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MICHAEL A.J. NANGANO(SBN 133999)
Law Offices of Michael A.J. Nangano
07/24/2020
133 No. Altadena Drive, Suite 403
Pasadena, CA 91107
Phone: (626)796-9998
Fax: (626)796-9992
FJLANKLIN T. BIGELOW,JR(SBN 81606)
Klika,Parrish & Bigelow
133 No. Altadena Drive, Suite 403
Pasadena, CA 91107
Phone: (626)796-9998
Attorneys for Petitioner(s)(and all Flaintiff(s) in the Los Angeles Superior Court Case
below): ERIK LUDWICK,individually AND as Trustee and Beneficiaiy of
"THE ANYTHING TRUST" dated October 12, 2007
10 JUDICIAL COUNCIL OF CALIFORNIA
11 CHAIR OF THE JUDICIAL COUNCIL
12
THIS DOCUMENT RELATES TO THE
13 VERIFIED COMPLAINT FILED IN:
PETITIONER / PLAINTIFF'S
14 ERIK LUDWICK,individually AND as MEMORANDUM OF POINTS AND
Trustee and Beneficiary of"THE AUTHORITIES IN SUPPORT OF
15 ANYTHING TRUST" dated October 12, PETITION FOR COORDINATION; AND,
2007; Plaintiff(s), vs. REQUEST FOR STAY
16
PARTNERS TRUST REAL ESTATE
17 BROKERAGE & ACQUISITIONS; an [Filed Concurrently With Petitioner to
unincorporated California Business Entity; Coordinate and supporting Exhibits.]
18 PACIFIC UNION INTERNATIONAL,
INC.,a California Corporation; [Also see "Table of Contents" and "Table
19 MADISON HILDEBRAND,individually of Authorities" concurrently filed herewith.]
& dba "THE MALIBU LIFE TEAM";
20 MALIBU LIFE,INC.,a California
Corporation; NICK R.SEGAL,an
21 individual; SAMUEL H. KRAEMER,an
individual; GINA KIRKPATRICK,an
22 individual; JENNIFER CHRISMAN,an
individual; and Does I through 50,inclusive;
23 Defendants
24 Los Angeles County Superior Court, Case
No.: 19STCV25331 - Filed 07/19/2019; Trial
25 Date: None
26
27
28
1
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1
2"'* Case For Coordination:
2
3 PACIFIC UNION INTERNATIONAL,
INC.,Plaintiff, vs.
4
ERIK LUDWICK,an individual AND
5 Settlor of The Anything Trust dated October
12, 2007; THE ANYTHING TRUST
6 DATED OCTOBER 12,2007; PAUL D.
BOOTH,in his capacity as Trustee of The
7 Anything Trust Dated October 12, 2007; and
Does 1 through 50, inclusive. Defendants.
8
Placer County Superior Court Case No.
9 S-CV-0042080- 11/07/18
Trial Set for 09/21/2020
10
11
12
TO THE CHAIRPERSON OF THE JUDICIAL COUNSEL:
13
The Petitioner(s) / Plaintiff(s) in all ERIK LUDWICK, individually and as both
14
Trustee and Beneficiary of The Anything Trust dated October 12, 2007 (hereinafter
15
"LUDWICK" and/or "the PETITIONER") hereby presents the following points and
16
authorities in support ofthe petition for coordination the aforementioned two(2)Superior
17
Court actions pending in Los Angeles County and Placer County. In the Los Angeles
18
County action PETITIONER has filed a 47-Page verified complaint with 10-causes of
19
action and 77-pages of supporting Exhibits(see Exhibit-A filed herewith^ as follows:.
20
21
I. INTRODUCTION
22
PETITIONERS: ERIK LUDWICK,individually AND as Trustee and
23
Beneficiary of"THE ANYTHING TRUST" dated October 12, 2007 (collectively
24
"PETITIONER"), pursuant to California Code ofCivil Procedure §§ 404 and 404.1 and
25
Rule 3.521 of the California Rules ofCourt, seek the coordination oftwo(2)Superior
26
Court actions identified in the pleading caption above, filed in different counties, and in
27
the Los Angeles County action involving a Verified Complaint with 10-causes of actions
28
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 arising out ofthe Defendants' sale ofPETITIONER'S $16-milIion plus residential real
2 property. PETITIONER'S residential property was located in Los Angeles County, at
3 200 Toyopa Drive, Pacific Palisades, CA 90272(hereinafter the "Toyopa Property"). The
4 other pending action in Placer County against the PETITIONER was brought by
5 Defendant PACIFIC UNION INTERNATIONAL,INC.(claiming rights by acquisition)
6 (hereafter "PUI"). Henceforth, these two(2)actions will be referred to as the "Included
7 Actions" which PETITIONER seeks to have combined into one proceeding before and/or
8 in the Los Angeles County Superior Court, Central District.
9 CLAIMS: The claims in the Included Actions involve and/or
10 arise solely and/or specifically fi*om the listing agreement contract effective on or about
11 September I, 2016, the interceding I3-plus months until the sale ofthe Toyopa Property
12 on or about November 9. 2017, including all the material, substantial and/or overlapping
13 facts, evidence and/or legal theories.
14 In addition, to the normal and/or ordinary course of
15 Superior Court actions in California, in these matters, several ofthe Los Angeles County
16 Defendants, at times in the Petition and/or Memorandum filed concurrently are referred
17 to as the "listing Defendants,"' which specifically featured PARTNERS TRUST,
18 MADISON HILDEBRAND (dba "THE MALIBU LIFE TEAM"); and MALIBU LIFE,
19 INC., are believed and/or known to have appeared on the Reality Television Show,"Million
20 Dollar Listing" and where on several occasions, the Toyopa Property was included (see episode
21 that aired December 29,2016). Specifically, PETITIONER asserts that such involvement
22 further supports this matter being considered complex with regard to the anticipated
23 difficulties in obtaining not only the specific episodes mentioning the Toyopa Property,
24
• Licensed brokers. Defendants NICK R. SEGAL and SAMUEL H. KRAEMER;licensed
25 sales agents Defendants MADISON HILDEBRAND (dba "THE MALIBU LIFE TEAM"), GINA
KIRKPATRICK and JENNIFER CHRISMAN; licensed brokerages Defendants PARTNERS TRUST
27 REAL ESTATE BROKERAGE & ACQUISITIONS("PARTNERS TRUST")and PACIFIC UNION
INTERNATIONAL,INC.("PUI")and believed to be unlicensed entities of"THE MALIBU LIFE TEAM"
28 and/or MALIBU LIFE,INC
3
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 but also any unedited and/or unused footage and/or film from the show. Furthermore,
2 PETITIONER asserts that as to these listing Defendants, most of who no longer appear
3 on the show, and specifically, as to Defendant MADISON HILDEBRAND the show
4 documents his disturbing behavior, and/or agitated and/or disorientated state of being
5 that further caused harm to PETITIONER and materially breached the contract and/or
6 fiduciary duties owed to PETITIONER.
