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1 MICHAEL AJ NAN GANO (SBN 133999)
MICHAEL AJ NAN GANO, A LAW CORPORATION
2 133 No. Altadena Drive, Suite 403
Pasadena, CA 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 Attorneys for Defendant(s)
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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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12 PACIFIC UNION INTERNATIONAL, ) Case No. S-CV 0042080
INC., )
13 ) NOTICE OF MOTION AND MOTION
Plaintiff, FOR STAY PENDING APPEAL IN
14 )) APPELLATE COURT CASE NO.
vs. ) 8320896; AND/OR,
15
ERIK LUDWICK, an individual AND FOR LEAVE TO FILE A CROSSÂ
16 Settlor of The Anything Trust dated October ) COMPLAINT
12, 2007; THE ANYTHING TRUST )
17 DATED OCTOBER 12, 2007; PAUL D. ) (Stipulation To Stay Offered to Plaintiff
BOOTH, in his capacity as Trustee of The ) and Refused)
18 Anything Trust Dated October 12, 2007; and )
Does I through 50, inclusive, )
19 Hearing Date: August 4, 2022
Time: 8:30am
20 Defendants. ) Dept: 3
)
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Trial: August 8, 2022
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TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that Defendants (ERIK LUDWICK, an individual AND
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Settlor of The Anything Trust dated October 12, 2007; THE ANYTHING TRUST DATED
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. 8320896;
AND/OR, FOR LEA VE TO FILE A CROSS-COMPLAINT
I OCTOBER 12, 2007; PAUL D. BOOTH, in his capacity as Trustee of The Anything Trust
2 (Dated October 12, 2007) hereby seek to have this matter stayed pending the Appeal filed by
3 Defendants in Appellate Court Case No. 8320896; 1 ancl,
4 That on August 4, 2022, at 8:30 a.m. or as soon thereafter as the matter may be heard in
5 Department 3 of the above-entitled Comt located at 101 Maple Street, Auburn, California
6 95603; wherein Plaintiff ERIK LUDWICK, individually and as both Trustee and Beneficiary
7 of The Anything Trust dated October 12, 2007 (hereinafter "LUDWICK" and/or "the
8 PLAINTIFF") will and hereby does move this Court for an order staying this Court Action due
9 to the pending Appellate Court Case No. 8320896 2;
10 1. Wherein Staying this Action wilJ maintain the status quo until the Appeals Court
11 determines whether it upholds or overtums the Los Angeles Superior Court sustaining of
12 PACIFIC UNION INTERNATIONAL, INC.,'s demurrer dismissing them as a party
13 along with the Los Angeles Superior Court's instructiing that the Los Angeles Plaintiffs
14 (the Defendants herein) must seek their claims against PACIFIC UNION in this action
15 by cross-complaint.
16 2. The appeal will address and determine whether the Los Angeles Superior Court 1s rulings
17 will be upheld or overturned, and which will;
18 3. Effect whether these moving Defendants will be able to proceed against PACIFIC
19 UNION in the Los Angeles Superior Court or seek leave to file and file a CrossÂ
20 Complaint in this Placer County Action.
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23 1 The Appeals Court Case No. was assigned and received on June 28, 2022 (See Exhibit-I).
24 2
A timely notice of appeal was filed on April 14, 2022 in the Los Angeles Superior Comt, Case
No. l 9STCV2533 l by by the Defendants herein, who are Plaintiffs in other action. The appeal is being
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taken from the Superior Court's sustaining of PACIFIC UNION's demurrer, effectively dismissing
26 PACIFIC UNION from the Los Angeles Action. On June 28, 2022, the Appeals Court requested a specific
signed Court Order to move forward / perfect the appeal. On July 12, 2022, an ex parte hearing was held
27 and granted, with the Superior Comt signing the Order and that Order was filed with the Appeals Court on
July 12, 2022 - supporting the grounds for the filing of this motion and/or any subsequent related ex
28 parte.
MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896�
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
1 This motion is made on the grounds that it is within this Court's broad discretionmy
2 inherent powers to grant the stay requested, and/or the stay sought is required to protect the
3 status quo, as well as being in the best interests of justice and to serve judicial efficiency as the
4 Appeals Court's decision will have an effect on substantial questions of merits; and, furthermore,
5 these moving Defendants could suffer irreversible harm/ irreparable harm, immediate danger or
6 other statutory basis for granting ex parte relief(Ca//fomia Rules of Court, Rule 3.1202;
7 California Code of Civil. Procedure§ 916(a); and,.)
8 Under Section 916(a) of the California Code of Civil Procedure, the perfecting ofan
9 appeal stays the proceedings below. "Trial courts generally have the inherent power to stay
10 proceedings in the interests of justice and to promote judicial efficiency." Freiberg v. City of
11 Mission Viejo ( 1995) 33 Cal.App.4th 1484, 1489. Trial judges have inherent powers to manage
12 and fashion procedures to control litigation to insure orderly administration of justice. Cottie v.
13 Superior Court (1992) 3 Cal.App.4th 1367, 1376-79. If for any reason, the Court declines to
14 stay this Action, the Court should at least temporarily stay the matter while Defendants file a
15 petition for writ of supersedeas in the Court of Appeal.
16 This Motion is based upon this Notice and motion (and/or by ex parte application sought
17 to advance the hearing of these moving papers and the relief sought), along with the attached
18 Declaration of Michael A.J. Nangano and memorandum of points and authorities, and upon
19 such documentary evidence and oral argument as may be presented at the hearing on this motion
20 and/or any ex parte application filed concurrently.
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22 Respectfully submitted,
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25 Dated: July 19, 2022 By:---------------
26 MICHAEL A.J. NAN GANO, ESQ.
Attorney for Plaintiff
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
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3 DECLARATION OF MICHAEL A.T. NANGANO
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5 I, MICHAEL A.J. NANGANO, declare:
6 I. I am an attorney duly licensed to practice before all the courts of the State of California,
7 and attorney ofrecord for Plaintiff(s) in this case. The facts set forth in this declaration are
8 within my personal knowledge and, if called as a witness, I could and would competently testify
9 thereto.
10 2. Attached are true and correct copies of all the Exhibits identified herein; and, "Exhibit-I"
11 is the June 28, 2022, letter from the Appeals Court requesting the signed appealable order; and
12 "Exhibit-2" a Notice of Ruling" and the Los Angeles Superior Comi's Order signed and fully
13 executed on July 12, 2022 by the The Honorable Maurice Leiter, Department 54, Stanley Mosk
14 Courthouse. Following, the signed Order was filed with the Appeals Court on July 13, 2022;
15 providing the grounds and/or basis for the filing of this motion.
16 3. On or about July 6, 2022 (see "Exhibit-3" the email by attorney, Lindsey Morgan), as such
17 the date of July 12, 2022 was arrived at for the hearing of these moving parties ex paiie
18 application after learning of opposing attorneys unavailability until that date; and, upon learning
19 that the Superior Court was dark and was not hearing ex parte applications on Friday, July 8th
20 and Monday, July 11th of 2022.
21 4. Before seeking this relief by motion, I did reach out to Opposing Counsel and suggest that
22 all parties and their attorneys stipulate to a stay in this matter (along with the stay the Los
23 Angeles Superior Court Action) pending the outcome of the appeal from the Trial Court's ruling
24 on PACIFIC UNION's demurrer, effectively dismissing them from the Los Angeles case.
25 Depending upon the whether the appeal succeeds or is denied, the Defendants in this action if
26 the appeal is denied will need to seek leave of Court to file a cross-complaint. If the appeal is
27 successful that need not happen. Until then the Stay sought should maintain the status quo.
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
5. The proposed stipulation also suggested that there be an agreement to the following
2 exceptions to the stay:
3 "I) allow the Placer County Action Defendants to move forward with the long noticed and
4 awaited depositions in that matter;
5 2) to allow both sides (all parties) to provide notice of and obtain any depositions they
6 seek;" and,
7 3) along with the long standing depositions previously noticed by Defendants in this
8 matter, Defendants would also likely proceed with but not limited to the depositions of
9 Terra Costa! Escrow, Madison Hilclebrancl, Sara R. Kosasky, Samuel H. Kramer, Nick
JO Segal, Gina Kirkpatrick and Jennifer Chrisman.
11 6. This motion is brought seeking and/or based upon this Court's broad cliscretionaiy
12 inherent powers to grant the stay requested, as the stay sought is required to protect the status
13 quo, as well as being in the best interests of justice and to serve judicial efficiency as the
14 Appeals Court's decision will have an effect on substantial questions of merits; and, furthermore,
15 these moving Defendants could suffer irreversible harm / irreparable harm, immediate clanger or
16 other statutory basis for granting ex parte relief.
17 7. Given, the Los Angles Superior Court having finally signed a fully executed and
18 appealable on July 12, 2022; following the timely filed notice of appeal filed by these moving
19 parties in the Los Angeles Action on April 14, 2022 and havingjust received the Appeals Courts
20 request and instruction letter of June 28, 2022 - determination by the Appeals Court is
21 essential to substantial questions on the merits in both cases and lo prevent irreversible harm/
22 irreparable harm, immediate clanger or other disadvantageous effects as to whether these
23 Defendants will be able to still seek they claims against PACIFIC UNION in Los Angeles or
24 alternatively seek leave to file a Cross-Complaint in this matter.
25 II
26 II
27 II
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
2 8. The parties and attorneys, respectfully, in this matter are:
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4 Plaintiff: PACIFIC UNION Atty(s): Shannon B. Jones; and, Lindsey A.
INTERNATIONAL, INC., Morgan
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Defendants: EIUK LUDWICK, an Atty.: Lawrence E. Skidmore; Michael AJ.
7 individual AND Settlor of The Anything Nangano
Trust dated October 12, 2007; THE
8 ANYTHING TRUST DA TED
OCTOBER 12, 2007; PAUL D. BOOTH,
9 in his capacity as Trustee of The Anything
Trust Dated October 12, 2007
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12 I declare under penalty of pe1jury under the laws of the State of California that the
13 foregoing is true and correct. Executed this 19th day of July, 2022, at Pasadena, California.
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17 Dated: July 19, 2022 By:
Decl~a_ra_n~t,~M~IC~H~A~E~L~A~.~J.~N~A~N~G~A~N~O~--
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
MEMORANDUM OF POINTS AND AUTHOIUTIES
2
3 INTRODUCTION
4 These Moving Defendants seek to maintain the status quo. With the appeal pending in
5 the Los Angeles Superior Court, Case No. 19STCV25331 following the hearing on February 17,
6 2022 of PACIFIC UNION lNTERNA TIONAL, INC. 's (alleged successor-in-interest to
7 PARTNERS TRUST REAL ESTATE BROKERAGE & ACQUISITIONS) ("PACIFIC
8 UNION") demurrer, these Moving Defendants timely filed April 14, 2022 notice of appeal, and
9 the fully executed Appealable Court Order obtain on July 12, 2022 the grounds and/or basis for
10 the Stay sought (and/or alternatively for leave to file a cross-complaint) exist. The pending
11 appeal presents essential substantial material issues of merit; i.e. whether these Moving
12 Defendants will be allowed to pursue their claims against PACIFIC UNION in the Los Angeles
13 Action or whether a cross-complaint will need to be filed in this matter. Additionally, these
14 Moving Defendants seek the Stay (and/or alternatively for leave to file a cross-complaint) in the
15 best interests of justice, judicial efficiency and to prevent irreparable / irreversible harm.
