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SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER
Date: March 11, 2021 Time: 8:29 AM
Judge: Charles D. Wachob Dept: U.
Reporter: Spanna Gilbert, Clerk: MuyloxFayfore
CSR 1A95)\ ond
Nanca Pre » SR GG0o-— pharc
Pacific Union International, Inc. vs. Ludwick, Erik et al Lund Sey Whrean [A Present kad Tw - phone
Lawrence Sludmoce €
Witclae! Kaarrganb Present Fo A - phone
[_] And related Cross Action(s) Case # S-CV-0042080
Law and Motion Minutes
Proceedings RE: Motion: Summary Judgment - (x2)
LJ Dropped. [] continuedto____ [[] by Plaintiff [.] by Defendant
(J by Stipulation [J by Court
Matter argued and submitted.
(] submitted on points and authorities without [] argument [_] appearance.
C] Motion/Petition granted. [_] Motion/Petition denied.
(J Demurrer [] sustained [1] overruled (J without [J with leave to] amend [J answer.
(_] Counsel appointed for:
Ataken under submission.
(_] Debtor is sworn and retired with counsel for examination.
(Stipulation to [Judge Pro Tem []Commissioner executed in open court.
(J Counsel for to prepare the written order and submit it to opposing counsel for approval as
to content and form.
(_] Other
(_] The tentative ruling is adopted as the ruling of the court, to wit:
Plaintiffs Motion for Summary Judgment/Summary Adjudication
Ruling on Objections
Defendants’ objections are overruled in their entirety. Their objections are not compliant with
California Rules of Court, Rule 3.1354(b), which requires the party to quote the objectionable
_ im,
statement or material of evidence. Instead of quoting the evidence, defendants point to portions
of plaintiff's opposition.
Plaintiff's objection nos. 1 to the factual statements made in defendants’ request for
judicial
notice are sustained. The objection is overruled as to the court documents. Plaintiffs objection
no. 2 is sustained.
Plaintiff's objections nos. 2, 3, 6-19 to the Ludwick declaration are sustained. Plaintiffs
objection no. 1, 4, 5, 20, 21, 22, 23, 24, 25, 26 are overruled.
Ruling on Request for Judicial Notice
Defendants’ request for judicial notice is granted as to the documents in request no. 1. The
objections to request no. 2 were sustained in their entirety.
Plaintiff's request for judicial notice is granted under Evidence Code section 452.
Ruling on Motion
The motion is denied. The trial court shall grant a motion for summary judgment if “all the
papers submitted show that there is no triable issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The
moving party has the burden of showing facts establishing every element necessary to sustain a
judgment in favor of the party. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454,
468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defendant to
prove material facts. (Code of Civil Procedure section 437c(p)(1).) In reviewing the motion, the
=~ am
trial court must view the supporting evidence, and inferences reasonably drawn from such
evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield
Company (2001) 25 Cal.4th 826, 843.) The court reviews the motion keeping this in mind.
First, Second, Third, Sixth, Seventh, and Eighth Causes of Action — Breach of
Contract, Breach of the Implied Covenant, Common Counts, Intentional
Misrepresentation, Specific Performance, and Declaratory Relief
Plaintiff has not met its initial burden as to these six claims. Each of these causes of action rely
on the existence of a contract with a six percent commission on the purchase price of the subject
property. Plaintiff submits the declaration of Madison Hildebrand, the listing agent who entered
into the listing agreement with the defendant trustee and defendant trust for the subject property.
