Preview
1 Peter C. Catalanotti (SBN 230743)
peter.catalanotti@wilsonelser.com
2 Ryan O. Manuel (SBN 333022)
ryan.manuel@wilsonelser.com
3
WILSON, ELSER, MOSKOWITZ,
4 EDELMAN & DICKER LLP
525 Market Street, 17th Floor
5 San Francisco, CA 94105
Telephone: (415) 433-0990
6 Facsimile: (415) 434-1370
7 Attorneys for Defendants
Zachary Barnes
8 Lee & Associates Oakland Commercial Real Estate Services, Inc.
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF ALAMEDA
11
MARK BULWINKLE, CASE NO.: RG20066469
12 RES. NO. 950897307171
Plaintiffs,
13 ASSIGNED FOR ALL PURPOSES TO
v. THE HON. JAMES REILLY
14
ZACHARY BARNES, LEE & ASSOCIATES SEPARATE STATEMENT OF
15 OAKLAND COMMERCIAL REAL ESTATE UNDISPUTED MATERIAL FACTS IN
SERVICES, INC., AND DOES 1-100, SUPPORT OF DEFENDANTS’ MOTION
16 FOR SUMMARY
Defendants. JUDGMENT/ADJUDICATION
17
18 Hearing Date: April 13, 2022
Time: 3:00 pm
19 Department: 25
20 Complaint Filed: July 1, 2020
Trial Date: June 22, 2022
21 Judge: The Hon. James Reilly
22
23
24
25
26
27
28
1
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1 Defendants Zachary Barnes (“Barnes”) and Lee & Associates Oakland Commercial Real
2 Estate Services, Inc. (“Lee & Associates”) (collectively referred to as “Defendants”) submit the
3 following Separate Statement of Undisputed Material Facts in Support of the within Motion for
4 Summary Judgment/Summary Adjudication:
5 ISSUE 1— DEFENDANTS ARE IS ENTITLED TO JUDGMENT ON ALL CAUSES OF
6 ACTION BECAUSE DEFENDANTS DO NOT OWE A DUTY TO DISCLOSE ZONING
7 OR ADVISE PLAINTIFF ON THE PURCHASE PRICE HE SHOULD ACCEPT.
8
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
9 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
10
1. On March 26, 2019, Plaintiff/Seller and
11 Broker entered into an Exclusive
Authorization to Sell (“Listing Agreement”)
12 3230 Hannah Street in Oakland, CA
(“Property”). The Listing Agreement
13 expressly stated that the owner had sole
discretion to decide the listing price. Broker
14 was authorized to list the Property from
March 25, 2019 through September 25,
15 2019.
Supporting Evidence:
16 Evidence, Exhibit 5, March 26, 2019,
Exclusive Authorization To Sell (Barnes/Lee
17 & Associates 000057-58).
18 2. Broker created an advertisement for the
Property showing the zoning as HBX-2. The
19 Property was advertised for sale at $620,000.
20 Supporting Evidence:
Evidence, Exhibit 6, Marketing Flier for
21 3230 Hannah Street in the City of Oakland,
County of Alameda, California (Barnes/Lee
22 & Associates 000081).
23 3. On July 9, 2019, Plaintiff entered into a
purchase agreement (“PSA”) with “3230
24 Hannah LLC and/or assignee” for the
Property. Sean Kenmore signed on behalf of
25 3230 Hannah LLC. (3230 Hannah LLC and
Sean Kenmore are collectively referred to as
26 “Buyer”). The price was $598,500. The
PSA was conditioned upon buyer’s approval
27 of inspection reports that were to be ordered
within one business day of ratification of the
28
2
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 PSA.
4 Supporting Evidence:
Evidence, Exhibit 7, July 9, 2019, Purchase
5 Agreement (“PSA”) (Barnes/Lee &
Associates 000063-073).
6
4. On July 9, 2019, Plaintiff signed the Buyer’s
7 Vacant Land Inspection Advisory (“BIA”) in
which Plaintiff agreed that “Broker…does
8 not decide what price Buyer should pay or
Seller should accept…”
9
Supporting Evidence:
10 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
11 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
12
5. On August 8, 2019, Plaintiff and Buyer
13 entered into an Extension of Time
Addendum for the Property to extend the
14 close of escrow and the time for Buyer to
complete investigations including an
15 environmental investigation. The addendum
stated that “Buyer received a Phase One
16 report that recommended ‘further
investigation’ and will remove contingencies
17 upon satisfactory completion.”
18 Supporting Evidence:
Evidence, Exhibit 9, August 8, 2019,
19 Extension of Time Addendum (“ETA”)
(Barnes/Lee & Associates 000055).
20
6. Environmental testing showed the Property
21 had lead levels in the soil in excess of 10
times the limit to determine hazardous
22 classifications and showed that there was
hazardous waste.
23
Supporting Evidence:
24 Evidence, Exhibit 10, November 15, 2019,
Report of Limited Phase II Environmental
25 Site Assessment and Table 1, Soil Lead
Analytical Results (Barnes/Lee & Associates
26 000001-003, 000079).
27 7. Plaintiff agreed to a price reduction of
$298,500.00, because of hazardous materials
28
3
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 contamination.
4 Supporting Evidence:
Evidence, Exhibit 3, August 31, 2020,
5 Plaintiff’s Responses to Special
Interrogatories, Set One. Authenticated by
6 Evidence, Exhibit 1, Declaration of Peter C.
Catalanotti in Support Motion for Summary
7 Judgment/Adjudication, at ¶3.
8
9 8. Following the testing, Plaintiff and Buyer
engaged in direct negotiations on the sales
10 price. The buyer and Plaintiff/Seller cc’d
Defendant Barnes on their negotiations.
11 Plaintiff never spoke to Defendant Barnes
about lowering the purchase price and
12 Barnes never gave Plaintiff advice about
lowering the price.