16 At the Los Angeles Superior Court hearing of Defendants PACIFIC UNION Demurrer,
17 it was sustained (in part). The Court's ruling instructed PACIFIC UNION to give notice and
18 prepare and submit a [proposed] order - to the best knowledge of these Moving Defendants, to
19 date PACIFIC UNION although they prepared a [proposed] order, never submitted it to the Los
20 Angeles Court.
21 Nonetheless, acting cautiously these Moving Defendants and Plaintiffs in the Los Angeles
22 Action filed the "Notice of Appeal" on April 14, 2022 using the February 17, 2022 "Minute
23 Order" filed by the Court Clerk. On June 28, 2022, the Appeals Court by letter instructed these
24 Moving Defendants to obtain such a signed fully executed Court Order within 15-days or by
25 July 13, 2022.
26 As such, an ex parte application was brought on July 12, 2022 (see Nangano Declaration
27 re scheduling of ex parte) to obtained the necessmy signed appealable Order pursuant to
28 California Code of Civil. Procedure§ 472c (appealable orders following rulings on demurrer),
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
and pursuant lo California. Rules of Court, Rule 8.100 (a) and (g)(l). The Los Angeles Superior
2 Court granted these Moving Defendants' ex pmie application and attached as Exhibit-2 is the
3 appropriate "Notice of Ruling" and July 12, 2022 Executed Appealable Court Order.
4 This appealable Comi Order was filed with the Appeals Court on July 13, 2022, allowing
5 I perfecting the Los Angeles appeal providing the grounds and/or basis for this requested Stay
6 and/or for leave to file a cross-complaint. If the Stay is granted pending the decision of the
7 Appeals Court, the Parties can finish discovery (mostly depositions of parties, witnesses
8 and experts) but then depending on the Appeals Court's ruling it may not be necessary to
9 file a cross-complaint against PACIFI UNION in this matter.
10
11 I. THE STAY REQUESTED SHOULD BE GRANTED EITHER UNDER THE
12 COURT'S BROAD DISCRETIONARY INHERENT POWERS AND/OR UNDER
13 CCP § 916(a).
14
15 Motion for stay in the trial court generally stay all proceedings in the action to which the
16 stay applies, however, here these Moving Defendants respectfully request that all matters
17 regarding discovery still continue to completion. The Moving Defendants anticipate that besides
18 their 6-previously noticed deposition about another 5 or 6 plus the Parties Experts need to be
19 deposed; and propose that such discovery continue.
20 "Trial courts generally have the inherent power to stay proceedings in the interests of
21 justice and to promote judicial efficiency." Freiberg v. City ofA1ission Viejo ( 1995) 33
22 Cal.App.4th 1484, 1489. Trial judges have inherent powers to manage and fashion procedures
23 to control litigation to insure orderly administration of justice. Collie v. Superior Court (1992) 3
24 Cal.App.4th 1367, 1376-79.
25 "Any motion to stay in a pending matter may be brought by any party to the action ... "
26 Marcus v. Superior Court (1977) 75 Cal.App,3d 204,210. The moving party may request a stay
27 by regular noticed motion (California Rules of Court, Rule 3.515(e) or by ex parte application
28 supported by declaration presenting competent testimony based on personal knowledge and a
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
showing of irreparable harm, immediate danger or other statutory basis for granting ex parte
2 relief (Cal/fornia Rules of Court, Rules 3.1202; 3.515(c)).
3 "When an action is brought in a court of this state involving the same parties and the same
4 subject matter as an action is already pending in a court of another jurisdiction, a stay of the
5 California proceedings is not a matter of right but within the sound discretion of the trial court."
6 farmland Irrigation Co. v. Dopp/maier (1957) 48 Cal.2d 208, 215; and, Bains v. Moores (2009)
7 172 Cal.App. 4th 445, 480. California courts have board discretion to stay their own proceedings
8 in favor of a competing filed action involving the same subject matter. Centwy Indemnity Co. v.
9 Bank America (1997) 58 Cal.App,4th 408, 411.
IO In exercising the Court's broad discretion, the Court should consider:
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12 1. The importance of avoiding unseemly conflicts with the courts of other
13 jurisdictions;
14 2. Whether the rights of the parties can best be determined by the court of the other
15 jurisdiction because of the nature of the subject matter, the availability of
16 witnesses, and/or the nature and progression of both proceedings; and,
17 3. The importance of preventing duplicative conflicting litigation.
18 See, Centi/I)' Indemnity Co. v. Bank ofAmerica, supra at 411; and, Thomson v.
19 Continental Ins. Co. (1967) 66 Cal.2d 738; 746-747.
20
21 "Granting a stay in a case where the issues in two actions are substantially identical [cites
22 omitted] is a matter addressed to the sound discretion of the trial court." Thomson v.
23 Continental Ins. Co., supra. And, in Thomson, supra, the California Supreme Court identified
24 several overriding concerns when addressing discretionmy stays is the Court's determination
25 whether the stay will promote the ends of justice, such as "avoiding unseemly conflicts with the
26 comis of other jurisdictions," considering the imminence of trial and/or how both or either
27 proceeding that might materially affected, and/or how any res judicata or collateral estoppel
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
effect that might occur would effect common issues of law and/or fact. Thomson v. Continental
2 Ins. Co., supra at 746-747.
3
4 B. Stay of Civil Actions and Appeals
5 Cal/fornia Code of Civil. Procedure§ 916(a) stays all proceedings in the trial court "upon
6 the judgment or order appealed from or upon the matters embraced therein or affected thereby,
7 including enforcement of the judgment or order, but the trial court may proceed upon any other
8 matter embraced in the action and not affected by the judgment or order." "The purpose of the
9 automactic stay provision of Section 9 I 6, subdivision (a)'is to protect the appellate court's
10 jurisdiction by preserving the status quo until the appeal is decided." Varian A1edica/ Systems,
11 Inc. v. De(fino (2005) 35 Cal.4th 180, 189.
12 Any proceeding "affects the effectiveness of an appeal if the possible outcome on appeal
13 and the actual or possible results of the proceeding are irreconcilable." Varian A1edical Systems,
14 Inc. v. De(fino, supra at 190. Section 916 of the Cal/fornia Code of Civil Procedure states the
15 general rule: "the perfecting of an appeal stays proceedings in the trial court upon the judgment
16 or order appealed from .... " 3
17 Pursuant to Section 916(a) the Courts of delineated two distinct issues:
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19 1) whether the trial must be stayed, automatically, under section 916, subdivision (a), to
20 prevent futility of the appeal, or
21 2) whether the trial should be stayed, in the discretion of the trial or appellate court, to
22 maintain the status quo pending the appeal.
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24 In A1eehan v. Hopps (1955) 45 Cal.2d 213, the California Supreme Court held that an
25 order denying a pretrial motion to disqualify opposing counsel is appealable. The Supreme
26
27 3
Moving Defendants assert that none of the exceptions to the general rule apply. See Ca/ifomia
28 Code o_(Civi/. Procedure§§ 917.1-917.9.
IO
MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
Court stated two grounds for this holding: (1) the trial court's order denying Hopps' motion left
2 nothing further of a judicial nature for a final determination of his rights regarding opposing
3 counsel, the order was final for purposes of appeal." ( Id. at pp. 216-217.); and, (2) Such an
4 order is, in effect, an order refusing to grant an injunction to restrain counsel from participating
5 in the case. (Id. at p. 215.)
6 Generally, several distinct issues determine whether the trial must be stayed,
7 automatically, under Section 916, subdivision (a), Those issues are: to prevent futility of the
8 appeal, or whether the trial should be stayed in the discretion of the trial or appellate comt to
9 maintain the status quo pending the appeal.
10 Although A1eehan, supra holds an order denying disqualification is appealable; 1\1eehan,
11 supra, did not discuss whether the trial is automatically stayed by such an appeal. Vamer,
12 supra, is distinguishable, because it hypothesized a situation where granting relief would be
13 impossible, and because Vamer, supra, did not involve disqualification of counsel. In
14 conclusion, either the finality of the order; the danger of futility of appeal without stay; and/or to
15 maintain the status quo requiring mandatory stay of the civil matter in the Trial Court; at the
16 very least the question whether discovery or trial should be stayed pending an appeal rests in the
17 discretion of the trial and appellate courts.
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19 2. REQUEST FOR LEAVE TO FILE CROSS-COMPLAINT.
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21 A. The Court Should Grant Leave To File The Cross-Complaint Because
22 The Request Defenclants' Makes To File Now Is In Good Faith.
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lfthe pending appeal in Appellate Court Case No. B320896 were to be determined favorably
26 wherein the Los Angeles Superior Court Action the Plaintiff PACIFIC UNION was once again a
Defendant in that case; it is possible that these moving Defendants would not need to filed the proposed
27 Cross-Complainant against Plaintiff PACIFIC UNION in this matter. [Proposed] Cross-Complaint is
28 attached as "Exhibit-4" -without Exhibits which will be attached at time of filing.
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
Under Cal/fornia Code of Civil. Procedure § 426.50, a party may move for leave to file a
2 cross-complaint at any time before trial: The court, after notice to the adverse party, shall grant,
3 upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-
4 complaint, to assert such cause if the party who failed to plead the cause acted in good faith.
5 Leave to file a cross-complaint may also be granted under Cal/fornia Code of Civil.
6 Procedure§ 428.50: "Leave may be granted in the interest of justice at any time during the
7 course of the action." In Silver Organizalions Limiledv. Frank(l990) 217 Cal.App.3d 94, the
8 defendants changed attorneys just before trial. After obtaining a short continuance and
9 doing some discove1y, the new attorney uncovered evidence/ grounds that the attorney believed
10 presented good cause for pursuing and filing of a cross-complaint against the plaintiffs. As
11 such, the Defendant moved for leave to file a cross-complaint under Cal/fornia Code of Civil.
12 Procedure § 426.50 right before the new trial date. The trial court denied the Defendant's
13 motion.
14 The Appellate Court in reversing the trial court's decision, held that, because the
15 Defendant and Defense counsel had acted in good faith (and in the absence of any sufficient
16 substantial showing of bad faith by Defendant), the trial court had improperly denied the motion.
