Motion-Secondary: Pacific Union International, Inc. vs. Ludwick, Erik et al

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                                08/06/2020
 1   Lawrence E. Skidmore (SBN 137587)
     ARONOWITZ SKIDMORE LYON
 2   A PROFESSIONAL CORPORATION
     200 Auburn Folsom Road, Suite 305
 3   Auburn, CA 95603
     Telephone: 530-823-9736
 4   Facsimile: 530-823-5241
 5   MICHAEL A.J. NANGANO (SBN 133999)
     LAW OFFICES OF MICHAEL A.J. NANGANO
 6   133 No. Altadena Drive, Suite 403
     Pasadena, CA 91107
 7   Phone: (626) 796-9998
     Fax: (626) 796-9992
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     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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13    PACIFIC UNION INTERNATIONAL,              )   Case No. S-CV 0042080
      INC.,                                     )
14                                              )   DEFENDANTS’ OPPOSITION TO
                                                )   PLAINTIFF'S MOTION FOR
15                                              )   SUMMARY JUDGMENT; AND/OR
                          Plaintiff,            )   MOTION FOR SUMMARY
16                                              )   ADJUDICATION
            vs.                                 )
17                                              )   Hearing Date: August 20, 2020
      ERIK LUDWICK, an individual AND           )   Time:         9:30 A.M.
                                                                  8:30 A.M.
18    Beneficiary of The Anything Trust dated   )   Dept.:        Dept 42
      October 12, 2007; THE ANYTHING            )
19    TRUST DATED OCTOBER 12, 2017;             )   Concurrently Filed With Request For
      PAUL D. BOOTH, in his capacity as Trustee )   Judicial Notice
20    of The Anything Trust Dated October 12,   )
      2007; and Does 1 through 50, inclusive,   )   [Defendants Motion For Summary
21                                              )   Judgment To Be Heard On: August 13,
                                                )   2020]
22                        Defendants.           )
                                                )   Petition to Coordinate filed with
23                                              )   California Judicial Council: July 17, 2020
                                                )
24                                                  Complaint Filed: November 7, 2018
      _____________________________________         Trial Date: September 21, 2020
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      TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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                  DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
         FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
 1          COMES NOW Defendants:
 2          The Anything Trust Dated October 12, 2007 (hereinafter simply "The Trust");
 3          Erik Ludwick, individually and as current Trustee of the Trust ("Ludwick"); and
 4          Paul D. Booth, in his capacity as former Trustee of the Trust ("Booth")
 5          (hereinafter collectively "Defendants")
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 7          And, opposes Plaintiff Pacific Union International, Inc., (hereinafter simply
 8    "Plaintiff" and/or "PUI") Motion for Summary Judgment or, in the alternative, Summary
 9    Adjudication of Issues.1 Plaintiff motion is substantively defective, it is flawed and
10    fails to establish that there is no need to proceed with a trial because this action can be
11    disposed of in Plaintiff's favor as a matter of law. It is also substantively defective
12    because regardless of what the Plaintiff can establish, Plaintiff fatally fails to address and
13    negate any of the Defendants' 19-Affirmative Defenses assert in their Answer. Plaintiff
14    has promise more than it can deliver.
15          Specifically, Plaintiff cannot establish numerous critical elements of the each cause
16    of action. Plaintiff's arguments lack factual and/or legal support, and overstate its claims
17    while completely and erroneously ignoring anything that is adverse. The Plaintiff is
18    attempting to out-shout the Defendants, but relies upon misrepresentation and/or
19    misleading claims which do not provide the prerequisite grounds for summary judgment
20    and/or summary adjudication.
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                    Other parties involved and who are named defendants in the LASC action are:
24   Partners Trust Real Estate Brokerage & Acquisitions; an unincorporated California Business
     Entity (hereinafter "Partners Trust"); MADISON HILDEBRAND, individual and real estate agent
25   for Partners Trust, also dba "The Malibu Life" team (hereinafter "Hildebrand"); Malibu Life, Inc.,
26   a California Corporation (hereinafter "Malibu Life"); Nick R. Segal, an individual and broker of
     record for Partners Trust (hereinafter "Segal"); Samuel H. Kraemer, an individual, licensed broker
27   and former in house counsel for Partners Trust and current broker of record for Plaintiff PUI; Gina
     Kirkpatrick, an individual and real estate agent for Partners Trust ("hereinafter "Kirkpatrick");
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     Jennifer Chrisman, an individual and real estate agent for Partners Trust ("hereinafter "Chrisman").


