Preview
ELECTRONICALLY FILED
superior Court of California,
County of Placer
08/14/2020
SHANNON B. JONES LAW GROUP, INC.
By: Laurel Sanders, Deputy Clerk
SHANNON B. JONES (Bar No. 149222)
sbi@sbj-law.com
LINDSEY A. MORGAN (Bar No. 274214)
lam@sbj-law.com
208 W. El Pintado Road
Danville, California 94526
Telephone: (925) 837-2317
Facsimile: (925) 837-4831
Attorneys for Plaintiff
PACIFIC UNION INTERNATIONAL, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF PLACER
11 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080
)
12 Plaintiff, ) PACIFIC UNION INTERNATIONAL,
13 a INC.’S EVIDENTIARY OBJECTIONS TO
) DOCUMENTS AND OPINION
14 ERIK LUDWICK, an individual and ) TESTIMONY PRESENTED IN SUPPORT
beneficiary of The Anything Trust Dated ) OF DEFENDANTS’ OPPOSITION TO
15 October 12, 2007; THE ANYTHING TRUST ) MOTION FOR SUMMARY JUDGMENT
DATED OCTOBER 12, 2007; PAUL D. )
16 BOOTH, in his capacity as trustee of The )
eae Dated October 12, 2007; and Date: August 20, 2020
17
) Time: 8:30 a.m.
18 Defendants. ) Dept: 42
)
19 )
) Complaint Filed: November 7, 2018
20 Trial Date: September 21, 2020
21
Pursuant to California Rules of Court Rule 3.1354 et seq., plaintiff PACIFIC UNION
22
INTERNATIONAL, INC. (“Pacific Union’) submits the following objections to evidence presented
23
by Defendants ERIK LUDWICK, THE ANYTHING TRUST DATED OCTOBER 12, 2007 and
24
PAUL D. BOOTH (collectively, “Defendants’’) in support of Defendants’ Opposition toMotion for
25
Summary Judgment.
26
///
27
///
28
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PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED IN DEFENDANTS’ OPPOSITION TO MSJ
1. OBJECTIONS TO DEFENDANTS’ SEPARATE STATEMENT OF ADDITIONAL
FACTS PERTINENT TO THE RESOLUTION OF THE MOTION
For the benefit of the Court, these alleged additional material facts and Pacific Union’s
objections are identical to the previously submitted Defendants’ alleged material facts and
Pacific Union’s objections filed in Defendants’ Motion for Summary Judgment.
No. Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection:
Additional Material Facts
The Anything Trust Dated October 12, 1. Undisputed.
2007" (hereinafter "the Trust") (attached to
Defendants' "Request For Judicial Notice” Plaintiff has no personal knowledge
as Exhibit "1", is a true and correct copy of
regarding the formation and intent of The
the "Acknowledgment" signed by Eric
Ludwick ("Ludwick") and notarized on Anything Trust Dated October 12, 2007.
October 16, 2007 in Los Angeles County
10 creating the real property holding Trust,
(SIC)
11
*See Ludwick Declaration and Exhibits to
12 this opposition
By the "Second Amendment" dated March 2. Undisputed but irrelevant, as the actions
13 25, 2019, Ludwick was made Trustee of the which form the basis of the lawsuit took
Trust which was the owner of record of the
14 Los Angeles County Property located at 200
place before March 25, 2019.
Toyopa Drive, Pacific Palisades, CA 90272
15 in the County of Los Angeles, CA
(hereinafter "the L. A. County Property”).
16
*See Ludwick Decl. and Exhibit "AB"
17 attached to this opposition
The "Residential Listing Agreement" dated 3. Disputed. Unintelligible.
18 September 1, 2016 between the parties to
the contract: the Anything Trust and the real
19 estate brokerage Partners Trust under its
Pacific Union International, Inc. (“Pacific
Union”) is aparty to the Residential Listing
own separate Department of Real Estate
20 license. Agreement by virtue of its acquisition of
Partners Trust on August 21, 2017.
21 *See Ludwick Decl. {9-3 through 12;
Exhibits "AC" and "AD" attached to this UMF ff 4, 5 (Declaration of Nicholas Segal
22 opposition In Support of Pacific Union International,
23 Inc.’s Motion for Summary Judgment or,
Alternatively, Summary Adjudication of
24 Issues (“Segal Decl.”), YJ 3-6.)
25 Plaintiff Pacific Union International, Inc., 4. Disputed.
("Plaintiff and/or "PUI") was never a party
26 to the listing agreement between Partners Pacific Union isentitled to enforce Partners
Trust and the Trust and/or Ludwick, there is
27 no contractual privity between Ludwick and
Trust’s rights under the Residential Listing
Agreement by virtue of Pacific Union’s
PUI.
28 acquisition of Partners Trust on August 21,
2
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED JSO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection:
Additional Material Facts
*See Ludwick Decl. {f-and PUI's responses | 2017.
to Requests for Admissions, Set One
attached as Exhibit "B" to this opposition UME 44, 5 (Segal Decl. at {9 3-6.)
5. | Plaintiff PUI has not sufficiently shown 5. Disputed and irrelevant.
how the convenience of the parties, witness,
and counsel favors litigation in Placer This is a contention that isnot pertinent to
County when the essential parties and the disposition of the motion, and Pacific
evidence is within Los Angeles County. Union objects to this “fact” under Rule
See the entire Ludwick Decl. and see this 3.1350(d)(2) and (£)(3) of the California
Court's Order of dated October 3, 2019 Rules of Court.
denying Plaintiff's Motion to Consolidate
Venue in this action is not an issue of
material fact lending itself to summary
10 judgment.
