Preview
™ = {Liled By fax
MICHAEL A.J. NANGANO (SBN 133999)
Ke
LAW OFFICES OF MICHAEL A.J. NANGANO
133 No. Altadena Drive, Suite 403
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Pasadena, CA 91107
Phone: (626) 796-9998 SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER
Fax: (626) 796-9992
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Attorney for Defendants JAN 02 2019
JAKE CHATTERS
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EXECUTIVE O CLERK
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By: E.C , Députy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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PACIFIC UNION INTERNATIONAL, Case No. S-CV 0042080
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INC,,
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DEFENDANTS’ NOTICE OF MOTION
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Plaintiff,
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AND MOTION TO CHANGE VENUE
(CCP §§ 395, 395.1, 397);
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vs.
REQUEST FOR MONETARY
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SANCTIONS;
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ERIK LUDWICK, an individual AND
Beneficiary of The Anything Trust dated MEMORANDUM OF POINTS AND
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October 12, 2007; THE ANYTHING AUTHORITIES;
TRUST DATED OCTOBER 12, 2017; DECLARATIONS OF:
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PAUL D. BOOTH, in his capacity as Trustee ERIK LUDWICK;
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PAUL D. BLOOM; &
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of The Anything Trust Dated October 12,
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2007; and Does 1 through 50, inclusive, MICHAEL A.J NANGANO; and
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EXHIBITS IN SUPPORT THEREOF
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Defendants.
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Motion Date: February 19, 2019
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Dept.: Dept 42
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CMC Date: March 12, 2019
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Trial Date: None Set
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DEFENDANTS’ MOTION FOR CHANGE OF VENUE
* for which sale in Los Angeles County, Plaintiff acted as a “dual” broker on behalf
of both seller and buyer; with Plaintiff representing seller via an exclusion on an
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expired listing agreement.
WY
As noted above, the one and only alleged basis for jurisdiction in Placer County is that
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Defendant Booth isa trustee of the Defendant Trust. Thus, according to Plaintiff, allparties and
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witnesses should be required to travel from Los Angeles to Placer County for trialof this matter.
ND
But stacked against this are virtually allof the factors which require that the action be brought
in Los Angeles County under CCP §395:
TOD
* the subject property is located in Los Angeles County;
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* the contract was entered into in Los Angeles County;
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. the contract was to be performed in Los Angeles County; and
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* all defendants except the trustee of the Trust are residents of, and/or do business in,
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Los Angeles County.
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Therefore, under CCP §395, the proper venue for this action isLos Angeles County, not
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Placer County.
DH
B. Los ANGELES COUNTY IS THE PROPER VENUE UNDER CCP §395 .1
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Further, the lone resident of Placer County, Defendant Paul D. Booth, is being sued solely
in his representative capacity as Trustee of the Trust. However, pursuant to CCP §395.1:
er
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“Except as otherwise provided in Section 17005 of the Probate Code pertaining to
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trustees, when a defendant is sued in an official or representative capacity as
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executor, administrator, guardian, conservator, or trustee on a claim for the payment
of money orfor the recovery of personal property, the county which has jurisdiction
NO
NY
of the estate which the defendant represents shall be the proper county for the
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trial of the action.” (Emphasis added.)
FP
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Here the estate of the “Anything Trust” — including, inparticular, the subject realproperty --
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has always been under thejurisdiction of Los Angeles County. Further, Probate Code §17005 does
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not, in any way, prohibit application of CCP §395.1 in this case.
NY
NO
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NO
5
DEFENDANTS’ MOTION FOR CHANGE OF VENUE
Therefore, under CCP §395.1, the proper county for an action against the trustee is Los
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Angeles County, not Placer County.
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Cc. Los ANGELES COUNTY ISTHE PROPER VENUE FOR ‘THIS CASE UNDER CCP §397
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Code of Civil Procedure §397 provides in pertinent part that: “The Court, may on motion,
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change the place of trial inthe following cases: . .. (a)When the convenience of witnesses and the
AND
ends of justice would be promoted by the change.”
