Preview
PATRICIA A. BOYES, ESQ. [SBN: 244335] Electronically Filed
1 10/9/2020 4:00 PM
ANTHONY L. PEREZ, ESQ. [SBN: 303045]
HARISH TANGRI, ESQ. [SBN: 325752] Superior Court of California
2
BOYESLEGAL, APC County of Stanislaus
3 84 W. Santa Clara Street, Suite 550 Clerk of the Court
San Jose, California 95113-1812 By: Joshua Teixeira, Deputy
4
Tel: (408) 572-5665
5 Fax: (408) 572-5567
6 Attorneys for Plaintiff
CARLEY R. THOMPSON
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
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STANISLAUS COUNTY – UNLIMITED JURISDICTION
10
11 CARLEY R. THOMPSON, Case No.: CV-18-003684
12 Plaintiff, PLAINTIFF CARLY THOMPSON’S
MEMORANDUM OF POINTS AND
BoyesLegal, APC
13 v. AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS,
14 GERARDO BARAJAS, REALTY ONE CENTRAL VALLEY VENTURE- STOCKTON
GROUP GOLD, NANCY CALL, KELLER DBA KELLER WILLIAMS REALTY AND KIM
15 WILLIAMS, KIM MCMILLIAN, FRANCIS MCMILLIAN'S MOTION FOR SUMMARY
LEDOUX HOME INSPECTIONS, and ADJUDICATION OF ISSUES RE:
16
DOES 1 through 20, inclusive, COMPLAINT [CCP §437c(f)(l)]
17
[Separate Statement in Opposition of
18
Defendants. Undisputed Facts; Declaration of Patricia A.
Boyes, Esq.; Declaration of Carly R.
19
Thompson; and Exhibits filed concurrently]
20 Date: October 27, 2020
Time: 8:30 a.m.
21 Dept.: 23
22 Judge: Hon. John D. Freeland
23 Complaint Filed: October 25, 2018
24 Trial Date: December 1, 2020
25
Plaintiff CARLY THOMPSON respectfully submits the following Memorandum of Points
26
and Authorities in Opposition to Defendants/Cross-Complainants , Central Valley Venture –
27
Stockton dba Keller Williams Realty and Kim McMillian’s Motion for Summary Adjudication.
28
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
1
1 Plaintiff has and will establish a number of triable issues and disputed material facts relating to
2 her claims against Defendants and to Defendants’ defenses.
3 1. STATEMENT OF FACTS
4 Plaintiff, CARLEY THOMPSON, entered into a Real Estate Purchase Contract (RPA”),
5 dated July 28, 2015, between GERARDO BARAJAS (“Seller”) and CARLEY THOMPSON
6 (“Buyer”) for the property located at 2112 Churchill Avenue, Modesto, CA 95350 (“Subject
7 Property”).
8 Kim McMillian, an agent for Keller Williams, represented Plaintiff in her purchase of the
9 property and was paid a sales commission of $4,625.00 for her services. Ms. McMillian had
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10 only just begun working for Keller Williams in May 2015 and Plaintiff was her first sale of real
11 property as a real estate agent. Needless to say, Ms. McMillian was extremely inexperienced
12 and she should have been closely supervised by her broker. Ms. McMillian left her employment
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13 with Keller Williams after only five months in October 2015.
14 After the purchase, Plaintiff discovered that the subject property had defects, specifically
15 serious plumbing and electrical issues, dry rot, and roof repairs. The Seller, the Broker/agents,
16 and the Home Inspector failed to disclose to Plaintiff the true condition of the property and the
17 Seller’s Transfer Disclosure Statement, the Seller Questionnaire, the Home Inspection Report
18 and the Broker/agents’ representations all contained false statements. As a result, Plaintiff is
19 going to have to spend considerable sums of money to correct the defects in the subject
20 property.
21 Whether through ignorance, ineptitude or malfeasance, Keller Williams and Ms.
22 McMillian failed in their duty to Plaintiff by colluding with the Seller, Seller’s Broker/agent and
23 the home inspector to deceive and defraud Plaintiff regarding her purchase of the property.
24 The Seller, Broker/agents and home inspector refused to participate in mediation as
25 required by the RPA and, as a result, Plaintiff had no choice but to file the instant lawsuit.
26 Plaintiff has alleged causes of action for Breach of Contract, Fraud and Deceit,
27 Intentional/Negligent Misrepresentation, Negligence and Violation of California B & P Code
28 Section 17200 et seq.
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
2
1 II. LEGAL ARGUMENT
2 A. LEGAL STANDARD
3 1. Summary Adjudication Not Proper When Triable Issue of Fact Exists
4 A motion for summary adjudication proceeds in all procedural respects as a motion for
5 summary judgment (C.C.P. § 437c(f)(2)). Hence, a motion for summary adjudication should be
6 granted only if all the papers submitted show that there is no triable issue as to any material
7 fact with respect to the matter sought to be adjudicated, and that the moving party is entitled to
8 summary adjudication as a matter of law (see C.C.P. § 437c(c) (stating rule applicable to
9 motions for summary judgment); Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101
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10 Cal.App.3d 268, 273-274). A motion for summary adjudication shall be granted only if it
11 completely disposes of a cause of action, an affirmative defense, a claim for damages, or an
12 issue of duty (C.C.P. § 437c(f)(1); see Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324).