13
Supporting Evidence:
14 Evidence, Exhibit 11, December 4-16, 2019,
Email thread between Sean Kenmore and
15 Mark Bulwinkle “Re.: Hannah” (Barnes/Lee
& Associates 000095-096).
16
Evidence, Ex. 17, Bulwinkle Depo., 30:5-11
17
9. On October 24, 2019, in an email from
18 Plaintiff directly to Buyer cc’ing
Defendant/Agent Barnes, Plaintiff wrote,
19 I spoke with [Barnes] and he told me that
you were prepared to offer 200k for the
20 property as is, but I regret that I can't
accept that number. If you can see
21 you[sic] way to 350k this may be easier
for me to accept.
22
Supporting Evidence:
23 Evidence, Exhibit 12, October 24, 2019,
Email thread between Mark Bulwinkle, Sean
24 Kenmore and Zack Barnes, “Re: Need to
discuss moving forward” (Barnes/Lee &
25 Associates 000098-099).
10. On December 16, 2019, Plaintiff ultimately
26 agreed to a final sales price of $300,000 and
signed an addendum to the purchase
27 agreement.
28
4
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 Supporting Evidence:
Evidence, Exhibit 13, December 16, 2019,
4 Addendum No. 2 to the PSA (Barnes/Lee &
Associates 000056).
5
11. On December 26, 2019, Plaintiff executed an
6 Assignment of Interest Instructions, prepared
by the title company, stating the following:
7 Undersigned Seller hereby accepts
Buyer/Assignee in place of Assignor as
8 the substituted party to said transaction,
and agrees with Assignee to be bound by
9 the terms of all instructions in all respects,
as if Assignee was originally named
10 therein as a party in place of
Buyer/Assignor. SELLER
11 ACKNOWLEDGES THAT SAID
ASSIGNMENT MAY OR MAY NOT BE
12 MADE AT A PROFIT.
13 Supporting Evidence:
Evidence, Exhibit 14, December 26, 2019,
14 Assignment of Interest Instructions, prepared
by Chicago Title Company (Barnes/Lee &
15 Associates 000082-083).
12. On December 26, 2019, Plaintiff also
16 executed a Buyer Assignment, prepared by
the title company, stating the following:
17
Assignor now wants to assign its position
18 to Assignee; Assignee desires to accept
such assignment and Seller will consent to
19 such assignment.
Supporting Evidence:
20 Evidence, Exhibit 15, December 26, 2019,
Buyer Assignment, prepared by Chicago
21 Title Company (Barnes/Lee & Associates
000084-085).
22
13. On December 31, 2019, escrow closed.
23 Supporting Evidence:
Evidence, Exhibit 4, Declaration of Zachary
24 Barnes in Support of Motion for Summary
Judgment/Adjudication, at ¶ 12.
25
14. On December 31, 2019, Plaintiff wrote to
26 Defendant Barnes:
Thanks, Zack. Maybe we will work
27 together again sometime as I and Oakland
continue to change. We all did OK. M.
28
5
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 Supporting Evidence:
Evidence, Exhibit 16, December 31, 2019,
4 Email Thread between Mark Bulwinkle and
Zack Barnes “Re: FW: Congrats! Escrow#
5 FWAC-5841901022-Property Address: 3230
& 3240 Hannah Street, Oakland, CA 94608”
6 (Barnes/Lee & Associates 000093-094).
7 15. The purchase agreement signed by Plaintiff
and Buyer specifically states that neither
8 Plaintiff/Seller nor the Buyer shall rely on
Broker for issues involving the zoning:
9 Buyer and Seller Acknowledge and agree
that Broker…(vi) Shall not be responsible
10 for inspecting public records or permits
concerning the title or use of Property…”
11
Supporting Evidence:
12 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
13 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
14
16. In the Listing Agreement, Plaintiff agreed
15 that:
16 The price and terms of the sale(s) shall be
as follows: TBD, and subject to Owners
17 sole discretion and approval. (Lee 57).
Supporting Evidence:
18 Evidence, Exhibit 5, March 26, 2019,
Exclusive Authorization To Sell (Barnes/Lee
19 & Associates 000057-58).
20 17. Plaintiff/Seller and Buyer expressly
agreed—
21 Buyer and Seller Acknowledge and agree that
Broker (i) Does not decide what price Buyer
22 should pay or Seller should accept…” (Lee
74-75)
23
Supporting Evidence:
24 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
25 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
26
27
///
28
6
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1 ISSUE 2—DEFENDANTS ARE IS ENTITLED TO SUMMARY ADJUDICATION ON
2 THE FIRST CAUSE OF ACTION FOR NEGLIGENCE BECAUSE DEFENDANTS DO
3 NOT OWE A DUTY TO DISCLOSE ZONING OR ADVISE PLAINTIFF ON THE
4 PURCHASE PRICE HE SHOULD ACCEPT.
5
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
6 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
7
1. On March 26, 2019, Plaintiff/Seller and
8 Broker entered into an Exclusive
Authorization to Sell (“Listing Agreement”)
9 3230 Hannah Street in Oakland, CA
(“Property”). The Listing Agreement
10 expressly stated that the owner had sole
discretion to decide the listing price. Broker
11 was authorized to list the Property from
March 25, 2019 through September 25,
12 2019.
Supporting Evidence:
13 Evidence, Exhibit 5, March 26, 2019,
Exclusive Authorization To Sell (Barnes/Lee
14 & Associates 000057-58).
15 2. Broker created an advertisement for the
Property showing the zoning as HBX-2. The
16 Property was advertised for sale at $620,000.
17 Supporting Evidence:
Evidence, Exhibit 6, Marketing Flier for
18 3230 Hannah Street in the City of Oakland,
County of Alameda, California (Barnes/Lee
19 & Associates 000081).