11 Pacific Union filed this action where itwas
12 legally required to file itby statute. This
Court agreed that venue was appropriate
13 when it denied Defendants’ motion to
transfer venue, holding: “Accordingly,
14 venue is proper in this county.”
15
RJN, Exh. 2, Order Denying Defendants’
16 Motion to Change Venue, p. 2:22.
6. | At the time the offer, acceptance and/or 6. Disputed.
17 purchase was made of the Defendants' real
property located at at 200 Toyopa Drive, Pacific Union acquired Partners Trust on
18 Pacific Palisades, CA 90272 in the County August 21, 2017. The Purchase Agreement
of Los Angeles, CA, that offer, the and Seller’s final closing statement reflect
19 that Behdad Eghbali made an offer to
acceptance and ultimately the purchase was
20 made while and/or with Partners Trust as purchase the real property located at 200
the sole and/or the only real estate broker of Toyopa Drive, Pacific Palisades, California,
21 record for the Defendants and the L. A. 90272 (the “Property”) on August 24, 2017.
County Property. That offer was not accepted. Behdad
22 Eghbali submitted a new offer to purchase
*See Ludwick Decl. {J and the purchase the Property on September 13, 2017, and
23 escrow closed on November 9, 2017. All of
agreement attached as Exhibit "AG" and the
24 Seller's final closing statement attached as these events transpired after Pacific Union
Page-3 of Exhibit "9" of the Jones Decl. acquired Partners Trust.
25
UMF ff 4, 5 (Segal Decl., J] 3-6);
26 Declaration of Madison Hildebrand in
Support of Pacific Union’s Motion for
27 Summary Judgment (“Hildebrand Decl.”,
28 4]13, Exh. 4, ff 14-16.)
>
2
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection:
Additional Material Facts
7. | According to the purchase agreement 7. Disputed.
Partners Trust isboth the listing agent and
the selling agent. Partners Trust, which was acquired by
Pacific Union, isa real estate brokerage.
+See attached Exhibit "AG" which on/orin | Phe language of this fact characterizes the
4-2.B. states and establishes that for the sale | Company as an agent. Madison Hildebrand,
of Defendants’ the L. A. County Property, agent for Pacific Union (as successor-in-
Partners Trust isboth the listing agent and _| terest to Partners Trust) was both the
the selling agent. listing agent and selling agent for the
Property.
Hildebrand Decl., Ff] 2, 4, 6, 11, 13, 14-16.
8. | According to the Seller's final settlement 8. Disputed.
10 statement issued by the Escrow company ;
upon closing / completion of the sale of the | Pacific Union objects to D efendants
11 Defendants’ the L. A. County Property, attempt to use an unauthenticated document
12 Partners Trust again is designated and/or in support of its motion for ey
established as the listing and/or selling judgment, as set forth in Its concurrently
13 broker. filed evidentiary objections
14 *See Page-3 of Exhibit "9" of the Jones Pacific Union acquired Partners Trust
15 Decl., the "Sellers' Final Settlement before the transaction began.
Statement in the Paragraph entitled "Sales Communications between agent Madison
16 Commission" states: "Listing Commission | Hildebrand and Defendants show that
to PARTNERS TRUST". Defendants knew Partners Trust had been
17 acquired by a different brokerage during
(Defendants dispute that Partners Trust is commission negotiations and before the
18 entitled to any commission arising from close of escrow.
19 their breach of fiduciary duty, in part by — ;
improperly acting as a dual agent on behalf Had the commission actually been paid as
20 of both the buyer and the Defendants as the agreed under contract, the settlement
sellers, resulting in the action filed in Los statement would have been amended or
21 Angeles Superior Court and stillpending revised to read that the Sales
there.) Commission/Listing Commission was
22 distributed to Pacific Union.
23 Hildebrand Decl., J] 15, 16.
24
9. | Thus, Defendants have established that 9. Disputed.
25 PUI's claim violates the statute of frauds, ; a ;
especially as itstrictly applies to real estate Pacific Union is entitled to enforce Partners
26 transactions, in that there is no required and | Trust’s rights under the Residential Listing
necessary document between the Agreement by virtue of Pacific Union’s
27 Defendants and PUI that authorizes PUI to | 4¢quisition of Partners Trust on August 21,
28 act on Defendants behalf in the sale of real | 2917.
estate and/or to pay PUI any commission.
4
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection:
Additional Material Facts
UME 9 4, 5 Segal Decl., J 3-6.
*See Ludwick Decl. in its entirety, as well
as Exhibits "A" through "B" attached to this
opposition and/or this opposition in its
entirety.
