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1 SHANNON B. JONES LAW GROUP, INC. 06/05/2020
SHANNON B. JONES (Bar No. 149222)
2 sbj@sbj-law.com
3 LINDSEY A. MORGAN (Bar No. 274214)
lam@sbj-law.com
4 208 W. El Pintado Road
Danville, California 94526
5 Telephone: (925) 837-2317
Facsimile: (925) 837-4831
6
Attorneys for Plaintiff
7 PACIFIC UNION INTERNATIONAL, INC.
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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11 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080
)
12 Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF PACIFIC
13 v. ) UNION INTERNATIONAL, INC.’S
) MOTION FOR SUMMARY JUDGMENT
14 ERIK LUDWICK, an individual and ) OR, ALTERNATIVELY, SUMMARY
beneficiary of The Anything Trust Dated ) ADJUDICATION OF ISSUES
15 October 12, 2007; THE ANYTHING TRUST )
DATED OCTOBER 12, 2007; PAUL D. )
16 BOOTH, in his capacity as trustee of The )
Anything Trust Dated October 12, 2007; and ) Date: August 20, 2020
17 DOES 1-50, ) Time: 9:30 a.m.
) Dept: 42
18 Defendants. )
) Complaint Filed: November 7, 2018
19 ) Trial Date: September 21, 2020
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF CONTENTS
2 Page(s)
3
I. INTRODUCTION ............................................................................................
1
4 II. FACTUAL BACKGROUND ........................................................................... 2
5 A. The Parties .....................................................................................................
2
6 B. The Contract...................................................................................................
2
7 C. Pacific Union’s Performance of the Contract ................................................ 3
D. Defendants’ Bad Faith Conduct .....................................................................
4
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E. Pacific Union Successfully Procures a Buyer and Closes Escrow ................ 5
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III. PROCEDURAL BACKGROUND ...................................................................... 5
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IV. LEGAL ARGUMENT ...................................................................................... 6
11 A. Applicable Legal Standards for Summary Judgment or Summary
Adjudication of Issues....................................................................................
6
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B. Pacific Union Is Entitled to Judgment on the Cause of Action for
13 Breach of Contract ......................................................................................
6
14 C. Pacific Union Is Entitled to Judgment on the Cause of Action for
Breach of the Implied Covenant of Good Faith and Fair Dealing .............. 9
15
D. Pacific Union Is Entitled to Judgment on the Cause of Action for
16 Common Counts .........................................................................................
11
17 E. Pacific Union Is Entitled to Judgment on the Cause of Action for
Intentional Interference With Contractual Relations .................................. 11
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F. Pacific Union Is Entitled to Judgment on the Cause of Action for
19 Intentional Interference With Prospective Economic Advantage ............... 13
20 G. Pacific Union Is Entitled to Judgment on the Cause of Action for
Intentional Misrepresentation .....................................................................
14
21 H. Pacific Union is Entitled to Judgment on the Cause of Action for
22 Specific Performance ..................................................................................
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I. Pacific Union Is Entitled to Judgment on the Cause of Action for
23 Declaratory Relief .......................................................................................
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24 V. CONCLUSION .................................................................................................
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF AUTHORITIES
2 CASES
3 Page(s)
4 Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243 ....................... 6
5 Canova v. Trustees of Imperial Irrigation District Employee Pension Plan (2007)
150 Cal.App.4th 1487, 1497 .........................................................................................
16
6
Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2
7 Cal.4th 342, 371–372 ....................................................................................................
10
Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658 .......................... 9
8
Horning v. Ladd, 157 Cal.App.2d 806, 810.................................................................. 9
9
Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 10 ......... 7
10
Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638 ................................................... 14
11
Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873] ....................... 11
12
Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 ........ 12
13 Parsons v. Smilie (1893) 97 Cal. 647, 657 ................................................................... 9
14 Richmond Realeteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400,
401-40 ...........................................................................................................................
7
15
Schaffter v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745 ........ 7
16
Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331 ...... 14
17
Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559,
18 1582 ..............................................................................................................................
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Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6 .............................................................. 13
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1
STATUTES
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Page(s)
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Cal. Civ. Code § 3275 ................................................................................................
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Cal. Civ. Code 3384 ...................................................................................................
