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1 MICHAEL A.J. NANGANO, CSB #133999
mnangano@lacounsel.com
2 MICHAEL AJ NANGANO, A LAW CORPORATION
133 N Altadena Dr, Ste 403
3 Pasadena, California 91107
Telephone: (626) 796-9998
4 Fax: (626) 796-9992
5 LAWRENCE E. SKIDMORE, CSB #137587
lskidmore@asilaw.org
6 ARONOWITZ SKIDMORE LYON
A Professional Law Corporation
7 200 Auburn Folsom Road, Suite 305
Auburn, California 95603
8 Telephone: (530) 823-9736
Fax: (530) 823-5241
9
Attorneys for Defendants
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11
IN AND FOR THE COUNTY OF PLACER
12
Tel (530)823-9736, Fax (530) 823-5241
PACIFIC UNION INTERNATIONAL, Case No.: S-CV-0042080
13 INC.,
DEFENDANTS’ OPPOSITION TO
14 Plaintiff, PLAINTIFF’S MOTION IN LIMINE
v. NO. 2 REFERENCES QUESTIONING
15 WHETHER PACIFIC UNION
ERIK LUDWICK, an individual AND INTERNATIONAL, INC.
16 ACQUIRED PARTNERS TRUST
Settlor of The Anything Trust dated October
17 12,2007; THE ANYTHING TRUST [Unlimited Civil Case]
DATED OCTOBER 12, 2007; PAUL D.
18 BOOTH, in his capacity as Trustee of The Trial: August 8, 2022
Anything Trust Dated October 12, 2007; and
19 Does 1 through 50, inclusive.
20 Defendants.
21
22
23 Defendants ERIK LUDWICK, an individual and Settlor of The Anything Trust dated
24 October 12,2007; THE ANYTHING TRUST DATED OCTOBER 12, 2007; PAUL D.
25 BOOTH, in his capacity as Trustee of The Anything Trust Dated October 12, 2007
26 (“Defendants”) submits the following opposition to Plaintiff PACIFIC UNION
27 INTERNATIONAL, INC. (“PUI”) Motion for Limine No. 2 to References Questioning
28 Whether Pacific Union International, Inc. Acquired Partners Trust (“MIL No. 2”).
1
Defendants Opposition to PUI’s Motion in Limine No. 2
1 I. INTRODUCTION
2 This motion should be denied because PUI must prove the existence of a listing
3 agreement with Defendant Anything Trust for the payment of a commission to PUI arising out
4 of the sale of the real property located at 200 Toyopa Drive, Pacific Palisades, CA 90272 in the
5 County of Los Angeles, CA (the “Toyopa Property”). Pursuant to Civil Code §1624(a)(4),
6 Plaintiff PUI can only pursue its claim for a commission by pleading and proving it entered into
7 a written contract with Defendants employing Plaintiff to find a purchaser of real estate for
8 compensation or commission. (Civil Code §1624(a)(4); Phillippe v. Shapell Industries, (1987)
9 Cal.3d 1247) (“Shapell”). PUI cannot point to such an agreement between PUI and the
10 Anything Trust but instead relies upon the listing agreement dated August 26, 2016 (“Listing
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 Agreement”) by and between Partners Trust and Defendant Paul D. Booth, trustee of the
12 Anything Trust dated October 12, 2007 (“Anything Trust”). (See Plaintiff’s Complaint filed
Tel (530)823-9736, Fax (530) 823-5241
13 November 7, 2018, ¶10, Exhibit A.) Plaintiff PUI’s claim in this case rests upon an argument
14 that it “acquired” Partners Trust and by that “acquisition” succeeded to Partners Trust’s rights to
15 the commission under that agreement.
16 PUI is being coy by continued use of the term “acquired” when referring to the
17 transaction between PUI and Partners Trust. PUI does not want scrutiny into the true character
18 of that transaction. Scrutiny will draw attention to the fact that PUI did not, in fact, “acquire”
19 Partners Trust. The evidence at trial will show that Partners Trust did not merge with PUI as
20 PUI contends. The character of the transaction was not a “merger”. Accordingly, Corporations
21 Code §1107 on which PUI relies has no application to the facts of this case. Defendants must be
22 permitted to contend that PUI did not acquire Partners Trust and to offer and introduce evidence
23 and examine PUI and its witnesses with respect to the character of the transaction between PUI
24 and Partners Trust to expose PUI’s charade that PUI acquired Partners Trust which then merged
25 into PUI and dispel the argument that PUI succeeded to Partners Trust's rights under the only
26 listing agreement in this action.
