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1 SHANNON B. JONES LAW GROUP, INC. 06/05/2020
SHANNON B. JONES (Bar No. 149222)
2 sbj@sbj-law.com
3 LINDSEY A. MORGAN (Bar No. 274214)
lam@sbj-law.com
4 208 W. El Pintado Road
Danville, California 94526
5 Telephone: (925) 837-2317
Facsimile: (925) 837-4831
6
Attorneys for Plaintiff
7 PACIFIC UNION INTERNATIONAL, INC.
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF PLACER
10
11 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080
)
12 Plaintiff, ) SEPARATE STATEMENT OF
) UNDISPUTED MATERIAL FACTS IN
13 v. ) SUPPORT OF PACIFIC UNION
) INTERNATIONAL, INC.’S MOTION FOR
14 ERIK LUDWICK, an individual and ) SUMMARY JUDGMENT OR,
beneficiary of The Anything Trust Dated ) ALTERNATIVELY, SUMMARY
15 October 12, 2007; THE ANYTHING TRUST ) ADJUDICATION OF ISSUES
DATED OCTOBER 12, 2007; PAUL D. )
16 BOOTH, in his capacity as trustee of The )
Anything Trust Dated October 12, 2007; and ) Date: August 20, 2020
17 DOES 1-50, ) Time: 9:30 a.m.
) Dept: 42
18 Defendants. )
) Complaint Filed: November 7, 2018
19 ) Trial Date: September 21, 2020
)
20
21 Pursuant to California Rules of Court Rule 3.1500, Plaintiff PACIFIC UNION
22 INTERNATIONAL, INC. (“Pacific Union”), submits the following Separate Statement of
23 Undisputed Material Facts in support of its Motion for Summary Judgment, or in the Alternative,
24 Summary Adjudication of Issues:
25 / / /
26 / / /
27 / / /
28 / / /
_____________________________________________________________________________________________________________________
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 I. Pacific Union Is Entitled to Summary Judgment on Pacific Union’s Complaint
2
Moving Party’s Undisputed Material Opposing Party’s Response and
3 Facts and Supporting Evidence Supporting Evidence
4 1. The Anything Trust, by and through its
Trustee, entered into a residential listing
5 agreement (the “Contract”) with Madison
Hildebrand and Plaintiff for the sale of
6 200 Toyopa Drive, Pacific Palisades,
California, 90272 (the “Property”) on
7 August 29, 2016.
8 (Declaration of Madison
Hildebrand (“Hildebrand Decl.”),
9 ¶ 2, Exh. 1.)
10 2. The Contract contains the following
provisions:
11
Plaintiff would list the Property for
12 sale for Twenty Million Dollars
($20,000,000);
13
The initial term of the Contract
14 was September 1, 2016 through
February 28, 2017;
15
Plaintiff ’s compensation at six
16 percent (6%) of the Property’s
sales price, if: “during the Listing
17 Period, or any extension, Broker,
cooperating broker, Seller or any
18 other person procures a ready
willing, and able buyer whose
19 offer to purchase the Property on
any price and terms is accepted by
20 Seller…” (Contract, Ex. A, ¶
3A(1).)
21
Plaintiff would also be owed a
22 commission if, “within 180
calendar days (a) after the end of
23 the Listing Period or any
extension; or (b) after any
24 cancellation of this Agreement,…,
Seller enters into a contract to sell,
25 convey, lease or otherwise transfer
the Property to anyone
26 (‘Prospective Buyer’) or that
person’s related entity: (i) who
27 physically entered and was shown
the Property during the Listing
28 Period or any extension by Broker
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 or a cooperating broker; or (ii) for
whom broker or any cooperating
2 broker submitted to Seller a
signed, written offer….” but only
3 if Broker submitted to Seller a
written list of those Prospective
4 Buyers “not later than the end of
the Listing Period or any
5 extension…” (Contract, Ex. A, ¶
3A(2).)
6
The Contract provides, “Seller
7 hereby irrevocably assigns to
Broker the above compensation
8 from Seller’s funds and proceeds
in escrow.” (Contract, Ex. A, ¶
9 3E.)
10 Finally, the Contract notes that, “If
a Buyer is procured directly by
11 Broker or an associate-licensee in
Broker’s firm, Seller hereby
12 consents to Broker acting as a dual
agent for Seller and Buyer.”
13 (Contract, Ex. A, ¶ 9C.)
14
(Hildebrand Decl., ¶ 2, Exh. 1.)
15
3. The Contract was modified as follows:
16
The term was extended to August
17 31, 2017 on February 23, 2017;
18 The listing price was reduced to
Nineteen Million, Five Hundred
19 Thousand ($19,500,000) on
February 23, 2017;
20
The listing price was reduced to
21 Eighteen Million Eight Hundred
and Eighty Thousand Dollars
22 ($18,880,000) on June 9, 2017;
and
23
The listing price was reduced to
24 Sixteen Million Eight Hundred
and Eighty Thousand Dollars
25 ($16,880,000), and the MLS
listing was required to be placed
26 on hold on July 7, 2017.
27 (Hildebrand Decl., ¶ 2, Exh. 1.)
28
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
4. Partners Trust was acquired by Pacific
2 Union International, Inc. on August 21,
2017.
3
(Declaration of Nicholas Segal
4 (“Segal Decl.”), ¶ 3.)
5
5. In the acquisition, Pacific Union obtained
6 all rights to any commissions earned
under the terms of existing listing
7 agreements involving Partners Trust as of
the date of the acquisition, including 200
8 Toyopa Drive, Pacific Palisades,
California.
9
(Segal Decl., ¶¶ 4, 5, 6.)
10
11 6. On August 24, 2017, buyer Behdad
Eghbali (“Buyer”) made an initial offer to
12 purchase the Property for $15,800,000.
Buyer was represented by Mr. Hidebrand.
13
(Hildebrand Decl., ¶ 6.)
14
15 7. On August 31, 2017, Plaintiff provided an
exclusion list of Prospective Buyers to
16 Trustee which included Mr. Eghbali’s
name.
17
(Hildebrand Decl., ¶ 9, Exh. 3.)
18
19 8. On September 13, 2017, Buyer submitted
a new offer to purchase the Property, this
20 time offering Sixteen Million, Three
Hundred Thousand Dollars ($16,300,000),
21 which was accepted by the Trust.
22 (Hildebrand Decl., ¶ 13, Exh. 4.)
23
9. On November 9, 2017, escrow closed and
24 Buyer took title to the Property.
25
(Declaration of Shannon B. Jones
26 (“Jones Decl.”), ¶ 4, Exh. 9.)
27
28
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
10. On November 9, 2017, Ludwick emailed
2 Trustee, stating:
Paul,
3
Can you do one last thing
4 regarding Toyopa sale? Please cut
and paste below and send to
5 Cynthia at escrow for her records.
“As there is a dispute regarding
6 commission for 200 Toyopa,
please hold 6% of proceeds until
7 the dispute is resolved.”
8 Regards,
Erik
9
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
10 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
11
12 11. Trustee testified that he followed
Ludwick’s directions and told Terra
13 Coastal Escrow to hold six percent (6%)
of proceeds on the sale of the Property.
14
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
15 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
16
17 12. Trustee testified Terra Coastal Escrow
complied with Trustee’s request, and six
18 percent (6%) of the $16,300,000 purchase
price, or Nine Hundred Seventy Eight
19 Thousand Dollars ($978,000) (the
“Commission”) remains in the Terra
20 Coastal Escrow account.
21 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.)
22
13. Trustee testified he did not intend to
23 instruct Terra Coastal Escrow release the
six percent (6%) commission to Plaintiff.
24
(Jones Decl., ¶ 2, Exh. 7, pp.
25 45:21-46:1.)
26
///
27
///
28
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 II. Pacific Union Is Entitled to Summary Adjudication of All Eight Causes of Action in
Pacific Union’s Complaint
2
3 A. ISSUE 1: Pacific Union is entitled to judgment as a matter of law on the
First Cause of Action in the Complaint for Breach of Contract because the
4 undisputed material facts establish that Defendants breached the
residential listing agreement and harmed Pacific Union.
5
6 Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence Supporting Evidence
7
1. (restated)
8 The Anything Trust, by and through its
Trustee, entered into a residential listing
9 agreement (the “Contract”) with Madison
Hildebrand and Plaintiff for the sale of
10 200 Toyopa Drive, Pacific Palisades,
California, 90272 (the “Property”) on
11 August 29, 2016.
12 (Declaration of Madison
Hildebrand (“Hildebrand Decl.”),
13 ¶ 2, Exh. 1.)