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5 Civ. Code § 954 .........................................................................................................
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6 Code Civ. Proc. § 437c(c) ..........................................................................................
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Code Civ. Proc. § 437c(o)..........................................................................................
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Code Civ. Proc. § 437c(p)(1) .....................................................................................
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OTHER
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CACI 300 ...................................................................................................................
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CACI 303 ...................................................................................................................
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CACI 1900 .................................................................................................................
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13 Com. Code, § 3301 ....................................................................................................
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14 Corp. Code § 1107 .....................................................................................................
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 Plaintiff PACIFIC UNION INTERNATIONAL, INC. (“Pacific Union”) submits
2 the following memorandum of points and authorities in support of its Motion for Summary
3 Judgment, or alternatively, Summary Adjudication of issues against Defendants ERIK
4 LUDWICK, an individual and beneficiary of The Anything Trust Dated October 12, 2007; THE
5 ANYTHING TRUST DATED OCTOBER 12, 2007 and PAUL D. BOOTH, in his capacity as
6 trustee of The Anything Trust Dated October 12, 2007 (collectively, “Defendants”).
7 I. INTRODUCTION
8 This action arises from the wrongful refusal of Defendant The Anything Trust
9 Dated October 12, 2007 (“Trust”) by and through its Trustee, Defendant Paul D. Booth
10 (“Trustee”), to pay Pacific Union money earned in 2017. Trustee signed a written contract
11 agreeing to pay real estate salesperson Madison Hildebrand and his brokerage six percent (6%)
12 of the sale price of real property at 200 Toyopa Drive (the “Property”), in exchange for Mr.
13 Hildebrand’s services in listing and marketing the Property. Mr. Hildebrand and his brokerage,
14 Partners Trust, which was acquired by Pacific Union International, Inc. during the transaction at
15 issue in this lawsuit, marketed the Property, procured a buyer, and obtained a sale price of
16 sixteen million three hundred thousand dollars ($16,300,000) for the Trust and its beneficiary,
17 Defendant Erik Ludwick.
18 In the course of marketing the Property, another interested potential buyer made
19 an offer under which Pacific Union would have earned a lower commission of two and half
20 percent (2.5%) of the sale price of the Property. While that offer to purchase was ultimately
21 withdrawn and was not the one Defendants accepted and finalized, Defendants have apparently
22 decided that Pacific Union is only entitled to a 2.5% commission on the sale. Trustee sent an
23 email to Terra Coastal Escrow on the day escrow closed, stating, “As there is a dispute regarding
24 commission for 200 Toyopa, please hold 6% of proceeds until the dispute is resolved.” The Nine
25 Hundred Seventy Eight Thousand Dollar ($978,000) commission has languished in a non-
26 interest bearing escrow account since November 2017.
27 Pacific Union seeks the contractually agreed upon commission. As demonstrated
28 herein, there is no issue of material fact as to any of Pacific Union’s allegations, and Defendants
1
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 have no legal defense to the eight causes of action asserted by Pacific Union in the Complaint.
2 Accordingly, summary judgment must be granted for Pacific Union.
3 II. FACTUAL BACKGROUND
4 A. The Parties
5 Pacific Union is a California licensed real estate brokerage firm doing business
6 throughout California. (Exh. B, Declaration of Shannon B. Jones (“Jones Decl.”), ¶ 3, Exh. 8, at
7 p. 6, lines 4-6.) Pacific Union acquired Partners Trust on August 21, 2017, and as part of the
8 acquisition is the owner of the Contract at issue in this action. (Separate Statement of
9 Undisputed Material Fact (“UMF”), ¶ 4.) As part of the acquisition, Pacific Union obtained the
10 right to any commission earned by Partners Trust for open listing agreements. (UMF, ¶ 5.)
11 Accordingly, while the Contract lists Partners Trust, Pacific Union stands in Partners Trust’s
12 shoes, and all references to Plaintiff or Pacific Union in this motion also refer to and include
13 Partners Trust. (UMF, ¶¶ 1, 4, 5.)
14 The other party to the Contract was the Trust, a revocable living trust instrument
15 operating for the benefit of Defendant Erik Ludwick (“Ludwick”), by and through its Trustee.
