Filed 10/10/14 Kerrigan v. Coldwell Banker Residential Brokerage CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOHN KERRIGAN,

Plaintiff and Appellant,

v.

COLDWELL BANKER RESIDENTIAL 

BROKERAGE et al.,

Defendants and Respondents.

 B250939

 (Los Angeles County 

 Super. Ct. No. BC489771)

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

Richard L. Fruin, Judge. Affirmed.

John Kerrigan, in propria persona.

Halling / Meza LLP, Chris W. Halling and William G. Lieb for Defendants and 

Respondents.

__________________________
2

John Kerrigan appeals from the judgment entered after the trial court sustained 

without leave to amend the demurrers of Coldwell Banker Residential Brokerage Sunset 

Strip, broker Francine Hughes, and salesman Neal Baddin in this action for breach of an 

agreement to arbitrate a real estate commission dispute. We affirm under principles of 

collateral estoppel because a judgment in an earlier action determined that Kerrigan did 

not have a valid contractual claim to any commission from respondents.

1

 

FACTS AND PROCEDURAL HISTORY

In April 2006 Coldwell Banker Residential Brokerage Sunset Strip (Coldwell)

received a $615,000 commission for representing the buyer in the purchase of a $30 

million Malibu estate. In October 2006, real estate broker Mirzo International, Inc. 

(Mirzo) and its sales agent, appellant John Kerrigan, filed an arbitration complaint against 

Coldwell and the seller’s agent, Hilton & Hyland Real Estate (Hilton), alleging that 

Kerrigan had been the procuring cause of the sale due to his previous representation of 

the buyer.2 The arbitration complaint was filed with the Beverly Hills/Greater Los 

Angeles Association of Realtors (the Association) because all the parties were members 

of that organization, which obligated them to arbitrate their dispute. Coldwell filed a 

written response to the complaint, acknowledging its agreement to arbitrate the dispute 

under the Association’s rules.

In January 2008 Mirzo declared bankruptcy and its arbitration commission claim 

became listed as an account receivable in its schedule of personal assets. In April 2008 

 

1 The trial court also sustained without leave to amend separate demurrers by 

defendants Beverly Hills/Greater Los Angeles Association of Realtors and Hilton & 

Hyland Real Estate. Kerrigan attempted to appeal from the concomitant judgments of 

dismissal from those orders, but we dismissed his appeal as to those parties because his 

notice of appeal was expressly limited to the judgment for Coldwell. 

2 Kerrigan apparently worked for a different broker when he showed the buyer the 

Malibu property. The parties have not addressed whether that affected Mirzo’s right to a 

broker’s commission.
3

the bankruptcy trustee agreed to sell Mirzo’s rights in that claim to Coldwell and Hilton 

for $50,000. That purchase was approved by the bankruptcy court in May 2008, and in 

June 2008 Coldwell and Hilton filed a joint dismissal of the arbitration. In August 2008 

the Association decided not to schedule an arbitration and considered the matter closed 

because Mirzo, as the broker employing Kerrigan, was a necessary party to the claim, and 

Mirzo’s claim was no longer pending as a result of Coldwell and Hilton’s dismissal.

In April 2008 Kerrigan sued Coldwell for intentional interference with contract 

and prospective economic advantage, alleging that Coldwell wrongfully interfered with 

his right to the commission from the sale of the Malibu property.3 In September 2010,

the trial court granted summary judgment for Coldwell after finding that Kerrigan’s 

claims were barred because: (1) as a licensed sales agent, Kerrigan could only receive a 

commission through his broker (Bus. & Prof. Code, § 10137); (2) there was no valid 

written contract between Kerrigan and the buyer of the Malibu property, as required by 

Civil Code section 1624, subdivision (a)(4); and (3) the buyer had terminated his 

relationship with Kerrigan and therefore Coldwell did not interfere with an existing 

prospective economic relationship.

Kerrigan appealed, but the judgment was affirmed by our colleagues in Division 

Four. (Kerrigan v. Coldwell Banker Residential Real Estate Company (Dec. 21, 2011, 

B229148) [nonpub. opn.] (Kerrigan I).) The Kerrigan I court expressly held that 

Kerrigan had no right to compensation under Civil Code section 1624 because the 

undisputed facts showed he did not have a written agreement with the buyer.

In August 2012, Kerrigan filed this action against Coldwell, Hilton, the 

Association, and several individual defendants associated with those entities, for breach 

of contract and breach of the implied covenant of good faith and fair dealing based on 

 

3 He also sued Coldwell broker Francine Hughes and salesman Neal Baddin. 

Unless otherwise indicated, when we refer to Coldwell we include both Hughes and 

Baddin.
4

their dismissal of the arbitration complaint that he and Mirzo filed in 2006.4 Kerrigan 

alleged that he was entitled to damages of at least $615,000, which was the amount of 

commission he could have recovered if the arbitration had proceeded.