14
2. (restated)
15 The Contract contains the following
provisions:
16
Plaintiff would list the Property for
17 sale for Twenty Million Dollars
($20,000,000);
18
The initial term of the Contract
19 was September 1, 2016 through
February 28, 2017;
20
Plaintiff ’s compensation at six
21 percent (6%) of the Property’s
sales price, if: “during the Listing
22 Period, or any extension, Broker,
cooperating broker, Seller or any
23 other person procures a ready
willing, and able buyer whose
24 offer to purchase the Property on
any price and terms is accepted by
25 Seller…” (Contract, Ex. A, ¶
3A(1).)
26
Plaintiff would also be owed a
27 commission if, “within 180
calendar days (a) after the end of
28 the Listing Period or any
6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 extension; or (b) after any
cancellation of this Agreement,…,
2 Seller enters into a contract to sell,
convey, lease or otherwise transfer
3 the Property to anyone
(‘Prospective Buyer’) or that
4 person’s related entity: (i) who
physically entered and was shown
5 the Property during the Listing
Period or any extension by Broker
6 or a cooperating broker; or (ii) for
whom broker or any cooperating
7 broker submitted to Seller a
signed, written offer….” but only
8 if Broker submitted to Seller a
written list of those Prospective
9 Buyers “not later than the end of
the Listing Period or any
10 extension…” (Contract, Ex. A, ¶
3A(2).)
11
The Contract provides, “Seller
12 hereby irrevocably assigns to
Broker the above compensation
13 from Seller’s funds and proceeds
in escrow.” (Contract, Ex. A, ¶
14 3E.)
15 Finally, the Contract notes that, “If
a Buyer is procured directly by
16 Broker or an associate-licensee in
Broker’s firm, Seller hereby
17 consents to Broker acting as a dual
agent for Seller and Buyer.”
18 (Contract, Ex. A, ¶ 9C.)
19
(Hildebrand Decl., ¶ 2, Exh. 1.)
20
21 3. (restated)
The Contract was modified as follows:
22
The term was extended to August
23 31, 2017 on February 23, 2017;
24 The listing price was reduced to
Nineteen Million, Five Hundred
25 Thousand ($19,500,000) on
February 23, 2017;
26
The listing price was reduced to
27 Eighteen Million Eight Hundred
and Eighty Thousand Dollars
28 ($18,880,000) on June 9, 2017;
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 and
2 The listing price was reduced to
Sixteen Million Eight Hundred
3 and Eighty Thousand Dollars
($16,880,000), and the MLS
4 listing was required to be placed
on hold on July 7, 2017.
5
(Hildebrand Decl., ¶ 2, Exh. 1.)
6
7 4. (restated)
8 Partners Trust was acquired by Pacific
Union International, Inc. on August 21,
9 2017.
10 (Declaration of Nicholas Segal
(“Segal Decl.”), ¶ 3.)
11
12 5. (restated)
In the acquisition, Pacific Union obtained
13 all rights to any commissions earned
under the terms of existing listing
14 agreements involving Partners Trust as of
the date of the acquisition, including 200
15 Toyopa Drive, Pacific Palisades,
California.
16
(Segal Decl., ¶¶ 4, 5, 6.)
17
18 6. (restated)
19 On August 24, 2017, buyer Behdad
Eghbali (“Buyer”) made an initial offer to
20 purchase the Property for $15,800,000.
Buyer was represented by Mr. Hidebrand.
21
(Hildebrand Decl., ¶ 6.)
22
23 7. (restated)
On August 31, 2017, Plaintiff provided an
24 exclusion list of Prospective Buyers to
Trustee which included Mr. Eghbali’s
25 name.
26
(Hildebrand Decl., ¶ 9, Exh. 3.)
27
28
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
8. (restated)
2 On September 13, 2017, Buyer submitted
a new offer to purchase the Property, this
3 time offering Sixteen Million, Three
Hundred Thousand Dollars ($16,300,000),
4 which was accepted by the Trust.
5
(Hildebrand Decl., ¶ 13, Exh. 4.)
6
7 9. (restated)
On November 9, 2017, escrow closed and
8 Buyer took title to the Property.
9
(Declaration of Shannon B. Jones
10 (“Jones Decl.”), ¶ 4, Exh. 9.)
11 10. (restated)
12 On November 9, 2017, Ludwick emailed
Trustee, stating:
13 Paul,
14 Can you do one last thing
regarding Toyopa sale? Please cut
15 and paste below and send to
Cynthia at escrow for her records.
16 “As there is a dispute regarding
commission for 200 Toyopa,
17 please hold 6% of proceeds until
the dispute is resolved.”
18
Regards,
19 Erik
20 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
44:16; ¶ 5, Exh. 10, pages stamped
21 815 and 816.)
22
11. (restated)
23
Trustee testified that he followed
24 Ludwick’s directions and told Terra
Coastal Escrow to hold six percent (6%)
25 of proceeds on the sale of the Property.
26 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
44:16; ¶ 5, Exh. 10, pages stamped
27 815 and 816.)
28
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
12. (restated)
2 Trustee testified Terra Coastal Escrow
complied with Trustee’s request, and six
3 percent (6%) of the $16,300,000 purchase
price, or Nine Hundred Seventy Eight
4 Thousand Dollars ($978,000) (the
“Commission”) remains in the Terra
5 Coastal Escrow account.
6 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.)
7
13. (restated)
8
Trustee testified he did not intend to
9 instruct Terra Coastal Escrow release the
six percent (6%) commission to Plaintiff.
10
11 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.)
12
13 B. ISSUE 2: Pacific Union is entitled to judgment as a matter of law on the
Second Cause of Action in the complaint for Breach of the Implied
14
Covenant of Good Faith and Fair Dealing because the undisputed material
15 facts establish that Defendants breached the residential listing agreement
and interfered with Pacific Union’s rights and benefits under that
16 agreement.
17
Moving Party’s Undisputed Material Opposing Party’s Response and
18 Facts and Supporting Evidence Supporting Evidence
19 1. (restated)
The Anything Trust, by and through its
20 Trustee, entered into a residential listing
agreement (the “Contract”) with Madison
21 Hildebrand and Plaintiff for the sale of
200 Toyopa Drive, Pacific Palisades,
22 California, 90272 (the “Property”) on
August 29, 2016.
23
(Declaration of Madison
24 Hildebrand (“Hildebrand Decl.”),
¶ 2, Exh. 1.)
25
26 2. (restated)
The Contract contains the following
27 provisions:
28 Plaintiff would list the Property for
10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 sale for Twenty Million Dollars
($20,000,000);
2
The initial term of the Contract
3 was September 1, 2016 through
February 28, 2017;
4
Plaintiff ’s compensation at six
5 percent (6%) of the Property’s
sales price, if: “during the Listing
6 Period, or any extension, Broker,
cooperating broker, Seller or any
7 other person procures a ready
willing, and able buyer whose
8 offer to purchase the Property on
any price and terms is accepted by
9 Seller…” (Contract, Ex. A, ¶
3A(1).)
10
Plaintiff would also be owed a
11 commission if, “within 180
calendar days (a) after the end of
12 the Listing Period or any
extension; or (b) after any
13 cancellation of this Agreement,…,
Seller enters into a contract to sell,
14 convey, lease or otherwise transfer
the Property to anyone
15 (‘Prospective Buyer’) or that
person’s related entity: (i) who
16 physically entered and was shown
the Property during the Listing
17 Period or any extension by Broker
or a cooperating broker; or (ii) for
18 whom broker or any cooperating
broker submitted to Seller a
19 signed, written offer….” but only
if Broker submitted to Seller a
20 written list of those Prospective
Buyers “not later than the end of
21 the Listing Period or any
extension…” (Contract, Ex. A, ¶
22 3A(2).)
23
The Contract provides, “Seller
hereby irrevocably assigns to
24
Broker the above compensation
from Seller’s funds and proceeds
25
in escrow.” (Contract, Ex. A, ¶
3E.)
26
27 Finally, the Contract notes that, “If
a Buyer is procured directly by
28 Broker or an associate-licensee in
11
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 Broker’s firm, Seller hereby
consents to Broker acting as a dual
2 agent for Seller and Buyer.”
(Contract, Ex. A, ¶ 9C.)
3
4 (Hildebrand Decl., ¶ 2, Exh. 1.)
5
3. (restated)
6 The Contract was modified as follows:
7 The term was extended to August
31, 2017 on February 23, 2017;
8
The listing price was reduced to
9 Nineteen Million, Five Hundred
Thousand ($19,500,000) on
10 February 23, 2017;
11 The listing price was reduced to
Eighteen Million Eight Hundred
12 and Eighty Thousand Dollars
($18,880,000) on June 9, 2017;
13 and
14 The listing price was reduced to
Sixteen Million Eight Hundred
15 and Eighty Thousand Dollars
($16,880,000), and the MLS
16 listing was required to be placed
on hold on July 7, 2017.
