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1 SHANNON B. JONES LAW GROUP, INC.
SHANNON B. JONES (Bar No. 149222)
2 sbj@sbj-law.com
LINDSEY A. MORGAN (Bar No. 274214)
3 lam@sbj-law.com
208 W. El Pintado Road
4 Danville, California 94526
Telephone: (925) 837-2317
5 Facsimile: (925) 837-4831
6 Attorneys for Plaintiff
PACIFIC UNION INTERNATIONAL, INC.
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF PLACER
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PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080
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Plaintiff, ) PACIFIC UNION INTERNATIONAL,
12 ) INC.’S OPPOSITION TO DEFENDANTS’
v. ) MOTION IN LIMINE NO. 1
13 )
ERIK LUDWICK, an individual and )
14 beneficiary of The Anything Trust Dated ) Complaint Filed: November 7, 2018
October 12, 2007; THE ANYTHING TRUST ) Trial Date: August 8, 2022
15 DATED OCTOBER 12, 2007; PAUL D. )
BOOTH, in his capacity as trustee of The )
16 Anything Trust Dated October 12, 2007; and )
DOES 1-50, )
17 )
Defendants. )
18 )
)
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Plaintiff PACIFIC UNION INTERNATIONAL, INC. (“Pacific Union”)
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respectfully submits this opposition to Defendants ERIK LUDWICK, an individual and
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beneficiary of The Anything Trust Dated October 12, 2007; THE ANYTHING TRUST DATED
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OCTOBER 12, 2007; PAUL D. BOOTH, in his capacity as trustee of The Anything Trust Dated
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October 12, 2007 (collectively, “Defendants”), Motion in Limine No. 1.
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I. INTRODUCTION
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In their Motion in Limine No. 1 (“Motion”), Defendants seek an order precluding
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the introduction of evidence to prove that Defendants have an agreement with Pacific Union for
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the payment of a commission that meets the requirements of the statute of frauds. Defendants
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also seek an order precluding Pacific Union from introducing evidence to prove that Defendants
_____________________________________________________________________________________________________________________
PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 consented to an assignment of the listing agreement with Partners Trust or approved Pacific
2 Union as a substitution for Partners Trust for the listing agreement. Defendants fail to identify
3 what specific evidence they anticipate this request will encompass. The Motion is confusing and
4 meritless, and this Court has already rejected the premise of the Motion when it denied
5 Defendants’ motion for summary judgment. The Motion should be denied.
6 II. STATEMENT OF FACTS
7 Pacific Union hereby incorporates by reference their Statement of Facts In
8 Support of all of its Motions in Limine, filed on July 28, 2022, supplemented by the following
9 facts.
10 On or about July 28, 2022, counsel for Pacific Union emailed counsel for
11 Defendants to inquire availability to meet and confer regarding the parties’ contemplated
12 motions in limine. (Declaration of Lindsey Morgan in Support of Opposition to Defendants’
13 Motion in Limine (“Morgan Decl.”), ¶ 2.) Counsel for Pacific Union stated that she was
14 generally available to discuss. (Id.) Counsel for Defendants responded stating that Defendants
15 intended to file the present motion in limine, but did not advise when counsel would be available
16 to meet and confer regarding the evidence contemplated to be excluded. (Id., ¶3.) Accordingly,
17 counsel for Pacific Union responded providing her availability for July 29 and August 1, to
18 which she received no response. (Id., ¶4.)
19 III. ARGUMENT
20 A. Defendants Failed to Follow Local Rule 20.4(F)
21 Counsel for Pacific Union inquired with counsel for Defendants regarding
22 availability to meet and confer regarding any proposed motions in limine on July 28, 2022.
23 (Morgan Decl., ¶ 2.) Defendants filed the present Motion on July 29, 2022, after the Civil Trial
24 Conference in this matter was held, and without making any attempt to meet and confer with
25 counsel for Pacific Union. Defendants’ Motion states that Defendants intended the service of the
26 motion to be the extent of their meet and confer regarding the issue and that Pacific Union could
27 contact Defendant to stipulate to the requested relief. (Defendants’ Motion in Limine No. 1, p.