7 COORDINATION: Coordination ofthe Included Actions involving the
8 brokerage representation, marketing and/or sale ofthe Toyopa Property, specifically,
9 all in one proceeding will advance the convenience ofthe parties, witnesses, and counsel
10 and will promote the efficient utilization ofjudicial facilities, efficiency and/or
11 manpower. Coordination at this time is appropriate because all Included Actions are still
12 essentially in the early stages of litigation (partly due to the Covid-19 Virus), with on-
13 going discovery, written and depositions.
14 The PETITIONER just had his deposition taken on June 16,2020 with all the
15 depositions of each and every Los Angeles County Defendant and Placer County
16 Plaintiff not yet taken. And, with each action having been filed within the last 9-months
17 of each other in November 2018 -Placer County action (see un-verified Complaint filed,
18 served and pending attached as Exhibit-B) and July 2019 - Los Angeles County action.
19 REQUESTED ACTION; PETITIONER requests that the Included Actions
20 involving the representation, marketing and/or sale ofPETITIONER'S $I6-million
21 Toyopa Property, specifically, be coordinated before the Superior Court of Los
22 Angeles County. Central Distrit. where the Los Angeles County action is pending:
23 and, where the contract was negotiated, signed, preformed and ultimately the sale ofthe
24 real property occurred, all in Los Angeles County. With the real property / subject matter
25 being located in Los Angeles County, along with all parties, witnesses, and/or 3^^^ party
26 service providers such as vendors, the escrow company and/or any other employees of
27 such as well as the employees and/or unlicensed associates ofthe Defendants' also are
28
4
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 located.^ All the aforementioned in support of coordination in Los Angeles Superior
2 Court, Central District, PETITIONER respectfully requests the same.
3
4 IL NATURE OF THE ACTIONS
5 The attorneys representing all the opposing parties, in both matters, are currently
6 the same. Petitioning Counsel represents the PETITIONER Plaintiff in the Los Angeles
7 action, as well as, the Defendants in the Placer County action; while, the Attorneys for
8 the Los Angeles County action Defendants are the same as the attorneys representing the
9 sole PlaintiffPUI in the Placer County action. PUI, who again in that matter, claims to
10 stand in place ofthe named Defendants in Los Angeles County action as the sole
11 justification for standing. As such, the coordination of both these cases filed in different
12 California counties, will not likely present any prejudicial change in and/or any difficulty
13 in representation ofthe corresponding parties.
14 PETITIONER seeks to coordinate these two(2)actions involving the
15 representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa Property,
16 specifically, the "Included Actions" for purposes ofthis Petition because they arise from
17 substantially similar conduct, real property / subject matter, involving essentially the
18 same parties, witnesses and evidence. Each ofthe Included Actions relies upon facts /
19 rights arising from the listing agreement contract that was effective on or about
20 September 1, 2016 for the sale ofthe Toyopa Property.
21 PETITIONER in both ofthe Included Actions alleges that the California licensed
22 individuals, brokers and agents, and the licensed brokerage companies, as well as, the
23 unlicensed individuals and/or entities are substantially the same in both actions. All of
24 which occurred in Los Angeles County and all of whom resided in and still reside in Los
25 Angeles County, and the location of the real property was in Los Angeles County.
26
27
^ Please see attached as Exhibits-C and D,the Placer County discovery responses to Form
28 Interrogatory No. 12.1 requiring the identification of all witnesses.
5
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 PETITIONER in each Included Action whether asserting any ofthe Nineteen
2 Affirmative Defenses in the Placer County Answer(see Exhibit-E attached herewith)
3 and/or as one ofthe 10-Causes of Action presented in the Los Angeles County Verified
4 Complaint(see Exhibit-A filed herewith) will present and/or be based on and/or arise
5 from similar acts and/or conduct, as well as, the same facts, evidence, witnesses, etc. in
6 both actions. Both the Included Actions involve representation, marketing and/or sale of
7 PETITIONER'S $16-million Toyopa Property; and, substantially arise from overlapping
8 occurrences, conduct, facts, claims and/or damages related to the disputed $978,000.00
9 still held in escrow. PETITIONER in the Los Angeles County action does allege
10 substantial damages in excess to the $978,000.00 solely sought by PUI in the Placer
11 County action, further supporting sufficient complexity for coordination in Los Angeles
12 County Superior Court, Central District.
13
14 III. THE "INCLUDED ACTIONS" MEET THE REQUIREMENTS
15 OF CALIFORNIA CODE OF CIVIL PROCEDURE § 404.111.
16 As set forth above, herein, and the supporting and concurrently filed Petition to
17 Coordinate and any supporting declarations and/or exhibits, the Included Actions relating
18 to the representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa
19 Property, involve substantial common questions of fact and law. In the Included Actions
20 the facts alleged are substantially identical in both actions, by all Parties, whether
21 Plaintiff or Defendant. These allegations arise from the Los Angeles County listing
22 Defendants acts and/or failures to act, their improper dual agency and/or material and
23 substantive breaches oftheir fiduciary duties they owed to the PETITION-Seller as the
24 listing broker, brokerage company and/or agents. That wrongful conduct is the essence
25 of both the PETITIONER'S 19-affirmative defenses in the Placer County action and the
26 10-Causes of Action to the Los Angeles County Verified Complaint.
27 PETITIONER in both actions alleges that what occurred were material breach of
28 contract and/or of fiduciary duties owed by the licensed brokers, brokerages and/or
6
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
j agents; and, further states and alleges that the listing Defendants' wrongful acts /
2 breaches were fraudulent and unfair business practices in violation of California Business
3 and Professions Code §§ 17200 et seq, which are still on going and must be adjudicated.
4 Further, PETITIONER alleges that the wrongful and/or actionable conduct
5 prevented and deprived PETITIONER ofthe ability to freely market the Toyopa Property
g to achieve a greater sales price, damaging PETITIONER much more than just the current
2 $978,000.00 still held in escrow. And, in all, creating a compiexitv sufficient for a
g determination and basis supporting coordination these actions in Los Angeles
9 County Superior Court. Central District.
10 The essence ofthe improper and/or wrongful conduct of the Los Angeles County
22 listing Defendants is that on and/or before September I, 2016, they lied to PETITIONER
22 when they over-promised and/or misrepresented they could sell the Toyopa Property for
23 $20-million (memorialized in the listing agreement between the listing Defendants and
24 PETITIONER). All to get the listing.
25 In late August 2017 and early September 2017, about a year later, the listing
2g Defendants presented two(2)prospective buyers with offers on the Toyopa Property. In
27 the P-offer for $16,250,000.00 received in late August, 2017, the listing Defendants, in
2g essence representing both Parties (dual agency - both the PETITIONER-Seller and the
29 Buyer) were set to only receive a commission of2.25% or about $365,000.00. The
2q listing Defendants then promised and presented PETITIONER with a 2^^ offer for
22 $50,000.00 more,for $16,300,000.00. The listing Defendants creatively generated the
22 2"^ offer(again representing both Parties (dual agency)) and used it to sabotage the P'
23 offer and manipulated PETITIONER into accepting the 2'^'* offer. They did so by lying to
24 PETITIONER and promising PETITIONER approximately $200,000.00 more in profits
25 under the 2"'' offer. The listing Defendants then demanded payment of a 6% commission
25 arising from their "dual agency" for the disputed amount still held in Escrow of
27 $978,000.00, or almost 3-times as much money as they were to receive under the P^
28
7
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
offer. And, redirecting any and all prohibits PETITIONER sought to realize to the listing
Defendants.