Here the real property and allof the parties, witnesses and documents related tothe sale of
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the real property are located in Los Angeles County. The only person who might be inconvenienced
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is Defendant Paul Booth, who isa moving party on this Motion and does not object to the case
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being tried in Los Angeles County. (See Declaration of Paul Booth filed concurrently herewith at
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415 on page 4 atlines 22-24 thereof.)
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PLAINTIFF’s CHOICE OF VENUE ALSO VIOLATES APPLICABLE CASE LAW
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Beginning with the California Supreme Court’s discussion of the constitutional
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underpinnings of CCP §395 inHale y.Bohannon 38 Cal.2d 458 (1952), Courts have consistently
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held that unless there isa written contract between the parties which specifies otherwise, the County
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OR
in which “the obligation the breach of which is pleaded as the cause of action, under the
DTD
constitutional provision, the place where itis to be performed isthe decisive factor in so far as
NNO
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venue is concerned.” (Hale v.Bohannon, supra 38 Cal.2d at 466; internal citations omitted.) Here,
NO
NO
Plaintiff is suing for a sale commission which was to be paid in Los Angeles County, under a
NYO
WO
contract entered into inLos Angeles County, for services which itspredecessor in interest allegedly
F&F
KD
provided in Los Angeles County.
WH
NO
More specifically, when the alleged breach of contract is failure to pay money due under a
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NO
written contract, case law has consistently held that the County in which the money was allegedly
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to have been paid is the proper county for an action to enforce the payment provision of the
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6
DEFENDANTS’ MOTION FOR CHANGE OF VENUE
contract. (See, Braunstein y.Superior Court of Monterey County (1964) 225 Cal.App.2d 691, 695-
697 [hereinafter simply Brauns/ein] and cases there cited.)
DH
In the instant case, there is also the geographic issue of convenience for the parties and
WH
witnesses. CCP §397 states that a Court may, on motion, grant a change of venue request “[w|hen
RB
the convenience of witnesses and the ends of justice would be promoted by the change.” Here it
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is indisputable that the only potential witness in Placer County is Defendant Paul Booth, the
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Trustee; while allother potential witnesses, all escrow and other documents, and even the property
itselfare in Los Angeles County.
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DEFENDANTS ARE ENTITLED TO AN AWARD OF SANCTIONS
ROBO
As detailed in the Declaration of Michael A.J. Nangano filed concurrently herewith,
DEFENDANTS have made multiple attempts to avoid the need for this Motion. Specifically:
1. On November 26, 2018, Mr. Nangano sent a letter of representation to Plaintiff's
re
DNC
counsel. Among other issues, Mr. Nangano sought to clear up confusion regarding service the
complaint and request an extension. The November 26, 2018 letter isattached to Mr. Nangano’s
SES! lCUCODOlUlCUCCOClUMwWOWmULULUMUGN
Declaration as Exhibit 1.
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2. On December 3, 2018, Mr. Nangano received an email response confirming that
Plaintiff granted an extension to January 2, 2019 to file a responsive pleading. A copy of the
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December 3, 2018 e/mail from Lindsay A. Morgan is attached to Mr. Nangano’s Declaration as
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Exhibit 2.
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3. On December 11, 2018, Mr. Nangano sent correspondence to Plaintiff's counsel
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regarding Defendants’ assertion that the proper venue for this matter isLos Angeles County, where
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the contract was formed and to be performed. A proposed stipulation was attached for Plaintiff's
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review. The December 11, 2018 letterand attachment are attached to Mr. Nangano’s Declaration
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as Exhibit 3.
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7
DEFENDANTS’ MOTION FOR CHANGE OF VENUE
4, On or about December 18, 2018, Defendants’ counsel received correspondence from
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Plaintiffs counsel declining to sign the stipulation. The December 18,2018 letteris attached to Mr.
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Nangano’s Declaration as Exhibit 4.
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5. On December 19, 2018, Mr. Nangano responded to Plaintiff srefusal to stipulate and
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insistence that Placer County is the proper venue. In that correspondence Mr. Nangano requested
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dates for hearing of a Motion to Change Venue and inquired whether a further meet and confer was
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warranted. Mr. Nangano also requested proposed times for a telephone conference. ‘The December
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19, 2018 letter is attached to Mr. Nangano’s Declaration as Exhibit 5.