                  DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
         FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
 1         As such, Defendants seek and respectfully request that the Court entry of an Order
 2   Denying Plaintiff's Motion for Summary Judgement in favor of the Defendants, and each
 3   of them, and against Plaintiff PUI under California Code of Civil. Procedure §§ 437 et seq.
 4   on the following grounds:
 5         1.     That Plaintiff’s motion is defective as it fails to address in any manner the bar
 6                against any recover by Plaintiff under the applicable Statutes of Frauds
 7                including, but not limited to, California Civil Code §1624(a)(4) – (See,
 8                Defendants' motion for summary judgement currently set for hearing on August
 9                13, 2020, at 9:30 a.m. in Dept. "42" wherein Defendants' assert that Plaintiff's
10                entire complaint is barred by the Statute of Frauds, and request by Defendants'
11                for judicial notice of same);
12         2.     That Plaintiff's defective motion fails to adequately address and/or present any
13                admissible evidence that establish Plaintiff's standing to sue Defendants, or any
14                of them, on any contract to which Plaintiff was neither a party nor a legally
15                cognizable successor in interest;
16         3.     That Plaintiff’s defective summary judgment or improperly pled alternative for
17                summary adjudication, fails to state facts sufficient to constitute any viable
18                causes of action against Defendants, or any of them;
19         4.     That the Plaintiff's defective motion fails to address and/or even mention in
20                any manner whatsoever, the 19-Affirmative Defenses asserted by the
21                Defendants' answer filed in this action ; and, therefore,
22         5.     That Defendants, and each of them, respectfully request an Order denying
23                Plaintiff's motion for summary judgment seeking judgment in favor of Plaintiff
24                and against Defendants.
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26         This Opposition is based on this the Memorandum of Points and Authorities and
27   Request for Judicial Notice filed (not limited to but specifically seeking that the Court take
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                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                   1
 1   judicial notice of the Defendants' motion for summary judgment currently set for hearing on
 2   August 13, 2020) and served herewith, the Declaration of Defendant Erik Ludwick and
 3   Request for Judicial Notice with supporting Exhibits filed and served herewith, the Court’s
 4   record and file herein, and upon such further oral and documentary evidence as may be
 5   presented at the hearing on the Motion.
 6
 7   DATED: August _6_, 2020                   Michael A.J. Nangano, a Law Corporation
 8
 9
10                                             BY: ____________________________
                                                     MICHAEL A.J. NANGANO
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                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                  2
 1                                                      TABLE OF CONTENTS
 2                                                                                                                                                  Page
 3   TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
 4   TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
 5   MEMORANDUM OF POINTS & AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
               INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
 6
                           Statute of Frauds Bars Plaintiff's Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
 7                         Lack of Admissible Supporting Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
 8             I.          SUMMARY OF FACTS AND LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
                           A.          PROCEDURAL HISTORY OF THE LITIGATION.. . . . . . . . . . . . 10
 9
                                       Plaintiff Files Suit in Placer County. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10                                     The Los Angeles County Superior Court Case. . . . . . . . . . . . . . . . . . . . . 12
11                                     Ludwick's Petition to Coordinate.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
               II.         SUMMARY JUDGMENT, OR IN THE ALTERNATIVE
12                         SUMMARY ADJUDICATION OF THE ISSUES, IS NOT
13                         APPROPRIATE AS THERE STILL REMAIN TRIABLE
                           ISSUES OF FACT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14
                           Plaintiff's Supporting Evidence Is Inadmissible And/or Insufficient.. . . . . . . . . . 13
15                         The Requests For Summary Adjudication Are Not Proper . . . . . . . . . . . . . . . . . 13
16                         Plaintiff's Substantively Defective Motion Because the Facts in the
                           Separate Statement Are Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17
                           Plaintiff Has Misstated And/Or Ignored Facts And/Or Law. . . . . . . . . . . . . . . . . 14
18             III.        PLAINTIFF's CLAIM IS BARRED BY THE STATUTE OF FRAUDS . . . . . . 14
19                         A.          No Written Agreement between Defendants and Plaintiff PUI Exists . . . 14
               IV.         PLAINTIFF's CLAIM IS ALSO BARRED BECAUSE PLAINTIFF
20                         WAS NOT THE "PROCURING CAUSE" OF THE SALE . . . . . . . . . . . . . . . . 17
21             V.          EVEN IF NOT BARRED BY THE STATUTE OF FRAUDS,
                           PLAINTIFF CANNOT STATE A VIABLE CAUSE OF ACTION
22
                           AS A MATTER OF LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23                         A.          Plaintiff PUI Has Not Properly Pled or Established, a Right
24                                     to a Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
                           B.          Any Allegation by Plaintiff That It Is Entitled To a Commission
25                                     by or Through Partners Trust Is Also Contrary to Applicable Law.. . . . . 20
26   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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               CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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                   DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
          FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                                                3
 1                                        TABLE OF AUTHORITIES
 2                                                                                                                              Page
 3   CASES:
 4       FEDERAL:
 5       McGavock v. Woodlief (1857) 61 U.S. (20 How.) 221, 15 L.Ed. 884. . . . . . . . . . . 13
 6       CALIFORNIA:
 7       Hahn v. Hauptman (1930) 107 Cal.App. 739 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
 8       Lambert v. Woodson (1954) 125 Cal.App. 2d 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
 9       Le Blond v. Wolfe (1948) 83 Cal.App.2d 282, 188 P.2d 278 . . . . . . . . . . . . . . . . . . . . . 13
10       Marks v. Walter G. McCarty Corp. (1949) 33 Cal.2d 814 . . . . . . . . . . . . . . . . . 5, 9, 13, 19
11       McCarthy v. Loupe (1882) 62 Cal. 299. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12       Moore v. Borgfeldt (1929) 96 Cal.App. 306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13       Phillippe v. Shapell Industries (1987) 43 Cal. 3d 1247.. . . . . . . . . . . . . . . . . . . . 14, 17, 18
14       Schmidt v. Berry (1986) 183 Cal.App.3d 1299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15       Steiner v. Rowley (1950) 35 Cal.2d 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
16       Westside Estate Agency, Inc. v. Randall (2nd Dist. 2016) 6 Cal.App.5th 317 . 13, 15, 16, 17
17
18   CALIFORNIA CODES:
19       Business & Professions Code § 1036, 1037 & 1038. . . . . . . . . . . . . . . . . . . . 17, 18, 19
20       Civil Code § 1624. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9, 13, 14, 18, 19
21       Civil Code § 2349, 2350 & 2351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8. 18, 19
22       Code of Civil Procedure § 437. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
23       Evidence Code § 702(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
24       Evidence Code § 8001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
25       Evidence Code § 1200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
26       Evidence Code § 1400-1401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
27       Evidence Code § 500. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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                DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
       FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                                   4
 1                  MEMORANDUM OF POINTS AND AUTHORITIES
 2                                          INTRODUCTION
 3         This is allegedly a Breach of Contract Action regarding the realtor’s commission owed, if
 4   any, with respect to the sale of a parcel of residential real estate located at 200 Toyopa Drive, Pacific
 5   Palisades, CA 90272 in the County of Los Angeles, CA (hereinafter "the L. A. County Property").
 6         Defendant "The Anything Trust Dated October 12, 2007" (hereinafter "the Trust") was the
 7   owner of record of the Los Angeles County Property; but, it was and/or is a revocable trust solely
 8   created by and/or for the benefit of Defendant Erik Ludwick ("Ludwick"). Ludwick is currently
 9   the Trustor, current Trustee and primary beneficiary of the Trust (Defendant Paul D. Booth
10   ("Booth") was the former Trustee of the Trust, but no longer has any involvement).
11         Statute of Frauds Bars Plaintiff's Recovery
12         Simply put, the only undisputable facts exists in this Placer County action are:
13         1.       there is no enforceable written contract between Plaintiff PUI, on the one hand, and
14                  Defendants, or any of them, on the other, upon which Plaintiff PUI can legally
15                  maintain its claim for payment of a real estate broker’s or agent’s commission; and
16         2.       Plaintiff PUI’s claim is barred by the Statute of Frauds, specifically California Civil
17                  Code §1624(a)(4) as a matter of law, as well as by applicable California case law.
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19         "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
20         purchaser but must meet the requirements of the statute of frauds which declares
21         that such an agreement is invalid unless the same or some note or memorandum
22         thereof be in writing and subscribed by the party to be charged, or by his agent."
           Marks v. Walter G. McCarty Corp. (1949) 33 Cal.2d 814, 819 [Emphasis added.].
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24         It is undisputed that there is not now, nor has there ever been, a written commission
25   agreement between Plaintiff PUI signed by the Defendants, or any of them, "to be charged".
26   Therefore, Plaintiff PUI cannot recover a commission.
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                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                        5
 1           Lack of Admissible Supporting Evidence
 2           Brokerage Partners Trust, its broker, agents and/or associates owed fiduciary duties to these
 3    Defendants under the facts and circumstances which are the basis for this dispute. Specifically, the
 4    alleged supporting evidence consists of the declarations of Plaintiff's attorney of record, Shannon
 5    Jones; licensed real estate broker Nick Segal and licensed real estate agent Madison Hildebrand.
 6    These declarations improperly consist of "out-of-court" hearsay statements offered to prove the truth
 7    of the matter assert, without the necessary appropriate foundation and/or authentication of
 8    documents.
 9           PUI's apparently lack of evidence to support its claim and/or necessary elements of each and
10    every cause of action make their motion for summary judgment (and/or their improperly brought
11    request for summary adjudication of issues) fatally flawed. PUI's motion improperly attempts too
12    much and fails to resolve issues of intent or state of mind, issues of causation, fails to address
13    whatsoever whether negligence has been committed and/or any of the 19-Affirmative Defenses
14    contained in the Defendants' answer. Issues of disputed facts can be easier found among these
15    failures, as evidenced by the troubled winding path of PUI's motion, thus, it must be denied.
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17                           I.       SUMMARY OF FACTS AND LAW
18    The material pertinent undisputed facts in this matter are as follows:
19    •      Plaintiff PUI is not a party to any written agreement with Defendants (the parties to
20           be charged), however, PUI allegedly is in contractual privity with Partners Trust, to
21           whom PUI must turn to for any alleged sums it believes PUI is owed 2;
22    •      This matter involves a dispute arising from the sale of residential real estate located
23           in the city of Malibu, Los Angeles County at 200 Toyopa Drive, Pacific Palisades, CA
24           90272 (the "Toyopa Property") initial valued at $20-million, for only $16-million;
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26             When the listing broker appoints another broker to cooperate without the express or
     implied authority of the principal, the cooperating broker becomes the subagent or agent of the listing
27   broker and not the subagent of the principal. California Civil Code §§ 2349; 2350 and 2351.