CONVENIENCE AND JUSTICE: The convenience ofthe parties, witnesses.
4 and counsel, and the need to preserve scarce judicial resources justify coordination ofthe
5 Included Actions; and lack of any detriment. Coordination is also appropriate given the
g early stage ofthe Included Actions involving the the representation, marketing and/or
y sale ofPETITIONER'S $16-million Toyopa Property, specifically, with each having been
g filed within 9-months of each other, the Placer County action in November 2018 and the
9 Los Angeles County action filed in July 2019. And, ultimately with neither action
2Q proceeding with any great haste given the interference of the Covid-19 Virus.
11
12 IV. THE "INCLUDED ACTIONS" INVOLVING THE SALE OF
13
A $16-MILLION RESIDENTIAL REAL PROPERTY
14
WITH TWO PROSPECTIVE BUYERS AND LICENSED BROKERS /
15 AGENTS ACTING AS DUAL AGENTS IS COMPLEX.
1^ As defined by the Judicial Council, a "complex case" is "an action that
1y requires exceptional judicial management to avoid placing unnecessary burdens on the
1g court or the litigants and to expedite the case, keep costs reasonable, and promote
19 effective judicial decision making by the court, the parties, and counsel." See California
20 Rules ofCourt, Rule 3.400(a). In deciding whether actions are "complex," the trial court
21 must consider the factors set forth in Rule 3.400(b). Id. at Rule 3.400(b); see also Thayer
22 V. Wells Fargo Bank, N.A.,(2001)92 Cal.App.4th 819, 836.
23 To begin, the Included Actions involving the representation, marketing and/or sale
24 ofPETITIONER'S $16-million Toyopa Property all flow from the same listing agreement
25 contract and ultimate sale of real property and therefore are considered provisionally
25 complex. See Cal. Rules of Court, rule 3.400(c)(5). The factors enumerated in Rule
27 3.400(b) also demonstrate the complexity ofthe Included Actions involving the the
2g representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa Property.
8
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
j The listing Defendants acts and conduct stretched over a period of 13-plus months filled
2 with misleading promises, representations, presentations of multiple offers to purchase
3 while culminating in the listing Defendants proclaiming themselves as acting as dual
4 agents on behalf of both the PETITIONER-Seller and the prospective Buyers. The
5 listing Defendants did so in violation ofthe fiduciary duties owed to PETITIONER-
^ Seller and by acting in their own best interest, first, and before those ofthe
2 PETITIONER. (See PETITIONER'S Exhibit-A, the 47-paged Los Angeles County
g Verified Complaint along with 77-pages of Exhibits.)
9 Both cases are likely to involve similar discovery, written and/or depositions, as
jQ well as any pretrial motions raising similar and possible the same legal issues. But, will
jj present some challenging, difficult and/or even possible novel legal issues given the
12 numerous licensed brokers, brokerage companies and agents involved, as and then there
13 is conduct that involves others who may not have been appropriately licensed and/or
j4 supervised. As such,PETITIONER,respectfully asserts that its Petition for
Coordination is justified in that representation, marketing and/or sale ofPETITIONER'S
$I6-miIlion Toyopa Property, these two(2)cases are sufficiently complex pursuant to
jy Section 404.20
18
19 V. LOS ANGELES COUNTY IS THE APPROPRIATE VENUE
20 FOR THE COORDINATED PROCEEDINGS
21 INVOLVING THE SALE OF THE TOYOPA PROPERTY.
22 Los Angeles County Superior Court—^not Placer County is the appropriate site for
23 coordination ofthe Included Actions involving representation, marketing and/or sale of
24 PETITIONER'S $I6-miIIion Toyopa Property, all of which occurred in Los Angeles
25 County. California Rule of Court 3.530 sets forth the factors for the coordination motion
25 judge to consider when recommending a site for the coordinated proceeding:
27 • The number ofincluded actions in particular locations;
2g • Whether the litigation is at an advanced stage in a particular court;
9
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
j • The efficient use of court facilities and judicial resources;
2 • The locations of witnesses and evidence;
3 • The convenience of the parties and witnesses;
4 • The parties' principal places of business;
3 • The office locations of counsel for the parties; and
^ • The ease oftravel to and availability of accommodations in particular locations.
q PETITIONER understands and/or asserts that for the Included Actions —
g coordination in County wherein everything took place is in and/or serves the interests of
9 justice.
10
21 A. The Litigation Is At A Very Early Stage in Both "Included Actions."
12 Because litigation is still at a very early stage in all Included Actions,
12 which, in part arises from the interceding Covid-I9 Virus and the Statewide lock-
j4 down / "stay-at-home" orders. On March 19, 2020, California Governor Gavin
15 Newsom issued the historic Executive Order N-33-20("SAH Order"), requiring
all individuals living in California to stay at home "except as needed to maintain
continuity of operations of the federal critical infrastructure sectors" or to obtain
jg critical needs, such as food, healthcare, or prescriptions. The goal ofthe Order, in
ig part, is to slow the pace - or "flatten the curve"- of the spread ofthe
20 novel-coronavirus to ensure the healthcare delivery system is not overwhelmed
21 and to protect public health and safety. On March 19, 2020, an Executive Order
22 (see Exhibit-F) and Public Health Order (see Exhibit-G) directed all Califomians
23 to stay home except to go to an essential job or to shop for essential needs.
24 All individuals living in the State of California are still currently ordered
25 to stay home or at their place of residence, except for permitted work,local
25 shopping or other permitted errands, or as otherwise authorized. On May 4,
27 2020, an further Executive Order by the Governor(see Exhibit-H)informed local
28 health jurisdictions and industry sectors that they may gradually reopen under new
_
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 modifications and guidance provided by the state per the May 7, 2020 Public
2 Health Order,(see Exhibit-I.)
3 Currently, the California courts are beginning to ease months of
4 pandemic-related closures and a Judicial Council working group on June 3
5 released a 75-page pandemic recovery guide that contains guidance for courts on
5 safely reopening. A Judicial Council working group of23 volunteer judges and
7 court executives are responsible for the 75-page resource guide, intended to help
g the state's trial courts with their pandemic continuity of operations, while
9 providing a safe environment for court users, staff, and justice partners. The
jQ guide identifies and addresses more than 200 issues related to facilities, personnel,
jI jury management, case management and processing, and communications.
12 In the Los Angeles County Superior Court: The Court was scheduled to
13 reopen 400 courtrooms on June 22, 2020. The clerk's office reopened on June 15.
14 Judicial officers, court employees and visitors are required to wear face coverings
15 and access to courthouses is limited. Remote proceedings are still taking place and
Ig preferred when already set-up in some cases. The Court's executive committee
17 approved an emergency $0 bail schedule for criminal matters.