17 The Appeals Court in Silver Organizalions Limitecl, supra at 98-99 held:
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19 "The legislative mandate is clear. A policy of liberal construction of section 426.50 to
20 avoid forfeiture of causes of action is imposed on the trial court. A motion to file a
21 cross-complaint at any time during the course of the action must be granted unless bad
22 faith of the moving party is demonstrated where forfeiture would otherwise result. Factors
23 such as oversight, inadve1ience, neglect, mistake or other cause, are insufficient grounds
24 to deny the motion unless accompanied by bad faith."
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26 These moving Defendants' and purported Cross-Complaints have brought this motion in
27 good faith on the basis of:
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MOTION FOR STAY PENDJNG APPEAL 1N APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
I. The executed/ signed Court Order of July 12, 2022 (see Exhibit-2) in the Los Angeles
2 Superior Court, Erik Ludwick et Al V. Partners Trust; Madison Hildebrand, et al Case
3 No. l 9STCV2533 l; wherein the Court having granted (in part) the Defendants' demurrer
4 in that ease effectively dismissed the Plaintiff PACIFIC UNION in this action ruling that
5 whatever causes of actions alleged against PACIFIC UNION should be pursued in this
6 matter.
7 2. The Defendants in this matter, generally the Plaintiffs in the LASC Aetion have filed a
8 pending appeal!. (Appellate Court Case No. B320896.)
9
IO The timing of this motion is nowhere near as critical as that in Silver Organizations
11 Limilecl, supra, wherein the motion for leave to file a cross-complaint was filed on March 29 th
12 for an April 5th trial date. Here, Defendants perfected there pending appeal by obtaining a signed
13 court order on July 12, 2022 and now bring this request. And, these moving Defendants offer
14 and respectfully point out their request that this matter be stayed pending the outcome of the
15 currently filed appeal addressing Plaintiff PACIFIC UNION's participation as a party in that Los
16 Angeles Action.
17 Furthermore, The Appeals Court in Silver Organizations Limited, supra, at 97-99
18 rejected the trial court view that it may "exercise discretion" in the denial of a motion to file a
19 compulsory cross-complaint and holding that the "legislative mandate is clear. A policy of
20 liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the
21 trial court." Factors such as oversight, inadvertence, neglect, mistake or other cause, are
22 insufficient grounds to deny the motion unless accompanied by bad faith. Silver Organizations
23 Limitecl, supra, at 99. Substantial evidence must support any trial court determination that a
24 party has moved to file a compulsory cross-complaint in bad faith. Id.
25 As this case is still in its discovery stage with most of the depositions of the Plaintiffs
26 brokers, real estate agents, personal most knowledgeable and custodian of records still scheduled
27 to occur - there will be no prejudice to Plaintiffs by the granting of this request for leave.
28 Additionally, Defendants seek their request for stay pending the outcome of the appeal. Attached
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MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEA VE TO FILE A CROSS-COMPLAINT
to this motion as "Exhibit-4" is the proposed cross-complaint (without exhibits which will be
2 attached at time of filing), which states defendants' claims against plaintiffs. These claims are
3 not frivolous or brought in bad faith and arise from the same dispute over the money still held in
4 escrow for the sale of the Toyopa Property.
5
6 CONCLUSION
7 It is respectfully requested that the Court grant the Defendants and moving parties'
8 requested relief for a stay and/or for leave to file a cross-complaint; based upon all the facts,
9 arguments presented, reasoning and authority stated herein, as well as, if necessary any oral
10 argument presented.
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12 Respectfully submitted,
13
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15 Dated: July 19, 2022 By: _ _ _ _ _ _ _ _ _ _ _ _ _ __
16 MICHAEL A.J. NANGANO, ESQ.
Attorney for Plaintiff
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MOTION FOR STAY PENDJNG APPEAL IN APPELLATE COURT CASE NO. B320896;
AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT
EXHIBIT "l"
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DANIEL P. POTTER, CLERK
June 28, 2022
Michael Nangano
Nangano & Associates
133 North Altadena Drive
Suite 403
Pasadena, CA 91107
ERIK LUDWICK, Individually and as Trustee, etc.,
Plaintiff and Appellant,
v.
PACIFIC UNION INTERNATIONAL, INC.,
Defendant and Respondent.
B320896
Los Angeles County Super. Ct. No. 19STCV25331
Dear Counsel:
The civil case information statement filed on June 27, 2022 for the appeal filed on
April 14, 2022 is deficient as it does not have attached to it a copy of the signed judgment.
(Cal. Rules of Court, rule 8.100(g)(1).)
You must provide the Court with a conformed copy of the signed judgment, with a
proof of service attached (Cal. Rules of Court, rules 8.25(a)(1)-(2)), within 15 days of the
date of this notice.
Very truly yours,
Daniel P. Potter, Clerk
by:___________________
Deputy Clerk
cc: All Counsel
File
EXHIBIT "2"
MICHAEL A.J. NANGANO (SBN 133999)
MICHAEL AJ NANGANO, A LAW CORPORATION
2 133 No. Altadena Drive, Suite 403
Pasadena, CA 91107
3 Phone: (626) 796-9998
Fax: (626) 796-9992
4
5 FRANKLIN T. BIGELOW, JR (SBN 81606)
BIGELOW & ASSOCIATES
6 133 No. Altadena Drive, Suite 403
Pasadena, CA 91107
7 Phone: (626) 796-9998
8 Attorneys for PIAINTIFFS: ERIK LUDWICK,
individually AND as Trustee and Beneficiaty of
9 "The Anything Trust" dated October 12, 2007
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF LOS ANGELES
12
)
13 ERIK LUDWICK, individually AND as ) LASC Case No. 19STCV25331
~
Trustee and Beneficiaty of "the Anything
14 Trust" dated October 12, 2007; (Assigned for All Purposes to The Honorable
) Maurice Leiter, Department 54)
15 Plaintiff,
vs.
16 ~ NOTICE OF RULING
PARTNERS TRUST REAL ESTATE )
17 BROKERAGE & ACQUISITIONS; an )
unincorporated California Business Entity; ))
18 PACIFIC UNION INTERNATIONAL,
INC., a California Corporation; )
19 MADISON HILDEBRAND, individually )
& dba "THE MALIBU LIFE TEAM"; )
20 MALIBU LIFE, INC., a California ))
Corporation; NICK R. SEGAL, an
21 individual; SAMUEL H. KRAEMER, an )
individual; GINA KIRKPATRICK, an ) Complaint Filed: July 24, 2019
22 individual; JENNIFER CHRISMAN, an )
individual; and Does I through 50, inclusive; ~
23
Defendants. )
~
24
Los Angeles County Superior Court, Case
25 No.: S-CV 0042080 / 19STCV25331 )
26 ----------~
27
28
NOTICE OF RULING
I TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that Plaintiffs Ex Parte Application Seeking Appellate
3 Requested Signed Court Order Sustaining Defendants Demurrer of February 17, 2022 was
4 heard at 8:30 a.m. on July 12, 2022, in Department 54 of the above court; the Honorable Maurice
5 Leiter, presiding. Michael AJ Nangano appeared remotely for Plaintiff.
6 The Court granted Plaintiffs request to sign the Order and stated that the wet signature copy
7 would be available to Plaintiff by the afternoon of July 12, 2022 in Department 54.
8 Plaintiff was ordered to give notice.
9
10 Dated: July 12, 2022
11
12
13 MICHAEL A.J. NANGANO, A LAW CORPORATION
14
15
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20
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25
26
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2
NOTICE OF RULING
IFDllED
I M[CHAEL A.J. NANGANO (SBN 133999) Superior Court of California
MICHAEL AJ NAN GANO, A LAW CORPORATION County of Los Angeles
::ii!: 2 133 No. Altadena Drive, Suite 403
<(( Pasadena, CA 91107 JUL 12 2022
a 3 Phone: (626) 796-9998
N
,- Fax: (626) 796-9992
,-
4
N
N
a
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N
N
,-
~
5
6
FRANKLIN T. BIGELOW, JR (SBN 81606)
BIGELOW & ASSOCIATES
133 No. Altadena Dl'ive, Suite 403
Pasadena, CA 91107
a
"<:J 7 Phone: (626) 796-9998
Q)
:,,.
'iii 8 Attorneys fo1· PJAINTIFFS: ERIK LUDWICK,
'-'
Q)
individually AND as Trustee and Beneficiary of
0:: 9 "The Anything T!'ust" dated October 12, 2007
:,,..
ro 10
'-' SUPERIOR COURT OF THE STATE OF CALIFORNIA
·c
.....'-' 11
0
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IN AND FOR THE COUNTY OF LOS ANGELES
Q)
12
w
13 ERIK LUDWICK, individually AND as LASC Case No, 19STCV25331
Trustee and Beneficia!'y of "the Anything
14 Trnst" dated October 12, 2007; (Assigned for All Purposes to The Honorable
Hon. Maurice Leiter, Department 54)
15 Plaintiff,
vs. {.P.R0P6SEffl ORDER
16 SUSTAINING DEFENDANTS'
PARTNERS TRUST REAL ESTATE DEMURRER TO PLAINTIFF'S THIRD
17 BROKERAGE & ACQUISITIONS; an AMENDED COMPLAINT WITHOUT
unincorporated Californta Business Entity; LEAVE TO AMEND; AND, DENYING
18 PAcnr1c UNION INTERNATIONAL, MOTION TO STRIKE
INC., a Califomia Corporation;
19 MADISON HILDEBRAND, rndividually
& dba "THE MALIBU LIFE TEAM";
20 MALIBU LIFE, INC., a California
Corporation; NICK R. SEGAL, an
21 individual; SAMUEL H, KRAEMER, an
individual; GINA KIRKPATRICK, an
l
22 individual; JENNIFER CHRISMAN an
individual; and Does I thrnugh 50, inclusive;
23
24 _ _ _ _ _ _ _ _ _ _D_e_fe_n_d_a1-1t-s._ Comp1,;,1 Filed, My 24, 2019
25
26
27
28
J!.i:opo~od 0l'dc1·
0
~Q81llBt ORDER
2
3 On Febrnary 17, 2022, nt 9:00 11.m., in Department 54 of this Comt, the Demtu-rer and
4 Motion to Sll'lke flied by Defendants PACIFIC UNION rNTERNATIONAL, INC., individually and
5 as successot·•in-intcresl to PARTNERS TRUST REAL ESTATE BROKERAGE &
6 ACQUISITIONS, MADISON HILDEBRAND, indlvldually and dba THE MALIBU LIFE TEAM,
7 MALIBU LIFE, INC., NICK R. SEGAL, SAMUEL H. KRAEMER, GINA KIRKPATRICK, and
8 JENNIFER CHRISMAN (collectively, "Defendants") came 011 fo1· hearing,
9 The Court, having read and considered the pnpet·s flied and mgumenls contained thernin, the
IO ornl m·g111ne11t of counsel, all matt01·s subject to judicial notice, und all the pleadings and 1·ecords 011
11 file herein, and good cause appearing, hereby adopted its tentative n11ing and the Collrl Cleric filed
12 the CoUl't's Minute Order (al!ached as "Exhlbit-B") as the ot·dcrofthe Cout't, and as such orders.as
13 follows:
14 1. DEFENDANTS' DEM,URRER AS TO PACIFIC UNION IS SUSTAINED
15 WITHOUT LEAVE TO AMEND;
16 2, DEFENDANTS' DEMURRER TO THE SEVENTH CAUSE OF ACTION IS
17 SUSTAINED WITHOUT LEAVE TO AMEND;
18 3, DEFENDANTS' MOTION TO STRIKE rs DENIED;
19 4. DEFENDANTS TO FILE AND SERVE ANSWERS TO THE THIRD AMENDED
20 COMPLAINT WITHIN 15 DAYS OF NOTICE OF RULING;
21 5, DEFENDANTS TO NOTICE.
