Filed 12/1/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

WESTSIDE ESTATE AGENCY, INC.

Plaintiff and Appellant,

v.

JAMES RANDALL et al.,

Defendants and Respondents.

 B268455

 (Los Angeles County

 Super. Ct. No. BC577588)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Elizabeth R. Feffer, Judge. Affirmed.

Freedman + Taitelman, Michael A. Taitelman and Bradley H. Kreshek

for Plaintiff and Appellant.

Alston & Bird, James R. Evans, Jr. and Cassandra E. Hooks for 

Defendants and Respondents.

* * * * * *
2

We are all familiar with the phrase, “caveat emptor”: Buyer beware. 

This case deals with its less renowned cousin, “caveat sectorem”: Broker

beware. California’s statute of frauds declares invalid any “agreement 

authorizing or employing an agent, broker, or any other person to purchase or 

sell real estate” unless that agreement is in writing and signed by the

broker’s client. (Civ. Code, § 1624, subd. (a)(4).)1 This is a nearly absolute 

rule, with only a few very narrow exceptions. The broker in this case missed 

out on a $925,000 commission because he agreed to help a friend buy a $45 

million Bel Air estate, but the deal was ultimately closed by another broker

on different terms. Critically, the first broker’s agreement was not in writing. 

The first broker sued his friend/client for the commission, and the trial court 

dismissed the lawsuit for noncompliance with the statute of frauds. After 

examining in detail the statute of frauds and its exceptions, we conclude the 

trial court was right and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

We draw the facts set forth below from the allegations in the operative, 

first amended complaint (FAC), which we assume to be true for purposes of 

evaluating the demurrer on appeal before us now. (Coker v. JPMorgan Chase 

Bank, N.A. (2016) 62 Cal.4th 667, 671.)

In early 2014, defendants James and Eleanor Randall (the Randalls) 

told their long-time friend and business acquaintance Stephen Shapiro 

(Shapiro) that they were looking to buy a home in Los Angeles. Shapiro was 

a licensed real estate broker and the principal of plaintiff Westside Estate 

Agency, Inc. (Westside). Shapiro agreed to represent them, but their 

agreement was never put in writing.

In October 2014, Shapiro identified a potential property for the 

Randalls to buy—namely, a $65 million estate in the Bel Air neighborhood of 

Los Angeles. The listing for the property included an offer by the seller’s 

broker “to pay” “to the buyer’s broker” “a cooperating broker’s fee” of 2

percent of the sale price. The Randalls asked Shapiro to apply any broker’s 

1 All further statutory references are to the Civil Code unless otherwise 

indicated.
3

fee Westside would receive and let them use it toward the purchase price; 

Shapiro refused. On October 24, 2014, Shapiro nevertheless made a $42 

million offer on the property on behalf of the Randalls. Over the next month, 

Shapiro and the seller volleyed offers and counteroffers back and forth. On 

November 24, 2014, Shapiro presented a new written offer to buy the estate 

for $45 million. The seller indicated that it was “agreeable” to the offer, but 

only if the Randalls agreed to (1) an “as is” clause, and (2) a transfer of 

warranty clause. The Randalls reached out to their attorney, Richard 

Meaglia (Meaglia), for his advice. In the meantime, Shapiro “worked with 

[the] Seller’s Broker through the night to finalize the terms of” an agreement. 

However, the following day, James Randall e-mailed Shapiro and instructed 

him to “cancel [the] offer” because they were “turned off on [the property].”2

Three months later, in February 2015, the Randalls made a $47 million 

offer on the property with Meaglia acting as their broker. Escrow closed a 

month later for a final purchase price of $46.25 million, $1.25 million more

than the Randalls’ final November 2014 offer. Meaglia applied the $925,000 

cooperating broker’s fee against the purchase price.

II. Procedural History

In April 2015, Westside sued the Randalls and Meaglia (collectively, 

defendants). In the FAC, Westside sued the Randalls for breach of an 

implied contract and sued Meaglia for intentional interference with an 

implied contract.3 Westside prayed for compensatory damages of $925,000, 

the same amount as the broker’s fee Meaglia eventually collected.

Defendants demurred to the FAC.

2 During oral argument, Shapiro argued that the Randalls agreed to the 

terms of the agreement he had negotiated overnight, but the FAC’s 

allegations are—as noted in the text—to the contrary.