I. OBJECTIONS TO THE REQUEST FOR JUDICIAL NOTICE
No. | Material Objected To: Grounds For Objection:
1. | Defendants’ Request for Judicial Notice, While it isentirely proper for the Court to
page 2, paragraph 1, lines 14-18, and take judicial notice of the existence of this
10 Exhibit A (including sub-exhibits AA-AL): Complaint, as a record of another court,
Pacific Union strenuously objects to the use
11 1. Attached as Exhibit-A is Defendant of this pleading and exhibits as an
Ludwick's Verified Complaint filein in evidentiary basis for any factual findings in
12 Ludwick v. Partners Trust et al, LASC Case this matter.
Number: 19STCV25331 ("LASC action");
13 the Verified Complaint has Exhibits A
through L attached and for the purposes of Additionally, the allegations within and
14 this Opposition, such Exhibits will be exhibits to the Complaint are objectionable
referred to as Exhibits-AA through AL, of because they lack foundation (Evid. Code §
15 which true and correct copies are attached 403), constitute hearsay because they are
as follows: offered to prove the truth of the matter
16
assumed (Evid. Code § 1200); assume facts
Exhibit-AA: The Toyopa Listing
17 Agreement between Defendants and not in evidence (Evid. Code §§ 210,
Partners Trust and Hildebrand: 765(a)); are presented with a lack of
18 personal knowledge (Evid. Code § 702);
Exhibit-AB: Proposed "extension" of the and are not properly authenticated (Evid.
19 initial Listing Agreement for an additional Code §§ 1400, 1401).
six (6) months through, and including,
20 August 31, 2017;
21 Exhibit-AC: Potential price reduction by
modification;
22
Exhibit-AD: April 18, 2017 "What's App"
23 message to ask Hildebrand asking whether
there was a need for an extension; and/or to
24 request that Los Angeles Defendant
Kirkpatrick be removed from any
25 involvement in the listing and/or sale of the
Toyopa Property because of certain
26 inappropriate conduct in which she had
engaged;
27 Exhibit-AE: On or about April 19, 2017
Hildebrand used "What's App” to tell
28 Ludwick that the listing agreement had been
5
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
No. | Material Objected To: Grounds For Objection:
extended and would not expire until August
31, 2017; and therefore, no additional
"extension" was necessary.
Exhibit-AF: On August 28, 2017 Ludwick
accepted an offer from potential buyers
Tony and Josephine Antoci ("Antoci") to
purchase the Toyopa Property for sixteen
million two hundred and fifty thousand
dollars ($16,250,000.00), with an effective
four and one-half percent (4.5%)
commission rate (to be splitequally
between the seller's and buyer's brokers),
resulting in net sale proceeds to Ludwick of
fifteen million five hundred and eighteen
thousand seven hundred fifty dollars
10 ($15,518,750.00) (hereinafter the "Antoci
Sale").
11
Exhibit-AG: "The EGHBALI PURCHASE"
12 — the offer to purchase the Toyopa Property
ultimately accepted by Ludwick and upon
13 which escrow was open and the sale was
completed on November 9, 2017;
14
Exhibit-AH: On August 27, 2017,
15 Hildebrand sent an email hereinafter
referred to as the "Strategy Disclosure
16 Email;"
17 Exhibit-AI: With respect to the offer made
and/or presented on the Eghbali Purchase,
18 on September 16, 2017 an email was sent
from "the Malibu Life Team" to multiple
19 people including Terra Coastal Escrow and
Eghbali which, in listing the terms of the
20 sale to EGHBALL, states:
21 "Commission: 4.5% ‘to Listing/Selling
Agents — Partners Trust."
22 A copy of this email, together with Terra
Coastal Escrow's email response dated
23 September 18, 2017 confirming the opening
of Escrow No. "TC-1531" for the
24 Eghbali Purchase with a 4.5% Commission
rate is attached hereto as Exhibit "I" and
25 incorporated herein by reference as though
fully set forth at length.
26 Exhibit-AJ: On September 18, 2017, and
again with respect to the Eghbali Purchase,
27 Hildebrand sent an email to Ludwick
stating:
28
6
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Material Objected To: Grounds For Objection:
"Dear Erik, Thank you for your email
explaining your position on commission.
However, Iam unable to reduce the
commission on the sale of your house to
2.5%.
There are a couple of reasons for this — the
first being the policy of my brokerage I
have explained to you in the past. In
addition, Ihave already reduced the
commission because I am representing both
sides to 4.5% — which is a savings to
$244,500 to you.
This was discussed before you accepted the
current deal only a couple of days ago
when I said Iwould honor the reduced
commission I agreed to in the past — 4.5%."
10
Exhibit-AK: On September 18, 2017, and
11 again with respect to the Eghbali Purchase,
Sarah Kosasky, who identified herself as
12 the "manager of Partners Trust in Malibu"
sent an email to Ludwick stating that she,
13 on behalf of Partners Trust, could offer
Ludwick "a commission reduction to
14 4.25%."
15 Exhibit-AL: On August 27, 2017, Ludwick
discovered that Hildebrand had given the
16 amount of Eghbali’s then-current offer to
Antoci via the "Strategy Disclosure Email,"
17 and Ludwick confronted Hildebrand via
"WhatsApp” messaging. (True and correct
18 copies of the “What’sApp” communications
between Ludwick and Hildebrand on
19 the unathorized disclosure of information to
Antoci are attached.)
