Title insurance case
[T]he fiduciary relationship between plaintiff [purchaser] and defendant [escrow holder] is limited to
defendant carrying out the escrow instructions...
Second case: so, too, must the relaxed duty of plaintiff to inquire be limited in such a manner. In other
words, plaintiff was entitled to assume without inquiry only that defendant was carrying out the escrow
SOIFER v. CHICAGO TITLE COMPANY, Cal: Court of
Appeal, 2nd Appellate Dist., 3rd Div. 2010
BEN SOIFER, Plaintiff and Appellant,
CHICAGO TITLE COMPANY et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Three.
Filed August 10, 2010.
Certified for Publication
Kneafsey, Tostado & Associates, Sean M. Kneafsey and Shaun Swiger for Plaintiff and Appellant.
Glaser, Weil, Fink, Jacobs, Howard & Shapiro, Joel N. Klevens and Diane K. Myint for Defendants and
CROSKEY, Acting P. J.
In this case, the plaintff and appellant, Ben Soifer, appeals a judgment entered after the trial court
sustained a demurrer to his first amended complaint without leave to amend. In Southland Title Corp. v.
Superior Court (1991) 231 Cal.App.3d 530 (Southland), we held that a title company could not be held
liable for the negligent preparation of a preliminary report of title. Rather, if a representation was
sought from the title company as to the condition of the title to a particular property, an abstract of title
should have been obtained. Here, plaintiff neither sought, obtained nor desired a policy of title
insurance or an abstract of title, but nonetheless seeks to hold the respondent, Chicago Title Company
(Chicago), liable in both tort and contract for alleged negligence and misrepresentations with respect to
the seniority status of encumbrances on certain properties that were in the process of trust deed
We adhere to our analysis in Southland and extend and apply it here to the several claims asserted by
plaintiff. We hold that a plaintiff cannot recover for errors in a title company's statements regarding the
condition of title to a property in the absence of a policy of title insurance or the purchase of an abstract
of title. We therefore will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As this case comes to us on demurrer, we accept as true the facts alleged by plaintiff in his complaint.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Essentially, plaintiff alleges that in late 2007, he was an investor in distressed real estate. His business
plan involved the purchase of real properties that were being foreclosed upon by mortgage holders. In
order to decide whether to bid on a particular property, he needed to know if the foreclosing lender was
in fact the senior lender on that property. Put another way, if he made a successful bid at a foreclosure
sale and the foreclosing lender held a secured position junior to other more senior liens, then plaintiff's
title would be subject to such liens.
In order to avoid such a result, plaintiff alleges that he entered into an oral agreement with Chicago's
agent, Miguel Escutia, in which it was agreed that Escutia, on behalf of Chicago, would provide title
information upon which plaintiff would rely in deciding whether to make a bid at a particular
foreclosure sale. In exchange, plaintiff alleges that he agreed that he would place business with Chicago
upon the subsequent resale of the foreclosed properties. The information that plaintiff wanted from
Chicago was limited, specific and time sensitive. He needed, usually within twenty-four hours before a
particular foreclosure sale, a "yes" or "no" answer to the question of whether a particular designated
foreclosing loan was a senior lien.
Plaintiff emphasizes he neither sought nor obtained a "preliminary title report." What he sought and
what Escutia allegedly provided were simple short e-mail answers to his questions as to the senior
status of multiple loans. Other than his promise of future title insurance business, plaintiff neither paid
nor agreed to pay for these services.
On March 6, 2008, plaintiff requested seniority information as to a loan that was being foreclosed upon
a property located on Woodley Avenue in Encino, California. Through Escutia, Chicago allegedly
informed plaintiff that the foreclosing loan (in the amount of $990,000) was in a senior position. In
fact, it was junior to a first deed of trust held by Citimortgage, Inc., in the sum of $1,600,000.
Plaintiff alleges that, in reliance on Chicago's one-word "yes" e-mail response to his inquiry about the
Woodley loan, he submitted a bid at the foreclosure sale on March 11, 2008 in the sum of
$1,000,000.01. He further alleges that he was only able to sell the property for $1,200,000 and, after
negotiating a reduction in and then paying the balance remaining on the senior Citimortgage lien, he
sustained a loss in the sum of $1,000,000.
He then brought this action against Chicago for negligence and negligent misrepresentation. After
Chicago successfully demurred to the original complaint, plaintiff filed his first amended complaint
which added causes of action for breach of oral contract and so-called "abstractor negligence." The first
amended complaint is the operative pleading in this matter. Chicago again demurred. The trial court
agreed with Chicago's arguments and sustained the demurrer without leave to amend.
Relying primarily on two cases, Southland, supra, 231 Cal.3d 530 and Siegel v. Fidelity National Title
Ins. Co. (1996) 46 Cal.App.4th 1181 (Siegel), as well as two important statutes (Ins. Code, § 12340.10
and 12340.11), the trial court reasoned that since plaintiff had neither sought nor obtained a policy of
title insurance or an abstract of title, Chicago had no liability to plaintiff on any theory.
