Preview
1 MICHAEL AJ. NANGANO(SBN 133999) 08/07/2020
Law Offices of Michael A.J. Nangano
2 133 No. Altadena Drive, Suite 403
Pasadena, OA 91107
3 Phone: (626)796-9998
Fax: (626)796-9992
4
LAWRENCE E. SKIDMORE(SBN 137587)
5 ARONOWITZ,SKIDMORE & LYON
200 Auburn Folsom Road, Suite 305
6 Auburn, CA 95603
Phone: (530)823-9736
7 Fax: (530)823-5241
8 Attorney for Defendants
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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16 PACIFIC UNION INTERNATIONAL, Case No. S-CV 0042080
INC.,
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Plaintiff, DEFENDANTS'REPLY BRIEF
18 IN SUPPORT OF MOTION FOR
vs. SUMMARY JUDGMENT
19
ERIK LUDWICK,an individual AND
20 Beneficiary of The Anything Trust dated
October 12, 2007; THE ANYTHING
21 TRUST DATED OCTOBER 12, 2017; Motion Date: August 13,2020
PAUL D.BOOTH,in his capacity as Trustee Dept.: Dept 42
22 of The Anything Trust Dated October 12,
2007; and Does 1 through 50, inclusive,
23
Trial Date: September 21, 2020
24 Defendants.
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2
3 DEFENDANT ERIK LUDWIG, individually and as the Trustee and Beneficiary of the
4 Anything Trust dated October 12, 2007 (hereinafter simply "the TRUST")respectfully submits the
5 following Reply Brief in support of the TRUST'S Motion for Summary Judgment scheduled for
6 hearing on August 13, 2020(hereinafter simply "the TRUST'S MSJ").
7
8 INTRODUCTION
9 This is a Breach of Contract Action regarding the realtor's commission owed, if any, with
10 respect to the sale ofa parcel ofresidential real estate located at 200 Toyopa Drive,Pacific Palisades,
11 CA 90272 in the County of Los Angeles, CA (hereinafter "the L.A. County Property").
12 Defendant Erik Ludwick ("Ludwick")is the Trustor, current Trustee and primary beneficiary ofthe
13 TRUST,and a resident ofLos Angeles County. (Ludwick Declaration at ^ 1, p. 2,lines 1-14.) The
14 TRUST was the owner of record ofthe L.A. County Property and does not do business or own any
15 property in Placer County. {Id.) Defendant Paul D. Booth ("Booth") is the former Trustee of the
16 TRUST,and a resident of Placer County. (Ludwick Declaration at f 2, p. 2, lines 15-18.)
17 Defendants"The TRUST,""Ludwick,"and"Booth"(hereinafter referred to collectively asthe
18 "DEFENDANTS")seek entry of an Order Granting Summary Judgement in favor of each ofthem,
19 and against PlaintiffPacific Union International,Inc.,(hereinafter simply"Plaintiff'and/or"PUl")
20 under Code of Civil Procedure §§437c on the following grounds:
21 1. That Plaintiffs claims are barred by the applicable Statutes of Frauds including, but
22 not limited to, California Civil Code §1624(a)(4);
23 2. That Plaintiff has no standing to sue Defendants, or any ofthem, on a contract as to
24 which Plaintiff was neither a party nor a legally cognizable successor in interest;
25 3. That Plaintiffs claims fail to state facts sufficient to constitute a viable cause ofaction
26 against Defendants, or any ofthem; and, therefore,
27 4. That Defendants,and each ofthem,are entitled to an Order entering Judgment in their
28 favor and against Plaintiff in this action.
i
DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR summary JUDGMENT
1 ISSUE PRESENTED
2
3 In its "Memorandum of Points and Authorities in Opposition to Defendants' Motion for
4 Summary Judgement"(hereinafter simply"PUI's Opposition"),PUI mis-states the issue presented on
5 this Motion. PUI admits that "there is no dispute that a contract between Defendants and Partners
6 Trust and its agent exists,.."(PUI's Opposition at p.1, line 28 - p. 2, line 1, emphasis added). But,
7 it defines the "issue presented" as being that the TRUST is asking "this Court to agree that the owner
8 ofa company cannot bring an action to obtain payment ofa commission earned by the company under
9 written contract." That is not the issue presented here.
10 PUI's"definition"ofthe issue presented is,at best,a gross over-simplification ofthe real legal
11 issue, which is: can PUI, which acquired Partners Trust a year after the Listing Agreement between
12 the TRUST and Partners Trust was signed (and barely a month before sale of the L.A. County
13 Property) claim a real estate sales commission under a written contract as to which it was never a
14 party. PUI misleadingly refers to itself as a "party" to the Listing Agreement in its Opposition; but
15 legally it is, at best, a successor-in-interest! Is that relationship sufficient to meet the requirement of
16 the Statute of Frauds, specifically Civil Code $1624(a)(4) which requires that:
17 (a)The following contracts are invalid, unless they,or some note or memorandum thereof,are
jg in writing and subscribed by the party to be charged or by the party's agent:
(4) An agreement authorizing or employing an agent, broker, or any other person to
purchase or sell real estate, or to lease real estate for a longer period than one year, or to
20 procure,introduce,or find a purchaser or seller ofreal estate or a lessee or lessor ofreal estate
where the lease is for a longer period than one year, for compensation or a commission.
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The TRUST contends that it is not.
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PUI's Opposition to the TRUST'S MSJ is essentially a re-write of PUI's own
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contemporaneously filed Motion for Summary Judgement. As with the Memorandum of Points &
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Authorities on its own Motion,PUI divides its Opposition to the TRUST'S MSJ into three sections:
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II "Factual Background"(See PUI's Opposition §11 @ p. 2 - 5);
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III "Procedural Background"(See PUI's Opposition §111 @ p. 6); and
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IV "Legal Argument"(See PUI's Opposition §IV @ p.6 -11.).
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUlVfiVIARV JUDGMENT
1 We will address each in order; establishing why PUFs arguments are no more successful in defeating
2 the TRUST'S MSJ than they are in supporting PUI's own motion.
3
I
4
"FACTUAL BACKGROUND"& REALITY CHECK
5
(PUI's Opposition §11 at p. 2 - 5)
6
7 A. "The Parties"(PUI's Opposition §11A at p. 2 - 3)
8 Ofprimary significance here is PUTs concession that"Pacific Union acquired Partners Trust
9 on August 21,2017." (PUI's Opposition at p.2,line 27.) That is a year after the"Listing Agreement"
10 and only shortly before escrow for the sale ofthe Property was scheduled to close.