27 Defendants must be further permitted to contend that PUI did not acquire any rights
28 under the Listing Agreement to pursue its claim against the Anything Trust for a commission.
2
Defendants Opposition to PUI’s Motion in Limine No. 2
1 As explained below, a broker claiming a real estate commission must plead and prove the
2 broker has written agreement with the seller for the payment of a commission. PUI is not a party
3 to any such listing agreement. Defendants must be allowed to contend that PUI has no written
4 agreement with the Anything Trust, did not acquire any such agreement from Partners Trust and
5 to offer evidence and examine witnesses in support of that contention.
6 II. BACKGROUND
7 Plaintiff PUI is seeking to recover a commission from Defendants arising from the sale
8 of the Toyopa Property. The only agreement calling for the payment of a commission on the
9 sale of that property is the Listing Agreement. There is no written listing agreement between
10 Plaintiff PUI and the Anything Trust with respect to the Toyopa Property. Despite that, Plaintiff
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 claims it can enforce the Listing Agreement even though Plaintiff PUI is not a party to that
12 agreement.
Tel (530)823-9736, Fax (530) 823-5241
13 PUI bases its claim on its contention that it “acquired” Partners Trust in August 2017.
14 PUI first claims that with that acquisition, it succeeded to Partners Trust’s rights to a
15 commission pursuant to Corporations Code §1107. Assuming but not conceding that Section
16 1107 could operate to confer on PUI rights to enforce the Listing Agreement notwithstanding
17 Civil Code §1624(a)(4), evidence must be produced to determine whether the transaction
18 between PUI and Partners Trust is the type which would invoke any rights in PUI under Section
19 1107. Defendants must be allowed to introduce evidence of that transaction and examine PUI’s
20 witnesses with respect to the character of that transaction.
21 PUI claims also that Partners Trust transferred its right to PUI to sue for recovery of the
22 commission under the Listing Agreement. The fact of any such transfer in the transaction is
23 material to the crux of this case, that is, can PUI enforce the Listing Agreement to which it was
24 not a party by an alleged transfer of that agreement from Partners Trust. PUI does not claim that
25 Defendants were aware of the alleged transfer of the Listing Agreement. In fact, the evidence at
26 trial will show that when the Anything Trust accepted an offer to purchase the Toyopa Property
27 in September 2017, Defendants were unaware of PUI. The real estate purchase contract
28 identified Partners Trust as the real estate broker for seller, Anything Trust. Until PUI made a
3
Defendants Opposition to PUI’s Motion in Limine No. 2
1 demand in escrow for payment of a commission, the Anything Trust was never informed that
2 Partners Trust had transferred the Listing Agreement to PUI. The Anything Trust never
3 consented to a transfer of the Listing Agreement from Partners Trust to PUI. At trial Defendants
4 must be permitted to contend that and introduce evidence disputing PUI’s claim to a right to
5 receive a commission under the Listing Agreement with Partners Trust.
6 III. MEMORANDUM OF POINTS AND AUTHORITIES
7 A. Defendants must be allowed to present evidence of the transaction between PUI
and Partners Trust to dispel PUI’s claim that it succeeded to Partners Trust’s
8 rights under the listing agreement pursuant to Corporations Code sec. 1107.
9 Assuming but not conceding that Corporations Code section 1107 could apply to allow
10 the transfer the rights under a residential real estate listing agreement from the broker party to
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 that agreement to another non-signatory broker, it must still be proven that the transaction upon
12 which the non-signatory broker relies to assert rights under that listing agreement is within the
Tel (530)823-9736, Fax (530) 823-5241
13 scope of section 1107. Section 1107 is within the Chapter 11 of the Corporations Code entitled
14 “Merger”. A merger consists of a combination in which constituent corporations are merged
15 into a surviving corporation. (See J. C. Peacock v. Hasko, (1960) 184 Cal.App.2d 142, 150.)
16 When there is a merger of two or more corporations, pursuant to Corporations Code section
17 1107(a):
18 Upon merger pursuant to this chapter the separate existence of the disappearing
corporations ceases and the surviving corporation shall succeed, without other
19 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
20 if the surviving corporation had itself incurred them.