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 4:17-20). Pacific Union and Defendants have fundamentally disagreed about the position
2 Defendants have taken on this issue since the inception of this litigation.
3 The Motion does not comply with the local rules of this Court. It fails to clearly
4 identify the specific matter alleged to be inadmissible or unduly prejudicial, does not make any
5 representation of efforts to meet and confer, and does not contain a statement of the specific
6 prejudice that would be suffered. (L.R. 20.4(F).) The Motion should be denied on these grounds
7 alone.
8 B. Defendants’ Request Has No Factual or Legal Merit
9 In their Motion, Defendants reiterate the same failed argument that they raised in
10 support of their motion for summary judgment in this matter – that Pacific Union’s claims are
11 barred due to the statute of frauds and/or that Pacific Union lacks standing to assert these claims.
12 As such, Defendants seek to preclude Pacific Union from presenting any evidence that there is a
13 listing agreement that allows Pacific Union to recover a commission from the sale of the subject
14 property. In denying Defendants’ motion for summary judgment on March 11, 2021, this Court
15 ruled that Defendants had not provided any admissible evidence challenging Pacific Union’s
16 acquisition of the listing agreement as an asset, or of Pacific Union’s ability to enforce the
17 agreement. Defendants now attempt to preclude Pacific Union from introducing evidence of the
18 same.
19 Pacific Union has never pretended that there is a contract containing signatures
20 between Defendants and Pacific Union. Pacific Union acquired Partners Trust, the brokerage
21 which entered into the listing agreement with Defendants, toward the end of the listing, and now
22 Pacific Union seeks to enforce the listing agreement’s right to a commission. The law is fully
23 behind Pacific Union’s ability to do this. Pacific Union owns the listing agreement that
24 Defendants entered into with Partners Trust, and has produced the asset purchase agreement
25 demonstrating this. (The document was produced as Confidential Information subject to the
26 Stipulated Protective Order in this case, and accordingly will be provided to the Court under
27 seal.)
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 As a matter of law, when Pacific Union acquired Partners Trust, it acquired the
2 right to enforce the agreement held by Partners Trust. Defendants assert, without any legal
3 support, that Corp. Code section 1107 is not applicable to situations involving a corporation’s
4 purchase of another company’s assets. However, whether the transaction is classified on its face
5 as a merger or asset acquisition makes absolutely no difference here. (See Malone v. Red Top
6 Cab Company (1936) 16 Cal.App.2d 268, 273-274 [application of former Corp. Code section
7 1107 stating whether a company acquires all assets of another company by merger or sale, the
8 new company takes all property including liabilities].) Moreoever, section 1107 of the
9 Corporations Code is not the only statutory authority upon which Pacific Union relies to assert
10 ownership of this commission and entitlement to bring this lawsuit.
11 There is no dispute that Partners Trust transferred its rights to recover the
12 commission to Pacific Union. Nor is there any legal question as to whether Pacific Union was
13 entitled to receive those rights, as “[a] thing in action, arising out of the violation of a right of
14 property, or out of an obligation, may be transferred by the owner.” (Civ. Code §954.)
15 Accordingly, Pacific Union is entitled to enforce the Contract. (“Persons entitled to enforce an
16 instrument means (a) the holder of the instrument, (b) a non-holder in possession of the
17 instrument who has the rights of a holder . . .”. (Com. Code, § 3301.)) Successor companies
18 such as Pacific Union have standing to enforce provisions of a contract initially entered into by
19 the company they purchased. (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243
20 Cal.App.4th 1, 10.) None of these authorities are addressed or acknowledged by Defendants,
21 and these are all arguments Defendants have been aware of for years.
22 Unpaid commissions in real estate, moreover, are assignable interests. (Schaffter
23 v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, holding a breach of
24 contract action for unpaid commissions on the sale of real estate is assignable from one business
25 entity to another.) Brokers have long been able to assign their rights to commissions.
26 (Richmond Realeteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400, 401-402,
27 determining how to apply a complicated commission provision assigned by a real estate broker
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 to a company.) Pacific Union has presented these arguments to Defendants repeatedly and
2 received no response.