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                   DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
          FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                          6
 1   •    PUI lacking any contractual privity of any kind with the Defendant Sellers, claims that
 2        it is owed a disputed 6% commission even though their alleged supporting documents
 3        from are replete with admissions that a lesser than 6% commission was owed:
 4        1.     See Exhibit-2 attached to Hildebrand Declaration of Plaintiff's motion – the
 5        "Sun, Aug 27, 2017" email from Hildebrand to Ludwick that specifically states that:
 6        "Moving forward, [Ludwick] and Partners Trust are the only entities concerned with
 7        commission" and further acknowledges that Ludwick is entitle to a commission of less
 8        than 6% stating: "reduces your obligation to pay the 6% commission to 4.5%
 9        commission total";
10        2.     See Exhibit-5 attached to Hildebrand Declaration of Plaintiff's motion –
11        the"September 17, 2017" Ludwick email to Hildebrand disputing in detail the amount
12        of commision owed as whether Partners Trust was paid 4.5% or 6% commission on
13        the Eghbali Sale, either way, it benefitted Partners Trust more than Ludwick and could
14        result in less money for Ludwick than on the prior accepted Antoci Offer;
15        3.     See Exhibit-6 attached to Hildebrand Declaration of Plaintiff's motion – the
16        "Sep 19, 2017" email of Sarah Kosasky, Manager for Partners Trust's Malibu office,
17        wherein she acknowledges the commission due offered to Ludwick of 4.25% and she
18        offers "to discuss further"; as well as,
19        4.     See Exhibit-9, Page-2 attached to Jones Declaration of Plaintiff's motion – the
20        "Sep 20, 2017" Terra Coastal Escrow email from Cynthia Schmon, Escrow Officer to
21        Ludwick stating that "Madison [Hildebrand] said that the commission has been
22        resolved at 4.25%.";
23   •    At the instruction of Ludwick the Escrow Company, held nine hundred seventy-eight
24        thousand dollars ($978,000.00) in escrow as disputed commission and which is still
25        held in escrow today.
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27        The basis for the Verified Complaint filed by the Ludwick in Ludwick v. Partners
28   Trust et al, LASC Case Number: 19STCV25331 ("LASC action") asserts and seeks