In June 2013 the trial court sustained without leave to amend Coldwell’s demurrer 

to the complaint because the decision in Kerrigan I necessarily determined that Kerrigan 

did not have a valid contract that could have been enforced at arbitration. Kerrigan 

appeals from the judgment of dismissal entered for Coldwell.

STANDARD OF REVIEW

In reviewing a judgment of dismissal after a demurrer is sustained without leave to 

amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. 

Regardless of the label attached to the cause of action, we must examine the complaint’s 

factual allegations to determine whether they state a cause of action on any available 

legal theory. (Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 745.)

We will not, however, assume the truth of contentions, deductions, or conclusions 

of fact or law and may disregard allegations that are contrary to the law or to a fact which 

may be judicially noticed. When a ground for objection to a complaint, such as the 

statute of limitations, appears on its face or from matters of which the court may or must 

take judicial notice, a demurrer on that ground is proper. (Code Civ. Proc., § 430.30, 

subd. (a); Black v. Department of Mental Health, supra, 83 Cal.App.4th at p. 745.) We 

may take judicial notice of the records of a California court. (Evid. Code, § 452, 

subd. (d).) We must take judicial notice of the decisional and statutory law of California 

and the United States. (Evid. Code, § 451, subd. (a).)

 

4 The Association and its related individual defendants were also sued for breach of 

fiduciary duty.
5

DISCUSSION

1. The Demurrer Was Properly Sustained Due to the Collateral 

Estoppel Effect of Kerrigan I

Under California law, only a licensed real estate broker can collect a commission 

from the sale of real property. As a result, an agent can contract only in the name of his 

broker and can recover his commission only through his broker. (Bus. & Prof. Code, 

§ 10137; Edmonds v. Augustyn (1987) 193 Cal.App.3d 1056, 1063, fn. 7.) Once 

Coldwell and Hilton acquired broker Mirzo’s claim, they dismissed the arbitration 

complaint, at least as to Mirzo. Even though Kerrigan remained as a nominal party, only 

Mirzo possessed the right to directly recover a commission. The Association therefore 

dismissed the arbitration for lack of an indispensable party and declined to schedule the 

matter for arbitration.

5

As best we can tell from Kerrigan’s appellate briefs, he contends that the trial 

court erred by taking judicial notice of Kerrigan I and misapplied the collateral estoppel 

doctrine because the enforceability of his commission claim was completely separate 

from the misconduct alleged in this action – Coldwell’s failure to live up to its 

contractual obligation to arbitrate under the Association’s rules through its deceptive 

acquisition and subsequent dismissal of broker Mirzo’s arbitration claim.6

 

5 The Association’s rules gave it express discretion to decline an arbitration if the 

Association believed the matter was too complex, involved too large a sum of money, or 

it “otherwise determine[d] that the matter is not subject to arbitration through the 

Association for any reason.”

6 Kerrigan also contends that his contractual right to demand arbitration survived 

Mirzo’s bankruptcy because: (1) Mirzo’s owner, Silva Mirzoian, was the responsible 

broker, not the corporation, and he was ready and willing to arbitrate; and (2) because 

the bankruptcy court order approving the sale stated it had no effect on Kerrigan’s right 

to pursue claims against Coldwell.

As to the first, we note that a corporation such as Mirzo may be a licensed broker. 

(Bus. & Prof. Code, §§ 10006, 10131; Estate of Baldwin (1973) 34 Cal.App.3d 596, 604.) 

Although the arbitration complaint was signed by Silva Mirzoian as the responsible 

broker, he listed Mirzo as his firm, and an October 30, 2006, letter he wrote to Kerrigan 
6

Although Coldwell contends it did nothing more than settle a claim that had no 

merit, we understand Kerrigan believes Coldwell unfairly deprived him of an arbitration 

claim.

7

 Regardless of how one might view that transaction, Kerrigan had no right to a 

commission absent a written contract with the buyer. (Civ. Code, § 1624, subd. (a)(4); 

Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1255-1257; Hasekian v. Krotz

(1968) 268 Cal.App.2d 311, 318.) That no such contract exists has been finally 

determined in Kerrigan I, a finding that may not be relitigated here under principles of 

collateral estoppel. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 

1516-1517 [prior final judgment that contract was invalid and unenforceable applied in 

subsequent action].)

Resulting damages is an essential element of causes of action for breach of 

contract and breach of the implied covenant of good faith and fair dealing. (Thrifty 

Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244

[breach of contract]; Wolkowitz v. Redland Ins. Co. (2003) 112 Cal.App.4th 154, 162

[implied covenant].) If Kerrigan had no contractual right to a commission, then he could 

 

states that the complaint was filed by Mirzo. In any event, Silva Mirzoian has never 

challenged the dismissal of the arbitration. As to the bankruptcy court order’s statement 

that Kerrigan retained his right to pursue his claims against Coldwell and Hilton, 

Kerrigan’s right to do so does not mean that his claims were valid. As set forth below, 

they were not because there was no written agreement with the buyer. (Civ. Code, 

§ 1624, subd. (a)(4).) The same is true as to both Mirzo and Silva Mirzoian, making 

irrelevant the dispute over which one was the responsible broker.