20 [These Exhibits are incorporated herein the
Defendants Opposition papers by
21 reference as though fully set forth at
length. ]
22 Attached as Exhibit-B are Plaintiff's While Pacific Union does not dispute that
23 "Responses to Requests for Admissions, Set these requests were propounded and
One" with respect to; responded to, the discovery requests and
24 a. DEFENDANTS’ Request for Admission responses attached as Exhibit 5 to
No. 90 — (Responded to by PUI as Defendants’ RJFN are not judicially
25 "Mis-labeled No. 78"), and DEFENDANTS noticeable. Exhibit 5 does not meet the
Form Interrogatory 17.1 with requirements of Evidence Code section 452
26 respect to said Request for Admission; and is not included in any of Section 452’s
27 b. DEFENDANTS’ Request for Admission permissible categories of documents
No. 91 — (Responded to by PUI as appropriate for judicial notice. (Evid. Code
28 § 452.) The statute’s categories are set
7
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Material Objected To: Grounds For Objection:
"Mis-labeled No. 79"), and DEFENDANTS forth in the Grounds for Objection at
Form Interrogatory 17.1 with Paragraph | and are not repeated here to
respect to said Request for Admission; and save paper and to be respectful of the
c. DEFENDANTS’ Request for Admission Court’s time.
No. 92 — (Responded to by PUI as
"Mis-labeled No. 80"), and DEFENDANTS
Additionally, these documents lack
Form Interrogatory 17.1 with
respect to said Request for Admission. foundation (Evid. Code § 403), constitute
hearsay because they are offered to prove
True and correct copies of these three (3) the truth of the matter assumed (Evid. Code
Requests for Admission and PLAINTIFF’s § 1200); assume facts not in evidence (Evid.
responses thereto, as well as the three (3) Code §§ 210, 765(a)); are presented with a
Form Interrogatories 17.1 with respect to lack of personal knowledge (Evid. Code §
each of said Requests for Admission, are
attached hereto as collective Exhibit "5". 702); and are not properly authenticated
(Evid. Code §§ 1400, 1401).
10
11
I. OBJECTIONS TO THE DECLARATION OF ERIK LUDWICK
12
No. Material Objected To: Grounds For Objection:
13 Declaration of Erik Ludwick (“Ludwick The copy of the Declaration served on
Declaration”), page 2, paragraph 2, lines Pacific Union is unsigned.
14 10-13:
The location of the Trust’s business and
15 The Trust was the owner of record of the property ownership is not relevant.
Los Angeles County Property located at
16 200 Toyopa Drive, Pacific Palisades, CA
90272 in the County of Los Angeles, CA
17 (hereinafter the "Toyopa Property"). The
Trust does not now nor ever has done
18 business in and/or own any property in
Placer County.
19 Ludwick Declaration, page 2, paragraph 3, The copy of the Declaration served on
lines 14-17: Pacific Union is unsigned.
20
21 The previous trustee and named Defendant Mr. Ludwick’s statements about the actions
Paul Booth ("Booth") was replaced by me, of Paul Booth are inadmissible hearsay.
22 on or about April 5, 2019, however, even Mr. Ludwick’s opinion of what Mr. Booth
when Booth held his position as Trustee, he did or whether he followed instructions are
23 served atmy direction and preformed (SIC) improper legal conclusions or lay opinions
as a signatory on behalf of THE TRUST on an ultimate fact, and assumes facts not in
24
again at my direction and/or supervision. evidence. Mr. Ludwick’s opinion of the
25 Booth as trustee carried out my instructions. actions of Paul Booth are conclusory,
argumentative, and irrelevant opinions of a
26 lay witness, and he lacks personal
knowledge regarding the actions of Mr.
27 Booth. For these same reasons, Mr.
Ludwick’s statement assumes facts not in
28
8
PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND
OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
No. Material Objected To: Grounds For Objection:
evidence, and is conclusory, argumentative,
irrelevant, and speculative.
Hearsay (Evid. Code § 1200); assumes facts
not in evidence (Evid. Code §§ 210,
765(a)); lacks foundation (Evid. Code §
403); improper lay opinion (Evid. Code §
800); improper legal conclusion or lay
opinion on ultimate fact (Towns v.
Davidson (2007)147 Cal.App.4th 461, 473);
lack of personal knowledge (Evid. Code §
702); lack of proper authentication (Evid.
Code §§ 1400, 1401); conclusory and
argumentative (Evid. Code § 765(a));
Burton v. Security Pacific Nat. Bank (1988)
10 197 Cal.App.3d 972, 978); irrelevant (Evid.
11 Code § 350); speculative (Evid. Code §
702; Visueta v. General Motors Corp.
12 (1991) 234 Cal.App.3d 1609, 1615).
13 Ludwick Declaration, page 2, paragraph 4, The copy of the Declaration served on
lines 18-24: Pacific Union is unsigned.
14
15 The contract in this matter consists of a Mr. Ludwick was not a party to the
California Association of Realtors ("CAR") Residential Listing Agreement. His
16 form "Residential Listing Agreement" signature does not appear on the Residential
("Toyopa Listing Agreement") consisting of
Listing Agreement. Mr. Booth signed that
17 5-pages was an agreement between Partners
agreement, and every other document at
Trust Real Estate Brokerage & Acquisitions
issue in this transaction. Mr. Ludwick has
18 (“Partners Trust”) and the Trust and myself.
A true and correct copy of the complete no basis to offer this document. He cannot
19 Toyopa Listing Agreement is attached as authenticate it. Further, Mr. Ludwick’s
Exhibit-A to the Verified Complaint filed in recitation of the contents of the Residential
20 the Los Angeles County Superior Court Listing Agreement isinadmissible hearsay.