17
(Hildebrand Decl., ¶ 2, Exh. 1.)
18
19 4. (restated)
Partners Trust was acquired by Pacific
20 Union International, Inc. on August 21,
2017.
21
(Declaration of Nicholas Segal
22 (“Segal Decl.”), ¶ 3.)
23
5. (restated)
24
In the acquisition, Pacific Union obtained
25 all rights to any commissions earned
under the terms of existing listing
26 agreements involving Partners Trust as of
the date of the acquisition, including 200
27 Toyopa Drive, Pacific Palisades,
California.
28
12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 (Segal Decl., ¶¶ 4, 5, 6.)
2
6. (restated)
3
On August 24, 2017, buyer Behdad
4 Eghbali (“Buyer”) made an initial offer to
purchase the Property for $15,800,000.
5 Buyer was represented by Mr. Hidebrand.
6 (Hildebrand Decl., ¶ 6.)
7
7. (restated)
8 On August 31, 2017, Plaintiff provided an
exclusion list of Prospective Buyers to
9 Trustee which included Mr. Eghbali’s
name.
10
11 (Hildebrand Decl., ¶ 9, Exh. 3.)
12
8. (restated)
13 On September 13, 2017, Buyer submitted
a new offer to purchase the Property, this
14 time offering Sixteen Million, Three
Hundred Thousand Dollars ($16,300,000),
15 which was accepted by the Trust.
16
(Hildebrand Decl., ¶ 13, Exh. 4.)
17
18 9. (restated)
On November 9, 2017, escrow closed and
19 Buyer took title to the Property.
20
(Declaration of Shannon B. Jones
21 (“Jones Decl.”), ¶ 4, Exh. 9.)
22 10. (restated)
23 On November 9, 2017, Ludwick emailed
Trustee, stating:
24 Paul,
25 Can you do one last thing
regarding Toyopa sale? Please cut
26 and paste below and send to
Cynthia at escrow for her records.
27 “As there is a dispute regarding
commission for 200 Toyopa,
28 please hold 6% of proceeds until
13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 the dispute is resolved.”
2 Regards,
Erik
3
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
4 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
5
6 11. (restated)
7 Trustee testified that he followed
Ludwick’s directions and told Terra
8 Coastal Escrow to hold six percent (6%)
of proceeds on the sale of the Property.
9
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
10 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
11
12 12. (restated)
Trustee testified Terra Coastal Escrow
13 complied with Trustee’s request, and six
percent (6%) of the $16,300,000 purchase
14 price, or Nine Hundred Seventy Eight
Thousand Dollars ($978,000) (the
15 “Commission”) remains in the Terra
Coastal Escrow account.
16
(Jones Decl., ¶ 2, Exh. 7, 44:6-16.)
17
18 13. (restated)
19 Trustee testified he did not intend to
instruct Terra Coastal Escrow release the
20 six percent (6%) commission to Plaintiff.
21
(Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.)
22
23
///
24
///
25
///
26
///
27
28 / / /
14
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 C. ISSUE 3: Pacific Union is entitled to judgment as a matter of law on the
Third Cause of Action in the Complaint for Common Counts because the
2 undisputed facts establish that Defendants are in control of money that
3 belongs to Pacific Union.
4 Moving Party’s Undisputed Material Opposing Party’s Response and
Facts and Supporting Evidence Supporting Evidence
5
1. (restated)
6
The Anything Trust, by and through its
7 Trustee, entered into a residential listing
agreement (the “Contract”) with Madison
8 Hildebrand and Plaintiff for the sale of
200 Toyopa Drive, Pacific Palisades,
9 California, 90272 (the “Property”) on
August 29, 2016.
10
(Declaration of Madison
11 Hildebrand (“Hildebrand Decl.”),
¶ 2, Exh. 1.)
12
2. (restated)
13
The Contract contains the following
14 provisions:
Plaintiff would list the Property for
15 sale for Twenty Million Dollars
($20,000,000);
16
The initial term of the Contract
17 was September 1, 2016 through
February 28, 2017;
18
19 Plaintiff ’s compensation at six
percent (6%) of the Property’s
20 sales price, if: “during the Listing
Period, or any extension, Broker,
21 cooperating broker, Seller or any
other person procures a ready
22 willing, and able buyer whose
offer to purchase the Property on
23 any price and terms is accepted by
Seller…” (Contract, Ex. A, ¶
24 3A(1).)
25 Plaintiff would also be owed a
commission if, “within 180
26 calendar days (a) after the end of
the Listing Period or any
27 extension; or (b) after any
cancellation of this Agreement,…,
28 Seller enters into a contract to sell,
15
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 convey, lease or otherwise transfer
the Property to anyone
2 (‘Prospective Buyer’) or that
person’s related entity: (i) who
3 physically entered and was shown
the Property during the Listing
4 Period or any extension by Broker
or a cooperating broker; or (ii) for
5 whom broker or any cooperating
broker submitted to Seller a
6 signed, written offer….” but only
if Broker submitted to Seller a
7 written list of those Prospective
Buyers “not later than the end of
8 the Listing Period or any
extension…” (Contract, Ex. A, ¶
9 3A(2).)
10 The Contract provides, “Seller
hereby irrevocably assigns to
11 Broker the above compensation
from Seller’s funds and proceeds
12 in escrow.” (Contract, Ex. A, ¶
3E.)
13
Finally, the Contract notes that, “If
14 a Buyer is procured directly by
Broker or an associate-licensee in
15 Broker’s firm, Seller hereby
consents to Broker acting as a dual
16 agent for Seller and Buyer.”
(Contract, Ex. A, ¶ 9C.)
17
18 (Hildebrand Decl., ¶ 2, Exh. 1.)
19
3. (restated)
20 The Contract was modified as follows:
21 The term was extended to August
31, 2017 on February 23, 2017;
22
The listing price was reduced to
23 Nineteen Million, Five Hundred
Thousand ($19,500,000) on
24 February 23, 2017;
25 The listing price was reduced to
Eighteen Million Eight Hundred
26 and Eighty Thousand Dollars
($18,880,000) on June 9, 2017;
27 and
28
16
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
The listing price was reduced to
2 Sixteen Million Eight Hundred
and Eighty Thousand Dollars
3 ($16,880,000), and the MLS
listing was required to be placed
4 on hold on July 7, 2017.
5 (Hildebrand Decl., ¶ 2, Exh. 1.)
6
4. (restated)
7
Partners Trust was acquired by Pacific
8 Union International, Inc. on August 21,
2017.
9
(Declaration of Nicholas Segal
10 (“Segal Decl.”), ¶ 3.)
11
5. (restated)
12 In the acquisition, Pacific Union obtained
all rights to any commissions earned
13 under the terms of existing listing
agreements involving Partners Trust as of
14 the date of the acquisition, including 200
Toyopa Drive, Pacific Palisades,
15 California.
16 (Segal Decl., ¶¶ 4, 5, 6.)
17
6. (restated)
18
On August 24, 2017, buyer Behdad
19 Eghbali (“Buyer”) made an initial offer to
purchase the Property for $15,800,000.
20 Buyer was represented by Mr. Hidebrand.
21 (Hildebrand Decl., ¶ 6.)
22
7. (restated)
23 On August 31, 2017, Plaintiff provided an
exclusion list of Prospective Buyers to
24 Trustee which included Mr. Eghbali’s
name.
25
26 (Hildebrand Decl., ¶ 9, Exh. 3.)
27
8. (restated)
28 On September 13, 2017, Buyer submitted
17
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 a new offer to purchase the Property, this
time offering Sixteen Million, Three
2 Hundred Thousand Dollars ($16,300,000),
which was accepted by the Trust.
3
4 (Hildebrand Decl., ¶ 13, Exh. 4.)
5
9. (restated)
6 On November 9, 2017, escrow closed and
Buyer took title to the Property.
7
8 (Declaration of Shannon B. Jones
(“Jones Decl.”), ¶ 4, Exh. 9.)
9
10. (restated)
10
On November 9, 2017, Ludwick emailed
11 Trustee, stating:
Paul,
12
Can you do one last thing
13 regarding Toyopa sale? Please cut
and paste below and send to
14 Cynthia at escrow for her records.
“As there is a dispute regarding
15 commission for 200 Toyopa,
please hold 6% of proceeds until
16 the dispute is resolved.”