6. On December 21, 2018, Plaintiffs counsel was sent another letter requesting a further
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extension to respond to the complaint by seven (7) days to January 9, 2019. The December 21,
CSC
2018 email is attached to Mr. Nangano’s Declaration as Exhibit 6.
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7. Also on December 21, 2018, Defendants’ counsel received correspondence from
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was the appropriate venue and the choice for
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Plaintiffs counsel again stating the Placer County
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their client. The letter also rejected the request for a one week extension to January 9,2019 to file
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a responsive pleading. This letteris attached to Mr. Nangano’s Declaration as Exhibit 7.
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8. On December 26, 2018, Mr. Nangano again wrote to Plaintiffs counsel stating that
they had not provided any dates forthe proposed Motion for Change ofVenue; and that unless they
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did so, Defendants would simply request the firstavailable hearing date. The December 26, 2018
letter isattached to Mr. Nangano’s Declaration as Exhibit 8.
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9. On December 27, 2018, Plaintiff's counsel asked that Mr. Nangano pick a date for
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the Motion that is convenient for Defendants and Plaintiff “will accommodate it”, The December
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27, 2018 letter isattached to Mr. Nangano’s Declaration as Exhibit 9.
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10. On December 28, 2018, Plaintiffs counsel sent correspondence to Plaintiff's counsel
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requesting authority that Probate Code § 17005 (a)(1) controls over the finding of Brounstfein v.
Fe
KH
Superior Court of Monterey County, the case cited in the December 11, 2018 correspondence to
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Plaintiff's counsel (Exhibit 3). The December 28, 2018 letter is attached to Mr. Nangano’s
PO
NN
Declaration as Exhibit 10.
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8
DEFENDANTS’ MOTION FOR CHANGE OF VENUE
11. On January 2,2019 Defendants’ counsel sent correspondence to Plaintiff's counsel
giving Plaintiff a ten day “safe harbor” (after receipt of the instant motion) to stipulate to a transfer
NW
to the Los Angeles Superior Court; inwhich event Defendants would withdraw the instant motion,
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including the request for attorneys fees and costs. The January 2, 2019 letteris attached to Mr.
FSF
Nangano’s Declaration as Exhibit 11.
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12. Plaintiffs’ counsel has expended in excess of twenty-one (21) hours in the preparation
Dn
of this Motion at $295 an hour, resulting in Attorney fees of $6,195.00. The costs associated with
ON
filing this motion, including both a firstappearance fee and the motion fee, are $2,065.00. Mr.
Nangano anticipates a further five (5) hours of attorney time will be incurred in preparing a Reply
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10 Brief to Plaintiffs anticipated Opposition which will result in additional fees of $1,475. If oral
1] argument isnecessary, itis anticipated that a further four (4) hours will be incurred; resulting in
12 further fees of $1,180.00. Thus, the total fees and costs incurred by Defendants in bringing this
13 motion will total $10,915.00.
14
CONCLUSION
15
16
Therefore, it isclear that theproper venue forthe instant action isthe County ofLos Angeles,
17
not Placer County. All relevant contracts were entered into and were to be performed in Los
18
Angeles County, not Placer County. The real property, and allwitnesses and relevant documents,
19
are located in Los Angeles County, not Placer County. Plaintiffs gamesmanship inattempting to
20
make this case as difficult as possible for Defendants to defend, and to avoid the possibility of
ai
adverse publicity for its high profile television “celebrity” lead agent, isinappropriate and should
22
not be rewarded. The case should be transferred to Los Angeles County where it belongs.
