Zhang v. Fan CA2/7

Filed 9/12/16 Zhang v. Fan CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

ZINSHU ZHANG, B268277

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. YC069507) v.

JING FAN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Ramona G. See, Judge. Affirmed. Jinshu Zhang, in pro. per., for Plaintiff and Appellant. David S. Miller and F. Stephen Jones, for Defendants and Respondents Jing Fan and Home Times Group, Inc. _________

After Jinshu Zhang and his wife discovered the newly-constructed townhome they had purchased did not contain the window design elements they wanted, Zhang sued his real estate agent for breach of contract. Following a bench trial, the trial court found the couple had not identified those architectural elements as being material to their purchase decision and thus no breach had occurred. On appeal Zhang contends the trial court erroneously focused on a real estate agent’s standard of care under Civil Code section 2079.2 and did not consider whether the agent’s conduct otherwise amounted to a breach of fiduciary duty. He also contends the court erred in concluding he had not suffered any damages. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND 1. The Real Estate Purchase In May 2013 Zhang and his wife, Yuan Fu, hired Jing Fan as their real estate agent. Fan worked with real estate broker Home Times Group, Inc. In June 2013 Zhang, Fu and Fan visited “THREE SIXTY at Southbay,” a new housing development under construction in Hawthorne. After touring four different model homes, Zhang and Fu agreed on the “The Townes Two” floor plan, a three-level townhome that included three bedrooms and a den. The model with this floor plan had an arched window in the den and a floor-to-ceiling window in the master bedroom. Zhang and Fu wanted to purchase the model they had seen, but it was not for sale. Zhang and Fu decided to purchase Lot 320, an improved lot scheduled to be built out with a townhome using The Townes Two floor plan. With Fan’s assistance, Fu signed an agreement with the developer to purchase Lot 320 for $609,990. Paragraph 5.4 of the joint purchase and escrow instructions provided that the buyer acknowledges “[t]he Property will not necessarily conform with any model. The exterior elevations, architectural treatments, floor plans and colors are shown on the master plot plans on display at the office of the Seller, which may be different than those displayed in the models. Additionally, window locations, window types, . . . vary by elevation and lot