BUCKALOO v. JOHNSON (1974)

Court of Appeal, Second District, Division 2, California.

William BUCKALOO, Plaintiff and Appellant, v. Cecil M. JOHNSON, Virginia Arness, Defendants and Respondents.

Civ. 43280.

Decided: November 12, 1974

Arata, Misuraca & Clement by James L. Beyers, Santa Rosa, for plaintiff and appellant. Herbert Manasse, Hollywood, for defendants and respondents.

Plaintiff William Buckaloo appeals the judgment of dismissal¹ as to defendants Cecil Johnson and Virginia Arness after the trial court sustained their demurrer to Buckaloo's complaint for declaratory relief and damages and Buckaloo refused to amend.

The complaint alleges that in 1967 and 1968 Buckaloo, a real estate broker, had an exclusive right to sell undeveloped beach property owned by Hugo and Mildred Benioff at Devil's Gulch in Mendocino County. Buckaloo made no sale. Hugo Benioff subsequently died, and Mildred Benioff then owned the property. Some time before 3 May 1972 Mrs. Benioff placed a sign on the Devil's Gulch property which read: ‘For Sale—Contact Your Local Broker.’ On 3 May 1972 Virginia Arness, her daughter, and Cecil Johnson, a real estate salesman from Fountain Valley, came to Buckaloo's office and said they were interested in coastal property for investment. Buckaloo began a general discussion of coastal properties. Mrs. Arness asked about ‘that property with the sign.’ Buckaloo explained the features of the Benioff property but said he believed the price was too high to make it a good speculative investment. They discussed other properties but Mrs. Arness remarked that she liked the Benioff property. Buckaloo found accommodations for Johnson and the Arnesses for the night. They left, promising to return the next day to go over the matter further, but they never returned. Buckaloo informed Mrs. Benioff that he procured the Arness group and asked her to refer them to him if she should hear from them directly. Some weeks later Buckaloo learned that Mrs. Benioff had sold the property to the Arness group and paid a commission to another broker.

The complaint prays for a declaration that Buckaloo had an implied contract with Mrs. Benioff for a reasonable commission on the sale of the property, for damages against Mrs. Benioff for breach of the implied contract, for damages against Benioff, Johnson, Mrs. Arness, and her daughter, and Ferne Goodwin, another broker, for intentional interference with a prospective advantage and bad-faith refusal to pay a sum known to be due, and for an injunction in aid of attachment against Redwood Empire Title Company to halt the disbursement of funds held in escrow for a real estate commission.

We agree with the trial court that the complaint failed to state a cause of action against Johnson and Mrs. Arness. Vital to every claim for relief in the complaint was Buckaloo's assertion that he had the right to a commission on the sale of the Benioff property to the Arness group. The facts alleged do not support that assertion.

Buckaloo failed to establish that he had an agreement with anyone for a commission on the sale of the Benioff property. Buckaloo's only contact with Johnson and Arness came when they inquired about properties, and that conduct alone could not create in an agency agreement. (Hicks v. Wilson, 197 Cal. 269, 273, 240 P. 289.) Buckaloo had no contact at all with Mrs. Benioff other than to inform her of his contact with the Arness group. The mere posting of a sign ‘For Sale—Contact Your Local Broker’ did not create an agency agreement between Mrs. Benioff and Buckaloo or any other local broker nor could it create an agency relationship between the Arness group and Buckaloo. Neither could it satisfy the requirement of Civil Code section 1624(5), that an agreement to employ an agent to purchase or sell real property must be in writing and subscribed by the party to be charged. The sign simply invited prospective purchasers to seek out a local broker and make arrangements with him to investigate and negotiate terms and conditions for the purchase of the property. Buckaloo does not claim that Mrs. Benioff provided him or any other local broker with information about the status of the property currently for sale or about prospective terms of sale, and the absence of such a claim in itself negates the creation of any agency agreement with her. (Herring v. Fisher, 110 Cal.App.2d 322, 329, 242 P.2d 963.)

Moreover, Buckaloo fails to show he was the ‘procuring cause,’ the predominating effective cause, of the sale of property by Benioff to Johnson and Arness. (Sessions v. Pacific Improvement Co., 57 Cal.App. 1, 17, 206 P. 653.) Buckaloo even alleges he attempted to discourage Mrs. Arness' interest in the Benioff property. Merely providing information which tends to arouse interest and to put a prospective purchaser on the track of property does not suffice as a procuring cause of the sale of the property. (Hill v. Knight, 209 Cal. 14, 20, 285 P. 691; Nelson v. Mayer, 122 Cal.App.2d 438, 445–446, 265 P.2d 52.)

The appeals from the order sustaining the demurrer and from the entry of judgment are dismissed. The judgment is affirmed.

FOOTNOTES

1.  Buckaloo also appeals the ‘sustaining of the demurrer’ and the ‘entry of judgment.’ Because these judicial acts are not appealable, the purported appeals must be dismissed. (Code Civ.Proc., $ 904.1.)

FLEMING, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.