23
24
Respectfully submitted,
£2
DATED: January 2, 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION
26 ra { _
ar BY: 7/
J,
28 Attorneys for Defendants
9
DEFENDANTS’ MOTION FOR CHANGE OF VENUE
Preview
™ = {Liled By fax MICHAEL A.J. NANGANO (SBN 133999) Ke LAW OFFICES OF MICHAEL A.J. NANGANO 133 No. Altadena Drive, Suite 403 ILED NYO Pasadena, CA 91107 Phone: (626) 796-9998 SUPERIOR COURT OF CALIFORNIA W COUNTY OF PLACER Fax: (626) 796-9992 FSF Attorney for Defendants JAN 02 2019 JAKE CHATTERS WN EXECUTIVE O CLERK WDB By: E.C , Députy NY SUPERIOR COURT OF THE STATE OF CALIFORNIA Oo b/%s— IN AND FOR THE COUNTY OF PLACER Oo Ss fF a NH PACIFIC UNION INTERNATIONAL, Case No. S-CV 0042080 ee a INC,, wD DEFENDANTS’ NOTICE OF MOTION ee Plaintiff, BR AND MOTION TO CHANGE VENUE (CCP §§ 395, 395.1, 397); ee vs. REQUEST FOR MONETARY NAA SANCTIONS; Rm ERIK LUDWICK, an individual AND Beneficiary of The Anything Trust dated MEMORANDUM OF POINTS AND ee October 12, 2007; THE ANYTHING AUTHORITIES; TRUST DATED OCTOBER 12, 2017; DECLARATIONS OF: ee PAUL D. BOOTH, in his capacity as Trustee ERIK LUDWICK; wm ee PAUL D. BLOOM; & wr of The Anything Trust Dated October 12, ee 2007; and Does 1 through 50, inclusive, MICHAEL A.J NANGANO; and GO EXHIBITS IN SUPPORT THEREOF ee Rw SF ee Defendants. a Motion Date: February 19, 2019 SF NO ee Dept.: Dept 42 ue KN ue CMC Date: March 12, 2019 OY Trial Date: None Set VN BRB HN mn KN HN UA NO So NO | DEFENDANTS’ MOTION FOR CHANGE OF VENUE * for which sale in Los Angeles County, Plaintiff acted as a “dual” broker on behalf of both seller and buyer; with Plaintiff representing seller via an exclusion on an NYO expired listing agreement. WY As noted above, the one and only alleged basis for jurisdiction in Placer County is that Fe Defendant Booth isa trustee of the Defendant Trust. Thus, according to Plaintiff, allparties and AHO witnesses should be required to travel from Los Angeles to Placer County for trialof this matter. ND But stacked against this are virtually allof the factors which require that the action be brought in Los Angeles County under CCP §395: TOD * the subject property is located in Los Angeles County; ODO * the contract was entered into in Los Angeles County; Co ee . the contract was to be performed in Los Angeles County; and KF * all defendants except the trustee of the Trust are residents of, and/or do business in, wwe NY Los Angeles County. YW Therefore, under CCP §395, the proper venue for this action isLos Angeles County, not Ff Placer County. DH B. Los ANGELES COUNTY IS THE PROPER VENUE UNDER CCP §395 .1 HN Further, the lone resident of Placer County, Defendant Paul D. Booth, is being sued solely in his representative capacity as Trustee of the Trust. However, pursuant to CCP §395.1: er BO “Except as otherwise provided in Section 17005 of the Probate Code pertaining to CO RO trustees, when a defendant is sued in an official or representative capacity as NO F& executor, administrator, guardian, conservator, or trustee on a claim for the payment of money orfor the recovery of personal property, the county which has jurisdiction NO NY of the estate which the defendant represents shall be the proper county for the HN W trial of the action.” (Emphasis added.) FP NHN Here the estate of the “Anything Trust” — including, inparticular, the subject realproperty -- On HNO has always been under thejurisdiction of Los Angeles County. Further, Probate Code §17005 does NH PB not, in any way, prohibit application of CCP §395.1 in this case. NY NO Oo NO 5 DEFENDANTS’ MOTION FOR CHANGE OF VENUE Therefore, under CCP §395.1, the proper county for an action against the trustee is Los KF Angeles County, not Placer County. HN W Cc. Los ANGELES COUNTY ISTHE PROPER VENUE FOR ‘THIS CASE UNDER CCP §397 FP Code of Civil Procedure §397 provides in pertinent part that: “The Court, may on motion, NH change the place of trial inthe following cases: . .. (a)When the convenience of witnesses and the AND ends of justice would be promoted by the change.” Here the real property and allof the