17 Regards,
Erik
18
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
19 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
20
21 11. (restated)
22 Trustee testified that he followed
Ludwick’s directions and told Terra
23 Coastal Escrow to hold six percent (6%)
of proceeds on the sale of the Property.
24
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
25 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
26
27 12. (restated)
Trustee testified Terra Coastal Escrow
28 complied with Trustee’s request, and six
18
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 percent (6%) of the $16,300,000 purchase
price, or Nine Hundred Seventy Eight
2 Thousand Dollars ($978,000) (the
“Commission”) remains in the Terra
3 Coastal Escrow account.
4 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.)
5
13. (restated)
6
Trustee testified he did not intend to
7 instruct Terra Coastal Escrow release the
six percent (6%) commission to Plaintiff.
8
9 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.)
10
D. ISSUE 4: Pacific Union is entitled to judgment as a matter of law on the
11 Fourth Cause of Action in the Complaint for Intentional Interference With
Contractual Relations because the undisputed facts establish that Ludwick
12 interfered with payment of the commission to Pacific Union by the Trust.
13
Moving Party’s Undisputed Material Opposing Party’s Response and
14 Facts and Supporting Evidence Supporting Evidence
15 1. (restated)
The Anything Trust, by and through its
16 Trustee, entered into a residential listing
agreement (the “Contract”) with Madison
17 Hildebrand and Plaintiff for the sale of
200 Toyopa Drive, Pacific Palisades,
18 California, 90272 (the “Property”) on
August 29, 2016.
19
(Declaration of Madison
20 Hildebrand (“Hildebrand Decl.”),
¶ 2, Exh. 1.)
21
22 2. (restated)
The Contract contains the following
23
provisions:
24 Plaintiff would list the Property for
sale for Twenty Million Dollars
25 ($20,000,000);
26 The initial term of the Contract
was September 1, 2016 through
27 February 28, 2017;
28 Plaintiff ’s compensation at six
19
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 percent (6%) of the Property’s
sales price, if: “during the Listing
2 Period, or any extension, Broker,
cooperating broker, Seller or any
3 other person procures a ready
willing, and able buyer whose
4 offer to purchase the Property on
any price and terms is accepted by
5 Seller…” (Contract, Ex. A, ¶
3A(1).)
6
Plaintiff would also be owed a
7 commission if, “within 180
calendar days (a) after the end of
8 the Listing Period or any
extension; or (b) after any
9 cancellation of this Agreement,…,
Seller enters into a contract to sell,
10 convey, lease or otherwise transfer
the Property to anyone
11 (‘Prospective Buyer’) or that
person’s related entity: (i) who
12 physically entered and was shown
the Property during the Listing
13 Period or any extension by Broker
or a cooperating broker; or (ii) for
14 whom broker or any cooperating
broker submitted to Seller a
15 signed, written offer….” but only
if Broker submitted to Seller a
16 written list of those Prospective
Buyers “not later than the end of
17 the Listing Period or any
extension…” (Contract, Ex. A, ¶
18 3A(2).)
19 The Contract provides, “Seller
hereby irrevocably assigns to
20 Broker the above compensation
from Seller’s funds and proceeds
21 in escrow.” (Contract, Ex. A, ¶
3E.)
22
Finally, the Contract notes that, “If
23
a Buyer is procured directly by
Broker or an associate-licensee in
24
Broker’s firm, Seller hereby
consents to Broker acting as a dual
25
agent for Seller and Buyer.”
(Contract, Ex. A, ¶ 9C.)
26
27 (Hildebrand Decl., ¶ 2, Exh. 1.)
28
20
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
3. (restated)
2 The Contract was modified as follows:
3 The term was extended to August
31, 2017 on February 23, 2017;
4
The listing price was reduced to
5 Nineteen Million, Five Hundred
Thousand ($19,500,000) on
6 February 23, 2017;
7 The listing price was reduced to
Eighteen Million Eight Hundred
8 and Eighty Thousand Dollars
($18,880,000) on June 9, 2017;
9 and
10 The listing price was reduced to
Sixteen Million Eight Hundred
11 and Eighty Thousand Dollars
($16,880,000), and the MLS
12 listing was required to be placed
on hold on July 7, 2017.
13
(Hildebrand Decl., ¶ 2, Exh. 1.)
14
15 4. (restated)
Partners Trust was acquired by Pacific
16 Union International, Inc. on August 21,
2017.
17
(Declaration of Nicholas Segal
18 (“Segal Decl.”), ¶ 3.)
19
5. (restated)
20
In the acquisition, Pacific Union obtained
21 all rights to any commissions earned
under the terms of existing listing
22 agreements involving Partners Trust as of
the date of the acquisition, including 200
23 Toyopa Drive, Pacific Palisades,
California.
24
(Segal Decl., ¶¶ 4, 5, 6.)
25
26 6. (restated)
On August 24, 2017, buyer Behdad
27 Eghbali (“Buyer”) made an initial offer to
purchase the Property for $15,800,000.
28 Buyer was represented by Mr. Hidebrand.
21
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
(Hildebrand Decl., ¶ 6.)
2
3 7. (restated)
4 On August 31, 2017, Plaintiff provided an
exclusion list of Prospective Buyers to
5 Trustee which included Mr. Eghbali’s
name.
6
(Hildebrand Decl., ¶ 9, Exh. 3.)
7
8 8. (restated)
9 On September 13, 2017, Buyer submitted
a new offer to purchase the Property, this
10 time offering Sixteen Million, Three
Hundred Thousand Dollars ($16,300,000),
11 which was accepted by the Trust.
12 (Hildebrand Decl., ¶ 13, Exh. 4.)
13
9. (restated)
14
On November 9, 2017, escrow closed and
15 Buyer took title to the Property.
16 (Declaration of Shannon B. Jones
(“Jones Decl.”), ¶ 4, Exh. 9.)
17
18 10. (restated)
On November 9, 2017, Ludwick emailed
19 Trustee, stating:
20 Paul,
Can you do one last thing
21 regarding Toyopa sale? Please cut
and paste below and send to
22 Cynthia at escrow for her records.
23 “As there is a dispute regarding
commission for 200 Toyopa,
24 please hold 6% of proceeds until
the dispute is resolved.”
25 Regards,
26 Erik
27 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
44:16; ¶ 5, Exh. 10, pages stamped
28 815 and 816.)
22
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
11. (restated)
2 Trustee testified that he followed
Ludwick’s directions and told Terra
3 Coastal Escrow to hold six percent (6%)
of proceeds on the sale of the Property.
4
(Jones Decl., ¶ 2, Exh. 7, pp. 43:1-
5 44:16; ¶ 5, Exh. 10, pages stamped
815 and 816.)
6
7 12. (restated)
8 Trustee testified Terra Coastal Escrow
complied with Trustee’s request, and six
9 percent (6%) of the $16,300,000 purchase
price, or Nine Hundred Seventy Eight
10 Thousand Dollars ($978,000) (the
“Commission”) remains in the Terra
11 Coastal Escrow account.
12 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.)
13
13. (restated)
14 Trustee testified he did not intend to
instruct Terra Coastal Escrow release the
15 six percent (6%) commission to Plaintiff.
16
(Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.)
17
18
19 E. ISSUE 5: Pacific Union is entitled to judgment as a matter of law on the
Fourth Cause of Action in the Complaint for Intentional Interference With
20 Prospective Economic Advantage because the undisputed facts establish
that Ludwick intentionally acted to disrupt the relationship between
21 Pacific Union and Trust resulting in harm to Pacific Union.
22
Moving Party’s Undisputed Material Opposing Party’s Response and
23 Facts and Supporting Evidence Supporting Evidence
24 1. (restated)
25 The Anything Trust, by and through its
Trustee, entered into a residential listing
26 agreement (the “Contract”) with Madison
Hildebrand and Plaintiff for the sale of
27 200 Toyopa Drive, Pacific Palisades,
California, 90272 (the “Property”) on
28 August 29, 2016.
23
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR
SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
(Declaration of Madison
2 Hildebrand (“Hildebrand Decl.”),
¶ 2, Exh. 1.)
3
4 2. (restated)
The Contract contains the following
5 provisions:
6 Plaintiff would list the Property for
sale for Twenty Million Dollars
7 ($20,000,000);
8 The initial term of the Contract
was September 1, 2016 through
9 February 28, 2017;
10 Plaintiff ’s compensation at six
percent (6%) of the Property’s
11 sales price, if: “during the Listing
Period, or any extension, Broker,
12 cooperating broker, Seller or any
other person procures a ready
13 willing, and able buyer whose
offer to purchase the Property on
14 any price and terms is accepted by
Seller…” (Contract, Ex. A, ¶
15 3A(1).)