1g In Placer County Superior Court: The Court launched new service plans
19 for civil and criminal cases on June 12,2020. The Court has also announced that
20 it intended to resume jury trials on June 1, 2020. Jurors are being sent to the
21 Whitney High School Theater in Roseville for proceedings..The Court has started
22 to increase operations with focus criminal law and family law matters, first. Civil
23 law and motion, case management conferences, ex parte hearings, probate
24 hearings, guardianships and conservatorship hearings, and similar matters will be
25 heard on a discretionary basis. Telephone appearances are still mandatory and
25 Courthouse visitors are encouraged to wear face coverings.
27 In the Los Angeles County action, the case is not yet "at issue" as the
2g Defendants' demurrer heard on June 24,2020, was mostly denied except as to two
_
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1
(2)issues with leave to amend. Those issues are any necessity to file a cross-
2 complaint in Placer County and a request for more specificity in the listing
3
Defendants' violation of California Code ofCivil. Procedure § 2079.16 regarding
4 "dual agency."
5 While, in the Placer County action the first round of written discovery
g was propounded by both sides, but in that matter only the depositions ofPaul
y Booth the former Trustee and PETITIONER ERIK LUDWICK have been taken,
g PETITIONER'S deposition was just held on June 16, 2020. To date,
9 PETITIONER has not taken any depositions in either action. These factors favors
jQ coordination of the Included Actions in the Los Angeles County Superior Court,
22 Central District- where the Los Angeles County action is currently filed, served
22 and pending.
13
24 B. Coordinatioii in Los Angeles County Would Allow for the Most Efficient
25 Use of Court Facilities and Judicial Resources.
2g The Judicial Council's own "Superior Court Statistics" show that the most
22 efficient use of court facilities and judicial resources would be accomplished by
2g coordinating this proceeding in the County where all the events took place and
29 where all the parties, witnesses and/or evidence are likely to be found. Therefore,
20 it would be more efficient and a better use ofjudicial resources for this
22 proceeding to be coordinated in Los Angeles County.
22
23 C. Virtually All of the Relevant Witnesses and Evidence involving the
24 Sale of the Toyopa Property are Located in Los Angeles County.
25 Specifically, while PUI action started in Placer County, there was only
25 proper venue because at the time PUI used the residence ofthe now former
27 Trustee of THE ANYTHING TRUST, which no longer exists. On March 25,
2g 2019,PETITIONER who was already the Trustor and sole Beneficiary of THE
_
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
j ANYTHING TRUST,became the Trustee, as well - devastating PUI's basis for
2 venue in Placer County. See the attached Placer County Superior Court Order
3 dated October 3.2019 denying PUI's Placer County Motion to Consolidate, i.e. an
4 improperly brought motion to transfer the Los Angeles Court action to Placer County.
5 The Court's Order pointed out in denying PUI's Motion:
^ "The primary form of relief sought in plaintiffs motion is the transfer ofthe Los
Angeles Action to Placer Superior Court so that the two matters may be
7
consolidated and heard in Placer County. The legal basis for the request lies in
8 Code of Civil Procedure section 403, which allows for a party to motion the court
9 to transfer an action from another trial court for coordination if the two actions
involve common questions oflaw and fact as defined in Section 404.1. Section
10
403 also requires the moving party to make a showing that the party made good
11 faith efforts to obtain an agreement prior to bringing the motion. Plaintiff has
failed to make a sufficient showing to warrant transfer ofthe Los Angeles Action.
13
Initially, Plaintiff has not made a sufficient showing that transfer to Placer County is
14 appropriate. The basis for venue in Placer County stemmed from Paul Booth,a
Placer County resident, acting as trustee and administering The Anything Trust
dated October 12,2017. The parties were in agreement, as expressed during oral
16
argument,that Mr. Booth is no longer the trustee. This is also confirmed by
17 Defendants' Notice of Change of Trustee for Defendant "The Anything Trust Dated
jg October 12, 2017" filed on April 5,2019. The parties in this action reside in or
conduct business in Los Angeles County. Plaintiff has not sufficiently shown how
19
the convenience of the parties, witness, and counsel favors litigation in Placer
20 County when the essential parties and evidence is within Los Angeles County."
21
(See "Ruling on Plaintiffs Motion to Transfer Case from Los Angeles Superior
22
Court to Placer County and Consolidate Actions" filed herein on October 3,
23 2019, attached hereto as Exhibit-J, at p.2 line 7 - p. 3, line 11; emphasis added.)
24
25 The Placer County Superior Court in its above ruling has already recognized that
26 virtually all ofthe relevant parties, witnesses, subject matter, i.e. real property
27 and/or evidence is found and/or located in Los Angeles County. As such, all
28 relevant parties, witnesses and/or evidence are located in Los Angeles County.
_
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 Courts that have considered such factors among others and have given particular
2 weight to the possibility of inconsistent rulings; "complex case" issues and/or
3 whether the case has "difficult or novel" issues ; existence ofcommon questions
4 of fact or law; convenience of parties, witnesses and counsel; efficient utilization
3 ofjudicial facilities and manpower; the calendar ofthe courts; as well as, other
^ Section 404.1 factors. See, Ford Motor Warranty Cases(2017) 11 Cal.App.5th
y 626; McGhan Medical Corp. v. Superior Court(1992) 11 Cal.App.4th 804.
g Lastly, because virtually all of the current parties to the Included Actions,
9 physically reside in and/or are doing business in Los Angeles County, and
jQ virtually none in Placer County, these factors strongly favor Los Angeles County
11 as the appropriate location for coordination ofthese matters.
12
13 D. Los Angeles County Is the Most Convenient Venue for the Vast Majority
14 of Parties and Witnesses.
As discussed above, virtually all of the current Parties, witnesses and/or the
physical evidence, and specifically any and all other 3^^ non-party witnesses
Iy involving the representation, marketing and/or sale ofPETITIONER'S $16-million
jg Toyopa Property; thus, Los Angeles County is the most convenient venue for
19 virtually all existing Parties. The California courts that have considered these
20 issues have given particular weight to the location ofthe named parties, potential
2\ parties, witnesses and/or physical evidence. See, Ford Motor Warranty Cases,
22 supra; McGhan Medical Corp., supra - both recommending coordination of
23 proceedings in county where the majority of parties, witnesses and/or evidence
24 exist.
25
25 E. Los Angeles County is the Principal Place of Business for Most Parties.
2y The Parties in the Included Actions involving the representation, marketing
2g and/or sale ofPETITIONER'S $16-million Toyopa Property, specifically, as well
14
PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
1 as any possible witnesses in these related actions, live and/or work in Los Angeles
2 County. Accordingly, these factors also weighs in favor of coordination in
3 Los Angeles County.
4
5 VI. CONCLUSION AND PRAYER
^ WHEREFORE,PETITIONER prays that this through the judicial council
2 proceeding of petition to coordinate the Included Actions involving representation,
g marketing and/or sale ofPETITIONER'S $I6-million Toyopa Property, specifically, be
g coordinated pursuant to California Code ofCivil Procedure § 400, and that the
jQ coordinated proceeding be assigned to the Superior Court of Los Angeles County.
Ij Central District. PETITIONER prays for such other and further reliefto which they may
j2 be justly entitled, as well.