BoyesLegal, APC
13 2. Admissible Evidence Required
14 Affidavits or declarations supporting a motion for summary judgment, or summary
15 adjudication, must set forth admissible evidence (C.C.P. § 437c(d); Franklin v. Benevolent &
16 Protective Order of Elks (1979) 97 Cal.App.3d 915, 930).
17 Hearsay evidence contained in supporting affidavits or declarations may not be
18 considered by the court in determining a motion for summary judgment, or summary
19 adjudication (see Evid. Code § 1200; Garibay v. Hemmatt (2008) 161 Cal.App.4th 735, 743;
20 Franklin v. Benevolent & Protective Order of Elks (1979) 97 Cal.App.3d 915, 930).
21 Generally, averments in the supporting affidavits or declarations which depend on a
22 written document are incompetent and cannot be considered unless the original document or
23 certified or authenticated copies of such instruments are attached, an excuse for nonproduction
24 is shown, or the originals are produced for inspection by the adverse party at the hearing on
25 the motion (Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 815-817).
26 The supporting affidavits or declarations must state all the requisite evidentiary facts and
27 not merely the ultimate facts. Moreover, neither conclusions of law nor conclusions of fact are
28 sufficient to support summary judgment or summary adjudication (Colby v. Schwartz (1978) 78
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
3
1 Cal.App.3d 885, 889; Rodes v. Shannon (1961) 194 Cal.App.2d 743, 748; see also Guthrey v.
2 State of California (1998) 63 Cal.App.4th 1108, 1119-1120).
3 In the case at hand, Defendants argue that Plaintiff’s Second Cause of Action for Fraud
4 and Deceit, Third Cause of Action for Intentional/Negligent Misrepresentation and Fifth Cause
5 of Action for Violation of Bus & Prof Code § 17200, et seq. are without evidentiary support, and
6 subsequently, there is no material fact in dispute, and based on those undisputed facts,
7 Plaintiffs claims are invalid.
8 However, Defendants have failed to meet their burden of proof on these claims and are
9 not entitled to judgment as a matter of law as there exist triable issues of material facts relating
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10 to Plaintiff’s causes of action.
11 B. PLAINTIFF’S CAUSES OF ACTION AGAINST DEFENDANTS’ ARE SUPPORTED
12 BY SUFFICIENT EVIDENCE AND THERE EXIST TRIABLE ISSUES OF MATERIAL
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13 FACTS
14 1. Plaintiffs’ Second Cause of Action Against Defendants for Fraud and Deceit
15 Is Supported By Substantial Evidence and There Exist Triable Issues of
16 Material Facts
17 A real estate broker has a duty to be honest and truthful to all parties to a transaction.
18 See Bus. & Prof. Code § 10176; Ward v. Taggart (1959) 51 Cal. 2d 736, 741; Rattray v.
19 Scudder (1946) 28 Cal. 2d 214, 222–223; Nguyen v. Scott (1988) 206 Cal. App. 3d 725, 735.
20 A broker who makes a statement in the expectation that the facts stated will be relied on by
21 another, and who withholds material facts and thereby creates a false understanding, is as
22 guilty of untruthfulness as he or she would be if the facts stated were untrue. Rhoades v.
23 Savage (1963) 219 Cal. App. 2d 294, 299.
24 There need not be a contractual relationship between the buyer and the broker.
25 Furthermore, a provision in the contract that the buyer accepts the property “as
26 is” does not alter the broker’s liability, because this phrase means only that the buyer
27 accepts the property subject to observable conditions that affect its value. Wilson v.
28
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
4
1 Century 21 Great Western Realty (1993) 15 Cal. App. 4th 298, 304–305; Lingsch v. Savage
2 (1963) 213 Cal. App. 2d 729, 742.
3 When agents make misrepresentations in statements of opinion about the nature of a
4 property, they will be liable if they do not honestly or reasonably believe their statements or if
5 they make them recklessly or unreasonably in light of their knowledge. Agents are also liable
6 for negative fraud and deceit for nondisclosure to buyers of conditions known to the agents and
7 unknown to and unobservable by the buyer. Cooper v. Jevne (1976) 56 Cal. App. 3d 860, 865–
8 866.
9 In Cooper, Plaintiff purchasers filed a suit against defendants, sales agents, architects,
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10 and inspectors, to rescind or affirm the contracts for the purchase of a condominium for various
11 causes of action relating to alleged construction defects. Plaintiffs appealed from the trial
12 court's order sustaining, without leave to amend, defendants' general demurrers to relevant
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13 portions of plaintiffs' second amended complaint and dismissing plaintiffs' complaint. On
14 appeal, the court reversed, remanded, and held plaintiffs alleged a sufficient cause of action
15 against defendant sales agents for negative fraud because defendant sales agents knew of
16 purchasers' ignorance of the structural deficiencies and failed to disclose the deficiencies;
17 against defendant architects for negligence because the duty of care in the performing their
18 services extended to plaintiffs who purchased and suffered loss from the allegedly defectively
19 designed and built condominium; and against defendant inspectors for intentional
20 misrepresentation amounting to actual fraud because they failed to disclose adverse material
21 facts despite their duty to disclose the defective construction and to prevent the construction.
22 Negative fraud is the act of purposely leaving out information you legally must disclose;
23 or in plain terms lying through omission.
24 The Court in Cooper held “if a person advances an opinion in which he does not honestly
25 or cannot reasonably believe, then an action for affirmative fraud will lie if the remaining
26 elements of the tort are present. (See Pacesetter Homes, Inc. v. Brodkin, 5 Cal.App.3d 206,
27 211; Bank of America v. Hutchinson, 212 Cal.App.2d 142, 148; Ogier v. Pacific Oil & Gas etc.
28 Corp., 132 Cal.App.2d 496, 506.)” The Court elaborated on this point by explaining “If the sales
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
5
1 agents knew of the alleged substantial structural defects in the condominiums, they could not
2 honestly have held the opinion that these homes were luxurious or outstanding investments.
