Judge Thomas Falls, Case 22PSCV00301 2022-10-25 Tentative Ruling

Defendants’ DAVID HILL AND ROCHELLE BERGERON'S Demurrer to First Amended Complaint

Defendants’ DAVID HILL AND ROCHELLE BERGERON'S Demurrer to First Amended Complaint is SUSTAINED in part (i.e., as to all causes of action against David and the 12^th, 13th, and 15th causes of action against Rochelle) and OVERRULED in part (i.e., as to the 11^th, 14^th, and 16^th causes of action against Rochelle).

This case arises from a real property dispute between siblings and a real estate company. Plaintiffs Martin Hill and Michelle Rowcliffe (collectively, “Plaintiffs”) allege the following against Defendants MARTY RODRIGUEZ REAL ESTATE, INC. MARTY RODRIGUEZ; NADINE HERNANDEZ; BROTHERS FLIPS INVESTMENT, LLC; CHRISTIAN P. HERNANDEZ; DAVID HILL; ROCHELLE BERGERON: Plaintiffs are brother and sister. Defendant David Hill (“David”) is Plaintiffs’ brother. Defendant Rochelle Bergeron (“Rochelle”) was married to Defendant David Hill. Plaintiffs and Defendant Hill (collectively, “Hill Siblings”) received a quitclaim deed to a certain property from their mother. The quitclaim deed, executed in April 12, 2017, specified that Plaintiffs each own 40 percent of the property and that Defendant Hill would own 20 percent of the property. After their mother died, Plaintiffs and Defendant Hill decided to sell the property and Plaintiff Martin Hill, per all the siblings’ agreement, obtained a broker and a listing agreement for the purpose of marketing and selling the property. The Hill Siblings entered into a Listing Agreement with C21MR (the “Firm”). Thereafter, Defendant Brothers Flips Investment, LLC ("BFIL") signed a full price $525,000 offer to purchase the Property prepared by C21MR. Plaintiffs made the following counteroffer: the buyer's deposit of $12,000 would be deposited with the escrow holder within one day after acceptance, and that the "buyer shall release $12,000 deposit on Day 3 after acceptance and will be non-refundable." On June 11, 2021, the counteroffer was accepted. On June 14, 2021, the title company told the Firm “that in order for the parties to the Purchase Agreement to be able to close escrow and/ or issue a title insurance policy to the Buyer named in the Purchase Agreement, David Hill would be required to tender to CM21MR or LTC, and in so doing first obtain from Rochelle Bergeron her signature on, a quitclaim deed disclaiming any interest in the Property.” (FAC ¶140.) Alternatively, “in order for the parties to the Purchase Agreement to be able to close escrow and/or assure issuance of a title insurance policy to the Buyer named in the Purchase Agreement, David Hill would be required to tender to CM21MR or LTC, and in so doing first obtain from Rochelle Bergeron her signature on, a quitclaim deed disclaiming any interest in the Property.” (FAC ¶142.) Alternatively, “the absence of a quitclaim deed from Bergeron also prevented the release of the $12,000 deposit to the Hill Siblings on 6/14/2021 or any time thereafter until said deed was tendered.” (FAC ¶143.) “The signing of a quitclaim deed to the Property by Rochelle Bergeron was not a term of the Purchase Agreement escrow instructions included or referenced therein.” (FAC ¶¶147, 164, 166) Rochelle refused to sign the quitclaim deed. (FAC ¶157.) Plaintiffs allege that the Firm and one of its agents “agreed or conspired or colluded with LTC to add a new term to the Purchase Agreement and escrow instructions establishing that a person not a party to the Purchase Agreement, Rochelle Bergeron, would have to execute a quitclaim deed in order for Buyer and LTC to perform their respective duties to Seller.” (FAC ¶170.) As a result of the aforementioned conduct, escrow has been canceled. (FAC ¶199.)[1]

1. Professional Negligence (Against Real Estate Broker And Agents Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

2. Breach Of Fiduciary Duty (Against Real Estate Broker And Agents Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

3. Fraud (Against Real Estate Broker And Agents Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

4. Breach Of Listing Agreement (Against Real Estate Broker Marty Rodrigudez Real Estate, Inc., Marty Rodriguez)

5. Intentional Interference With Contractual Relations (Against Broker Marty Rodriguez Real Estate, Inc., Marty Rodriguez Nadine Hernandez)