11 B. "The Contract" (PUI's Opposition §11B at p. 3 - 4)
12 PUI further concedes that it was almost exactly a year earlier, on August 29, 2016,that the
13 "Contract" for sale ofthe L.A. County Property was entered into between the TRUST and Partners
14 Trust. Again, clearly it was Partner's Trust, not PUI, which was responsible for representing the
15 TRUST and eventually closing the sale. Nonetheless,PUI shamelessly claims creditfor"successfully
16 selling the Property." (See §E, below.)
17 C. "Pacific Union's Performance of the Contract" (PUI's Opposition §11C at p.4-5)
18 Even though it did not acquire Partners Trust until shortly before escrow was scheduled to
19 close,PUI disingenuously asserts that it "performed all ofits obligations under the Contract, listing
20 the property for sale, marketing it, and ultimately directly procuring [the] buyer. . ." (PUI's
21 Opposition at p. 4, lines 17-19; emphasis added.) Obviously, this statement is false.
22 D* The Agreed-Upon Commission Rate of 4.5%
23 WhatPUPs"factual recitation" doesn't mention is that the listing, marketing and procurement
24 of the buyer were all carried out by Defendant Madison Hilldebrand (acting as a dual agent) on
25 behalf of the TRUST and Partners Trust, not PUI! It also doesn't mention that, as shown by PUI's
26 own evidence. Defendant Hildebrand (since he was acting as a dual agent)had agreed in writing that
27 the commission on the sale would only be four and one-half percent(4.5%)ofthe sale price, not
28 tho six percent(6%)which PUI is now claiming!
3
DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUlVfiVIARY JUDGMENT
1 First, in an email dated August 27, 2017 at 6:15 PM, Hildebrand stated to Plaintiff that the
2 commission on a sale to Behdad Eghbali,the ultimate buyer, would be 4.5% not 6%. (See f15 ofthe
3 "Declaration of Madison Hildebrand in Opposition to Defendants' Motion for Summary Judgment"
4 dated July 30, 2020 at p. 3, lines 20-24 [hereinafter simply the "Hildebrand Declaration"]; and
5 Exhibits 2 & 6 thereto.) This was six (6)days after PUI acquired Partners Trust!
6 Second,Exhibit"2" to the Hildebrand Declaration is an email dated Sunday,August 27,2017
7 from Hildebrand to "Erik"[Ludwick] and "Paul"[Booth] which states:
8 "P.S. Erik, since the buyer is representing himself, in some capacity, we put into
g clause 6 that shall any commission be paid to him it will be from his own account. In
other words, the listing agreement and the contractual obligation to pay a buyer's
commission is set in the MLS,and we excluded the buyer from any commission per
11 the Buyer Non Agency Disclosure, which means the purchase price reflects the
$16,250,000 less the 1.5% from the 6% total commission. Moving forward, you and
Partners Trust are the only entities concerned with commission at this time, and
13 assuming he [Behdad Eghbali] signs everything then you and me [sic] will sign a
24 separate commission agreement which reduces your obligation to pay the 6%
commission to 4.5% commission total-which we can sign and handle as paperwork
proceeds. [^] Any questions, call me.[^ Madison" (Exhibit 2 to the Hildebrand
16 Declaration, final two(2) paragraphs, emphasis added.)
17 Third, attached as Exhibit"9" to the "Declaration of Shannon B. Jones in Support ofPacific
18 Union International's Opposition to Defendants Motion for Summary Judgment"(hereinafter "the
19 Jones Declaration")is what is alleged by Ms. Jones in|4 ofher Declaration to be a "true and correct
20 copy ofrelevant documents produced by Terra Costal Escrow on April 19,2019 pursuantto subpoena,
21 stamped TCE00016 and TCEOl004-1005." ("Jones Declaration" at p. 2,|4 and Exhibit 9,thereto.)
22 Document No. TCE00016 is identified as a copy ofthe "Seller's Final Settlement Statement" issued
23 by Terra Coastal Escrow on or about November 9,2017. Per Exhibit 9,the "Listing Commission to
24 Partners Trust" as the seller's agent is $978,000; which amounts to Six Percent(6.0 %)ofthe listed
25 "Contract Sales Price of$16,300,000.00." Thus,as shown by the Jones Declaration,notwithstanding
26 the "instruction" from Defendant Madison Hilldebrand (acting as a dual agent), PUI took a Six
27 Percent(6%)commission when Hildebrand had assured Defendants that the commission would only
28 be 4.5%. The difference equals $244,500.00!
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
1 E. "Defendants* Bad Faith Conduct** (PUI's Opposition §11 D at p. 5)
2 Nonetheless, PUI claims that it is the TRUST which has acted in bad faith!11
3 What PUI attempts to classify as"Bad Faith Conduct"is simply the TRUST'S legitimate,and
4 totally legal, request that escrow delay releasing any sales commissions to PUI until the disputes
5 between the parties are resolved. We say "disputes" in the plural because in addition to the question
6 as to whether PUI is precluded from receiving a commission as a matter of law; there is also the
7 factual issue as to the amount of any commission PUI might be entitled to, if any. Why? Because,
8 as established in Paragraph I. C, above, Madison Hildebrand, acting on behalf of Partners Trust,
9 agreed that the sales commission on L.A. County Property would only be four and one-half percent
10 (4.5%), not six percent(6%), since he was representing both the TRUST,as seller, and the two(2)
11 then-competing buyers. (See|15 of the Hildebrand Declaration; and Exhibits 2 & 6 thereto.) Yet
12 PUI continues to assert,and has approved Escrow instructions providing for payment of a six percent
13 (6%)commission. (See §I D,above and Exhibit 9 to Jones Declaration.)
14 F. "Pacific Union Successfully Sold The Property For Defendants"
(PUI's Opposition §11 E @ p. 5)
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PUI's assertion that PUI"successfully sold the property for the defendants" is based solely on
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the Partner's Trust Listing Agreement and the fact that Madison Hildebrand had apparently placed
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Begdhali on an"exclusion list" under that Agreement;and subsequently Hildebrand was able to close
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a deal with Eghbali within the 180 day exclusion period in the Listing Agreement.
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What PUI's"factual recitation" doesn't make clear is that all ofthe foregoing was carried out
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by Defendant Madison Hilldebrand who,while acting as a dual agent on behalfon Partners Trust and
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the Buyer, had agreed in writing that the commission on the sale would only be four and one-half
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percent (4.5%) of the sale price, not the six percent (6%) which PUI claims. (See 1115 of the
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Hildebrand Declaration at p. 3, lines 20-24; and Exhibits 2& 6 thereto.)
