Case Name: Vinh Duc Nguyen v. Vallco Shopping Mall, LLC, et al.
Case No.: 2013-1-CV-245854

Currently before the Court are: (1) defendant Vallco Shopping Mall, LLC’s (“Vallco”) motion for summary judgment or, in the alternative, summary adjudication of the first, second, fifth, and seventh causes of action in the fifth amended complaint (“FAC”) of plaintiff Vinh Duc Nguyen (“Plaintiff”) and (2) defendant Lap Tang’s (“Tang”) motion for summary judgment or, in the alternative, summary adjudication of the third, fourth, sixth, and seventh causes of action in the FAC.

I. Factual and Procedural Background

This action arises out of a contract dispute related to the sale of real property commonly known as the Vallco Shopping Mall (the “Mall”). As relevant here, Plaintiff alleges the following in the operative FAC: On August 2, 2011, Vallco and Plaintiff entered into a listing agreement, under which Plaintiff had the exclusive right to list and sell the Mall with a minimum sales price of $100 million. (FAC, ¶ 9.) Under the terms of the agreement, Vallco agreed to pay Plaintiff a commission of 6 percent of the sales price. (FAC, ¶ 9.) With the assistance of his agent Marcus & Millichap (“M & M”), Plaintiff identified nine prospective purchasers, including the eventual purchaser, Peter Pau (“Pau”) by the end of August. (FAC, ¶ 12.) To complete his due diligence concerning the property, Pau requested additional information regarding the shopping center’s financial situation. (FAC, ¶¶ 14, 20.) Though Vallco promised to provide Plaintiff with this information, they did not do so. (FAC, ¶ 16.) In late September 2011, in reliance on his belief that the parties had entered into an exclusive listing agreement, Plaintiff informed Vallco of five of the nine potential buyers and arranged meetings and conference calls with these potential purchasers. (FAC, ¶ 18.)

In November 2011, Plaintiff received a letter from Vallco’s attorney purportedly terminating the agreement. (FAC, ¶ 23.) Vallco told him to ignore the letter and to continue working on its behalf. (FAC, ¶24.) In March 2012, Plaintiff learned that Tang and Vallco (collectively “Defendants”) were independently contacting the prospective purchasers he had identified. (FAC, ¶ 27.) At that time, Pau told Plaintiff that he had been contacted by another broker who purportedly had an exclusive agreement to sell the property. (FAC, ¶ 28.) On April 10, 2012, Vallco confirmed to Pau that Plaintiff was the only agent with exclusive authority to sell the Mall. (FAC, ¶ 30.) In May 2012, Pau told Plaintiff that he would make an offer, but required a longer due diligence period than Vallco desired. (FAC, ¶ 34.) Pau then stopped communicating with Plaintiff. (FAC, ¶ 34.) Vallco subsequently sold the shopping center to Pau two years later. (FAC, ¶ 38.) After the sale of the property, Vallco refused to pay Plaintiff his commission. (FAC, ¶ 39.)

The FAC asserts nine causes of action against Defendants for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference with contractual relations; (4) intentional interference with prospective economic advantage; (5) fraud; (6) fraud; (7) violation of Business and Professions Code section 17200 (the “UCL”); (8) misappropriation of trade secrets; and (9) unjust enrichment.

On April 29, 2016, Defendants filed the instant motions for summary judgment or, in the alternative, summary adjudication. Plaintiff filed his oppositions on June 30, 2016. On July 8, 2016, Defendants filed their reply briefs.

II. Summary of Evidence

A. Defendants’ Evidence

In support of their motions, Defendants present the following relevant evidence: In July 2011, Nguyen represented to Vallco that he had a buyer who was ready to make an offer to purchase the Mall. (Defendants’ Separate Statement of Undisputed Material Fact (“UMF”) No. 6.) Plaintiff presented several draft listing agreements by which he would act as the exclusive agent for Vallco. (Defendants’ UMF No. 9.) Vallco objected to several portions of the draft agreements, including the term exclusive and a provision that it would “provide information about the Property to Broker and will cooperate with Broker in the marketing” of the Property. (Defendants’ UMF Nos. 10-11.) On August 2, 2011, the parties entered into a listing agreement, excluding the objectionable term and provision. (Defendants’ UMF No. 13.)