3 C. The Suggestion That Any Documents Were Improperly Held in Discovery
Is Without Merit
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The Motion presents a completely unfounded request that the Court “exclude
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undisclosed evidence,” then fails to explain what it is describing. Defendants propounded
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exactly two (2) interrogatories to Pacific Union regarding assignment of the Listing Agreement,
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and the text of those Interrogatories and Pacific Union’s responses to them are below.
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Defendants did not propound Interrogatories related to consent.
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SPECIAL INTERROGATORY NO. 48:
10 Please state all FACTS that support YOUR claim that the original
listing agreement between the parties to sell the PROPERTY for
11 $20,000,000 (Twenty Million Dollars) “irrevocably” assigned to
YOU the right to payment of compensation for the sale even
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though the listing agreement was modified by reducing the sale
13 price to $16,880,000.
RESPONSE TO SPECIAL INTERROGATORY NO. 48:
14 Responding Party objects to this interrogatory on the grounds that
it is overbroad, vague and ambiguous and seeks information that is
15 not relevant and not likely to lead to the discovery of admissible
16 evidence. Responding Party further objects to this interrogatory on
the grounds that it assumes facts not in evidence. Subject to and
17 without waiving the foregoing, Responding Party responds as
follows: Responding Party and Trust, by and through Trustee,
18 entered into a written contract on or about September 29, 2016,
which assigned Responding Party a commission of six percent
19 (6%). The terms of that contract were modified on February 23,
20 2017, June 9, 2017, and July 7, 2017. Paragraph 3E of the listing
agreement provides, “Seller hereby irrevocably assigns to Broker
21 the above compensation from Seller’s funds and proceeds in
escrow.” The subsequent modifications to the listing agreement
22 modified only the listing price, and expressly provide, “All other
terms of the Listing Agreement, Buyer Representation Agreement,
23 or other agreement as applicable, remain in full force and effect,
24 except as modified herein.” The commission percentage was not
modified.
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SPECIAL INTERROGATORY NO. 49:
26 Please FULLY DESCRIBE all DOCUMENTS that YOU assert
support YOUR claim that the original listing agreement between
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the parties to sell the PROPERTY for $20,000,000 (Twenty
28 Million Dollars) “irrevocably” assigned to YOU the right to
5
PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 payment of compensation for the sale even though the listing
agreement was modified by reducing the sale price to $16,880,000.
2 RESPONSE TO SPECIAL INTERROGATORY NO. 49:
3 Responding Party objects to this interrogatory on the grounds that
it is overbroad, vague and ambiguous and seeks information that is
4 not relevant and not likely to lead to the discovery of admissible
evidence. Responding Party further objects to this interrogatory on
5 the grounds that it assumes facts not in evidence. Subject to and
without waiving the foregoing, Responding Party responds as
6 follows: The listing agreement attached to the Complaint dated
7 September 29, 2016, which assigned Responding Party a
commission of six percent (6%), and modifications to that
8 agreement dated February 23, 2017, June 9, 2017, and July 7,
2017.
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Defendants have presented no particular discovery responses that they believe
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warrant exclusion of evidence by this Court. It is not clear what, precisely, Defendants ask this
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Court to do. To the extent Defendants are asking the Court to exclude any argument that Pacific
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Union is entitled to recover the commission, there are no factual or legal grounds for that request.
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To the extent Defendants are seeking to exclude a contract that Erik Ludwick or Paul Booth
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signed with Pacific Union itself, such a document does not exist and has not been produced, and
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is not necessary for Pacific Union to maintain this lawsuit.
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Accordingly, the Motion is confusing at best and unnecessary at worst, and
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Pacific Union requests that the Court deny it.
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IV. CONCLUSION
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Defendants assert that Pacific Union should be prohibited from presenting any
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evidence that Defendants consented to an assignment of the listing agreement or approved a
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substitution of Pacific Union in Partners Trust’s place. As set forth above, there is no legal
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authority for Defendants’ claim that such consent or approval was required in the first place, nor
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is there any basis for argument that Pacific Union is not entitled to bring this action to recover
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the commission. Partners Trust was permitted to and did assign its right to recover the
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commission under the listing agreement to Pacific Union. Further, Defendants present no
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support for their claim that Pacific Union withheld any evidence from its discovery responses.