                  DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
         FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                     7
 1    damages, both compensatory and loss of profits for millions of dollars, for Defendant
 2    Partners Trust and its brokers, agents and associates material breach of contract and
 3    fiduciary duties owed to these Defendants. Ludwick disputes PUI's claims as there is no
 4    signed contract between them in violation of California Statues requiring that all contracts
 5    involving the sale of real property be in writing, i.e. among others, the statute of frauds.3
 6           Additionally, no notice of the sale and purchase between the licensed brokers PUI and
 7    Partners Trust was ever provided to Defendants before the close of the Eghbali escrow on
 8    November 9, 2017, and, even today, there is absolutely no admissible evidence. At best, PUI
 9    offers improper "out-of-court hearsay statements" offered for the proof of the matter asserted
10    and without any foundation and/or authentication, i.e., how, when and where the declarant
11    obtained knowledge of the conclusory statements offered and/or the document relied upon.
12    California Evidence Code §§ 702(a), 800l; 1200; and 1400-1401.
13           Defendants dispute that PUI is entitled to payment of any commission by and/or from
14    Defendants but rather as a matter of law PUI must look to PARTNERS TRUST and its
15    broker of record Nick Segal for any money PUI believes it is entitled to.4 Defendants do not
16    owe anything to PUI because there is no contractual privity.
17           Furthermore, Defendants dispute what commission, if any, is owed to the licensed
18    brokerage, PARTNERS TRUST and Nick Segal who were the brokers of record
19    representing the Toyopa Property for sale due to the material breaches of their contractual
20    duties and/or obligations and/or breach of fiduciary duties, as well as, their fraudulent and
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23             California Civil Code §1624(a)(4) requires that "[a]n agreement authorizing an agent, broker, or
     any other person to purchase or sell real estate . . ." must be in writing. Since Defendants' contract in this
24   instance was with PARTNERS TRUST, not with PUI, absent some showing that the contract is
     enforceable by PUI (not just Partner's Trust), PUI's claim is barred by the "statute of frauds" as there is no
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     written contract between PUI and PLAINTIFFS.
26           4
               When the listing broker appoints another broker to cooperate without the express or
27   implied authority of the principal, the cooperating broker becomes the subagent or agent of the listing
     broker and not the subagent of the principal. California Civil Code §§ 2349; 2350 and 2351.
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                   DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
          FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                            8
 1   unfair business practices. (See, the LASC Verified Complaint attached as Exhibit-A and
 2   Ludwick Declaration filed herewith.)
 3         Defendants further allege that Partners Trust and its associated licensed brokers and/or
 4   real estate agents materially breach the contract between them, when they choose to act in
 5   a dual agency capacity representing both the Defendant Sellers and the prospective Buyers
 6   without proper full and complete disclosure of their dual agency. Rather, they acted to
 7   misrepresent and/or mislead the Defendants, acting in their own best interests rather than the
 8   best interests of the Defendants.
 9         Ultimately, Partners Trust, its brokers, agents and/or associates acted to enrich
10   themselves at the expense of the Defendants. (See Ludwick Declaration, and specifically
11   ¶¶ 18 and 19.) PUI by filing this action, in its name as Plaintiff and in Placer County is
12   attempting to escape the wrongful and improper materially breaching conduct of the original
13   contracting brokerage, its brokers, agents and/or associates.
14         A.     PROCEDURAL HISTORY OF THE LITIGATION
15                Plaintiff Files Suit in Placer County
16         On November 7, 2018, Plaintiff PUI filed this action in Placer County. PUI, however,
17   does not have any kind of signed real estate listing agreement (or any other agreement,
18   written or oral, whatsoever) with Defendants, or any of them (see Ludwick Declaration at
19   p. 2, ¶¶ 4-10); nonetheless, Plaintiff is required to have a written agreement as a matter of
20   law. See, Civil Code § 1624(a)(4); Marks v. McCarty, supra, 33 Cal.2d at 819.
21         On or about March 22, 2019 Defendants served PUI with a set of Requests for
22   Admission; to which Defendants responded on or about April 25, 2019. Particularly
23   significant are PUI’s responses to three (3) of the Requests for Admission (Nos. 90, 91 &
24   92) and PUI’s accompanying Form Interrogatory 17.1 responses with respect to those three
25   Requests. The three (3) Requests for Admission asked PUI to admit that:
26         90)    "PUI lacks any contractual privity with The Anything Trust";
27         91)    "PUI lacks any contractual privity with BOOTH"; and
28         92)    "PUI lacks any contractual privity with LUDWICK".