On September 26, 2011, Vallco informed Plaintiff that it wanted to enter into a new listing agreement with a fixed date of expiration. (Vallco’s UMF No. 20.) Until the parties entered into a new agreement, Vallco refused to provide financial information to Plaintiff. (Vallco’s UMF No. 21.) Unable to reach agreement, Vallco’s attorney sent a letter to Plaintiff terminating the original listing agreement on November 16, 2011. (Vallco’s UMF No. 25.) After Plaintiff questioned the attorney’s authority to terminate the listing, Vallco’s manager, N. Tram, confirmed on January 4, 2012 that the listing agreement was terminated. (Vallco’s UMF No. 27.)

Despite the termination of the listing agreement, Nguyen and M & M arranged a telephone conference with Vallco and Pau on April 10, 2012. (Vallco’s UMF No. 33.) During the telephone conference, Pau rejected Vallco’s request for an offer within two weeks and a short closing period. (Vallco’s UMF No. 35.) After that teleconference, Nguyen and M & M were no longer involved in negotiating for the purchase of the Mall. (Vallco’s UMF No. 36.)

Subsequently, Pau hired Ephraim Luzon (“Luzon”) to act as his broker with respect to the transaction. (Vallco’s UMF No. 39.) After negotiating for several months Pau and Vallco reached an impasse in October 2012 with Pau insisting that he would not negotiate further. (Vallco’s UMF No. 43.) In particular, he was concerned about receiving the cooperation of the adjoining properties and the city concerning the redevelopment of the property. (Vallco’s UMF No. 44.) The Mall and three adjoining properties share parking and are governed by a reciprocal easement contract imposing certain restrictions on development. (Defendants’ UMF Nos. 3-4.) Though interest in purchasing the Mall and the adjoining properties together, Pau was not interested in purchasing them separately given the existence of this contract. (Defendants’ UMF No. 18.) Negotiations continued in fits and starts until Pau acquired ownership over the adjoining properties in October 2014. (Vallco’s UMF Nos. 46-49.) At that time, Pau and Vallco signed an option agreement for a price of $116 million. (Vallco’s UMF No. 49.)

Meanwhile, Vallco had previously asked Tang to assist it in finding a purchaser for the mall. (Defendants’ UMF No. 75.) On September 10, 2011, Tang agreed to forward any offer to purchase the Mall to Vallco but did not contact any purchasers. (Defendants’ UMF Nos. 77, 88.) Tang also offered to provide Plaintiff with financial information concerning the Mall in return for a fee. (Defendants’ UMF No. 80.) Plaintiff refused to pay Tang’s fee. (Defendants’ UMF No. 81.)

B. Plaintiff’s Evidence

In support of his opposition to the motion, Plaintiff provides the following relevant evidence:

In September 2011, Pau requested financial information concerning the Mall. (Plaintiff’s UMF No. 19.) Plaintiff repeatedly requested Vallco’s financial information, which Vallco promised it would provide. (Plaintiff’s Additional UMF No. 3.) Eventually, Vallco offered to provide the financial information in return for the names of the prospective purchasers. (Plaintiff’s Additional UMF No. 5.) In reliance on the representation that Vallco would provide these documents, Plaintiff disclosed the names of the purchasers. (Plaintiff’s Additional UMF No. 7.)

On April 10, 2012, the parties were present during a conference call in which Be Tram confirmed that Plaintiff had the exclusive authority to market the Mall. (Plaintiff’s Additional UMF No. 12.) During the call, Pau stated that he would prepare an offer within 10 days of the April 2012 meeting. (Plaintiff’s UMF No. 35.) After the call, Vallco negotiated directly with Pau regarding the sale of the Mall. ((Plaintiff’s Additional UMF No. 14.)

III. Evidentiary Objections

In connection with their reply briefs, Defendants assert 184 objections to the evidence submitted by Plaintiff in opposition to the motions. The objections to the evidence are not material to the disposition of the motions and therefore a ruling is not required. (See Code Civ. Proc., § 437c, subd. (q) [stating that “[i]n granting or denying a motion for summary judgment or summary adjudication the court need rule only on those objections to evidence it deems material to its disposition of the motion”].)
IV. Request for Judicial Notice

In support of their motions, Defendants ask the Court to take judicial notice of several complaints, orders, and declarations filed in this action. The request is GRANTED only as to the existence of those documents. (See Evid. Code, § 452, subd. (d); Day v. Sharp (1975) 50 Cal.App.3d 904, 914 [stating that a court may only take judicial notice of the existence, but not the truth of court records].)

V. Discussion

Defendants move for summary judgment or, in the alternative, summary adjudication of each remaining cause of action in the FAC on the ground that the action has no merit. (See Code Civ. Proc. 437c, subds. (a)(1), (f)(1).)