parties, witnesses and documents related tothe sale of F&F the real property are located in Los Angeles County. The only person who might be inconvenienced Oo is Defendant Paul Booth, who isa moving party on this Motion and does not object to the case SO eee being tried in Los Angeles County. (See Declaration of Paul Booth filed concurrently herewith at KF 415 on page 4 atlines 22-24 thereof.) NYO ee W Ul FPF PLAINTIFF’s CHOICE OF VENUE ALSO VIOLATES APPLICABLE CASE LAW Nn rR Dn Beginning with the California Supreme Court’s discussion of the constitutional nN underpinnings of CCP §395 inHale y.Bohannon 38 Cal.2d 458 (1952), Courts have consistently WH held that unless there isa written contract between the parties which specifies otherwise, the County CO OR in which “the obligation the breach of which is pleaded as the cause of action, under the DTD constitutional provision, the place where itis to be performed isthe decisive factor in so far as NNO KF venue is concerned.” (Hale v.Bohannon, supra 38 Cal.2d at 466; internal citations omitted.) Here, NO NO Plaintiff is suing for a sale commission which was to be paid in Los Angeles County, under a NYO WO contract entered into inLos Angeles County, for services which itspredecessor in interest allegedly F&F KD provided in Los Angeles County. WH NO More specifically, when the alleged breach of contract is failure to pay money due under a DB NO written contract, case law has consistently held that the County in which the money was allegedly BO I to have been paid is the proper county for an action to enforce the payment provision of the Oo DO 6 DEFENDANTS’ MOTION FOR CHANGE OF VENUE contract. (See, Braunstein y.Superior Court of Monterey County (1964) 225 Cal.App.2d 691, 695- 697 [hereinafter simply Brauns/ein] and cases there cited.) DH In the instant case, there is also the geographic issue of convenience for the parties and WH witnesses. CCP §397 states that a Court may, on motion, grant a change of venue request “[w|hen RB the convenience of witnesses and the ends of justice would be promoted by the change.” Here it OA is indisputable that the only potential witness in Placer County is Defendant Paul Booth, the NN Trustee; while allother potential witnesses, all escrow and other documents, and even the property itselfare in Los Angeles County. Oe Wl Co eee DEFENDANTS ARE ENTITLED TO AN AWARD OF SANCTIONS ROBO As detailed in the Declaration of Michael A.J. Nangano filed concurrently herewith, DEFENDANTS have made multiple attempts to avoid the need for this Motion. Specifically: 1. On November 26, 2018, Mr. Nangano sent a letter of representation to Plaintiff's re DNC counsel. Among other issues, Mr. Nangano sought to clear up confusion regarding service the complaint and request an extension. The November 26, 2018 letter isattached to Mr. Nangano’s SES! lCUCODOlUlCUCCOClUMwWOWmULULUMUGN Declaration as Exhibit 1. wr 2. On December 3, 2018, Mr. Nangano received an email response confirming that Plaintiff granted an extension to January 2, 2019 to file a responsive pleading. A copy of the DRO December 3, 2018 e/mail from Lindsay A. Morgan is attached to Mr. Nangano’s Declaration as RO NYO Exhibit 2. KR 3. On December 11, 2018, Mr. Nangano sent correspondence to Plaintiff's counsel We HN regarding Defendants’ assertion that the proper venue for this matter isLos Angeles County, where BP HN the contract was formed and to be performed. A proposed stipulation was attached for Plaintiff's Nn HN review. The December 11, 2018 letterand attachment are attached to Mr. Nangano’s Declaration NON NO as Exhibit 3. NO nN ao DB 7 DEFENDANTS’ MOTION FOR CHANGE OF VENUE 4, On or about December 18, 2018, Defendants’ counsel received correspondence from = Plaintiffs counsel declining to sign the stipulation. The December 18,2018 letteris attached to Mr. WHO Nangano’s Declaration as Exhibit 4. W 5. On December 19, 2018, Mr. Nangano responded to Plaintiff srefusal to stipulate and FF insistence that Placer County is the proper venue. In that correspondence Mr. Nangano requested nH dates for hearing of a Motion to Change Venue and inquired whether a further meet and confer was Dn warranted. Mr. Nangano also requested proposed times for a telephone conference. ‘The December man 19, 2018 letter is attached to Mr. Nangano’s Declaration as Exhibit 5. 