16 (UMF, ¶¶ 1, 2.)
17 B. The Contract
18 On or about August 29, 2016, Trustee, on behalf of the Trust, executed a
19 Residential Listing Agreement (the “Contract”) with Pacific Union and its agents for the sale of
20 real property located at 200 Toyopa Drive, Pacific Palisades, Los Angeles County, California
21 90272, assessor’s parcel no. 4411-026-001 (the “Property”). (UMF, ¶ 1.) The initial listing
22 price for the Property was Twenty Million Dollars ($20,000,000) and the term of the Contract
23 was from September 1, 2016 through February 28, 2017. (UMF, ¶ 2.) The term was later
24 modified to extend through August 31, 2017. (UMF, ¶ 3.)
25 The Contract set Pacific Union’s compensation at six percent (6%) of the
26 Property’s sales price if: “during the Listing Period, or any extension, Broker, cooperating
27 broker, Seller or any other person procures a ready willing, and able buyer whose offer to
28 purchase the Property on any price and terms is accepted by Seller…” (UMF, ¶ 2.) The
2
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 Contract also provided that Pacific Union would be due a commission if, “within 180 calendar
2 days (a) after the end of the Listing Period or any extension; or (b) after any cancellation of this
3 Agreement,…, Seller enters into a contract to sell, convey, lease or otherwise transfer the
4 Property to anyone (‘Prospective Buyer’) or that person’s related entity: (i) who physically
5 entered and was shown the Property during the Listing Period or any extension by Broker or a
6 cooperating broker; or (ii) for whom broker or any cooperating broker submitted to Seller a
7 signed, written offer….” but only if Broker submitted to Seller a written list of Prospective
8 Buyers “not later than the end of the Listing Period or any extension…” (UMF, ¶ 2.) The
9 Contract also provides, “Seller hereby irrevocably assigns to Broker the above compensation
10 from Seller’s funds and proceeds in escrow.” (UMF, ¶ 2.) Finally, the Contract notes that, “If a
11 Buyer is procured directly by Broker or an associate-licensee in Broker’s firm, Seller hereby
12 consents to Broker acting as a dual agent for Seller and Buyer.” (UMF, ¶ 2.)
13 The Contract was modified on February 23, 2017, to extend the term to August
14 31, 2017 and to reduce the listing price to Nineteen Million, Five Hundred Thousand
15 ($19,500,000). (UMF, ¶ 3.) The Contract was further modified on June 9, 2017, to reduce the
16 listing price to Eighteen Million Eight Hundred and Eighty Thousand Dollars ($18,880,000).
17 (UMF, ¶ 3.) On July 7, 2017, the Contract was modified to reduce the Property’s listing price to
18 Sixteen Million Eight Hundred and Eighty Thousand Dollars ($16,880,000), and required that
19 the MLS listing for the Property be put on hold. (UMF, ¶ 3.)
20 C. Pacific Union’s Performance of the Contract
21 Pacific Union performed all of its obligations under the Contract, listing the
22 Property for sale, marketing it, and ultimately directly procuring buyer Behdad Eghbali
23 (“Buyer”). (UMF, ¶¶ 6, 8, 9; Exh. A, Declaration of Madison Hildebrand in Support of Motion
24 for Summary Judgment (“Hildebrand Decl.”), ¶¶ 4, 11, 13; Exh. B, Jones Decl, ¶ 5, Exh. 10.)
25 Buyer made an initial offer to purchase the Property on August 24, 2017. (UMF, ¶ 6.)
26 During this time, a different prospective buyer, Tony Antoci, also submitted an
27 offer to purchase the property. (Exh. A, Hildebrand Decl., ¶¶ 5, 8, 12.) During escrow, Mr.
28 Antoci submitted a request for repair and sought a reduction in the purchase price of $175,000.
3
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 (Exh. A, Hildebrand Decl., ¶¶ 10.) Ludwick and the Trustee did not find that acceptable, and
2 ultimately Mr. Antoci cancelled the contract. (Exh. A, Hildebrand Decl., ¶¶ 12.) Defendants
3 appear to believe that this cancellation was caused by Pacific Union inadvertently including Mr.