21 PUI relies upon Corporation Code section 1107 to argue that it has succeeded to all the
22 rights of Partners Trust with PUI’s transaction with Partners Trust. However, for that to be true,
23 even assuming that real estate listing agreement can be the subject of such succession, there
24 must be evidence presented at trial that the transaction between PUI and Partners Trust was a
25 “merger”. The transaction agreement between PUI and Partners Trust will be directly relevant
26 to that issue as it characterizes the nature of that transaction. Defendants must be allowed to
27 examine Plaintiff on that agreement, the nature of the transaction and the terms of that
28 agreement to ascertain whether the transaction constituted a merger.
4
Defendants Opposition to PUI’s Motion in Limine No. 2
1 B. Defendants must be allowed to present evidence and suggest that PUI did not
acquire any rights under the Listing Agreement to claim a commission from the
2 Anything Trust.
3 As explained above, PUI is attempting to enforce the Listing Agreement to which it is
4 not a party. PUI must prove it has a written agreement with Defendants to recover a
5 commission.
6 As applicable to this case, Civil Code §1624(4) provides in pertinent part that:
7 "(a) The following contracts are invalid, unless they, or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party's agent:
8
(4) An agreement authorizing or employing an agent, broker, or any other person to
9 purchase or sell real estate, ... or to procure, introduce, or find a purchaser or seller
of real estate ... for compensation or a commission."
10
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 Thus, "section 1624 of the Civil Code is applicable to the collection by the agent or
12 broker of his '* * * compensation or a commission * * *' and the enforcement by the principal
Tel (530)823-9736, Fax (530) 823-5241
13 of the broker's agreement ... " (Steiner v. Rowley, 35 Cal.2d 713, 715; quoting Marks v. Walter
14 G. McCarty Corp., 33 Cal.2d 814, 205 P.2d 1025 & Le Blond v. Wolfe, 83 Cal.App.2d 282,188
15 P.2d 278.) "The purpose of [this provision] is to protect the owner of real property, not from
16 every claim of a commission for selling the same, but from claims from persons never by
17 him employed or authorized to act." (Moore v. Borgfeldt, (1929) 96 Cal.App. 306, 313;
18 emphasis added.)
19 For a real estate broker to be entitled to recover a commission for a sale of real property,
20 a broker must prove (1) that he was employed by or on behalf of the owner to sell the
21 property; and (2) that his authority, or some note or memorandum thereof, was in writing,
22 signed by the seller, or by his authorized agent. (Civil Code, §1624(a)(4); McCarthy v.
23 Loupe, (1882) 62 Cal. 299; Steiner v. Rowley, supra, 35 Cal.2d at 715; and Walter H. Leimert
24 Co. v. Woodson, 125 Cal.App.2d 186, 2d Dist. 1954; and Phillippe v. Shapell Industries, supra,
25 43 Cal. 3d 1247; emphasis added.)
26 The cases PUI to which refers in its MIL No. 2 for the proposition that a claim to unpaid
27 commissions can be assigned are not precedent for the argument PUI makes in that regard.
28 None of them considered whether a listing agreement containing a right to commission can be
5
Defendants Opposition to PUI’s Motion in Limine No. 2
1 assigned. “It is axiomatic that cases are not authority for propositions not considered.” (People
2 v. Gilbert (1969) 1 Cal.3d 475, 482, fn.7.)
3 Whether PUI has a written agreement meeting the requirement of Civil Code section
4 1624(a)(4) and the requirements to pursue a commission as stated in the Shapell, case supra, is
5 a fundamental issue in this case. Certainly, PUI cannot point to a written agreement it has with
6 the Anything Trust meeting the requirements of Section 1624 of Shapell. PUI contends that
7 Partners Trust transferred its rights to receive commissions under the Listing Agreement to PUI.
8 Defendants must be permitted to “suggest” that and question as well as introduce evidence on
9 the issue whether PUI has a written agreement with the Anything Trust for the payment of a
10 commission on the sale of the Toyopa Property. PUI’s attempt to preclude Defendants from
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 contending that or offering and introducing evidence to show PUI has no enforceable right
12 against the Anything Trust to a commission by its in limine motion must be denied.