Plaintiff has prosecuted a timely appeal.
CONTENTIONS OF THE PARTIES
Plaintiff argues that the information requested from Chicago did not constitute a preliminary report of
title, but rather were the services of an "abstractor" with respect to which plaintiff and Chicago had
entered into an enforceable oral contract and that those services had been negligently performed
resulting in damage to plaintiff. Plaintiff contends that those circumstances support his alleged
negligence, breach of contract and negligent misrepresentation claims. Finally, plaintiff contends that
the trial court should have granted him leave to allege a fraudulent concealment cause of action.
Chicago argues in response that a title company can only be liable for negligently misstating the status
of a title if it issues an "abstract of title" and the informal communications involved in this case were
not proper abstracts. Those circumstances, Chicago argues, effectively defeat all of plaintiff's asserted
or proposed causes of action. We agree with Chicago.
1. The Nature of Plaintiff's Claim
The allegations of, and exhibits attached to, plaintiff's complaint make clear that he claims a contractual
relationship existed between him and Chicago which called for a very informal and limited provision of
title information by Chicago. Plaintiff would supply a property address and loan number of a pending
foreclosure sale to Escutia, who would provide a "yes" or "no" answer to the question of the loan's
seniority. As already explained, plaintiff's need for information was extremely time-sensitive.
Plaintiff's basis for recovery, whatever the theory of a particular cause of action, rests entirely upon the
proposition that such an informal arrangement could, as a matter of law, result in abstractor liability to
Chicago. Put another way, plaintiff does not claim that he sought or requested a policy of title insurance
from Chicago. What he essentially does claim is that the agreement that he claims to have entered
into with Chicago amounted to an undertaking by Chicago to act as an abstractor and the informal email responses to plaintiff's multiple inquires as to loan title status constituted abstracts of title, the
negligent preparation of which subjected Chicago to liability.
2. Relevant Statutory Provisions
The Legislature has, in the Insurance Code, made specific provision for the conduct of the business of
title insurance. Several of those statutory provisions are relevant to the issues presented in this case.
Section 12340.1 defines "title insurance" to mean "insuring, guaranteeing or indemnifying owners of
real or personal property or the holders of liens or encumbrances thereon or others interested therein
against loss or damage suffered by reason of: (a) Liens or encumbrances on, or defects in the title to
said property; (b) Invalidity or unenforceability of any liens or encumbrances thereon; or (c)
Incorrectness of searches relating to the title to real or personal property."
Section 12340.2 defines "title policy" to mean "any written instrument or contract by means of which
title insurance liability is assumed."
Section 12340.10 states that an "abstract of title" is a "written representation, provided pursuant to a
contract, whether written or oral, intended to be relied upon by the person who has contracted for the
receipt of such representation, listing all recorded conveyances, instruments or documents which, under
the laws of this state, impart constructive notice with respect to the chain of title to the real property
described therein. An abstract of title is not a title policy as defined in Section 12340.2." (Italics added.)
Finally, in section 12340.11, the terms "preliminary report," "commitment" and "binder" are defined as
"reports furnished in connection with an application for title insurance and are offers to issue a title
policy subject to the stated exceptions set forth in the reports and such other matters as may be
incorporated by reference therein. The reports are not abstracts of title, nor are any of the rights, duties
or responsibilities applicable to the preparation and issuance of an abstract of title applicable to the
issuance of any report. Any such report shall not be construed as, nor constitute, a representation as to
the condition of title to real property, but shall constitute a statement of the terms and conditions upon
which the issuer is willing to issue its title policy, if such offer is accepted."
Prior to the enactment of Insurance Code sections 12340.10 and 12340.11, caselaw had held that a
preliminary title report is the equivalent of an abstract of title, and that a title insurer could be liable in
negligence for its failure to list all recorded encumbrances in a preliminary title report. (Southland,
supra, 231 Cal.App.3d at p. 535.) However, in 1981, the Legislature enacted Insurance Code sections
12340.10 and 12340.11 in order to "make a formal distinction between" a preliminary title report and
an abstract of title. (Southland, supra, 231 Cal.App.3d at p. 536.) From that time onward, a preliminary
title report "[would] no longer be treated or considered to have the legal consequence of an abstract of
title. If a current representation as to the status of title is required then an abstract can be ordered and
separately purchased." (Ibid.) The change in law was sought by the California Land Title Association.
(Sen. Com. on Insurance and Indemnity, analysis of Assem. Bill No. 334 (1981-1982 Reg. Sess.) as
amended April 29, 1981.) It was deemed necessary in order to "assure that the title insurers are able to
charge appropriate premiums for foreseeable liablity, rather than as [was] the case under [then-]current
case law. Since the premiums or fees charged for preliminary reports are much less than those for
abstracts, the result of such decisions [was] to impose liability on the insurers to an extent beyond
which they have computed the premium charge (i.e., an unfunded liability)." (Cal. Dept. of Insurance,
Enrolled Bill Rep. on Assem. Bill No. 334 (1981-1982 Reg. Sess.) prepared for the Governor (May 30,
1981), p. 2.)