20 3. On July 9, 2019, Plaintiff entered into a
purchase agreement (“PSA”) with “3230
21 Hannah LLC and/or assignee” for the
Property. Sean Kenmore signed on behalf of
22 3230 Hannah LLC. (3230 Hannah LLC and
Sean Kenmore are collectively referred to as
23 “Buyer”). The price was $598,500. The
PSA was conditioned upon buyer’s approval
24 of inspection reports that were to be ordered
within one business day of ratification of the
25 PSA.
26 Supporting Evidence:
Evidence, Exhibit 7, July 9, 2019, Purchase
27 Agreement (“PSA”) (Barnes/Lee &
Associates 000063-073).
28
7
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3
4. On July 9, 2019, Plaintiff signed the Buyer’s
4 Vacant Land Inspection Advisory (“BIA”) in
which Plaintiff agreed that “Broker…does
5 not decide what price Buyer should pay or
Seller should accept…”
6 Supporting Evidence:
7 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
8 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
9
5. On August 8, 2019, Plaintiff and Buyer
10 entered into an Extension of Time
Addendum for the Property to extend the
11 close of escrow and the time for Buyer to
complete investigations including an
12 environmental investigation. The addendum
stated that “Buyer received a Phase One
13 report that recommended ‘further
investigation’ and will remove contingencies
14 upon satisfactory completion.”
Supporting Evidence:
15
Evidence, Exhibit 9, August 8, 2019,
16 Extension of Time Addendum (“ETA”)
(Barnes/Lee & Associates 000055).
17
6. Environmental testing showed the Property
18 had lead levels in the soil in excess of 10
times the limit to determine hazardous
19 classifications and showed that there was
hazardous waste.
20 Supporting Evidence:
21 Evidence, Exhibit 10, November 15, 2019,
Report of Limited Phase II Environmental
22 Site Assessment and Table 1, Soil Lead
Analytical Results (Barnes/Lee & Associates
23 000001-003, 000079).
24 7. Plaintiff agreed to a price reduction of
$298,500.00, because of hazardous materials
25 contamination.
Supporting Evidence:
26
Evidence, Exhibit 3, August 31, 2020,
27 Plaintiff’s Responses to Special
Interrogatories, Set One. Authenticated by
28 Evidence, Exhibit 1, Declaration of Peter C.
8
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 Catalanotti in Support Motion for Summary
Judgment/Adjudication, at ¶3.
4
5
8. Following the testing, Plaintiff and Buyer
6 engaged in direct negotiations on the sales
price. The buyer and Plaintiff/Seller cc’d
7 Defendant Barnes on their negotiations.
Plaintiff never spoke to Defendant Barnes
8 about lowering the purchase price and
Barnes never gave Plaintiff advice about
9 lowering the price.
10 Supporting Evidence:
Evidence, Exhibit 11, December 4-16, 2019,
11 Email thread between Sean Kenmore and
Mark Bulwinkle “Re.: Hannah” (Barnes/Lee
12 & Associates 000095-096).
13 Evidence, Ex. 17, Bulwinkle Depo., 30:5-11
14 9. On October 24, 2019, in an email from
Plaintiff directly to Buyer cc’ing
15 Defendant/Agent Barnes, Plaintiff wrote,
I spoke with [Barnes] and he told me that
16 you were prepared to offer 200k for the
property as is, but I regret that I can't
17 accept that number. If you can see
you[sic] way to 350k this may be easier
18 for me to accept.
19 Supporting Evidence:
Evidence, Exhibit 12, October 24, 2019,
20 Email thread between Mark Bulwinkle, Sean
Kenmore and Zack Barnes, “Re: Need to
21 discuss moving forward” (Barnes/Lee &
Associates 000098-099).
22 10. On December 16, 2019, Plaintiff ultimately
agreed to a final sales price of $300,000 and
23 signed an addendum to the purchase
agreement.
24
Supporting Evidence:
25 Evidence, Exhibit 13, December 16, 2019,
Addendum No. 2 to the PSA (Barnes/Lee &
26 Associates 000056).
11. On December 26, 2019, Plaintiff executed an
27 Assignment of Interest Instructions, prepared
by the title company, stating the following:
28
9
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 Undersigned Seller hereby accepts
Buyer/Assignee in place of Assignor as
4 the substituted party to said transaction,
and agrees with Assignee to be bound by
5 the terms of all instructions in all respects,
as if Assignee was originally named
6 therein as a party in place of
Buyer/Assignor. SELLER
7 ACKNOWLEDGES THAT SAID
ASSIGNMENT MAY OR MAY NOT BE
8 MADE AT A PROFIT.
9 Supporting Evidence:
Evidence, Exhibit 14, December 26, 2019,
10 Assignment of Interest Instructions, prepared
by Chicago Title Company (Barnes/Lee &
11 Associates 000082-083).
12. On December 26, 2019, Plaintiff also
12 executed a Buyer Assignment, prepared by
the title company, stating the following:
13
Assignor now wants to assign its position
14 to Assignee; Assignee desires to accept
such assignment and Seller will consent to
15 such assignment.
Supporting Evidence:
16 Evidence, Exhibit 15, December 26, 2019,
Buyer Assignment, prepared by Chicago
17 Title Company (Barnes/Lee & Associates
000084-085).
18
13. On December 31, 2019, escrow closed.
19 Supporting Evidence:
Evidence, Exhibit 4, Declaration of Zachary
20 Barnes in Support of Motion for Summary
Judgment/Adjudication, at ¶ 12.
21
14. On December 31, 2019, Plaintiff wrote to
22 Defendant Barnes:
Thanks, Zack. Maybe we will work
23 together again sometime as I and Oakland
continue to change. We all did OK. M.
24
Supporting Evidence:
25 Evidence, Exhibit 16, December 31, 2019,
Email Thread between Mark Bulwinkle and
26 Zack Barnes “Re: FW: Congrats! Escrow#
FWAC-5841901022-Property Address: 3230
27 & 3240 Hannah Street, Oakland, CA 94608”
(Barnes/Lee & Associates 000093-094).