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The only interrogatories set out in the Motion relate to whether Pacific Union purchased or
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merged with Partners Trust, which Pacific Union answered. Defendants have presented no
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 evidence whatsoever that Pacific Union was asked and refused to adequately respond to
2 discovery relating to Defendants’ consent or to the acquisition. Accordingly, Defendants’ claims
3 have no merit and this motion should be denied.
4 Dated: August 3, 2022
SHANNON B. JONES LAW GROUP, INC.
5
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By
7 SHANNON B. JONES
LINDSEY A. MORGAN
8 Attorneys for Plaintiff,
PACIFIC UNION INTERNATIONAL, INC.
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
1 DECLARATION OF LINDSEY A. MORGAN
2 I, Lindsey A. Morgan, declare:
3 1. I am an attorney licensed to practice in the State of California and am an
4 attorney with the Shannon B. Jones Law Group, Inc., counsel of record for Plaintiff PACIFIC
5 UNION INTERNATIONAL, INC. (“Pacific Union”). By virtue of that representation, I have
6 personal knowledge of the facts set forth in this declaration and if called upon to testify, I could
7 and would competently testify thereto, except as to those matters stated upon information and
8 belief and as to those matters, I am informed and believe them to be true.
9 2. On July 28, 2022, I sent an email to counsel for Defendants to inquire
10 regarding his availability to meet and confer regarding the parties’ contemplated motions in
11 limine. I advised that I was generally available to discuss the motions.
12 3. Counsel for Defendants responded stating that Defendants intended to file
13 the present motion in limine, but did not advise when he would be available to meet and confer
14 regarding the specific evidence contemplated to be excluded.
15 4. I responded on July 28, 2022 setting foth my availability to meet and
16 confer on July 29, 2022 or August 1, 2022. Counsel did not respond to my request.
17 I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct. Executed this 3rd day of August, 2022 at Coeur d’Alene, Idaho.
19 ______________________________________
LINDSEY A. MORGAN
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PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1
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1 SHANNON B. JONES LAW GROUP, INC. SHANNON B. JONES (Bar No. 149222) 2 sbj@sbj-law.com LINDSEY A. MORGAN (Bar No. 274214) 3 lam@sbj-law.com 208 W. El Pintado Road 4 Danville, California 94526 Telephone: (925) 837-2317 5 Facsimile: (925) 837-4831 6 Attorneys for Plaintiff PACIFIC UNION INTERNATIONAL, INC. 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080 11 ) Plaintiff, ) PACIFIC UNION INTERNATIONAL, 12 ) INC.’S OPPOSITION TO DEFENDANTS’ v. ) MOTION IN LIMINE NO. 1 13 ) ERIK LUDWICK, an individual and ) 14 beneficiary of The Anything Trust Dated ) Complaint Filed: November 7, 2018 October 12, 2007; THE ANYTHING TRUST ) Trial Date: August 8, 2022 15 DATED OCTOBER 12, 2007; PAUL D. ) BOOTH, in his capacity as trustee of The ) 16 Anything Trust Dated October 12, 2007; and ) DOES 1-50, ) 17 ) Defendants. ) 18 ) ) 19 Plaintiff PACIFIC UNION INTERNATIONAL, INC. (“Pacific Union”) 20 respectfully submits this opposition to Defendants ERIK LUDWICK, an individual and 21 beneficiary of The Anything Trust Dated October 12, 2007; THE ANYTHING TRUST DATED 22 OCTOBER 12, 2007; PAUL D. BOOTH, in his capacity as trustee of The Anything Trust Dated 23 October 12, 2007 (collectively, “Defendants”), Motion in Limine No. 1. 24 I. INTRODUCTION 25 In their Motion in Limine No. 1 (“Motion”), Defendants seek an order precluding 26 the introduction of evidence to prove that Defendants have an agreement with Pacific Union for 27 the payment of a commission that meets the requirements of the statute of frauds. Defendants 28 also seek an order precluding Pacific Union from introducing evidence to prove that Defendants _____________________________________________________________________________________________________________________ PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 consented to an assignment of the listing agreement with Partners Trust or approved Pacific 2 Union as a substitution for Partners Trust for the listing agreement. Defendants fail to identify 3 what specific evidence they anticipate this request will encompass. The Motion is confusing and 4 meritless, and this Court has already rejected the premise of the Motion when it denied 5 Defendants’ motion for summary judgment. The Motion should be denied. 