3. Plaintiff's Claim Does Not Provide A Basis For Holding
Chicago Liable For Breach of Contract, Negligence or Fraudulent
Nearly twenty years ago, we held in Southland that the failure of a preliminary report of title to disclose
an easement could not serve as the basis for "abstractor negligence" against the title company. The
plaintiff had purchased a policy of title insurance, which insured a property purchase price of $92,000.
When a defect in title was discovered which allegedly caused $100,000 in damages, the plaintiffs
sought to recover the additional damages in a cause of action for negligent preparation of the
preliminary title report, which had failed to disclose the defect. (Southland, supra, 231 Cal.App.3d at p.
We summarized the impact of the Legislature's enactment of Insurance Code, sections 12340.10 and
12340.11, "[t]he Legislature can set public policy for a state through its enactments [citation], and here
the Legislature has determined to make a formal distinction between an `abstract of title' and a policy
of title insurance. It is only in connection with the latter document that a `preliminary report' of title is
issued. No longer will these two separate and distinct transactions be intermingled as they have been by
prior case law. [citation] [¶] A preliminary report, for which little or no charge is made, is merely the
inducement to purchase a title policy. It will no longer be treated or considered to have the legal
consequence of an abstract of title. If a current representation as to the status of title is required then
an abstract can be ordered and separately purchased. [¶] The effect of section 12340.10 is to make
clear that a person who contracts for the written representation known as an `abstract of title' will
receive all of the rights associated with that written representation. Such a purchased and express
representation can be relied upon. If negligently prepared, the abstractor obviously would be exposed to
all liability which normally flows from the consequences of professional malpractice." (Southland,
supra, 231 Cal.App.3d at p. 536; fn. omitted; italics added.)
Plaintiff seeks to avoid the consequences of cases like Southland by claiming his agreement with
Chicago was, in legal effect, a contract for an "abstract of title." That contention, however, runs up
against the plain statutory definition of an abstract as set out in Insurance Code, section 12340.10: ". . .
a written representation . . . listing all recorded conveyances, instruments or documents which . . .
impart constructive notice with respect to the chain of title . . . ." (Italics added.) Plaintiff, by his own
pleading, neither sought nor agreed to pay for such an abstract. He sought only quick one-word answers
to his very time-sensitive inquiries about specific foreclosing loans that he had already identified. As
Chicago argues, plaintiff sought a quick look at the public record at no cost to him except for the vague
"promise" of some undefined future business. The trial court saw it the same way. "You have made a
title insurance company a super guarantor of your trustee sale transaction. I don't think there is any
possible way for that duty to be imposed in this case."
By virtue of artful pleading, plaintiff seeks to recharacterize a very informal, almost casual,
arrangement into a formal legal commitment. In doing so, he seeks to place himself in a better position
than a party who requests and relies on a preliminary report of title. But if a party who relies on such a
report is unable to hold the title company liable as an abstractor (Southland, supra, 231 Cal.App.3d at
pp. 536-537), there would appear to be no basis on which plaintiff can do so. While plaintiff concedes
that abstractor liability is no longer available as a basis for recovering damages resulting from an
inaccurate preliminary title report, he seeks the same abstractor liablity for a lesser document. A
quickly-prepared one-word e-mail, for which Chicago did not compute and charge a premium, which in
no way meets the statutory definition of an abstract of title simply cannot support a cause of action for
abstractor negligence. "[A] title insurer who has not undertaken to perform as an abstractor owes no
duty to disclose recorded liens or other clouds on title." (Siegel, supra, 46 Cal.App.4th at p. 1190;
The Siegel and Southland courts, in rejecting a plaintiff's attempt to rely on a preliminary report of title
where no policy of title insurance had been purchased, succinctly summarized the state of the law
applicable here: "In short, a title insurer prepares a preliminary report to limit its own risk—by locating
and excluding items from coverage—and not on behalf of any party to a real estate transaction. A party
who does not purchase title insurance may not rely on the title insurer to protect his or her interests or
to disclose all detrimental information contained in the recorded files. Parties who desire protection
against the possibility that negative information exists that was not revealed in the title insurer's search
of the records must obtain title insurance. Insurance Code sections 12340.10 and 12340.11 leave no
room for the existence of a duty of care based on the title company's search of records and issuance of a
preliminary report and title insurance policy." (Siegel, supra, 46 Cal.App.4th at p. 1193; italics added.)
A party that seeks to hold an insurer liable for negligently providing title information upon which the
party relied must obtain an abstract of title. "If a current representation as to the status of title is
required then an abstract can be ordered and separately purchased." (Southland, supra, 231 Cal.App.3d
at p. 536.)