3 Even ifthe sales agents stated their opinions sincerely, it was reckless and unreasonable to
4 do so in light of their alleged knowledge. (See Stowe v. Fritzie Hotels, Inc., 44 Cal.2d 416, 422
5 [282 P.2d 890].) Thus, the complaint now before us is sufficient to state a cause of action for
6 misrepresentation by false opinion.” Cooper, supra. At 865-866.
7 The following testimony is from Kim McMillian’s deposition regarding text messages
8 between her and Plaintiff concerning the home inspection:
9 Q. And so I'll bring your attention to the text
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messages that you sent to Ms. Thompson.
10
When she asked you "how did it go at" 5:05 p.m., at 7:10 p.m. you
11 responded, "Really good. There's some things I'll have to ask about."
Q. And my question is, what were you referring to
12 when you said, "There's some things I'll have to ask
about"?
BoyesLegal, APC
13
A. I don't recall.”
14 (July 8, 2020 Deposition of Kim McMillian pg. 106:8-16 attached as Exhibit ‘2” to Boyes
Decl.)
15
Ms. McMillian continued to be evasive when questioned further about the home
16
inspection because she did not want to admit that, in fact, she had not attended the home
17
inspection and that she had lied about that to Plaintiff and to the Department of Real Estate
18
(“DRE”) ( Kim McMillian’s Statement to the DRE is attached as Exhibit “3” to Boyes Decl.; text
19
messages between Kim McMillian and Plaintiff regarding the Home Inspection are attached as
20
Exhibit “4” to the Boyes Decl.; McMillian Depo pages 50:20-23, 91:13-92:5, 94:21-95:1 are
21
attached as Exhibit “2” to Boyes Decl.)
22
Similar to the sales agents in the Cooper case, Ms. McMillian made affirmative factual
23
misrepresentations to Plaintiff for the purpose of inducing her purchase.
24
Ms. McMillian obtained Mr. LeDoux’s name from Seller’s agent, Nancy Call, and Nancy
25
Call was present at the Home Inspection rather than Kim McMillian, according to the testimony
26
of Francis LeDoux, the Home Inspector. Kim McMillian then misrepresented that fact and told
27
Plaintiff that she had been present and that the inspection had “gone well.” The truth is, based
28
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
6
1 on Mr. LeDoux’s deposition testimony (page 97:5-13, page 148:13-17, pages 140:15 -141:3,
2 page 95:5-20 and page 19:14-16 attached as Exhibit “6” to Boyes Decl.) Seller’s agent was the
3 only one present for the home inspection and she asked the home inspector to leave certain
4 negative information out of his report.
Q. So your father told you, "I talked to Francis LeDoux, and he told me
5
the seller's agent told me to forge the document"?
6 A. Yes.
(February 19, 2020 Deposition of Carley Thompson pg. 167:22-25 attached as
7 Exhibit “1” to Boyes Decl.)
8 In addition, Ms. McMillian told the investigator at the Department of Real Estate that she
9 had been present at the home inspection, which Mr. LeDoux denies. Ms. McMillian also told
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10 Plaintiff that she did not “need to be there. It's not common for the buyer to be there."
11 (Deposition of Carley Thompson page 157:5-6 attached as Exhibit “1” to Boyes Decl.)
12 Moreover, Mr. LeDoux testified at his deposition that he had provided his inspection
BoyesLegal, APC
13 report to Seller’s agent, Nancy Call in editable Word format and that there was information
14 missing from the report that was shown to him at his deposition, that had been produced by
15 Kim McMillian in response to Plaintiff’s discovery requests.
16 The MLS listing for the Subject Property stated that the property had been “remodeled”
17 and Kim McMillian had a duty to be present at the home inspection and to inquire as to who
18 had done the work and if the proper building permits had been obtained. As it turned out, Seller
19 had done the work himself without obtaining any permits and the work left the property in a
20 seriously defective and sub-standard condition.
21 Nancy Call testified in her deposition as follows:
22
Q. Do you typically advise sellers to order a home inspection prior to listing?
A. 99 percent of the time, no.
23 And the reason for that is for me personally, if I represent the buyer in a
house and I'm given a home inspection, I hand it to my TC, and I don't even read it,
24 because I don't know if you had uncle Guido come out and do the home report.
25
I want my team in the house doing the inspections.
(June 26, 2020 Deposition of Nancy Call pg. 116:6-13 attached as Exhibit “5” to the
26 Boyes Decl.)
27 Kim McMillian failed in her duty and lied to Plaintiff regarding the Home Inspection.
28
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
7
1 Certain misrepresentations, even though made by an agent with no evil intent, are
2 defined by law as actual fraud if they are positive assertions of that which is not true and made
3 in a manner not warranted by the information of the person making the representation,
4 notwithstanding that such person believes itto be true. Constructive fraud as defined in the
5 California Civil Code includes any breach of duty which, without an actually fraudulent intent,
6 gains an advantage to the person in fault, or anyone claiming under him or her, by misleading
7 another to his or her prejudice, or to the prejudice of anyone claiming under him or her. Carl
8 Michel et al. v. Moore and Associates, Inc. (2007) 156 Cal App. 4th 756; and Field v. Century
9 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18. In addition, an agent may be held liable
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10 for constructive fraud even if his or her conduct is not actually fraudulent. Salahutdin v Valley
11 of Cal., Inc. (1994) 24 Cal. 4th 555. In Salahutdin, a real estate agent made affirmative
12 statements about the size and subdivision prospects to the buyer but failed to disclose that he
BoyesLegal, APC
13 did not investigate the accuracy of these statements. Constructive fraud comprises any act,
14 omission, or concealment involving a breach of legal or equitable duty, trust, or confidence that
15 results in damage to another even if the conduct is not otherwise fraudulent. Salahutdin v Valley
16 of Cal., Inc., supra.