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Thus, PUI's claim that it is entitled to a six percent(6%)commission is clearly meritless.
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Nor is there any triable issue ofmaterial fact with respect to what commission percentage,and
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therefore commission amount, if any, should be paid by the TRUST, as Hildebrand had already
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committed in writing that for a sale to Behdad Eghbali, the commission would only be 4.5%. (Id.)
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DEFENDANTS* REPLY BRIEF IN SUPPORT OF
MOTION FOR SUIVfiMARY JUDGMENT
1 II
2 "PROCEDURAL BACKGROUND"
(PUI's Opposition, §111 at p. 6)
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^ A. PUI's Brief Summary of the Litigation Between the Parties'
In what is, at best, superficial lip-service to the lengthy procedural history ofthis litigation in
^ Placer and Los Angeles Counties,PUI devotes two(2) paragraphs to:
(1)its own Complaint in this action; and
^ (2)the Defendants unsuccessful motion for change of venue to Los Angeles Superior Court.
^ As the Court may recall, the ONLY reason that this action is in Placer County to start with,
^^ is the fact that Defendant Paul Booth(a resident ofPlacer County)was,at that time,the Trustee ofthe
^ ^ TRUST. The L. A. County Property and all other Parties are located in Los Angeles County; and an
^^ action is pending between the parties dealing with the same subject matter in the Los Angeles Superior
^^ Court. (See Section B.2 below.) The actual history and status ofthe pending litigation between the
Parties is detailed in The TRUST' Memorandum ofPoints and Authorities in Support ofthe instant
Motion. Since the filing ofthe TRUST'S Motion, there has been one new procedural development.
On July 17, 2020, Ludwick file a "Petition For Coordination" with the Judicial Council of
^^ California seeking to have the instant Placer County Superior Court action coordinated with the Los
Angeles County Superior Court action. (Judicial Council of California Matter No. JCCP5123).
Copies of Ludwick's Petition along with all supporting pleadings, declarations and documents have
been submitted to and filed with this Court.
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22 in
"LEGAL ARGUMENT"
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(PUI's Opposition §IV at p. 6 -11)
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A. PUIDoes NotAutomatically Succeed toPartnersTrust'sLegalRights
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(PUI's ArgumentIV B at p.7- 8.)
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PUI's primary argument is that since it acquired Partners Trust prior to the close ofescrow,
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under Corporations Code §1107(a)PUI automatically succeeds to all of the rights and property of
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUIVfiVIARY JUDGMENT
1 Partners Trust "in the same manner as if[PUI] had itselfincurred them." (PUI's Memorandum at p.
2 7, lines 15 - 23.) Further, according to PUI,"Defendants cannot reasonably dispute the ability of
3 Partners Trust to transfer its rights to sue for recovery of the commission to Pacific Union, as:"A
4 thing in action, arising out of the violation of a right of property, or out of an obligation, may be
5 transferred." (Jd. P. 7, line 24 - 27, citing Civil Code §954.)
6 But PUPs argument misses the point. The TRUST is n^ disputing the right ofPartners Trust
7 to transfer its transferable assets to PUI. Rather, it is disputing PUPs right to enforce a contractual
8 right under a contract to which PUI was not and is not a party, when Civil Code §1624 requires that
9 in order to assert those rights there must be a written contract between the party asserting the rights
10 (now PUI)and the seller ofthe property against whom they are being asserted. Here there is no direct
11 written contract between PUI and the TRUST. Thus PUI failed to fulfill the requirements of Civil
12 Code §1624. PUI could have easily remedied this situation, ofcourse,simply by asking the TRUST
13 to sign a revised Listing Agreement and/or a \vritten confirmation that PUI was authorized to step into
14 the shoes of Partners Trust under the terms of the original Listing Agreement. But it did neither!
15 Instead, PUI elected to simply take over the contract and treat it as its own.
16 B. PUI'S Rightto a Commission is Not a Transferrable"Chose in Action"
17 (PUI's ArgumentIV B at p.7- 8.)
18 Secondarily,PUI tries to assert that Partners Trust's right to claim a commission with respect
19 to the L.A. County property sale is a "chose in action;" and, as such, was automatically transferred to
20 PUI when it acquired Partners Trust under Corporations Code §1107(a). Again, PUI's argument
21 misses the point. "The purpose of[this provision] is to protect the owner of real property, not from
22 every claim of a commission for selling the same, but from claims from persons never by him
23 employed or authorized to act." {Moore v. Borgfeldt(1929)96 Cal.App.306,313;emphasis added.)
24 Here, of course, the TRUST never employed and/or authorized PUI to act as a real estate
25 broker on its behalf. While the distinction may seem semantic on its face, in order to be entitled to
26 recover a commission for a sale ofreal property, a broker must prove(1)that he was employed by or
27 on behalf ofthe owner to sell the property; and(2)that his authority, or some note or memorandum
28 thereof, was in writing, signed by the seller, or by his authorized agent. (Civil Code, §1624(a)(4);
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
1 McCarthy v. Loupe(1882)62 Cal. 299; Steiner v. Rowley,supra, 35 Cal.2d at 715; and Lambert v.
2 Woodson, 125 Cal.App. 2d 186; and Phillippe v. Shapell Industries(1987)43 Cal. 3d 1247.)
3 Here,PUI cannotfulfill either ofthese requirements because(1)Defendants employed Partners
4 Trust,not PUI as their selling agent;and,therefore,(2)the written listing agreement was only between
5 Defendants and Partners Trust, not between Defendants and PUI as required by law for PUI to be able
6 to collect a commission. California's statute offrauds declares invalid any agreement authorizing or
7 employing an agent, broker, or any other person to purchase or sell real estate unless that agreement
8 is in writing and signed by the broker's client. (Civ. Code, §1624, subd. (a)(4).) {Westside Estate
9 Agency,Inc. v. Randall,6 Cal.App.5th 317,320;2"'' Dist. 2016;hereafter"Westside Estate Agency".)
10 Simply put, PUI does not automatically succeed to Partners Trust's rights as PUI claims.
11 C. PUI's Claim Is Barred Because PUI Was not the "Procuring Cause ofthe Sale"
12 PUI's final argument is that the Listing Agreement "set Pacific unions' compensation at six
13 percent (65) of the property's sale price if Pacific Union procured a buyer who made an offer to
14 purchase accepted by the Trust." There are too many fallacies in this statement address in a Reply
15 Brief. Suffice it to say that Courts have consistently held for over 150 years that before a real estate
16 broker can be said to have earned his commission, it must also be shown that the licensed broker
17 produced a buyer ready willing to make the purchase; and that the broker was the procuring cause of
18 the transaction. {McGavock v. Woodlief(1857)61 U.S.(20 How.)221,15 L.Ed. 884;see also, Hahn
19 V. Hauptman(1930) 107 Cal.App. 739 holding that the plaintiffreal estate broker was not entitled to
20 a commission when the sale was negotiated by an unlicensed employee rather than the broker himself.)
