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ORISINAL
MICHAEL A.J. NANGANO (SBN 133999)
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LAW OFFICES OF MICHAEL A.J. NANGANO
133 No. Altadena Drive, Suite 403
NO
Pasadena, CA 91107
Phone: (626) 796-9998
FILED
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Fax: (626) 796-9992 Superior Court of Cailfornia
F&F
Countv of Placer
LAWRENCE E. SKIDMORE (SBN 137587)
ARONOWITZ, SKIDMORE & LYON FEB 11 2019
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200 Auburn Folsom Road, Suite 305
Auburn, CA 95603 dake Chatters
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xécutive Officer & Clerk
Phone: 30) 823-9736
By: O. Lucatuorto, Deputy
Fax: 530) 823-5241
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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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oe UNION INTERNATIONAL, Case No. S-CV 0042080
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Plaintiff, DEFENDANTS’ REPLY BRIEF
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IN SUPPORT OF MOTION TO
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vs. CHANGE VENUE
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ERIK LUDWICK, an individual AND
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Beneficiary of The Anne Trust dated
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October 12, 2007; TH A YTHING
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TRUST DATED OCTOBER 12, 2017; Motion Date: February 19, 2019
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PAUL D. BOOTH, in his capacity as Trustee Dept.: Dept 42
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of The Anything Trust Dated October 12,
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2007; and Does 1 through 50, inclusive,
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CAC Date: March 12, 2019
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Defendants. Trial Date: None Set
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DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE
This case arises from a contractual fee dispute between a Los Angeles County real estate
—
broker and the Defendant “Anything Trust,” a revocable inter vivos trust which was created by
NO
Defendant Erik Ludwick in Los Angeles County dated October 12, 2007 (hereinafter simply “the
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Trust”). Neither the Trust nor Mr. Ludwick have ever owned any property in Placer County.
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When Mr. Ludwick decided to sell his residence, the Trust, as owner of the property, entered
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into a “residential listing agreement” with “Partners Trust” a real estate broker with its only office
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in Los Angeles County. The Los Angeles property was subsequently sold, but through a different
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Los Angeles broker. After Plaintiff Pacific Union International, Inc. (“Plaintiff”) purchased Partners
Trust (along with many other brokers throughout California), it claimed (1) that it is entitled to the
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commission for the sale of the Los Angeles county property; and (2) that the claim should be
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adjudicated by this Court, instead of the appropriate division of the Los Angeles Superior Court.
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Plaintiff claims this dispute regarding the Los Angeles County sale must be decided in Placer
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County because:
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(1) Plaintiff (a San Francisco based brokerage company) purchased Partners Trust, the
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original Los Angeles brokerage company;
(2) the trustee of the inter vivos Trust which owned the Los Angeles property prior to the
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sale is a resident of Placer County; and
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(3) Plaintiff does business in Placer County (although Partners Trust did not).
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Thus, Plaintiff's entire argument is based upon the happenstance that Defendant Paul D.
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Booth, the Trustee of the Defendant “Anything Trust,” is a resident of Placer County; even though
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lead Defendant Erik Ludwick, who is both Trustor and the sole Beneficiary of the Trust, resides in
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Los Angeles County. Thus, according to Plaintiff, the case must be tried at the opposite end of the
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state from:
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? where the Real Estate Listing Contract (“the Contract”) between Plaintiff's
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predecessor in interest (Partner’s Trust) and the Defendant Trust was entered into;
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' where the real property which was the subject of that Contract is located;
* where lead Defendant Erik Ludwig, who is both the Trustor and the sole beneficiary
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resides; and
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No
2
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE
’ where all activities relating to the fulfillment of the Contract (or not) took place.
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Further, Plaintiffs claim that “two defendants” reside in Placer County is, at best
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disingenuous as the one and only resident of Placer County is Defendant Paul Booth.