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                   9
 1          In each instance, PUI refused to provide any substantive response to either the Request
 2    for Admission or the accompanying Form Interrogatory 17.1; and, instead, interposed a
 3    series of repetitive form objections to each RFA and responded to the accompanying Form
 4    Interrogatory 17.1, sub-section (b) by stating that:
 5           "Responding Party purchased Partners Trust and acquired all of Partner’s Trusts
 6          [sic] rights, obligations and duties, including for any pending real estate
            transactions at the time of the acquisition." (See Defendants’ Request for
 7          Judicial Notice filed herewith at ¶2 and attached as Exhibit "B" thereto.)
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 9                 The Los Angeles County Superior Court Case
10          On July 24, 2019, LUDWICK filed a forty-seven (47) page verified Complaint in the
11    Los Angeles County Superior Court setting forth ten (10) Causes of Action supported by
12    seventy-seven (77) pages of authenticated Exhibits (hereinafter simply the "LASC Verified
13    Complaint"). 5 In the Fall of 2019, prior to the interruption of normal Court proceedings due
14    to the Covid-19 pandemic, PUI and the other defendants in the Los Angeles County Superior
15    Court Case filed a demurrer which was heard on June 24, 2020. At that time, the demurrer
16    was mostly denied, but was sustained with leave to amend only as to Ludwick's 1st and 9th
17    causes of action.
18                 Ludwick's Petition to Coordinate
19          On July 17, 2020, Ludwick file a "Petition to Coordinate" the Placer County action,
20    this action with the Los Angeles County action, and for both these actions to be coordinated
21    in the Central Branch of the Los Angeles Superior Court, arising from subject matter, i.e.
22    location of real property at issue and all parties, witnesses, etc. located in Los Angeles
23
24          5
                Those ten (10) Causes of Action are: 1) Breach of California Civil Code §2079.16; 2)
25   Breach of Fiduciary Duty; 3) Fraud & Deceit – Actual &/or Constructive; 4) Intentional
     Interference with Prospective Relationship and/or Economic Advantage; 5) Negligent Interference
26
     with Prospective Relationship and/or Economic Advantage; 6) Professional Negligence; 7) Breach
27   of Contract; 8) Breach of California Civil Code §17200; 9) Declaratory Relief as to Illegality of
     Contract; and 10) Declaratory Relief as to Commission Owed, if any.
28