6 II. STATEMENT OF FACTS 7 Pacific Union hereby incorporates by reference their Statement of Facts In 8 Support of all of its Motions in Limine, filed on July 28, 2022, supplemented by the following 9 facts. 10 On or about July 28, 2022, counsel for Pacific Union emailed counsel for 11 Defendants to inquire availability to meet and confer regarding the parties’ contemplated 12 motions in limine. (Declaration of Lindsey Morgan in Support of Opposition to Defendants’ 13 Motion in Limine (“Morgan Decl.”), ¶ 2.) Counsel for Pacific Union stated that she was 14 generally available to discuss. (Id.) Counsel for Defendants responded stating that Defendants 15 intended to file the present motion in limine, but did not advise when counsel would be available 16 to meet and confer regarding the evidence contemplated to be excluded. (Id., ¶3.) Accordingly, 17 counsel for Pacific Union responded providing her availability for July 29 and August 1, to 18 which she received no response. (Id., ¶4.) 19 III. ARGUMENT 20 A. Defendants Failed to Follow Local Rule 20.4(F) 21 Counsel for Pacific Union inquired with counsel for Defendants regarding 22 availability to meet and confer regarding any proposed motions in limine on July 28, 2022. 23 (Morgan Decl., ¶ 2.) Defendants filed the present Motion on July 29, 2022, after the Civil Trial 24 Conference in this matter was held, and without making any attempt to meet and confer with 25 counsel for Pacific Union. Defendants’ Motion states that Defendants intended the service of the 26 motion to be the extent of their meet and confer regarding the issue and that Pacific Union could 27 contact Defendant to stipulate to the requested relief. (Defendants’ Motion in Limine No. 1, p. 28 2 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 4:17-20). Pacific Union and Defendants have fundamentally disagreed about the position 2 Defendants have taken on this issue since the inception of this litigation. 3 The Motion does not comply with the local rules of this Court. It fails to clearly 4 identify the specific matter alleged to be inadmissible or unduly prejudicial, does not make any 5 representation of efforts to meet and confer, and does not contain a statement of the specific 6 prejudice that would be suffered. (L.R. 20.4(F).) The Motion should be denied on these grounds 7 alone. 8 B. Defendants’ Request Has No Factual or Legal Merit 9 In their Motion, Defendants reiterate the same failed argument that they raised in 10 support of their motion for summary judgment in this matter – that Pacific Union’s claims are 11 barred due to the statute of frauds and/or that Pacific Union lacks standing to assert these claims. 12 As such, Defendants seek to preclude Pacific Union from presenting any evidence that there is a 13 listing agreement that allows Pacific Union to recover a commission from the sale of the subject 14 property. In denying Defendants’ motion for summary judgment on March 11, 2021, this Court 15 ruled that Defendants had not provided any admissible evidence challenging Pacific Union’s 16 acquisition of the listing agreement as an asset, or of Pacific Union’s ability to enforce the 17 agreement. Defendants now attempt to preclude Pacific Union from introducing evidence of the 18 same. 19 Pacific Union has never pretended that there is a contract containing signatures 20 between Defendants and Pacific Union. Pacific Union acquired Partners Trust, the brokerage 21 which entered into the listing agreement with Defendants, toward the end of the listing, and now 22 Pacific Union seeks to enforce the listing agreement’s right to a commission. The law is fully 23 behind Pacific Union’s ability to do this. Pacific Union owns the listing agreement that 24 Defendants entered into with Partners Trust, and has produced the asset purchase agreement 25 demonstrating this. (The document was produced as Confidential Information subject to the 26 Stipulated Protective Order in this case, and accordingly will be provided to the Court under 27 seal.) 28 3 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 As a matter of law, when Pacific Union acquired Partners Trust, it acquired the 2 right to enforce the agreement held by Partners Trust. Defendants assert, without any legal 3 support, that Corp. Code section 1107 is not applicable to situations involving a corporation’s 4 purchase of another company’s assets. However, whether the transaction is classified on its face 5 as a merger or asset acquisition makes absolutely no difference here. (See Malone v. Red Top 6 Cab Company (1936) 16 Cal.App.2d 268, 273-274 [application of former Corp. Code section 7 1107 stating whether a company acquires all assets of another company by merger or sale, the 8 new company takes all property including liabilities].) Moreoever, section 1107 of the 9 Corporations Code is not the only statutory authority upon which Pacific Union relies to assert 10 ownership of this commission and entitlement to bring this lawsuit. 