17 Similar to Salahutdin, Ms. McMillian made false affirmative statements to Plaintiff
18 concerning the home inspection of the Subject Property and made false statements to Plaintiff
19 concerning her presence at the home inspection. Ms. McMillian missed the opportunity to
20 speak to the home inspector regarding the “remodeling” and was reckless and unreasonable
21 given her failure to verify the information. Ms. McMillian, at best, acted with a reckless disregard
22 for the truth and veracity of her representations regarding the home inspection.
23 2. Plaintiffs’ Third Cause of Action Against Defendants for Negligent and/or
24 Intentional Misrepresentation Is Supported By Substantial Evidence and
25 There Exist Triable Issues of Material Fact
26 As discussed above, there is ample evidence that Defendants made both intentional
27 and negligent misrepresentations and deceived Plaintiff regarding the Home Inspection by Mr.
28 LeDoux. Ms. McMillian had a duty to look out for the best interests of Plaintiff and she should
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
8
1 have hired the Home Inspector and she should have been present at the home inspection
2 instead of letting Seller’s agent control the inspection process and then lie about it to Plaintiff
3 and to the Department of Real Estate.
4 As set forth above, the Cooper Court held that an action for misrepresentations by false
5 opinions may lie against a real estate sales agent when the agent makes representations which
6 they do not honestly or cannot reasonably believe. Cooper, supra. At 865-866.
7 Lastly, the representations made by Ms. McMillian amount to constructive fraud at a
8 minimum, as Ms. McMillian gained an advantage over Plaintiff by misleading her to her
9 prejudice. Carl Michel et al. v. Moore and Associates, Inc. (2007) 156 Cal App. 4th 756; and
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10 Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18. As discussed above,
11 constructive fraud comprises any act, omission, or concealment involving a breach of legal or
12 equitable duty, trust, or confidence that results in damage to another even if the conduct is not
BoyesLegal, APC
13 otherwise fraudulent. Salahutdin v Valley of Cal., Inc., supra.
14 3. Plaintiffs’ Fifth Cause of Action Against Defendants for Violation of Bus &
15 Prof Code § 17200 et seq. Is Supported By Substantial Evidence and There
16 Exist Triable Issues of Material Facts
17 Business and Professions Code section 17200 defines “unfair competition” to include
18 “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or
19 misleading advertising” and any act that violates California’s false advertising law, Business
20 and Professions Code section 17500 et seq.
21 The California Supreme Court has made clear that the scope of the statute is
22 exceptionally broad. See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.
23 4th 163, 180–81 (1999) (“the unfair competition law’s scope is broad” and “ ‘intentionally framed
24 in its broad, sweeping language, precisely to enable judicial tribunals to deal with the
25 innumerable “new schemes which the fertility of man’s invention would contrive’ ” (citation
26 omitted)); Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 560 (1998) (“ ‘The
27 Legislature intended ‘this “sweeping language” to include “anything that can properly be called
28 a business practice and that at the same time is forbidden by law” ’ ”); Barquis v. Merchants
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
9
1 Collection Ass’n of Oakland, Inc., 7 Cal. 3d 94, 111 (1972) (“the Legislature, in our view,
2 intended by this sweeping language [in Section 17200] to permit tribunals to enjoin on-going
3 wrongful business conduct in whatever context such activity might occur”). As a strict-liability
4 statute, it is not necessary to show that a defendant intended to injure or harm the plaintiff.
5 Rothschild v. Tyco Int’l (US), Inc., 83 Cal. App. 4th 488, 494 (2000); State Farm Fire & Cas.
6 Co. v. Superior Court, 45 Cal. App. 4th 1093, 1102 (1996).
7 The Supreme Court has further explained that because the prohibitions on “unlawful,”
8 “unfair” or “fraudulent” practices are written in the disjunctive, each of those “prongs” gives rise
9 to a separate and distinct theory of liability. Cel-Tech, 20 Cal. 4th at 180. By including the
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10 additional prohibitions against false advertising, Section 17200 enumerates five potentially
11 distinct theories of liability: (1) unlawful business acts or practices; (2) unfair business acts or
12 practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading
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13 advertising; and (5) false advertising and related practices covered by Business and
14 Professions Code section 17500 et seq. A single business act or practice is sufficient to give
15 rise to a cause of action under any one of the five prongs.
16 As described in great detail above and evinced by the facts and evidence cited in
17 Plaintiffs’ SSDF, Defendants’, and each of them, engaged in fraudulent business activity by
18 making false statements to Plaintiff.
19 III. CONCLUSION
20 Based on all of the foregoing, Plaintiff respectfully requests that the court deny
21 Defendants’ Motion for Summary Adjudication in its entirety.
22 Dated: October 8, 2020 BOYESLEGAL, APC
23
24 By ______________________________
PATRICIA A. BOYES, ESQ.