A. First Cause of Action

Defendants assert that the first cause of action for breach of contract fails because Plaintiff did not perform or substantially perform under the terms of the listing agreement before it was terminated on November 16, 2011. (See Wall Street Network, Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178 [stating that an element of a cause of action for breach of contract is the plaintiff’s performance or excuse for nonperformance under the contract].) In this respect, they contend that to earn his commission Plaintiff was required to present an offer from a buyer to Vallco and Plaintiff did not do so before the termination of the listing agreement.

Here, the listing agreement states in relevant part that: “Seller agrees for Broker, [Plaintiff], to list/sell the Property, [the Mall], and Broker will bring a buyer to make an offer to complete the purchase of the Property.” (FAC, Ex. A.) Accordingly, the provision required Plaintiff to “bring” a buyer to make an offer to purchase the property. Defendants submit evidence that Plaintiff did not provide them with a buyer willing to make an offer before their termination of the listing agreement. (Defendants’ UMF No. 24.) Instead, it is undisputed that Pau made the first offer to purchase the Mall in July 2012, more than eight months after the termination of the listing agreement. (Plaintiff’s UMF No. 40.) Since Defendants’ evidence demonstrates that Plaintiff did not perform under the listing agreement, the burden shifts to Plaintiff to establish a triable issue of material fact on this issue.

In opposition, Plaintiff acknowledges that he did not substantially perform his obligations under the agreement before the November 16, 2011 termination letter. (Plaintiff’s UMF No. 24.) However, he contends that Vallco should be equitably estopped from terminating the listing agreement based on its oral representations that Plaintiff had the exclusive right to sell the Mall. This argument is not well-taken on several grounds.
As an initial matter, Plaintiff’s equitable estoppel claim fails because he did not allege estoppel in the FAC and, therefore, may not avoid summary judgment based on this argument. (See Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [stating that “[t]he [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings”]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [stating that “a plaintiff cannot bring up new, unpleaded issues in his or her opposing papers” and a plaintiff wishing “to rely upon unpleaded theories to defeat summary judgment must move to amend the complaint before the hearing”]; see also Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1013 [stating that “[t]he general rule is that estoppel must be specifically ‘pleaded in the complaint with sufficient accuracy to disclose [the] facts relied upon’”].) In any event, a licensed broker may not rely on estoppel to establish a right to a commission based on a principal’s oral representations. In Phillippe v. Shappell (1987) 43 Cal.3d 1247, 1260, the Supreme Court of California explained that licensed real estate brokers are presumed to know that their compensation is solely governed by the written contract between the principal and agent. Given this understanding, a licensed broker cannot reasonably rely on any other oral promise of compensation. (Id. at p. 1262.) Here, the same analysis applies. As a licensed broker, Plaintiff knew that the written listing agreement governed the contractual relationship between the parties. Therefore, Plaintiff could not reasonably rely on Vallco’s oral representations that he had the exclusive right to sell the Mall to the extent they were inconsistent with the listing agreement. (See Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1248 [stating that “[e]stoppel requires, among other things, reasonable reliance on the other party’s actions].) Accordingly, Plaintiff fails to demonstrate a triable issue of material fact on this basis.

Next, Plaintiff asserts that the termination of the listing agreement was ineffective because the revocation was made in bad faith to avoid paying his commission. “Where … there is no contract between the principal and the real estate broker or salesman that the latter shall have some particular time within which to find a purchaser [or lessee], it is, as a general rule, entirely competent for the principal to revoke the authority without liability at any time before it is performed.” (Tetrick v. Sloan (1959) 170 Cal.App.2d 540, 545; see also Heffernan v. Merrill Estate Co. (1946) 77 Cal.App.2d 106, 113 [stating that an “owner may revoke in good faith his offer at any time before complete performance of the broker by procuring a binding sale to one who is willing and able to purchase the property on the terms specified, and by securing the purchaser’s written agreement to that effect”].) However, this right of revocation is subject to an exception. “The principal cannot escape his liability to the agent where he revokes the agent’s authority, after a prospective purchaser for the property has been procured, in bad faith and for the purpose of avoiding the payment of the agreed commission.” (Rose v. Hunter (1957) 155 Cal.App.2d 319, 324-325; see also Walter v. Libby (1945) 72 Cal.App.2d 138, 144 [providing that “[t]he principal may revoke the agency in accordance with the terms of his agreement but he may not do so in bad faith and merely for the purpose of depriving the agent of rights he otherwise would have”].)

