Preview
1 Louis A. Gonzalez, Jr., State Bar No. 157373
lgonzalez@weintraub.com
2 Zack S. Thompson, State Bar No. 317110
zthompson@weintraub.com
3 weintraub tobin chediak coleman grodin 4/8/2021
LAW CORPORATION
4 400 Capitol Mall, 11th Floor
Sacramento, CA 95814
5 Tel: (916) 558-6000
Fax: (916) 446-1611
6
Attorneys for Plaintiffs Erik Benik,
7 Wishbone Ranch, LLC and James Heath
8
SUPERIOR COURT OF CALIFORNIA
9
IN AND FOR THE COUNTY OF BUTTE
10
11 ERIK BENIK, an individual; WISHBONE Case No. 18CV03508
RANCH, LLC, a California limited liability
tobin chediak coleman grodin
12 company; and JAMES HEATH, an PLAINTIFFS’ MOTION IN LIMINE NO. 5
individual, TO PRECLUDE EVIDENCE AND
13 ARGUMENT THAT KATHRYN EGAN DID
Plaintiffs, NOT HAVE A FIDUCIARY DUTY TO ERIK
14 BENIK IN NEGOTIATING AND PREPARING
vs. THE FIRST AND SECOND LEASES BETWEEN
15 THE PARTIES
13290 CONTRACTORS LANE, LLC, a
16 California limited liability company;
RICHARD BRINGGOLD, an individual; Trial Date: April 19, 2021
LAW CORPORATION
and DOES 1 through 25, inclusive, Dept: 1
17 Time: 8:00 a.m.
weintraub
Judge: Hon. Tamara L. Mosbarger
18 Defendants.
19 Complaint Filed: October 23, 2018
FAC Filed: March 15, 2019
20
SAC Filed: August 7, 2020
21
22 TO THE BUTTE COUNTY SUPERIOR COURT AND TO ALL PARTIES AND TO THE IR
23 ATTORNEYS OF RECORD:
24 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath (collectively,
25 “Plaintiffs”) respectfully move the Butte County Superior Court (“Court) in limine pursuant to
26 Evidence Code sections 210, 350, and 352 for an order:
27 1. Precluding any evidence purporting to prove that defendant Kathryn Egan did
28 not have a fiduciary duty to plaintiff Erik Benik in negotiating and preparing the first two leases
{3138729.DOCX;} 1 Plaintiffs’ Motion in Limine No. 5
1 between Benik and defendants 13290 Contractors Lane, LLC and Richard Bringgold, one of its
2 managers, (“Landlord Defendants”); and
3 2. Instructing all parties and their counsel not to comment regarding or make any
4 attempt to introduce evidence related to Kathryn Egan purportedly not having a fiduciary duty
5 to plaintiff Erik Benik in negotiating and preparing the firsttwo leases between Benik and the
6 Landlord Defendants.
7 This motion is made on the grounds that Egan admits that she participated in recruiting
8 Benik as a tenant and prepared the first and second leases on behalf of Benik and the
9 Landlord Plaintiffs in expectation of compensation. As a matter of law, this is enough to create
10 a fiduciary duty between Ms. Egan and Mr. Benik as to the negotiation and preparation of the
11 first and second leases. Any evidence or argument that Ms. Egan can somehow avoid the laws
tobin chediak coleman grodin
12 governing her profession is irrelevant and creates a substantial danger of confusing the issues,
13 and misleading the jury. This motion is based upon this notice; the accompanying
14 memorandum of points and authorities; the accompanying compendium of evidence,
15 including the declaration of Louis A. Gonzalez, Jr. and the exhibits in that compendium ; any
16 supplemental memoranda of points and authorities as may hereafter be filed with the Court or
LAW CORPORATION
17 stated orally at the hearing; all the papers and records on file in this action; and any oral
weintraub
18 and/or documentary evidence that may be presented at the hearing.