("LASC"), Case No.: 19STCV25331 - Filed
Mr. Ludwick does not identify the source of
21 07/24/2019; Trial Date: None.
the document, how he obtained it,how he
22 knows itscontents to be true and reliable, or
any other facts required to properly
23 authenticate the document. As a non-
signatory, he lacks foundation or personal
24
Preview
ELECTRONICALLY FILED superior Court of California, County of Placer 08/14/2020 SHANNON B. JONES LAW GROUP, INC. By: Laurel Sanders, Deputy Clerk SHANNON B. JONES (Bar No. 149222) sbi@sbj-law.com LINDSEY A. MORGAN (Bar No. 274214) lam@sbj-law.com 208 W. El Pintado Road Danville, California 94526 Telephone: (925) 837-2317 Facsimile: (925) 837-4831 Attorneys for Plaintiff PACIFIC UNION INTERNATIONAL, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF PLACER 11 PACIFIC UNION INTERNATIONAL, INC., ) Case No. SCV0042080 ) 12 Plaintiff, ) PACIFIC UNION INTERNATIONAL, 13 a INC.’S EVIDENTIARY OBJECTIONS TO ) DOCUMENTS AND OPINION 14 ERIK LUDWICK, an individual and ) TESTIMONY PRESENTED IN SUPPORT beneficiary of The Anything Trust Dated ) OF DEFENDANTS’ OPPOSITION TO 15 October 12, 2007; THE ANYTHING TRUST ) MOTION FOR SUMMARY JUDGMENT DATED OCTOBER 12, 2007; PAUL D. ) 16 BOOTH, in his capacity as trustee of The ) eae Dated October 12, 2007; and Date: August 20, 2020 17 ) Time: 8:30 a.m. 18 Defendants. ) Dept: 42 ) 19 ) ) Complaint Filed: November 7, 2018 20 Trial Date: September 21, 2020 21 Pursuant to California Rules of Court Rule 3.1354 et seq., plaintiff PACIFIC UNION 22 INTERNATIONAL, INC. (“Pacific Union’) submits the following objections to evidence presented 23 by Defendants ERIK LUDWICK, THE ANYTHING TRUST DATED OCTOBER 12, 2007 and 24 PAUL D. BOOTH (collectively, “Defendants’’) in support of Defendants’ Opposition toMotion for 25 Summary Judgment. 26 /// 27 /// 28 /// PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED IN DEFENDANTS’ OPPOSITION TO MSJ 1. OBJECTIONS TO DEFENDANTS’ SEPARATE STATEMENT OF ADDITIONAL FACTS PERTINENT TO THE RESOLUTION OF THE MOTION For the benefit of the Court, these alleged additional material facts and Pacific Union’s objections are identical to the previously submitted Defendants’ alleged material facts and Pacific Union’s objections filed in Defendants’ Motion for Summary Judgment. No. Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection: Additional Material Facts The Anything Trust Dated October 12, 1. Undisputed. 2007" (hereinafter "the Trust") (attached to Defendants' "Request For Judicial Notice” Plaintiff has no personal knowledge as Exhibit "1", is a true and correct copy of regarding the formation and intent of The the "Acknowledgment" signed by Eric Ludwick ("Ludwick") and notarized on Anything Trust Dated October 12, 2007. October 16, 2007 in Los Angeles County 10 creating the real property holding Trust, (SIC) 11 *See Ludwick Declaration and Exhibits to 12 this opposition By the "Second Amendment" dated March 2. Undisputed but irrelevant, as the actions 13 25, 2019, Ludwick was made Trustee of the which form the basis of the lawsuit took Trust which was the owner of record of the 14 Los Angeles County Property located at 200 place before March 25, 2019. Toyopa Drive, Pacific Palisades, CA 90272 15 in the County of Los Angeles, CA (hereinafter "the L. A. County Property”). 16 *See Ludwick Decl. and Exhibit "AB" 17 attached to this opposition The "Residential Listing Agreement" dated 3. Disputed. Unintelligible. 18 September 1, 2016 between the parties to the contract: the Anything Trust and the real 19 estate brokerage Partners Trust under its Pacific Union International, Inc. (“Pacific Union”) is aparty to the Residential Listing own separate Department of Real Estate 20 license. Agreement by virtue of its acquisition of Partners Trust on August 21, 2017. 21 *See Ludwick Decl. {9-3 through 12; Exhibits "AC" and "AD" attached to this UMF ff 4, 5 (Declaration of Nicholas Segal 22 opposition In Support of Pacific Union International, 23 Inc.’s Motion for Summary Judgment or, Alternatively, Summary Adjudication of 24 Issues (“Segal Decl.”), YJ 3-6.) 25 Plaintiff Pacific Union International, Inc., 4. Disputed. ("Plaintiff and/or "PUI") was never a party 26 to the listing agreement between Partners Pacific Union isentitled to enforce Partners Trust and the Trust and/or Ludwick, there is 27 no contractual privity between Ludwick and Trust’s rights under the Residential Listing Agreement by virtue of Pacific Union’s PUI. 28 acquisition of Partners Trust on August 21, 2 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED JSO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection: Additional Material Facts *See Ludwick Decl. {f-and PUI's responses | 2017. to Requests for Admissions, Set One attached as Exhibit "B" to this opposition UME 44, 5 (Segal Decl. at {9 3-6.) 5. | Plaintiff PUI has not sufficiently shown 5. Disputed and irrelevant. how the convenience of the parties, witness, and counsel favors litigation in Placer This is a contention that isnot pertinent to County when the essential parties and the disposition of the motion, and Pacific evidence is within Los Angeles County. Union objects to this “fact” under Rule See the entire Ludwick Decl. and see this 3.1350(d)(2) and (£)(3) of the California Court's Order of dated October 3, 2019 Rules of Court. denying Plaintiff's Motion to Consolidate Venue in this action is not an issue of material fact lending itself to summary 10 judgment. 