In short, there are two ways in which an interested party can obtain title information upon which
reliance may be placed: an abstract of title or a policy of title insurance. Having purchased neither,
plaintiff cannot recover in this case.
On appeal, plaintiff argues that business realities often require the purchase of something less than a
complete abstract of title, and that an affirmance in this case would mean that there would be no way in
which a property buyer and a title insurer could voluntarily contract for the insurer to provide limited
title information for which the insurer would be liable if the information was in error. We disagree. We
believe Insurance Code section 12340.1 defines "Title Insurance" in such a way as to permit such an
agreement. Title insurance is "insuring, guaranteeing or indemnifying owners of real . . . property . . .
against loss or damage suffered by reason of: (a) Liens or encumbrances on, or defects in the title to
said property; . . . or (c) Incorrectness of searches relating to the title to real . . . property." (Ins. Code, §
12340.1.) In other words, if plaintiff sought an agreement indemnifying him against loss or damage
suffered by reason of an additional senior encumbrance on the Woodley Avenue property, or
guaranteeing against the incorrectness of Escutia's quick search of the records pertaining to title to that
property, he could have purchased a policy of title insurance from Chicago. Having failed to do so, he
cannot obtain the benefits he would have received from an insurance policy for which he never paid a
Finally, plaintiff argues that he should have been allowed leave to amend his complaint to allege a new
cause of action for concealment. He contends that he can allege that Chicago concealed its belief that it
was under no obligation to provide accurate information. Such allegations appear to be inconsistent
with his current pleading and, in any event, do not state a proper cause of action for fraud. The trial
court properly denied plaintiff leave to file such amended pleading.
The judgment is affirmed. Chicago shall recover its costs on appeal.
 Indeed, plaintiff argued in his opposition to Chicago's demurrer to his first amended complaint,
"This case has nothing to do with title insurance, the offer to buy title insurance, or the issuance of a
preliminary title report."
 In plaintiff's original complaint, he alleged, "In exchange for receiving [plaintiff's] business when
the property was subsequently sold, Chicago Title agreed to research and provide information regarding
the properties for [plaintiff] to rely upon in deciding whether to purchase the properties. This
information most notably included whether the properties were being foreclosed upon by a junior or
senior lender." In his first amended complaint, plaintiff alleged, "In exchange for receiving [plaintiff's]
business when the property was subsequently sold, Chicago Title agreed to research and provide chain
of title information regarding the properties for [plaintiff] to rely upon in deciding whether to purchase
the properties. . . . [Plaintiff] requested, and Escutia agreed, to provide [plaintiff] with a written
representation as to whether there were any recorded conveyances, instruments, or documents on the
subject properties that would adversely affect [plainitff's] ability to take clean title at a foreclosure
sale. This included, but was not limited to, any superior title interest including, but not limited to,
superior lien holders, such as tax or mechanics liens. The most important information, however, was
whether the property was being foreclosed upon by a junior or senior lender because this was the most
obvious potential title defect." (Emphasis added.) While plaintiff's amended pleading attempts to fall
squarely within the statutory definition of an abstract, the documents attached to the complaint clearly
demonstrate that plaintiff sought only a one-word "yes" or "no" answer as to whether the loan being
foreclosed upon was the senior encumbrance. Indeed, plaintiff often proceeded by sending Escutia a
prepared spreadsheet which included a column labelled, "Is This The Senior Trust Deed (1st) Yes or
No" and asking him to simply put a "yes" or "no" in that column.
 "Title companies are in the business of issuing title insurance policies. They do not charge for
preliminary reports, but their profits are derived from premiums earned from selling insurance policies,
where the amount of the premium is commensurate with the risk assumed." (Southland, supra, 231
Cal.App.3d at p. 538.)
 It is apparent that Escutia did not haphazaradly insert the words "yes" and "no" randomly into
plaintiff's spreadsheets, on the basis that it had no obligation to provide accurate information to
plaintiff. Clearly, Escutia endeavored to provide correct information and, perhaps due to the time
pressure, simply made a mistake. Indeed, as the Siegel court stated, "The records pertaining to real
property are complex and encumbrances may be missed by even the most thorough search. Title
insurance is an acknowledgment that errors may have been made." (Seigel, supra, 46 Cal.App.4th at p.
1191.) That Chicago has no legal liability for Escutia's mistake in the absence of a title insurance policy
or abstract of title does not give rise to a cause of action for fraudulent concealment.
Lee v. Escrow Consultants, Inc., 210 Cal. App. 3d 915 - Cal:
Court of Appeal, 2nd Appellate Dist., 4th Div. 1989
Lee v. Escrow Consultants, Inc., 210 Cal. App. 3d 915 - Cal: Court of Appeal, 2nd Appellate Dist., 4th
210 Cal.App.3d 915 (1989)
259 Cal. Rptr. 117
MONTY S. LEE, Plaintiff and Appellant,
ESCROW CONSULTANTS, INC., Defendant and Respondent.