19
20 Dated: April 8, 2021 Respectfully submitted,
21 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN
Law Corporation
22
23
By:
24 Louis A. Gonzalez, Jr.
Zack S. Thompson
25 Attorneys for Plaintiffs Erik Benik,
Wishbone Ranch, LLC and James Heath
26
27
28
{3138729.DOCX;} 2 Plaintiffs’ Motion in Limine No. 5
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendant Kathryn Egan admits that she acted at the direction of plaintiff Erik Benik in
4 preparing the first and second leases between the parties. She did so after she went to solicit
5 him as a potential tenant for space she had heard would be a good fit for him. In the context
6 of a real estate transaction, this means that Egan was acting as Benik’s agent and, as a matter
7 of law, had fiduciary duties to him. Because this is a legal issue for the Court to decide, the
8 Court should preclude any evidence or argument attempting to contravene the controlling law.
9 II. PERTINENT FACTS
10 Defendant Kathryn Egan admits that she prepared the first and second lease between
11 Benik and the Landlord Defendants “as directed by Mr. Bringgold and Mr. Benik.” (Exh. B
tobin chediak coleman grodin
12 (“Egan Depo.”) at 37:2–5, 73:20–22; see Exhs. A, F, H.) She also admits that she met with
13 Mr. Benik “[t]o discuss the possibility of a lease option” for the Property because “he might be
14 interested in moving [his business] over there” because she had heard that he need ed more
15 space. (Egan Depo. at 24:13–25:12.) She took what she learned from both Benik and
16 Bringgold at this meeting and prepared the first lease. (Egan Depo. at 28:22–29:2, 36:9–11,
LAW CORPORATION
17 37:2–5.) She also participated in the negotiations for the second lease, in order to prepare its
weintraub
18 terms. (Egan Depo. at 73:20–75:6.)
19 III. LAW AND ARGUMENT
20 Agents for buyers and lessees in real estate transactions have fiduciary duties to their
21 principals “of utmost care, integrity, honesty, and loyalty in dealings with the Buyer.” (Civ.
22 Code, § 2079.16; see also Civ. Code, § 2079.13, subd. (b) [“‘Buyer’ includes a vendee or
23 lessee of real property.”].) The term “‘Buyer’s agent’ means an agent who represents a buyer in
24 a real property transaction,” regardless of whether compensation is paid. (See Civ. Code,
25 § 2079.13, subd. (o); see also Civ. Code, § 2295 [defining agency]; Civ. Code, § 2079.19
26 [compensation not determinative of agency]; cf. Civ. Code, § 2079.13, subd. (f) [requiring
27 seller’s agent to act as agent for compensation].) “Whether a fiduciary duty exists is generally a
28 question of law.” (Marzec v. Public Employees’ Retirement System (2015) 236 Cal.App.4th
{3138729.DOCX;} 3 Plaintiffs’ Motion in Limine No. 5
1 889, 915.)
2 Even beyond being an agent, Ms. Egan was acting as a real estate broker as defined in
3 the Business & Professions Code:
4 A real estate broker within the meaning of this part is a person who, for a
compensation or in expectation of a compensation, regardless of the form or
5 time of payment, does or negotiates to do one or more of the following acts for
another or others:
6 (a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers
or buyers of, solicits or obtains listings of, or negotiates the purchase,
7 sale, or exchange of real property or a business opportunity.
(b) Leases or rents or offers to lease or rent, or places for rent, or solicits
8 listings of places for rent, or solicits for prospective tenants, or negotiates
the sale, purchase, or exchanges of leases on real property, or on a
9 business opportunity, or collects rents from real property, or
improvements thereon, or from business opportunities.
10 ...
11 (Bus. & Prof. Code, § 10131, emphasis added.)
tobin chediak coleman grodin
12 Egan admits that she prepared the first and second lease “as directed by Mr. Bringgold
13 and Mr. Benik.” (Egan Depo. at 37:2–5, 73:20–22.) She also admits that she met with Mr.
