time escrow was canceled, we will not remand the case.

I. CONCLUSION

In sum, Hernandez’s proposed amendment does not cure the defects in the FAC.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.