Here, Plaintiff contends that Vallco acted in bad faith by forcing him to provide them with the contact information of prospective buyers in September 2011 without providing him with the Mall’s financial information. (Nguyen Decl., ¶¶ 10-11.) This evidence, however, is insufficient to demonstrate that Vallco revoked the listing agreement in bad faith to avoid paying his commission. First, Plaintiff provides no authority for the proposition that revoking a listing agreement after receiving the contact information of prospective purchasers constitutes bad faith. On the contrary, in Tetrick, supra, the Court of Appeal specifically determined that an owner permissibly revoked a listing agreement after being introduced to the eventual purchaser as long as the purchaser was not prepared at that time of the introduction to consummate the transaction. (Tetrick v. Sloan (1959) 170 Cal.App.2d 540, 545.) Here, Plaintiff does not submit any evidence indicating that Pau was prepared at the time Vallco terminated the listing agreement in November 2011 to make an offer for the purchase of the Mall. Accordingly, Plaintiff does not demonstrate a triable issue of material fact on this basis. Second, Plaintiff does not articulate how Vallco’s failure to provide him with its financial information in September 2011 establishes that it revoked the listing agreement several months later in bad faith to avoid paying his commission or provide any legal authority in support of this contention. Therefore, Plaintiff fails to establish a triable issue of material fact on this basis as well.

Finally, Plaintiff asserts that he is entitled to recover his commission because he was the procuring cause of the transaction. “A broker is the procuring cause of a … transaction if he finds a purchaser who is ready, willing, and able to buy the property on the terms stated and he obtains a valid contract obligating the purchaser on these terms. If the broker cannot secure a written offer from the purchaser, he is still considered the procuring cause if he brings the principal and the purchaser together so that they may enter into such a contract. In other words, if the broker’s efforts result in a meeting of the minds between the buyer and the seller but the final negotiations and the conclusion of the sale are conducted by them without the aid of the broker, he will still earn his commission.” (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 2, disapproved on other grounds in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376.) However, “it is not enough that the broker contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest. He must set in motion a chain of events which, without break in their continuity, cause the buyer and seller to come to terms as the proximate result of his peculiar activities.” (Lichtig & Rothwell v. Holubar (1926) 78 Cal.App. 511, 515, internal citations omitted.) As such, “[t]he mere introduction of the contracting parties is not sufficient to recover.” (Neiswender v. Campbell (1932) 119 Cal.App. 504, 507; see also Tetrick, supra, 170 Cal.App.2d at p. 545 [holding that “merely introducing the principal to a party who comes to an agreement with him after the termination of the agency but who was not ready, willing and able to consummate the transaction during the life of the agency is in itself insufficient to entitle the broker to a commission”].)

Plaintiff argues that he was the procuring cause of Vallco’s sale of the Mall to Pau because “Pau did not have any knowledge about how to contact [Vallco’s] ownership group” until he provided him with the group’s business cards in April 2012. (Opposition, p. 14:12-14.) As Plaintiff acknowledges, he did nothing more than introduce the eventual contracting parties. Since it is well-established that the mere introduction of the contracting parties is insufficient to prove that a broker is a procuring cause of a transaction, Plaintiff fails to demonstrate that he was the procuring cause of the transaction on this basis alone.

In any event, Defendants also submit undisputed evidence indicating that there was a significant break in the continuity of the negotiations with Pau. In particular, in July 2013, Vallco stopped negotiating with Pau for several months while it pursued other buyers. (Plaintiff’s UMF No. 45.) Given this significant break in the continuity of the negotiations, Plaintiff cannot establish that he was the procuring cause of the transaction on this basis as well.

In sum, Defendants meet their initial burden of demonstrating that the first cause of action has no merit and Plaintiff fails to establish a triable issue of material fact. Accordingly, summary adjudication of the first cause of action is warranted.

B. Second Cause of Action

Defendants claim that the second cause of action for the implied covenant of good faith and fair dealing fails because it does not apply to a unilateral contract such as a non-exclusive listing agreement. This argument lacks merit because it is well-established that the covenant of good faith and fair dealing is implied in all contracts and Defendants provide no legal authority excepting a non-exclusive listing agreement from this general rule. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720; Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349 [stating that the covenant is “implied by law in every contract”]; Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55 [same].)

Next, Defendants claim that Vallco’s failure to provide financial documents to Plaintiff does not constitute a breach of the implied covenant because the covenant may not impose additional duties independent from the specific terms of the agreement. “Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises. The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885, internal citations omitted.) The covenant, however, “cannot be endowed with an existence independent of its contractual underpinnings … [or] impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349-50.) Thus, “[t]he general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing.” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374.)