6. Negligent Interference With Contractual Relations (Against Broker Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

7. Intentional Broker Interference With Prospective Advantage (Against Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

8. Negligent Broker Interference With Prospective Advantage (Against Marty Rodriguez Real Estate, Inc., Marty Rodriguez, Nadine Hernandez)

9. Breach Of Contract (Against Real Estate Buyer Brothers Flips Investment, Inc.)

10. Breach Of Contract (Against Real Estate Buyer Cristian Hernandez As Alter Ego Of Brothers Flips Investment)

11. Intentional Interference With Contract (Against David Hill, Rochelle Bergeron)

12. Negligent Interference With Contract (Against David Hill, Rochelle Bergeron)

13. Intentional Interference With Prospective Advantage (Against Rochelle Bergeron)

14. Negligent Interference With Prospective Advantage (Against Rochelle Bergeron)

On June 3, 2022, Defendants Hill and Rochelle Bergeron (collectively, “Defendants”) filed a Demurrer. The court heard oral argument on July 21, 2022 and requested the parties submit supplemental briefing.[2] The court specifically stated the following: After a lengthy argument by the parties, the Court requests further briefing on the Demurrer from counsel. Opening brief is to be filed and served on or before 8/22/2022 and a reply brief is to be filed and served on or before 9/16/2022.

On August 22, 2022, Plaintiffs filed their Supplemental opposition to Defendants’ supplemental brief.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

Defendants demur to the 11^th through 16^th causes of action asserted against them. The crux of Defendants’ demurrer is that the FAC fails to state any legal basis for either Defendants having some independent duty or Rochelle to sign the Quitclaim Deed.

The FAC contains two causes of action against David Hill. The court will address each.

The elements of a cause of action for intentional interference with contract are: (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of that contract; (3) defendant's intentional acts designed to induce disruption of the relationship; (4) actual disruption of the relationship; and (5) resulting damage. (Reeves v. Hanlon (2004) 33 Cal. 4th 1140, 1148.) Defendant need not have acted with the primary purpose of disrupting the contract. Plaintiff need only show defendant's knowledge that the interference was certain or substantially certain to occur as a result of its actions. (Id.)

i. Whether a Party to a Contract May Be Sued for Intentional Interference with Contract

The parties re-state their previous arguments. As noted in the previous tentative, Defendant argues that David was a party to the contract and, as such, courts have consistently held that a “contracting party cannot be held liable in tort for conspiracy to interfere with its own contract (Demurrer p. 3:11-14, quoting Asahi Kasei Pharma Cora. V. Actelion Ltd. (2013) 222 Cal.App.4th 945, 961 (Asahi).)

In Opposition, Plaintiffs argue “that the rule prohibiting a party to a contract from suing for interference is predicated on an assumption that that party will have a contractual remedy, not a tort remedy, and that is simply not true where the interference is by one constituent of a multi-constituent party.” (Opp. p. 5:12-15, citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503 and Asahi, supra.)

Both Asahi and Applied Equipment Corp. have similar language regarding liability of one without an economic interest in the contractual relationship. Indeed, both cases state that the tort cause of action for interference with contract does not lie against a party to the contract. (Applied Equipment, supra, 7 Cal.4th at pp. 513-514 [“[C]onsistent with its underlying policy of protecting the expectations of contracting parties against frustration by outsiders who have no legitimate social or economic interest in the contractual relationship, the tort cause of action for interference with contract does not lie against a party to the contract . . . [t]he tort duty not to interfere with the contract falls only on strangers—interlopers who have no legitimate interest in the scope or course of the contract's performance.”]) (italics original). Accordingly, while Plaintiffs argue that Applied Equipment provides an exception in a situation involving a “multi-constituent party,” this exception is nowhere to be found in the opinion.