16 Plaintiff would also be owed a
commission if, “within 180
17 calendar days (a) after the end of
the Listing Period or any
18 extension; or (b) after any
cancellation of this Agreement,…,
19 Seller enters into a contract to sell,
convey, lease or otherwise transfer
20 the Property to anyone
(‘Prospective
Preview
1 SHANNON B. JONES LAW GROUP, INC. 06/05/2020 SHANNON B. JONES (Bar No. 149222) 2 sbj@sbj-law.com 3 LINDSEY A. MORGAN (Bar No. 274214) lam@sbj-law.com 4 208 W. El Pintado Road Danville, California 94526 5 Telephone: (925) 837-2317 Facsimile: (925) 837-4831 6 Attorneys for Plaintiff 7 PACIFIC UNION INTERNATIONAL, INC. 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 11 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080 ) 12 Plaintiff, ) SEPARATE STATEMENT OF ) UNDISPUTED MATERIAL FACTS IN 13 v. ) SUPPORT OF PACIFIC UNION ) INTERNATIONAL, INC.’S MOTION FOR 14 ERIK LUDWICK, an individual and ) SUMMARY JUDGMENT OR, beneficiary of The Anything Trust Dated ) ALTERNATIVELY, SUMMARY 15 October 12, 2007; THE ANYTHING TRUST ) ADJUDICATION OF ISSUES DATED OCTOBER 12, 2007; PAUL D. ) 16 BOOTH, in his capacity as trustee of The ) Anything Trust Dated October 12, 2007; and ) Date: August 20, 2020 17 DOES 1-50, ) Time: 9:30 a.m. ) Dept: 42 18 Defendants. ) ) Complaint Filed: November 7, 2018 19 ) Trial Date: September 21, 2020 ) 20 21 Pursuant to California Rules of Court Rule 3.1500, Plaintiff PACIFIC UNION 22 INTERNATIONAL, INC. (“Pacific Union”), submits the following Separate Statement of 23 Undisputed Material Facts in support of its Motion for Summary Judgment, or in the Alternative, 24 Summary Adjudication of Issues: 25 / / / 26 / / / 27 / / / 28 / / / _____________________________________________________________________________________________________________________ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 I. Pacific Union Is Entitled to Summary Judgment on Pacific Union’s Complaint 2 Moving Party’s Undisputed Material Opposing Party’s Response and 3 Facts and Supporting Evidence Supporting Evidence 4 1. The Anything Trust, by and through its Trustee, entered into a residential listing 5 agreement (the “Contract”) with Madison Hildebrand and Plaintiff for the sale of 6 200 Toyopa Drive, Pacific Palisades, California, 90272 (the “Property”) on 7 August 29, 2016. 8 (Declaration of Madison Hildebrand (“Hildebrand Decl.”), 9 ¶ 2, Exh. 1.) 10 2. The Contract contains the following provisions: 11 Plaintiff would list the Property for 12 sale for Twenty Million Dollars ($20,000,000); 13 The initial term of the Contract 14 was September 1, 2016 through February 28, 2017; 15 Plaintiff ’s compensation at six 16 percent (6%) of the Property’s sales price, if: “during the Listing 17 Period, or any extension, Broker, cooperating broker, Seller or any 18 other person procures a ready willing, and able buyer whose 19 offer to purchase the Property on any price and terms is accepted by 20 Seller…” (Contract, Ex. A, ¶ 3A(1).) 21 Plaintiff would also be owed a 22 commission if, “within 180 calendar days (a) after the end of 23 the Listing Period or any extension; or (b) after any 24 cancellation of this Agreement,…, Seller enters into a contract to sell, 25 convey, lease or otherwise transfer the Property to anyone 26 (‘Prospective Buyer’) or that person’s related entity: (i) who 27 physically entered and was shown the Property during the Listing 28 Period or any extension by Broker 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 or a cooperating broker; or (ii) for whom broker or any cooperating 2 broker submitted to Seller a signed, written offer….” but only 3 if Broker submitted to Seller a written list of those Prospective 4 Buyers “not later than the end of the Listing Period or any 5 extension…” (Contract, Ex. A, ¶ 3A(2).) 6 The Contract provides, “Seller 7 hereby irrevocably assigns to Broker the above compensation 8 from Seller’s funds and proceeds in escrow.” (Contract, Ex. A, ¶ 9 3E.) 10 Finally, the Contract notes that, “If a Buyer is procured directly by 11 Broker or an associate-licensee in Broker’s firm, Seller hereby 12 consents to Broker acting as a dual agent for Seller and Buyer.” 13 (Contract, Ex. A, ¶ 9C.) 14 (Hildebrand Decl., ¶ 2, Exh. 1.) 15 3. The Contract was modified as follows: 16 The term was extended to August 17 31, 2017 on February 23, 2017; 18 The listing price was reduced to Nineteen Million, Five Hundred 19 Thousand ($19,500,000) on February 23, 2017; 20 The listing price was reduced to 21 Eighteen Million Eight Hundred and Eighty Thousand Dollars 22 ($18,880,000) on June 9, 2017; and 23 The listing price was reduced to 24 Sixteen Million Eight Hundred and Eighty Thousand Dollars 25 ($16,880,000), and the MLS listing was required to be placed 26 on hold on July 7, 2017. 27 (Hildebrand Decl., ¶ 2, Exh. 1.) 28 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 4. Partners Trust was acquired by Pacific 2 Union International, Inc. on August 21, 2017. 3 (Declaration of Nicholas Segal 4 (“Segal Decl.”), ¶ 3.) 5 5. In the acquisition, Pacific Union obtained 6 all rights to any commissions earned under the terms of existing listing 7 agreements involving Partners Trust as of the date of the acquisition, including 200 8 Toyopa Drive, Pacific Palisades, California. 9 (Segal Decl., ¶¶ 4, 5, 6.) 10 11 6. On August 24, 2017, buyer Behdad Eghbali (“Buyer”) made an initial offer to 12 purchase the Property for $15,800,000. Buyer was represented by Mr. Hidebrand. 13 (Hildebrand Decl., ¶ 6.) 14 15 7. On August 31, 2017, Plaintiff provided an exclusion list of Prospective Buyers to 16 Trustee which included Mr. Eghbali’s name. 17 (Hildebrand Decl., ¶ 9, Exh. 3.) 18 19 8. On September 13, 2017, Buyer submitted a new offer to purchase the Property, this 20 time offering Sixteen Million, Three Hundred Thousand Dollars ($16,300,000), 21 which was accepted by the Trust. 22 (Hildebrand Decl., ¶ 13, Exh. 4.) 23 9. On November 9, 2017, escrow closed and 24 Buyer took title to the Property. 25 (Declaration of Shannon B. Jones 26 (“Jones Decl.”), ¶ 4, Exh. 9.) 27 28 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 10. On November 9, 2017, Ludwick emailed 2 Trustee, stating: Paul, 3 Can you do one last thing 4 regarding Toyopa sale? Please cut and paste below and send to 5 Cynthia at escrow for her records. “As there is a dispute regarding 6 commission for 200 Toyopa, please hold 6% of proceeds until 7 the dispute is resolved.” 8 Regards, Erik 9 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 10 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 11 12 11. Trustee testified that he followed Ludwick’s directions and told Terra 13 Coastal Escrow to hold six percent (6%) of proceeds on the sale of the Property. 14 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 15 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 16 17 12. Trustee testified Terra Coastal Escrow complied with Trustee’s request, and six 18 percent (6%) of the $16,300,000 purchase price, or Nine Hundred Seventy Eight 19 Thousand Dollars ($978,000) (the “Commission”) remains in the Terra 20 Coastal Escrow account. 21 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.) 22 13. Trustee testified he did not intend to 23 instruct Terra Coastal Escrow release the six percent (6%) commission to Plaintiff. 24 (Jones Decl., ¶ 2, Exh. 7, pp. 25 45:21-46:1.) 26 /// 27 /// 28 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 II. Pacific Union Is Entitled to Summary Adjudication of All Eight Causes of Action in Pacific Union’s Complaint 2 3 A. ISSUE 1: Pacific Union is entitled to judgment as a matter of law on the First Cause of Action in the Complaint for Breach of Contract because the 4 undisputed material facts establish that Defendants breached the residential listing agreement and harmed Pacific Union. 5 6 Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence Supporting Evidence 7 1. (restated) 8 The Anything Trust, by and through its Trustee, entered into a residential listing 9 agreement (the “Contract”) with Madison Hildebrand and Plaintiff for the sale of 10 200 Toyopa Drive, Pacific Palisades, California, 90272 (the “Property”) on 11 August 29, 2016. 12 (Declaration of Madison Hildebrand (“Hildebrand Decl.”), 13 ¶ 2, Exh. 1.) 