14 Benik “[t]o discuss the possibility of a lease option” (i.e. solicit) for the Property because “he
15 might be interested in moving [his business] over there” because she had heard that he needed
16 more space. (Egan Depo. at 24:13–25:12.) This is sufficient to make Egan Benik’s agent for
LAW CORPORATION
17 those two leases as a matter of law. In fact, it is enough for Egan to be acting as a real estate
weintraub
18 licensee for Benik, since she was soliciting and negotiating a lease for others, which is only
19 allowed to be done by real estate licenses and Ms. Egan admits she expected compensation
20 once she obtained her broker’s license. (Bus. & Prof. Code, § 10131; Egan Depo. at 35:4–11,
21 36:12–22.) Therefore, she was acting within her license and owed Benik a fiduciary duty.
22 Because Egan was acting on Benik’s behalf in preparing and negotiating the first and
23 second leases, she was his agent and owed him fiduciary duties of utmost care, integrity,
24 honesty, and loyalty as a matter of law. Any evidence or argument seeking to dispute this is
25 irrelevant to the issues before the jury and creates a substantial danger of confusing the issues
26 and misleading the jury.
27 IV. CONCLUSION
28 Plaintiffs respectfully request that the Court issue an order:
{3138729.DOCX;} 4 Plaintiffs’ Motion in Limine No. 5
1 1. Precluding any evidence purporting to prove that defendant Kathryn Egan did
2 not have a fiduciary duty to plaintiff Erik Benik in negotiating and preparing the first two leases
3 between Benik and defendants 13290 Contractors Lane, LLC and Richard Bringgold, one of its
4 managers, (“Landlord Defendants”); and
5 2. Instructing all parties and their counsel not to comment regarding or make any
6 attempt to introduce evidence related to Kathryn Egan purportedly not having a fiduciary duty
7 to plaintiff Erik Benik in negotiating and preparing the firsttwo leases between Benik and the
8 Landlord Defendants.
9
10 Dated: April 8, 2021 Respectfully submitted,
11 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN
Law Corporation
tobin chediak coleman grodin
12
13
By:
14 Louis A. Gonzalez, Jr.
Zack S. Thompson
15
Attorneys for Plaintiffs Erik Benik,
16 Wishbone Ranch, LLC and James Heath
LAW CORPORATION
17
weintraub
18
19
20
21
22
23
24
25
26
27
28
{3138729.DOCX;} 5 Plaintiffs’ Motion in Limine No. 5
Preview
1 Louis A. Gonzalez, Jr., State Bar No. 157373 lgonzalez@weintraub.com 2 Zack S. Thompson, State Bar No. 317110 zthompson@weintraub.com 3 weintraub tobin chediak coleman grodin 4/8/2021 LAW CORPORATION 4 400 Capitol Mall, 11th Floor Sacramento, CA 95814 5 Tel: (916) 558-6000 Fax: (916) 446-1611 6 Attorneys for Plaintiffs Erik Benik, 7 Wishbone Ranch, LLC and James Heath 8 SUPERIOR COURT OF CALIFORNIA 9 IN AND FOR THE COUNTY OF BUTTE 10 11 ERIK BENIK, an individual; WISHBONE Case No. 18CV03508 RANCH, LLC, a California limited liability tobin chediak coleman grodin 12 company; and JAMES HEATH, an PLAINTIFFS’ MOTION IN LIMINE NO. 5 individual, TO PRECLUDE EVIDENCE AND 13 ARGUMENT THAT KATHRYN EGAN DID Plaintiffs, NOT HAVE A FIDUCIARY DUTY TO ERIK 14 BENIK IN NEGOTIATING AND PREPARING vs. THE FIRST AND SECOND LEASES BETWEEN 15 THE PARTIES 13290 CONTRACTORS LANE, LLC, a 16 California limited liability company; RICHARD BRINGGOLD, an individual; Trial Date: April 19, 2021 LAW CORPORATION and DOES 1 through 25, inclusive, Dept: 1 17 Time: 8:00 a.m. weintraub Judge: Hon. Tamara L. Mosbarger 18 Defendants. 