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JURISDICTION
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While the primary issue here is one of venue — it is important to correct Plaintiff's suggestion
that this Court is the only Court with “jurisdiction” over this matter. To the contrary, Probate Code
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§17000(b) states:
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a) The superior court having jurisdiction over the trust pursuant
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to this part has exclusive jurisdiction of proceedings concerning
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the internal affairs of trusts.
b) The superior court having jurisdiction over the trust pursuant
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to this part has concurrent jurisdiction of the following:
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(2) Actions and proceedings by or against creditors or debtors of
trusts.
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(3) | Other actions and proceedings involving trustees and third persons.
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(Emphasis added.)
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The instant action has been filed by an alleged creditor of the Trust (the successor in interest
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to the original listing agent in Los Angeles). Thus, this Court has, at most, concurrent jurisdiction
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with the Los Angeles Superior Court.
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Plaintiff s entire argument is based upon the happenstance that Defendant Paul D. Booth, the
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Trustee of Defendant “Anything Trust,” is a resident of Placer County, According to Plaintiff, this
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3
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE
action must be maintained in Placer County (and nowhere else) under Proba
Code §17005(a)(1)
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—
solely because Defendant Booth is a resident of Placer County. Section 17005 states:
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a) The proper county for commencement of a proceeding pursuant to this
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division is either of the following:
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(1) In the case of a living trust, the county where the principal place of
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administration of the trust is located.
(2) In the case of a testamentary trust, either the county where the
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decedent's estate is administered or where the principal place of
administration of the trust is located.
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b) If a living trust has no trustee, the proper county for commencement of a
proceeding for appointing a trustee is the county where the trust property, or
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some portion of the trust property, is located.
c) Except as otherwise provided in subdivisions (a) and (b), the proper county for
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commencement of a proceeding pursuant to this division is determined by the rules
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applicable to civil actions generally.
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However, the foregoing appears to be in conflict with the general venue rules set forth in
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Code of Civil Procedure §395(a) which states that:
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Except as otherwise provided by law and subject to the power of the court to
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transfer actions or proceedings as provided in this title, the superior court in the county
where the defendants or some of them reside at the commencement of the action is the
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proper court for the trial of the action...... Subject to subdivision (b), if a defendant
has contracted to perform an obligation in a particular county, the superior court
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in the county where the obligation is to be performed, where the contract in fact
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was entered into, or where the defendant or any defendant resides at the
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commencement of the action is a proper court for the trial of an action founded on
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that obligation, and the county where the obligation is incurred is the county
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where it is to be performed, unless there is a special contract in writing to the
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contrary....
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Here, of course, the gravamen of Plaintiff's complaint is that the Trust entered into a contract
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in Los Angeles County, which was to be performed in Los Angles County by means of the payment
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NO
NON
of a brokerage commission to Plaintiff's predecessor in interest, a broker who only did business in
NY
NO
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NO
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DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE
Los Angeles County. Further, the alleged breach of that contract took place in Los Angeles County
when the Trust allegedly failed and refused to pay Partners Trust (Plaintiffs predecessor-in-interest)
NY
the commission which Partners Trust claimed it was entitled to receive.
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The Trust acknowledges that CCP §395(a) opens by stating “[except as otherwise provided
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by law . . .” but balancing the specific allegations of Plaintiff's case — including Plaintiff's
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acknowledgment that it does business in Los Angeles County — against the mere happenstance that
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the trustee of the Trust lives in Placer County, it is clear that the proper venue for this matter is in
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the Los Angeles Superior Court, not in Placer County.
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CONCLUSION
Thus, it would appear that just as there is concurrent jurisdiction in this case, there is also
concurrent venue!
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Plaintiff has, and will, argue that the “[except as otherwise provided by law . . .” language
requires that the case remain in Placer County pursuant to under Probate Code §17005(a)(1). But
that argument does rather seem like the tail wagging the dog when the real property and all events,
witnesses, and documents relating to its sale are based in Los Angeles County.
DATED: February 11, 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION
RD
A J.