3 In its initial complaint, Westside also sued Meaglia for intentional 

interference with a prospective economic advantage and sued Meaglia and 

the Randalls for violating the unfair competition law (Bus. & Prof. Code, 

§ 17200 et seq.). All three defendants filed a demurrer and a motion to 

strike. Before either motion was heard, Westside filed the FAC.
4

The trial court sustained the demurrer as to both counts, without leave 

to amend as to the Randalls and with leave to amend as to Meaglia. The 

court reasoned that Westside was trying to collect a broker’s commission from 

the Randalls without any written agreement evidencing the broker-client 

relationship, that this claim fell “squarely within” the statute of frauds, fell 

outside any of the exceptions to the statute, and that any unwritten 

agreement was consequently unenforceable as a matter of law. Given the 

absence of any enforceable contract, the court went on to rule, Meaglia could

not have interfered with a valid contract; however, the court opined that 

Westside “may . . . be able to amend to assert a viable tort cause of action”

against Meaglia.

Westside subsequently dismissed its case against Meaglia, and the trial 

court entered a final judgment dismissing the FAC against all defendants.

Westside filed this timely appeal.

DISCUSSION

Westside challenges the trial court’s dismissal of its breach-of-impliedcontract claim and its denial of leave to amend. In assessing whether a 

demurrer was properly sustained, we independently ask “‘whether the 

[operative] complaint states facts sufficient to constitute a cause of action.’” 

(Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100, quoting City of Dinuba 

v. County of Tulare (2007) 41 Cal.4th 859, 865; see also Lee v. Hanley (2015) 

61 Cal.4th 1225, 1230 [de novo review].) In answering this question, we 

“‘assume the truth of the complaint’s properly pleaded or implied factual 

allegations.’” (Loeffler, at p. 1100, quoting Schifando v. City of Los Angeles

(2003) 31 Cal.4th 1074, 1081.) A demurrer may be sustained when an alleged 

contract falls “within the statute of frauds and does not comply with its 

requirements.” (Parker v. Solomon (1959) 171 Cal.App.2d 125, 136; Deeter 

v. Angus (1986) 179 Cal.App.3d 241, 247-248.) In assessing whether leave to 

amend was properly denied, we review for an abuse of discretion by asking 

“‘whether there is a reasonable possibility that the defect can be cured by 

amendment.’” (Loeffler, at p. 1100.)

I. Sustaining the Demurrer

The statute of frauds declares several types of agreements “invalid” 

unless “they, or some note or memorandum thereof, are in writing and 
5

subscribed by the party to be charged or by the party’s agent.” (§ 1624, subd. 

(a).) As pertinent to this case, the statute applies to “[a]n agreement 

authorizing or employing an agent, broker, or any other person to purchase or 

sell real estate, . . . or to procure, introduce, or find a purchaser or seller of 

real estate . . . , for compensation or a commission.” (Id., subd. (a)(4).) A 

court applying the statute of frauds is accordingly presented with two 

questions: (1) does the statute apply to the contract at issue?; and if so, 

(2) are the statute’s requirements of a properly subscribed writing met?

A. Does the statute of frauds apply?

The portion of the statute of frauds applicable here can apply to 

licensed brokers and anyone else who aids and assists them or who otherwise 

engages in acts covered by the statute. (§ 1624, subd. (a)(4) [reaching “any 

other person”]; Duckworth v. Schumacher (1933) 135 Cal.App. 661, 666 

[reaching those who “aid and assist in the purchase or sale”]; Marks v. Walter 

G. McCarty Corp. (1949) 33 Cal.2d 814, 819-820 (Marks) [noting how statute 

reaches persons who are not licensed brokers].) However, the statute only 

reaches agreements for “compensation or a commission” owing to the 

“purchase or [sale of] real estate, . . . or . . . procur[ing], introduc[ing], or 

find[ing] a purchaser or seller of real estate.” (§ 1624, subd. (a)(4).) It does 

not reach contracts employing persons, even brokers, merely to provide 

information about real estate or to search for suitable locations to purchase, 

except when those functions are “incidental” to one of the purposes otherwise 

covered by the statute of frauds. (Owen v. National Container Corp. (1952) 

115 Cal.App.2d 21, 25-26 (Owen) [statute of frauds does not apply to 

agreements for conducting surveys, furnishing plans or “merely 

giv[ing] . . . information as to available factory sites”]; see generally Phillippe 

v. Shapell Industries (1987) 43 Cal.3d 1247, 1256 (Phillippe) [other services 

that are “incidental to [a broker’s] efforts to bring about a sale 

of . . . property” are covered by the statute of frauds]; see generally id. at 

p. 1255 [“[a] licensed broker may be able under appropriate circumstances to 

recover under an oral agreement or in quantum meruit for certain services 

other than the purchase, sale, or leasing of property”].)

