Preview
DEAN C. ROSSI (SBN 188844)
SHANNON B. JONES (SBN 149222)
ROSSI DOMINGUE LLP
Danville Office (serviceimailing address)
208 W. El Pintado Road
Danville CA 94526
San Jose Office
1570 The Alameda, Suite 316
San Jose CA 95126
T: (408) 495-3900; F: (408) 495-3901
Email: dean&rdlaw.net
Email: shannonCa,rdlaw.net
Attorneys for Plaintiff
PACIFIC UNION INTERNATIONAL, INC.
10
SUPERIOR COURT OF CALIFORNIA
COUNTY OF PLACER
12
13 PACIFIC UNION INTERNA'I'IONAL„ Case No.: SCV0042080
INC.,
14 MOTION IN LIMINE NO. 2 TO EXCI,UDE
Plaintiff, REFLRENCES QUESTIONING WHETHER
15
PACIFIC UNION INTERNATIONAL, INC.
16 ACQUIRED PAR'I'NERS TRUST
17 ERIK LUDWICK, an individual and
beneficiary of The Anything Trust Dated
18 October 12, 2007; THE ANYTHINCi Date Action Filed: November 7, 2018
'I'RUST DATED OC'I'OBER 12, 2007; Date Action Set for Trial: September 18, 2023
PAUL D. BOOTH, in his capacity as trustee
20 of The Anything Trust Dated October 12, Time: TBD
2007; and DOES 1-50, Dept.: TBD
21
Defendants.
22
23
24 I. INTRODUCTION
25 Through this Motion in Limine No. 2, Plaintiff PACIFIC UNION
26 INTERNATIONAL, INC. (" Pacific Union" ) requests an order excluding any suggestion by
27 Defendants that Pacific Union International, Inc. did not acquire Partners Trust and all rights to
28 open listing agreements, including commissions, on August 21, 2017.
~ ROSSI
DOMINGUE I
LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION
INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST
Pacific Union anticipates that the defendants may attempt to argue that Pacific
2 Union is not entitled to bring this action, on the basis that Partners Trust is the brokerage on the
3 listing agreement. But the evidence shows that Pacific Union acquired all rights to pursue this
4 commission when it acquired Partners Trust.
Defendants have spent a significant amount of time pursuing this argument, and
6 have failed when they made it in their demurrer, in their attempts to have this case coordinated
7 with their later-filed Los Angeles action, and in their overruled motion for summary judgment in
8 this matter. The argument that Pacific Union is not entitled to pursue this commission is legally
9 unsupported, irrelevant, and will be highly prejudicial, confusing, and misleading and would
10 necessitate the undue consumption of time. This non-issue should not be used to waste valuable
trial time. The Court should exclude all suggestions or argument that Pacific Union cannot pursue
this action.
13 II. STATEMENT OF FACTS
14 Pacific Union hereby incorporates by reference their Statement of Facts In Support
of All Motions in Limine.
16 In addition, Pacific Union has produced, as Confidential Information subject to the
17 protective order entered in this matter, the highly confidential acquisition agreement in this matter
and relevant schedules showing that no open listing agreements were excluded from the
19 acquisition of Partners Trust. These documents are not attached, as they would necessitate filing
this Motion under seal, but Pacific Union will have them available for the Court's review at the
21 hearing on this Motion.
22 III. ARGUMENT
23 Evidence Code section 350 provides, "no evidence is admissible except relevant
24 evidence." The California Supreme Court has held that evidence not pertinent to the issues raised
by the pleadings is immaterial and cannot be introduced. (Fuentes v. Titcker (1947) 31 Cal.2d I,
4-7.) In order for evidence to be admissible, it must both correspondence with the substance of the
27 material allegations and be relevant to the issue sin dispute. (Decter v. Stevenson Properties
28 (1952) 39 Cal.2d 407,419-420.) If a legal theory has not been raised in a pleading, no facts
~ l Rossl
OOMINGVE 2
LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION
INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST
1 supporting that theory can be raised at trial. (Evid. Code I'III350, 403; see also City of Stanton v.
2 Cox (1989) 207 Cal.App.3d 1557, 1563.) Any new facts that are raised at trial must be
3 inextricably related to the facts alleged in the pleadings. (See General Credit Corp. v. Pichel
4 (1975) 44 Cal.App.3d 844, 850.) Accordingly, any additional facts that are outside the facts raised
5 by the pleadings should not be permitted.