14 2. (restated) 15 The Contract contains the following provisions: 16 Plaintiff would list the Property for 17 sale for Twenty Million Dollars ($20,000,000); 18 The initial term of the Contract 19 was September 1, 2016 through February 28, 2017; 20 Plaintiff ’s compensation at six 21 percent (6%) of the Property’s sales price, if: “during the Listing 22 Period, or any extension, Broker, cooperating broker, Seller or any 23 other person procures a ready willing, and able buyer whose 24 offer to purchase the Property on any price and terms is accepted by 25 Seller…” (Contract, Ex. A, ¶ 3A(1).) 26 Plaintiff would also be owed a 27 commission if, “within 180 calendar days (a) after the end of 28 the Listing Period or any 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 extension; or (b) after any cancellation of this Agreement,…, 2 Seller enters into a contract to sell, convey, lease or otherwise transfer 3 the Property to anyone (‘Prospective Buyer’) or that 4 person’s related entity: (i) who physically entered and was shown 5 the Property during the Listing Period or any extension by Broker 6 or a cooperating broker; or (ii) for whom broker or any cooperating 7 broker submitted to Seller a signed, written offer….” but only 8 if Broker submitted to Seller a written list of those Prospective 9 Buyers “not later than the end of the Listing Period or any 10 extension…” (Contract, Ex. A, ¶ 3A(2).) 11 The Contract provides, “Seller 12 hereby irrevocably assigns to Broker the above compensation 13 from Seller’s funds and proceeds in escrow.” (Contract, Ex. A, ¶ 14 3E.) 15 Finally, the Contract notes that, “If a Buyer is procured directly by 16 Broker or an associate-licensee in Broker’s firm, Seller hereby 17 consents to Broker acting as a dual agent for Seller and Buyer.” 18 (Contract, Ex. A, ¶ 9C.) 19 (Hildebrand Decl., ¶ 2, Exh. 1.) 20 21 3. (restated) The Contract was modified as follows: 22 The term was extended to August 23 31, 2017 on February 23, 2017; 24 The listing price was reduced to Nineteen Million, Five Hundred 25 Thousand ($19,500,000) on February 23, 2017; 26 The listing price was reduced to 27 Eighteen Million Eight Hundred and Eighty Thousand Dollars 28 ($18,880,000) on June 9, 2017; 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 and 2 The listing price was reduced to Sixteen Million Eight Hundred 3 and Eighty Thousand Dollars ($16,880,000), and the MLS 4 listing was required to be placed on hold on July 7, 2017. 5 (Hildebrand Decl., ¶ 2, Exh. 1.) 6 7 4. (restated) 8 Partners Trust was acquired by Pacific Union International, Inc. on August 21, 9 2017. 10 (Declaration of Nicholas Segal (“Segal Decl.”), ¶ 3.) 11 12 5. (restated) In the acquisition, Pacific Union obtained 13 all rights to any commissions earned under the terms of existing listing 14 agreements involving Partners Trust as of the date of the acquisition, including 200 15 Toyopa Drive, Pacific Palisades, California. 16 (Segal Decl., ¶¶ 4, 5, 6.) 17 18 6. (restated) 19 On August 24, 2017, buyer Behdad Eghbali (“Buyer”) made an initial offer to 20 purchase the Property for $15,800,000. Buyer was represented by Mr. Hidebrand. 21 (Hildebrand Decl., ¶ 6.) 22 23 7. (restated) On August 31, 2017, Plaintiff provided an 24 exclusion list of Prospective Buyers to Trustee which included Mr. Eghbali’s 25 name. 26 (Hildebrand Decl., ¶ 9, Exh. 3.) 27 28 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 8. (restated) 2 On September 13, 2017, Buyer submitted a new offer to purchase the Property, this 3 time offering Sixteen Million, Three Hundred Thousand Dollars ($16,300,000), 4 which was accepted by the Trust. 5 (Hildebrand Decl., ¶ 13, Exh. 4.) 6 7 9. (restated) On November 9, 2017, escrow closed and 8 Buyer took title to the Property. 9 (Declaration of Shannon B. Jones 10 (“Jones Decl.”), ¶ 4, Exh. 9.) 11 10. (restated) 12 On November 9, 2017, Ludwick emailed Trustee, stating: 13 Paul, 14 Can you do one last thing regarding Toyopa sale? Please cut 15 and paste below and send to Cynthia at escrow for her records. 16 “As there is a dispute regarding commission for 200 Toyopa, 17 please hold 6% of proceeds until the dispute is resolved.” 18 Regards, 19 Erik 20 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 44:16; ¶ 5, Exh. 10, pages stamped 21 815 and 816.) 22 11. (restated) 23 Trustee testified that he followed 24 Ludwick’s directions and told Terra Coastal Escrow to hold six percent (6%) 25 of proceeds on the sale of the Property. 26 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 44:16; ¶ 5, Exh. 10, pages stamped 27 815 and 816.) 28 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 12. (restated) 2 Trustee testified Terra Coastal Escrow complied with Trustee’s request, and six 3 percent (6%) of the $16,300,000 purchase price, or Nine Hundred Seventy Eight 4 Thousand Dollars ($978,000) (the “Commission”) remains in the Terra 5 Coastal Escrow account. 6 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.) 7 13. (restated) 8 Trustee testified he did not intend to 9 instruct Terra Coastal Escrow release the six percent (6%) commission to Plaintiff. 10 11 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.) 12 13 B. ISSUE 2: Pacific Union is entitled to judgment as a matter of law on the Second Cause of Action in the complaint for Breach of the Implied 14 Covenant of Good Faith and Fair Dealing because the undisputed material 15 facts establish that Defendants breached the residential listing agreement and interfered with Pacific Union’s rights and benefits under that 16 agreement. 17 Moving Party’s Undisputed Material Opposing Party’s Response and 18 Facts and Supporting Evidence Supporting Evidence 19 1. (restated) The Anything Trust, by and through its 20 Trustee, entered into a residential listing agreement (the “Contract”) with Madison 21 Hildebrand and Plaintiff for the sale of 200 Toyopa Drive, Pacific Palisades, 22 California, 90272 (the “Property”) on August 29, 2016. 23 (Declaration of Madison 24 Hildebrand (“Hildebrand Decl.”), ¶ 2, Exh. 1.) 25 26 2. (restated) The Contract contains the following 27 provisions: 28 Plaintiff would list the Property for 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 sale for Twenty Million Dollars ($20,000,000); 2 The initial term of the Contract 3 was September 1, 2016 through February 28, 2017; 4 Plaintiff ’s compensation at six 5 percent (6%) of the Property’s sales price, if: “during the Listing 6 Period, or any extension, Broker, cooperating broker, Seller or any 7 other person procures a ready willing, and able buyer whose 8 offer to purchase the Property on any price and terms is accepted by 9 Seller…” (Contract, Ex. A, ¶ 3A(1).) 10 Plaintiff would also be owed a 11 commission if, “within 180 calendar days (a) after the end of 12 the Listing Period or any extension; or (b) after any 13 cancellation of this Agreement,…, Seller enters into a contract to sell, 14 convey, lease or otherwise transfer the Property to anyone 15 (‘Prospective Buyer’) or that person’s related entity: (i) who 16 physically entered and was shown the Property during the Listing 17 Period or any extension by Broker or a cooperating broker; or (ii) for 18 whom broker or any cooperating broker submitted to Seller a 19 signed, written offer….” but only if Broker submitted to Seller a 20 written list of those Prospective Buyers “not later than the end of 21 the Listing Period or any extension…” (Contract, Ex. A, ¶ 22 3A(2).) 23 The Contract provides, “Seller hereby irrevocably assigns to 24 Broker the above compensation from Seller’s funds and proceeds 25 in escrow.” (Contract, Ex. A, ¶ 3E.) 26 27 Finally, the Contract notes that, “If a Buyer is procured directly by 28 Broker or an associate-licensee in 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 Broker’s firm, Seller hereby consents to Broker acting as a dual 2 agent for Seller and Buyer.” (Contract, Ex. A, ¶ 9C.) 3 4 (Hildebrand Decl., ¶ 2, Exh. 1.) 5 3. (restated) 6 The Contract was modified as follows: 7 The term was extended to August 31, 2017 on February 23, 2017; 8 The listing price was reduced to 9 Nineteen Million, Five Hundred Thousand ($19,500,000) on 10 February 23, 2017; 11 The listing price was reduced to Eighteen Million Eight Hundred 12 and Eighty Thousand Dollars ($18,880,000) on June 9, 2017; 13 and 14 The listing price was reduced to Sixteen Million Eight Hundred 15 and Eighty Thousand Dollars ($16,880,000), and the MLS 16 listing was required to be placed on hold on July 7, 2017. 