                  DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
         FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                    10
 1   County. Copies of Ludwick's Petition along with all the supporting pleadings, declarations
 2   and documents have been submitted to and filed with this Court.
 3
 4         II.    SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY
 5                ADJUDICATION OF THE ISSUES, IS NOT APPROPRIATE AS THERE
 6                STILL REMAIN TRIABLE ISSUES OF FACT.
 7         The court must determine from the evidence presented that "there is no triable issue
 8   as to any material fact and that the moving party is entitled to judgment as a matter of law
 9   . . . " California Code Civil Procedure § 437c.       Plaintiff holds the heavy burden of
10   establishing with its motion that the "material facts" are undisputed. California Code Civil
11   Procedure § 437c(b)(1). The result is that summary judgment lies only where the opponent
12   has no case at all (not merely a weak case). 24 Hour Fitness, Inc. v. Sup.Ct. (Munshaw)
13   (1998) 66 Cal.App.4th 1199, 1215.
14         A party who seeks a court's action in his or her favor bears the burden of persuasion
15   thereon (California Evidence Code § 500). Thus, "from commencement to conclusion, the
16   party moving for summary judgment bears the burden of persuasion that there is no triable
17   issue of material fact and that it is entitled to judgment as a matter of law." Aguilar v.
18   Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. And, it is not sufficient for the moving
19   party seeking summary judgment to merely assert that the opposition has no evidence on a
20   particular point. Aguilar, supra, 25 Cal.4th at 854-855. To satisfy its initial burden, the
21   party moving seeking summary judgment and/or adjudication must show both: 1) that the
22   opposing party has no evidence to support an essential element of the claim, and 2) that the
23   opposing party cannot obtain such evidence. Gaggero v. Yura (2003) 108 Cal.App.4th 884,
24   888-892.
25         Plaintiff's Supporting Evidence Is Inadmissible And/or Insufficient
26         The evidence in support the motion is not admissible, it is hearsay and/or conclusory
27   statements without the necessary and/or appropriate foundation and/or authentication of
28

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                 11
 1   documents. The supporting declarations fail to provide the foundation for the witnesses
 2   alleged personal knowledge; and contain inadmissible hearsay.
 3         The Requests For Summary Adjudication Are Not Proper
 4         Plaintiff's requests for summary adjudication of issues improperly seeks to dispose of
 5   limited issues within the case; but, violates California Code of Civil. Procedure § 437c,
 6   subd. (f)(1) which requires that the requests for summarily adjudication completely disposes
 7   of a particular cause of action, defense, claim for punitive damages, or an issue of duty.
 8   Hood v. Superior Court (1995) 33 Cal.App.4th 319, 321. These restrictions were placed in
 9   the statute in 1990, to stop the practice of parties seeking summary adjudication of issues
10   that did not completely dispose of a cause of action or defense. Id; Regan Roofing Co. v.
11   Superior Court (1994) 24 Cal.App.4th 425, 433; Lilienthel & Fowler v. Superior Court
12   (1993) 12 Cal.App.4th 1848, 1853.
13         Plaintiff's Substantively Defective Motion Because the Facts in the Separate
14         Statement Are Insufficient
15         It is critical for the moving party's separate statement of undisputed facts entitle the
16   moving party to judgment. The test is something like a reverse demurrer – even if you
17   concede the truth of every fact in the separate statement, Plaintiff has not establish that it
18   will prevail and that Defendants no defense as a matter of law.
19         Plaintiff Has Misstated And/Or Ignored Facts And/Or Law
20         The facts as offered by the Plaintiff are not accurate; and do not tell the whole story.
21   Critical facts and/or law are omitted and/or misrepresented. As, example, see Exhibits 2;
22   5; 6; and 9 to Plaintiff's motion, all of which, establish a dispute over the percentage and/or
23   amount of commission owed, if any, by Defendants to Partners Trust; and also fails to
24   address any of Defendants' 19-Affirmative Defenses. As to statutory duties, Plaintiff ignores
25   and/or misstates law related to the "dual agency" Partners Trust, its brokers, agents and/or
26   associates took on, as well as, failing in anyway to address the bar to Plaintiff's claims due
27   to the Statute of Frauds.
28

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                   12
 1         III.   PLAINTIFF’s CLAIM IS BARRED BY THE STATUTE OF FRAUDS
 2
           A.     No Written Agreement between Defendants and Plaintiff PUI Exists
 3
           The California statute of frauds declares several types of agreements "invalid"
 4
     unless "they, or some note or memorandum thereof, are in writing and subscribed by the
 5
     party to be charged or by the party's agent." California Civil Code §1624(a); Marks v.
 6
     McCarty, supra, 33 Cal.2d at 819. "A court applying the statute of frauds is accordingly
 7
     presented with two questions: (1) does the statute apply to the contract at issue; and if so,
 8
     (2) are the statute's requirements of a properly subscribed writing met" Westside Estate
 9
     Agency, Inc. v. Randall (2nd Dist. 2016) 6 Cal.App.5th 317, 320.
10
           As applicable to this case, California Civil Code §1624(a)(4) provides in pertinent
11
     part that:
12
           "(a) The following contracts are invalid, unless they, or some note or
13         memorandum thereof, are in writing and subscribed by the party to be charged or
14         by the party's agent:
                  ....
15
                  (4)     An agreement authorizing or employing an agent, broker, or any
16         other person to purchase or sell real estate, . . . or to procure, introduce, or find a
17         purchaser or seller of real estate . . . for compensation or a commission."