22
23 The Colll't considers the moving pnpers, opposition and reply.
24
25 DACKGROUND
26 . On July 19, 2019, Plai11tlffErlkL11dwiok, lndividually~nd as Trustee and Beneficiatyof"the
27 Anything Trust" dated October 12, 2007, sued Defendants Pal'lt1m·s Trust Real Estate Brokernge&
28
4
N6l'IOB .81' 1 IIIP t•ttOP8SE!lj ORDER SUSTAINING DEFENDANTS' DEMURRER 'l'O
PLAINTIFF'S THIRD AMENDED COMPLAINT WITHOUT LEAVE TO AM1.i:ND1 AND,
DllNYlNG MOTION TO S'l'Rllm
Acquisitions, Paci/lo Union lntet'llaliounl, lno,, Madison Hlldebrnnd, Mallbu Life, lno., Nick Segui,
2 San111el Krnemer, Glna Kirkpatrick, and Jennlfel' Ch1•isma11, The operative Second Amended
3 Complaint ("SAC") alleges onuses ofnotion for (I) breach of Civil Code§ 2079, I6; (2) breach of'
4 fiduciary duty; (3) fraud and deceit; (4) intentional lntel'feronce with prospective contractual
5 relationship and/or economic adva11tage; (5) negligent interference with prospective contrnclual
6 relationship and/or economic advantage; (6) professionol negligence; (7) breach of contract; (8)
7 broach of Civil Code § l 7200; (9) declm·atory relief as to illegality of conlrnct; and ( I0) decla,·atmy
8 relief as to commission owed,
9 This action al'ises out of the sale of real property located at 200 Topoya Drive, Pacific
IO Pnllsacles, CA 90272, Plaintiff, the seller, alleges that Defendants, Plaintiff's brokers, impropel'ly
lI acted as dual agents of Plaintiff and the buye1· to obtain a higher oommisslon.
12
13 REQUESTS J!'OR JUDlClAL NO'J'lCE
14 Defendants' requests fo1· judicial notice of exhibits A, B, C, and E at·e GRANTED as to the
15 existence of documents, but not as to the trntltofthe matters asset-ted therein, (Evid, Code § 452(d);
16 Herrnrn v, Deutsche Bank Natlo11al Tt·ust Co, (201 I) 196 Cal.App.4th I 366, 1375.), Defendants'
17 request for judicial notice of exhibit D Is DENIED as a matter not subject to Judicial notice,
18 ANALYSIS
19 A demm'l'e1· to a complnint may be taken to the whole complaint or to any of the causes of
20 action in it. (CCP § 430.S0(a).) A demw·1·e1· challenges only the legal sufficiency of the complaint,
21 not the trnth of Its factual allegations 01· the plnlntifPs ability to pt·ovc those allegations, (Picton v,
22 Anderson Union High Sch, Dist. (1996) 50 Cnl, App. 4th 726, 732,) The comt must treat as 1rne tho
23 complaint's matel'inl factual allegations, but not contentions, deductions or conclusions of fact or
24 law, (Id. at 732-33.) Tile complaint is to be oonstrned liberally to deterniine whethet· a cause of
25 action has been stated. (Id. nt 733,)
26 II
27 //
28
5
,~6TICE 6FhN9 ll'IU~P0B!i11l[ onn1msUSTAINING l>El'ENDANTS' DEMUnREll TO
l'LAIN'fll!F'S THlnD AMJi;NDED COMPLAINT WITHOUT LJi;AVE TO AMEND; AND,
DENYING MOTION TO snmm
A, 1'.!.111 'l'AC ns to Dofendnnt Pnclflc :Union
2 Defendnnts dell:l\11' to tf1e TAC as lo Defondanl Pacific Union on the gwunds that nny causes
3 ofaotio11 against Pacific Union sho11ld lrnvebeen bl'Oughtas a compulsol'ycrosscomplalnlin Pacific
4 Union's action ill Pl11ce1· County under CCP § 426.30. Defe11dants assei't that the claims n1·e barred.
5 The Court of Appeal hns addl'essed CCP § 426.30 as follows:
6 Section 426.30, s11bdivlsio11 (n), provides thnt "lfa pal'ty against whom u complninlhns been
7 filed and served fails to allege inn cross-complnlnt nny 1·eluted cnuse of action which (at the
8 time of serving his answer to the complaint) he lrns agninst the plaintiff, such pm'ly may not
9 the1·eafter in any other action nssert agai11st the plaintiff the 1·elatcd ontrne of action not
10 pleaded." As used in the compulsory cwss"complai11t statute, the term "c01nplaint" Includes
11 both a complaint and cross-complaint(§ 426, 10, subd, (a)), and thetenn "plaintiff" Includes
12 both a plai11liff and cross-complainant(§ 426.10, snbd. {b)). And the phrase "related cause
13 of action" In section •126.30 is defined as "a cuuse of notion which al'ises out of the same
14 transaction, occUt'l'cnce, or se1·ies oftrnnsactlons or occurrences as the en use of action which
15 the plaintiff alleges in his complaint." (§ 426,IO, subd. (c),) Because of the libernl
16 construction given to the statute to nccomplish its pmvose of avoiding a multiplicity 'or
J7 actions, "trnnsaction" is constrned broadly; it is "not confined to a single, isolated act 01·
18 occurl'ence ... but may einbmce a series of acts 01· ooomTences loglcnlly intel'relnted
19 [cltntio11s]." {Saunders, supra, 231 Cal.App,2d at p. 336, 41 Cnl.Rpll'. 703; see also Cmi'ie
20 Medionl, m1pra, 136 Cal.App.3d at p. 777, 186 Cal.Rptl-. 543,)
21
22 (Align Technology, !no, v. Tran (2009) 179 Cal.App.ilth 949, 959-60.)
23
24 Defendants have provided Pacific Union's :Pincer County complaint and Plaintiff's answer
25 to the complaint. The Place!' County complaint alleges that Paoifio Union is entitled to the
26 commission h1 esc1•ow res\\lting from the sale of the Toyopn propel'ty. (]UN Exh. A,) This action
27
28
6
H6 uett 6fl /illll lPHOPOSl391 ORDER SUSTAINING DR!IRNDANTS' DJi:MU!lRRll TO
PLAINTllll/1S THll{D AMRNDRD COMPLAINl' Wl'fllOUl' LEAYR TO AMEND1 AND,
llENVING MOTION TO STlt!l(E
and the Place1· County action arise out of the "same trnnsaotion, oocmTence, ornerles of trnnsactions
2 or OCC\1r1·enccs,"
3 Plaintiff argues thnt this action involves other defendm1ts and onuses of action and that
4 Poc111c Unlon has not p1·ovcd it is successoJ• in interest to J'al'tncrs Trust in the Placer County action,
5 These arguments me t1npem1asive. Any claims rogai·ding the commission of the Toyopa property
6 should have been brm1ght in a c1·oss"complalnt in tho Pincer County Action.
7
8 Defe11dants' Demturnr as to TAC against Defendant Pacific Union is SUSTAINED without
9 leave to amend,
10
11 B, Seventh Cause of Action fo1• J31•cach of Cout1'11ct
12 To p1·evail on a cause of action for breach of contrnct, Plaintiffs must establish:
I3 (I) the existence of contract between Plaintiffs a11d Defendants; (2) Plaintiffs' porfonnance 01·
14 excuse for nonperfo1mance; (3) the Defondm1ts' breach; and (4) any resulting damages. (Careau
15 & Co, v. Sccul'ity Pacific Business Credit, Inc, (1990) 222 Cal.App,3d 1371, 1388.) Under
16 California law, only a sig11ato1·y lo a contrnct may be liable for any breach of contract. (Clemens
17 v. American Warmnty Corp, (1987) 193 Cal.App.3cl 444, 452,)
18 The seventh cause· of notion for breach of contract is asserted against all Defendants;
19 Plaintiff alleges that all Defendants are parties to the contract. But the alleged breach of conh·act
20 relates to the Rgl'eement between Plaintiff and Defendant Partners Trnst. (TAC, Elxh. A.) As
21 discussed, the breach of contract claim against Pacific Union, the successor in interest to Pal'tners
22 Trust, should have been asserted as a cross"complaint in Pincer County. (CCP § 426,30(a)), Plaintiff
23 has failed to set forth facts eswbllshlng the basis of liability for the 11on-slg1rnto1·y defendants.