11 Pacific Union filed this action where itwas 12 legally required to file itby statute. This Court agreed that venue was appropriate 13 when it denied Defendants’ motion to transfer venue, holding: “Accordingly, 14 venue is proper in this county.” 15 RJN, Exh. 2, Order Denying Defendants’ 16 Motion to Change Venue, p. 2:22. 6. | At the time the offer, acceptance and/or 6. Disputed. 17 purchase was made of the Defendants' real property located at at 200 Toyopa Drive, Pacific Union acquired Partners Trust on 18 Pacific Palisades, CA 90272 in the County August 21, 2017. The Purchase Agreement of Los Angeles, CA, that offer, the and Seller’s final closing statement reflect 19 that Behdad Eghbali made an offer to acceptance and ultimately the purchase was 20 made while and/or with Partners Trust as purchase the real property located at 200 the sole and/or the only real estate broker of Toyopa Drive, Pacific Palisades, California, 21 record for the Defendants and the L. A. 90272 (the “Property”) on August 24, 2017. County Property. That offer was not accepted. Behdad 22 Eghbali submitted a new offer to purchase *See Ludwick Decl. {J and the purchase the Property on September 13, 2017, and 23 escrow closed on November 9, 2017. All of agreement attached as Exhibit "AG" and the 24 Seller's final closing statement attached as these events transpired after Pacific Union Page-3 of Exhibit "9" of the Jones Decl. acquired Partners Trust. 25 UMF ff 4, 5 (Segal Decl., J] 3-6); 26 Declaration of Madison Hildebrand in Support of Pacific Union’s Motion for 27 Summary Judgment (“Hildebrand Decl.”, 28 4]13, Exh. 4, ff 14-16.) > 2 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection: Additional Material Facts 7. | According to the purchase agreement 7. Disputed. Partners Trust isboth the listing agent and the selling agent. Partners Trust, which was acquired by Pacific Union, isa real estate brokerage. +See attached Exhibit "AG" which on/orin | Phe language of this fact characterizes the 4-2.B. states and establishes that for the sale | Company as an agent. Madison Hildebrand, of Defendants’ the L. A. County Property, agent for Pacific Union (as successor-in- Partners Trust isboth the listing agent and _| terest to Partners Trust) was both the the selling agent. listing agent and selling agent for the Property. Hildebrand Decl., Ff] 2, 4, 6, 11, 13, 14-16. 8. | According to the Seller's final settlement 8. Disputed. 10 statement issued by the Escrow company ; upon closing / completion of the sale of the | Pacific Union objects to D efendants 11 Defendants’ the L. A. County Property, attempt to use an unauthenticated document 12 Partners Trust again is designated and/or in support of its motion for ey established as the listing and/or selling judgment, as set forth in Its concurrently 13 broker. filed evidentiary objections 14 *See Page-3 of Exhibit "9" of the Jones Pacific Union acquired Partners Trust 15 Decl., the "Sellers' Final Settlement before the transaction began. Statement in the Paragraph entitled "Sales Communications between agent Madison 16 Commission" states: "Listing Commission | Hildebrand and Defendants show that to PARTNERS TRUST". Defendants knew Partners Trust had been 17 acquired by a different brokerage during (Defendants dispute that Partners Trust is commission negotiations and before the 18 entitled to any commission arising from close of escrow. 19 their breach of fiduciary duty, in part by — ; improperly acting as a dual agent on behalf Had the commission actually been paid as 20 of both the buyer and the Defendants as the agreed under contract, the settlement sellers, resulting in the action filed in Los statement would have been amended or 21 Angeles Superior Court and stillpending revised to read that the Sales there.) Commission/Listing Commission was 22 distributed to Pacific Union. 23 Hildebrand Decl., J] 15, 16. 24 9. | Thus, Defendants have established that 9. Disputed. 25 PUI's claim violates the statute of frauds, ; a ; especially as itstrictly applies to real estate Pacific Union is entitled to enforce Partners 26 transactions, in that there is no required and | Trust’s rights under the Residential Listing necessary document between the Agreement by virtue of Pacific Union’s 27 Defendants and PUI that authorizes PUI to | 4¢quisition of Partners Trust on August 21, 28 act on Defendants behalf in the sale of real | 2917. estate and/or to pay PUI any commission. 4 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT No. | Defendants’ Alleged Undisputed Pacific Union’s Grounds For Objection: Additional Material Facts UME 9 4, 5 Segal Decl., J 3-6. *See Ludwick Decl. in its entirety, as well as Exhibits "A" through "B" attached to this opposition and/or this opposition in its entirety. I. OBJECTIONS TO THE REQUEST FOR JUDICIAL NOTICE No. | Material Objected To: Grounds For Objection: 1. | Defendants’ Request for Judicial Notice, While it isentirely proper for the Court to page 2, paragraph 1, lines 14-18, and take judicial notice of the existence of this 10 Exhibit A (including sub-exhibits AA-AL): Complaint, as a record of another court, Pacific Union strenuously objects to the use 11 1. Attached as Exhibit-A is Defendant of this pleading and exhibits as an Ludwick's Verified Complaint filein in evidentiary basis