19 Complaint Filed: October 23, 2018 FAC Filed: March 15, 2019 20 SAC Filed: August 7, 2020 21 22 TO THE BUTTE COUNTY SUPERIOR COURT AND TO ALL PARTIES AND TO THE IR 23 ATTORNEYS OF RECORD: 24 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath (collectively, 25 “Plaintiffs”) respectfully move the Butte County Superior Court (“Court) in limine pursuant to 26 Evidence Code sections 210, 350, and 352 for an order: 27 1. Precluding any evidence purporting to prove that defendant Kathryn Egan did 28 not have a fiduciary duty to plaintiff Erik Benik in negotiating and preparing the first two leases {3138729.DOCX;} 1 Plaintiffs’ Motion in Limine No. 5 1 between Benik and defendants 13290 Contractors Lane, LLC and Richard Bringgold, one of its 2 managers, (“Landlord Defendants”); and 3 2. Instructing all parties and their counsel not to comment regarding or make any 4 attempt to introduce evidence related to Kathryn Egan purportedly not having a fiduciary duty 5 to plaintiff Erik Benik in negotiating and preparing the firsttwo leases between Benik and the 6 Landlord Defendants. 7 This motion is made on the grounds that Egan admits that she participated in recruiting 8 Benik as a tenant and prepared the first and second leases on behalf of Benik and the 9 Landlord Plaintiffs in expectation of compensation. As a matter of law, this is enough to create 10 a fiduciary duty between Ms. Egan and Mr. Benik as to the negotiation and preparation of the 11 first and second leases. Any evidence or argument that Ms. Egan can somehow avoid the laws tobin chediak coleman grodin 12 governing her profession is irrelevant and creates a substantial danger of confusing the issues, 13 and misleading the jury. This motion is based upon this notice; the accompanying 14 memorandum of points and authorities; the accompanying compendium of evidence, 15 including the declaration of Louis A. Gonzalez, Jr. and the exhibits in that compendium ; any 16 supplemental memoranda of points and authorities as may hereafter be filed with the Court or LAW CORPORATION 17 stated orally at the hearing; all the papers and records on file in this action; and any oral weintraub 18 and/or documentary evidence that may be presented at the hearing. 19 20 Dated: April 8, 2021 Respectfully submitted, 21 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN Law Corporation 22 23 By: 24 Louis A. Gonzalez, Jr. Zack S. Thompson 25 Attorneys for Plaintiffs Erik Benik, Wishbone Ranch, LLC and James Heath 26 27 28 {3138729.DOCX;} 2 Plaintiffs’ Motion in Limine No. 5 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendant Kathryn Egan admits that she acted at the direction of plaintiff Erik Benik in 4 preparing the first and second leases between the parties. She did so after she went to solicit 5 him as a potential tenant for space she had heard would be a good fit for him. In the context 6 of a real estate transaction, this means that Egan was acting as Benik’s agent and, as a matter 7 of law, had fiduciary duties to him. Because this is a legal issue for the Court to decide, the 8 Court should preclude any evidence or argument attempting to contravene the controlling law. 9 II. PERTINENT FACTS 10 Defendant Kathryn Egan admits that she prepared the first and second lease between 11 Benik and the Landlord Defendants “as directed by Mr. Bringgold and Mr. Benik.” (Exh. B tobin chediak coleman grodin 12 (“Egan Depo.”) at 37:2–5, 73:20–22; see Exhs. A, F, H.) She also admits that she met with 13 Mr. Benik “[t]o discuss the possibility of a lease option” for the Property because “he might be 14 interested in moving [his business] over there” because she had heard that he need ed more 15 space. (Egan Depo. at 24:13–25:12.) She took what she learned from both Benik and 16 Bringgold at this meeting and prepared the first lease. (Egan Depo. at 28:22–29:2, 36:9–11, LAW CORPORATION 17 37:2–5.) She also participated in the negotiations for the second lease, in order to prepare its weintraub 18 terms. (Egan Depo. at 73:20–75:6.) 19 III. LAW AND ARGUMENT 20 Agents for buyers and lessees in real estate transactions have fiduciary duties to their 21 principals “of utmost care, integrity, honesty, and loyalty in dealings with the Buyer.” (Civ. 22 Code, § 2079.16; see also Civ. Code, § 2079.13, subd. (b) [“‘Buyer’ includes a vendee or 23 lessee of real property.”].) The term “‘Buyer’s agent’ means an agent who represents a buyer in 24 a real property transaction,” regardless of whether compensation is paid. (See Civ. Code, 25 § 2079.13, subd. (o); see also Civ. Code, § 2295 [defining agency]; Civ. Code, § 2079.19 26 [compensation not determinative of agency]; cf. Civ. Code, § 2079.13, subd. (f) [requiring 27 seller’s agent to act as agent for compensation].) “Whether a fiduciary duty exists is generally a 28 question of law.” (Marzec v. Public Employees’ Retirement System (2015) 236 Cal.App.4th {3138729.DOCX;} 3 Plaintiffs’ Motion in Limine No. 5 1 889, 915.) 