11 There is no dispute that Partners Trust transferred its rights to recover the 12 commission to Pacific Union. Nor is there any legal question as to whether Pacific Union was 13 entitled to receive those rights, as “[a] thing in action, arising out of the violation of a right of 14 property, or out of an obligation, may be transferred by the owner.” (Civ. Code §954.) 15 Accordingly, Pacific Union is entitled to enforce the Contract. (“Persons entitled to enforce an 16 instrument means (a) the holder of the instrument, (b) a non-holder in possession of the 17 instrument who has the rights of a holder . . .”. (Com. Code, § 3301.)) Successor companies 18 such as Pacific Union have standing to enforce provisions of a contract initially entered into by 19 the company they purchased. (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 20 Cal.App.4th 1, 10.) None of these authorities are addressed or acknowledged by Defendants, 21 and these are all arguments Defendants have been aware of for years. 22 Unpaid commissions in real estate, moreover, are assignable interests. (Schaffter 23 v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, holding a breach of 24 contract action for unpaid commissions on the sale of real estate is assignable from one business 25 entity to another.) Brokers have long been able to assign their rights to commissions. 26 (Richmond Realeteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400, 401-402, 27 determining how to apply a complicated commission provision assigned by a real estate broker 28 4 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 to a company.) Pacific Union has presented these arguments to Defendants repeatedly and 2 received no response. 3 C. The Suggestion That Any Documents Were Improperly Held in Discovery Is Without Merit 4 The Motion presents a completely unfounded request that the Court “exclude 5 undisclosed evidence,” then fails to explain what it is describing. Defendants propounded 6 exactly two (2) interrogatories to Pacific Union regarding assignment of the Listing Agreement, 7 and the text of those Interrogatories and Pacific Union’s responses to them are below. 8 Defendants did not propound Interrogatories related to consent. 9 SPECIAL INTERROGATORY NO. 48: 10 Please state all FACTS that support YOUR claim that the original listing agreement between the parties to sell the PROPERTY for 11 $20,000,000 (Twenty Million Dollars) “irrevocably” assigned to YOU the right to payment of compensation for the sale even 12 though the listing agreement was modified by reducing the sale 13 price to $16,880,000. RESPONSE TO SPECIAL INTERROGATORY NO. 48: 14 Responding Party objects to this interrogatory on the grounds that it is overbroad, vague and ambiguous and seeks information that is 15 not relevant and not likely to lead to the discovery of admissible 16 evidence. Responding Party further objects to this interrogatory on the grounds that it assumes facts not in evidence. Subject to and 17 without waiving the foregoing, Responding Party responds as follows: Responding Party and Trust, by and through Trustee, 18 entered into a written contract on or about September 29, 2016, which assigned Responding Party a commission of six percent 19 (6%). The terms of that contract were modified on February 23, 20 2017, June 9, 2017, and July 7, 2017. Paragraph 3E of the listing agreement provides, “Seller hereby irrevocably assigns to Broker 21 the above compensation from Seller’s funds and proceeds in escrow.” The subsequent modifications to the listing agreement 22 modified only the listing price, and expressly provide, “All other terms of the Listing Agreement, Buyer Representation Agreement, 23 or other agreement as applicable, remain in full force and effect, 24 except as modified herein.” The commission percentage was not modified. 25 SPECIAL INTERROGATORY NO. 49: 26 Please FULLY DESCRIBE all DOCUMENTS that YOU assert support YOUR claim that the original listing agreement between 27 the parties to sell the PROPERTY for $20,000,000 (Twenty 28 Million Dollars) “irrevocably” assigned to YOU the right to 5 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 payment of compensation for the sale even though the listing agreement was modified by reducing the sale price to $16,880,000. 