To the extent that in its supplemental briefing Plaintiffs argue that Defendant David should be considered a “non-contracting” party because he cannot be sued in contract (Supp. Brief p. 6), the court is uncertain how so as Plaintiffs seek leave to amend to sue David for breach of contract. Moreover, to the extent that Plaintiffs rely on Caliber Paving Company, Inc. v. Rexford Industrial Realty and Management, Inc. (2020) 54 Cal.App.4th 175 that case too is inapposite as the case clearly applied to a “defendant who is not a party to the contract or an agent of a party to the contract.” (Id. at 177) (italics added).

All in all, Plaintiffs themselves state that they have not found cases analogous to this one (Supp. Brief p. 6.) As such, the court will not deviate from the well-established and heavily cited finding in Applied Equipment and Asahi.

Therefore, the court SUSTAINS the demurrer as to the 11^th cause of action because it fails as a matter of law as David is a party to the contract.

Plaintiffs seek leave to amend to assert new causes of action against Defendant David. To the extent Defendants oppose the leave, they are arguing the merits of the legal theories. That, however, can be resolved when Plaintiffs file their amended complaint.

Therefore, the court SUSTAINS the demurrer to the 11^th cause of action WITH leave to amend to add different causes of action.

Defendants’ predominant argument is that there is no such cause of action for Negligent Interference with Contract. (Demurrer p. 4, citing Fifield Manor v. Finston (1960) 54 Cal.2d 632, 636.)

In Opposition, Plaintiffs aver that Fifield Manor is outdated and that J’Aire Corp v. Gregory (1979) 24 Cal.3d 799 has held that negligent interference with prospective economic advantage is a valid cause of action.

The court finds that both of Plaintiffs’ arguments are inaccurate. First, Fifield Manor remains good law. In fact, J’Aire Corp cited Fifield Manor but merely distinguished the facts of the case. And in Fifield Manor, the court stated that

Courts have quite consistently refused to recognize a cause of action based on negligent, as opposed to intentiolnal [sic] conduct which interferes with the performance of a contract between third parties or renders its performance more expensive or burdensome . . . ‘the courts generally have reached a wise result in limiting claims for damages in this class of cases to who (sic) may have sustained personal injuries or physical property damage and in refusing to open their doors in such cases to claims of loss of wages and other economic loss based on contract.’ No case has been cited to us which would support plaintiff's contention that, because under its contract with the decedent plaintiff was compelled to expend sums for his medical care and treatment by reason of the injuries negligently inflicted upon decedent, plaintiff has a direct cause of action against defendants based upon such negligent injuries, and we are satisfied that to so hold would constitute an unwarranted extension of liability for negligence.

Accordingly, negligent interference with contractual relations is not a cause of action. (See also Davis v. Nadrich (2009) 174 Cal.App.4th 1, 9 [“In California, there is no cause of action for negligent interference with contractual relations. While there exists a cause of action for negligent interference with prospective economic advantage [citations omitted] the California Supreme Court in Fifield Manor v. Finston has rejected a cause of action for negligent interference with contract.”]) (emphasis added).

Furthermore, Plaintiffs appear to concede that they have pled the wrong cause of action as they state “Plaintiffs believe that the logic of J’Aire allows them to claim negligent interference with contract on the unique facts here, since a [negligent interference with contract] is simply a species of [negligent interference with prospective advantage], but if not, that the demurrer to this cause should nonetheless be overruled since Plaintiffs did adequately plead negligence and have pled a [negligent interference with prospective advantage] claim if not a [negligent interference with contract] claim, and since the labels given by the pleader are not dispositive. (Opp. p. 7.) As to this point, Plaintiffs have not provided authority to support their contention that negligent interference with contract is a “species of” negligent interference with prospective advantage that would allow them to freely interchange between the two causes of action.[4]

Therefore, as Plaintiffs have asserted a cause of action which is not a cause of action, the court SUSTAINS the demurrer without leave to amend.

In its Supplemental Brief, Defendants argue that Rochelle did not harbor intentionality, as required for the cause of action, because “[d]oing nothing is not an intentional act . . . [t]he sie qua non of [this cause of action] is some action taken by the Defendant.” (Bergerson brief p. 2, relying upon LiMandri v. Judkins (1997) 52 Cal.App.4th 326) (italics original).[5] Plaintiffs’ supplemental opposition does not address this point.