BRO
Attorneys for Defendants
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3
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE
WD
PROOF OF SERVICE
Iam employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403,
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Pasadena, CA 91107.
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On February 11, 2019, I served the following document(s) described as:
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DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE
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on all interested parties in this action by placing [X]atrue copy [ ] the original thereof enclosed
in sealed envelopes addressed as follows:
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SEE ATTACHED MAILING LIST
10 [] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error
was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a
11 record of the transmission.
12 [x] (BY MAIL, 1013a, 2015.5 C.C.P.) Iam readily familiar with the firm’s practice for
collection and processing correspondence for mailing. Under that practice, this document
13 will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid
at Los Angeles, California in the ordinary course of business. I am aware that on motion of
14 the party served, service is presumed invalid if postal cancellation date or postage meter date
is more than one day after date of deposit for mailing in affidavit.
15
(BY OVERNIGHT DELIVER Y/COURIER) I served the above referenced document(s)
16 enclosed in a sealed package, for collection and for delivery marked for next day delivery in
the ordinary course of business, addressed to the office of the addressee(s) listed above or on
L? attached sheet.
18 (BY HAND DELIVERY) I caused to be delivered by hand the foregoing envelope to the
offices of the addressee.
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(BY E-MAIL) I transmitted a copy of the foregoing document(s) via e-mail to the
20 addressee(s).
ai [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
22
[ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court
23 at whose direction the service was made.
24 Executed on February 11, 2019, at Pasadena, California.
25
26 Patricia M. Poole
21
28
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PROOF OF SERVICE
FF
MAILING LIST
Pacific Union International, Inc. v. Ludwick, et al.
DN
Case No. SCV0042080
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F&F
Shannon B. Jones, Esq.
Shannon B. Jones Law Group, Inc.
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208 W. El Pintado Road
Danville, CA 94526
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PROOF OF SERVICE
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ORISINAL MICHAEL A.J. NANGANO (SBN 133999) = LAW OFFICES OF MICHAEL A.J. NANGANO 133 No. Altadena Drive, Suite 403 NO Pasadena, CA 91107 Phone: (626) 796-9998 FILED W Fax: (626) 796-9992 Superior Court of Cailfornia F&F Countv of Placer LAWRENCE E. SKIDMORE (SBN 137587) ARONOWITZ, SKIDMORE & LYON FEB 11 2019 vA 200 Auburn Folsom Road, Suite 305 Auburn, CA 95603 dake Chatters A xécutive Officer & Clerk Phone: 30) 823-9736 By: O. Lucatuorto, Deputy Fax: 530) 823-5241 on FAX Attorney for Defendants o BY O&O She | SUPERIOR COURT OF THE STATE OF CALIFORNIA Nn SE IN AND FOR THE COUNTY OF PLACER WY SF F&F KF AH KF oe UNION INTERNATIONAL, Case No. S-CV 0042080 HDHD See YF Se FY See Plaintiff, DEFENDANTS’ REPLY BRIEF ON Se IN SUPPORT OF MOTION TO YY Se vs. CHANGE VENUE Ne OU Ne HY ERIK LUDWICK, an individual AND ae Beneficiary of The Anne Trust dated CO N a October 12, 2007; TH A YTHING a TRUST DATED OCTOBER 12, 2017; Motion Date: February 19, 2019 KH N a PAUL D. BOOTH, in his capacity as Trustee Dept.: Dept 42 a of The Anything Trust Dated October 12, NY NY Ni 2007; and Does 1 through 50, inclusive, i WO NY a CAC Date: March 12, 2019 a Defendants. Trial Date: None Set Fk NN a a NW NY a me AO NY Ww oN MW 1 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE This case arises from a contractual fee dispute between a Los Angeles County real estate — broker and the Defendant “Anything Trust,” a revocable inter vivos trust which was created by NO Defendant Erik Ludwick in Los Angeles County dated October 12, 2007 (hereinafter simply “the WY Trust”). Neither the Trust nor Mr. Ludwick have ever owned any property in Placer County. F&F When Mr. Ludwick decided to sell his residence, the Trust, as owner of the