6. On December 21, 2018, Plaintiffs counsel was sent another letter requesting a further oO extension to respond to the complaint by seven (7) days to January 9, 2019. The December 21, CSC 2018 email is attached to Mr. Nangano’s Declaration as Exhibit 6. KF RR 7. Also on December 21, 2018, Defendants’ counsel received correspondence from NY was the appropriate venue and the choice for Re Plaintiffs counsel again stating the Placer County WO their client. The letter also rejected the request for a one week extension to January 9,2019 to file Re FP a responsive pleading. This letteris attached to Mr. Nangano’s Declaration as Exhibit 7. DH 8. On December 26, 2018, Mr. Nangano again wrote to Plaintiffs counsel stating that they had not provided any dates forthe proposed Motion for Change ofVenue; and that unless they Rm Wows did so, Defendants would simply request the firstavailable hearing date. The December 26, 2018 letter isattached to Mr. Nangano’s Declaration as Exhibit 8. CO 9. On December 27, 2018, Plaintiff's counsel asked that Mr. Nangano pick a date for CO NO the Motion that is convenient for Defendants and Plaintiff “will accommodate it”, The December KY§ DN 27, 2018 letter isattached to Mr. Nangano’s Declaration as Exhibit 9. YN KR 10. On December 28, 2018, Plaintiffs counsel sent correspondence to Plaintiff's counsel WD KN requesting authority that Probate Code § 17005 (a)(1) controls over the finding of Brounstfein v. Fe KH Superior Court of Monterey County, the case cited in the December 11, 2018 correspondence to UN PN Plaintiff's counsel (Exhibit 3). The December 28, 2018 letter is attached to Mr. Nangano’s PO NN Declaration as Exhibit 10. wpoO oOo DO 8 DEFENDANTS’ MOTION FOR CHANGE OF VENUE 11. On January 2,2019 Defendants’ counsel sent correspondence to Plaintiff's counsel giving Plaintiff a ten day “safe harbor” (after receipt of the instant motion) to stipulate to a transfer NW to the Los Angeles Superior Court; inwhich event Defendants would withdraw the instant motion, W including the request for attorneys fees and costs. The January 2, 2019 letteris attached to Mr. FSF Nangano’s Declaration as Exhibit 11. Wn 12. Plaintiffs’ counsel has expended in excess of twenty-one (21) hours in the preparation Dn of this Motion at $295 an hour, resulting in Attorney fees of $6,195.00. The costs associated with ON filing this motion, including both a firstappearance fee and the motion fee, are $2,065.00. Mr. Nangano anticipates a further five (5) hours of attorney time will be incurred in preparing a Reply Oo 10 Brief to Plaintiffs anticipated Opposition which will result in additional fees of $1,475. If oral 1] argument isnecessary, itis anticipated that a further four (4) hours will be incurred; resulting in 12 further fees of $1,180.00. Thus, the total fees and costs incurred by Defendants in bringing this 13 motion will total $10,915.00. 14 CONCLUSION 15 16 Therefore, it isclear that theproper venue forthe instant action isthe County ofLos Angeles, 17 not Placer County. All relevant contracts were entered into and were to be performed in Los 18 Angeles County, not Placer County. The real property, and allwitnesses and relevant documents, 19 are located in Los Angeles County, not Placer County. Plaintiffs gamesmanship inattempting to 20 make this case as difficult as possible for Defendants to defend, and to avoid the possibility of ai adverse publicity for its high profile television “celebrity” lead agent, isinappropriate and should 22 not be rewarded. The case should be transferred to Los Angeles County where it belongs. 23 24 Respectfully submitted, £2 DATED: January 2, 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION 26 ra { _ ar BY: 7/ J, 28 Attorneys for Defendants 9 DEFENDANTS’ MOTION FOR CHANGE OF VENUE