Tel (530)823-9736, Fax (530) 823-5241
13 II. CONCLUSION
14 For the reasons set forth above, Defendants respectfully request that the Court deny
15 Plaintiff PUI’s Motion in Limine No. 2.
16 Dated August 3, 2022 Respectfully submitted,
17 ARONOWITZ SKIDMORE LYON
A Professional Law Corporation
18 Lawrence E. Digitally signed by Lawrence E. Skidmore
DN: cn=Lawrence E. Skidmore,
o=Aronowitz Skidmore Lyon, ou,
19 Skidmore email=lskidmore@asilaw.org, c=US
By:_______________________________
Date: 2022.08.03 14:23:55 -07'00'
LAWRENCE E. SKIDMORE
20 Attorney for Defendants
21
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25
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6
Defendants Opposition to PUI’s Motion in Limine No. 2
1 Case Name: PUI v. ERIK LUDWICK et al.
2 Case Number: S-CV-0042080
3 PROOF OF SERVICE
4 I, the undersigned, declare as follows:
I am a citizen of the United States, over the age of eighteen years, and not a party to the
5
within action. My business address is 200 Auburn Folsom Road, Suite 305, Auburn, California
6 95603.
7 On August 3, 2022, I served a copy of the within document(s):
8 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2
REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL,
9
INC. ACQUIRED PARTNERS TRUST
10
in the above-entitled action by:
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11
ELECTRONIC SERVICE: I caused the document(s) to be sent to the person(s) at the
12
Tel (530)823-9736, Fax (530) 823-5241
electronic notification address(es) listed below and in accordance with amended CA Civ
Pro Code § 1010.6(e)(1)-(2). If, within a reasonable time, the transmission was reported as
13
complete and without error, service will be deemed effectively delivered and received
14 pursuant to CA Civ Pro Code § 1010.6(a)(4)-(5).
15 Shannon B. Jones, Esq. Email:
Lindsey Morgan, Esq. sbjlg@sbj-law.com
16 SHANNON B. JONES LAW GROUP, INC. sbj@sbj-law.com
lam@sbj-law.com
17 208 W. El Pintado Road
Danville, CA 94526
18 Attorneys for Plaintiff
19
20 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 3rd day of August, 2022, at Auburn, California.
21
22 _______________________________
23 Lorien Melton
lmelton@asilaw.org
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25
26
27
28
7
Defendants Opposition to PUI’s Motion in Limine No. 2
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1 MICHAEL A.J. NANGANO, CSB #133999 mnangano@lacounsel.com 2 MICHAEL AJ NANGANO, A LAW CORPORATION 133 N Altadena Dr, Ste 403 3 Pasadena, California 91107 Telephone: (626) 796-9998 4 Fax: (626) 796-9992 5 LAWRENCE E. SKIDMORE, CSB #137587 lskidmore@asilaw.org 6 ARONOWITZ SKIDMORE LYON A Professional Law Corporation 7 200 Auburn Folsom Road, Suite 305 Auburn, California 95603 8 Telephone: (530) 823-9736 Fax: (530) 823-5241 9 Attorneys for Defendants 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 IN AND FOR THE COUNTY OF PLACER 12 Tel (530)823-9736, Fax (530) 823-5241 PACIFIC UNION INTERNATIONAL, Case No.: S-CV-0042080 13 INC., DEFENDANTS’ OPPOSITION TO 14 Plaintiff, PLAINTIFF’S MOTION IN LIMINE v. NO. 2 REFERENCES QUESTIONING 15 WHETHER PACIFIC UNION ERIK LUDWICK, an individual AND INTERNATIONAL, INC. 16 ACQUIRED PARTNERS TRUST Settlor of The Anything Trust dated October 17 12,2007; THE ANYTHING TRUST [Unlimited Civil Case] DATED OCTOBER 12, 2007; PAUL D. 18 BOOTH, in his capacity as Trustee of The Trial: August 8, 2022 Anything Trust Dated October 12, 2007; and 19 Does 1 through 50, inclusive. 20 Defendants. 21 22 23 Defendants ERIK LUDWICK, an individual and Settlor of The Anything Trust dated 24 October 12,2007; THE ANYTHING TRUST DATED OCTOBER 12, 2007; PAUL D. 25 BOOTH, in his capacity as Trustee of The Anything Trust Dated October 12, 2007 26 (“Defendants”) submits the following opposition to Plaintiff PACIFIC UNION 27 INTERNATIONAL, INC. (“PUI”) Motion for Limine No. 2 to References Questioning 28 Whether Pacific Union International, Inc. Acquired Partners Trust (“MIL No. 2”). 