4 Antoci’s wife on an email discussing the various potential buyers. (Exh. A, Hildebrand Decl., ¶
5 7, Exh. 2.) But even if that were the case, which Defendants cannot prove, Defendants have
6 provided no evidence that the Trust’s decision to accept Buyer’s offer caused Defendants any
7 harm. Indeed, Buyer’s offer placed Defendants in a better position than the Antoci offer. (Exh.
8 A, Hildebrand Decl., ¶ 13.)
9 Pursuant to the terms of the Contract, Pacific Union provided an exclusion list of
10 prospective buyers to Defendants at the expiration of the Contract, on August 31, 2017, which
11 included Buyer’s name. (UMF, ¶ 7.) Using Pacific Union as a dual agent, Buyer made a second
12 offer to purchase the Property on September 13, 2017 for the amount of Sixteen Million, Three
13 Hundred Thousand Dollars ($16,300,000), which the Trust accepted. (UMF, ¶ 8.) Escrow
14 closed on November 9, 2017. (UMF, ¶ 9.)
15 D. Defendants’ Bad Faith Conduct
16 On September 20, 2017, Title Resource Group, LLC dba Terra Coastal Escrow,
17 Inc. (“Terra Costal Escrow”) requested that Defendants sign instructions releasing the
18 commission owed to Pacific Union. (Exh. B, Jones Decl., ¶ 5, Exh. 10.) On November 9, 2017,
19 Ludwick instructed the Trustee to refuse to pay Pacific Union a commission of six percent (6%)
20 of the sale price of the Property. (UMF, ¶ 10.) On November 9, 2017, escrow on the Property
21 closed and Buyer took title to the Property. (UMF, ¶ 9.) That same day, Trustee sent Terra
22 Coastal Escrow an email, stating, “As there is a dispute regarding commission for 200 Toyopa,
23 please hold 6% of proceeds until the dispute is resolved.” (UMF, ¶ 11.) The commission
24 remains in the Terra Coastal Escrow account. (UMF ¶ 12.) Pacific Union still has not received
25 any payment whatsoever from Trust, Trustee, or Ludwick for the work and expenses incurred in
26 listing and selling the Property, which Pacific Union performed under the Contract. (Exh. A,
27 Hildebrand Decl., ¶ 16.) Terra Coastal Escrow has held and continues to hold the Commission at
28 the direction of Trustee. (UMF, ¶ 12.)
4
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 E. Pacific Union Successfully Closes Escrow
2 Accordingly, Pacific Union procured a Buyer within 180 calendar days after the
3 end of the Contract who had previously submitted an offer and who was included on Pacific
4 Union’s exclusion list. (UMF, ¶¶ 2, 3, 6, 7, 8, 9.) Accordingly, Pacific Union is entitled to a
5 commission of six percent (6%) of the Sixteen Million, Three Hundred Thousand Dollars
6 ($16,300,000) sale price of the Property pursuant to the express terms of Paragraph 3 of the
7 Contract. (UMF, ¶ 2.) This amounts to Nine Hundred Seventy Eight Thousand Dollars
8 ($978,000) (the “Commission”). (UMF, ¶ 12.) Moreover, under the express terms of the
9 Contract, Pacific Union is also entitled to recover its attorneys’ fees incurred in having to file and
10 prosecute this action. (Exh. A, Declaration of Madison Hildebrand (“Hildebrand Decl.”), ¶ 2,
11 Exh. 1 (Contract at ¶ 15).)
12 III. PROCEDURAL BACKGROUND
13 On November 7, 2018, Pacific Union filed its complaint in Placer Superior Court,
14 asserting causes of action against Erik Ludwick, an individual and beneficiary of The Anything
15 Trust Dated October 12, 2007; The Anything Trust Dated October 12, 2007; and Paul D. Booth,
16 in his capacity as trustee of The Anything Trust Dated October 12, 2007 (collectively,
17 “Defendants”), asserting causes of action for: 1) Breach of Contract; 2) Breach of the Implied
18 Covenant of Good Faith and Fair Dealing; 3) Common Counts; 4) Intentional Interference with
19 Contractual Relations; 5) Intentional Interference with Prospective Economic Advantage; 6)
20 Intentional Misrepresentation; 7) Specific Performance; and 8) Declaratory Relief (the “Pacific
21 Union Placer Complaint”) in the action titled Pacific Union International, Inc. v. Erik Ludwick,
22 et al. (Exh. D, Request for Judicial Notice in Support of Motion for Summary Judgment
23 (“RJN”), Exh. 11.) Pacific Union seeks to recover the commission owed to it under the Contract,
24 along with contractual attorneys’ fees. (Exh. D, RJN, Exh. 11.)