25
Attorneys for Plaintiff
26 CARLEY R.THOMPSON
27
28
Thompson v. Barajas, et al. CV-18-003684
PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER
WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE:
COMPLAINT [CCP §437c(f)(l)]
10
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PATRICIA A. BOYES, ESQ. [SBN: 244335] Electronically Filed 1 10/9/2020 4:00 PM ANTHONY L. PEREZ, ESQ. [SBN: 303045] HARISH TANGRI, ESQ. [SBN: 325752] Superior Court of California 2 BOYESLEGAL, APC County of Stanislaus 3 84 W. Santa Clara Street, Suite 550 Clerk of the Court San Jose, California 95113-1812 By: Joshua Teixeira, Deputy 4 Tel: (408) 572-5665 5 Fax: (408) 572-5567 6 Attorneys for Plaintiff CARLEY R. THOMPSON 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 San Jose | San Francisco | Santa Cruz | Los Angeles STANISLAUS COUNTY – UNLIMITED JURISDICTION 10 11 CARLEY R. THOMPSON, Case No.: CV-18-003684 12 Plaintiff, PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND BoyesLegal, APC 13 v. AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, 14 GERARDO BARAJAS, REALTY ONE CENTRAL VALLEY VENTURE- STOCKTON GROUP GOLD, NANCY CALL, KELLER DBA KELLER WILLIAMS REALTY AND KIM 15 WILLIAMS, KIM MCMILLIAN, FRANCIS MCMILLIAN'S MOTION FOR SUMMARY LEDOUX HOME INSPECTIONS, and ADJUDICATION OF ISSUES RE: 16 DOES 1 through 20, inclusive, COMPLAINT [CCP §437c(f)(l)] 17 [Separate Statement in Opposition of 18 Defendants. Undisputed Facts; Declaration of Patricia A. Boyes, Esq.; Declaration of Carly R. 19 Thompson; and Exhibits filed concurrently] 20 Date: October 27, 2020 Time: 8:30 a.m. 21 Dept.: 23 22 Judge: Hon. John D. Freeland 23 Complaint Filed: October 25, 2018 24 Trial Date: December 1, 2020 25 Plaintiff CARLY THOMPSON respectfully submits the following Memorandum of Points 26 and Authorities in Opposition to Defendants/Cross-Complainants , Central Valley Venture – 27 Stockton dba Keller Williams Realty and Kim McMillian’s Motion for Summary Adjudication. 28 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 1 1 Plaintiff has and will establish a number of triable issues and disputed material facts relating to 2 her claims against Defendants and to Defendants’ defenses. 3 1. STATEMENT OF FACTS 4 Plaintiff, CARLEY THOMPSON, entered into a Real Estate Purchase Contract (RPA”), 5 dated July 28, 2015, between GERARDO BARAJAS (“Seller”) and CARLEY THOMPSON 6 (“Buyer”) for the property located at 2112 Churchill Avenue, Modesto, CA 95350 (“Subject 7 Property”). 8 Kim McMillian, an agent for Keller Williams, represented Plaintiff in her purchase of the 9 property and was paid a sales commission of $4,625.00 for her services. Ms. McMillian had San Jose | San Francisco | Santa Cruz | Los Angeles 10 only just begun working for Keller Williams in May 2015 and Plaintiff was her first sale of real 11 property as a real estate agent. Needless to say, Ms. McMillian was extremely inexperienced 12 and she should have been closely supervised by her broker. Ms. McMillian left her employment BoyesLegal, APC 13 with Keller Williams after only five months in October 2015. 14 After the purchase, Plaintiff discovered that the subject property had defects, specifically 15 serious plumbing and electrical issues, dry rot, and roof repairs. The Seller, the Broker/agents, 16 and the Home Inspector failed to disclose to Plaintiff the true condition of the property and the 17 Seller’s Transfer Disclosure Statement, the Seller Questionnaire, the Home Inspection Report 18 and the Broker/agents’ representations all contained false statements. As a result, Plaintiff is 19 going to have to spend considerable sums of money to correct the defects in the subject 20 property. 21 Whether through ignorance, ineptitude or malfeasance, Keller Williams and Ms. 22 McMillian failed in their duty to Plaintiff by colluding with the Seller, Seller’s Broker/agent and 23 the home inspector to deceive and defraud Plaintiff regarding her purchase of the property. 24 The Seller, Broker/agents and home inspector refused to participate in mediation as 25 required by the RPA and, as a result, Plaintiff had no choice but to file the instant lawsuit. 26 Plaintiff has alleged causes of action for Breach of Contract, Fraud and Deceit, 27 Intentional/Negligent Misrepresentation, Negligence and Violation of California B & P Code 28 Section 17200 et seq. Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 2 1 II. LEGAL ARGUMENT 2 A. LEGAL STANDARD 3 1. Summary Adjudication Not Proper When Triable Issue of Fact Exists 4 A motion for summary adjudication proceeds in all procedural respects as a motion for 5 summary judgment (C.C.P. § 437c(f)(2)). Hence, a motion for summary adjudication should be 6 granted only if all the papers submitted show that there is no triable issue as to any material 7 fact with respect to the matter sought to be adjudicated, and that the moving party is entitled to 8 summary adjudication as a matter of law (see C.C.P. § 437c(c) (stating rule applicable to 9 motions for summary judgment); Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 San Jose | San Francisco | Santa Cruz | Los Angeles 10 Cal.App.3d 268, 273-274). A motion for summary adjudication shall be granted only if it 11 completely disposes of a cause of action, an affirmative defense, a claim for damages, or an 12 issue of duty (C.C.P. § 437c(f)(1); see Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324). BoyesLegal, APC 13 2. Admissible Evidence Required 14 Affidavits or declarations supporting a motion for summary judgment, or summary 15 adjudication, must set forth admissible evidence (C.C.P. § 437c(d); Franklin v. Benevolent & 16 Protective Order of Elks (1979) 97 Cal.App.3d 915, 930). 17 Hearsay evidence contained in supporting affidavits or declarations may not be 18 considered by the court in determining a motion for summary judgment, or summary 19 adjudication (see Evid. Code § 1200; Garibay v. Hemmatt (2008) 161 Cal.App.4th 735, 743; 20 Franklin v. Benevolent & Protective Order of Elks (1979) 97 Cal.App.3d 915, 930). 