Pacific Union owns the Contract with the Trust entered into by Partners Trust.
7 When Pacific Union acquired Partners Trust in August 2017, it acquired the right to enforce a
8 contract held by Paitners Trust. Under the Corporations Code:
Upon merger pursuant to this chapter the separate existence of the
disappearing corporations ceases and the surviving corporation shall
10 succeed, without other transfer, to all the rights and property of each
of the disappearing corporations and shall be subject to all the debts
and liabilities of each in the same manner as if the surviving
corporation had itself incurred them.
12
(Corp. Code I'I 1107.)
13 There is no question that Partners Trust transferred its rights to sue for recovery of
14 the commission to Pacific Union. No open listing agreements were excluded in the acquisition.
15 The acquisition documents were produced subject to a protective order, and are not included here
16 so that they do not have to be sealed, but Pacific Union will have them available for the Court's
17 consideration at the hearing on this Motion.
18 There is no legal question as to whether Pacific Union was entitled to receive those
19 rights, as "A thing in action, arising out of the violation of a right of property, or out of an
20 obligation, may be transferred by the owner." (Civ. Code $ 954.) Accordingly, Pacific Union is
21 entitled to enforce the Contract. (" Persons entitled to enforce an instrument means (a) the holder
of the instrument, (b) a non-holder in possession of the instrument who has the rights of a holder .
23 ..". (Com. Code, II 3301.)) Successor companies have standing to enforce provisions of a
24 contract initially entered into by the company they purchased. (Jenks v. DLA Piper Rudnick Gray
25 Cary US LLP (2015) 243 Cal.App.4th 1, 10.)
26 Unpaid commissions in real estate, moreover, are assignable interests. (Schaffter v.
27 Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, holding a breach of contract
action for unpaid commissions on the sale of real estate is assignable from one business entity to
~ ROSS I
DOMINGUE 3
Lv ILEE MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION
INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST
1 another.) Brokers have long been able to assign their rights to commissions. (Richtnond
2 tteateteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400, 401-402, determining how
3 to apply a complicated commission provision assigned by a real estate broker to a company.)
4 Pacific Union's right to recover these funds should not be an issue presented to the fact finder,
5 particularly as there is no evidence supporting Defendants'epeatedly failed theory.
6 Dated: September 8, 2023
ROSSI DOMINGUE LLP
By:
DEAN C. ROSSI
Attorneys for Plaintiff
10 PACIFIC UNION INTERNATIONAL, INC.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
~ I Rossi
DOMINGUE 4
LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION
INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST
PROOF OF ELECTRONIC SERVICE
STATE OF CALIFORNIA, COUNTY OF PLACER
Pacific Union Internarionai, Inc. v. LndttIick, ei «i.
Case No.: SCV0042080
DECLARATION
I. I am at least 18 years old. My business address is 208 W. El Pintado Road,
Danville, California 94526.
2. My electronic service address is vvonne(Rrdlaw.net with a copy to
shannonQrdlaw.net and deanQrdlaw.net (all addresses must be used for any electronic service),
3. electronically served the following documents: MOTION IN LIMINE NO. 2
I
TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION
INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST
10
4. On the date set forth within the signature block below, I electronically served the
documents listed above in 3 as follows (name(s) of person(s) served, attorney(s) through whom
12 service was made (if applicable), and email address(es) of person(s) served):
NAME Attornevs for
14 Michael A.J. Nangano, Esq. Defendants Erik Ludwick, The Anything
Michael A.J. Nangano & Associates Trust and Paul Booth as Trustee of the
15 Anything Trust
501 S. First Street Ave., Ste. E
16 Arcadia, CA 90016
nutanaanoSlacounsel.corn
17 nattiRlacounsel.corn
Lawrence E. Skidmore, Esq. Defendants Erik Ludwick, The Anything
Aronowitz, Skidmore, Lyon Trust and Paul Booth as Trustee of the
19
200 Auburn Folsom Road, Suite 305 Anything Trust
20 Auburn, CA 95603
Iskidmore(Rasilaw.org
21 lmelton@asilaw.org
22 declare under penalty of perjury under the laws of the State of California that the
I
23 foregoing is true and correct.