Once the statute of frauds applies, its bar against relief is absolute and 

applies no matter how the unhappy broker styles his or her claim to recover 
6

compensation or a commission. (Phillippe, supra, 43 Cal.3d at pp. 1263-1264 

[generally no recovery on a theory of quantum meruit, unjust enrichment or 

equitable estoppel]; Beazell v. Schrader (1963) 59 Cal.2d 577, 582 (Beazell)

[same, as to quantum meruit].) Were the bar not absolute, the bar would be 

easily evaded, and the “primary purpose” for making such contracts subject 

to the statute of frauds—to serve as a “consumer protection” mechanism “to 

protect real estate sellers and purchasers from the assertion of false claims 

by brokers for commissions”—would go unserved. (Phillippe, at pp. 1257, 

1266; Estate of Stephens (2002) 28 Cal.4th 665, 679 (dis. opn. of Kennard, J.)

[“the statute of frauds avoids the likelihood that permitting oral proof of such 

transactions would encourage fraudulent claims by swindlers gambling that 

they can glibly persuade a jury to enforce a nonexistent oral agreement”]; see 

generally Estate of Duke (2015) 61 Cal.4th 871, 889.)

However, not all actions involving brokers are barred by the statute of 

frauds. Some actions are not subject to the statute in the first place. These 

include: (1) an action to recover for a broker’s performance of services other 

than and not incidental to the sale or purchase of real estate or procuring, 

introducing or finding a purchaser or seller of real estate, as noted above (see 

ante, at p. 5; cf. § 1624, subd. (a)(4)); (2) an action by a principal against his or 

her broker to disgorge a commission already paid on the ground that the 

broker breached its fiduciary duty and obtained a secret profit (Steiner 

v. Rowley (1950) 35 Cal.2d 713, 717; Gann v. Williams Brothers Realty, Inc.

(1991) 231 Cal.App.3d 1698, 1705-1706); and (3) an action between brokers to 

divide a jointly earned commission (e.g., Goossen v. Adair (1960) 185 

Cal.App.2d 810, 819 (Goossen); Holland v. Morgan & Peacock Properties Co.

(1959) 168 Cal.App.2d 206, 210; Dornberg v. Frank Meline Co. (1932) 121 

Cal.App. 630, 632; Jenkins v. Locke-Paddon Co. (1916) 30 Cal.App. 52, 57).

The courts have also recognized three narrow exceptions in which the 

statute of frauds will not be deemed to bar a broker’s action to recover 

compensation or a commission from his or her principal, even where there is 

no written agreement for such.

First, an agent has a limited right to estop his or her principal from 

asserting the statute of frauds to “prevent either unconscionable injury or 

unjust enrichment,” although the scope of this right depends on the identity 
7

of the agent suing for a commission. (Tenzer v. Superscope, Inc. (1985) 39 

Cal.3d 18, 27.) If the agent is offering to buy or sell real estate, he or she may

assert estoppel only if the principal has engaged in “actual fraud.” (Phillippe, 

supra, 43 Cal.3d at p. 1260.) Our Supreme Court has defined “actual fraud” 

as when (1) the principal has told the agent that their agreement for a 

commission was in writing when it was not, or (2) the principal has told the 

agent to cancel “an otherwise valid written contract” for exchange of the 

property while concurrently making an oral promise to the agent to still pay 

the commission, but then reneges on that promise. (Id. at pp. 1260, fn. 8, 

1270; cf. id. at p. 1270 [principal’s oral promise to execute a writing in the 

future; not fraud].) But if the agent is performing some other service covered 

by the statute of frauds, then the agent may assert estoppel whether or not 

the principal engaged in “actual fraud.” (Tenzer, at p. 27.) Because, under 

California law, only licensed brokers may offer to buy or sell real estate (Bus. 

& Prof. Code, §§ 10131, subd. (a) [defining “broker” to include such persons]

& 10130 [requiring all brokers to be licensed]), licensed brokers may only 

invoke an estoppel-based theory of relief if they demonstrate “actual fraud.” 