21 Once again, PUI cannot fulfill the requirement - as it was Partners Trust, not PUI, who
22 produced the purchaser and was,in fact,"the procuring cause ofthe transaction." (See also Westside
23 Estate Agency, supra,6 Cal.App.5th at 317.) Further, as shown above,the agreed upon commission
24 rate was and is 4.5% not 6%!
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26 CONCLUSION
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUIWSVIARY JUDGMENT
1
2 In the fall of 2019, as the Court may recall, PUI filed a Motion to Consolidate in this Court
3 requesting that this Court consolidate both this case and the Los Angeles County case in Placer
4 County. A copy of this Court's Order dated October 3, 2019 denying Plaintiffs Motion to
5 Consolidate is attached as Exhibit "6" to Defendants' Request for Judicial Notice filed with the
6 TRUST'S MSJ. As this Court pointed out in denying PUI's Motion to Consolidate:
7 Initially, Plaintiff has not made a sufficient showing that transfer to Placer County is
g appropriate. The basis for venue in Placer County stemmed from Paul Booth, a Placer
County resident, acting as Trustee and administering The Anything TRUST dated
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October 12, 2017. The parties were in agreement, as expressed during oral argument,
10 that Mr.Booth is no longer the Trustee. This is also confirmed by Defendants' Notice of
jj Change ofTrustee for Defendant"The Anything Trust Dated October 12,2017"filed on April
5, 2019. The parties in this action reside in or conduct business in Los Angeles County.
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Plaintiff has not sufficiently shown how the convenience of the parties, witness, and
13 counsel favors litigation in Placer County when the essential parties and evidence is
within Los Angeles County."
(See "Ruling on Plaintiffs Motion to Transfer Case from Los Angeles Superior Court
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to Placer County and Consolidate Actions" filed herein on October 3, 2019; Exhibit
16 "6" to Defendants' Request for Judicial Notice in Support of Motion for Summary
jy Judgment at p.2 line 7 - p. 3, line 11; emphasis added.)
jg All of the same arguments and grounds as to why the cases should n^ be consolidated in
jg Placer County apply equally to why the Parties' disputes should be tried in Los Angeles County and
2q not this County; and,therefore, why the instant Motion for Summary Judgment should be granted.
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CONCLUSION
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23
24 There is not now,nor has there ever been,a written commission agreement between Plaintiff
22 PUI and the Defendants, or any ofthem. Therefore, PlaintiffPUI cannot recover a commission.
2^ Since Plaintiff PUI:
2j 1. was never a "party" to the Listing Agreement;
2g 2. was not the procuring cause of the sale transaction between Defendants and the
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUlVfiMARY JUDGMENT
1 ultimate purchaser; and
2 3. never had any written"broker"or"listing"agreement with Defendants,or any ofthem,
3 providing for payment of money to Plaintiff;
4 Plaintiff has no legal right to claim any "broker's commission" with respect to the sale ofthe
5 L.A. County Property. To the contrary. Plaintiffs claim is barred by Civil Code §1624(a)(4); the
6 additional Civil and Business & Professions Code sections cited herein; and by applicable case law.
7 Again, as the California Supreme Court made clear in Marks, supra:
8 "To recover a commission on a contract authorizing a broker to sell real estate,
^ the broker must prove not only the existence of an agreement and procurement of a
willing purchaser but must meet the requirements of the statute of frauds which
declares that such an agreement "is invalid unless the same or some note or
11 memorandum thereofbe in writing and subscribed by the party to be charged,or by his
agent." {Marks, supra, 33 Cal.2d 814 at 819.)
13 That rule oflaw has remained unchanged for over seventy(70) years. Plaintiff cannot meet
14 any of these requirements as PUI:
15 1) did not procure the purchaser; and
16 2) had and has no written contract with Defendants, or any ofthem.
17 Therefore, the instant motion should be granted and judgment should be entered in favor of
18 Defendants and against Plaintiff.
19
20 Respectfully submitted,
21 DATED: August 7,2020 MICHAEL A.J. NANGANO,A LAW CORPORATION
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24 MICHAEL A.J. NANGANO
Attorneys for Defendants
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
1 PROOF OF SERVICE
2 ..
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403,
Pasadena, CA 91107.
4
On August 7, 2020,1 served the following document(s) described as:
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DEFENDANTS'REPLY BRIEF IN SUPPORT OF
6 MOTION FOR SUMMARY JUDGMENT
7 on all interested parties in this action by placing [X] a true copy [ ]the original thereof enclosed
in sealed envelopes addressed as follows:
SEE ATTACHED MAILING LIST
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[] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3)and no error
10 was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a
record of the transmission.
11
[] (BY MAIL, 1013a, 2015.5 C.C.P.) I am readily familiar with the firm's practice for
12 collection and processing correspondence for mailing. Under that practice, this document
will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid
13 at Los Angeles, California in the ordinary course of business. I am aware that on motion of
the party served, service is presumed invalid if postal cancellation date or postage meter date
14 is more than one day after date of deposit for mailing in affidavit.
15 [] (BY OVERNIGHT DELIVERY/COURIER)I served the above referenced document(s)
enclosed in a sealed package, for collection and for delivery marked for next day delivery in
16 the ordinary course of business, addressed to the office of the addressee(s) listed above or on
attached sheet.
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[X ] (BY E-MAIL) I transmitted a copy of the foregoing document(s) via e-mail to the
18 addressee(s).
19 [] (BY HAND DELIVERY) I caused the foregoing to be delivered by hand to the offices of
the addressee.
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[X] (STATE) I declare under penalty of perjury under the laws of the State of California that the
21 above is true and correct.
22 Executed on August 7, 2020, at Pasadena, California.
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24 '—PatriciaM. Poole
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PROOF OF SERVICE
1 MAILING LIST
2 Ludwick v. Partners Trust, et al.
3 Case No. 19STCV25331
^ Shannon B. Jones, Esq.
Lindsey Morgan, Esq.