Docket No. B035169.
Court of Appeals of California, Second District, Division Four.
May 22, 1989.
Lewis B. Kean for Plaintiff and Appellant.
Weinberg, Zipser, Arbiter, Heller & Quinn, Steven A. Morriss and Laurence D. Strick for Defendant
Plaintiff Monty Lee appeals from the order of dismissal entered after the trial court sustained without
leave to amend the demurrer of defendant Escrow Consultants, Inc.
Factual and Procedural History
In his original complaint plaintiff purported to plead causes of action for fraud, breach of contract,
negligence, and conversion against defendant arising out of plaintiff's $100,000 investment in a real
property transaction. Defendant demurred to the original complaint on the grounds that the various
causes of action were barred by the applicable statute of limitations. The trial court sustained
defendant's demurrer with leave to amend, ruling: "Plaintiff has not alleged facts showing grounds for
delayed discovery or tolling of the statutes of limitation." Plaintiff then filed a first amended 918*918
complaint in which he attempted to explain the reason for the delay in commencing this action.
Defendant again demurred. In sustaining that demurrer with leave to amend the trial court ruled: "[I]f
plaintiff is going to rely upon a theory of delayed discovery, additional facts showing the
reasonableness of the delay must be alleged and the dates of critical events cannot be omitted simply to
plead around the applicable statute of limitations. For example, when was the alleged breach of
contract? ... Further, what is plaintiff's authority for the proposition that the concept of delayed
discovery applies to a cause of action for breach of contract? ... When was the alleged conversion? ...
"To plead around the statute of limitations, plaintiff must allege facts (not conclusions) showing the
dates of cognizable events; it is these events, and not knowledge of their legal significance, that start
the running of the statute of limitations. [Citation.] Moreover, once a person becomes aware of facts
which would make a reasonably prudent person suspicious, that person has a duty to investigate further,
and is charged with knowledge which would have been revealed by such an investigation. [Citation.]
".... .... .... .... ....
"THIS IS THE FINAL OPPORTUNITY TO AMEND."
In response to the trial court's ruling plaintiff filed a "corrected second amended complaint." (1) (See
fn. 1.) In that pleading plaintiff attempts to allege causes of action for fraud, breach of contract,
negligence, conversion and civil conspiracy against defendant. In substance, plaintiff alleges that in
June 1981 an escrow was opened with defendant through which Richard B. Mitchell and Ann S.
Mitchell purported to sell a parcel of real property located in Pima, Arizona to Benzion Cohen and
Solayman Saberi for $1,373,750. On September 24, 1981, an amendment to the escrow was filed
assigning "all right, title and interest" in the Pima property to plaintiff, his wife Joan Lee, Hedy S. Kay
and Abraham Hayun. Pursuant to this amendment, plaintiff deposited $100,000 into the escrow.
On September 25, 1981, another amendment to the escrow instructions was filed. This amendment bore
the forged signature of plaintiff and purported to authorize the release of $79,000 to the sellers. Other
escrow amendments authorized the withdrawal of escrow funds on July 8, August 919*919 4 and
September 11, 1981. Plaintiff did not learn of these withdrawals until August, 1986. Prior to that time,
plaintiff had been informed by Mr. Cohen that title to the property had passed but that escrow could not
close until problems relating to subdivision approval were solved. Only $5,100 now remains in the
escrow, and no title to the Pima property has passed.
In his fraud cause of action, plaintiff alleges that the Mitchells never held any interest in the Pima
property and that Mr. Cohen misrepresented their interest in order to induce plaintiff to deposit
$100,000 into the escrow. Plaintiff further alleges that defendant did not attempt to verify his signature
on the escrow amendment which purported to authorize the release of funds.
In his breach of contract cause of action, plaintiff alleges that defendant breached the escrow agreement
by releasing funds pursuant to the fraudulent amendment.
In his negligence cause of action, plaintiff alleges that defendant negligently failed to verify plaintiff's
signature on the escrow amendment.
Next, plaintiff alleges that the unauthorized withdrawal of his funds from the escrow constituted a
conversion. Finally, plaintiff alleges that defendants conspired with each other to defraud him.
Defendant again interposed a general demurrer to plaintiff's second amended complaint. The trial court
sustained that demurrer without leave to amend and rendered an order of dismissal. This appeal
(2a) Plaintiff first contends that the trial court erroneously sustained defendant's demurrer on statute of
limitations grounds. Plaintiff urges that "Code of Civil Procedure § 337 and § 339 provides that when
the ground for rescission of either an oral contract or contract in writing is fraud or mistake the time
does not begin to run until the discovery by the aggrieved party of the facts constituting the fraud or
mistake." Initially, we note that this assertion is targeted only to the timeliness of plaintiff's breach of
contract cause of action. It does not directly address the propriety of the trial court's ruling with respect
to the fraud, negligence, conversion and civil conspiracy causes of action. (3) Each of those causes of
action, however, is premised upon the identical alleged wrongful conduct. Accordingly, under the facts
of this case the same timeliness analysis applies to each cause 920*920 of action. (April Enterprises,
Inc. v. KTTV (1983) 147 Cal. App.3d 805, 828 [195 Cal. Rptr. 421].)