28 15. The purchase agreement signed by Plaintiff
10
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 and Buyer specifically states that neither
Plaintiff/Seller nor the Buyer shall rely on
4 Broker for issues involving the zoning:
5 Buyer and Seller Acknowledge and agree
that Broker…(vi) Shall not be responsible
6 for inspecting public records or permits
concerning the title or use of Property…”
7 Supporting Evidence:
8 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
9 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
10
16. In the Listing Agreement, Plaintiff agreed
11 that:
The price and terms of the sale(s) shall be
12 as follows: TBD, and subject to Owners
sole discretion and approval. (Lee 57).
13
Supporting Evidence:
14 Evidence, Exhibit 5, March 26, 2019,
Exclusive Authorization To Sell (Barnes/Lee
15 & Associates 000057-58).
17. Plaintiff/Seller and Buyer expressly
16 agreed—
17 Buyer and Seller Acknowledge and agree that
Broker (i) Does not decide what price Buyer
18 should pay or Seller should accept…” (Lee
74-75)
19 Supporting Evidence:
20 Evidence, Exhibit 8, July 9, 2019, Plaintiff
signed the Buyer’s Vacant Land Inspection
21 Advisory (“BIA”) (Barnes/Lee & Associates
000074-075).
22
23 ISSUE 3---DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON THE
24 SECOND CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY BECAUSE
25 DEFENDANTS DO NOT OWE A DUTY TO DISCLOSE ZONING OR ADVISE
26 PLAINTIFF ON THE PURCHASE PRICE HE SHOULD ACCEPT.
27
28
11
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3
1. On March 26, 2019, Plaintiff/Seller and
4 Broker entered into an Exclusive
Authorization to Sell (“Listing Agreement”)
5 3230 Hannah Street in Oakland, CA
(“Property”). The Listing Agreement
6 expressly stated that the owner had sole
discretion to decide the listing price. Broker
7 was authorized to list the Property from
March 25, 2019 through September 25,
8 2019.
Supporting Evidence:
9 Evidence, Exhibit 5, March 26, 2019,
Exclusive Authorization To Sell (Barnes/Lee
10 & Associates 000057-58).
11 2. Broker created an advertisement for the
Property showing the zoning as HBX-2. The
12 Property was advertised for sale at $620,000.
13 Supporting Evidence:
Evidence, Exhibit 6, Marketing Flier for
14 3230 Hannah Street in the City of Oakland,
County of Alameda, California (Barnes/Lee
15 & Associates 000081).
16 3. On July 9, 2019, Plaintiff entered into a
purchase agreement (“PSA”) with “3230
17 Hannah LLC and/or assignee” for the
Property. Sean Kenmore signed on behalf of
18 3230 Hannah LLC. (3230 Hannah LLC and
Sean Kenmore are collectively referred to as
19 “Buyer”). The price was $598,500. The
PSA was conditioned upon buyer’s approval
20 of inspection reports that were to be ordered
within one business day of ratification of the
21 PSA.
22 Supporting Evidence:
Evidence, Exhibit 7, July 9, 2019, Purchase
23 Agreement (“PSA”) (Barnes/Lee &
Associates 000063-073).
24
4. On July 9, 2019, Plaintiff signed the Buyer’s
25 Vacant Land Inspection Advisory (“BIA”) in
which Plaintiff agreed that “Broker…does
26 not decide what price Buyer should pay or
Seller should accept…”
27
Supporting Evidence:
28 Evidence, Exhibit 8, July 9, 2019, Plaintiff
12
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 signed the Buyer’s Vacant Land Inspection
Advisory (“BIA”) (Barnes/Lee & Associates
4 000074-075).
5 5. On August 8, 2019, Plaintiff and Buyer
entered into an Extension of Time
6 Addendum for the Property to extend the
close of escrow and the time for Buyer to
7 complete investigations including an
environmental investigation. The addendum
8 stated that “Buyer received a Phase One
report that recommended ‘further
9 investigation’ and will remove contingencies
upon satisfactory completion.”
10
Supporting Evidence:
11 Evidence, Exhibit 9, August 8, 2019,
Extension of Time Addendum (“ETA”)
12 (Barnes/Lee & Associates 000055).
13 6. Environmental testing showed the Property
had lead levels in the soil in excess of 10
14 times the limit to determine hazardous
classifications and showed that there was
15 hazardous waste.
16 Supporting Evidence:
Evidence, Exhibit 10, November 15, 2019,
17 Report of Limited Phase II Environmental
Site Assessment and Table 1, Soil Lead
18 Analytical Results (Barnes/Lee & Associates
000001-003, 000079).
19
7. Plaintiff agreed to a price reduction of
20 $298,500.00, because of hazardous materials
contamination.
21
Supporting Evidence:
22 Evidence, Exhibit 3, August 31, 2020,
Plaintiff’s Responses to Special
23 Interrogatories, Set One. Authenticated by
Evidence, Exhibit 1, Declaration of Peter C.
24 Catalanotti in Support Motion for Summary
Judgment/Adjudication, at ¶3.
25
26
8. Following the testing, Plaintiff and Buyer
27 engaged in direct negotiations on the sales
price. The buyer and Plaintiff/Seller cc’d
28 Defendant Barnes on their negotiations.
13
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
262434834v.7
1
MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE
2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
3 Plaintiff never spoke to Defendant Barnes
about lowering the purchase price and
4 Barnes never gave Plaintiff advice about
lowering the price.
5
Supporting Evidence:
6 Evidence, Exhibit 11, December 4-16, 2019,
Email thread between Sean Kenmore and
7 Mark Bulwinkle “Re.: Hannah” (Barnes/Lee
& Associates 000095-096).
8
Evidence, Ex. 17, Bulwinkle Depo., 30:5-11
9
9. On October 24, 2019, in an email from
10 Plaintiff directly to Buyer cc’ing
Defendant/Agent Barnes, Plaintiff wrote,
11 I spoke with [Barnes] and he told me that
you were prepared to offer 200k for the
12 property as is, but I regret that I can't
accept that number. If you can see
13 you[sic] way to 350k this may be easier
for me to accept.