1 Defendants Opposition to PUI’s Motion in Limine No. 2 1 I. INTRODUCTION 2 This motion should be denied because PUI must prove the existence of a listing 3 agreement with Defendant Anything Trust for the payment of a commission to PUI arising out 4 of the sale of the real property located at 200 Toyopa Drive, Pacific Palisades, CA 90272 in the 5 County of Los Angeles, CA (the “Toyopa Property”). Pursuant to Civil Code §1624(a)(4), 6 Plaintiff PUI can only pursue its claim for a commission by pleading and proving it entered into 7 a written contract with Defendants employing Plaintiff to find a purchaser of real estate for 8 compensation or commission. (Civil Code §1624(a)(4); Phillippe v. Shapell Industries, (1987) 9 Cal.3d 1247) (“Shapell”). PUI cannot point to such an agreement between PUI and the 10 Anything Trust but instead relies upon the listing agreement dated August 26, 2016 (“Listing 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 Agreement”) by and between Partners Trust and Defendant Paul D. Booth, trustee of the 12 Anything Trust dated October 12, 2007 (“Anything Trust”). (See Plaintiff’s Complaint filed Tel (530)823-9736, Fax (530) 823-5241 13 November 7, 2018, ¶10, Exhibit A.) Plaintiff PUI’s claim in this case rests upon an argument 14 that it “acquired” Partners Trust and by that “acquisition” succeeded to Partners Trust’s rights to 15 the commission under that agreement. 16 PUI is being coy by continued use of the term “acquired” when referring to the 17 transaction between PUI and Partners Trust. PUI does not want scrutiny into the true character 18 of that transaction. Scrutiny will draw attention to the fact that PUI did not, in fact, “acquire” 19 Partners Trust. The evidence at trial will show that Partners Trust did not merge with PUI as 20 PUI contends. The character of the transaction was not a “merger”. Accordingly, Corporations 21 Code §1107 on which PUI relies has no application to the facts of this case. Defendants must be 22 permitted to contend that PUI did not acquire Partners Trust and to offer and introduce evidence 23 and examine PUI and its witnesses with respect to the character of the transaction between PUI 24 and Partners Trust to expose PUI’s charade that PUI acquired Partners Trust which then merged 25 into PUI and dispel the argument that PUI succeeded to Partners Trust's rights under the only 26 listing agreement in this action. 27 Defendants must be further permitted to contend that PUI did not acquire any rights 28 under the Listing Agreement to pursue its claim against the Anything Trust for a commission. 2 Defendants Opposition to PUI’s Motion in Limine No. 2 1 As explained below, a broker claiming a real estate commission must plead and prove the 2 broker has written agreement with the seller for the payment of a commission. PUI is not a party 3 to any such listing agreement. Defendants must be allowed to contend that PUI has no written 4 agreement with the Anything Trust, did not acquire any such agreement from Partners Trust and 5 to offer evidence and examine witnesses in support of that contention. 6 II. BACKGROUND 7 Plaintiff PUI is seeking to recover a commission from Defendants arising from the sale 8 of the Toyopa Property. The only agreement calling for the payment of a commission on the 9 sale of that property is the Listing Agreement. There is no written listing agreement between 10 Plaintiff PUI and the Anything Trust with respect to the Toyopa Property. Despite that, Plaintiff 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 claims it can enforce the Listing Agreement even though Plaintiff PUI is not a party to that 12 agreement. Tel (530)823-9736, Fax (530) 823-5241 13 PUI bases its claim on its contention that it “acquired” Partners Trust in August 2017. 14 PUI first claims that with that acquisition, it succeeded to Partners Trust’s rights to a 15 commission pursuant to Corporations Code §1107. Assuming but not conceding that Section 16 1107 could operate to confer on PUI rights to enforce the Listing Agreement notwithstanding 17 Civil Code §1624(a)(4), evidence must be produced to determine whether the transaction 18 between PUI and Partners Trust is the type which would invoke any rights in PUI under Section 19 1107. Defendants must be allowed to introduce evidence of that transaction and examine PUI’s 20 witnesses with respect to the character of that transaction. 