18
           Thus, "section 1624 of the Civil Code is applicable to the collection by the agent or
19
     broker of his ‘*** compensation or a commission ***’ and the enforcement by the
20
     principal of the broker's agreement . . . " (Steiner v. Rowley (1950) 35 Cal.2d 713, 715,
21
     quoting Marks v. Walter G. McCarty Corp (1949), 33 Cal.2d 814, 205 P.2d 1025; and Le
22
     Blond v. Wolfe (1948), 83 Cal.App.2d 282, 188 P.2d 278.) "The purpose of [this
23
     provision] is to protect the owner of real property, not from every claim of a commission
24
     for selling the same, but from claims from persons never by him employed or
25
     authorized to act." (Moore v. Borgfeldt (1929) 96 Cal.App. 306, 313; emphasis added.)
26
           And, in order to be entitled to recover a commission for a sale of real property, a
27
     broker must prove (1) that he was employed by or on behalf of the owner to sell the
28

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                   13
 1   property; and (2) that his authority, or some note or memorandum thereof, was in writing,
 2   signed by the seller, or by his authorized agent. California Civil Code § 1624(a)(4);
 3   McCarthy v. Loupe (1882) 62 Cal. 299; Steiner v. Rowley, supra, 35 Cal.2d at 715; and
 4   Lambert v. Woodson, 125 Cal.App. 2d 186; and Phillippe v. Shapell Industries (1987) 43
 5   Cal. 3d 1247.)
 6         Plaintiff PUI cannot fulfill any of these requirements because (1) Defendants
 7   employed Partners Trust, not PUI as their selling agent / broker; and, therefore, (2) the
 8   written listing agreement was only between Defendants and Partners Trust, not between
 9   Defendants and PUI as required by law for PUI to be able to collect a commission
10         On or about August 29, 2016 Defendants entered into a real estate brokerage "Listing
11   Agreement" with "Partners Trust" (See the Ludwick Declaration at Page 2, ¶ 6 through ¶-
12   10.) A true and correct copy of the Toyopa Listing Agreement is attached as Exhibit-AA
13   Defendants' Request for Judicial Notice and list of attached Exhibits.
14         Simply put, Plaintiff PUI is licensed by the California Department of Real Estate
15   ("DRE") under DRE License No. 01914356; while Partners Trust is licensed under DRE
16   License No. 01869103; and, it is the Partners Trust DRE License No. that appears on the
17   Toyopa Listing Agreement, attached as Exhibit-AA; and, see the Eghbali purchase and sale
18   agreement with escrow instructions attached as Exhibit-AG, as well as, Page-3 of Exhibit-9
19   attached to Jones Declaration of Plaintiff's motion – the November 9, 2017 "Seller's Final
20   Settlement Statement" from the escrow company which under "Sales Commission" states
21   "Listing commission to PARTNERS TRUST."
22         At no time, was PUI a signatory on any document nor had any involvement with the
23   Defendants, from on or about August 29, 2016 when Defendants entered into the Toyopa
24   Listing Agreement through the close of the Eghbali purchase of the Toyopa Property on
25   November 9, 2017. To the contrary, PUI has judicially admitted that it has never been in
26   contractual privity with these Defendants (see Exhibit-B).
27         In short, PUI has no contractual agreement with Defendants, or any of them, which
28   would permit PUI to recover a commission. PUI has no privity of contract with Defendants.

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                  14
 1   (See Plaintiff PUI's Complaint ¶¶ 2 and 10.)
 2         Plaintiff did not have a contractual relationship with Defendants, or any of them!!
 3   Rather, the "Listing Agreement" was, is and always has been between Defendants and
 4   "Partners Trust" not "PUI" as confirmed by ALL of the Exhibits to both the Plaintiff's
 5   Complaint and motion for summary judgment. (See Defendants’ Request for Judicial Notice
 6   filed concurrently herewith and attached Exhibits thereto; and the Ludwick Declaration ¶¶4-
 7   10 starting on page 2.)
 8         IV.    PLAINTIFF’s CLAIM IS ALSO BARRED BECAUSE PLAINTIFF
 9                WAS NOT THE "PROCURING CAUSE" OF THE SALE

10         Further, the California Courts have consistently held for over 150-years that before a

11   real estate broker can be said to have earned his commission, it must also be shown that the

12   licensed broker produced a purchaser, who was ready and willing to make the purchase and

13   that the broker was the "procuring cause" of the transaction. McGavock v. Woodlief

14   (1857) 61 U.S. (20 How.) 221, 15 L.Ed. 884; see also, Hahn v. Hauptman (1930) 107

15   Cal.App. 739 holding that the plaintiff real estate broker was not entitled to a commission

16   when the sale was negotiated by an unlicensed employee rather than the broker himself.

17         Once again, PUI cannot fulfill the requirement – as it was Partners Trust, not PUI, who

18   produced the purchaser and was, in fact, "the procuring cause of the transaction."