2 Even beyond being an agent, Ms. Egan was acting as a real estate broker as defined in 3 the Business & Professions Code: 4 A real estate broker within the meaning of this part is a person who, for a compensation or in expectation of a compensation, regardless of the form or 5 time of payment, does or negotiates to do one or more of the following acts for another or others: 6 (a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers or buyers of, solicits or obtains listings of, or negotiates the purchase, 7 sale, or exchange of real property or a business opportunity. (b) Leases or rents or offers to lease or rent, or places for rent, or solicits 8 listings of places for rent, or solicits for prospective tenants, or negotiates the sale, purchase, or exchanges of leases on real property, or on a 9 business opportunity, or collects rents from real property, or improvements thereon, or from business opportunities. 10 ... 11 (Bus. & Prof. Code, § 10131, emphasis added.) tobin chediak coleman grodin 12 Egan admits that she prepared the first and second lease “as directed by Mr. Bringgold 13 and Mr. Benik.” (Egan Depo. at 37:2–5, 73:20–22.) She also admits that she met with Mr. 14 Benik “[t]o discuss the possibility of a lease option” (i.e. solicit) for the Property because “he 15 might be interested in moving [his business] over there” because she had heard that he needed 16 more space. (Egan Depo. at 24:13–25:12.) This is sufficient to make Egan Benik’s agent for LAW CORPORATION 17 those two leases as a matter of law. In fact, it is enough for Egan to be acting as a real estate weintraub 18 licensee for Benik, since she was soliciting and negotiating a lease for others, which is only 19 allowed to be done by real estate licenses and Ms. Egan admits she expected compensation 20 once she obtained her broker’s license. (Bus. & Prof. Code, § 10131; Egan Depo. at 35:4–11, 21 36:12–22.) Therefore, she was acting within her license and owed Benik a fiduciary duty. 22 Because Egan was acting on Benik’s behalf in preparing and negotiating the first and 23 second leases, she was his agent and owed him fiduciary duties of utmost care, integrity, 24 honesty, and loyalty as a matter of law. Any evidence or argument seeking to dispute this is 25 irrelevant to the issues before the jury and creates a substantial danger of confusing the issues 26 and misleading the jury. 27 IV. CONCLUSION 28 Plaintiffs respectfully request that the Court issue an order: {3138729.DOCX;} 4 Plaintiffs’ Motion in Limine No. 5 1 1. Precluding any evidence purporting to prove that defendant Kathryn Egan did 2 not have a fiduciary duty to plaintiff Erik Benik in negotiating and preparing the first two leases 3 between Benik and defendants 13290 Contractors Lane, LLC and Richard Bringgold, one of its 4 managers, (“Landlord Defendants”); and 5 2. Instructing all parties and their counsel not to comment regarding or make any 6 attempt to introduce evidence related to Kathryn Egan purportedly not having a fiduciary duty 7 to plaintiff Erik Benik in negotiating and preparing the firsttwo leases between Benik and the 8 Landlord Defendants. 9 10 Dated: April 8, 2021 Respectfully submitted, 11 W E INTRAUB TOBIN CHEDIAK COLEMAN GRODIN Law Corporation tobin chediak coleman grodin 12 13 By: 14 Louis A. Gonzalez, Jr. Zack S. Thompson 15 Attorneys for Plaintiffs Erik Benik, 16 Wishbone Ranch, LLC and James Heath LAW CORPORATION 17 weintraub 18 19 20 21 22 23 24 25 26 27 28 {3138729.DOCX;} 5 Plaintiffs’ Motion in Limine No. 5