21 Generally, averments in the supporting affidavits or declarations which depend on a 22 written document are incompetent and cannot be considered unless the original document or 23 certified or authenticated copies of such instruments are attached, an excuse for nonproduction 24 is shown, or the originals are produced for inspection by the adverse party at the hearing on 25 the motion (Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 815-817). 26 The supporting affidavits or declarations must state all the requisite evidentiary facts and 27 not merely the ultimate facts. Moreover, neither conclusions of law nor conclusions of fact are 28 sufficient to support summary judgment or summary adjudication (Colby v. Schwartz (1978) 78 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 3 1 Cal.App.3d 885, 889; Rodes v. Shannon (1961) 194 Cal.App.2d 743, 748; see also Guthrey v. 2 State of California (1998) 63 Cal.App.4th 1108, 1119-1120). 3 In the case at hand, Defendants argue that Plaintiff’s Second Cause of Action for Fraud 4 and Deceit, Third Cause of Action for Intentional/Negligent Misrepresentation and Fifth Cause 5 of Action for Violation of Bus & Prof Code § 17200, et seq. are without evidentiary support, and 6 subsequently, there is no material fact in dispute, and based on those undisputed facts, 7 Plaintiffs claims are invalid. 8 However, Defendants have failed to meet their burden of proof on these claims and are 9 not entitled to judgment as a matter of law as there exist triable issues of material facts relating San Jose | San Francisco | Santa Cruz | Los Angeles 10 to Plaintiff’s causes of action. 11 B. PLAINTIFF’S CAUSES OF ACTION AGAINST DEFENDANTS’ ARE SUPPORTED 12 BY SUFFICIENT EVIDENCE AND THERE EXIST TRIABLE ISSUES OF MATERIAL BoyesLegal, APC 13 FACTS 14 1. Plaintiffs’ Second Cause of Action Against Defendants for Fraud and Deceit 15 Is Supported By Substantial Evidence and There Exist Triable Issues of 16 Material Facts 17 A real estate broker has a duty to be honest and truthful to all parties to a transaction. 18 See Bus. & Prof. Code § 10176; Ward v. Taggart (1959) 51 Cal. 2d 736, 741; Rattray v. 19 Scudder (1946) 28 Cal. 2d 214, 222–223; Nguyen v. Scott (1988) 206 Cal. App. 3d 725, 735. 20 A broker who makes a statement in the expectation that the facts stated will be relied on by 21 another, and who withholds material facts and thereby creates a false understanding, is as 22 guilty of untruthfulness as he or she would be if the facts stated were untrue. Rhoades v. 23 Savage (1963) 219 Cal. App. 2d 294, 299. 24 There need not be a contractual relationship between the buyer and the broker. 25 Furthermore, a provision in the contract that the buyer accepts the property “as 26 is” does not alter the broker’s liability, because this phrase means only that the buyer 27 accepts the property subject to observable conditions that affect its value. Wilson v. 28 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 4 1 Century 21 Great Western Realty (1993) 15 Cal. App. 4th 298, 304–305; Lingsch v. Savage 2 (1963) 213 Cal. App. 2d 729, 742. 3 When agents make misrepresentations in statements of opinion about the nature of a 4 property, they will be liable if they do not honestly or reasonably believe their statements or if 5 they make them recklessly or unreasonably in light of their knowledge. Agents are also liable 6 for negative fraud and deceit for nondisclosure to buyers of conditions known to the agents and 7 unknown to and unobservable by the buyer. Cooper v. Jevne (1976) 56 Cal. App. 3d 860, 865– 8 866. 9 In Cooper, Plaintiff purchasers filed a suit against defendants, sales agents, architects, San Jose | San Francisco | Santa Cruz | Los Angeles 10 and inspectors, to rescind or affirm the contracts for the purchase of a condominium for various 11 causes of action relating to alleged construction defects. Plaintiffs appealed from the trial 12 court's order sustaining, without leave to amend, defendants' general demurrers to relevant BoyesLegal, APC 13 portions of plaintiffs' second amended complaint and dismissing plaintiffs' complaint. On 14 appeal, the court reversed, remanded, and held plaintiffs alleged a sufficient cause of action 15 against defendant sales agents for negative fraud because defendant sales agents knew of 16 purchasers' ignorance of the structural deficiencies and failed to disclose the deficiencies; 17 against defendant architects for negligence because the duty of care in the performing their 18 services extended to plaintiffs who purchased and suffered loss from the allegedly defectively 19 designed and built condominium; and against defendant inspectors for intentional 20 misrepresentation amounting to actual fraud because they failed to disclose adverse material 21 facts despite their duty to disclose the defective construction and to prevent the construction. 22 Negative fraud is the act of purposely leaving out information you legally must disclose; 23 or in plain terms lying through omission. 24 The Court in Cooper held “if a person advances an opinion in which he does not honestly 25 or cannot reasonably believe, then an action for affirmative fraud will lie if the remaining 26 elements of the tort are present. (See Pacesetter Homes, Inc. v. Brodkin, 5 Cal.App.3d 206, 27 211; Bank of America v. Hutchinson, 212 Cal.App.2d 142, 148; Ogier v. Pacific Oil & Gas etc. 28 Corp., 132 Cal.App.2d 496, 506.)” The Court elaborated on this point by explaining “If the sales Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 5 1 agents knew of the alleged substantial structural defects in the condominiums, they could not 2 honestly have held the opinion that these homes were luxurious or outstanding investments. 