17 (Hildebrand Decl., ¶ 2, Exh. 1.) 18 19 4. (restated) Partners Trust was acquired by Pacific 20 Union International, Inc. on August 21, 2017. 21 (Declaration of Nicholas Segal 22 (“Segal Decl.”), ¶ 3.) 23 5. (restated) 24 In the acquisition, Pacific Union obtained 25 all rights to any commissions earned under the terms of existing listing 26 agreements involving Partners Trust as of the date of the acquisition, including 200 27 Toyopa Drive, Pacific Palisades, California. 28 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 (Segal Decl., ¶¶ 4, 5, 6.) 2 6. (restated) 3 On August 24, 2017, buyer Behdad 4 Eghbali (“Buyer”) made an initial offer to purchase the Property for $15,800,000. 5 Buyer was represented by Mr. Hidebrand. 6 (Hildebrand Decl., ¶ 6.) 7 7. (restated) 8 On August 31, 2017, Plaintiff provided an exclusion list of Prospective Buyers to 9 Trustee which included Mr. Eghbali’s name. 10 11 (Hildebrand Decl., ¶ 9, Exh. 3.) 12 8. (restated) 13 On September 13, 2017, Buyer submitted a new offer to purchase the Property, this 14 time offering Sixteen Million, Three Hundred Thousand Dollars ($16,300,000), 15 which was accepted by the Trust. 16 (Hildebrand Decl., ¶ 13, Exh. 4.) 17 18 9. (restated) On November 9, 2017, escrow closed and 19 Buyer took title to the Property. 20 (Declaration of Shannon B. Jones 21 (“Jones Decl.”), ¶ 4, Exh. 9.) 22 10. (restated) 23 On November 9, 2017, Ludwick emailed Trustee, stating: 24 Paul, 25 Can you do one last thing regarding Toyopa sale? Please cut 26 and paste below and send to Cynthia at escrow for her records. 27 “As there is a dispute regarding commission for 200 Toyopa, 28 please hold 6% of proceeds until 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 the dispute is resolved.” 2 Regards, Erik 3 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 4 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 5 6 11. (restated) 7 Trustee testified that he followed Ludwick’s directions and told Terra 8 Coastal Escrow to hold six percent (6%) of proceeds on the sale of the Property. 9 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 10 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 11 12 12. (restated) Trustee testified Terra Coastal Escrow 13 complied with Trustee’s request, and six percent (6%) of the $16,300,000 purchase 14 price, or Nine Hundred Seventy Eight Thousand Dollars ($978,000) (the 15 “Commission”) remains in the Terra Coastal Escrow account. 16 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.) 17 18 13. (restated) 19 Trustee testified he did not intend to instruct Terra Coastal Escrow release the 20 six percent (6%) commission to Plaintiff. 21 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.) 22 23 /// 24 /// 25 /// 26 /// 27 28 / / / 14 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 C. ISSUE 3: Pacific Union is entitled to judgment as a matter of law on the Third Cause of Action in the Complaint for Common Counts because the 2 undisputed facts establish that Defendants are in control of money that 3 belongs to Pacific Union. 4 Moving Party’s Undisputed Material Opposing Party’s Response and Facts and Supporting Evidence Supporting Evidence 5 1. (restated) 6 The Anything Trust, by and through its 7 Trustee, entered into a residential listing agreement (the “Contract”) with Madison 8 Hildebrand and Plaintiff for the sale of 200 Toyopa Drive, Pacific Palisades, 9 California, 90272 (the “Property”) on August 29, 2016. 10 (Declaration of Madison 11 Hildebrand (“Hildebrand Decl.”), ¶ 2, Exh. 1.) 12 2. (restated) 13 The Contract contains the following 14 provisions: Plaintiff would list the Property for 15 sale for Twenty Million Dollars ($20,000,000); 16 The initial term of the Contract 17 was September 1, 2016 through February 28, 2017; 18 19 Plaintiff ’s compensation at six percent (6%) of the Property’s 20 sales price, if: “during the Listing Period, or any extension, Broker, 21 cooperating broker, Seller or any other person procures a ready 22 willing, and able buyer whose offer to purchase the Property on 23 any price and terms is accepted by Seller…” (Contract, Ex. A, ¶ 24 3A(1).) 25 Plaintiff would also be owed a commission if, “within 180 26 calendar days (a) after the end of the Listing Period or any 27 extension; or (b) after any cancellation of this Agreement,…, 28 Seller enters into a contract to sell, 15 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 convey, lease or otherwise transfer the Property to anyone 2 (‘Prospective Buyer’) or that person’s related entity: (i) who 3 physically entered and was shown the Property during the Listing 4 Period or any extension by Broker or a cooperating broker; or (ii) for 5 whom broker or any cooperating broker submitted to Seller a 6 signed, written offer….” but only if Broker submitted to Seller a 7 written list of those Prospective Buyers “not later than the end of 8 the Listing Period or any extension…” (Contract, Ex. A, ¶ 9 3A(2).) 10 The Contract provides, “Seller hereby irrevocably assigns to 11 Broker the above compensation from Seller’s funds and proceeds 12 in escrow.” (Contract, Ex. A, ¶ 3E.) 13 Finally, the Contract notes that, “If 14 a Buyer is procured directly by Broker or an associate-licensee in 15 Broker’s firm, Seller hereby consents to Broker acting as a dual 16 agent for Seller and Buyer.” (Contract, Ex. A, ¶ 9C.) 17 18 (Hildebrand Decl., ¶ 2, Exh. 1.) 19 3. (restated) 20 The Contract was modified as follows: 21 The term was extended to August 31, 2017 on February 23, 2017; 22 The listing price was reduced to 23 Nineteen Million, Five Hundred Thousand ($19,500,000) on 24 February 23, 2017; 25 The listing price was reduced to Eighteen Million Eight Hundred 26 and Eighty Thousand Dollars ($18,880,000) on June 9, 2017; 27 and 28 16 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 The listing price was reduced to 2 Sixteen Million Eight Hundred and Eighty Thousand Dollars 3 ($16,880,000), and the MLS listing was required to be placed 4 on hold on July 7, 2017. 5 (Hildebrand Decl., ¶ 2, Exh. 1.) 6 4. (restated) 7 Partners Trust was acquired by Pacific 8 Union International, Inc. on August 21, 2017. 9 (Declaration of Nicholas Segal 10 (“Segal Decl.”), ¶ 3.) 11 5. (restated) 12 In the acquisition, Pacific Union obtained all rights to any commissions earned 13 under the terms of existing listing agreements involving Partners Trust as of 14 the date of the acquisition, including 200 Toyopa Drive, Pacific Palisades, 15 California. 16 (Segal Decl., ¶¶ 4, 5, 6.) 17 6. (restated) 18 On August 24, 2017, buyer Behdad 19 Eghbali (“Buyer”) made an initial offer to purchase the Property for $15,800,000. 20 Buyer was represented by Mr. Hidebrand. 21 (Hildebrand Decl., ¶ 6.) 22 7. (restated) 23 On August 31, 2017, Plaintiff provided an exclusion list of Prospective Buyers to 24 Trustee which included Mr. Eghbali’s name. 25 26 (Hildebrand Decl., ¶ 9, Exh. 3.) 27 8. (restated) 28 On September 13, 2017, Buyer submitted 17 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 a new offer to purchase the Property, this time offering Sixteen Million, Three 2 Hundred Thousand Dollars ($16,300,000), which was accepted by the Trust. 3 4 (Hildebrand Decl., ¶ 13, Exh. 4.) 5 9. (restated) 6 On November 9, 2017, escrow closed and Buyer took title to the Property. 7 8 (Declaration of Shannon B. Jones (“Jones Decl.”), ¶ 4, Exh. 9.) 9 10. (restated) 10 On November 9, 2017, Ludwick emailed 11 Trustee, stating: Paul, 12 Can you do one last thing 13 regarding Toyopa sale? Please cut and paste below and send to 14 Cynthia at escrow for her records. “As there is a dispute regarding 15 commission for 200 Toyopa, please hold 6% of proceeds until 16 the dispute is resolved.” 17 Regards, Erik 18 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 19 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 20 21 11. (restated) 22 Trustee testified that he followed Ludwick’s directions and told Terra 23 Coastal Escrow to hold six percent (6%) of proceeds on the sale of the Property. 