However, the court finds LiMandri helpful to the court’s previous tentative. In LiMandri when discussing the defendant’s intentional interference with an existing contract, the court relied on the following allegations:

The complaint alleges intentional acts by Judkins designed to disrupt the contractual relations between LiMandri and the Deddehs as well as actual disruption, as Judkins allegedly pursued Security's claim of superior lien rights to the Deddehs' portion of the Signal Landmark settlement with full knowledge of LiMandri's prior lien rights. Judkins's conduct disrupted the Deddehs' performance of their contract with LiMandri by causing payment of their share of LiMandri's attorney fees to be withheld until LiMandri successfully litigated the interpleader action necessitated by Judkins's conduct. Further, the Deddehs' signing the security agreement prepared by Judkins's arguably amounted to an induced breach of their fee contract with LiMandri. Finally, LiMandri alleges damages in the form of attorney fees still withheld in addition to fees and costs he incurred in connection with the interpleader action. LiMandri has sufficiently pleaded all the elements of a cause of action for intentional interference with contractual relations.

Accordingly, contrary to Defendants’ contention that the LiMandri court held sufficient allegations for intentional interference because of Judkin’s various filings, it was a combination of allegations including allegations “designed to” disrupt the contract. Moreover, LiMandri does not stand for the unequivocal proposition that conduct must be affirmative. Afterall, similar to Judkins wherein the defendant’s conduct amounted to withholding fees, Defendant Rochelle has been alleged to have withheld a deed. Thus, to the extent that Defendants seek the court to modify its previous tentative because Rochelle must have performed a certain act, Defendants have not presented adequate authority.

Furthermore, to the extent that Defendants argue Rochellle cannot be forced to sign an interspousal grant deed because it is unconstitutional and contrary to applicable laws, they rely upon disputed facts that Rochelle had an interest in the property. Such a determination would be improper on a demurrer.

Therefore, the court OVERRULES the demurrer as to the 11^th cause of action for intentional interference with contract.

Considering that this is not a cause of action, the court SUSTAINS the 12^th cause of action as to Defendant Rochelle without leave to amend.

c. 13^th Cause of Action for Intentional Interference with Prospective Economic Advantage

The elements are usually stated as follows: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.) As to the third element, a plaintiff must plead and prove that the defendant's acts are wrongful apart from the interference itself. (Della Penna v. Toyota Motor Sales, U.S.A, Inc. (1995) 11 Cal.4th 374, 393.) “Specific intent is not a required element of the tort of interference with prospective economic advantage. “[W]hile intentionally interfering with an existing contract is a wrong in and of itself, intentionally interfering with a plaintiff's prospective economic advantage is not. To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act. An act is not independently wrongful merely because defendant acted with an improper motive… therefore, that an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1158–59, internal citations omitted) (emphasis added).

Defendants argue that the cause of action fails because intentional interference with prospective economic advantage is “concerned only with intentional interference with prospective contractual relations not yet reduced to contract." (Demurrer p. 7, quoting Korea Supply, supra, at p. 1172.) Defendants also argue that “the tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care [and] Plaintiffs have not alleged and cannot establish any such duty of care.” (Demurrer p. 8:8-10.)

In Opposition, Plaintiffs argue that “Plaintiffs explicitly pled duties of Bergeron to her spouse in the context of his own financial interests which were coextensive which those of Plaintiffs.” (Opp. p. 11.)

Here, Defendants cite to the concurring opinion in Korea Supply; thus, their reliance on the concurring opinion to support a legal contention is contrary to the majority’s holding in Korea Supply. (Id. concurring J. Chin [“As a threshold matter, KSC has improperly brought its claim as one for intentional interference with prospective economic advantage, when it should have brought the claim, if at all, as one for interference with contract . . . [a]s the Restatement Second of Torts (Restatement Second) explains, the latter claim ‘is concerned only with intentional interference with prospective contractual relations, not yet reduced to contract.’”]) (emphasis added).