To the extent Kerrigan contends he raised any other issues, we deem them waived 

for failure to provide appropriate citations to the record or relevant case authority. 

(Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1374.)

7 Kerrigan points to the bankruptcy court’s deletion from the proposed order of a 

finding that the court found “no evidence to contradict the conclusion that the sale of the 

Property to [Coldwell and Hilton] was done in ‘good faith’ as defined in Section 363(m) 

of the Bankruptcy Code,” suggesting that the court thought the transaction was not made 

in good faith. However, a finding of good faith by the purchaser was required before the 

sale could be approved (11 U.S.C. § 363(b)(1); In re JL Bldg., LLC (2011) 452 B.R. 854, 

859.) As a result, we view the bankruptcy court’s deletion of the proposed language as 

nothing more than a recognition that there was some evidence of bad faith, not that bad 

faith in fact existed. 
7

have never prevailed had the arbitration with Coldwell gone forward. We understand the 

distinction Kerrigan makes between his right to recover a commission and breach of an 

agreement to arbitrate a dispute over that commission, but he still must show he was 

damaged by the breach. Of what value is the right to arbitrate a dispute you are preordained to lose? None that we know of. Kerrigan has never articulated a basis for 

damages except for the alleged loss of his right to arbitrate, and we discern none.

2. Kerrigan Cannot Amend the Complaint to Seek Specific Performance

Kerrigan also contends that the trial court erred by denying his motion to amend 

the complaint to delete the prayer for damages and effectively convert it into an action for 

specific performance that would command Coldwell to arbitrate the dispute.8 This issue 

dovetails with another trial court finding in regard to Coldwell’s demurrer – that Kerrigan 

waived his right to ask the court to vacate the arbitrator’s dismissal under Code of Civil 

Procedure section 1286.2 (section 1286.2).

Section 1286.2 allows a party to ask the court to vacate an arbitration award on 

various grounds. We agree with Kerrigan that this section was not applicable here, where 

the Association declined to ever schedule an arbitration after Coldwell and Hilton 

acquired Mirzo’s rights to the claim and then dismissed it. As a result, there was no 

award to vacate.

However, once the Association declined to schedule an arbitration, Kerrigan could 

have petitioned the court to compel arbitration. (Code Civ. Proc., § 1281.2.) Instead, he 

chose to sue Coldwell in Kerrigan I, and then Coldwell, Hilton, and the Association in 

 

8 That motion was filed in December 2012 in connection with Kerrigan’s opposition 

to Hilton’s demurrer, which also raised the collateral estoppel effect of Kerrigan I. 

Hilton & Hyland opposed that motion on the ground that Kerrigan did not give sufficient 

notice. The motion was denied, but the record does not show why. Although Kerrigan’s 

opposition to Coldwell’s demurrer mentioned his request for leave to amend, the record 

does not contain a proposed amended complaint or a renewed motion for leave to amend. 

It is therefore arguable that Kerrigan waived the issue. Coldwell does not address the 

issue, and we choose to reach it on the merits.
8

this action. As a result, he waived his right to compel arbitration under that provision. 

(Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1194-1195.)

Petitions to compel arbitration are in essence suits in equity for specific 

performance of an agreement to arbitrate a dispute. (Rosenthal v. Great Western 

Financial Securities Corp. (1996) 14 Cal.4th 394, 411.) Enforcement of such agreements 

has long been provided by statute (Utah Const. Co. v. Western Pac. Ry. Co. (1917) 

174 Cal. 156, 159, overruled on other grounds in Moncharsh v. Heily & Blase (1992) 

3 Cal.4th 1, 27-28), and shows that the Legislature intended to adopt a “comprehensive 

all-inclusive statutory scheme applicable to all written agreements to arbitrate,” and 

thereby abolished the doctrines applicable to common law arbitrations (Downer 

Corporation v. Union Paving Co. (1956) 146 Cal.App.2d 708, 712, disapproved on other 

grounds in Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 183 [citation and 

internal quotation marks omitted]). In short, Kerrigan’s only remedy was a petition to 

compel arbitration. As a result, he may not amend his complaint to specifically enforce 

his arbitration agreement.9

DISPOSITION

The judgment of dismissal for Coldwell is affirmed. Respondent shall recover its 

costs on appeal.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J. GRIMES, J.

 

9

 We disagree with Kerrigan that Coldwell and Hilton’s purchase of the arbitration 

claim in the bankruptcy case was itself a violation of the contractual duty to arbitrate. A 

purchase is not an act in furtherance or derogation of arbitration. In any event, we reject 

Kerrigan’s argument for another reason: if anything Coldwell and Hilton did in the 

context of the purchase of the arbitration claim violated their obligation to arbitrate, the 

remedy was a petition to compel arbitration under Code of Civil Procedure section 

1281.2, something Kerrigan never pursued.