property, entered aA into a “residential listing agreement” with “Partners Trust” a real estate broker with its only office Dn in Los Angeles County. The Los Angeles property was subsequently sold, but through a different on Los Angeles broker. After Plaintiff Pacific Union International, Inc. (“Plaintiff”) purchased Partners Trust (along with many other brokers throughout California), it claimed (1) that it is entitled to the oOo commission for the sale of the Los Angeles county property; and (2) that the claim should be lt Ss adjudicated by this Court, instead of the appropriate division of the Los Angeles Superior Court. eS www Plaintiff claims this dispute regarding the Los Angeles County sale must be decided in Placer SB County because: Sa (1) Plaintiff (a San Francisco based brokerage company) purchased Partners Trust, the RR original Los Angeles brokerage company; (2) the trustee of the inter vivos Trust which owned the Los Angeles property prior to the ek sale is a resident of Placer County; and eB (3) Plaintiff does business in Placer County (although Partners Trust did not). mw Thus, Plaintiff's entire argument is based upon the happenstance that Defendant Paul D. S&B Booth, the Trustee of the Defendant “Anything Trust,” is a resident of Placer County; even though RO eS lead Defendant Erik Ludwick, who is both Trustor and the sole Beneficiary of the Trust, resides in NO Los Angeles County. Thus, according to Plaintiff, the case must be tried at the opposite end of the eB NO state from: oO KN ? where the Real Estate Listing Contract (“the Contract”) between Plaintiff's Ee KH predecessor in interest (Partner’s Trust) and the Defendant Trust was entered into; OO RREaE ' where the real property which was the subject of that Contract is located; * where lead Defendant Erik Ludwig, who is both the Trustor and the sole beneficiary wd resides; and Ss No 2 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE ’ where all activities relating to the fulfillment of the Contract (or not) took place. & Further, Plaintiffs claim that “two defendants” reside in Placer County is, at best NH disingenuous as the one and only resident of Placer County is Defendant Paul Booth. Ww fF I nA JURISDICTION KD ON While the primary issue here is one of venue — it is important to correct Plaintiff's suggestion that this Court is the only Court with “jurisdiction” over this matter. To the contrary, Probate Code oOo §17000(b) states: O&O a) The superior court having jurisdiction over the trust pursuant —| to this part has exclusive jurisdiction of proceedings concerning NYO the internal affairs of trusts. b) The superior court having jurisdiction over the trust pursuant WY to this part has concurrent jurisdiction of the following: Ff mm A (2) Actions and proceedings by or against creditors or debtors of trusts. HO (3) | Other actions and proceedings involving trustees and third persons. NH wm (Emphasis added.) BeBe The instant action has been filed by an alleged creditor of the Trust (the successor in interest UO wr to the original listing agent in Los Angeles). Thus, this Court has, at most, concurrent jurisdiction NO CO with the Los Angeles Superior Court. NO | NO NY II WY YN Fe NO AN WH Plaintiff s entire argument is based upon the happenstance that Defendant Paul D. Booth, the NO NH Trustee of Defendant “Anything Trust,” is a resident of Placer County, According to Plaintiff, this NY oN mW 3 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE action must be maintained in Placer County (and nowhere else) under Proba Code §17005(a)(1) te — solely because Defendant Booth is a resident of Placer County. Section 17005 states: LH a) The proper county for commencement of a proceeding pursuant to this WY division is either of the following: Fk (1) In the case of a living trust, the county where the principal place of nH administration of the trust is located. (2) In the case of a testamentary trust, either the county where the Dn decedent's estate is administered or where the principal place of administration of the trust is located. ON b) If a living trust has no trustee, the proper county for commencement of a proceeding for appointing a trustee is the county where the trust property, or oOo some portion of the trust property, is located. c) Except as otherwise provided in subdivisions (a) and (b), the proper county for OC tlt commencement of a proceeding pursuant to this division is determined by the rules S&S applicable to civil actions generally. NY me Ww However, the foregoing appears to be in conflict with the general venue rules set forth in F&F me Code of Civil Procedure §395(a) which states that: HH Except as otherwise provided by law and subject to the power of the court to mm DOD transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the wm ONT proper court for the trial of the action...... Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court mw in the county where the obligation is to be performed, where the contract in fact Oo was entered into, or where the defendant or any defendant resides at the DOD HNO commencement of the action is a proper court for the trial of an action founded on KY§ that obligation, and the county where the obligation is incurred is the county NO where it is to be performed, unless there is a special contract in writing to the NN WN contrary.... PO Be Here, of course, the gravamen of Plaintiff's complaint is that the Trust entered into a contract NO in Los Angeles County, which was to be performed in Los Angles County by means of the payment UN NO NON of a brokerage commission to Plaintiff's predecessor in interest, a broker who only did business in NY NO oN NO 4 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE Los Angeles County. Further, the alleged breach of that contract took place in Los Angeles County when the Trust allegedly failed and refused to pay Partners Trust (Plaintiffs predecessor-in-interest) NY the commission which Partners Trust claimed it was entitled to receive. WY The Trust acknowledges that CCP §395(a) opens by stating “[except as otherwise provided RP by law . . .” but balancing the specific allegations of Plaintiff's case — including Plaintiff's OH acknowledgment that it does business in Los Angeles County — against the mere happenstance that DD the trustee of the Trust lives in Placer County, it is clear that the proper venue for this matter is in ON the Los Angeles Superior Court, not in Placer County. oO CONCLUSION Thus, it would appear that just as there is concurrent jurisdiction in this case, there is also concurrent venue! Oe Plaintiff has, and will, argue that the “[except as otherwise provided by law . . .” language requires that the case remain in Placer County pursuant to under Probate Code §17005(a)(1). But that argument does rather seem like the tail wagging the dog when the real property and all events, witnesses, and documents relating to its sale are based in Los Angeles County. DATED: February 11, 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION RD A J. BRO Attorneys for Defendants vO 3 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR CHANGE OF VENUE WD PROOF OF SERVICE Iam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403, W Pasadena, CA 91107. & On February 11, 2019, I served the following document(s) described as: wo DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO CHANGE VENUE ao Y on all interested parties in this action by placing [X]atrue copy [ ] the original thereof enclosed in sealed envelopes addressed as follows: co SEE ATTACHED MAILING LIST 10 [] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a 11 record of the transmission. 12 [x] (BY MAIL, 1013a, 2015.5 C.C.P.) Iam readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, this document 13 will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of 14 the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 15 (BY OVERNIGHT DELIVER Y/COURIER) I served the above referenced document(s) 16 enclosed in a sealed package, for collection and for delivery marked for next day delivery in the ordinary course of business, addressed to the office of the addressee(s) listed above or on L? attached sheet. 18 (BY HAND DELIVERY) I caused to be delivered by hand the foregoing envelope to the offices of the addressee. Lg (BY E-MAIL) I transmitted a copy of the foregoing document(s) via e-mail to the 20 addressee(s). ai [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court 23 at whose direction the service was made. 24 Executed on February 11, 2019, at Pasadena, California. 25 26 Patricia M. Poole 21 28 i PROOF OF SERVICE FF MAILING LIST Pacific Union International, Inc. v. Ludwick, et al. DN Case No. SCV0042080 W F&F Shannon B. Jones, Esq. Shannon B. Jones Law Group, Inc. oO 208 W. El Pintado Road Danville, CA 94526 Dn INI Oo oO OC PP F FP DY Ww PP B® BP HO DBD BP BP DANI KF FP Ow YN FP NY NYO NY Ww NB NY ss NS anw NY NM od MO 2 PROOF OF SERVICE