This makes sense. Unlike everyone else, licensed brokers “obtain their 

license only after they demonstrate knowledge of laws relating to real estate 

transactions,” including the statute of frauds. (Margolin v. Shemaria (2000) 

85 Cal.App.4th 891, 899-900; Phillippe, at pp. 1260-1263; see generally Bus. 

& Prof. Code, §§ 10150-10153 [licensing requirements for brokers].) For this 

reason, licensed brokers are “conclusively presumed” to know that their 

commission agreements must be in writing to be enforceable. (Phillippe, at 

pp. 1261-1262; Franklin v. Hansen (1963) 59 Cal.2d 570, 575, overruled in 

part on other grounds by Sterling v. Taylor (2007) 40 Cal.4th 757 (Sterling).) 

Courts consequently have “little sympathy” for licensed brokers who assume

the risk of relying on unwritten agreements for a commission. (Phillippe, at 

pp. 1261-1262.) More to the point, it is unreasonable for them to do so, which 

precludes them from invoking the doctrine of equitable estoppel except in 

cases of actual fraud. (Id. at p. 1262; see generally Santa Monica Pines, Ltd. 

v. Rent Control Board (1984) 35 Cal.3d 858, 867 [“reasonable reliance” 

required for equitable estoppel]; Schafer v. City of Los Angeles (2015) 237

Cal.App.4th 1250, 1261 [same].)
8

Second, a broker may effectively recover his commission if (1) the 

broker’s principal and the other party have executed a written and binding 

agreement for the purchase of real estate, (2) the written agreement specifies 

that the broker will receive a commission, and (3) the broker’s principal 

cancels the written agreement. In that instance, the broker may sue his 

principal for the damages equaling the lost commission on one of two 

alternate but reinforcing theories: (1) the principal has breached an 

“implied[] promise[] to complete the transaction so that the broker [could] 

recover the commission” (Chan v. Tsang (1991) 1 Cal.App.4th 1578, 1583 

(Chan); Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 547); or 

(2) the broker is the third party beneficiary of the written agreement between 

the principal and the other party to the real estate transaction (Donnellan v. 

Rocks (1972) 22 Cal.App.3d 925, 930-932 (Donnellan); Chan, at p. 1583). (See 

generally Herman v. Savage (1936) 17 Cal.App.2d 238, 243-244 [awarding 

relief in these circumstances]; Traxler v. Katz (1931) 116 Cal.App. 226, 230-

231 [same].) In either case, the broker is entitled to relief because the 

principal has by its own actions tried to avoid its obligation to the broker. 

(Watson v. Aced (1957) 156 Cal.App.2d 87, 92 [“[w]here a party to a contract 

prevents the fulfillment of a condition precedent or its performance by the 

adverse party, he cannot rely on such condition to defeat his liability”]; see 

generally Moore v. Borgfeldt (1929) 96 Cal.App. 306, 313 (Moore) [“[i]t is 

equally the policy of the law to protect a broker who has been so employed or 

authorized [to buy or sell property], and who, in good faith, has acted”].) One 

of the predicates for this exception—the existence of a binding, written 

contract for the purchase of property—dovetails neatly with the general rule

that a broker earns his or her commission only after such a binding contract 

for the transfer of real estate comes into existence. (E.g., R. J. Kuhl Corp. 

v. Sullivan (1993) 13 Cal.App.4th 1589, 1600; Seck v. Foulks (1972) 25 

Cal.App.3d 556, 572-573.)

Lastly, a broker may sue to collect a commission based on an unwritten 

agreement if the principal subsequently ratifies that agreement in writing. 

(Coulter v. Howard (1927) 203 Cal. 17, 23.)
9

Westside offers five arguments why the statute of frauds does not bar 

its claim for the $925,000 commission on the sale of the Bel Air estate. None 

of them has merit.