24 Date: September 8, 2023
25
Y. MENAGER
26 Name of Declarant Suture of Declarant
27
28
~ ROSSI
OOMINGUE
POS
L LL
Preview
DEAN C. ROSSI (SBN 188844) SHANNON B. JONES (SBN 149222) ROSSI DOMINGUE LLP Danville Office (serviceimailing address) 208 W. El Pintado Road Danville CA 94526 San Jose Office 1570 The Alameda, Suite 316 San Jose CA 95126 T: (408) 495-3900; F: (408) 495-3901 Email: dean&rdlaw.net Email: shannonCa,rdlaw.net Attorneys for Plaintiff PACIFIC UNION INTERNATIONAL, INC. 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF PLACER 12 13 PACIFIC UNION INTERNA'I'IONAL„ Case No.: SCV0042080 INC., 14 MOTION IN LIMINE NO. 2 TO EXCI,UDE Plaintiff, REFLRENCES QUESTIONING WHETHER 15 PACIFIC UNION INTERNATIONAL, INC. 16 ACQUIRED PAR'I'NERS TRUST 17 ERIK LUDWICK, an individual and beneficiary of The Anything Trust Dated 18 October 12, 2007; THE ANYTHINCi Date Action Filed: November 7, 2018 'I'RUST DATED OC'I'OBER 12, 2007; Date Action Set for Trial: September 18, 2023 PAUL D. BOOTH, in his capacity as trustee 20 of The Anything Trust Dated October 12, Time: TBD 2007; and DOES 1-50, Dept.: TBD 21 Defendants. 22 23 24 I. INTRODUCTION 25 Through this Motion in Limine No. 2, Plaintiff PACIFIC UNION 26 INTERNATIONAL, INC. (" Pacific Union" ) requests an order excluding any suggestion by 27 Defendants that Pacific Union International, Inc. did not acquire Partners Trust and all rights to 28 open listing agreements, including commissions, on August 21, 2017. ~ ROSSI DOMINGUE I LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST Pacific Union anticipates that the defendants may attempt to argue that Pacific 2 Union is not entitled to bring this action, on the basis that Partners Trust is the brokerage on the 3 listing agreement. But the evidence shows that Pacific Union acquired all rights to pursue this 4 commission when it acquired Partners Trust. Defendants have spent a significant amount of time pursuing this argument, and 6 have failed when they made it in their demurrer, in their attempts to have this case coordinated 7 with their later-filed Los Angeles action, and in their overruled motion for summary judgment in 8 this matter. The argument that Pacific Union is not entitled to pursue this commission is legally 9 unsupported, irrelevant, and will be highly prejudicial, confusing, and misleading and would 10 necessitate the undue consumption of time. This non-issue should not be used to waste valuable trial time. The Court should exclude all suggestions or argument that Pacific Union cannot pursue this action. 13 II. STATEMENT OF FACTS 14 Pacific Union hereby incorporates by reference their Statement of Facts In Support of All Motions in Limine. 16 In addition, Pacific Union has produced, as Confidential Information subject to the 17 protective order entered in this matter, the highly confidential acquisition agreement in this matter and relevant schedules showing that no open listing agreements were excluded from the 19 acquisition of Partners Trust. These documents are not attached, as they would necessitate filing this Motion under seal, but Pacific Union will have them available for the Court's review at the 21 hearing on this Motion. 22 III. ARGUMENT 23 Evidence Code section 350 provides, "no evidence is admissible except relevant 24 evidence." The California Supreme Court has held that evidence not pertinent to the issues raised by the pleadings is immaterial and cannot be introduced. (Fuentes v. Titcker (1947) 31 Cal.2d I, 4-7.) In order for evidence to be admissible, it must both correspondence with the substance of the 27 material allegations and be relevant to the issue sin dispute. (Decter v. Stevenson Properties 28 (1952) 39 Cal.2d 407,419-420.) If a legal theory has not been raised in a pleading, no facts ~ l Rossl OOMINGVE 2 LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST 1 supporting that theory can be raised at trial. (Evid. Code I'III350, 403; see also City of Stanton v. 2 Cox (1989) 207 Cal.App.3d 1557, 1563.) Any new facts that are raised at trial must be 3 inextricably related to the facts alleged in the pleadings. (See General Credit Corp. v. Pichel 4 (1975) 44 Cal.App.3d 844, 850.) Accordingly, any additional facts that are outside the facts raised 5 by the pleadings should not be permitted. Pacific Union owns the Contract with the Trust entered into by Partners Trust. 