In the declaration, Mr. Hildebrand does not attest to ever informing defendants of plaintiff's
acquisition of Partners Trust. (see generally Hildebrand declaration.) He goes on to state he sent
defendant Erik Ludwick “‘an email enclosing the final Residential Purchase Agreement which
had just been provided to Toni Antoci, with a purchase price of $15,884,375, and commission of
four and a half percent (4.5%).” (Hildebrand declaration 7.) Mr. Hildebrand also states “On
September 17, 2017, Ludwick sent me an email demanding that I accept a commission of two
and a half percent (2.5%) of the total sale price of the Property. ... [{] On September 18, 2017, I
responded to Ludwick and indicated that I was unable to reduce the commission any lower than
four and one-half percent (4.5%) as I represented both sides of the transaction.” (Hildebrand
declaration §§14, 15.) This evidence tends to show Mr. Hildebrand was primarily responsible for
the listing agreement and continued to actively negotiate its terms. This evidence contradicts
plaintiff's contentions that a six percent commission is owed under the terms of the agreement.
In light of this, plaintiff has failed to meet its burden as to the first, second, third, sixth, seventh,
and eighth causes of action.
-~ aim,
Fourth Cause of Action — Intentional Interference with
Contractual Relations
A claim for intentional interference with contractual relations requires the plaintiff to establish
(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of the
contract; (3) defendant’s intentional acts designed to induce a breach or disrupt the contract; (4)
actual breach or disruption of the contractual relationship; and (5) damages. (Quelamine Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) However, this claim is usually applicable
against those who are strangers to the contract. (Pacific Gas & Electric Co. v. Bear Stearns &
Co. (1990) 50 Cal.3d 1118, 1126.) Plaintiff has not made a sufficient showing that defendant
Erik Ludwick was a stranger to the contract so as to be liable under the fourth cause of action.
To reiterate, the declaration of Mr. Hildebrand attests to negotiations with Mr. Ludwick
regarding the sale of the property. (Hildebrand declaration 997, 14, 15.) Even if Mr. Ludwick
could be considered a stranger to the contract, plaintiff has not submitted sufficient evidence
showing he intended to disrupt or cause breach of the listing agreement. Again, Mr. Ludwick
attests to discussing a four and a half percent commission for the sale of the subject property.
(Hildebrand declaration §§14, 15.) This evidence tends to show Mr. Hildebrand continued to
negotiate the commission amount rather than establishing the commission was set at six percent.
Plaintiff has failed to meet its burden as to the fourth cause of action.
Fifth Cause of Action — Intentional Interference with Prospective Economic
Advantage
Finally, plaintiff has failed to meet its burden as to the fifth cause of action. A claim for
intentional interference with prospective economic advantage requires the plaintiff to show (1)
an economic relationship between the plaintiff and some third party with the probability of future
> im
economic benefits; (2) the defendant’s knowledge of the relationship; (3) intentional wrongful
acts by the defendant designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29
Cal.4th 1134, 1153-1154; Della Pena v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376.)
Again, plaintiff has not shown Mr. Ludwick was unassociated with the listing agreement.
(Hildebrand declaration 77, 14, 15.) Plaintiff's submitted evidence also fails to sufficiently
establish wrongful acts, intentional or otherwise, on the part of Mr. Ludwick, disruption of a
relationship, or economic harm. To reiterate, the submitted evidence tends to show Mr.
Hildebrand was in charge of the listing agreement and continued to actively negotiate the terms
of the commission. (Hildebrand declaration 4914, 15.)
Disposition
In sum, plaintiff has failed to meet its initial burden. Both the request for summary judgment
and the request for summary adjudication are denied.
/1
Defendants’ Motion for Summary Judgment
Ruling on Objections
Plaintiff's objections nos. 1, 2, 3, 5, 6, 7 are sustained. Plaintiff's objection no. 4 is sustained as
to the factual statement. Objection no. 4 is overruled as to the documents found in Exhibit 4.
- |
Plaintiff's objections nos. 8 and 10 are sustained to the extent they refer to the inadmissible
judicial notice requests. Objections nos. 11, 12, 13, 14, 15, 16, 17, 18, 19 are sustained in their
entirety. Objections nos. 9 and 20 are overruled.
Defendants’ objections are overruled in their entirety. Their objections are not compliant with
California Rules of Court, Rule 3.1354(b), which requires the party to quote the objectionable
statement or material of evidence. Instead of quoting the evidence, defendants point to portions
of plaintiff's opposition.