First, Westside seeks to recast the nature of its role and the nature of 

its claim in order to fit within the cases, explained above, holding that the 

statute of frauds does not apply to brokers who do something other than help 

with the purchase or sale of real estate and does not apply to disputes 

between brokers to divide a commission. (See Owen, supra, 115 Cal.App.2d 

at pp. 25-26; Phillippe, supra, 43 Cal.3d at pp. 1255-1256; Goossen, supra, 

185 Cal.App.2d at p. 819.) However, the allegations set forth in the FAC 

foreclose this attempt at revisionism. As the basis for its claim against the 

Randalls, Westside expressly alleged in its FAC that “the Randalls engaged 

[Shapiro and Westside] to find them a residence to purchase.” It is hard to 

see how this is anything but, in the words of the statute of frauds, “[a]n 

agreement authorizing or employing a[] . . . broker . . . to purchase . . . real 

estate.” (§ 1624, subd. (a)(4).) And even if Westside provided the Randalls 

other unalleged services, those services would be “incidental” to the central 

purpose alleged in the FAC and thus of no consequence to the applicability of 

the statute of frauds. (Phillippe, at p. 1256.) Westside’s lawsuit is also not a 

suit to divide a commission among brokers because Westside is suing its own 

principal, not the seller’s broker or even Meaglia.

Second, Westside makes an argument that only Schrödinger’s cat could 

appreciate when it simultaneously and paradoxically insists that it is and 

that it is not invoking the doctrine of equitable estoppel.4 However, we need 

not delve into this irreconcilable dichotomy because even if Westside is

relying on the doctrine, it is unavailable. Westside is a licensed broker, and 

this forecloses its reasonable reliance on an unwritten contract unless its 

principal committed actual fraud. (Phillippe, supra, 43 Cal.3d at pp. 1260, 

fn. 8, 1270.) Westside has not alleged any actual fraud, and the facts it has 

alleged do not involve the types of fraud our Supreme Court has previously 

4 In 1935, Austrian physicist Erwin Schrödinger hypothesized that a cat 

placed in an opaque box that would poison the cat half the time was both 

alive and dead (at least until someone opened the box to check whether the 

poison had been activated).
10

said qualify as “actual fraud” because the Randalls did not lie about whether 

the broker’s agreement was in writing, and they did not tell Shapiro to cancel 

an “otherwise valid written contract” for the purchase of real estate with a 

concurrent promise to pay a commission anyway. (Ibid.)

Third, Westside tries to align itself with the exception for brokers who 

are permitted to recover when their principals enter into a written, binding 

real estate purchase contract that contemplates a commission for the broker, 

thereby obligating their principals to fulfill their implied promise to complete 

that transaction or their duty to pay the broker as a third-party beneficiary. 

(See Chan, supra, 1 Cal.App.4th at p. 1583; Donnellan, supra, 22 Cal.App.3d 

at pp. 930-932.) However, the entitlement to relief in these cases is premised 

on a necessary factual predicate—namely, a written, binding real estate 

purchase contract between the principal and the other party. (Chan, at 

p. 1583; Donnellan, at pp. 930-932.) That predicate is missing here. The 

Randalls never agreed to the two conditions in the seller’s counteroffer to the 

Randalls’ November 24, 2014 offer, and certainly never signed any written 

purchase agreement with the sellers while Shapiro was still their broker. 

These cases simply do not apply.

Fourth, Westside urges that its claim against the Randalls is not for 

the breach of an unwritten contract for a commission (which would be subject 

to the statute of frauds), but is instead for the breach of an implied-in-fact 

contract resulting in damages for the disruption of its expectation of a 

commission (which Westside argues is not subject to the statute). We reject 

this “semantic sleight-of-hand.” (Phillippe, supra, 43 Cal.3d at p. 1256.) To 

be sure, a contract may be written, oral or inferred from the parties’ conduct 

(the last being called an “implied-in-fact” contract).

5

(§§ 1619-1621; Retired 

Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 

1171, 1178; Green Valley Landowners Assn. v. City of Vallejo (2015) 241 

Cal.App.4th 425, 433.) But the statute of frauds applies to any “agreement 

5 Contracts may also be “implied in law,” but such contracts are not 

created by the parties; they are created by the courts to avoid unjust 

enrichment. (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 639.) 

Except as described above, courts will not imply contracts at law as a means 

of sidestepping the statute of frauds.
11

authorizing or employing a[] . . . broker . . . to purchase or sell real 

estate, . . . or to procure, introduce, or find a purchaser or seller of real 

estate”—regardless of how that agreement came to be. (§ 1624, subd. (a)(4).) 

Thus, the fact that Westside is now asserting that its agreement with the 

Randalls is implied by conduct rather than an express, oral agreement is 

irrelevant. How Westside characterizes its damages is also irrelevant. 