3 Even ifthe sales agents stated their opinions sincerely, it was reckless and unreasonable to 4 do so in light of their alleged knowledge. (See Stowe v. Fritzie Hotels, Inc., 44 Cal.2d 416, 422 5 [282 P.2d 890].) Thus, the complaint now before us is sufficient to state a cause of action for 6 misrepresentation by false opinion.” Cooper, supra. At 865-866. 7 The following testimony is from Kim McMillian’s deposition regarding text messages 8 between her and Plaintiff concerning the home inspection: 9 Q. And so I'll bring your attention to the text San Jose | San Francisco | Santa Cruz | Los Angeles messages that you sent to Ms. Thompson. 10 When she asked you "how did it go at" 5:05 p.m., at 7:10 p.m. you 11 responded, "Really good. There's some things I'll have to ask about." Q. And my question is, what were you referring to 12 when you said, "There's some things I'll have to ask about"? BoyesLegal, APC 13 A. I don't recall.” 14 (July 8, 2020 Deposition of Kim McMillian pg. 106:8-16 attached as Exhibit ‘2” to Boyes Decl.) 15 Ms. McMillian continued to be evasive when questioned further about the home 16 inspection because she did not want to admit that, in fact, she had not attended the home 17 inspection and that she had lied about that to Plaintiff and to the Department of Real Estate 18 (“DRE”) ( Kim McMillian’s Statement to the DRE is attached as Exhibit “3” to Boyes Decl.; text 19 messages between Kim McMillian and Plaintiff regarding the Home Inspection are attached as 20 Exhibit “4” to the Boyes Decl.; McMillian Depo pages 50:20-23, 91:13-92:5, 94:21-95:1 are 21 attached as Exhibit “2” to Boyes Decl.) 22 Similar to the sales agents in the Cooper case, Ms. McMillian made affirmative factual 23 misrepresentations to Plaintiff for the purpose of inducing her purchase. 24 Ms. McMillian obtained Mr. LeDoux’s name from Seller’s agent, Nancy Call, and Nancy 25 Call was present at the Home Inspection rather than Kim McMillian, according to the testimony 26 of Francis LeDoux, the Home Inspector. Kim McMillian then misrepresented that fact and told 27 Plaintiff that she had been present and that the inspection had “gone well.” The truth is, based 28 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 6 1 on Mr. LeDoux’s deposition testimony (page 97:5-13, page 148:13-17, pages 140:15 -141:3, 2 page 95:5-20 and page 19:14-16 attached as Exhibit “6” to Boyes Decl.) Seller’s agent was the 3 only one present for the home inspection and she asked the home inspector to leave certain 4 negative information out of his report. Q. So your father told you, "I talked to Francis LeDoux, and he told me 5 the seller's agent told me to forge the document"? 6 A. Yes. (February 19, 2020 Deposition of Carley Thompson pg. 167:22-25 attached as 7 Exhibit “1” to Boyes Decl.) 8 In addition, Ms. McMillian told the investigator at the Department of Real Estate that she 9 had been present at the home inspection, which Mr. LeDoux denies. Ms. McMillian also told San Jose | San Francisco | Santa Cruz | Los Angeles 10 Plaintiff that she did not “need to be there. It's not common for the buyer to be there." 11 (Deposition of Carley Thompson page 157:5-6 attached as Exhibit “1” to Boyes Decl.) 12 Moreover, Mr. LeDoux testified at his deposition that he had provided his inspection BoyesLegal, APC 13 report to Seller’s agent, Nancy Call in editable Word format and that there was information 14 missing from the report that was shown to him at his deposition, that had been produced by 15 Kim McMillian in response to Plaintiff’s discovery requests. 16 The MLS listing for the Subject Property stated that the property had been “remodeled” 17 and Kim McMillian had a duty to be present at the home inspection and to inquire as to who 18 had done the work and if the proper building permits had been obtained. As it turned out, Seller 19 had done the work himself without obtaining any permits and the work left the property in a 20 seriously defective and sub-standard condition. 21 Nancy Call testified in her deposition as follows: 22 Q. Do you typically advise sellers to order a home inspection prior to listing? A. 99 percent of the time, no. 23 And the reason for that is for me personally, if I represent the buyer in a house and I'm given a home inspection, I hand it to my TC, and I don't even read it, 24 because I don't know if you had uncle Guido come out and do the home report. 25 I want my team in the house doing the inspections. (June 26, 2020 Deposition of Nancy Call pg. 116:6-13 attached as Exhibit “5” to the 26 Boyes Decl.) 27 Kim McMillian failed in her duty and lied to Plaintiff regarding the Home Inspection. 28 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 7 1 Certain misrepresentations, even though made by an agent with no evil intent, are 2 defined by law as actual fraud if they are positive assertions of that which is not true and made 3 in a manner not warranted by the information of the person making the representation, 4 notwithstanding that such person believes itto be true. Constructive fraud as defined in the 5 California Civil Code includes any breach of duty which, without an actually fraudulent intent, 6 gains an advantage to the person in fault, or anyone claiming under him or her, by misleading 7 another to his or her prejudice, or to the prejudice of anyone claiming under him or her. Carl 8 Michel et al. v. Moore and Associates, Inc. (2007) 156 Cal App. 4th 756; and Field v. Century 9 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18. In addition, an agent may be held liable San Jose | San Francisco | Santa Cruz | Los Angeles 10 for constructive fraud even if his or her conduct is not actually fraudulent. Salahutdin v Valley 11 of Cal., Inc. (1994) 24 Cal. 4th 555. In Salahutdin, a real estate agent made affirmative 12 statements about the size and subdivision prospects to the buyer but failed to disclose that he BoyesLegal, APC 13 did not investigate the accuracy of these statements. Constructive fraud comprises any act, 14 omission, or concealment involving a breach of legal or equitable duty, trust, or confidence that 15 results in damage to another even if the conduct is not otherwise fraudulent. Salahutdin v Valley 16 of Cal., Inc., supra. 