7 When Pacific Union acquired Partners Trust in August 2017, it acquired the right to enforce a 8 contract held by Paitners Trust. Under the Corporations Code: Upon merger pursuant to this chapter the separate existence of the disappearing corporations ceases and the surviving corporation shall 10 succeed, without other transfer, to all the rights and property of each of the disappearing corporations and shall be subject to all the debts and liabilities of each in the same manner as if the surviving corporation had itself incurred them. 12 (Corp. Code I'I 1107.) 13 There is no question that Partners Trust transferred its rights to sue for recovery of 14 the commission to Pacific Union. No open listing agreements were excluded in the acquisition. 15 The acquisition documents were produced subject to a protective order, and are not included here 16 so that they do not have to be sealed, but Pacific Union will have them available for the Court's 17 consideration at the hearing on this Motion. 18 There is no legal question as to whether Pacific Union was entitled to receive those 19 rights, as "A thing in action, arising out of the violation of a right of property, or out of an 20 obligation, may be transferred by the owner." (Civ. Code $ 954.) Accordingly, Pacific Union is 21 entitled to enforce the Contract. (" Persons entitled to enforce an instrument means (a) the holder of the instrument, (b) a non-holder in possession of the instrument who has the rights of a holder . 23 ..". (Com. Code, II 3301.)) Successor companies have standing to enforce provisions of a 24 contract initially entered into by the company they purchased. (Jenks v. DLA Piper Rudnick Gray 25 Cary US LLP (2015) 243 Cal.App.4th 1, 10.) 26 Unpaid commissions in real estate, moreover, are assignable interests. (Schaffter v. 27 Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, holding a breach of contract action for unpaid commissions on the sale of real estate is assignable from one business entity to ~ ROSS I DOMINGUE 3 Lv ILEE MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST 1 another.) Brokers have long been able to assign their rights to commissions. (Richtnond 2 tteateteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400, 401-402, determining how 3 to apply a complicated commission provision assigned by a real estate broker to a company.) 4 Pacific Union's right to recover these funds should not be an issue presented to the fact finder, 5 particularly as there is no evidence supporting Defendants'epeatedly failed theory. 6 Dated: September 8, 2023 ROSSI DOMINGUE LLP By: DEAN C. ROSSI Attorneys for Plaintiff 10 PACIFIC UNION INTERNATIONAL, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ I Rossi DOMINGUE 4 LLP MOTION IN LIMINE NO. 2 TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST PROOF OF ELECTRONIC SERVICE STATE OF CALIFORNIA, COUNTY OF PLACER Pacific Union Internarionai, Inc. v. LndttIick, ei «i. Case No.: SCV0042080 DECLARATION I. I am at least 18 years old. My business address is 208 W. El Pintado Road, Danville, California 94526. 2. My electronic service address is vvonne(Rrdlaw.net with a copy to shannonQrdlaw.net and deanQrdlaw.net (all addresses must be used for any electronic service), 3. electronically served the following documents: MOTION IN LIMINE NO. 2 I TO EXCLUDE REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, INC. ACQUIRED PARTNERS TRUST 10 4. On the date set forth within the signature block below, I electronically served the documents listed above in 3 as follows (name(s) of person(s) served, attorney(s) through whom 12 service was made (if applicable), and email address(es) of person(s) served): NAME Attornevs for 14 Michael A.J. Nangano, Esq. Defendants Erik Ludwick, The Anything Michael A.J. Nangano & Associates Trust and Paul Booth as Trustee of the 15 Anything Trust 501 S. First Street Ave., Ste. E 16 Arcadia, CA 90016 nutanaanoSlacounsel.corn 17 nattiRlacounsel.corn Lawrence E. Skidmore, Esq. Defendants Erik Ludwick, The Anything Aronowitz, Skidmore, Lyon Trust and Paul Booth as Trustee of the 19 200 Auburn Folsom Road, Suite 305 Anything Trust 20 Auburn, CA 95603 Iskidmore(Rasilaw.org 21 lmelton@asilaw.org 22 declare under penalty of perjury under the laws of the State of California that the I 23 foregoing is true and correct. 24 Date: September 8, 2023 25 Y. MENAGER 26 Name of Declarant Suture of Declarant 27 28 ~ ROSSI OOMINGUE POS L LL