Ruling on Requests for Judicial Notice
Defendants’ request for judicial notice is granted solely as to the documents encompassed in
Exhibit 4. The remainder of the requests subject to plaintiff's objections, which have been
sustained.
Plaintiff's request for judicial notice is granted under Evidence Code section 452.
Ruling on Motion
The motion is denied. The trial court shall grant a motion for summary judgment if “all the
papers submitted show that there is no triable issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The
moving party bears the initial burden of establishing that one or elements of a cause of action
cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).)
Only when this initial burden is met does the burden shift to the opposing party to establish a
triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial
court must view the supporting evidence, and inferences reasonably drawn from such evidence,
in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001)
25 Cal.4th 826, 843.) Here, after considering the objections and admissible evidence, defendants
have not made a sufficient showing that plaintiffs claims are barred due to the statute of frauds
or a lack of standing. (see generally Defendants’ SSUMF.) In presenting their arguments and
evidence, defendants ignore an essential allegation within the complaint, plaintiffs’ acquisition of
Partners Trust on August 2, 2017. (Complaint §2.) The merger of corporations transfers all
rights and property to the surviving corporation. (Corporations Code section 1107(a).) The
pleadings, not defendant, frame the scope of the motion. (Government Employees Ins. Co. v.
Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163
Cal.App.4th 1242, 1258.) Defendants must challenge the claims raised by plaintiff with
sufficient evidence to meet their initial burden. They fail to do so here.
Defendants have also failed to show plaintiff is unable to establish the elements of any of he
pleaded causes of action. (Ibid.) It is worth noting that challenging the sufficiency of the
pleadings is not the proper standard for summary judgment motion. Summary judgment negates
the elements of a cause of action through extrinsic evidence; challenge to the untentability of the
pleadings are brought by way demurrer or motion for judgment on the pleadings. (Cordova v.
21st Century Insurance Co. (2005) 129 Cal.App.4th 89, 109.) Defendants were unsuccessful in
challenging the sufficiency of the allegations with their demurrer heard on May 9, 2019, and fail
to raise any further pleading deficiencies here. Since defendants have failed to meet their burden
here, the motion is denied.
34 Mary Bardellini & Associat es
RTING
REALTIME REPO
INTERACTIVE
or www.bardellini.com
Court Corte Naney Rasant cmteut info *
Court and Deposition Reporters Covering
World!
Placer, Sacramento, Nevada Counties... The
n pv Ss antc Sr a ameail “com Two Conference Rooms + Video Depositions
Shanna Gilbert
(910) 157-6550 Auburn, Ca 93603 we CSR #1235
Office Email: depos@bardellini.com
(530) 823-2950
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER Date: March 11, 2021 Time: 8:29 AM Judge: Charles D. Wachob Dept: U. Reporter: Spanna Gilbert, Clerk: MuyloxFayfore CSR 1A95)\ ond Nanca Pre » SR GG0o-— pharc Pacific Union International, Inc. vs. Ludwick, Erik et al Lund Sey Whrean [A Present kad Tw - phone Lawrence Sludmoce € Witclae! Kaarrganb Present Fo A - phone [_] And related Cross Action(s) Case # S-CV-0042080 Law and Motion Minutes Proceedings RE: Motion: Summary Judgment - (x2) LJ Dropped. [] continuedto____ [[] by Plaintiff [.] by Defendant (J by Stipulation [J by Court Matter argued and submitted. (] submitted on points and authorities without [] argument [_] appearance. C] Motion/Petition granted. [_] Motion/Petition denied. (J Demurrer [] sustained [1] overruled (J without [J with leave to] amend [J answer. (_] Counsel appointed for: Ataken under submission. (_] Debtor is sworn and retired with counsel for examination. (Stipulation to [Judge Pro Tem []Commissioner executed in open court. (J Counsel for to prepare the written order and submit it to opposing counsel for approval as to content and form. (_] Other (_] The tentative ruling is adopted as the ruling of the court, to wit: Plaintiffs Motion for Summary Judgment/Summary Adjudication Ruling on Objections Defendants’ objections are overruled in their entirety. Their objections are not compliant with California Rules