21 PUI claims also that Partners Trust transferred its right to PUI to sue for recovery of the 22 commission under the Listing Agreement. The fact of any such transfer in the transaction is 23 material to the crux of this case, that is, can PUI enforce the Listing Agreement to which it was 24 not a party by an alleged transfer of that agreement from Partners Trust. PUI does not claim that 25 Defendants were aware of the alleged transfer of the Listing Agreement. In fact, the evidence at 26 trial will show that when the Anything Trust accepted an offer to purchase the Toyopa Property 27 in September 2017, Defendants were unaware of PUI. The real estate purchase contract 28 identified Partners Trust as the real estate broker for seller, Anything Trust. Until PUI made a 3 Defendants Opposition to PUI’s Motion in Limine No. 2 1 demand in escrow for payment of a commission, the Anything Trust was never informed that 2 Partners Trust had transferred the Listing Agreement to PUI. The Anything Trust never 3 consented to a transfer of the Listing Agreement from Partners Trust to PUI. At trial Defendants 4 must be permitted to contend that and introduce evidence disputing PUI’s claim to a right to 5 receive a commission under the Listing Agreement with Partners Trust. 6 III. MEMORANDUM OF POINTS AND AUTHORITIES 7 A. Defendants must be allowed to present evidence of the transaction between PUI and Partners Trust to dispel PUI’s claim that it succeeded to Partners Trust’s 8 rights under the listing agreement pursuant to Corporations Code sec. 1107. 9 Assuming but not conceding that Corporations Code section 1107 could apply to allow 10 the transfer the rights under a residential real estate listing agreement from the broker party to 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 that agreement to another non-signatory broker, it must still be proven that the transaction upon 12 which the non-signatory broker relies to assert rights under that listing agreement is within the Tel (530)823-9736, Fax (530) 823-5241 13 scope of section 1107. Section 1107 is within the Chapter 11 of the Corporations Code entitled 14 “Merger”. A merger consists of a combination in which constituent corporations are merged 15 into a surviving corporation. (See J. C. Peacock v. Hasko, (1960) 184 Cal.App.2d 142, 150.) 16 When there is a merger of two or more corporations, pursuant to Corporations Code section 17 1107(a): 18 Upon merger pursuant to this chapter the separate existence of the disappearing corporations ceases and the surviving corporation shall succeed, without other 19 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 20 if the surviving corporation had itself incurred them. 21 PUI relies upon Corporation Code section 1107 to argue that it has succeeded to all the 22 rights of Partners Trust with PUI’s transaction with Partners Trust. However, for that to be true, 23 even assuming that real estate listing agreement can be the subject of such succession, there 24 must be evidence presented at trial that the transaction between PUI and Partners Trust was a 25 “merger”. The transaction agreement between PUI and Partners Trust will be directly relevant 26 to that issue as it characterizes the nature of that transaction. Defendants must be allowed to 27 examine Plaintiff on that agreement, the nature of the transaction and the terms of that 28 agreement to ascertain whether the transaction constituted a merger. 4 Defendants Opposition to PUI’s Motion in Limine No. 2 1 B. Defendants must be allowed to present evidence and suggest that PUI did not acquire any rights under the Listing Agreement to claim a commission from the 2 Anything Trust. 3 As explained above, PUI is attempting to enforce the Listing Agreement to which it is 4 not a party. PUI must prove it has a written agreement with Defendants to recover a 5 commission. 6 As applicable to this case, Civil Code §1624(4) provides in pertinent part that: 7 "(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: 8 (4) An agreement authorizing or employing an agent, broker, or any other person to 9 purchase or sell real estate, ... or to procure, introduce, or find a purchaser or seller of real estate ... for compensation or a commission." 10 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 Thus, "section 1624 of the Civil Code is applicable to the collection by the agent or 12 broker of his '* * * compensation or a commission * * *' and the enforcement by the principal Tel (530)823-9736, Fax (530) 823-5241 13 of the broker's agreement ... " (Steiner v. Rowley, 35 Cal.2d 713, 715; quoting Marks v. Walter 14 G. McCarty Corp., 33 Cal.2d 814, 205 P.2d 1025 & Le Blond v. Wolfe, 83 Cal.App.2d 282,188 15 P.2d 278.) "The purpose of [this provision] is to protect the owner of real property, not from 16 every claim of a commission for selling the same, but from claims from persons never by 17 him employed or authorized to act." (Moore v. Borgfeldt, (1929) 96 Cal.App. 306, 313; 18 emphasis added.) 