(2b) In the present case the final wrongful act alleged by plaintiff occurred on September 25, 1981.
Plaintiff did not file his original complaint until November 21, 1986. The parties are in agreement that
the timeliness of this action turns on whether plaintiff has pleaded sufficient facts to toll the limitations
period due to the delayed discovery doctrine embodied in Code of Civil Procedure section 338,
subdivision 4. Plaintiff alleges that he did not learn of defendant's wrongful conduct until August of
1986. In arguing that plaintiff's alleged ignorance was insufficient to toll the limitations period,
defendant relies on the following passage from Witkin: "C.C.P. 338(4) adds the statement (commonly
found in fraud statutes of limitation: [citation]): `The cause of action in such case not to be deemed to
have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.'
Literally interpreted, this language would give the plaintiff an unlimited period to sue if he could
establish ignorance of the facts. But the courts have read into the statute a duty to exercise diligence to
discover the facts. The rule is that the plaintiff must plead and prove the facts showing: (a) Lack of
knowledge. (b) Lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts
could not have been discovered at an earlier date). (c) How and when he did actually discover the fraud
or mistake. Under this rule constructive and presumed notice or knowledge are equivalent to
knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable
person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation
(such as public records or corporation books), the statute commences to run." (3 Witkin, Cal. Procedure
(3d ed. 1985) Actions, § 454, pp. 484-485.)
The trial court also apparently relied upon plaintiff's failure to plead facts demonstrating the
reasonableness of his delayed discovery in sustaining defendant's demurrer. In reaching this
conclusion, the trial court acknowledged the holding in Kirby v. Palos Verdes Escrow Co. (1986) 183
921*921 Cal. App.3d 57, 64 [227 Cal. Rptr. 785], that "[a]n escrow holder is the limited agent and
fiduciary of all parties to an escrow. [Citations.] The agency is limited because the escrow agent only
represents his principals insofar as he carries out the escrow instructions."
The trial court did not, however, recognize that the fiduciary relationship between plaintiff and
defendant relaxed plaintiff's duty to inquire into the circumstances surrounding defendant's alleged
fraud. As Witkin explains: "If the plaintiff and defendant are in a confidential relationship there is no
duty of inquiry until the relationship is repudiated. The nature of the relationship is such as to cause the
plaintiff to rely on the fiduciary, and awareness of facts which would ordinarily call for investigation
does not excite suspicion under these special circumstances.... [¶].... [¶] However, once the plaintiff
becomes aware of facts which would make a reasonably prudent person suspicious, the duty to
investigate arises, and he may then be charged with knowledge of facts that would have been
discovered by such an investigation. [Citation.]" (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §
456, p. 487.)
In this case, since the fiduciary relationship between plaintiff and defendant is limited to defendant
carrying out the escrow instructions, so, too, must the relaxed duty of plaintiff to inquire be limited in
such a manner. In other words, plaintiff was entitled to assume without inquiry only that defendant was
carrying out the escrow instructions. Plaintiff's various causes of action are premised on the improper
withdrawal of funds from the escrow due to an allegedly forged amendment to the escrow instructions.
The original escrow instructions state in capital letters: "NO NOTICE DEMAND OR CHANGE OF
INSTRUCTIONS SHALL BE OF ANY EFFECT IN THIS ESCROW UNLESS GIVEN IN WRITING
BY ALL PARTIES AFFECTED THEREBY." In effect, plaintiff pleads that defendant violated this
provision by disbursing funds pursuant to an amendment which was not "given in writing by all parties
affected thereby." Thus, plaintiff had no duty to inquire whether any funds were improperly disbursed
unless he was "aware of facts which would make a reasonably prudent person suspicious, ..." (Bedolla
v. Logan & Frazer (1975) 52 Cal. App.3d 118, 131 [125 Cal. Rptr. 59].)
Defendant argues that plaintiff pleads "no facts explaining why it took [him] six years to `become
suspicious' or to discover (1) that he did not receive title to the Pima property (2) that he had not
received a recorded (or even unrecorded) Deed of Title from any one [sic] or (3) that he had not or was
not realizing his `profits' from his investment." (Italics in original.) Plaintiff does allege, however, that
"[e]very few months between 1981 to 1986 when Plaintiff checked with Defendant BENZION
COHEN or his step-brother 922*922 ABRAHAM HAYUN he was assured that progress was being
made and that it was only the complexity of the transaction and not any problem with title that stopped
the matter from final closing." In view of these alleged assurances we are unable to say as a matter of
law that the facts pleaded in the corrected second amended complaint should have made plaintiff
sufficiently suspicious to inquire of defendant whether it had properly performed its duty as an escrow.