of Court, Rule 3.1354(b), which requires the party to quote the objectionable _ im, statement or material of evidence. Instead of quoting the evidence, defendants point to portions of plaintiff's opposition. Plaintiff's objection nos. 1 to the factual statements made in defendants’ request for judicial notice are sustained. The objection is overruled as to the court documents. Plaintiffs objection no. 2 is sustained. Plaintiff's objections nos. 2, 3, 6-19 to the Ludwick declaration are sustained. Plaintiffs objection no. 1, 4, 5, 20, 21, 22, 23, 24, 25, 26 are overruled. Ruling on Request for Judicial Notice Defendants’ request for judicial notice is granted as to the documents in request no. 1. The objections to request no. 2 were sustained in their entirety. Plaintiff's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party has the burden of showing facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defendant to prove material facts. (Code of Civil Procedure section 437c(p)(1).) In reviewing the motion, the =~ am trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.) The court reviews the motion keeping this in mind. First, Second, Third, Sixth, Seventh, and Eighth Causes of Action — Breach of Contract, Breach of the Implied Covenant, Common Counts, Intentional Misrepresentation, Specific Performance, and Declaratory Relief Plaintiff has not met its initial burden as to these six claims. Each of these causes of action rely on the existence of a contract with a six percent commission on the purchase price of the subject property. Plaintiff submits the declaration of Madison Hildebrand, the listing agent who entered into the listing agreement with the defendant trustee and defendant trust for the subject property. In the declaration, Mr. Hildebrand does not attest to ever informing defendants of plaintiff's acquisition of Partners Trust. (see generally Hildebrand declaration.) He goes on to state he sent defendant Erik Ludwick “‘an email enclosing the final Residential Purchase Agreement which had just been provided to Toni Antoci, with a purchase price of $15,884,375, and commission of four and a half percent (4.5%).” (Hildebrand declaration 7.) Mr. Hildebrand also states “On September 17, 2017, Ludwick sent me an email demanding that I accept a commission of two and a half percent (2.5%) of the total sale price of the Property. ... [{] On September 18, 2017, I responded to Ludwick and indicated that I was unable to reduce the commission any lower than four and one-half percent (4.5%) as I represented both sides of the transaction.” (Hildebrand declaration §§14, 15.) This evidence tends to show Mr. Hildebrand was primarily responsible for the listing agreement and continued to actively negotiate its terms. This evidence contradicts plaintiff's contentions that a six percent commission is owed under the terms of the agreement. In light of this, plaintiff has failed to meet its burden as to the first, second, third, sixth, seventh, and eighth causes of action. -~ aim, Fourth Cause of Action — Intentional Interference with Contractual Relations A claim for intentional interference with contractual relations requires the plaintiff to establish (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to induce a breach or disrupt the contract; (4) actual breach or disruption of the contractual relationship; and (5) damages. (Quelamine Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) However, this claim is usually applicable against those who are strangers to the contract. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Plaintiff has not made a sufficient showing that defendant Erik Ludwick was a stranger to the contract so as to be liable under the fourth cause of action. To reiterate, the declaration of Mr. Hildebrand attests to negotiations with Mr. Ludwick regarding the sale of the property. (Hildebrand declaration 997, 14, 15.) Even if Mr. Ludwick could be considered a stranger to the contract, plaintiff has not submitted sufficient evidence showing he intended to disrupt or cause breach of the listing agreement. Again, Mr. Ludwick attests to discussing a four and a half percent commission for the sale of the subject property. (Hildebrand declaration §§14, 15.) This evidence tends to show Mr. Hildebrand continued to negotiate the commission amount rather than establishing the commission was set at six percent. Plaintiff has failed to meet its burden as to the fourth cause of