19 For a real estate broker to be entitled to recover a commission for a sale of real property, 20 a broker must prove (1) that he was employed by or on behalf of the owner to sell the 21 property; and (2) that his authority, or some note or memorandum thereof, was in writing, 22 signed by the seller, or by his authorized agent. (Civil Code, §1624(a)(4); McCarthy v. 23 Loupe, (1882) 62 Cal. 299; Steiner v. Rowley, supra, 35 Cal.2d at 715; and Walter H. Leimert 24 Co. v. Woodson, 125 Cal.App.2d 186, 2d Dist. 1954; and Phillippe v. Shapell Industries, supra, 25 43 Cal. 3d 1247; emphasis added.) 26 The cases PUI to which refers in its MIL No. 2 for the proposition that a claim to unpaid 27 commissions can be assigned are not precedent for the argument PUI makes in that regard. 28 None of them considered whether a listing agreement containing a right to commission can be 5 Defendants Opposition to PUI’s Motion in Limine No. 2 1 assigned. “It is axiomatic that cases are not authority for propositions not considered.” (People 2 v. Gilbert (1969) 1 Cal.3d 475, 482, fn.7.) 3 Whether PUI has a written agreement meeting the requirement of Civil Code section 4 1624(a)(4) and the requirements to pursue a commission as stated in the Shapell, case supra, is 5 a fundamental issue in this case. Certainly, PUI cannot point to a written agreement it has with 6 the Anything Trust meeting the requirements of Section 1624 of Shapell. PUI contends that 7 Partners Trust transferred its rights to receive commissions under the Listing Agreement to PUI. 8 Defendants must be permitted to “suggest” that and question as well as introduce evidence on 9 the issue whether PUI has a written agreement with the Anything Trust for the payment of a 10 commission on the sale of the Toyopa Property. PUI’s attempt to preclude Defendants from 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 contending that or offering and introducing evidence to show PUI has no enforceable right 12 against the Anything Trust to a commission by its in limine motion must be denied. Tel (530)823-9736, Fax (530) 823-5241 13 II. CONCLUSION 14 For the reasons set forth above, Defendants respectfully request that the Court deny 15 Plaintiff PUI’s Motion in Limine No. 2. 16 Dated August 3, 2022 Respectfully submitted, 17 ARONOWITZ SKIDMORE LYON A Professional Law Corporation 18 Lawrence E. Digitally signed by Lawrence E. Skidmore DN: cn=Lawrence E. Skidmore, o=Aronowitz Skidmore Lyon, ou, 19 Skidmore email=lskidmore@asilaw.org, c=US By:_______________________________ Date: 2022.08.03 14:23:55 -07'00' LAWRENCE E. SKIDMORE 20 Attorney for Defendants 21 22 23 24 25 26 27 28 6 Defendants Opposition to PUI’s Motion in Limine No. 2 1 Case Name: PUI v. ERIK LUDWICK et al. 2 Case Number: S-CV-0042080 3 PROOF OF SERVICE 4 I, the undersigned, declare as follows: I am a citizen of the United States, over the age of eighteen years, and not a party to the 5 within action. My business address is 200 Auburn Folsom Road, Suite 305, Auburn, California 6 95603. 7 On August 3, 2022, I served a copy of the within document(s): 8 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO. 2 REFERENCES QUESTIONING WHETHER PACIFIC UNION INTERNATIONAL, 9 INC. ACQUIRED PARTNERS TRUST 10 in the above-entitled action by: 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 ELECTRONIC SERVICE: I caused the document(s) to be sent to the person(s) at the 12 Tel (530)823-9736, Fax (530) 823-5241 electronic notification address(es) listed below and in accordance with amended CA Civ Pro Code § 1010.6(e)(1)-(2). If, within a reasonable time, the transmission was reported as 13 complete and without error, service will be deemed effectively delivered and received 14 pursuant to CA Civ Pro Code § 1010.6(a)(4)-(5). 15 Shannon B. Jones, Esq. Email: Lindsey Morgan, Esq. sbjlg@sbj-law.com 16 SHANNON B. JONES LAW GROUP, INC. sbj@sbj-law.com lam@sbj-law.com 17 208 W. El Pintado Road Danville, CA 94526 18 Attorneys for Plaintiff 19 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 3rd day of August, 2022, at Auburn, California. 21 22 _______________________________ 23 Lorien Melton lmelton@asilaw.org 24 25 26 27 28 7 Defendants Opposition to PUI’s Motion in Limine No. 2