14
Supporting Evidence:
15
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1 Peter C. Catalanotti (SBN 230743) peter.catalanotti@wilsonelser.com 2 Ryan O. Manuel (SBN 333022) ryan.manuel@wilsonelser.com 3 WILSON, ELSER, MOSKOWITZ, 4 EDELMAN & DICKER LLP 525 Market Street, 17th Floor 5 San Francisco, CA 94105 Telephone: (415) 433-0990 6 Facsimile: (415) 434-1370 7 Attorneys for Defendants Zachary Barnes 8 Lee & Associates Oakland Commercial Real Estate Services, Inc. 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF ALAMEDA 11 MARK BULWINKLE, CASE NO.: RG20066469 12 RES. NO. 950897307171 Plaintiffs, 13 ASSIGNED FOR ALL PURPOSES TO v. THE HON. JAMES REILLY 14 ZACHARY BARNES, LEE & ASSOCIATES SEPARATE STATEMENT OF 15 OAKLAND COMMERCIAL REAL ESTATE UNDISPUTED MATERIAL FACTS IN SERVICES, INC., AND DOES 1-100, SUPPORT OF DEFENDANTS’ MOTION 16 FOR SUMMARY Defendants. JUDGMENT/ADJUDICATION 17 18 Hearing Date: April 13, 2022 Time: 3:00 pm 19 Department: 25 20 Complaint Filed: July 1, 2020 Trial Date: June 22, 2022 21 Judge: The Hon. James Reilly 22 23 24 25 26 27 28 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 Defendants Zachary Barnes (“Barnes”) and Lee & Associates Oakland Commercial Real 2 Estate Services, Inc. (“Lee & Associates”) (collectively referred to as “Defendants”) submit the 3 following Separate Statement of Undisputed Material Facts in Support of the within Motion for 4 Summary Judgment/Summary Adjudication: 5 ISSUE 1— DEFENDANTS ARE IS ENTITLED TO JUDGMENT ON ALL CAUSES OF 6 ACTION BECAUSE DEFENDANTS DO NOT OWE A DUTY TO DISCLOSE ZONING 7 OR ADVISE PLAINTIFF ON THE PURCHASE PRICE HE SHOULD ACCEPT. 8 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 9 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 10 1. On March 26, 2019, Plaintiff/Seller and 11 Broker entered into an Exclusive Authorization to Sell (“Listing Agreement”) 12 3230 Hannah Street in Oakland, CA (“Property”). The Listing Agreement 13 expressly stated that the owner had sole discretion to decide the listing price. Broker 14 was authorized to list the Property from March 25, 2019 through September 25, 15 2019. Supporting Evidence: 16 Evidence, Exhibit 5, March 26, 2019, Exclusive Authorization To Sell (Barnes/Lee 17 & Associates 000057-58). 18 2. Broker created an advertisement for the Property showing the zoning as HBX-2. The 19 Property was advertised for sale at $620,000. 20 Supporting Evidence: Evidence, Exhibit 6, Marketing Flier for 21 3230 Hannah Street in the City of Oakland, County of Alameda, California (Barnes/Lee 22 & Associates 000081). 23 3. On July 9, 2019, Plaintiff entered into a purchase agreement (“PSA”) with “3230 24 Hannah LLC and/or assignee” for the Property. Sean Kenmore signed on behalf of 25 3230 Hannah LLC. (3230 Hannah LLC and Sean Kenmore are collectively referred to as 26 “Buyer”). The price was $598,500. The PSA was conditioned upon buyer’s approval 27 of inspection reports that were to be ordered within one business day of ratification of the 28 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 PSA. 4 Supporting Evidence: Evidence, Exhibit 7, July 9, 2019, Purchase 5 Agreement (“PSA”) (Barnes/Lee & Associates 000063-073). 6 4. On July 9, 2019, Plaintiff signed the Buyer’s 7 Vacant Land Inspection Advisory (“BIA”) in which Plaintiff agreed that “Broker…does 8 not decide what price Buyer should pay or Seller should accept…” 9 Supporting Evidence: 10 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 11 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 12 5. On August 8, 2019, Plaintiff and Buyer 13 entered into an Extension of Time Addendum for the Property to extend the 14 close of escrow and the time for Buyer to complete investigations including an 15 environmental investigation. The addendum stated that “Buyer received a Phase One 16 report that recommended ‘further investigation’ and will remove contingencies 17 upon satisfactory completion.” 18 Supporting Evidence: Evidence, Exhibit 9, August 8, 2019, 19 Extension of Time Addendum (“ETA”) (Barnes/Lee & Associates 000055). 20 6. Environmental testing showed the Property 21 had lead levels in the soil in excess of 10 times the limit to determine hazardous 22 classifications and showed that there was hazardous waste. 23 Supporting Evidence: 24 Evidence, Exhibit 10, November 15, 2019, Report of Limited Phase II Environmental 25 Site Assessment and Table 1, Soil Lead Analytical Results (Barnes/Lee & Associates 26 000001-003, 000079). 27 7. Plaintiff agreed to a price reduction of $298,500.00, because of hazardous materials 28 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 contamination. 4 Supporting Evidence: Evidence, Exhibit 3, August 31, 2020, 5 Plaintiff’s Responses to Special Interrogatories, Set One. Authenticated by 6 Evidence, Exhibit 1, Declaration of Peter C. Catalanotti in Support Motion for Summary 7 Judgment/Adjudication, at ¶3. 8 9 8. Following the testing, Plaintiff and Buyer engaged in direct negotiations on the sales 10 price. The buyer and Plaintiff/Seller cc’d Defendant Barnes on their negotiations. 11 Plaintiff never spoke to Defendant Barnes about lowering the purchase price and 12 Barnes never gave Plaintiff advice about lowering the price. 13 Supporting Evidence: 14 Evidence, Exhibit 11, December 4-16, 2019, Email thread between Sean Kenmore and 15 Mark Bulwinkle “Re.: Hannah” (Barnes/Lee & Associates 000095-096). 