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j4 Respectfully submitted, DATED: July ,2020
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16 MICHAEL A.J. NANGANO,A LAW CORPORATION
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MICHXEL a.j. NANGANO
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PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY
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MICHAEL A.J. NANGANO(SBN 133999) Law Offices of Michael A.J. Nangano 07/24/2020 133 No. Altadena Drive, Suite 403 Pasadena, CA 91107 Phone: (626)796-9998 Fax: (626)796-9992 FJLANKLIN T. BIGELOW,JR(SBN 81606) Klika,Parrish & Bigelow 133 No. Altadena Drive, Suite 403 Pasadena, CA 91107 Phone: (626)796-9998 Attorneys for Petitioner(s)(and all Flaintiff(s) in the Los Angeles Superior Court Case below): ERIK LUDWICK,individually AND as Trustee and Beneficiaiy of "THE ANYTHING TRUST" dated October 12, 2007 10 JUDICIAL COUNCIL OF CALIFORNIA 11 CHAIR OF THE JUDICIAL COUNCIL 12 THIS DOCUMENT RELATES TO THE 13 VERIFIED COMPLAINT FILED IN: PETITIONER / PLAINTIFF'S 14 ERIK LUDWICK,individually AND as MEMORANDUM OF POINTS AND Trustee and Beneficiary of"THE AUTHORITIES IN SUPPORT OF 15 ANYTHING TRUST" dated October 12, PETITION FOR COORDINATION; AND, 2007; Plaintiff(s), vs. REQUEST FOR STAY 16 PARTNERS TRUST REAL ESTATE 17 BROKERAGE & ACQUISITIONS; an [Filed Concurrently With Petitioner to unincorporated California Business Entity; Coordinate and supporting Exhibits.] 18 PACIFIC UNION INTERNATIONAL, INC.,a California Corporation; [Also see "Table of Contents" and "Table 19 MADISON HILDEBRAND,individually of Authorities" concurrently filed herewith.] & dba "THE MALIBU LIFE TEAM"; 20 MALIBU LIFE,INC.,a California Corporation; NICK R.SEGAL,an 21 individual; SAMUEL H. KRAEMER,an individual; GINA KIRKPATRICK,an 22 individual; JENNIFER CHRISMAN,an individual; and Does I through 50,inclusive; 23 Defendants 24 Los Angeles County Superior Court, Case No.: 19STCV25331 - Filed 07/19/2019; Trial 25 Date: None 26 27 28 1 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 2"'* Case For Coordination: 2 3 PACIFIC UNION INTERNATIONAL, INC.,Plaintiff, vs. 4 ERIK LUDWICK,an individual AND 5 Settlor of The Anything Trust dated October 12, 2007; THE ANYTHING TRUST 6 DATED OCTOBER 12,2007; PAUL D. BOOTH,in his capacity as Trustee of The 7 Anything Trust Dated October 12, 2007; and Does 1 through 50, inclusive. Defendants. 8 Placer County Superior Court Case No. 9 S-CV-0042080- 11/07/18 Trial Set for 09/21/2020 10 11 12 TO THE CHAIRPERSON OF THE JUDICIAL COUNSEL: 13 The Petitioner(s) / Plaintiff(s) in all ERIK LUDWICK, individually and as both 14 Trustee and Beneficiary of The Anything Trust dated October 12, 2007 (hereinafter 15 "LUDWICK" and/or "the PETITIONER") hereby presents the following points and 16 authorities in support ofthe petition for coordination the aforementioned two(2)Superior 17 Court actions pending in Los Angeles County and Placer County. In the Los Angeles 18 County action PETITIONER has filed a 47-Page verified complaint with 10-causes of 19 action and 77-pages of supporting Exhibits(see Exhibit-A filed herewith^ as follows:. 20 21 I. INTRODUCTION 22 PETITIONERS: ERIK LUDWICK,individually AND as Trustee and 23 Beneficiary of"THE ANYTHING TRUST" dated October 12, 2007 (collectively 24 "PETITIONER"), pursuant to California Code ofCivil Procedure §§ 404 and 404.1 and 25 Rule 3.521 of the California Rules ofCourt, seek the coordination oftwo(2)Superior 26 Court actions identified in the pleading caption above, filed in different counties, and in 27 the Los Angeles County action involving a Verified Complaint with 10-causes of actions 28 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 arising out ofthe Defendants' sale ofPETITIONER'S $16-milIion plus residential real 2 property. PETITIONER'S residential property was located in Los Angeles County, at 3 200 Toyopa Drive, Pacific Palisades, CA 90272(hereinafter the "Toyopa Property"). The 4 other pending action in Placer County against the PETITIONER was brought by 5 Defendant PACIFIC UNION INTERNATIONAL,INC.(claiming rights by acquisition) 6 (hereafter "PUI"). Henceforth, these two(2)actions will be referred to as the "Included 7 Actions" which PETITIONER seeks to have combined into one proceeding before and/or 8 in the Los Angeles County Superior Court, Central District. 9 CLAIMS: The claims in the Included Actions involve and/or 10 arise solely and/or specifically fi*om the listing agreement contract effective on or about 11 September I, 2016, the interceding I3-plus months until the sale ofthe Toyopa Property 12 on or about November 9. 2017, including all the material, substantial and/or overlapping 13 facts, evidence and/or legal theories. 14 In addition, to the normal and/or ordinary course of 15 Superior Court actions in California, in these matters, several ofthe Los Angeles County 16 Defendants, at times in the Petition and/or Memorandum filed concurrently are referred 17 to as the "listing Defendants,"' which specifically featured PARTNERS TRUST, 18 MADISON HILDEBRAND (dba "THE MALIBU LIFE TEAM"); and MALIBU LIFE, 19 INC., are believed and/or known to have appeared on the Reality Television Show,"Million 20 Dollar Listing" and where on several occasions, the Toyopa Property was included (see episode 21 that aired December 29,2016). Specifically, PETITIONER asserts that such involvement 22 further supports this matter being considered complex with regard to the anticipated 23 difficulties in obtaining not only the specific episodes mentioning the Toyopa Property, 24 • Licensed brokers. Defendants NICK R. SEGAL and SAMUEL H. KRAEMER;licensed 25 sales agents Defendants MADISON HILDEBRAND (dba "THE MALIBU LIFE TEAM"), GINA KIRKPATRICK and JENNIFER CHRISMAN; licensed brokerages Defendants PARTNERS TRUST 27 REAL ESTATE BROKERAGE & ACQUISITIONS("PARTNERS TRUST")and PACIFIC UNION INTERNATIONAL,INC.("PUI")and believed to be unlicensed entities of"THE MALIBU LIFE TEAM" 28 and/or MALIBU LIFE,INC 3 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 but also any unedited and/or unused footage and/or film from the show. Furthermore, 2 PETITIONER asserts that as to these listing Defendants, most of who no longer appear 3 on the show, and specifically, as to Defendant MADISON HILDEBRAND the show 4 documents his disturbing behavior, and/or agitated and/or disorientated state of being 5 that further caused harm to PETITIONER and materially breached the contract and/or 6 fiduciary duties owed to PETITIONER. 7 COORDINATION: Coordination ofthe Included Actions involving the 8 brokerage representation, marketing and/or sale ofthe Toyopa Property, specifically, 9 all in one proceeding will advance the convenience ofthe parties, witnesses, and counsel 10 and will promote the efficient utilization ofjudicial facilities, efficiency and/or 11 manpower. Coordination at this time is appropriate because all Included Actions are still 12 essentially in the early stages of litigation (partly due to the Covid-19 Virus), with on- 13 going discovery, written and depositions. 14 The PETITIONER just had his deposition taken on June 16,2020 with all the 15 depositions of each and every Los Angeles County Defendant and Placer County 16 Plaintiff not yet taken. And, with each action having been filed within the last 9-months 17 of each other in November 2018 -Placer County action (see un-verified Complaint filed, 18 served and pending attached as Exhibit-B) and July 2019 - Los Angeles County action. 