2 RESPONSE TO SPECIAL INTERROGATORY NO. 49: 3 Responding Party objects to this interrogatory on the grounds that it is overbroad, vague and ambiguous and seeks information that is 4 not relevant and not likely to lead to the discovery of admissible evidence. Responding Party further objects to this interrogatory on 5 the grounds that it assumes facts not in evidence. Subject to and without waiving the foregoing, Responding Party responds as 6 follows: The listing agreement attached to the Complaint dated 7 September 29, 2016, which assigned Responding Party a commission of six percent (6%), and modifications to that 8 agreement dated February 23, 2017, June 9, 2017, and July 7, 2017. 9 Defendants have presented no particular discovery responses that they believe 10 warrant exclusion of evidence by this Court. It is not clear what, precisely, Defendants ask this 11 Court to do. To the extent Defendants are asking the Court to exclude any argument that Pacific 12 Union is entitled to recover the commission, there are no factual or legal grounds for that request. 13 To the extent Defendants are seeking to exclude a contract that Erik Ludwick or Paul Booth 14 signed with Pacific Union itself, such a document does not exist and has not been produced, and 15 is not necessary for Pacific Union to maintain this lawsuit. 16 Accordingly, the Motion is confusing at best and unnecessary at worst, and 17 Pacific Union requests that the Court deny it. 18 IV. CONCLUSION 19 Defendants assert that Pacific Union should be prohibited from presenting any 20 evidence that Defendants consented to an assignment of the listing agreement or approved a 21 substitution of Pacific Union in Partners Trust’s place. As set forth above, there is no legal 22 authority for Defendants’ claim that such consent or approval was required in the first place, nor 23 is there any basis for argument that Pacific Union is not entitled to bring this action to recover 24 the commission. Partners Trust was permitted to and did assign its right to recover the 25 commission under the listing agreement to Pacific Union. Further, Defendants present no 26 support for their claim that Pacific Union withheld any evidence from its discovery responses. 27 The only interrogatories set out in the Motion relate to whether Pacific Union purchased or 28 merged with Partners Trust, which Pacific Union answered. Defendants have presented no 6 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 evidence whatsoever that Pacific Union was asked and refused to adequately respond to 2 discovery relating to Defendants’ consent or to the acquisition. Accordingly, Defendants’ claims 3 have no merit and this motion should be denied. 4 Dated: August 3, 2022 SHANNON B. JONES LAW GROUP, INC. 5 6 By 7 SHANNON B. JONES LINDSEY A. MORGAN 8 Attorneys for Plaintiff, PACIFIC UNION INTERNATIONAL, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1 1 DECLARATION OF LINDSEY A. MORGAN 2 I, Lindsey A. Morgan, declare: 3 1. I am an attorney licensed to practice in the State of California and am an 4 attorney with the Shannon B. Jones Law Group, Inc., counsel of record for Plaintiff PACIFIC 5 UNION INTERNATIONAL, INC. (“Pacific Union”). By virtue of that representation, I have 6 personal knowledge of the facts set forth in this declaration and if called upon to testify, I could 7 and would competently testify thereto, except as to those matters stated upon information and 8 belief and as to those matters, I am informed and believe them to be true. 9 2. On July 28, 2022, I sent an email to counsel for Defendants to inquire 10 regarding his availability to meet and confer regarding the parties’ contemplated motions in 11 limine. I advised that I was generally available to discuss the motions. 12 3. Counsel for Defendants responded stating that Defendants intended to file 13 the present motion in limine, but did not advise when he would be available to meet and confer 14 regarding the specific evidence contemplated to be excluded. 15 4. I responded on July 28, 2022 setting foth my availability to meet and 16 confer on July 29, 2022 or August 1, 2022. Counsel did not respond to my request. 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. Executed this 3rd day of August, 2022 at Coeur d’Alene, Idaho. 19 ______________________________________ LINDSEY A. MORGAN 20 21 22 23 24 25 26 27 28 8 PACIFIC UNION INTERNATIONAL, INC.’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 1