19         In Westside Estate Agency, supra, the 2d District Court of Appeal addressed the

20   "mirror image" of the issue presented in the instant case and concluded that the statute of

21   frauds (1) was applicable; and (2) prohibited the real estate agent’s claim to a fee for a

22   transaction in which it was not involved and for which it did not have a written listing

23   agreement. The Court summarized the case as follows:

24         We are all familiar with the phrase, "caveat emptor": Buyer beware. This case
           deals with its less renowned cousin, "caveat sectorem": Broker beware.
25         California's statute of frauds declares invalid any "agreement authorizing or
26         employing an agent, broker, or any other person to purchase or sell real estate"
           unless that agreement is in writing and signed by the broker's client. (Civ. Code,
27
           §1624, subd. (a)(4).) . . . This is a nearly absolute rule, with only a few very
28         narrow exceptions. The broker in this case missed out on a $925,000

                 DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
        FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                  15
 1          commission because he agreed to help a friend buy a $45 million Bel Air estate,
 2
            but the deal was ultimately closed by another broker on different terms.
            Critically, the first broker's agreement was not in writing. The first broker sued
 3          his friend/client for the commission, and the trial court dismissed the lawsuit for
 4          noncompliance with the statute of frauds. After examining in detail the statute
            of frauds and its exceptions, we conclude the trial court was right and affirm.
 5
            (Westside Estate Agency, supra, 6 Cal.App.5th at 317.)
 6
 7          In Westside Estate Agency, supra, as here, the plaintiff (Westside) had no written

 8    contract directly with the seller of the property. Instead, Westside claimed that it had an

 9    "implied" contract to act on the Randall’s behalf, that it had done so (including making

10    offers on the property) and, therefore, when the Randalls ultimately bought the property for

11    $46.25 million, it was entitled to a commission. Westside sued the Randalls, who demurred.

12    The Trial Court sustained the Randall’s demurrer to the first amended complaint without

13    leave to amend, reasoning that:

14          *       Westside was trying to collect a broker's commission from the Randalls

15                  without any written agreement signed by the Randalls evidencing a

16                  broker-client relationship between them;

17          *       that this claim fell "squarely within" the statute of frauds, without any of the

18                  exceptions to the statute; and

19          *       that any unwritten agreement was consequently unenforceable as a matter of

20                  law. 6

21          While the roles of the first and second brokers are reversed here – the bottom line

22   remains the same: Partners Trust had a written contract to act on behalf of Defendants

23   Anything Trust and Ludwick the owners and sellers of the Toyopa Property. Plaintiff PUI

24
            6
25
             This is the mirror image of the instant case as, here, the original broker (Partners Trust) had
26
     a written broker’s agreement but the subsequent broker, Plaintiff, did not. Nonetheless, the result, in
27   terms of the statute of frauds, must be the same – only the broker who had a written contract is entitled
     to claim a broker’s fee.
28

                   DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
          FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                       16
 1   never had any written contract with Defendants, or any of them! To the contrary, Plaintiff
 2   PUI is relying solely on the undisclosed terms of its alleged acquisition agreement with
 3   Partners Trust as the basis for its claim!
 4         The result here must be the same as in Westside Estate Agency, supra – barred by the
 5   Statute of Frauds since there is no written agreement between Plaintiff PUI and Defendants.
 6
 7         V.     EVEN IF NOT BARRED BY THE STATUTE OF FRAUDS,
 8                PLAINTIFF CANNOT STATE A VIABLE CAUSE OF ACTION
                  AS A MATTER OF LAW
 9
10         A.    Plaintiff PUI Has Not Properly Pled or Established, a Right to a
11               Commission.
           A broker's right to compensation; the amount owed; and, the principle / seller's
12
     obligation to pay compensation to the broker must be in writing and must be clearly set forth
13
     in the listing agreement. California Civil Code §1624(a)(4). In accordance with Section
14
     1624(a)(4), the California Supreme Court has held that a real estate broker is not entitled to
15
     recover any commission under a breach of contract theory, unless there is a signed
16
     agreement between the broker and the principal/seller. Phillippe v. Shapell Industries (1987)
17
     43 Cal. 3d 1247, 1255-58. Any attempt to assign the broker's rights as an agent of the
18
     principle/seller must also be in writing, as:
19
                  (4) An agreement for . . . for the sale of real property, or of an interest therein;
20         such an agreement, if made by an agent of the party sought to be charged, is invalid,
21         unless the authority of the agent is in writing, subscribed by the party sought to be
           charged." California Civil Code §1624(a)(4).
22
23
           PUI to prevail as a mater of law on its breach of contract claim or, alternatively, other
24
     theories alleged for recovery MUST establish the following:
25
           1.     Any Commission claimed is to be paid to a licensed real estate broker, who in
26
                  privity with the seller then, pays any sums owed to a licensed salespersons or
27
                  broker associates. Business & Professions Code §§ 10136, 10137, & 10138.
28


                  DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION
         FOR SUMMARY JUDGMENT; AND/OR MOTION FOR SUMMARY ADJUDICATION
                                                     17
 1         2.     No salesperson can accept compensation from any person other than the broker
 2                with whom he or she is employed at the time of sale; and, no salesperson shall
 3                pay compensation for any act for which a license is required to another licensed
 4                agent or broker, but only through the broker under whom the salesperson is
 5                licensed. Business & Professions Code § 10137.
 6         3.     The listing broker must have a valid, written contract with the principal for
 7                whom the broker is acting, e.g., the seller or landlord/lessor. Civil Code §
 8                162