Defendants assert that it removed a provision requiring it to provide Plaintiff with information concerning the Mall from the operative listing agreement. They contend that the implied covenant of good faith and fair dealing cannot require them to reinsert a provision previously rejected by one of the parties. This argument is well-taken.

The implied covenant of good faith and fair dealing cannot be extended to create an obligation not intended by both parties. (Avidity Partners, LLC v. State (2013) 221 Cal.App.4th 1180, 1206.) As such, when a particular provision is the subject of negotiation between the contracting parties but is omitted from the final contract, the provision may not be reinserted via the implied covenant of good faith and fair. (Ibid.) Here, Vallco produces evidence indicating that it chose not to sign the original listing agreement, which included the requirement that it provide information to Plaintiff and cooperate in the marketing of the Mall. (See Defendants’ UMF Nos. 9, 11.) As such, it did not contemplate that the contract would include such an implied provision. Therefore, it meets its initial burden and the burden shifts to Plaintiff to establish a triable issue of material fact. In opposition, Plaintiff does not address this argument. Therefore, he fails to establish a triable issue of material fact. Accordingly, summary adjudication of the second cause of action for breach of the implied covenant of good faith and fair dealing is warranted.

C. Third and Fourth Causes of Action

Defendants argue that the third and fourth causes of action for interference with contractual relations and interference with prospective economic advantage lacks merit because: (1) Tang did not intentionally engage in any acts designed to disrupt Plaintiff’s contractual relationship with Vallco and (2) Plaintiff’s damages are speculative.

1. Acts of Interference

Defendants contend that Tang did not interfere with Plaintiff’s contractual relationship with Vallco because he had no obligation to provide Plaintiff with financial documents. In this respect, he argues that civil liability cannot be imposed on him for the failure to assist another. (See People v. Heitzman (1994) 9 Cal.4th 189-201 [stating that “civil liability is not imposed for the failure to assist or protect another absent some legal or special relationship between the parties giving rise to a duty to act”].) This argument is not persuasive. The FAC alleges that Tang fraudulently misrepresented that he would act as a middle-man between Plaintiff and, as such, would provide financial documents concerning the Mall. (FAC, ¶ 69.) Therefore, while Tang did not have a duty to obtain the financial documents, he did have a duty not to fraudulently misrepresent that he would, in fact, provide those documents. (See Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 70 [stating that “everyone has a duty to refrain from committing intentionally tortious conduct against another”].) Accordingly, Defendants fail to meet their initial burden of demonstrating that Tang did not engage in any intentional acts of interference. As such, summary adjudication is not warranted on this basis.
2. Damages

Defendants assert that any claimed damages resulting from the alleged acts of interference are speculative. In this respect, they argue that there is no evidence that another potential purchaser would have made an offer to purchase the Mall but for Tang’s alleged interference. (See Tang’s Mem. Ps & As., p. 12-14.) Defendants, however, do not submit any evidence in support of this proposition. “Summary judgment law in this state … continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) Since Defendants fail to present evidence establishing that Plaintiff cannot demonstrate damages, they do not meet their initial burden. Accordingly, summary adjudication of the third and fourth causes of action is not warranted on this basis.

D. Sixth Cause of Action

Defendants argue that the sixth cause of action for fraud and deceit fails on the same bases they articulated with respect to the third and fourth causes of action, namely, that Tang had no obligation to provide financial statements to Plaintiff and Plaintiff could not establish damages because there is no evidence that he would have procured a buyer absent those misrepresentations. Summary adjudication of the sixth cause of action is not warranted on these bases for the same reasons articulated in connection with the motion for summary adjudication of the third and fourth causes of action.

In addition, Defendants contend that there is no evidence that Plaintiff detrimentally relied on Tang’s alleged representation that he would act as a middleman between Plaintiff and Vallco. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062 [stating that a plaintiff must allege and prove that the defendant’s misrepresentation must have caused him to take a detrimental course of action].) This argument is not well-taken on several grounds. As an initial matter, Defendants do not identify particular evidence establishing that Plaintiff cannot show that Tang’s alleged representation caused him to take a detrimental course of action. As such, Defendants do not meet their initial burden on summary judgment. (See Aguilar, supra, 25 Cal.4th at p. 854.) In any event, even if Defendants could identify evidence demonstrating that this particular representation did not cause Plaintiff to alter his legal relations, this argument does not address Tang’s other alleged misrepresentation, namely, that he would obtain financial due diligence materials for Plaintiff. (See FAC, ¶ 69.) “A motion for summary adjudication shall only be granted if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); see also DeCastro West Chodorow & Burns, Inc. v. Sup. Ct. (1996) 47 Cal.App.4th 410, 422 [stating that a trial court may not grant summary adjudication unless it completely disposes of a cause of action].) Since this argument addresses only a portion of Plaintiff’s claim, the motion cannot be granted solely on this basis.