25 Defendants sought to change venue to Los Angeles Superior Court, but their
26 motion was denied. (Exh. D, RJN, Exh. 12.) Defendants then filed a demurrer to the Complaint,
27 which was overruled. (Exh. D, RJN, Exh. 13.) Defendants filed a motion to compel discovery
28 responses from Pacific Union, which was denied. (Exh. D, RJN, Exh. 14.) Defendants filed a
5
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 motion for summary judgment, which is currently awaiting briefing. (Exh. D, RJN, Exh. 15.)
2 There has not been any other motion practice in this action.
3 IV. LEGAL ARGUMENT
4 A. Applicable Legal Standards for Summary Judgment or Summary
Adjudication of Issues
5
6 A motion for summary judgment “shall be granted if all the papers submitted
7 show that there is no triable issue as to any material fact and that the moving party is entitled to a
8 judgment as a matter of law.” (Code Civ. Proc. § 437c(c).) A party is entitled to summary
9 adjudication of any cause of action which has no merit because one or more of the elements of
10 the cause of action cannot be separately established. (Code Civ. Proc. § 437c(o).)
A motion for summary judgment or summary adjudication brought by a Pacific
11
Union must meet the “burden of showing that there is no defense to a cause of action if that party
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has proved each element of the cause of action entitling the party to judgment on the cause of
13
action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the
14
defendant or cross-defendant to show that a triable issue of one or more material facts exists as to
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the cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).)
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B. Pacific Union Is Entitled to Judgment on the Cause of Action for Breach
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of Contract
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Based on the undisputed material facts, the Trust and Trustee breached the
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contract they entered into with Pacific Union. To support a breach of written contract claim,
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Pacific Union must establish the following elements: (1) existence and terms of a contract; (2)
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plaintiff’s performance or excuse for failing to perform; (3) the defendant’s breach; and (4)
22
plaintiff’s damages. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243; see
23
also CACI 300, 303.) Pacific Union has asserted a breach of contract claim against the Trust and
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Trustee only.
25
There is no dispute that the parties entered into a contract. At his deposition,
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Trustee Paul Booth agreed, after looking at the Contract, that he had indeed signed a listing
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agreement with Pacific Union.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 11 Q Do you agree that you signed a listing agreement
12 that stated that 6 percent of the purchase price would be
2 13 paid as a commission?
3
14 A Based on the documents you produced, yes.
4
(Ex. B, Jones Decl., ¶ 2, Exh. 7 (Deposition of Paul Booth at p. 46:10-14).)
5
As an administrative matter, Pacific Union owns the Contract with the Trust
6
entered into by Partners Trust. (UMF, ¶ 4.) When Pacific Union acquired Partners Trust in
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August 2017, it acquired the right to enforce a contract held by Partners Trust. Under the
8
Corporations Code:
9
Upon merger pursuant to this chapter the separate existence of the
10 disappearing corporations ceases and the surviving corporation
11 shall succeed, without other transfer, to all the rights and property
of each of the disappearing corporations and shall be subject to all
12 the debts and liabilities of each in the same manner as if the
surviving corporation had itself incurred them.
13
(Corp. Code § 1107.)
14 There is no issue of material fact as to whether Partners Trust transferred its rights
15 to sue for recovery of the commission to Pacific Union. (UMF, ¶ 4.) Nor is there any legal
16 question as to whether Pacific Union was entitled to receive those rights, as “A thing in action,
17 arising out of the violation of a right of property, or out of an obligation, may be transferred by
18 the owner.” (Civ. Code § 954.) Accordingly, Pacific Union is entitled to enforce the Contract.
19 (“Persons entitled to enforce an instrument means (a) the holder of the instrument, (b) a non-
20 holder in possession of the instrument who has the rights of a holder . . .”. (Com. Code, §
21 3301.)) Successor companies have standing to enforce provisions of a contract initially entered
22 into by the company they purchased. (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015)
23 243 Cal.App.4th 1, 10.)
24 Unpaid commissions in real estate, moreover, are assignable interests. (Schaffter
25 v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, holding a breach of
26 contract action for unpaid commissions on the sale of real estate is assignable from one business
27 entity to another.) Brokers have long been able to assign their rights to commissions.
28 (Richmond Realeteria, Inc. v. Canterbury Estates, Inc. (1965) 234 Cal.App.2d 400, 401-402,
7
MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 determining how to apply a complicated commission provision assigned by a real estate broker
2 to a company.)
3 Pacific Union’s predecessor, Partners Trust, and its agent Madison Hildebrand
4 entered into the Contract with the Trust, by and through the Trustee, on August 29, 2016. (UMF
5 1). Pacific Union and its agent performed their obligations under the Contract and procured
6 Buyer, as provided by the terms of the Contract. (UMF, ¶¶ 2, 3.) The Property was sold to
7 Buyer for Sixteen Million Three Hundred Thousand Dollars ($16,300,000). (UMF, ¶¶ 2, 3, 8 ,
8 9.) The Contract expressly stated that six percent (6%) of the purchase price was to be assigned
9 to Pacific Union out of escrow. (UMF, ¶ 2.) But Defendants failed and refused, and continue to
10 fail and refuse, to honor that agreement. (UMF, ¶¶ 10, 11, 12, 13.) As Trustee Paul Booth
11 admitted at deposition, he received an email from Ludwick on November 9, 2017 directing him
12 to tell Terra Coastal Escrow to hold the commission. (UMF, ¶¶ 10, 11.)
13 8 Q All right. And this is [an] e-mail from Eric giving
9 you directions to cut and paste instructions to Cynthia at
14 10 escrow.
11 And it says, as there is a dispute regarding
15
12 commission for 200 Toyopa, comma, please hold 6 percent of
16 13 proceeds until the dispute is resolved.
14 Do you remember receiving this e-mail?
17
15 A I remember somehow informing escrow of Eric's
18 16 request.
19
(Ex. B, Jones Decl., ¶ 2, Exh. 7 (Deposition of Paul Booth at p. 43:8-16).)
20
Trustee testified that he followed this request from Ludwick, that Terra Coastal
21
Escrow complied with the request and held the commission, and that Trustee did not thereafter
22
instruct Terra Coastal Escrow to release any commission proceeds to Pacific Union. (UMF, ¶¶
23
11, 12, 13.)
24
1 A Yeah. It wouldn't be like me to cut and paste.
25 2 It would have been more like me to write it out.
3 So, again, I remember following those
26 4 directions. Whether or not -- I can't say I recall
5 writing that e-mail.
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES
1 6 Q Okay. But you remember following Eric's
7 directions to give this instruction to the escrow company?
2
3 8 A Yes.
4 9 Q Did you receive a response to this e-mail, that
10 you sent to Cynthia at escrow?
5
11 A Not that I recall. But I believe they -- they,
6 12 they, um, honored it.
7
13 Q Okay. Did you ever send Cynthia, in escrow,
8 14 subsequent to this, instructions to release any commission
15 proceeds?
9
16 A No, that I recall.
10
11 (Ex. B, Jones Decl., ¶ 2, Exh. 7 (Deposition of Paul Booth at p. 44:1-16).)
12 (UMF, ¶¶ 7, 9.) The Trust, by and through its Trustee, breached the Contract by refusing to
13 allow payment of the commission to Pacific Union, damaging Pacific Union in the amount of the
14 unpaid $970,000 commission, interest, and the attorneys fees required to pursue Pacific Union’s
15 rights under the contract. (UMF, ¶¶ 2, 3, 8, 9; Exh. A, Hildebrand Decl., ¶ 2, Exh. 1, ¶ 16.)
16 Based on the undisputed material facts, Defendants have no defense to this cause of action. 1
17 C. Pacific Union Is Entitled to Judgment on the Cause of Action for Breach
of the Implied Covenant of Good Faith and Fair Dealing
18