24
25 Defendants' demm1·e1· to the seventh cntrne of notion is SUSTAINED without leave to
26 amend,
27
28
7
'1>10'FIGl'i 9FA~l9 jPPOPOIUW) ORDER SUSTAINING DEFENDANTS' l>EMURRER TO
PLAINTIFF'S THIRD AMENl>EI> COMPLAINT Wl'l'HOU'l' LEAVE TO AMEND; AND,
DENYING MOTION TO S'l'Rll(E
C, Mgti_oll to Sh'ilrn
2 Any porty, within the time allowed lo respond to a plending, may sc1·vc n11d file a notice of
3 motion to strike the whole or any purl thereof. (Code of Civ, Proc.,§ 435, subcl. (b)(l ); Cal. Rules
4 of Court, rule 3, 1322, subd, (b),) Thecornt lllay, upon n motion Ol' ntnnytillle in its discretion and
5 upon te•·ms it deems p1•oper: (J) stl'ike out auy il'rclevnnt, false, Ol' improper matter Inserted in any
6 pleading; or (2) strike out all 01· any pm't of any plendl11g not dmwn or filed in confol'll1ity with the
7 laws of Califo1'11io, a COUL't mie, or an order of the court. (Code Civ, Proc.,§ 436, subcl, (u)•(b);
8 Stafford v. Shultz (1954) 42 Cnl.2d 767, 782,)
9 The motion os to Pacific Union is moot. The Court declines to otherwise stl'ike
10 Plaintiff's claim fo1· attomey's fees ns the notion may
Preview
1 MICHAEL AJ NAN GANO (SBN 133999) MICHAEL AJ NAN GANO, A LAW CORPORATION 2 133 No. Altadena Drive, Suite 403 Pasadena, CA 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 Attorneys for Defendant(s) 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF PLACER 11 12 PACIFIC UNION INTERNATIONAL, ) Case No. S-CV 0042080 INC., ) 13 ) NOTICE OF MOTION AND MOTION Plaintiff, FOR STAY PENDING APPEAL IN 14 )) APPELLATE COURT CASE NO. vs. ) 8320896; AND/OR, 15 ERIK LUDWICK, an individual AND FOR LEAVE TO FILE A CROSS 16 Settlor of The Anything Trust dated October ) COMPLAINT 12, 2007; THE ANYTHING TRUST ) 17 DATED OCTOBER 12, 2007; PAUL D. ) (Stipulation To Stay Offered to Plaintiff BOOTH, in his capacity as Trustee of The ) and Refused) 18 Anything Trust Dated October 12, 2007; and ) Does I through 50, inclusive, ) 19 Hearing Date: August 4, 2022 Time: 8:30am 20 Defendants. ) Dept: 3 ) 21 Trial: August 8, 2022 --------------- 22 23 24 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 25 26 PLEASE TAKE NOTICE that Defendants (ERIK LUDWICK, an individual AND 27 Settlor of The Anything Trust dated October 12, 2007; THE ANYTHING TRUST DATED 28 1 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. 8320896; AND/OR, FOR LEA VE TO FILE A CROSS-COMPLAINT I OCTOBER 12, 2007; PAUL D. BOOTH, in his capacity as Trustee of The Anything Trust 2 (Dated October 12, 2007) hereby seek to have this matter stayed pending the Appeal filed by 3 Defendants in Appellate Court Case No. 8320896; 1 ancl, 4 That on August 4, 2022, at 8:30 a.m. or as soon thereafter as the matter may be heard in 5 Department 3 of the above-entitled Comt located at 101 Maple Street, Auburn, California 6 95603; wherein Plaintiff ERIK LUDWICK, individually and as both Trustee and Beneficiary 7 of The Anything Trust dated October 12, 2007 (hereinafter "LUDWICK" and/or "the 8 PLAINTIFF") will and hereby does move this Court for an order staying this Court Action due 9 to the pending Appellate Court Case No. 8320896 2; 10 1. Wherein Staying this Action wilJ maintain the status quo until the Appeals Court 11 determines whether it upholds or overtums the Los Angeles Superior Court sustaining of 12 PACIFIC UNION INTERNATIONAL, INC.,'s demurrer dismissing them as a party 13 along with the Los Angeles Superior Court's instructiing that the Los Angeles Plaintiffs 14 (the Defendants herein) must seek their claims against PACIFIC UNION in this action 15 by cross-complaint. 16 2. The appeal will address and determine whether the Los Angeles Superior Court 1s rulings 17 will be upheld or overturned, and which will; 18 3. Effect whether these moving Defendants will be able to proceed against PACIFIC 19 UNION in the Los Angeles Superior Court or seek leave to file and file a Cross 20 Complaint in this Placer County Action. 21 22 23 1 The Appeals Court Case No. was assigned and received on June 28, 2022 (See Exhibit-I). 24 2 A timely notice of appeal was filed on April 14, 2022 in the Los Angeles Superior Comt, Case No. l 9STCV2533 l by by the Defendants herein, who are Plaintiffs in other action. The appeal is being 25 taken from the Superior Court's sustaining of PACIFIC UNION's demurrer, effectively dismissing 26 PACIFIC UNION from the Los Angeles Action. On June 28, 2022, the Appeals Court requested a specific signed Court Order to move forward / perfect the appeal. On July 12, 2022, an ex parte hearing was held 27 and granted, with the Superior Comt signing the Order and that Order was filed with the Appeals Court on July 12, 2022 - supporting the grounds for the filing of this motion and/or any subsequent related ex 28 parte. MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896� AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT 1 This motion is made on the grounds that it is within this Court's broad discretionmy 2 inherent powers to grant the stay requested, and/or the stay sought is required to protect the 3 status quo, as well as being in the best interests of justice and to serve judicial efficiency as the 4 Appeals Court's decision will have an effect on substantial questions of merits; and, furthermore, 5 these moving Defendants could suffer irreversible harm/ irreparable harm, immediate danger or 6 other statutory basis for granting ex parte relief(Ca//fomia Rules of Court, Rule 3.1202; 7 California Code of Civil. Procedure§ 916(a); and,.) 8 Under Section 916(a) of the California Code of Civil Procedure, the perfecting ofan 9 appeal stays the proceedings below. "Trial courts generally have the inherent power to stay 10 proceedings in the interests of justice and to promote judicial efficiency." Freiberg v. City of 11 Mission Viejo ( 1995) 33 Cal.App.4th 1484, 1489. Trial judges have inherent powers to manage 12 and fashion procedures to control litigation to insure orderly administration of justice. Cottie v. 13 Superior Court (1992) 3 Cal.App.4th 1367, 1376-79. If for any reason, the Court declines to 14 stay this Action, the Court should at least temporarily stay the matter while Defendants file a 15 petition for writ of supersedeas in the Court of Appeal. 16 This Motion is based upon this Notice and motion (and/or by ex parte application sought 17 to advance the hearing of these moving papers and the relief sought), along with the attached 18 Declaration of Michael A.J. Nangano and memorandum of points and authorities, and upon 19 such documentary evidence and oral argument as may be presented at the hearing on this motion 20 and/or any ex parte application filed concurrently. 21 22 Respectfully submitted, 23 24 25 Dated: July 19, 2022 By:--------------- 26 MICHAEL A.J. NAN GANO, ESQ. Attorney for Plaintiff 27 28 3 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT 2 3 DECLARATION OF MICHAEL A.T. NANGANO 4 5 I, MICHAEL A.J. NANGANO, declare: 6 I. I am an attorney duly licensed to practice before all the courts of the State of California, 7 and attorney ofrecord for Plaintiff(s) in this case. The facts set forth in this declaration are 8 within my personal knowledge and, if called as a witness, I could and would competently testify 9 thereto. 10 2. Attached are true and correct copies of all the Exhibits identified herein; and, "Exhibit-I" 11 is the June 28, 2022, letter from the Appeals Court requesting the signed appealable order; and 12 "Exhibit-2" a Notice of Ruling" and the Los Angeles Superior Comi's Order signed and fully 13 executed on July 12, 2022 by the The Honorable Maurice Leiter, Department 54, Stanley Mosk 14 Courthouse. Following, the signed Order was filed with the Appeals Court on July 13, 2022; 15 providing the grounds and/or basis for the filing of this motion. 16 3. On or about July 6, 2022 (see "Exhibit-3" the email by attorney, Lindsey Morgan), as such 17 the date of July 12, 2022 was arrived at for the hearing of these moving parties ex paiie 18 application after learning of opposing attorneys unavailability until that date; and, upon learning 19 that the Superior Court was dark and was not hearing ex parte applications on Friday, July 8th 20 and Monday, July 11th of 2022. 21 4. Before seeking this relief by motion, I did reach out to Opposing Counsel and suggest that 22 all parties and their attorneys stipulate to a stay in this matter (along with the stay the Los 23 Angeles Superior Court Action) pending the outcome of the appeal from the Trial Court's ruling 24 on PACIFIC UNION's demurrer, effectively dismissing them from the Los Angeles case. 25 Depending upon the whether the appeal succeeds or is denied, the Defendants in this action if 26 the appeal is denied will need to seek leave of Court to file a cross-complaint. If the appeal is 27 successful that need not happen. Until then the Stay sought should maintain the status quo. 28 4 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT 5. The proposed stipulation also suggested that there be an agreement to the following 2 exceptions to the stay: 3 "I) allow the Placer County Action Defendants to move forward with the long noticed and 4 awaited depositions in that matter; 5 2) to allow both sides (all parties) to provide notice of and obtain any depositions they 6 seek;" and, 7 3) along with the long standing depositions previously noticed by Defendants in this 8 matter, Defendants would also likely proceed with but not limited to the depositions of 9 Terra Costa! Escrow, Madison Hilclebrancl, Sara R. Kosasky, Samuel H. Kramer, Nick JO Segal, Gina Kirkpatrick and Jennifer Chrisman. 11 6. This motion is brought seeking and/or based upon this Court's broad cliscretionaiy 12 inherent powers to grant the stay requested, as the stay sought is required to protect the status 13 quo, as well as being in the best interests of justice and to serve judicial efficiency as the 14 Appeals Court's decision will have an effect on substantial questions of merits; and, furthermore, 15 these moving Defendants could suffer irreversible harm / irreparable harm, immediate clanger or 16 other statutory basis for granting ex parte relief. 17 7. Given, the Los Angles Superior Court having finally signed a fully executed and 18 appealable on July 12, 2022; following the timely filed notice of appeal filed by these moving 19 parties in the Los Angeles Action on April 14, 2022 and havingjust received the Appeals Courts 20 request and instruction letter of June 28, 2022 - determination by the Appeals Court is 21 essential to substantial questions on the merits in both cases and lo prevent irreversible harm/ 22 irreparable harm, immediate clanger or other disadvantageous effects as to whether these 23 Defendants will be able to still seek they claims against PACIFIC UNION in Los Angeles or 24 alternatively seek leave to file a Cross-Complaint in this matter. 