16 Evidence, Ex. 17, Bulwinkle Depo., 30:5-11 17 9. On October 24, 2019, in an email from 18 Plaintiff directly to Buyer cc’ing Defendant/Agent Barnes, Plaintiff wrote, 19 I spoke with [Barnes] and he told me that you were prepared to offer 200k for the 20 property as is, but I regret that I can't accept that number. If you can see 21 you[sic] way to 350k this may be easier for me to accept. 22 Supporting Evidence: 23 Evidence, Exhibit 12, October 24, 2019, Email thread between Mark Bulwinkle, Sean 24 Kenmore and Zack Barnes, “Re: Need to discuss moving forward” (Barnes/Lee & 25 Associates 000098-099). 10. On December 16, 2019, Plaintiff ultimately 26 agreed to a final sales price of $300,000 and signed an addendum to the purchase 27 agreement. 28 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 Supporting Evidence: Evidence, Exhibit 13, December 16, 2019, 4 Addendum No. 2 to the PSA (Barnes/Lee & Associates 000056). 5 11. On December 26, 2019, Plaintiff executed an 6 Assignment of Interest Instructions, prepared by the title company, stating the following: 7 Undersigned Seller hereby accepts Buyer/Assignee in place of Assignor as 8 the substituted party to said transaction, and agrees with Assignee to be bound by 9 the terms of all instructions in all respects, as if Assignee was originally named 10 therein as a party in place of Buyer/Assignor. SELLER 11 ACKNOWLEDGES THAT SAID ASSIGNMENT MAY OR MAY NOT BE 12 MADE AT A PROFIT. 13 Supporting Evidence: Evidence, Exhibit 14, December 26, 2019, 14 Assignment of Interest Instructions, prepared by Chicago Title Company (Barnes/Lee & 15 Associates 000082-083). 12. On December 26, 2019, Plaintiff also 16 executed a Buyer Assignment, prepared by the title company, stating the following: 17 Assignor now wants to assign its position 18 to Assignee; Assignee desires to accept such assignment and Seller will consent to 19 such assignment. Supporting Evidence: 20 Evidence, Exhibit 15, December 26, 2019, Buyer Assignment, prepared by Chicago 21 Title Company (Barnes/Lee & Associates 000084-085). 22 13. On December 31, 2019, escrow closed. 23 Supporting Evidence: Evidence, Exhibit 4, Declaration of Zachary 24 Barnes in Support of Motion for Summary Judgment/Adjudication, at ¶ 12. 25 14. On December 31, 2019, Plaintiff wrote to 26 Defendant Barnes: Thanks, Zack. Maybe we will work 27 together again sometime as I and Oakland continue to change. We all did OK. M. 28 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 Supporting Evidence: Evidence, Exhibit 16, December 31, 2019, 4 Email Thread between Mark Bulwinkle and Zack Barnes “Re: FW: Congrats! Escrow# 5 FWAC-5841901022-Property Address: 3230 & 3240 Hannah Street, Oakland, CA 94608” 6 (Barnes/Lee & Associates 000093-094). 7 15. The purchase agreement signed by Plaintiff and Buyer specifically states that neither 8 Plaintiff/Seller nor the Buyer shall rely on Broker for issues involving the zoning: 9 Buyer and Seller Acknowledge and agree that Broker…(vi) Shall not be responsible 10 for inspecting public records or permits concerning the title or use of Property…” 11 Supporting Evidence: 12 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 13 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 14 16. In the Listing Agreement, Plaintiff agreed 15 that: 16 The price and terms of the sale(s) shall be as follows: TBD, and subject to Owners 17 sole discretion and approval. (Lee 57). Supporting Evidence: 18 Evidence, Exhibit 5, March 26, 2019, Exclusive Authorization To Sell (Barnes/Lee 19 & Associates 000057-58). 20 17. Plaintiff/Seller and Buyer expressly agreed— 21 Buyer and Seller Acknowledge and agree that Broker (i) Does not decide what price Buyer 22 should pay or Seller should accept…” (Lee 74-75) 23 Supporting Evidence: 24 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 25 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 26 27 /// 28 6 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 ISSUE 2—DEFENDANTS ARE IS ENTITLED TO SUMMARY ADJUDICATION ON 2 THE FIRST CAUSE OF ACTION FOR NEGLIGENCE BECAUSE DEFENDANTS DO 3 NOT OWE A DUTY TO DISCLOSE ZONING OR ADVISE PLAINTIFF ON THE 4 PURCHASE PRICE HE SHOULD ACCEPT. 5 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 6 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 7 1. On March 26, 2019, Plaintiff/Seller and 8 Broker entered into an Exclusive Authorization to Sell (“Listing Agreement”) 9 3230 Hannah Street in Oakland, CA (“Property”). The Listing Agreement 10 expressly stated that the owner had sole discretion to decide the listing price. Broker 11 was authorized to list the Property from March 25, 2019 through September 25, 12 2019. Supporting Evidence: 13 Evidence, Exhibit 5, March 26, 2019, Exclusive Authorization To Sell (Barnes/Lee 14 & Associates 000057-58). 15 2. Broker created an advertisement for the Property showing the zoning as HBX-2. The 16 Property was advertised for sale at $620,000. 17 Supporting Evidence: Evidence, Exhibit 6, Marketing Flier for 18 3230 Hannah Street in the City of Oakland, County of Alameda, California (Barnes/Lee 19 & Associates 000081). 20 3. On July 9, 2019, Plaintiff entered into a purchase agreement (“PSA”) with “3230 21 Hannah LLC and/or assignee” for the Property. Sean Kenmore signed on behalf of 22 3230 Hannah LLC. (3230 Hannah LLC and Sean Kenmore are collectively referred to as 23 “Buyer”). The price was $598,500. The PSA was conditioned upon buyer’s approval 24 of inspection reports that were to be ordered within one business day of ratification of the 25 PSA. 26 Supporting Evidence: Evidence, Exhibit 7, July 9, 2019, Purchase 27 Agreement (“PSA”) (Barnes/Lee & Associates 000063-073). 