5 SHANNON B. JONES LAW GROUP,INC.
208 W. El Pintado Road
^ Danville, CA 94526
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sbi@.sbi-law.com
lam@.sbi-law.com
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PROOF OF SERVICE
Preview
1 MICHAEL AJ. NANGANO(SBN 133999) 08/07/2020 Law Offices of Michael A.J. Nangano 2 133 No. Altadena Drive, Suite 403 Pasadena, OA 91107 3 Phone: (626)796-9998 Fax: (626)796-9992 4 LAWRENCE E. SKIDMORE(SBN 137587) 5 ARONOWITZ,SKIDMORE & LYON 200 Auburn Folsom Road, Suite 305 6 Auburn, CA 95603 Phone: (530)823-9736 7 Fax: (530)823-5241 8 Attorney for Defendants 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF PLACER 13 14 15 16 PACIFIC UNION INTERNATIONAL, Case No. S-CV 0042080 INC., 17 Plaintiff, DEFENDANTS'REPLY BRIEF 18 IN SUPPORT OF MOTION FOR vs. SUMMARY JUDGMENT 19 ERIK LUDWICK,an individual AND 20 Beneficiary of The Anything Trust dated October 12, 2007; THE ANYTHING 21 TRUST DATED OCTOBER 12, 2017; Motion Date: August 13,2020 PAUL D.BOOTH,in his capacity as Trustee Dept.: Dept 42 22 of The Anything Trust Dated October 12, 2007; and Does 1 through 50, inclusive, 23 Trial Date: September 21, 2020 24 Defendants. 25 26 27 28 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 3 DEFENDANT ERIK LUDWIG, individually and as the Trustee and Beneficiary of the 4 Anything Trust dated October 12, 2007 (hereinafter simply "the TRUST")respectfully submits the 5 following Reply Brief in support of the TRUST'S Motion for Summary Judgment scheduled for 6 hearing on August 13, 2020(hereinafter simply "the TRUST'S MSJ"). 7 8 INTRODUCTION 9 This is a Breach of Contract Action regarding the realtor's commission owed, if any, with 10 respect to the sale ofa parcel ofresidential real estate located at 200 Toyopa Drive,Pacific Palisades, 11 CA 90272 in the County of Los Angeles, CA (hereinafter "the L.A. County Property"). 12 Defendant Erik Ludwick ("Ludwick")is the Trustor, current Trustee and primary beneficiary ofthe 13 TRUST,and a resident ofLos Angeles County. (Ludwick Declaration at ^ 1, p. 2,lines 1-14.) The 14 TRUST was the owner of record ofthe L.A. County Property and does not do business or own any 15 property in Placer County. {Id.) Defendant Paul D. Booth ("Booth") is the former Trustee of the 16 TRUST,and a resident of Placer County. (Ludwick Declaration at f 2, p. 2, lines 15-18.) 17 Defendants"The TRUST,""Ludwick,"and"Booth"(hereinafter referred to collectively asthe 18 "DEFENDANTS")seek entry of an Order Granting Summary Judgement in favor of each ofthem, 19 and against PlaintiffPacific Union International,Inc.,(hereinafter simply"Plaintiff'and/or"PUl") 20 under Code of Civil Procedure §§437c on the following grounds: 21 1. That Plaintiffs claims are barred by the applicable Statutes of Frauds including, but 22 not limited to, California Civil Code §1624(a)(4); 23 2. That Plaintiff has no standing to sue Defendants, or any ofthem, on a contract as to 24 which Plaintiff was neither a party nor a legally cognizable successor in interest; 25 3. That Plaintiffs claims fail to state facts sufficient to constitute a viable cause ofaction 26 against Defendants, or any ofthem; and, therefore, 27 4. That Defendants,and each ofthem,are entitled to an Order entering Judgment in their 28 favor and against Plaintiff in this action. i DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR summary JUDGMENT 1 ISSUE PRESENTED 2 3 In its "Memorandum of Points and Authorities in Opposition to Defendants' Motion for 4 Summary Judgement"(hereinafter simply"PUI's Opposition"),PUI mis-states the issue presented on 5 this Motion. PUI admits that "there is no dispute that a contract between Defendants and Partners 6 Trust and its agent exists,.."(PUI's Opposition at p.1, line 28 - p. 2, line 1, emphasis added). But, 7 it defines the "issue presented" as being that the TRUST is asking "this Court to agree that the owner 8 ofa company cannot bring an action to obtain payment ofa commission earned by the company under 9 written contract." That is not the issue presented here. 10 PUI's"definition"ofthe issue presented is,at best,a gross over-simplification ofthe real legal 11 issue, which is: can PUI, which acquired Partners Trust a year after the Listing Agreement between 12 the TRUST and Partners Trust was signed (and barely a month before sale of the L.A. County 13 Property) claim a real estate sales commission under a written contract as to which it was never a 14 party. PUI misleadingly refers to itself as a "party" to the Listing Agreement in its Opposition; but 15 legally it is, at best, a successor-in-interest! Is that relationship sufficient to meet the requirement of 16 the Statute of Frauds, specifically Civil Code $1624(a)(4) which requires that: 17 (a)The following contracts are invalid, unless they,or some note or memorandum thereof,are jg in writing and subscribed by the party to be charged or by the party's agent: (4) An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to 20 procure,introduce,or find a purchaser or seller ofreal estate or a lessee or lessor ofreal estate where the lease is for a longer period than one year, for compensation or a commission. 21 The TRUST contends that it is not. 22 PUI's Opposition to the TRUST'S MSJ is essentially a re-write of PUI's own 23 contemporaneously filed Motion for Summary Judgement. As with the Memorandum of Points & 24 Authorities on its own Motion,PUI divides its Opposition to the TRUST'S MSJ into three sections: 25 II "Factual Background"(See PUI's Opposition §11 @ p. 2 - 5); 26 III "Procedural Background"(See PUI's Opposition §111 @ p. 6); and 27 IV "Legal Argument"(See PUI's Opposition §IV @ p.6 -11.). 28 2 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUlVfiVIARV JUDGMENT 1 We will address each in order; establishing why PUFs arguments are no more successful in defeating 2 the TRUST'S MSJ than they are in supporting PUI's own motion. 3 I 4 "FACTUAL BACKGROUND"& REALITY CHECK 5 (PUI's Opposition §11 at p. 2 - 5) 6 7 A. "The Parties"(PUI's Opposition §11A at p. 2 - 3) 8 Ofprimary significance here is PUTs concession that"Pacific Union acquired Partners Trust 9 on August 21,2017." (PUI's Opposition at p.2,line 27.) That is a year after the"Listing Agreement" 10 and only shortly before escrow for the sale ofthe Property was scheduled to close. 