25 II 26 II 27 II 28 // 5 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT 2 8. The parties and attorneys, respectfully, in this matter are: 3 4 Plaintiff: PACIFIC UNION Atty(s): Shannon B. Jones; and, Lindsey A. INTERNATIONAL, INC., Morgan 5 6 Defendants: EIUK LUDWICK, an Atty.: Lawrence E. Skidmore; Michael AJ. 7 individual AND Settlor of The Anything Nangano Trust dated October 12, 2007; THE 8 ANYTHING TRUST DA TED OCTOBER 12, 2007; PAUL D. BOOTH, 9 in his capacity as Trustee of The Anything Trust Dated October 12, 2007 10 11 12 I declare under penalty of pe1jury under the laws of the State of California that the 13 foregoing is true and correct. Executed this 19th day of July, 2022, at Pasadena, California. 14 15 16 17 Dated: July 19, 2022 By: Decl~a_ra_n~t,~M~IC~H~A~E~L~A~.~J.~N~A~N~G~A~N~O~-- 18 19 20 21 22 23 24 25 26 27 28 6 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT MEMORANDUM OF POINTS AND AUTHOIUTIES 2 3 INTRODUCTION 4 These Moving Defendants seek to maintain the status quo. With the appeal pending in 5 the Los Angeles Superior Court, Case No. 19STCV25331 following the hearing on February 17, 6 2022 of PACIFIC UNION lNTERNA TIONAL, INC. 's (alleged successor-in-interest to 7 PARTNERS TRUST REAL ESTATE BROKERAGE & ACQUISITIONS) ("PACIFIC 8 UNION") demurrer, these Moving Defendants timely filed April 14, 2022 notice of appeal, and 9 the fully executed Appealable Court Order obtain on July 12, 2022 the grounds and/or basis for 10 the Stay sought (and/or alternatively for leave to file a cross-complaint) exist. The pending 11 appeal presents essential substantial material issues of merit; i.e. whether these Moving 12 Defendants will be allowed to pursue their claims against PACIFIC UNION in the Los Angeles 13 Action or whether a cross-complaint will need to be filed in this matter. Additionally, these 14 Moving Defendants seek the Stay (and/or alternatively for leave to file a cross-complaint) in the 15 best interests of justice, judicial efficiency and to prevent irreparable / irreversible harm. 16 At the Los Angeles Superior Court hearing of Defendants PACIFIC UNION Demurrer, 17 it was sustained (in part). The Court's ruling instructed PACIFIC UNION to give notice and 18 prepare and submit a [proposed] order - to the best knowledge of these Moving Defendants, to 19 date PACIFIC UNION although they prepared a [proposed] order, never submitted it to the Los 20 Angeles Court. 21 Nonetheless, acting cautiously these Moving Defendants and Plaintiffs in the Los Angeles 22 Action filed the "Notice of Appeal" on April 14, 2022 using the February 17, 2022 "Minute 23 Order" filed by the Court Clerk. On June 28, 2022, the Appeals Court by letter instructed these 24 Moving Defendants to obtain such a signed fully executed Court Order within 15-days or by 25 July 13, 2022. 26 As such, an ex parte application was brought on July 12, 2022 (see Nangano Declaration 27 re scheduling of ex parte) to obtained the necessmy signed appealable Order pursuant to 28 California Code of Civil. Procedure§ 472c (appealable orders following rulings on demurrer), 7 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT and pursuant lo California. Rules of Court, Rule 8.100 (a) and (g)(l). The Los Angeles Superior 2 Court granted these Moving Defendants' ex pmie application and attached as Exhibit-2 is the 3 appropriate "Notice of Ruling" and July 12, 2022 Executed Appealable Court Order. 4 This appealable Comi Order was filed with the Appeals Court on July 13, 2022, allowing 5 I perfecting the Los Angeles appeal providing the grounds and/or basis for this requested Stay 6 and/or for leave to file a cross-complaint. If the Stay is granted pending the decision of the 7 Appeals Court, the Parties can finish discovery (mostly depositions of parties, witnesses 8 and experts) but then depending on the Appeals Court's ruling it may not be necessary to 9 file a cross-complaint against PACIFI UNION in this matter. 10 11 I. THE STAY REQUESTED SHOULD BE GRANTED EITHER UNDER THE 12 COURT'S BROAD DISCRETIONARY INHERENT POWERS AND/OR UNDER 13 CCP § 916(a). 14 15 Motion for stay in the trial court generally stay all proceedings in the action to which the 16 stay applies, however, here these Moving Defendants respectfully request that all matters 17 regarding discovery still continue to completion. The Moving Defendants anticipate that besides 18 their 6-previously noticed deposition about another 5 or 6 plus the Parties Experts need to be 19 deposed; and propose that such discovery continue. 20 "Trial courts generally have the inherent power to stay proceedings in the interests of 21 justice and to promote judicial efficiency." Freiberg v. City ofA1ission Viejo ( 1995) 33 22 Cal.App.4th 1484, 1489. Trial judges have inherent powers to manage and fashion procedures 23 to control litigation to insure orderly administration of justice. Collie v. Superior Court (1992) 3 24 Cal.App.4th 1367, 1376-79. 25 "Any motion to stay in a pending matter may be brought by any party to the action ... " 26 Marcus v. Superior Court (1977) 75 Cal.App,3d 204,210. The moving party may request a stay 27 by regular noticed motion (California Rules of Court, Rule 3.515(e) or by ex parte application 28 supported by declaration presenting competent testimony based on personal knowledge and a 8 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT showing of irreparable harm, immediate danger or other statutory basis for granting ex parte 2 relief (Cal/fornia Rules of Court, Rules 3.1202; 3.515(c)). 3 "When an action is brought in a court of this state involving the same parties and the same 4 subject matter as an action is already pending in a court of another jurisdiction, a stay of the 5 California proceedings is not a matter of right but within the sound discretion of the trial court." 6 farmland Irrigation Co. v. Dopp/maier (1957) 48 Cal.2d 208, 215; and, Bains v. Moores (2009) 7 172 Cal.App. 4th 445, 480. California courts have board discretion to stay their own proceedings 8 in favor of a competing filed action involving the same subject matter. Centwy Indemnity Co. v. 9 Bank America (1997) 58 Cal.App,4th 408, 411. IO In exercising the Court's broad discretion, the Court should consider: 11 12 1. The importance of avoiding unseemly conflicts with the courts of other 13 jurisdictions; 14 2. Whether the rights of the parties can best be determined by the court of the other 15 jurisdiction because of the nature of the subject matter, the availability of 16 witnesses, and/or the nature and progression of both proceedings; and, 17 3. The importance of preventing duplicative conflicting litigation. 18 See, Centi/I)' Indemnity Co. v. Bank ofAmerica, supra at 411; and, Thomson v. 19 Continental Ins. Co. (1967) 66 Cal.2d 738; 746-747. 20 21 "Granting a stay in a case where the issues in two actions are substantially identical [cites 22 omitted] is a matter addressed to the sound discretion of the trial court." Thomson v. 23 Continental Ins. Co., supra. And, in Thomson, supra, the California Supreme Court identified 24 several overriding concerns when addressing discretionmy stays is the Court's determination 25 whether the stay will promote the ends of justice, such as "avoiding unseemly conflicts with the 26 comis of other jurisdictions," considering the imminence of trial and/or how both or either 27 proceeding that might materially affected, and/or how any res judicata or collateral estoppel 28 9 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT effect that might occur would effect common issues of law and/or fact. Thomson v. Continental 2 Ins. Co., supra at 746-747. 3 4 B. Stay of Civil Actions and Appeals 5 Cal/fornia Code of Civil. Procedure§ 916(a) stays all proceedings in the trial court "upon 6 the judgment or order appealed from or upon the matters embraced therein or affected thereby, 7 including enforcement of the judgment or order, but the trial court may proceed upon any other 8 matter embraced in the action and not affected by the judgment or order." "The purpose of the 9 automactic stay provision of Section 9 I 6, subdivision (a)'is to protect the appellate court's 10 jurisdiction by preserving the status quo until the appeal is decided." Varian A1edica/ Systems, 11 Inc. v. De(fino (2005) 35 Cal.4th 180, 189. 12 Any proceeding "affects the effectiveness of an appeal if the possible outcome on appeal 13 and the actual or possible results of the proceeding are irreconcilable." Varian A1edical Systems, 14 Inc. v. De(fino, supra at 190. Section 916 of the Cal/fornia Code of Civil Procedure states the 15 general rule: "the perfecting of an appeal stays proceedings in the trial court upon the judgment 16 or order appealed from .... " 3 17 Pursuant to Section 916(a) the Courts of delineated two distinct issues: 18 19 1) whether the trial must be stayed, automatically, under section 916, subdivision (a), to 20 prevent futility of the appeal, or 21 2) whether the trial should be stayed, in the discretion of the trial or appellate court, to 22 maintain the status quo pending the appeal. 23 24 In A1eehan v. Hopps (1955) 45 Cal.2d 213, the California Supreme Court held that an 25 order denying a pretrial motion to disqualify opposing counsel is appealable. The Supreme 26 27 3 Moving Defendants assert that none of the exceptions to the general rule apply. See Ca/ifomia 28 Code o_(Civi/. Procedure§§ 917.1-917.9. IO MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT Court stated two grounds for this holding: (1) the trial court's order denying Hopps' motion left 2 nothing further of a judicial nature for a final determination of his rights regarding opposing 3 counsel, the order was final for purposes of appeal." ( Id. at pp. 216-217.); and, (2) Such an 4 order is, in effect, an order refusing to grant an injunction to restrain counsel from participating 5 in the case. (Id. at p. 215.) 6 Generally, several distinct issues determine whether the trial must be stayed, 7 automatically, under Section 916, subdivision (a), Those issues are: to prevent futility of the 8 appeal, or whether the trial should be stayed in the discretion of the trial or appellate comt to 9 maintain the status quo pending the appeal. 