19 REQUESTED ACTION; PETITIONER requests that the Included Actions 20 involving the representation, marketing and/or sale ofPETITIONER'S $I6-million 21 Toyopa Property, specifically, be coordinated before the Superior Court of Los 22 Angeles County. Central Distrit. where the Los Angeles County action is pending: 23 and, where the contract was negotiated, signed, preformed and ultimately the sale ofthe 24 real property occurred, all in Los Angeles County. With the real property / subject matter 25 being located in Los Angeles County, along with all parties, witnesses, and/or 3^^^ party 26 service providers such as vendors, the escrow company and/or any other employees of 27 such as well as the employees and/or unlicensed associates ofthe Defendants' also are 28 4 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 located.^ All the aforementioned in support of coordination in Los Angeles Superior 2 Court, Central District, PETITIONER respectfully requests the same. 3 4 IL NATURE OF THE ACTIONS 5 The attorneys representing all the opposing parties, in both matters, are currently 6 the same. Petitioning Counsel represents the PETITIONER Plaintiff in the Los Angeles 7 action, as well as, the Defendants in the Placer County action; while, the Attorneys for 8 the Los Angeles County action Defendants are the same as the attorneys representing the 9 sole PlaintiffPUI in the Placer County action. PUI, who again in that matter, claims to 10 stand in place ofthe named Defendants in Los Angeles County action as the sole 11 justification for standing. As such, the coordination of both these cases filed in different 12 California counties, will not likely present any prejudicial change in and/or any difficulty 13 in representation ofthe corresponding parties. 14 PETITIONER seeks to coordinate these two(2)actions involving the 15 representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa Property, 16 specifically, the "Included Actions" for purposes ofthis Petition because they arise from 17 substantially similar conduct, real property / subject matter, involving essentially the 18 same parties, witnesses and evidence. Each ofthe Included Actions relies upon facts / 19 rights arising from the listing agreement contract that was effective on or about 20 September 1, 2016 for the sale ofthe Toyopa Property. 21 PETITIONER in both ofthe Included Actions alleges that the California licensed 22 individuals, brokers and agents, and the licensed brokerage companies, as well as, the 23 unlicensed individuals and/or entities are substantially the same in both actions. All of 24 which occurred in Los Angeles County and all of whom resided in and still reside in Los 25 Angeles County, and the location of the real property was in Los Angeles County. 26 27 ^ Please see attached as Exhibits-C and D,the Placer County discovery responses to Form 28 Interrogatory No. 12.1 requiring the identification of all witnesses. 5 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 PETITIONER in each Included Action whether asserting any ofthe Nineteen 2 Affirmative Defenses in the Placer County Answer(see Exhibit-E attached herewith) 3 and/or as one ofthe 10-Causes of Action presented in the Los Angeles County Verified 4 Complaint(see Exhibit-A filed herewith) will present and/or be based on and/or arise 5 from similar acts and/or conduct, as well as, the same facts, evidence, witnesses, etc. in 6 both actions. Both the Included Actions involve representation, marketing and/or sale of 7 PETITIONER'S $16-million Toyopa Property; and, substantially arise from overlapping 8 occurrences, conduct, facts, claims and/or damages related to the disputed $978,000.00 9 still held in escrow. PETITIONER in the Los Angeles County action does allege 10 substantial damages in excess to the $978,000.00 solely sought by PUI in the Placer 11 County action, further supporting sufficient complexity for coordination in Los Angeles 12 County Superior Court, Central District. 13 14 III. THE "INCLUDED ACTIONS" MEET THE REQUIREMENTS 15 OF CALIFORNIA CODE OF CIVIL PROCEDURE § 404.111. 16 As set forth above, herein, and the supporting and concurrently filed Petition to 17 Coordinate and any supporting declarations and/or exhibits, the Included Actions relating 18 to the representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa 19 Property, involve substantial common questions of fact and law. In the Included Actions 20 the facts alleged are substantially identical in both actions, by all Parties, whether 21 Plaintiff or Defendant. These allegations arise from the Los Angeles County listing 22 Defendants acts and/or failures to act, their improper dual agency and/or material and 23 substantive breaches oftheir fiduciary duties they owed to the PETITION-Seller as the 24 listing broker, brokerage company and/or agents. That wrongful conduct is the essence 25 of both the PETITIONER'S 19-affirmative defenses in the Placer County action and the 26 10-Causes of Action to the Los Angeles County Verified Complaint. 27 PETITIONER in both actions alleges that what occurred were material breach of 28 contract and/or of fiduciary duties owed by the licensed brokers, brokerages and/or 6 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY j agents; and, further states and alleges that the listing Defendants' wrongful acts / 2 breaches were fraudulent and unfair business practices in violation of California Business 3 and Professions Code §§ 17200 et seq, which are still on going and must be adjudicated. 4 Further, PETITIONER alleges that the wrongful and/or actionable conduct 5 prevented and deprived PETITIONER ofthe ability to freely market the Toyopa Property g to achieve a greater sales price, damaging PETITIONER much more than just the current 2 $978,000.00 still held in escrow. And, in all, creating a compiexitv sufficient for a g determination and basis supporting coordination these actions in Los Angeles 9 County Superior Court. Central District. 10 The essence ofthe improper and/or wrongful conduct of the Los Angeles County 22 listing Defendants is that on and/or before September I, 2016, they lied to PETITIONER 22 when they over-promised and/or misrepresented they could sell the Toyopa Property for 23 $20-million (memorialized in the listing agreement between the listing Defendants and 24 PETITIONER). All to get the listing. 25 In late August 2017 and early September 2017, about a year later, the listing 2g Defendants presented two(2)prospective buyers with offers on the Toyopa Property. In 27 the P-offer for $16,250,000.00 received in late August, 2017, the listing Defendants, in 2g essence representing both Parties (dual agency - both the PETITIONER-Seller and the 29 Buyer) were set to only receive a commission of2.25% or about $365,000.00. The 2q listing Defendants then promised and presented PETITIONER with a 2^^ offer for 22 $50,000.00 more,for $16,300,000.00. The listing Defendants creatively generated the 22 2"^ offer(again representing both Parties (dual agency)) and used it to sabotage the P' 23 offer and manipulated PETITIONER into accepting the 2'^'* offer. They did so by lying to 24 PETITIONER and promising PETITIONER approximately $200,000.00 more in profits 25 under the 2"'' offer. The listing Defendants then demanded payment of a 6% commission 25 arising from their "dual agency" for the disputed amount still held in Escrow of 27 $978,000.00, or almost 3-times as much money as they were to receive under the P^ 28 7 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY offer. And, redirecting any and all prohibits PETITIONER sought to realize to the listing Defendants. CONVENIENCE AND JUSTICE: The convenience ofthe parties, witnesses. 