Whether Westside labels the relief it seeks as a commission or the 

“expectation of a commission,” Westside is seeking the very same amount—

that is, the amount of the commission specified in the alleged, unwritten 

contract. Were we to accept Westside’s arguments, we would be empowering

brokers to evade the statute of frauds by the mere expedient of calling their 

claims for the breach of an unwritten agreement for a commission by some 

other name. This not only ignores the age-old wisdom that “‘if an object looks 

like a duck, walks like a duck and quacks like a duck, it is likely to be a 

duck’” (Phillippe, at p. 1256), but would also effectively repeal this provision 

of the statute of frauds, something only the Legislature may do (id. at 

p. 1265; Southern Cal. Etc. Assemblies of God v. Shepherd of Hills Etc. 

Church (1978) 77 Cal.App.3d 951, 958 [statute of frauds cannot be “nullified” 

by “‘transparent device[s]’”].)

Lastly, Westside argues that the statute of frauds does not apply 

because it is not seeking to collect its commission from the Randalls, but 

instead from the seller of the Bel Air estate because the initial listing 

indicated that the buyer’s “cooperating broker’s fee” was to come from the 

seller’s broker. We reject this argument for several reasons. If we accept this 

argument at face value, Westside’s lawsuit would have to be dismissed 

because Westside is suing the wrong party: The Randalls are not the seller’s 

broker. Even if we assume that the commission Westside seeks was 

supposed to originate with the seller’s broker and be passed through the 

Randalls to Westside, there is still no written agreement between the 

Randalls and Westside and nothing in the plain language of the statute of 

frauds indicates that its applicability turns on where the money for a 

commission came from originally. Accepting Westside’s argument would also 

create a mile-wide exception to the statute of frauds: The commissions paid 

to both parties’ brokers “generally” originate with the seller (Chan, supra, 1 
12

Cal.App.4th at p. 1583), so if all it took to evade the statute of frauds was 

saying that the funds had to come from the seller, the statute would be 

inapplicable in nearly every case brought by a buyer’s broker.

For all these reasons, we conclude that the trial court was correct in 

ruling that the statute of frauds applies to Westside’s claim.

B. Is there a writing that satisfies the requirements of the 

statute of frauds?

If an agreement is subject to the statute of frauds, the broker seeking to 

collect its commission must produce a “contract[] . . . or some note or 

memorandum thereof . . . in writing and subscribed by the party to be 

charged or by the party’s agent.” (§ 1624, subd. (a).) To satisfy this 

requirement, a broker must present a “writing” (1) that “unequivocally 

show[s] on its face the fact of employment of the broker seeking to recover a 

real estate commission” (Phillippe, supra, 43 Cal.3d at p. 1258; Pacific 

Southwest Development Corp. v. Western P. R. Co. (1956) 47 Cal.2d 62, 68-69); 

and (2) that is signed by the principal or its agent (Marks, supra, 33 Cal.2d at 

pp. 819-820). The writing need not memorialize the entire contract between 

the principal and broker (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 21; 

Moore, supra, 96 Cal.App. at p. 313), and need not be signed by all parties to 

the real estate transaction (Torelli v. J. P. Enterprises, Inc. (1997) 52 

Cal.App.4th 1250, 1253, 1256 [seller’s counteroffer containing promise to pay 

broker a commission suffices to allow suit against seller, even though buyer 

never accepted counteroffer]). A memorandum summarizing the contract will 

suffice as long as it sets forth the fact of employment or authority to act. 

(Beazell, supra, 59 Cal.2d at p. 580; Friddle v. Epstein (1993) 16 Cal.App.4th 

1649, 1655; Lathrop v. Gauger (1954) 127 Cal.App.2d 754, 764; Rader Co., at 

p. 25.) The amount of compensation and a specific promise to pay the same 

need not be included in the writing (Beazell, at pp. 580-581; Barcelon v. 

Cortese (1968) 263 Cal.App.2d 517, 526 (Barcelon); cf. Barcelon, at pp. 526-

527 [“a statement by the seller that he will pay the regular commission as 

part of the condition of the sale does not make the writing sufficient to satisfy 

the statute” absent language showing employment or authorization]), and 

may be supplied by oral evidence or inferred from custom (Friddle, at pp. 