10 Although A1eehan, supra holds an order denying disqualification is appealable; 1\1eehan, 11 supra, did not discuss whether the trial is automatically stayed by such an appeal. Vamer, 12 supra, is distinguishable, because it hypothesized a situation where granting relief would be 13 impossible, and because Vamer, supra, did not involve disqualification of counsel. In 14 conclusion, either the finality of the order; the danger of futility of appeal without stay; and/or to 15 maintain the status quo requiring mandatory stay of the civil matter in the Trial Court; at the 16 very least the question whether discovery or trial should be stayed pending an appeal rests in the 17 discretion of the trial and appellate courts. 18 4 19 2. REQUEST FOR LEAVE TO FILE CROSS-COMPLAINT. 20 21 A. The Court Should Grant Leave To File The Cross-Complaint Because 22 The Request Defenclants' Makes To File Now Is In Good Faith. 23 24 25 4 lfthe pending appeal in Appellate Court Case No. B320896 were to be determined favorably 26 wherein the Los Angeles Superior Court Action the Plaintiff PACIFIC UNION was once again a Defendant in that case; it is possible that these moving Defendants would not need to filed the proposed 27 Cross-Complainant against Plaintiff PACIFIC UNION in this matter. [Proposed] Cross-Complaint is 28 attached as "Exhibit-4" -without Exhibits which will be attached at time of filing. 11 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT Under Cal/fornia Code of Civil. Procedure § 426.50, a party may move for leave to file a 2 cross-complaint at any time before trial: The court, after notice to the adverse party, shall grant, 3 upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross- 4 complaint, to assert such cause if the party who failed to plead the cause acted in good faith. 5 Leave to file a cross-complaint may also be granted under Cal/fornia Code of Civil. 6 Procedure§ 428.50: "Leave may be granted in the interest of justice at any time during the 7 course of the action." In Silver Organizalions Limiledv. Frank(l990) 217 Cal.App.3d 94, the 8 defendants changed attorneys just before trial. After obtaining a short continuance and 9 doing some discove1y, the new attorney uncovered evidence/ grounds that the attorney believed 10 presented good cause for pursuing and filing of a cross-complaint against the plaintiffs. As 11 such, the Defendant moved for leave to file a cross-complaint under Cal/fornia Code of Civil. 12 Procedure § 426.50 right before the new trial date. The trial court denied the Defendant's 13 motion. 14 The Appellate Court in reversing the trial court's decision, held that, because the 15 Defendant and Defense counsel had acted in good faith (and in the absence of any sufficient 16 substantial showing of bad faith by Defendant), the trial court had improperly denied the motion. 17 The Appeals Court in Silver Organizalions Limitecl, supra at 98-99 held: 18 19 "The legislative mandate is clear. A policy of liberal construction of section 426.50 to 20 avoid forfeiture of causes of action is imposed on the trial court. A motion to file a 21 cross-complaint at any time during the course of the action must be granted unless bad 22 faith of the moving party is demonstrated where forfeiture would otherwise result. Factors 23 such as oversight, inadve1ience, neglect, mistake or other cause, are insufficient grounds 24 to deny the motion unless accompanied by bad faith." 25 26 These moving Defendants' and purported Cross-Complaints have brought this motion in 27 good faith on the basis of: 28 12 MOTION FOR STAY PENDJNG APPEAL 1N APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT I. The executed/ signed Court Order of July 12, 2022 (see Exhibit-2) in the Los Angeles 2 Superior Court, Erik Ludwick et Al V. Partners Trust; Madison Hildebrand, et al Case 3 No. l 9STCV2533 l; wherein the Court having granted (in part) the Defendants' demurrer 4 in that ease effectively dismissed the Plaintiff PACIFIC UNION in this action ruling that 5 whatever causes of actions alleged against PACIFIC UNION should be pursued in this 6 matter. 7 2. The Defendants in this matter, generally the Plaintiffs in the LASC Aetion have filed a 8 pending appeal!. (Appellate Court Case No. B320896.) 9 IO The timing of this motion is nowhere near as critical as that in Silver Organizations 11 Limilecl, supra, wherein the motion for leave to file a cross-complaint was filed on March 29 th 12 for an April 5th trial date. Here, Defendants perfected there pending appeal by obtaining a signed 13 court order on July 12, 2022 and now bring this request. And, these moving Defendants offer 14 and respectfully point out their request that this matter be stayed pending the outcome of the 15 currently filed appeal addressing Plaintiff PACIFIC UNION's participation as a party in that Los 16 Angeles Action. 17 Furthermore, The Appeals Court in Silver Organizations Limited, supra, at 97-99 18 rejected the trial court view that it may "exercise discretion" in the denial of a motion to file a 19 compulsory cross-complaint and holding that the "legislative mandate is clear. A policy of 20 liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the 21 trial court." Factors such as oversight, inadvertence, neglect, mistake or other cause, are 22 insufficient grounds to deny the motion unless accompanied by bad faith. Silver Organizations 23 Limitecl, supra, at 99. Substantial evidence must support any trial court determination that a 24 party has moved to file a compulsory cross-complaint in bad faith. Id. 25 As this case is still in its discovery stage with most of the depositions of the Plaintiffs 26 brokers, real estate agents, personal most knowledgeable and custodian of records still scheduled 27 to occur - there will be no prejudice to Plaintiffs by the granting of this request for leave. 28 Additionally, Defendants seek their request for stay pending the outcome of the appeal. Attached 13 MOTION FOR STAY PENDING APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEA VE TO FILE A CROSS-COMPLAINT to this motion as "Exhibit-4" is the proposed cross-complaint (without exhibits which will be 2 attached at time of filing), which states defendants' claims against plaintiffs. These claims are 3 not frivolous or brought in bad faith and arise from the same dispute over the money still held in 4 escrow for the sale of the Toyopa Property. 5 6 CONCLUSION 7 It is respectfully requested that the Court grant the Defendants and moving parties' 8 requested relief for a stay and/or for leave to file a cross-complaint; based upon all the facts, 9 arguments presented, reasoning and authority stated herein, as well as, if necessary any oral 10 argument presented. 11 12 Respectfully submitted, 13 14 15 Dated: July 19, 2022 By: _ _ _ _ _ _ _ _ _ _ _ _ _ __ 16 MICHAEL A.J. NANGANO, ESQ. Attorney for Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28 14 MOTION FOR STAY PENDJNG APPEAL IN APPELLATE COURT CASE NO. B320896; AND/OR, FOR LEAVE TO FILE A CROSS-COMPLAINT EXHIBIT "l" IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DANIEL P. POTTER, CLERK June 28, 2022 Michael Nangano Nangano & Associates 133 North Altadena Drive Suite 403 Pasadena, CA 91107 ERIK LUDWICK, Individually and as Trustee, etc., Plaintiff and Appellant, v. PACIFIC UNION INTERNATIONAL, INC., Defendant and Respondent. B320896 Los Angeles County Super. Ct. No. 19STCV25331 Dear Counsel: The civil case information statement filed on June 27, 2022 for the appeal filed on April 14, 2022 is deficient as it does not have attached to it a copy of the signed judgment. (Cal. Rules of Court, rule 8.100(g)(1).) You must provide the Court with a conformed copy of the signed judgment, with a proof of service attached (Cal. Rules of Court, rules 8.25(a)(1)-(2)), within 15 days of the date of this notice. Very truly yours, Daniel P. Potter, Clerk by:___________________ Deputy Clerk cc: All Counsel File EXHIBIT "2" MICHAEL A.J. NANGANO (SBN 133999) MICHAEL AJ NANGANO, A LAW CORPORATION 2 133 No. Altadena Drive, Suite 403 Pasadena, CA 91107 3 Phone: (626) 796-9998 Fax: (626) 796-9992 4 5 FRANKLIN T. BIGELOW, JR (SBN 81606) BIGELOW & ASSOCIATES 6 133 No. Altadena Drive, Suite 403 Pasadena, CA 91107 7 Phone: (626) 796-9998 8 Attorneys for PIAINTIFFS: ERIK LUDWICK, individually AND as Trustee and Beneficiaty of 9 "The Anything Trust" dated October 12, 2007 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF LOS ANGELES 12 ) 13 ERIK LUDWICK, individually AND as ) LASC Case No. 19STCV25331 ~ Trustee and Beneficiaty of "the Anything 14 Trust" dated October 12, 2007; (Assigned for All Purposes to The Honorable ) Maurice Leiter, Department 54) 15 Plaintiff, vs. 16 ~ NOTICE OF RULING PARTNERS TRUST REAL ESTATE ) 17 BROKERAGE & ACQUISITIONS; an ) unincorporated California Business Entity; )) 18 PACIFIC UNION INTERNATIONAL, INC., a California Corporation; ) 19 MADISON HILDEBRAND, individually ) & dba "THE MALIBU LIFE TEAM"; ) 20 MALIBU LIFE, INC., a California )) Corporation; NICK R. SEGAL, an 21 individual; SAMUEL H. KRAEMER, an ) individual; GINA KIRKPATRICK, an ) Complaint Filed: July 24, 2019 22 individual; JENNIFER CHRISMAN, an ) individual; and Does I through 50, inclusive; ~ 23 Defendants. ) ~ 24 Los Angeles County Superior Court, Case 25 No.: S-CV 0042080 / 19STCV25331 ) 26 ----------~ 27 28 NOTICE OF RULING I TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that Plaintiffs Ex Parte Application Seeking Appellate 3 Requested Signed Court Order Sustaining Defendants Demurrer of February 17, 2022 was 4 heard at 8:30 a.m. on July 12, 2022, in Department 54 of the above court; the Honorable Maurice 5 Leiter, presiding. Michael AJ Nangano appeared remotely for Plaintiff. 6 The Court granted Plaintiffs request to sign the Order and stated that the wet signature copy 7 would be available to Plaintiff by the afternoon of July 12, 2022 in Department 54. 8 Plaintiff was ordered to give notice. 9 10 Dated: July 12, 2022 11 12 13 MICHAEL A.J. NANGANO, A LAW CORPORATION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF RULING IFDllED I M[CHAEL A.J. NANGANO (SBN 133999) Superior Court of California MICHAEL AJ NAN GANO, A LAW CORPORATION County of Los Angeles ::ii!: 2 133 No. Altadena Drive, Suite 403 <(( Pasadena, CA 91107 JUL 12 2022 a 3 Phone: (626) 796-9998 N ,- Fax: (626) 796-9992 ,- 4 N N a -- N N ,- ~ 5 6 FRANKLIN T. BIGELOW, JR (SBN 81606) BIGELOW & ASSOCIATES 133 No. Altadena Dl'ive, Suite 403 Pasadena, CA 91107 a "<:J 7 Phone: (626) 796-9998 Q) :,,. 