(4) In sustaining defendant's demurrer to plaintiff's first amended complaint, the trial court questioned
whether the delayed discovery rule could apply to a cause of action for breach of contract. This
question was properly resolved in April Enterprises, Inc. v. KTTV, supra, 147 Cal. App.3d 805. There,
the plaintiff commenced an action for breach of the implied covenant of fair dealing and breach of
fiduciary duty arising out of a joint venture between the parties to produce a television program.
Plaintiff alleged that shortly before it commenced its action it discovered that defendant had breached
their agreement by erasing video tapes of the program. Defendant moved for judgment on the pleadings
in part based on its claim that plaintiff's causes of action accrued six years before it commenced the
action when the actual erasures occurred. The trial court granted defendant's motion and the Court of
Initially, the court concluded that plaintiff's cause of action for breach of fiduciary duty was not timebarred because the existence of a fiduciary relationship tolled the limitations period until plaintiff
actually discovered the wrongdoing. (147 Cal. App.3d at pp. 827-828.) Turning to plaintiff's cause of
action for breach of the implied covenant of fair dealing the court explained that "`[t]he nature of the
right sued on, not the form of the action ... determines the applicability of the statute of limitations.'
[Citations.] Here, both causes of action arise out of the fiduciary relationship. When a joint venturer
commits a breach of fiduciary duty, the act may often, as here, constitute a breach of contract as well.
Given the policy reasons for applying the discovery rule to a fiduciary, it would be pointless to permit
the former cause of action and bar the latter. Thus the breach of contract cause of action also accrued at
the discovery of the actual erasure." (147 Cal. App.3d at p. 828.)
This reasoning applies with equal force to plaintiff's breach of contract claim in the present case. That
cause of action is premised upon the identical wrongful disbursement of funds which is at the heart of
plaintiff's fraud cause of action. Since that alleged wrongful disbursement constitutes a breach of
fiduciary duty by defendant, the discovery rule should apply to 923*923 both causes of action. We,
therefore, conclude that the trial court could not have properly sustained defendant's demurrer on
statute of limitations grounds.
(5) In its demurrer defendant, in addition to arguing that plaintiff's action was time-barred, argued that
it could not be liable for disbursing funds pursuant to an amendment to the escrow instructions which
on its face appeared proper.
Plaintiff contends that "[a]n escrow holder is a fiduciary and is under a duty to communicate to his
principal knowledge acquired in the course of his agency with respect to material facts which might
affect the principal's decision as to a pending transaction, ..." In this contention, plaintiff urges that his
allegation that defendant neither informed him that it had disbursed funds nor that title had not passed
to the Pima property is sufficient to demonstrate that defendant "was guilty of breach of their [sic]
fiduciary duty as an escrow holder and were negligent in the disbursal [sic] of funds out of escrow, ..."
In arguing that it was under no such duty to apprise plaintiff, defendant relies on Lee v. Title Ins. &
Trust Co. (1968) 264 Cal. App.2d 160 [70 Cal. Rptr. 378]. In Lee, the plaintiff brought an action for
fraud, breach of contract, breach of trust and malpractice against an escrow holder due to the escrow
holder's failure to notify the plaintiff of the following facts: (1) a $135,000 trust deed on the property
secured only a $100,000 loan and (2) the property sellers fraudulently conspired to sell the plaintiff the
property "at a price much greater than the price for which the property could be acquired." (Id., at p.
161, fn. 1.) The trial court sustained the escrow holder's demurrer and dismissed the action. The Court
of Appeal affirmed.
Initially, the court noted that the plaintiff had not alleged that the escrow holder colluded with the
sellers to defraud him. Nor did the plaintiff allege that the escrow holder negligently failed to comply
with the escrow instructions. The court explained: "Put abstractly, the crucial question is whether
924*924 an escrow holder is under a fiduciary duty to go beyond the escrow instructions and to notify
each party to the escrow of any suspicious fact or circumstance which has come to his attention before
or during the life of the escrow which could conceivably affect such party even though the fact or
circumstance is not related to his specific escrow instructions." (264 Cal. App.2d at p. 162.)
In concluding that no such duty existed the court first explained that the courts had recognized that an
escrow holder was an agent of the parties to the transaction only for the limited purpose of acting in
accordance with the escrow instructions. (264 Cal. App.2d at p. 162.) The court then reasoned that if
this duty were expanded to include a duty to disclose then "once an escrow holder received information
(from whatever source) he would be forced to decide independently whether to believe the information
and disclose it or disbelieve it and conceal his knowledge. If he concealed his knowledge he would risk
suit. If he discloses and the information is inaccurate, he may be sued by all the parties to the escrow
for interfering with their contract. Establishing a rule which would create such a dilemma and subject
the escrow holder to a high risk of litigation would damage a valuable business procedure." (264 Cal.
App.2d at p. 163; fn. omitted.)