4 and counsel, and the need to preserve scarce judicial resources justify coordination ofthe 5 Included Actions; and lack of any detriment. Coordination is also appropriate given the g early stage ofthe Included Actions involving the the representation, marketing and/or y sale ofPETITIONER'S $16-million Toyopa Property, specifically, with each having been g filed within 9-months of each other, the Placer County action in November 2018 and the 9 Los Angeles County action filed in July 2019. And, ultimately with neither action 2Q proceeding with any great haste given the interference of the Covid-19 Virus. 11 12 IV. THE "INCLUDED ACTIONS" INVOLVING THE SALE OF 13 A $16-MILLION RESIDENTIAL REAL PROPERTY 14 WITH TWO PROSPECTIVE BUYERS AND LICENSED BROKERS / 15 AGENTS ACTING AS DUAL AGENTS IS COMPLEX. 1^ As defined by the Judicial Council, a "complex case" is "an action that 1y requires exceptional judicial management to avoid placing unnecessary burdens on the 1g court or the litigants and to expedite the case, keep costs reasonable, and promote 19 effective judicial decision making by the court, the parties, and counsel." See California 20 Rules ofCourt, Rule 3.400(a). In deciding whether actions are "complex," the trial court 21 must consider the factors set forth in Rule 3.400(b). Id. at Rule 3.400(b); see also Thayer 22 V. Wells Fargo Bank, N.A.,(2001)92 Cal.App.4th 819, 836. 23 To begin, the Included Actions involving the representation, marketing and/or sale 24 ofPETITIONER'S $16-million Toyopa Property all flow from the same listing agreement 25 contract and ultimate sale of real property and therefore are considered provisionally 25 complex. See Cal. Rules of Court, rule 3.400(c)(5). The factors enumerated in Rule 27 3.400(b) also demonstrate the complexity ofthe Included Actions involving the the 2g representation, marketing and/or sale ofPETITIONER'S $16-million Toyopa Property. 8 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY j The listing Defendants acts and conduct stretched over a period of 13-plus months filled 2 with misleading promises, representations, presentations of multiple offers to purchase 3 while culminating in the listing Defendants proclaiming themselves as acting as dual 4 agents on behalf of both the PETITIONER-Seller and the prospective Buyers. The 5 listing Defendants did so in violation ofthe fiduciary duties owed to PETITIONER- ^ Seller and by acting in their own best interest, first, and before those ofthe 2 PETITIONER. (See PETITIONER'S Exhibit-A, the 47-paged Los Angeles County g Verified Complaint along with 77-pages of Exhibits.) 9 Both cases are likely to involve similar discovery, written and/or depositions, as jQ well as any pretrial motions raising similar and possible the same legal issues. But, will jj present some challenging, difficult and/or even possible novel legal issues given the 12 numerous licensed brokers, brokerage companies and agents involved, as and then there 13 is conduct that involves others who may not have been appropriately licensed and/or j4 supervised. As such,PETITIONER,respectfully asserts that its Petition for Coordination is justified in that representation, marketing and/or sale ofPETITIONER'S $I6-miIlion Toyopa Property, these two(2)cases are sufficiently complex pursuant to jy Section 404.20 18 19 V. LOS ANGELES COUNTY IS THE APPROPRIATE VENUE 20 FOR THE COORDINATED PROCEEDINGS 21 INVOLVING THE SALE OF THE TOYOPA PROPERTY. 22 Los Angeles County Superior Court—^not Placer County is the appropriate site for 23 coordination ofthe Included Actions involving representation, marketing and/or sale of 24 PETITIONER'S $I6-miIIion Toyopa Property, all of which occurred in Los Angeles 25 County. California Rule of Court 3.530 sets forth the factors for the coordination motion 25 judge to consider when recommending a site for the coordinated proceeding: 27 • The number ofincluded actions in particular locations; 2g • Whether the litigation is at an advanced stage in a particular court; 9 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY j • The efficient use of court facilities and judicial resources; 2 • The locations of witnesses and evidence; 3 • The convenience of the parties and witnesses; 4 • The parties' principal places of business; 3 • The office locations of counsel for the parties; and ^ • The ease oftravel to and availability of accommodations in particular locations. q PETITIONER understands and/or asserts that for the Included Actions — g coordination in County wherein everything took place is in and/or serves the interests of 9 justice. 10 21 A. The Litigation Is At A Very Early Stage in Both "Included Actions." 12 Because litigation is still at a very early stage in all Included Actions, 12 which, in part arises from the interceding Covid-I9 Virus and the Statewide lock- j4 down / "stay-at-home" orders. On March 19, 2020, California Governor Gavin 15 Newsom issued the historic Executive Order N-33-20("SAH Order"), requiring all individuals living in California to stay at home "except as needed to maintain continuity of operations of the federal critical infrastructure sectors" or to obtain jg critical needs, such as food, healthcare, or prescriptions. The goal ofthe Order, in ig part, is to slow the pace - or "flatten the curve"- of the spread ofthe 20 novel-coronavirus to ensure the healthcare delivery system is not overwhelmed 21 and to protect public health and safety. On March 19, 2020, an Executive Order 22 (see Exhibit-F) and Public Health Order (see Exhibit-G) directed all Califomians 23 to stay home except to go to an essential job or to shop for essential needs. 24 All individuals living in the State of California are still currently ordered 25 to stay home or at their place of residence, except for permitted work,local 25 shopping or other permitted errands, or as otherwise authorized. On May 4, 27 2020, an further Executive Order by the Governor(see Exhibit-H)informed local 28 health jurisdictions and industry sectors that they may gradually reopen under new _ PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 modifications and guidance provided by the state per the May 7, 2020 Public 2 Health Order,(see Exhibit-I.) 3 Currently, the California courts are beginning to ease months of 4 pandemic-related closures and a Judicial Council working group on June 3 5 released a 75-page pandemic recovery guide that contains guidance for courts on 5 safely reopening. A Judicial Council working group of23 volunteer judges and 7 court executives are responsible for the 75-page resource guide, intended to help g the state's trial courts with their pandemic continuity of operations, while 9 providing a safe environment for court users, staff, and justice partners. The jQ guide identifies and addresses more than 200 issues related to facilities, personnel, jI jury management, case management and processing, and communications. 12 In the Los Angeles County Superior Court: The Court was scheduled to 13 reopen 400 courtrooms on June 22, 2020. The clerk's office reopened on June 15. 14 Judicial officers, court employees and visitors are required to wear face coverings 15 and access to courthouses is limited. Remote proceedings are still taking place and Ig preferred when already set-up in some cases. The Court's executive committee 17 approved an emergency $0 bail schedule for criminal matters. 1g In Placer County Superior Court: The Court launched new service plans 19 for civil and criminal cases on June 12,2020. The Court has also announced that 20 it intended to resume jury trials on June 1, 2020. Jurors are being sent to the 21 Whitney High School Theater in Roseville for proceedings..The Court has started 22 to increase operations with focus criminal law and family law matters, first. Civil 23 law and motion, case management conferences, ex parte hearings, probate 24 hearings, guardianships and conservatorship hearings, and similar matters will be 25 heard on a discretionary basis. Telephone appearances are still mandatory and 25 Courthouse visitors are encouraged to wear face coverings. 