1656-1657; Lathrop, at p. 765). Whether a writing is sufficient is a question 

of law we review de novo. (Sterling, supra, 40 Cal.4th at p. 772.)
13

The FAC alleges no written agreement between Westside and the 

Randalls meeting these requirements.

As such, the trial court properly ruled that Westside’s claim for its 

commission is subject to—and barred by—the statute of frauds.

II. Reasonable Possibility of Amendment

Westside argues that the trial court abused its discretion in denying 

leave to amend its claim against the Randalls because Westside can allege 

that the October 24, 2014 and November 24, 2014 offers it made to the sellers 

on the Bel Air estate as well as other unspecified e-mails and writings, 

constitute written agreements sufficient to satisfy the requirements of the 

statute of frauds. We disagree for two reasons.

First, and as explained above, it is not enough that the October and 

November 2014 offers or the other writings mention Westside’s entitlement 

to a commission. (Barcelon, supra, 263 Cal.App.2d at pp. 526-527.) To be 

sufficient, they must set forth the fact that Westside is the Randalls’ agent or 

in their employ. (E.g., Beazell, supra, 59 Cal.2d at p. 580.) Given that 

Westside has already had two opportunities to allege such facts and has not 

done so, we harbor significant doubts that the offers or other writings 

actually contain such language.

Second, and even if Westside can credibly allege that the two written 

offers or other writings do contain the required verbiage, Westside is not 

entitled to the commission because it is not the procuring cause of the sale 

that ultimately went through. (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 

465 [“the rule is that if an agent (or broker) is the inducing or procuring cause 

of the contract, he is entitled to the commission”]; Sessions v. Pacific 

Improvement Co. (1922) 57 Cal.App. 1, 17.) “‘“A broker is the ‘procuring 

cause’ of a real estate transaction if he finds a purchaser [or seller] who is 

ready, willing, and able to buy [or sell] the property on the terms stated and 

he obtains a valid contract obligating the purchase [or seller] on these 

terms.”’” (Phillippe, supra, 43 Cal.3d at p. 1263, fn. 11.) This rule applies 

even when multiple brokers are involved: “[I]t is not enough that [a] broker 

contributes indirectly or incidentally to the sale by imparting information 

which tends to arouse interest. [The broker seeking to collect the 

commission] must set in motion a chain of events, which, without break in 
14

their continuity, cause the buyer and seller to come to terms as the proximate 

result of his peculiar activities.” (Sessions, at p. 17.) Although the question 

of procuring cause is often a question of fact, it is a question of law when the 

facts are undisputed. (Brea, at pp. 465-466; cf. Rose v. Hunter (1957) 155 

Cal.App.2d 319, 323.)

Here, the facts alleged in the FAC establish that Westside was not the 

procuring cause of the Randalls’ subsequent purchase of the Bel Air estate in 

the spring of 2015. To be sure, Westside has alleged that Shapiro found the 

Bel Air estate, invested his time in making multiple offers and counteroffers, 

and even “worked . . . through the night to finalize the terms” of a purchase 

agreement. But it is also undisputed that the sellers rejected the Randalls’ 

October 24, 2014 and November 24, 2014 offers by making counteroffers; that 

Meaglia took over the negotiations for some period of time; and that the 

Randalls eventually purchased the Bel Air estate on different terms than 

those they offered through Shapiro—namely, for $1.25 million more than the 

November 24, 2014 offer (an amount that does not even correspond with 

Meaglia’s willingness to credit his $925,000 commission toward the purchase 

price).

Over a century ago, the Court of Appeal held: “Merely putting a 

prospective purchaser on the track of property which is on the market will 

not suffice to entitle the broker to the commission contracted for, and even 

though a broker opens negotiations for the sale of the property, he will not be 

entitled to a commission if he finally fails in his efforts, without fault or 

interference of the owner, to induce a prospective purchaser to buy or make 

an offer to buy, notwithstanding that the owner may subsequently, either 

personally or through the instrumentality of other brokers, sell the same 

property to the same individual at the price and upon the terms for which the 

property was originally for sale.” (Cone v. Keil (1912) 18 Cal.App. 675, 679-

680.) This holding is just as valid today, and renders futile any amendment 

by Westside.
15

DISPOSITION

The judgment is affirmed. The Randalls are entitled to their costs on 

appeal.

CERTIFIED FOR PUBLICATION.

________________________, J.

HOFFSTADT 

We concur:

_________________________, P. J.

BOREN

_________________________, J.

CHAVEZ