As distinct from Lee, the wrongful conduct alleged in the present case relates to defendant's failure to
carry out the escrow instructions by disbursing funds pursuant to a forged amendment. As explained
above, the original escrow instructions provided that "NO NOTICE DEMAND OR CHANGE OF
INSTRUCTIONS SHALL BE OF ANY EFFECT IN THIS ESCROW UNLESS GIVEN IN WRITING
BY ALL PARTIES AFFECTED THEREBY." The recognition of a duty to verify the signature on an
amendment to the escrow instructions when those instructions require any amendment be given in
writing by all of the parties, will not place the escrow holder in the dilemma the Lee court sought to
avoid. Verification is not the equivalent of an accusation of wrongdoing. Thus, an escrow holder who
verifies a signature in order to ensure it is complying with the terms of the escrow instructions is not
subjecting itself to the risk of suit. We, therefore, conclude that the limited nature of an escrow holder's
duty does not preclude plaintiff from stating a cause of action.
(6) Defendant next urges that plaintiff fails to allege the essential elements necessary to state a cause of
action for fraud. Defendant points to the allegation in plaintiff's fraud cause of action that "[a]t no time
prior to 925*925 disbursement of the Escrow funds did Defendant ... make any attempt to contact
Plaintiff, verify his signature, or to inform Plaintiff that the funds had been disbursed" and argues that
absent from this allegation is any claim of misrepresentation, intent to induce reliance, intent to
defraud, or knowledge of falsity.
We initially note that defendant did not include this assertion as a ground of its demurrer. Accordingly,
unless we are able to conclude that plaintiff's fraud cause of action is fatally flawed, so that it is
incapable of being corrected by amendment, we will not rely upon this assertion to uphold the trial
court's ruling. As we now explain, this assertion has no merit for a number of reasons.
First, defendant ignores plaintiff's allegations in the fraud cause of action clearly explaining the
fraudulent conduct in which the other defendants allegedly directly engaged. Plaintiff alleges that
"Defendants, and each of them" conspired to engage in this fraudulent conduct. This allegation is
sufficient to subject defendant to liability for fraud. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, §
869, pp. 310-311.)
Secondly, although not artfully pleaded plaintiff has alleged sufficient facts to form the basis of a fraud
cause of action against defendant in its capacity as an escrow holder. In asserting that plaintiff fails to
allege any misrepresentation of facts, defendant fails to recognize that due to its fiduciary relationship
with plaintiff its nondisclosure of facts it had a duty to disclose could form the basis of a fraud cause of
action. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 666, pp. 116-117.) The other claimed
deficiencies in plaintiff's fraud cause of action relate to the clarity of plaintiff's pleading rather than
whether he is able to state a cause of action. For example, plaintiff alleges that "Defendants knew and
understood that their representations regarding the performance of the escrow and purchase of the
subject property were false and made those misrepresentations with the intent to defraud and deceive
Plaintiff." It is unclear whether this allegation relates to defendant only in its capacity as an alleged
coconspirator or whether the allegation also relates to defendant in its capacity as an escrow holder.
Plaintiff should be given an opportunity to amend to remove any such uncertainty.
926*926 The judgment (order) of dismissal is reversed. Plaintiff shall recover costs on appeal.
Woods (A.M.), P.J., and George, J., concurred.
A petition for a rehearing was denied June 7, 1989, and respondent's petition for review by the Supreme
Court was denied August 9, 1989. Panelli, J., was of the opinion that the petition should be granted.
 In reviewing the propriety of the trial court's ruling we accept the well pleaded factual allegations in
plaintiff's corrected second amended complaint as true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96
Cal. Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].)
 Mr. Mitchell, Ms. Mitchell, Mr. Cohen and Mr. Saberi along with one Rafael Kay are all named
defendants in the complaint, but are not parties to this appeal.
 Section 338 prescribes a three-year limitation period for "[a]n action for relief on the ground of
fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
 The trial court expressly stated this as a basis for its ruling when it sustained defendant's demurrer
to plaintiff's first amended complaint with leave to amend. As explained above, the trial court
admonished plaintiff that "[t]his is the final opportunity to amend." Thus, although the court sustained
defendant's demurrer to plaintiff's second amended complaint without leave to amend without
explaining the basis for its ruling, it is apparent that the court was again focusing on plaintiff's failure to
allege facts explaining the reasonableness of his delay.
 As an alternative basis for its decision, the April Enterprises court concluded that "the discovery
rule may be applied to breaches [of contract] which can be, and are, committed in secret and, moreover,
where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a
future time." (Id., at p. 832.) Under this alternative holding, the discovery rule applies where, as here,
an escrow holder allegedly disburses funds pursuant to a forged amendment to the escrow instructions
without informing the plaintiff.
 Defendant demurred to plaintiff's cause of action for civil conspiracy only on timeliness grounds.
Accordingly, we do not pass on whether plaintiff adequately pleads a cause of action for civil