11 B. "The Contract" (PUI's Opposition §11B at p. 3 - 4) 12 PUI further concedes that it was almost exactly a year earlier, on August 29, 2016,that the 13 "Contract" for sale ofthe L.A. County Property was entered into between the TRUST and Partners 14 Trust. Again, clearly it was Partner's Trust, not PUI, which was responsible for representing the 15 TRUST and eventually closing the sale. Nonetheless,PUI shamelessly claims creditfor"successfully 16 selling the Property." (See §E, below.) 17 C. "Pacific Union's Performance of the Contract" (PUI's Opposition §11C at p.4-5) 18 Even though it did not acquire Partners Trust until shortly before escrow was scheduled to 19 close,PUI disingenuously asserts that it "performed all ofits obligations under the Contract, listing 20 the property for sale, marketing it, and ultimately directly procuring [the] buyer. . ." (PUI's 21 Opposition at p. 4, lines 17-19; emphasis added.) Obviously, this statement is false. 22 D* The Agreed-Upon Commission Rate of 4.5% 23 WhatPUPs"factual recitation" doesn't mention is that the listing, marketing and procurement 24 of the buyer were all carried out by Defendant Madison Hilldebrand (acting as a dual agent) on 25 behalf of the TRUST and Partners Trust, not PUI! It also doesn't mention that, as shown by PUI's 26 own evidence. Defendant Hildebrand (since he was acting as a dual agent)had agreed in writing that 27 the commission on the sale would only be four and one-half percent(4.5%)ofthe sale price, not 28 tho six percent(6%)which PUI is now claiming! 3 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUlVfiVIARY JUDGMENT 1 First, in an email dated August 27, 2017 at 6:15 PM, Hildebrand stated to Plaintiff that the 2 commission on a sale to Behdad Eghbali,the ultimate buyer, would be 4.5% not 6%. (See f15 ofthe 3 "Declaration of Madison Hildebrand in Opposition to Defendants' Motion for Summary Judgment" 4 dated July 30, 2020 at p. 3, lines 20-24 [hereinafter simply the "Hildebrand Declaration"]; and 5 Exhibits 2 & 6 thereto.) This was six (6)days after PUI acquired Partners Trust! 6 Second,Exhibit"2" to the Hildebrand Declaration is an email dated Sunday,August 27,2017 7 from Hildebrand to "Erik"[Ludwick] and "Paul"[Booth] which states: 8 "P.S. Erik, since the buyer is representing himself, in some capacity, we put into g clause 6 that shall any commission be paid to him it will be from his own account. In other words, the listing agreement and the contractual obligation to pay a buyer's commission is set in the MLS,and we excluded the buyer from any commission per 11 the Buyer Non Agency Disclosure, which means the purchase price reflects the $16,250,000 less the 1.5% from the 6% total commission. Moving forward, you and Partners Trust are the only entities concerned with commission at this time, and 13 assuming he [Behdad Eghbali] signs everything then you and me [sic] will sign a 24 separate commission agreement which reduces your obligation to pay the 6% commission to 4.5% commission total-which we can sign and handle as paperwork proceeds. [^] Any questions, call me.[^ Madison" (Exhibit 2 to the Hildebrand 16 Declaration, final two(2) paragraphs, emphasis added.) 17 Third, attached as Exhibit"9" to the "Declaration of Shannon B. Jones in Support ofPacific 18 Union International's Opposition to Defendants Motion for Summary Judgment"(hereinafter "the 19 Jones Declaration")is what is alleged by Ms. Jones in|4 ofher Declaration to be a "true and correct 20 copy ofrelevant documents produced by Terra Costal Escrow on April 19,2019 pursuantto subpoena, 21 stamped TCE00016 and TCEOl004-1005." ("Jones Declaration" at p. 2,|4 and Exhibit 9,thereto.) 22 Document No. TCE00016 is identified as a copy ofthe "Seller's Final Settlement Statement" issued 23 by Terra Coastal Escrow on or about November 9,2017. Per Exhibit 9,the "Listing Commission to 24 Partners Trust" as the seller's agent is $978,000; which amounts to Six Percent(6.0 %)ofthe listed 25 "Contract Sales Price of$16,300,000.00." Thus,as shown by the Jones Declaration,notwithstanding 26 the "instruction" from Defendant Madison Hilldebrand (acting as a dual agent), PUI took a Six 27 Percent(6%)commission when Hildebrand had assured Defendants that the commission would only 28 be 4.5%. The difference equals $244,500.00! _ DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 E. "Defendants* Bad Faith Conduct** (PUI's Opposition §11 D at p. 5) 2 Nonetheless, PUI claims that it is the TRUST which has acted in bad faith!11 3 What PUI attempts to classify as"Bad Faith Conduct"is simply the TRUST'S legitimate,and 4 totally legal, request that escrow delay releasing any sales commissions to PUI until the disputes 5 between the parties are resolved. We say "disputes" in the plural because in addition to the question 6 as to whether PUI is precluded from receiving a commission as a matter of law; there is also the 7 factual issue as to the amount of any commission PUI might be entitled to, if any. Why? Because, 8 as established in Paragraph I. C, above, Madison Hildebrand, acting on behalf of Partners Trust, 9 agreed that the sales commission on L.A. County Property would only be four and one-half percent 10 (4.5%), not six percent(6%), since he was representing both the TRUST,as seller, and the two(2) 11 then-competing buyers. (See|15 of the Hildebrand Declaration; and Exhibits 2 & 6 thereto.) Yet 12 PUI continues to assert,and has approved Escrow instructions providing for payment of a six percent 13 (6%)commission. (See §I D,above and Exhibit 9 to Jones Declaration.) 14 F. "Pacific Union Successfully Sold The Property For Defendants" (PUI's Opposition §11 E @ p. 5) 15 PUI's assertion that PUI"successfully sold the property for the defendants" is based solely on 16 the Partner's Trust Listing Agreement and the fact that Madison Hildebrand had apparently placed 17 Begdhali on an"exclusion list" under that Agreement;and subsequently Hildebrand was able to close 18 a deal with Eghbali within the 180 day exclusion period in the Listing Agreement. 19 What PUI's"factual recitation" doesn't make clear is that all ofthe foregoing was carried out 20 by Defendant Madison Hilldebrand who,while acting as a dual agent on behalfon Partners Trust and 21 the Buyer, had agreed in writing that the commission on the sale would only be four and one-half 22 percent (4.5%) of the sale price, not the six percent (6%) which PUI claims. (See 1115 of the 23 Hildebrand Declaration at p. 3, lines 20-24; and Exhibits 2& 6 thereto.) 24 Thus, PUI's claim that it is entitled to a six percent(6%)commission is clearly meritless. 