action. Fifth Cause of Action — Intentional Interference with Prospective Economic Advantage Finally, plaintiff has failed to meet its burden as to the fifth cause of action. A claim for intentional interference with prospective economic advantage requires the plaintiff to show (1) an economic relationship between the plaintiff and some third party with the probability of future > im economic benefits; (2) the defendant’s knowledge of the relationship; (3) intentional wrongful acts by the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154; Della Pena v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376.) Again, plaintiff has not shown Mr. Ludwick was unassociated with the listing agreement. (Hildebrand declaration 77, 14, 15.) Plaintiff's submitted evidence also fails to sufficiently establish wrongful acts, intentional or otherwise, on the part of Mr. Ludwick, disruption of a relationship, or economic harm. To reiterate, the submitted evidence tends to show Mr. Hildebrand was in charge of the listing agreement and continued to actively negotiate the terms of the commission. (Hildebrand declaration 4914, 15.) Disposition In sum, plaintiff has failed to meet its initial burden. Both the request for summary judgment and the request for summary adjudication are denied. /1 Defendants’ Motion for Summary Judgment Ruling on Objections Plaintiff's objections nos. 1, 2, 3, 5, 6, 7 are sustained. Plaintiff's objection no. 4 is sustained as to the factual statement. Objection no. 4 is overruled as to the documents found in Exhibit 4. - | Plaintiff's objections nos. 8 and 10 are sustained to the extent they refer to the inadmissible judicial notice requests. Objections nos. 11, 12, 13, 14, 15, 16, 17, 18, 19 are sustained in their entirety. Objections nos. 9 and 20 are overruled. Defendants’ objections are overruled in their entirety. Their objections are not compliant with California Rules of Court, Rule 3.1354(b), which requires the party to quote the objectionable statement or material of evidence. Instead of quoting the evidence, defendants point to portions of plaintiff's opposition. Ruling on Requests for Judicial Notice Defendants’ request for judicial notice is granted solely as to the documents encompassed in Exhibit 4. The remainder of the requests subject to plaintiff's objections, which have been sustained. Plaintiff's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing that one or elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.) Here, after considering the objections and admissible evidence, defendants have not made a sufficient showing that plaintiffs claims are barred due to the statute of frauds or a lack of standing. (see generally Defendants’ SSUMF.) In presenting their arguments and evidence, defendants ignore an essential allegation within the complaint, plaintiffs’ acquisition of Partners Trust on August 2, 2017. (Complaint §2.) The merger of corporations transfers all rights and property to the surviving corporation. (Corporations Code section 1107(a).) The pleadings, not defendant, frame the scope of the motion. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) Defendants must challenge the claims raised by plaintiff with sufficient evidence to meet their initial burden. They fail to do so here. Defendants have also failed to show plaintiff is unable to establish the elements of any of he pleaded causes of action. (Ibid.) It is worth noting that challenging the sufficiency of the pleadings is not the proper standard for summary judgment motion. Summary judgment negates the elements of a cause of action through extrinsic evidence; challenge to the untentability of the pleadings are brought by way demurrer or motion for judgment on the pleadings. (Cordova v. 21st Century Insurance Co. (2005) 129 Cal.App.4th 89, 109.) Defendants were unsuccessful in challenging the sufficiency of the allegations with their demurrer heard on May 9, 2019, and fail to raise any further pleading deficiencies here. Since defendants have failed to meet their burden here, the motion is denied. 34 Mary Bardellini & Associat es RTING REALTIME REPO INTERACTIVE or www.bardellini.com Court Corte Naney Rasant cmteut info * Court and Deposition Reporters Covering World! Placer, Sacramento, Nevada Counties... The n pv Ss antc Sr a ameail “com Two Conference Rooms + Video Depositions Shanna Gilbert (910) 157-6550 Auburn, Ca 93603 we CSR #1235 Office Email: depos@bardellini.com (530) 823-2950