27 In the Los Angeles County action, the case is not yet "at issue" as the 2g Defendants' demurrer heard on June 24,2020, was mostly denied except as to two _ PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 (2)issues with leave to amend. Those issues are any necessity to file a cross- 2 complaint in Placer County and a request for more specificity in the listing 3 Defendants' violation of California Code ofCivil. Procedure § 2079.16 regarding 4 "dual agency." 5 While, in the Placer County action the first round of written discovery g was propounded by both sides, but in that matter only the depositions ofPaul y Booth the former Trustee and PETITIONER ERIK LUDWICK have been taken, g PETITIONER'S deposition was just held on June 16, 2020. To date, 9 PETITIONER has not taken any depositions in either action. These factors favors jQ coordination of the Included Actions in the Los Angeles County Superior Court, 22 Central District- where the Los Angeles County action is currently filed, served 22 and pending. 13 24 B. Coordinatioii in Los Angeles County Would Allow for the Most Efficient 25 Use of Court Facilities and Judicial Resources. 2g The Judicial Council's own "Superior Court Statistics" show that the most 22 efficient use of court facilities and judicial resources would be accomplished by 2g coordinating this proceeding in the County where all the events took place and 29 where all the parties, witnesses and/or evidence are likely to be found. Therefore, 20 it would be more efficient and a better use ofjudicial resources for this 22 proceeding to be coordinated in Los Angeles County. 22 23 C. Virtually All of the Relevant Witnesses and Evidence involving the 24 Sale of the Toyopa Property are Located in Los Angeles County. 25 Specifically, while PUI action started in Placer County, there was only 25 proper venue because at the time PUI used the residence ofthe now former 27 Trustee of THE ANYTHING TRUST, which no longer exists. On March 25, 2g 2019,PETITIONER who was already the Trustor and sole Beneficiary of THE _ PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY j ANYTHING TRUST,became the Trustee, as well - devastating PUI's basis for 2 venue in Placer County. See the attached Placer County Superior Court Order 3 dated October 3.2019 denying PUI's Placer County Motion to Consolidate, i.e. an 4 improperly brought motion to transfer the Los Angeles Court action to Placer County. 5 The Court's Order pointed out in denying PUI's Motion: ^ "The primary form of relief sought in plaintiffs motion is the transfer ofthe Los Angeles Action to Placer Superior Court so that the two matters may be 7 consolidated and heard in Placer County. The legal basis for the request lies in 8 Code of Civil Procedure section 403, which allows for a party to motion the court 9 to transfer an action from another trial court for coordination if the two actions involve common questions oflaw and fact as defined in Section 404.1. Section 10 403 also requires the moving party to make a showing that the party made good 11 faith efforts to obtain an agreement prior to bringing the motion. Plaintiff has failed to make a sufficient showing to warrant transfer ofthe Los Angeles Action. 13 Initially, Plaintiff has not made a sufficient showing that transfer to Placer County is 14 appropriate. The basis for venue in Placer County stemmed from Paul Booth,a Placer County resident, acting as trustee and administering The Anything Trust dated October 12,2017. The parties were in agreement, as expressed during oral 16 argument,that Mr. Booth is no longer the trustee. This is also confirmed by 17 Defendants' Notice of Change of Trustee for Defendant "The Anything Trust Dated jg October 12, 2017" filed on April 5,2019. The parties in this action reside in or conduct business in Los Angeles County. Plaintiff has not sufficiently shown how 19 the convenience of the parties, witness, and counsel favors litigation in Placer 20 County when the essential parties and evidence is within Los Angeles County." 21 (See "Ruling on Plaintiffs Motion to Transfer Case from Los Angeles Superior 22 Court to Placer County and Consolidate Actions" filed herein on October 3, 23 2019, attached hereto as Exhibit-J, at p.2 line 7 - p. 3, line 11; emphasis added.) 24 25 The Placer County Superior Court in its above ruling has already recognized that 26 virtually all ofthe relevant parties, witnesses, subject matter, i.e. real property 27 and/or evidence is found and/or located in Los Angeles County. As such, all 28 relevant parties, witnesses and/or evidence are located in Los Angeles County. _ PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 Courts that have considered such factors among others and have given particular 2 weight to the possibility of inconsistent rulings; "complex case" issues and/or 3 whether the case has "difficult or novel" issues ; existence ofcommon questions 4 of fact or law; convenience of parties, witnesses and counsel; efficient utilization 3 ofjudicial facilities and manpower; the calendar ofthe courts; as well as, other ^ Section 404.1 factors. See, Ford Motor Warranty Cases(2017) 11 Cal.App.5th y 626; McGhan Medical Corp. v. Superior Court(1992) 11 Cal.App.4th 804. g Lastly, because virtually all of the current parties to the Included Actions, 9 physically reside in and/or are doing business in Los Angeles County, and jQ virtually none in Placer County, these factors strongly favor Los Angeles County 11 as the appropriate location for coordination ofthese matters. 12 13 D. Los Angeles County Is the Most Convenient Venue for the Vast Majority 14 of Parties and Witnesses. As discussed above, virtually all of the current Parties, witnesses and/or the physical evidence, and specifically any and all other 3^^ non-party witnesses Iy involving the representation, marketing and/or sale ofPETITIONER'S $16-million jg Toyopa Property; thus, Los Angeles County is the most convenient venue for 19 virtually all existing Parties. The California courts that have considered these 20 issues have given particular weight to the location ofthe named parties, potential 2\ parties, witnesses and/or physical evidence. See, Ford Motor Warranty Cases, 22 supra; McGhan Medical Corp., supra - both recommending coordination of 23 proceedings in county where the majority of parties, witnesses and/or evidence 24 exist. 25 25 E. Los Angeles County is the Principal Place of Business for Most Parties. 2y The Parties in the Included Actions involving the representation, marketing 2g and/or sale ofPETITIONER'S $16-million Toyopa Property, specifically, as well 14 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY 1 as any possible witnesses in these related actions, live and/or work in Los Angeles 2 County. Accordingly, these factors also weighs in favor of coordination in 3 Los Angeles County. 4 5 VI. CONCLUSION AND PRAYER ^ WHEREFORE,PETITIONER prays that this through the judicial council 2 proceeding of petition to coordinate the Included Actions involving representation, g marketing and/or sale ofPETITIONER'S $I6-million Toyopa Property, specifically, be g coordinated pursuant to California Code ofCivil Procedure § 400, and that the jQ coordinated proceeding be assigned to the Superior Court of Los Angeles County. Ij Central District. PETITIONER prays for such other and further reliefto which they may j2 be justly entitled, as well. 13 j4 Respectfully submitted, DATED: July ,2020 15 16 MICHAEL A.J. NANGANO,A LAW CORPORATION 17 Af/f Y yh A 18 MICHXEL a.j. NANGANO 19 Attorney for PETITIONER / Plaintiff(s) 20 21 22 23 24 25 26 27 28 15 PETITIONER / PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR COORDINATION; AND, REQUEST FOR STAY