That said, the facts do not allege an independent wrongful act. As is, the FAC states that “Defendant Bergeron engaged in wrongful conduct by failing, after proper request made following execution of the Purchase Agreement, to negotiate in good faith with David Hill regarding property distribution in a marital dissolution proceeding.” (FAC ¶435) (emphasis added). Plaintiffs have failed to either plead how Rochelle and David’s marital dissolution proceeding amounts to an “unlawful [act] that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co., supra, 29 Cal.4th at pp.1158–59.) Moreover, the court finds this allegation raises concerns about standing as it concerns marital dissolution proceedings, a matter which Plaintiffs have no legal authority to dictate.

Therefore, the court SUSTAINS the Demurrer as to the 13^th cause of action without leave to amend.[6]

d. 14^th Cause of Action for Negligent Interference with Prospective Advantage

The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) the defendant's knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant's failure to act with reasonable care; (5) actual disruption of the relationship; (6) and economic harm proximately caused by the defendant's negligence. Redfearn v, Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1005.

For reasons set forth above—notably that the FAC does allege that signing of the quitclaim deed was a requirement, but Rochelle refused to sign it—the court OVERRULES the demurrer as to the 14^th cause of action.

Defendants argue that “Plaintiffs do not specify the type of injunction sought in this action. There is no allegation of what act Plaintiffs seek to enjoin. This cause of action lacks the required specificity. (Demurrer p. 10.)

Not so. The FAC alleges that by her act of withholding her own declaration of a lack of interest in the Property, their interests are and will be injured. (FAC ¶453; see also Prayer for Relief ¶6 [“On the fifteenth cause of action, for an injunction ordering Defendant Bergeron to execute and deliver a quitclaim deed to Plaintiff.”].)[7]

Plaintiffs seek declaratory relief so that to declare that the only holders of interests in the Property are Plaintiffs and David Hill and that Defendant Bergeron has no interest in the Property. (FAC ¶¶463, 464.)

Defendants argue that a cause of action for declaratory relief will not lie to determine an issue that is already the subject of an existing claim. (Reply p. 10.)

Here, declaratory relief is inappropriate where an already pending action can settle the question involved in a declaratory relief proceeding, the declaratory relief proceeding may properly be dismissed. (Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1250 [“It has long been held that the validity of one lawsuit is not a proper subject for declaratory relief in a second lawsuit, inasmuch as the first case will determine the questions posed by the second. [citations omitted (“A declaratory judgment is not a proper method of determining the sufficiency of legal defenses to a pending action.”)].) Furthermore, while Plaintiffs seek declaratory judgment on the issue of whether Rochelle maintains an interest in the property, the FAC clearly maintains she does not. (FAC ¶405 [“At all times prior to the filing of this action, David Hill knew or had reason to know that Rochelle Bergeron had no interest in the Property whether characterized as a community property interest or otherwise.”].) Said differently, as it appears all Parties understand Rochelle does not maintain interest in the property, including Rochelle herself, there is no controversy to resolve.

Therefore, as there are no rights to adjudicate, the court SUSTAINS the demurrer as to the 16^th cause of action without leave to amend.

[1] The lengthy complaint is in part due to Plaintiffs’ pleading numerous alternate allegations. However, pleading of factually and legally inconsistent theories is allowed because “when a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Ca.App.4th 1395, 1402.)

[2] The court will incorporate language from the previous tentative in the current tentative/final ruling.

[3] This brief will not be considered as it is an improper sur-opposition.

[4] Litigants are generally prohibited from asserting a position in litigation without authority. See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29 (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”) (internal quotations omitted).

[5] The court previously overruled the demurrer on this ground noting in a footnote that “[t]o the extent that Defendants argue Rochelle did not interfere with the contract because the act of withholding a document does not amount to an act or conduct, they have provided no authority to support this legal contention. See footnote 2, supra.” Defendants’ supplemental points address this concern.

[6] Plaintiffs did not address this point in their supplemental brief.

[7] To the extent that the supplemental brief argues that an Plaintiffs have not alleged a future harm, therefore an injunction can not stand, Defendants have not explained why the inability to sell a property does not amount to a harm.