25 Nor is there any triable issue ofmaterial fact with respect to what commission percentage,and 26 therefore commission amount, if any, should be paid by the TRUST, as Hildebrand had already 27 committed in writing that for a sale to Behdad Eghbali, the commission would only be 4.5%. (Id.) 28 5 DEFENDANTS* REPLY BRIEF IN SUPPORT OF MOTION FOR SUIVfiMARY JUDGMENT 1 II 2 "PROCEDURAL BACKGROUND" (PUI's Opposition, §111 at p. 6) 3 ^ A. PUI's Brief Summary of the Litigation Between the Parties' In what is, at best, superficial lip-service to the lengthy procedural history ofthis litigation in ^ Placer and Los Angeles Counties,PUI devotes two(2) paragraphs to: (1)its own Complaint in this action; and ^ (2)the Defendants unsuccessful motion for change of venue to Los Angeles Superior Court. ^ As the Court may recall, the ONLY reason that this action is in Placer County to start with, ^^ is the fact that Defendant Paul Booth(a resident ofPlacer County)was,at that time,the Trustee ofthe ^ ^ TRUST. The L. A. County Property and all other Parties are located in Los Angeles County; and an ^^ action is pending between the parties dealing with the same subject matter in the Los Angeles Superior ^^ Court. (See Section B.2 below.) The actual history and status ofthe pending litigation between the Parties is detailed in The TRUST' Memorandum ofPoints and Authorities in Support ofthe instant Motion. Since the filing ofthe TRUST'S Motion, there has been one new procedural development. On July 17, 2020, Ludwick file a "Petition For Coordination" with the Judicial Council of ^^ California seeking to have the instant Placer County Superior Court action coordinated with the Los Angeles County Superior Court action. (Judicial Council of California Matter No. JCCP5123). Copies of Ludwick's Petition along with all supporting pleadings, declarations and documents have been submitted to and filed with this Court. 21 22 in "LEGAL ARGUMENT" 23 (PUI's Opposition §IV at p. 6 -11) 24 A. PUIDoes NotAutomatically Succeed toPartnersTrust'sLegalRights 25 (PUI's ArgumentIV B at p.7- 8.) 26 PUI's primary argument is that since it acquired Partners Trust prior to the close ofescrow, 27 under Corporations Code §1107(a)PUI automatically succeeds to all of the rights and property of 28 6 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUIVfiVIARY JUDGMENT 1 Partners Trust "in the same manner as if[PUI] had itselfincurred them." (PUI's Memorandum at p. 2 7, lines 15 - 23.) Further, according to PUI,"Defendants cannot reasonably dispute the ability of 3 Partners Trust to transfer its rights to sue for recovery of the commission to Pacific Union, as:"A 4 thing in action, arising out of the violation of a right of property, or out of an obligation, may be 5 transferred." (Jd. P. 7, line 24 - 27, citing Civil Code §954.) 6 But PUPs argument misses the point. The TRUST is n^ disputing the right ofPartners Trust 7 to transfer its transferable assets to PUI. Rather, it is disputing PUPs right to enforce a contractual 8 right under a contract to which PUI was not and is not a party, when Civil Code §1624 requires that 9 in order to assert those rights there must be a written contract between the party asserting the rights 10 (now PUI)and the seller ofthe property against whom they are being asserted. Here there is no direct 11 written contract between PUI and the TRUST. Thus PUI failed to fulfill the requirements of Civil 12 Code §1624. PUI could have easily remedied this situation, ofcourse,simply by asking the TRUST 13 to sign a revised Listing Agreement and/or a \vritten confirmation that PUI was authorized to step into 14 the shoes of Partners Trust under the terms of the original Listing Agreement. But it did neither! 15 Instead, PUI elected to simply take over the contract and treat it as its own. 16 B. PUI'S Rightto a Commission is Not a Transferrable"Chose in Action" 17 (PUI's ArgumentIV B at p.7- 8.) 18 Secondarily,PUI tries to assert that Partners Trust's right to claim a commission with respect 19 to the L.A. County property sale is a "chose in action;" and, as such, was automatically transferred to 20 PUI when it acquired Partners Trust under Corporations Code §1107(a). Again, PUI's argument 21 misses the point. "The purpose of[this provision] is to protect the owner of real property, not from 22 every claim of a commission for selling the same, but from claims from persons never by him 23 employed or authorized to act." {Moore v. Borgfeldt(1929)96 Cal.App.306,313;emphasis added.) 24 Here, of course, the TRUST never employed and/or authorized PUI to act as a real estate 25 broker on its behalf. While the distinction may seem semantic on its face, in order to be entitled to 26 recover a commission for a sale ofreal property, a broker must prove(1)that he was employed by or 27 on behalf ofthe owner to sell the property; and(2)that his authority, or some note or memorandum 28 thereof, was in writing, signed by the seller, or by his authorized agent. (Civil Code, §1624(a)(4); 7 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 McCarthy v. Loupe(1882)62 Cal. 299; Steiner v. Rowley,supra, 35 Cal.2d at 715; and Lambert v. 2 Woodson, 125 Cal.App. 2d 186; and Phillippe v. Shapell Industries(1987)43 Cal. 3d 1247.) 3 Here,PUI cannotfulfill either ofthese requirements because(1)Defendants employed Partners 4 Trust,not PUI as their selling agent;and,therefore,(2)the written listing agreement was only between 5 Defendants and Partners Trust, not between Defendants and PUI as required by law for PUI to be able 6 to collect a commission. California's statute offrauds declares invalid any agreement authorizing or 7 employing an agent, broker, or any other person to purchase or sell real estate unless that agreement 8 is in writing and signed by the broker's client. (Civ. Code, §1624, subd. (a)(4).) {Westside Estate 9 Agency,Inc. v. Randall,6 Cal.App.5th 317,320;2"'' Dist. 2016;hereafter"Westside Estate Agency".) 10 Simply put, PUI does not automatically succeed to Partners Trust's rights as PUI claims. 11 C. PUI's Claim Is Barred Because PUI Was not the "Procuring Cause ofthe Sale" 12 PUI's final argument is that the Listing Agreement "set Pacific unions' compensation at six 13 percent (65) of the property's sale price if Pacific Union procured a buyer who made an offer to 14 purchase accepted by the Trust." There are too many fallacies in this statement address in a Reply 15 Brief. Suffice it to say that Courts have consistently held for over 150 years that before a real estate 16 broker can be said to have earned his commission, it must also be shown that the licensed broker 17 produced a buyer ready willing to make the purchase; and that the broker was the procuring cause of 18 the transaction. {McGavock v. Woodlief(1857)61 U.S.