In light of the foregoing, summary adjudication of the sixth cause of action is not warranted.

E. Fifth Cause of Action

Defendants assert that the fifth cause of action for intentional misrepresentation fails because Plaintiff cannot demonstrate justifiable reliance or damages.

1. Justifiable Reliance

Defendants contend that Plaintiff could not have justifiably relied on the alleged oral misrepresentations, namely, that Plaintiff had the exclusive right to list and sell the Mall, Vallco would pay him a 6 percent commission upon the sale of the Mall, and Vallco would provide financial information concerning the Mall to Plaintiff in exchange for the names of potential purchasers. In this respect, they exclusively rely on Phillippe, supra, 43 Cal.3d at p. 1270, which states that “[a] broker’s reliance on an oral promise to pay a commission or an oral promise to execute the required writing at a later date cannot be sufficiently reasonable to support an action for fraud.” Based on Phillippe, Defendants establish that Plaintiff could not reasonably rely on Vallco’s representation that it would pay his commission or that Plaintiff had the exclusive right to list and sell the Mall. However, this argument does not address Plaintiff’s reliance on Vallco’s representation that he would receive financial information in return for the disclosure of the names of potential purchasers. As such, the motion may not be granted solely on this basis. (See Code Civ. Proc., § 437c, subd. (f)(1); DeCastro West Chodorow & Burns, Inc., supra, 47 Cal.App.4th at p. 422.)

In reply, Defendants argue that Plaintiff, as a sophisticated attorney and broker, could not rely on Vallco’s oral representation that he would receive financial information in return for the disclosure of the names of potential purchasers given that such a provision was not mentioned in the underlying listing agreement. This argument is not well-taken. “Generally, [a] plaintiff will be denied recovery only if his conduct is manifestly unreasonable in the light of his own intelligence or information. It must appear that he put faith in representations that were preposterous or shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth.” (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 865, internal citation omitted.) Here, Defendants fail to show that Vallco’s oral representation that it would provide financial documents in return for the names of potential purchasers was so preposterous or so patently and obviously false that Plaintiff could not justifiably rely on the representation. Accordingly, summary adjudication is unwarranted on this basis.

2. Damages

Defendants argue that Plaintiff cannot demonstrate that he suffered damages as a result of Vallco’s alleged misrepresentations because he could not prove that he would have earned a commission if the financial information was provided to him. Defendants, however, do not articulate why they believe this to be the case or identify the particular evidence in their separate statement supporting this argument. (See Vallco’s Mem. Ps & As., p. 18:22-23 [stating that “Plaintiff has not plead, nor could he prove, that he would have earned a commission if he refused to give Pau’s name or the documents were provided to him”].) Since Defendants fail to present evidence establishing that Plaintiff cannot demonstrate damages, they do not meet their initial burden on summary judgment. (See Aguilar, supra, 25 Cal.4th at p. 854.) Accordingly, summary adjudication of the fifth cause of action is not warranted on this basis.

F. Seventh Cause of Action

Defendants contend that the seventh cause of action for violation of the UCL fails because it is based on the prior causes of action, which also fail.

The UCL provides civil remedies for unfair competition to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. (See Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 520.) Unfair competition includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. (See Bus. & Prof. Code, § 17200.) “‘Virtually any law or regulation – federal, state, statutory or common law – can serve as [a] predicate for a … [section] 17200 ‘unlawful’ violation.’” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383 [quoting Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 681].)

As previously discussed, Defendants fail to demonstrate that the fifth and sixth causes of action for fraud have no merit. As such, they likewise fail to demonstrate that the seventh cause of action, which is partially based on those causes of action, has no merit. Therefore, summary adjudication of this cause of action is not warranted.

G. Conclusion

In light of the foregoing, the Court makes the following orders:

Tang’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.

Vallco’s motion for summary judgment or, in the alternative, summary adjudication is GRANTED IN PART and DENIED IN PART. The motion for summary adjudication of the first and second causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing is GRANTED. The motion is otherwise DENIED.