28 7 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 4. On July 9, 2019, Plaintiff signed the Buyer’s 4 Vacant Land Inspection Advisory (“BIA”) in which Plaintiff agreed that “Broker…does 5 not decide what price Buyer should pay or Seller should accept…” 6 Supporting Evidence: 7 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 8 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 9 5. On August 8, 2019, Plaintiff and Buyer 10 entered into an Extension of Time Addendum for the Property to extend the 11 close of escrow and the time for Buyer to complete investigations including an 12 environmental investigation. The addendum stated that “Buyer received a Phase One 13 report that recommended ‘further investigation’ and will remove contingencies 14 upon satisfactory completion.” Supporting Evidence: 15 Evidence, Exhibit 9, August 8, 2019, 16 Extension of Time Addendum (“ETA”) (Barnes/Lee & Associates 000055). 17 6. Environmental testing showed the Property 18 had lead levels in the soil in excess of 10 times the limit to determine hazardous 19 classifications and showed that there was hazardous waste. 20 Supporting Evidence: 21 Evidence, Exhibit 10, November 15, 2019, Report of Limited Phase II Environmental 22 Site Assessment and Table 1, Soil Lead Analytical Results (Barnes/Lee & Associates 23 000001-003, 000079). 24 7. Plaintiff agreed to a price reduction of $298,500.00, because of hazardous materials 25 contamination. Supporting Evidence: 26 Evidence, Exhibit 3, August 31, 2020, 27 Plaintiff’s Responses to Special Interrogatories, Set One. Authenticated by 28 Evidence, Exhibit 1, Declaration of Peter C. 8 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 Catalanotti in Support Motion for Summary Judgment/Adjudication, at ¶3. 4 5 8. Following the testing, Plaintiff and Buyer 6 engaged in direct negotiations on the sales price. The buyer and Plaintiff/Seller cc’d 7 Defendant Barnes on their negotiations. Plaintiff never spoke to Defendant Barnes 8 about lowering the purchase price and Barnes never gave Plaintiff advice about 9 lowering the price. 10 Supporting Evidence: Evidence, Exhibit 11, December 4-16, 2019, 11 Email thread between Sean Kenmore and Mark Bulwinkle “Re.: Hannah” (Barnes/Lee 12 & Associates 000095-096). 13 Evidence, Ex. 17, Bulwinkle Depo., 30:5-11 14 9. On October 24, 2019, in an email from Plaintiff directly to Buyer cc’ing 15 Defendant/Agent Barnes, Plaintiff wrote, I spoke with [Barnes] and he told me that 16 you were prepared to offer 200k for the property as is, but I regret that I can't 17 accept that number. If you can see you[sic] way to 350k this may be easier 18 for me to accept. 19 Supporting Evidence: Evidence, Exhibit 12, October 24, 2019, 20 Email thread between Mark Bulwinkle, Sean Kenmore and Zack Barnes, “Re: Need to 21 discuss moving forward” (Barnes/Lee & Associates 000098-099). 22 10. On December 16, 2019, Plaintiff ultimately agreed to a final sales price of $300,000 and 23 signed an addendum to the purchase agreement. 24 Supporting Evidence: 25 Evidence, Exhibit 13, December 16, 2019, Addendum No. 2 to the PSA (Barnes/Lee & 26 Associates 000056). 11. On December 26, 2019, Plaintiff executed an 27 Assignment of Interest Instructions, prepared by the title company, stating the following: 28 9 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 Undersigned Seller hereby accepts Buyer/Assignee in place of Assignor as 4 the substituted party to said transaction, and agrees with Assignee to be bound by 5 the terms of all instructions in all respects, as if Assignee was originally named 6 therein as a party in place of Buyer/Assignor. SELLER 7 ACKNOWLEDGES THAT SAID ASSIGNMENT MAY OR MAY NOT BE 8 MADE AT A PROFIT. 9 Supporting Evidence: Evidence, Exhibit 14, December 26, 2019, 10 Assignment of Interest Instructions, prepared by Chicago Title Company (Barnes/Lee & 11 Associates 000082-083). 12. On December 26, 2019, Plaintiff also 12 executed a Buyer Assignment, prepared by the title company, stating the following: 13 Assignor now wants to assign its position 14 to Assignee; Assignee desires to accept such assignment and Seller will consent to 15 such assignment. Supporting Evidence: 16 Evidence, Exhibit 15, December 26, 2019, Buyer Assignment, prepared by Chicago 17 Title Company (Barnes/Lee & Associates 000084-085). 18 13. On December 31, 2019, escrow closed. 19 Supporting Evidence: Evidence, Exhibit 4, Declaration of Zachary 20 Barnes in Support of Motion for Summary Judgment/Adjudication, at ¶ 12. 21 14. On December 31, 2019, Plaintiff wrote to 22 Defendant Barnes: Thanks, Zack. Maybe we will work 23 together again sometime as I and Oakland continue to change. We all did OK. M. 24 Supporting Evidence: 25 Evidence, Exhibit 16, December 31, 2019, Email Thread between Mark Bulwinkle and 26 Zack Barnes “Re: FW: Congrats! Escrow# FWAC-5841901022-Property Address: 3230 27 & 3240 Hannah Street, Oakland, CA 94608” (Barnes/Lee & Associates 000093-094). 