'iii 8 Attorneys fo1· PJAINTIFFS: ERIK LUDWICK, '-' Q) individually AND as Trustee and Beneficiary of 0:: 9 "The Anything T!'ust" dated October 12, 2007 :,,.. ro 10 '-' SUPERIOR COURT OF THE STATE OF CALIFORNIA ·c .....'-' 11 0 ~ IN AND FOR THE COUNTY OF LOS ANGELES Q) 12 w 13 ERIK LUDWICK, individually AND as LASC Case No, 19STCV25331 Trustee and Beneficia!'y of "the Anything 14 Trnst" dated October 12, 2007; (Assigned for All Purposes to The Honorable Hon. Maurice Leiter, Department 54) 15 Plaintiff, vs. {.P.R0P6SEffl ORDER 16 SUSTAINING DEFENDANTS' PARTNERS TRUST REAL ESTATE DEMURRER TO PLAINTIFF'S THIRD 17 BROKERAGE & ACQUISITIONS; an AMENDED COMPLAINT WITHOUT unincorporated Californta Business Entity; LEAVE TO AMEND; AND, DENYING 18 PAcnr1c UNION INTERNATIONAL, MOTION TO STRIKE INC., a Califomia Corporation; 19 MADISON HILDEBRAND, rndividually & dba "THE MALIBU LIFE TEAM"; 20 MALIBU LIFE, INC., a California Corporation; NICK R. SEGAL, an 21 individual; SAMUEL H, KRAEMER, an individual; GINA KIRKPATRICK, an l 22 individual; JENNIFER CHRISMAN an individual; and Does I thrnugh 50, inclusive; 23 24 _ _ _ _ _ _ _ _ _ _D_e_fe_n_d_a1-1t-s._ Comp1,;,1 Filed, My 24, 2019 25 26 27 28 J!.i:opo~od 0l'dc1· 0 ~Q81llBt ORDER 2 3 On Febrnary 17, 2022, nt 9:00 11.m., in Department 54 of this Comt, the Demtu-rer and 4 Motion to Sll'lke flied by Defendants PACIFIC UNION rNTERNATIONAL, INC., individually and 5 as successot·•in-intcresl to PARTNERS TRUST REAL ESTATE BROKERAGE & 6 ACQUISITIONS, MADISON HILDEBRAND, indlvldually and dba THE MALIBU LIFE TEAM, 7 MALIBU LIFE, INC., NICK R. SEGAL, SAMUEL H. KRAEMER, GINA KIRKPATRICK, and 8 JENNIFER CHRISMAN (collectively, "Defendants") came 011 fo1· hearing, 9 The Court, having read and considered the pnpet·s flied and mgumenls contained thernin, the IO ornl m·g111ne11t of counsel, all matt01·s subject to judicial notice, und all the pleadings and 1·ecords 011 11 file herein, and good cause appearing, hereby adopted its tentative n11ing and the Collrl Cleric filed 12 the CoUl't's Minute Order (al!ached as "Exhlbit-B") as the ot·dcrofthe Cout't, and as such orders.as 13 follows: 14 1. DEFENDANTS' DEM,URRER AS TO PACIFIC UNION IS SUSTAINED 15 WITHOUT LEAVE TO AMEND; 16 2, DEFENDANTS' DEMURRER TO THE SEVENTH CAUSE OF ACTION IS 17 SUSTAINED WITHOUT LEAVE TO AMEND; 18 3, DEFENDANTS' MOTION TO STRIKE rs DENIED; 19 4. DEFENDANTS TO FILE AND SERVE ANSWERS TO THE THIRD AMENDED 20 COMPLAINT WITHIN 15 DAYS OF NOTICE OF RULING; 21 5, DEFENDANTS TO NOTICE. 22 23 The Colll't considers the moving pnpers, opposition and reply. 24 25 DACKGROUND 26 . On July 19, 2019, Plai11tlffErlkL11dwiok, lndividually~nd as Trustee and Beneficiatyof"the 27 Anything Trust" dated October 12, 2007, sued Defendants Pal'lt1m·s Trust Real Estate Brokernge& 28 4 N6l'IOB .81' 1 IIIP t•ttOP8SE!lj ORDER SUSTAINING DEFENDANTS' DEMURRER 'l'O PLAINTIFF'S THIRD AMENDED COMPLAINT WITHOUT LEAVE TO AM1.i:ND1 AND, DllNYlNG MOTION TO S'l'Rllm Acquisitions, Paci/lo Union lntet'llaliounl, lno,, Madison Hlldebrnnd, Mallbu Life, lno., Nick Segui, 2 San111el Krnemer, Glna Kirkpatrick, and Jennlfel' Ch1•isma11, The operative Second Amended 3 Complaint ("SAC") alleges onuses ofnotion for (I) breach of Civil Code§ 2079, I6; (2) breach of' 4 fiduciary duty; (3) fraud and deceit; (4) intentional lntel'feronce with prospective contractual 5 relationship and/or economic adva11tage; (5) negligent interference with prospective contrnclual 6 relationship and/or economic advantage; (6) professionol negligence; (7) breach of contract; (8) 7 broach of Civil Code § l 7200; (9) declm·atory relief as to illegality of conlrnct; and ( I0) decla,·atmy 8 relief as to commission owed, 9 This action al'ises out of the sale of real property located at 200 Topoya Drive, Pacific IO Pnllsacles, CA 90272, Plaintiff, the seller, alleges that Defendants, Plaintiff's brokers, impropel'ly lI acted as dual agents of Plaintiff and the buye1· to obtain a higher oommisslon. 12 13 REQUESTS J!'OR JUDlClAL NO'J'lCE 14 Defendants' requests fo1· judicial notice of exhibits A, B, C, and E at·e GRANTED as to the 15 existence of documents, but not as to the trntltofthe matters asset-ted therein, (Evid, Code § 452(d); 16 Herrnrn v, Deutsche Bank Natlo11al Tt·ust Co, (201 I) 196 Cal.App.4th I 366, 1375.), Defendants' 17 request for judicial notice of exhibit D Is DENIED as a matter not subject to Judicial notice, 18 ANALYSIS 19 A demm'l'e1· to a complnint may be taken to the whole complaint or to any of the causes of 20 action in it. (CCP § 430.S0(a).) A demw·1·e1· challenges only the legal sufficiency of the complaint, 21 not the trnth of Its factual allegations 01· the plnlntifPs ability to pt·ovc those allegations, (Picton v, 22 Anderson Union High Sch, Dist. (1996) 50 Cnl, App. 4th 726, 732,) The comt must treat as 1rne tho 23 complaint's matel'inl factual allegations, but not contentions, deductions or conclusions of fact or 24 law, (Id. at 732-33.) Tile complaint is to be oonstrned liberally to deterniine whethet· a cause of 25 action has been stated. (Id. nt 733,) 26 II 27 // 28 5 ,~6TICE 6FhN9 ll'IU~P0B!i11l[ onn1msUSTAINING l>El'ENDANTS' DEMUnREll TO l'LAIN'fll!F'S THlnD AMJi;NDED COMPLAINT WITHOUT LJi;AVE TO AMEND; AND, DENYING MOTION TO snmm A, 1'.!.111 'l'AC ns to Dofendnnt Pnclflc :Union 2 Defendnnts dell:l\11' to tf1e TAC as lo Defondanl Pacific Union on the gwunds that nny causes 3 ofaotio11 against Pacific Union sho11ld lrnvebeen bl'Oughtas a compulsol'ycrosscomplalnlin Pacific 4 Union's action ill Pl11ce1· County under CCP § 426.30. Defe11dants assei't that the claims n1·e barred. 5 The Court of Appeal hns addl'essed CCP § 426.30 as follows: 6 Section 426.30, s11bdivlsio11 (n), provides thnt "lfa pal'ty against whom u complninlhns been 7 filed and served fails to allege inn cross-complnlnt nny 1·eluted cnuse of action which (at the 8 time of serving his answer to the complaint) he lrns agninst the plaintiff, such pm'ly may not 9 the1·eafter in any other action nssert agai11st the plaintiff the 1·elatcd ontrne of action not 10 pleaded." As used in the compulsory cwss"complai11t statute, the term "c01nplaint" Includes 11 both a complaint and cross-complaint(§ 426, 10, subd, (a)), and thetenn "plaintiff" Includes 12 both a plai11liff and cross-complainant(§ 426.10, snbd. {b)). And the phrase "related cause 13 of action" In section •126.30 is defined as "a cuuse of notion which al'ises out of the same 14 transaction, occUt'l'cnce, or se1·ies oftrnnsactlons or occurrences as the en use of action which 15 the plaintiff alleges in his complaint." (§ 426,IO, subd. (c),) Because of the libernl 16 construction given to the statute to nccomplish its pmvose of avoiding a multiplicity 'or J7 actions, "trnnsaction" is constrned broadly; it is "not confined to a single, isolated act 01· 18 occurl'ence ... but may einbmce a series of acts 01· ooomTences loglcnlly intel'relnted 19 [cltntio11s]." {Saunders, supra, 231 Cal.App,2d at p. 336, 41 Cnl.Rpll'. 703; see also Cmi'ie 20 Medionl, m1pra, 136 Cal.App.3d at p. 777, 186 Cal.Rptl-. 543,) 21 22 (Align Technology, !no, v. Tran (2009) 179 Cal.App.ilth 949, 959-60.) 23 24 Defendants have provided Pacific Union's :Pincer County complaint and Plaintiff's answer 25 to the complaint. The Place!' County complaint alleges that Paoifio Union is entitled to the 26 commission h1 esc1•ow res\\lting from the sale of the Toyopn propel'ty. (]UN Exh. A,) This action 27 28 6 H6 uett 6fl /illll lPHOPOSl391 ORDER SUSTAINING DR!IRNDANTS' DJi:MU!lRRll TO PLAINTllll/1S THll{D AMRNDRD COMPLAINl' Wl'fllOUl' LEAYR TO AMEND1 AND, llENVING MOTION TO STlt!l(E and the Place1· County action arise out of the "same trnnsaotion, oocmTence, ornerles of trnnsactions 2 or OCC\1r1·enccs," 3 Plaintiff argues thnt this action involves other defendm1ts and onuses of action and that 4 Poc111c Unlon has not p1·ovcd it is successoJ• in interest to J'al'tncrs Trust in the Placer County action, 5 These arguments me t1npem1asive. Any claims rogai·ding the commission of the Toyopa property 6 should have been brm1ght in a c1·oss"complalnt in tho Pincer County Action. 7 8 Defe11dants' Demturnr as to TAC against Defendant Pacific Union is SUSTAINED without 9 leave to amend, 10 11 B, Seventh Cause of Action fo1• J31•cach of Cout1'11ct 12 To p1·evail on a cause of action for breach of contrnct, Plaintiffs must establish: I3 (I) the existence of contract between Plaintiffs a11d Defendants; (2) Plaintiffs' porfonnance 01· 14 excuse for nonperfo1mance; (3) the Defondm1ts' breach; and (4) any resulting damages. (Careau 15 & Co, v. Sccul'ity Pacific Business Credit, Inc, (1990) 222 Cal.App,3d 1371, 1388.) Under 16 California law, only a sig11ato1·y lo a contrnct may be liable for any breach of contract. (Clemens 17 v. American Warmnty Corp, (1987) 193 Cal.App.3cl 444, 452,) 18 The seventh cause· of notion for breach of contract is asserted against all Defendants; 19 Plaintiff alleges that all Defendants are parties to the contract. But the alleged breach of conh·act 20 relates to the Rgl'eement between Plaintiff and Defendant Partners Trnst. (TAC, Elxh. A.) As 21 discussed, the breach of contract claim against Pacific Union, the successor in interest to Pal'tners 22 Trust, should have been asserted as a cross"complaint in Pincer County. (CCP § 426,30(a)), Plaintiff 23 has failed to set forth facts eswbllshlng the basis of liability for the 11on-slg1rnto1·y defendants. 24 25 Defendants' demm1·e1· to the seventh cntrne of notion is SUSTAINED without leave to 26 amend, 27 28 7 '1>10'FIGl'i 9FA~l9 jPPOPOIUW) ORDER SUSTAINING DEFENDANTS' l>EMURRER TO PLAINTIFF'S THIRD AMENl>EI> COMPLAINT Wl'l'HOU'l' LEAVE TO AMEND; AND, DENYING MOTION TO S'l'Rll(E C, Mgti_oll to Sh'ilrn 2 Any porty, within the time allowed lo respond to a plending, may sc1·vc n11d file a notice of 3 motion to strike the whole or any purl thereof. (Code of Civ, Proc.,§ 435, subcl. (b)(l ); Cal. Rules 4 of Court, rule 3, 1322, subd, (b),) Thecornt lllay, upon n motion Ol' ntnnytillle in its discretion and 5 upon te•·ms it deems p1•oper: (J) stl'ike out auy il'rclevnnt, false, Ol' improper matter Inserted in any 6 pleading; or (2) strike out all 01· any pm't of any plendl11g not dmwn or filed in confol'll1ity with the 7 laws of Califo1'11io, a COUL't mie, or an order of the court. (Code Civ, Proc.,§ 436, subcl, (u)•(b); 8 Stafford v. Shultz (1954) 42 Cnl.2d 767, 782,) 9 The motion os to Pacific Union is moot. The Court declines to otherwise stl'ike 10 Plaintiff's claim fo1· attomey's fees ns the notion may