for any factual findings in 12 Ludwick v. Partners Trust et al, LASC Case this matter. Number: 19STCV25331 ("LASC action"); 13 the Verified Complaint has Exhibits A through L attached and for the purposes of Additionally, the allegations within and 14 this Opposition, such Exhibits will be exhibits to the Complaint are objectionable referred to as Exhibits-AA through AL, of because they lack foundation (Evid. Code § 15 which true and correct copies are attached 403), constitute hearsay because they are as follows: offered to prove the truth of the matter 16 assumed (Evid. Code § 1200); assume facts Exhibit-AA: The Toyopa Listing 17 Agreement between Defendants and not in evidence (Evid. Code §§ 210, Partners Trust and Hildebrand: 765(a)); are presented with a lack of 18 personal knowledge (Evid. Code § 702); Exhibit-AB: Proposed "extension" of the and are not properly authenticated (Evid. 19 initial Listing Agreement for an additional Code §§ 1400, 1401). six (6) months through, and including, 20 August 31, 2017; 21 Exhibit-AC: Potential price reduction by modification; 22 Exhibit-AD: April 18, 2017 "What's App" 23 message to ask Hildebrand asking whether there was a need for an extension; and/or to 24 request that Los Angeles Defendant Kirkpatrick be removed from any 25 involvement in the listing and/or sale of the Toyopa Property because of certain 26 inappropriate conduct in which she had engaged; 27 Exhibit-AE: On or about April 19, 2017 Hildebrand used "What's App” to tell 28 Ludwick that the listing agreement had been 5 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT No. | Material Objected To: Grounds For Objection: extended and would not expire until August 31, 2017; and therefore, no additional "extension" was necessary. Exhibit-AF: On August 28, 2017 Ludwick accepted an offer from potential buyers Tony and Josephine Antoci ("Antoci") to purchase the Toyopa Property for sixteen million two hundred and fifty thousand dollars ($16,250,000.00), with an effective four and one-half percent (4.5%) commission rate (to be splitequally between the seller's and buyer's brokers), resulting in net sale proceeds to Ludwick of fifteen million five hundred and eighteen thousand seven hundred fifty dollars 10 ($15,518,750.00) (hereinafter the "Antoci Sale"). 11 Exhibit-AG: "The EGHBALI PURCHASE" 12 — the offer to purchase the Toyopa Property ultimately accepted by Ludwick and upon 13 which escrow was open and the sale was completed on November 9, 2017; 14 Exhibit-AH: On August 27, 2017, 15 Hildebrand sent an email hereinafter referred to as the "Strategy Disclosure 16 Email;" 17 Exhibit-AI: With respect to the offer made and/or presented on the Eghbali Purchase, 18 on September 16, 2017 an email was sent from "the Malibu Life Team" to multiple 19 people including Terra Coastal Escrow and Eghbali which, in listing the terms of the 20 sale to EGHBALL, states: 21 "Commission: 4.5% ‘to Listing/Selling Agents — Partners Trust." 22 A copy of this email, together with Terra Coastal Escrow's email response dated 23 September 18, 2017 confirming the opening of Escrow No. "TC-1531" for the 24 Eghbali Purchase with a 4.5% Commission rate is attached hereto as Exhibit "I" and 25 incorporated herein by reference as though fully set forth at length. 26 Exhibit-AJ: On September 18, 2017, and again with respect to the Eghbali Purchase, 27 Hildebrand sent an email to Ludwick stating: 28 6 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Material Objected To: Grounds For Objection: "Dear Erik, Thank you for your email explaining your position on commission. However, Iam unable to reduce the commission on the sale of your house to 2.5%. There are a couple of reasons for this — the first being the policy of my brokerage I have explained to you in the past. In addition, Ihave already reduced the commission because I am representing both sides to 4.5% — which is a savings to $244,500 to you. This was discussed before you accepted the current deal only a couple of days ago when I said Iwould honor the reduced commission I agreed to in the past — 4.5%." 10 Exhibit-AK: On September 18, 2017, and 11 again with respect to the Eghbali Purchase, Sarah Kosasky, who identified herself as 12 the "manager of Partners Trust in Malibu" sent an email to Ludwick stating that she, 13 on behalf of Partners Trust, could offer Ludwick "a commission reduction to 14 4.25%." 15 Exhibit-AL: On August 27, 2017, Ludwick discovered that Hildebrand had given the 16 amount of Eghbali’s then-current offer to Antoci via the "Strategy Disclosure Email," 17 and Ludwick confronted Hildebrand via "WhatsApp” messaging. (True and correct 18 copies of the “What’sApp” communications between Ludwick and Hildebrand on 19 the unathorized disclosure of information to Antoci are attached.) 