28 15. The purchase agreement signed by Plaintiff 10 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 and Buyer specifically states that neither Plaintiff/Seller nor the Buyer shall rely on 4 Broker for issues involving the zoning: 5 Buyer and Seller Acknowledge and agree that Broker…(vi) Shall not be responsible 6 for inspecting public records or permits concerning the title or use of Property…” 7 Supporting Evidence: 8 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 9 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 10 16. In the Listing Agreement, Plaintiff agreed 11 that: The price and terms of the sale(s) shall be 12 as follows: TBD, and subject to Owners sole discretion and approval. (Lee 57). 13 Supporting Evidence: 14 Evidence, Exhibit 5, March 26, 2019, Exclusive Authorization To Sell (Barnes/Lee 15 & Associates 000057-58). 17. Plaintiff/Seller and Buyer expressly 16 agreed— 17 Buyer and Seller Acknowledge and agree that Broker (i) Does not decide what price Buyer 18 should pay or Seller should accept…” (Lee 74-75) 19 Supporting Evidence: 20 Evidence, Exhibit 8, July 9, 2019, Plaintiff signed the Buyer’s Vacant Land Inspection 21 Advisory (“BIA”) (Barnes/Lee & Associates 000074-075). 22 23 ISSUE 3---DEFENDANTS ARE ENTITLED TO SUMMARY ADJUDICATION ON THE 24 SECOND CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY BECAUSE 25 DEFENDANTS DO NOT OWE A DUTY TO DISCLOSE ZONING OR ADVISE 26 PLAINTIFF ON THE PURCHASE PRICE HE SHOULD ACCEPT. 27 28 11 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 1. On March 26, 2019, Plaintiff/Seller and 4 Broker entered into an Exclusive Authorization to Sell (“Listing Agreement”) 5 3230 Hannah Street in Oakland, CA (“Property”). The Listing Agreement 6 expressly stated that the owner had sole discretion to decide the listing price. Broker 7 was authorized to list the Property from March 25, 2019 through September 25, 8 2019. Supporting Evidence: 9 Evidence, Exhibit 5, March 26, 2019, Exclusive Authorization To Sell (Barnes/Lee 10 & Associates 000057-58). 11 2. Broker created an advertisement for the Property showing the zoning as HBX-2. The 12 Property was advertised for sale at $620,000. 13 Supporting Evidence: Evidence, Exhibit 6, Marketing Flier for 14 3230 Hannah Street in the City of Oakland, County of Alameda, California (Barnes/Lee 15 & Associates 000081). 16 3. On July 9, 2019, Plaintiff entered into a purchase agreement (“PSA”) with “3230 17 Hannah LLC and/or assignee” for the Property. Sean Kenmore signed on behalf of 18 3230 Hannah LLC. (3230 Hannah LLC and Sean Kenmore are collectively referred to as 19 “Buyer”). The price was $598,500. The PSA was conditioned upon buyer’s approval 20 of inspection reports that were to be ordered within one business day of ratification of the 21 PSA. 22 Supporting Evidence: Evidence, Exhibit 7, July 9, 2019, Purchase 23 Agreement (“PSA”) (Barnes/Lee & Associates 000063-073). 24 4. On July 9, 2019, Plaintiff signed the Buyer’s 25 Vacant Land Inspection Advisory (“BIA”) in which Plaintiff agreed that “Broker…does 26 not decide what price Buyer should pay or Seller should accept…” 27 Supporting Evidence: 28 Evidence, Exhibit 8, July 9, 2019, Plaintiff 12 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 signed the Buyer’s Vacant Land Inspection Advisory (“BIA”) (Barnes/Lee & Associates 4 000074-075). 5 5. On August 8, 2019, Plaintiff and Buyer entered into an Extension of Time 6 Addendum for the Property to extend the close of escrow and the time for Buyer to 7 complete investigations including an environmental investigation. The addendum 8 stated that “Buyer received a Phase One report that recommended ‘further 9 investigation’ and will remove contingencies upon satisfactory completion.” 10 Supporting Evidence: 11 Evidence, Exhibit 9, August 8, 2019, Extension of Time Addendum (“ETA”) 12 (Barnes/Lee & Associates 000055). 13 6. Environmental testing showed the Property had lead levels in the soil in excess of 10 14 times the limit to determine hazardous classifications and showed that there was 15 hazardous waste. 16 Supporting Evidence: Evidence, Exhibit 10, November 15, 2019, 17 Report of Limited Phase II Environmental Site Assessment and Table 1, Soil Lead 18 Analytical Results (Barnes/Lee & Associates 000001-003, 000079). 19 7. Plaintiff agreed to a price reduction of 20 $298,500.00, because of hazardous materials contamination. 21 Supporting Evidence: 22 Evidence, Exhibit 3, August 31, 2020, Plaintiff’s Responses to Special 23 Interrogatories, Set One. Authenticated by Evidence, Exhibit 1, Declaration of Peter C. 24 Catalanotti in Support Motion for Summary Judgment/Adjudication, at ¶3. 25 26 8. Following the testing, Plaintiff and Buyer 27 engaged in direct negotiations on the sales price. The buyer and Plaintiff/Seller cc’d 28 Defendant Barnes on their negotiations. 13 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 262434834v.7 1 MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE 2 MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 3 Plaintiff never spoke to Defendant Barnes about lowering the purchase price and 4 Barnes never gave Plaintiff advice about lowering the price. 5 Supporting Evidence: 6 Evidence, Exhibit 11, December 4-16, 2019, Email thread between Sean Kenmore and 7 Mark Bulwinkle “Re.: Hannah” (Barnes/Lee & Associates 000095-096). 8 Evidence, Ex. 17, Bulwinkle Depo., 30:5-11 9 9. On October 24, 2019, in an email from 10 Plaintiff directly to Buyer cc’ing Defendant/Agent Barnes, Plaintiff wrote, 11 I spoke with [Barnes] and he told me that you were prepared to offer 200k for the 12 property as is, but I regret that I can't accept that number. If you can see 13 you[sic] way to 350k this may be easier for me to accept. 14 Supporting Evidence: 15