17 Similar to Salahutdin, Ms. McMillian made false affirmative statements to Plaintiff 18 concerning the home inspection of the Subject Property and made false statements to Plaintiff 19 concerning her presence at the home inspection. Ms. McMillian missed the opportunity to 20 speak to the home inspector regarding the “remodeling” and was reckless and unreasonable 21 given her failure to verify the information. Ms. McMillian, at best, acted with a reckless disregard 22 for the truth and veracity of her representations regarding the home inspection. 23 2. Plaintiffs’ Third Cause of Action Against Defendants for Negligent and/or 24 Intentional Misrepresentation Is Supported By Substantial Evidence and 25 There Exist Triable Issues of Material Fact 26 As discussed above, there is ample evidence that Defendants made both intentional 27 and negligent misrepresentations and deceived Plaintiff regarding the Home Inspection by Mr. 28 LeDoux. Ms. McMillian had a duty to look out for the best interests of Plaintiff and she should Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 8 1 have hired the Home Inspector and she should have been present at the home inspection 2 instead of letting Seller’s agent control the inspection process and then lie about it to Plaintiff 3 and to the Department of Real Estate. 4 As set forth above, the Cooper Court held that an action for misrepresentations by false 5 opinions may lie against a real estate sales agent when the agent makes representations which 6 they do not honestly or cannot reasonably believe. Cooper, supra. At 865-866. 7 Lastly, the representations made by Ms. McMillian amount to constructive fraud at a 8 minimum, as Ms. McMillian gained an advantage over Plaintiff by misleading her to her 9 prejudice. Carl Michel et al. v. Moore and Associates, Inc. (2007) 156 Cal App. 4th 756; and San Jose | San Francisco | Santa Cruz | Los Angeles 10 Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18. As discussed above, 11 constructive fraud comprises any act, omission, or concealment involving a breach of legal or 12 equitable duty, trust, or confidence that results in damage to another even if the conduct is not BoyesLegal, APC 13 otherwise fraudulent. Salahutdin v Valley of Cal., Inc., supra. 14 3. Plaintiffs’ Fifth Cause of Action Against Defendants for Violation of Bus & 15 Prof Code § 17200 et seq. Is Supported By Substantial Evidence and There 16 Exist Triable Issues of Material Facts 17 Business and Professions Code section 17200 defines “unfair competition” to include 18 “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or 19 misleading advertising” and any act that violates California’s false advertising law, Business 20 and Professions Code section 17500 et seq. 21 The California Supreme Court has made clear that the scope of the statute is 22 exceptionally broad. See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 23 4th 163, 180–81 (1999) (“the unfair competition law’s scope is broad” and “ ‘intentionally framed 24 in its broad, sweeping language, precisely to enable judicial tribunals to deal with the 25 innumerable “new schemes which the fertility of man’s invention would contrive’ ” (citation 26 omitted)); Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal. 4th 553, 560 (1998) (“ ‘The 27 Legislature intended ‘this “sweeping language” to include “anything that can properly be called 28 a business practice and that at the same time is forbidden by law” ’ ”); Barquis v. Merchants Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 9 1 Collection Ass’n of Oakland, Inc., 7 Cal. 3d 94, 111 (1972) (“the Legislature, in our view, 2 intended by this sweeping language [in Section 17200] to permit tribunals to enjoin on-going 3 wrongful business conduct in whatever context such activity might occur”). As a strict-liability 4 statute, it is not necessary to show that a defendant intended to injure or harm the plaintiff. 5 Rothschild v. Tyco Int’l (US), Inc., 83 Cal. App. 4th 488, 494 (2000); State Farm Fire & Cas. 6 Co. v. Superior Court, 45 Cal. App. 4th 1093, 1102 (1996). 7 The Supreme Court has further explained that because the prohibitions on “unlawful,” 8 “unfair” or “fraudulent” practices are written in the disjunctive, each of those “prongs” gives rise 9 to a separate and distinct theory of liability. Cel-Tech, 20 Cal. 4th at 180. By including the San Jose | San Francisco | Santa Cruz | Los Angeles 10 additional prohibitions against false advertising, Section 17200 enumerates five potentially 11 distinct theories of liability: (1) unlawful business acts or practices; (2) unfair business acts or 12 practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading BoyesLegal, APC 13 advertising; and (5) false advertising and related practices covered by Business and 14 Professions Code section 17500 et seq. A single business act or practice is sufficient to give 15 rise to a cause of action under any one of the five prongs. 16 As described in great detail above and evinced by the facts and evidence cited in 17 Plaintiffs’ SSDF, Defendants’, and each of them, engaged in fraudulent business activity by 18 making false statements to Plaintiff. 19 III. CONCLUSION 20 Based on all of the foregoing, Plaintiff respectfully requests that the court deny 21 Defendants’ Motion for Summary Adjudication in its entirety. 22 Dated: October 8, 2020 BOYESLEGAL, APC 23 24 By ______________________________ PATRICIA A. BOYES, ESQ. 25 Attorneys for Plaintiff 26 CARLEY R.THOMPSON 27 28 Thompson v. Barajas, et al. CV-18-003684 PLAINTIFF CARLY THOMPSON’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS/CROSS-COMPLAINANTS, CENTRAL VALLEY VENTURE-STOCKTON DBA KELLER WILLIAMS REALTY AND KIM MCMILLIAN'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES RE: COMPLAINT [CCP §437c(f)(l)] 10