20 [These Exhibits are incorporated herein the Defendants Opposition papers by 21 reference as though fully set forth at length. ] 22 Attached as Exhibit-B are Plaintiff's While Pacific Union does not dispute that 23 "Responses to Requests for Admissions, Set these requests were propounded and One" with respect to; responded to, the discovery requests and 24 a. DEFENDANTS’ Request for Admission responses attached as Exhibit 5 to No. 90 — (Responded to by PUI as Defendants’ RJFN are not judicially 25 "Mis-labeled No. 78"), and DEFENDANTS noticeable. Exhibit 5 does not meet the Form Interrogatory 17.1 with requirements of Evidence Code section 452 26 respect to said Request for Admission; and is not included in any of Section 452’s 27 b. DEFENDANTS’ Request for Admission permissible categories of documents No. 91 — (Responded to by PUI as appropriate for judicial notice. (Evid. Code 28 § 452.) The statute’s categories are set 7 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Material Objected To: Grounds For Objection: "Mis-labeled No. 79"), and DEFENDANTS forth in the Grounds for Objection at Form Interrogatory 17.1 with Paragraph | and are not repeated here to respect to said Request for Admission; and save paper and to be respectful of the c. DEFENDANTS’ Request for Admission Court’s time. No. 92 — (Responded to by PUI as "Mis-labeled No. 80"), and DEFENDANTS Additionally, these documents lack Form Interrogatory 17.1 with respect to said Request for Admission. foundation (Evid. Code § 403), constitute hearsay because they are offered to prove True and correct copies of these three (3) the truth of the matter assumed (Evid. Code Requests for Admission and PLAINTIFF’s § 1200); assume facts not in evidence (Evid. responses thereto, as well as the three (3) Code §§ 210, 765(a)); are presented with a Form Interrogatories 17.1 with respect to lack of personal knowledge (Evid. Code § each of said Requests for Admission, are attached hereto as collective Exhibit "5". 702); and are not properly authenticated (Evid. Code §§ 1400, 1401). 10 11 I. OBJECTIONS TO THE DECLARATION OF ERIK LUDWICK 12 No. Material Objected To: Grounds For Objection: 13 Declaration of Erik Ludwick (“Ludwick The copy of the Declaration served on Declaration”), page 2, paragraph 2, lines Pacific Union is unsigned. 14 10-13: The location of the Trust’s business and 15 The Trust was the owner of record of the property ownership is not relevant. Los Angeles County Property located at 16 200 Toyopa Drive, Pacific Palisades, CA 90272 in the County of Los Angeles, CA 17 (hereinafter the "Toyopa Property"). The Trust does not now nor ever has done 18 business in and/or own any property in Placer County. 19 Ludwick Declaration, page 2, paragraph 3, The copy of the Declaration served on lines 14-17: Pacific Union is unsigned. 20 21 The previous trustee and named Defendant Mr. Ludwick’s statements about the actions Paul Booth ("Booth") was replaced by me, of Paul Booth are inadmissible hearsay. 22 on or about April 5, 2019, however, even Mr. Ludwick’s opinion of what Mr. Booth when Booth held his position as Trustee, he did or whether he followed instructions are 23 served atmy direction and preformed (SIC) improper legal conclusions or lay opinions as a signatory on behalf of THE TRUST on an ultimate fact, and assumes facts not in 24 again at my direction and/or supervision. evidence. Mr. Ludwick’s opinion of the 25 Booth as trustee carried out my instructions. actions of Paul Booth are conclusory, argumentative, and irrelevant opinions of a 26 lay witness, and he lacks personal knowledge regarding the actions of Mr. 27 Booth. For these same reasons, Mr. Ludwick’s statement assumes facts not in 28 8 PACIFIC UNION INTERNATIONAL, INC.’S EVIDENTIARY OBJECTIONS TO DOCUMENTS AND OPINION TESTIMONY PRESENTED ISO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT No. Material Objected To: Grounds For Objection: evidence, and is conclusory, argumentative, irrelevant, and speculative. Hearsay (Evid. Code § 1200); assumes facts not in evidence (Evid. Code §§ 210, 765(a)); lacks foundation (Evid. Code § 403); improper lay opinion (Evid. Code § 800); improper legal conclusion or lay opinion on ultimate fact (Towns v. Davidson (2007)147 Cal.App.4th 461, 473); lack of personal knowledge (Evid. Code § 702); lack of proper authentication (Evid. Code §§ 1400, 1401); conclusory and argumentative (Evid. Code § 765(a)); Burton v. Security Pacific Nat. Bank (1988) 10 197 Cal.App.3d 972, 978); irrelevant (Evid. 11 Code § 350); speculative (Evid. Code § 702; Visueta v. General Motors Corp. 12 (1991) 234 Cal.App.3d 1609, 1615). 13 Ludwick Declaration, page 2, paragraph 4, The copy of the Declaration served on lines 18-24: Pacific Union is unsigned. 14 15 The contract in this matter consists of a Mr. Ludwick was not a party to the California Association of Realtors ("CAR") Residential Listing Agreement. His 16 form "Residential Listing Agreement" signature does not appear on the Residential ("Toyopa Listing Agreement") consisting of Listing Agreement. Mr. Booth signed that 17 5-pages was an agreement between Partners agreement, and every other document at Trust Real Estate Brokerage & Acquisitions issue in this transaction. Mr. Ludwick has 18 (“Partners Trust”) and the Trust and myself. A true and correct copy of the complete no basis to offer this document. He cannot 19 Toyopa Listing Agreement is attached as authenticate it. Further, Mr. Ludwick’s Exhibit-A to the Verified Complaint filed in recitation of the contents of the Residential 20 the Los Angeles County Superior Court Listing Agreement isinadmissible hearsay. ("LASC"), Case No.: 19STCV25331 - Filed Mr. Ludwick does not identify the source of 21 07/24/2019; Trial Date: None. the document, how he obtained it,how he 22 knows itscontents to be true and reliable, or any other facts required to properly 23 authenticate the document. As a non- signatory, he lacks foundation or personal 24