24 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 25 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 26 27 12. (restated) Trustee testified Terra Coastal Escrow 28 complied with Trustee’s request, and six 18 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 percent (6%) of the $16,300,000 purchase price, or Nine Hundred Seventy Eight 2 Thousand Dollars ($978,000) (the “Commission”) remains in the Terra 3 Coastal Escrow account. 4 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.) 5 13. (restated) 6 Trustee testified he did not intend to 7 instruct Terra Coastal Escrow release the six percent (6%) commission to Plaintiff. 8 9 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.) 10 D. ISSUE 4: Pacific Union is entitled to judgment as a matter of law on the 11 Fourth Cause of Action in the Complaint for Intentional Interference With Contractual Relations because the undisputed facts establish that Ludwick 12 interfered with payment of the commission to Pacific Union by the Trust. 13 Moving Party’s Undisputed Material Opposing Party’s Response and 14 Facts and Supporting Evidence Supporting Evidence 15 1. (restated) The Anything Trust, by and through its 16 Trustee, entered into a residential listing agreement (the “Contract”) with Madison 17 Hildebrand and Plaintiff for the sale of 200 Toyopa Drive, Pacific Palisades, 18 California, 90272 (the “Property”) on August 29, 2016. 19 (Declaration of Madison 20 Hildebrand (“Hildebrand Decl.”), ¶ 2, Exh. 1.) 21 22 2. (restated) The Contract contains the following 23 provisions: 24 Plaintiff would list the Property for sale for Twenty Million Dollars 25 ($20,000,000); 26 The initial term of the Contract was September 1, 2016 through 27 February 28, 2017; 28 Plaintiff ’s compensation at six 19 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 percent (6%) of the Property’s sales price, if: “during the Listing 2 Period, or any extension, Broker, cooperating broker, Seller or any 3 other person procures a ready willing, and able buyer whose 4 offer to purchase the Property on any price and terms is accepted by 5 Seller…” (Contract, Ex. A, ¶ 3A(1).) 6 Plaintiff would also be owed a 7 commission if, “within 180 calendar days (a) after the end of 8 the Listing Period or any extension; or (b) after any 9 cancellation of this Agreement,…, Seller enters into a contract to sell, 10 convey, lease or otherwise transfer the Property to anyone 11 (‘Prospective Buyer’) or that person’s related entity: (i) who 12 physically entered and was shown the Property during the Listing 13 Period or any extension by Broker or a cooperating broker; or (ii) for 14 whom broker or any cooperating broker submitted to Seller a 15 signed, written offer….” but only if Broker submitted to Seller a 16 written list of those Prospective Buyers “not later than the end of 17 the Listing Period or any extension…” (Contract, Ex. A, ¶ 18 3A(2).) 19 The Contract provides, “Seller hereby irrevocably assigns to 20 Broker the above compensation from Seller’s funds and proceeds 21 in escrow.” (Contract, Ex. A, ¶ 3E.) 22 Finally, the Contract notes that, “If 23 a Buyer is procured directly by Broker or an associate-licensee in 24 Broker’s firm, Seller hereby consents to Broker acting as a dual 25 agent for Seller and Buyer.” (Contract, Ex. A, ¶ 9C.) 26 27 (Hildebrand Decl., ¶ 2, Exh. 1.) 28 20 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 3. (restated) 2 The Contract was modified as follows: 3 The term was extended to August 31, 2017 on February 23, 2017; 4 The listing price was reduced to 5 Nineteen Million, Five Hundred Thousand ($19,500,000) on 6 February 23, 2017; 7 The listing price was reduced to Eighteen Million Eight Hundred 8 and Eighty Thousand Dollars ($18,880,000) on June 9, 2017; 9 and 10 The listing price was reduced to Sixteen Million Eight Hundred 11 and Eighty Thousand Dollars ($16,880,000), and the MLS 12 listing was required to be placed on hold on July 7, 2017. 13 (Hildebrand Decl., ¶ 2, Exh. 1.) 14 15 4. (restated) Partners Trust was acquired by Pacific 16 Union International, Inc. on August 21, 2017. 17 (Declaration of Nicholas Segal 18 (“Segal Decl.”), ¶ 3.) 19 5. (restated) 20 In the acquisition, Pacific Union obtained 21 all rights to any commissions earned under the terms of existing listing 22 agreements involving Partners Trust as of the date of the acquisition, including 200 23 Toyopa Drive, Pacific Palisades, California. 24 (Segal Decl., ¶¶ 4, 5, 6.) 25 26 6. (restated) On August 24, 2017, buyer Behdad 27 Eghbali (“Buyer”) made an initial offer to purchase the Property for $15,800,000. 28 Buyer was represented by Mr. Hidebrand. 21 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 (Hildebrand Decl., ¶ 6.) 2 3 7. (restated) 4 On August 31, 2017, Plaintiff provided an exclusion list of Prospective Buyers to 5 Trustee which included Mr. Eghbali’s name. 6 (Hildebrand Decl., ¶ 9, Exh. 3.) 7 8 8. (restated) 9 On September 13, 2017, Buyer submitted a new offer to purchase the Property, this 10 time offering Sixteen Million, Three Hundred Thousand Dollars ($16,300,000), 11 which was accepted by the Trust. 12 (Hildebrand Decl., ¶ 13, Exh. 4.) 13 9. (restated) 14 On November 9, 2017, escrow closed and 15 Buyer took title to the Property. 16 (Declaration of Shannon B. Jones (“Jones Decl.”), ¶ 4, Exh. 9.) 17 18 10. (restated) On November 9, 2017, Ludwick emailed 19 Trustee, stating: 20 Paul, Can you do one last thing 21 regarding Toyopa sale? Please cut and paste below and send to 22 Cynthia at escrow for her records. 23 “As there is a dispute regarding commission for 200 Toyopa, 24 please hold 6% of proceeds until the dispute is resolved.” 25 Regards, 26 Erik 27 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 44:16; ¶ 5, Exh. 10, pages stamped 28 815 and 816.) 22 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 11. (restated) 2 Trustee testified that he followed Ludwick’s directions and told Terra 3 Coastal Escrow to hold six percent (6%) of proceeds on the sale of the Property. 4 (Jones Decl., ¶ 2, Exh. 7, pp. 43:1- 5 44:16; ¶ 5, Exh. 10, pages stamped 815 and 816.) 6 7 12. (restated) 8 Trustee testified Terra Coastal Escrow complied with Trustee’s request, and six 9 percent (6%) of the $16,300,000 purchase price, or Nine Hundred Seventy Eight 10 Thousand Dollars ($978,000) (the “Commission”) remains in the Terra 11 Coastal Escrow account. 12 (Jones Decl., ¶ 2, Exh. 7, 44:6-16.) 13 13. (restated) 14 Trustee testified he did not intend to instruct Terra Coastal Escrow release the 15 six percent (6%) commission to Plaintiff. 16 (Jones Decl., ¶ 2, Exh. 7, pp. 45:21-46:1.) 17 18 19 E. ISSUE 5: Pacific Union is entitled to judgment as a matter of law on the Fourth Cause of Action in the Complaint for Intentional Interference With 20 Prospective Economic Advantage because the undisputed facts establish that Ludwick intentionally acted to disrupt the relationship between 21 Pacific Union and Trust resulting in harm to Pacific Union. 22 Moving Party’s Undisputed Material Opposing Party’s Response and 23 Facts and Supporting Evidence Supporting Evidence 24 1. (restated) 25 The Anything Trust, by and through its Trustee, entered into a residential listing 26 agreement (the “Contract”) with Madison Hildebrand and Plaintiff for the sale of 27 200 Toyopa Drive, Pacific Palisades, California, 90272 (the “Property”) on 28 August 29, 2016. 23 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 (Declaration of Madison 2 Hildebrand (“Hildebrand Decl.”), ¶ 2, Exh. 1.) 3 4 2. (restated) The Contract contains the following 5 provisions: 6 Plaintiff would list the Property for sale for Twenty Million Dollars 7 ($20,000,000); 8 The initial term of the Contract was September 1, 2016 through 9 February 28, 2017; 10 Plaintiff ’s compensation at six percent (6%) of the Property’s 11 sales price, if: “during the Listing Period, or any extension, Broker, 12 cooperating broker, Seller or any other person procures a ready 13 willing, and able buyer whose offer to purchase the Property on 14 any price and terms is accepted by Seller…” (Contract, Ex. A, ¶ 15 3A(1).) 16 Plaintiff would also be owed a commission if, “within 180 17 calendar days (a) after the end of the Listing Period or any 18 extension; or (b) after any cancellation of this Agreement,…, 19 Seller enters into a contract to sell, convey, lease or otherwise transfer 20 the Property to anyone (‘Prospective