(20 How.)221,15 L.Ed. 884;see also, Hahn 19 V. Hauptman(1930) 107 Cal.App. 739 holding that the plaintiffreal estate broker was not entitled to 20 a commission when the sale was negotiated by an unlicensed employee rather than the broker himself.) 21 Once again, PUI cannot fulfill the requirement - as it was Partners Trust, not PUI, who 22 produced the purchaser and was,in fact,"the procuring cause ofthe transaction." (See also Westside 23 Estate Agency, supra,6 Cal.App.5th at 317.) Further, as shown above,the agreed upon commission 24 rate was and is 4.5% not 6%! 25 26 CONCLUSION 27 28 8 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUIWSVIARY JUDGMENT 1 2 In the fall of 2019, as the Court may recall, PUI filed a Motion to Consolidate in this Court 3 requesting that this Court consolidate both this case and the Los Angeles County case in Placer 4 County. A copy of this Court's Order dated October 3, 2019 denying Plaintiffs Motion to 5 Consolidate is attached as Exhibit "6" to Defendants' Request for Judicial Notice filed with the 6 TRUST'S MSJ. As this Court pointed out in denying PUI's Motion to Consolidate: 7 Initially, Plaintiff has not made a sufficient showing that transfer to Placer County is g appropriate. The basis for venue in Placer County stemmed from Paul Booth, a Placer County resident, acting as Trustee and administering The Anything TRUST dated 9 October 12, 2017. The parties were in agreement, as expressed during oral argument, 10 that Mr.Booth is no longer the Trustee. This is also confirmed by Defendants' Notice of jj Change ofTrustee for Defendant"The Anything Trust Dated October 12,2017"filed on April 5, 2019. The parties in this action reside in or conduct business in Los Angeles County. 12 Plaintiff has not sufficiently shown how the convenience of the parties, witness, and 13 counsel favors litigation in Placer County when the essential parties and evidence is within Los Angeles County." (See "Ruling on Plaintiffs Motion to Transfer Case from Los Angeles Superior Court 15 to Placer County and Consolidate Actions" filed herein on October 3, 2019; Exhibit 16 "6" to Defendants' Request for Judicial Notice in Support of Motion for Summary jy Judgment at p.2 line 7 - p. 3, line 11; emphasis added.) jg All of the same arguments and grounds as to why the cases should n^ be consolidated in jg Placer County apply equally to why the Parties' disputes should be tried in Los Angeles County and 2q not this County; and,therefore, why the instant Motion for Summary Judgment should be granted. 21 CONCLUSION 22 23 24 There is not now,nor has there ever been,a written commission agreement between Plaintiff 22 PUI and the Defendants, or any ofthem. Therefore, PlaintiffPUI cannot recover a commission. 2^ Since Plaintiff PUI: 2j 1. was never a "party" to the Listing Agreement; 2g 2. was not the procuring cause of the sale transaction between Defendants and the 9 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUlVfiMARY JUDGMENT 1 ultimate purchaser; and 2 3. never had any written"broker"or"listing"agreement with Defendants,or any ofthem, 3 providing for payment of money to Plaintiff; 4 Plaintiff has no legal right to claim any "broker's commission" with respect to the sale ofthe 5 L.A. County Property. To the contrary. Plaintiffs claim is barred by Civil Code §1624(a)(4); the 6 additional Civil and Business & Professions Code sections cited herein; and by applicable case law. 7 Again, as the California Supreme Court made clear in Marks, supra: 8 "To recover a commission on a contract authorizing a broker to sell real estate, ^ the broker must prove not only the existence of an agreement and procurement of a willing purchaser but must meet the requirements of the statute of frauds which declares that such an agreement "is invalid unless the same or some note or 11 memorandum thereofbe in writing and subscribed by the party to be charged,or by his agent." {Marks, supra, 33 Cal.2d 814 at 819.) 13 That rule oflaw has remained unchanged for over seventy(70) years. Plaintiff cannot meet 14 any of these requirements as PUI: 15 1) did not procure the purchaser; and 16 2) had and has no written contract with Defendants, or any ofthem. 17 Therefore, the instant motion should be granted and judgment should be entered in favor of 18 Defendants and against Plaintiff. 19 20 Respectfully submitted, 21 DATED: August 7,2020 MICHAEL A.J. NANGANO,A LAW CORPORATION 23 24 MICHAEL A.J. NANGANO Attorneys for Defendants 26 27 28 10 DEFENDANTS'REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 .. I am employed in the County of Los Angeles, State of California. I am over the age of 18 3 and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403, Pasadena, CA 91107. 4 On August 7, 2020,1 served the following document(s) described as: 5 DEFENDANTS'REPLY BRIEF IN SUPPORT OF 6 MOTION FOR SUMMARY JUDGMENT 7 on all interested parties in this action by placing [X] a true copy [ ]the original thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED MAILING LIST 9 [] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3)and no error 10 was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a record of the transmission. 11 [] (BY MAIL, 1013a, 2015.5 C.C.P.) I am readily familiar with the firm's practice for 12 collection and processing correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid 13 at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date 14 is more than one day after date of deposit for mailing in affidavit. 15 [] (BY OVERNIGHT DELIVERY/COURIER)I served the above referenced document(s) enclosed in a sealed package, for collection and for delivery marked for next day delivery in 16 the ordinary course of business, addressed to the office of the addressee(s) listed above or on attached sheet. 17 [X ] (BY E-MAIL) I transmitted a copy of the foregoing document(s) via e-mail to the 18 addressee(s). 19 [] (BY HAND DELIVERY) I caused the foregoing to be delivered by hand to the offices of the addressee. 20 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the 21 above is true and correct. 22 Executed on August 7, 2020, at Pasadena, California. 23 24 '—PatriciaM. Poole 25 26 27 28 PROOF OF SERVICE 1 MAILING LIST 2 Ludwick v. Partners Trust, et al. 3 Case No. 19STCV25331 ^ Shannon B. Jones, Esq. Lindsey Morgan, Esq. 5 SHANNON B. JONES LAW GROUP,INC. 208 W. El Pintado Road ^ Danville, CA 94526 7 sbi@.sbi-law.com lam@.sbi-law.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE