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  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
  • Pacific Union International, Inc. vs. Ludwick, Erik et al Contract: Breach Cont/Warranty (06) document preview
						
                                

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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 9 IN AND FOR THE COUNTY OF PLACER 10 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 ) 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________________________________ 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 8 E. Pacific Union Successfully Procures a Buyer and Closes Escrow ................ 5 9 III. PROCEDURAL BACKGROUND ...................................................................... 5 10 IV. LEGAL ARGUMENT ...................................................................................... 6 11 A. Applicable Legal Standards for Summary Judgment or Summary Adjudication of Issues.................................................................................... 6 12 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 18 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 .................................................................................. 15 I. Pacific Union Is Entitled to Judgment on the Cause of Action for 23 Declaratory Relief ....................................................................................... 16 24 V. CONCLUSION ................................................................................................. 16 25 26 27 28 i ___________________________________________________________________________________________ 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 .............................................................................................................................. 16 Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6 .............................................................. 13 19 20 21 22 23 24 25 26 27 28 ii ___________________________________________________________________________________________ MEMORANDUM OF POINTS AND AUTHORITIES ISO PACIFIC UNION’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES 1 STATUTES 2 Page(s) 3 Cal. Civ. Code § 3275 ................................................................................................ 9 4 Cal. Civ. Code 3384 ................................................................................................... 15 5 Civ. Code § 954 ......................................................................................................... 7 6 Code Civ. Proc. § 437c(c) .......................................................................................... 6 Code Civ. Proc. § 437c(o).......................................................................................... 6 7 Code Civ. Proc. § 437c(p)(1) ..................................................................................... 6 8 9 OTHER 10 CACI 300 ................................................................................................................... 6 11 CACI 303 ................................................................................................................... 6 12 CACI 1900 ................................................................................................................. 14 13 Com. Code, § 3301 .................................................................................................... 7 14 Corp. Code § 1107 ..................................................................................................... 7 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii ___________________________________________________________________________________________ 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 12 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 15 the cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) 16 B. Pacific Union Is Entitled to Judgment on the Cause of Action for Breach 17 of Contract 18 Based on the undisputed material facts, the Trust and Trustee breached the 19 contract they entered into with Pacific Union. To support a breach of written contract claim, 20 Pacific Union must establish the following elements: (1) existence and terms of a contract; (2) 21 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 24 Trustee only. 25 There is no dispute that the parties entered into a contract. At his deposition, 26 Trustee Paul Booth agreed, after looking at the Contract, that he had indeed signed a listing 27 agreement with Pacific Union. 28 6 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 7 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 8 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