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,
EDELMAN & DICKER LLP
4 655 Montgomery Street, Suite 900
San Francisco, CA 94111
5 Telephone: (415) 433-0990
Facsimile: (415) 434-1370
6
Attorneys for Defendants
7 Zachary Barnes and Lee & Associates Oakland
Commercial Real Estate Services, Inc.
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF ALAMEDA
11 MARK BULWINKLE, CASE NO.: RG20066469
RES. NO. 950897307171
12 Plaintiffs,
ASSIGNED FOR ALL PURPOSES TO THE
13 v. HON. JAMES REILLY
14 ZACHARY BARNES, LEE & ASSOCIATES DEFENDANTS ZACHARY BARNES AND
OAKLAND COMMERCIAL REAL ESTATE LEE & ASSOCIATES OAKLAND
15 SERVICES, INC., AND DOES 1-100, COMMERCIAL REAL ESTATE SERVICES,
INC.’S RESPONSE TO PLAINTIFF’S
16 Defendants. SEPARATE STATEMENT OF DISPUTED
MATERIAL FACTS
17
Hearing Date: April 13, 2022
18 Time: 3:00 p.m.
Department: 25
19
Complaint Filed: July 1, 2020
20 Trial Date: June 22, 2022
Judge: The Hon. James Reilly
21
22 Defendants Zachary Barnes and Lee & Associates Oakland Commercial Real Estate
23 Services, Inc. (collectively, “Broker”) hereby submit their response to Plaintiff’s Separate
24 Statement of Disputed Material Facts.
25 ///
26 ///
27 ///
28 ///
1
DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE
SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS
269521697v.1
1
Plaintiff’s Disputed Material Facts and Defendants’ Response and Supporting
2 Supporting Evidence Evidence:
1. A real estate agent or broker representing Objection: improper expert testimony and
3 an owner attempting to sell unimproved improper legal argument, lacks foundation,
real property in Oakland has a duty to speculative, legal conclusion. See Objection
4 inform his or her client of the different
kinds of improvements which could No. 1.
5 legally be built on the property and the
amount and size of improvements which Without waiving said objections, DISPUTED.
6 could be developed, the number of This is an improper legal conclusion—not a
potential units, including what additional material fact. The declaration of Mr. Edrington
7 uses, and number of potential units might is speculative, conclusory, and devoid of any
be built if a conditional-use-permit or facts specific to this action.
8 variance were obtained.
9 Declaration of Expert Steven Edrington in
Opposition to Defendants’ Motion for Supporting Evidence: Edrington Decl.
10 Summary Judgment or Summary Adjudication,
¶¶ 1-4.
11 2. A real estate agent or broker has a duty to Objection: improper expert testimony and
inform his client of the current zoning of improper legal argument, lacks foundation,
12
the property and the uses and number of speculative, legal conclusion. See Objection
13 potential unit that might be built, including No. 2.
what additional uses, and number of
14 potential units that might be built if a Without waiving said objections, DISPUTED.
conditional use permit or variance were This is an improper legal conclusion—not a
15 obtained. material fact. The declaration of Mr. Edrington
is speculative, conclusory, and devoid of any
16
Declaration of Expert Steven Edrington in facts specific to this action.
17 Opposition to Defendants’ Motion for
Summary Judgment or Summary Adjudication,
18 ¶¶ 1-5. Supporting Evidence: Edrington Decl.
3. It is a breach of the standard of care which Objection: improper expert testimony and
19 real estate agents and brokers in Oakland improper legal argument, lacks foundation,
20 owe to their clients to fail to obtain and speculative, legal conclusion. See Objection
provide their clients with information about No. 4.
21 the current zoning of the property and the
uses and number of potential unit that Without waiving said objections, DISPUTED.
22 might be built, including what additional This is an improper legal conclusion—not a
uses, and number of potential units that material fact. The declaration of Mr. Edrington
23 might be built if a conditional use permit or is speculative, conclusory, and devoid of any
24 variance were obtained. It is essential in facts specific to this action.
order for the client to determine the market
25 value of the property, the price at which to
list the property, and to be prepared to Supporting Evidence: Edrington Decl.
26 respond to price offers.
27 Declaration of Expert Steven Edrington in
28 Opposition to Defendants’ Motion for
2
DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE
SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS
269521697v.1
1
Plaintiff’s Disputed Material Facts and Defendants’ Response and Supporting
2 Supporting Evidence Evidence:
Summary Judgment or Summary Adjudication,
3 ¶¶ 1-3, 6-7.
4 4. Mark Bulwinkle was never informed by Objection: speculative, conclusory and lacks
Defendants that the zoning of the property foundation. See Objection No. 14.
5 at issue had been changed from RM-2 to
HB-X before the close of escrow, even Without waiving said objections, DISPUTED.
6 though Defendants knew that the zoning at The evidence that Plaintiff cites to does not
the time of sale was HB-X. support the purported fact offered by Plaintiff.
7 While the evidence demonstrates that Broker
8 Declaration of Plaintiff Mark Bullwinkle in knew that the zoning of the property at the time
Opposition to Defendants’ Motion for of the sale was HBX-2, there is no evidence to
9 Summary Judgment or Summary Adjudication, support Plaintiff’s claim that Broker knew the
¶1-6; Defendants’ Memorandum of Points and zoning had been changed from RM-2 to HB-X
10 Authorities, 4:19. during Plaintiff’s ownership or that Broker
never informed Plaintiff about the zoning of the
11
property. Broker created an advertisement
12 showing that the property was zoned HBX-2.
13 Supporting Evidence: Bulwinkle Decl., ¶¶ 1-
6; Broker’s UMF No. 2.
14 5. Mark Bulwinkle would not have agreed to Objection: speculative, conclusory and lacks
sell the property for as little as $300,000 foundation, improper legal argument. See
15
had Defendants told him what they knew Objection No. 13.
16 about the zoning of the property.
Without waiving said objections, DISPUTED.
17 Declaration of Plaintiff Mark Bullwinkle in This is argument—not a fact. The evidence
Opposition to Defendants’ Motion for does not support this purported material fact. In
18 Summary Judgment or Summary Adjudication, response to written discovery, Plaintiff stated
¶8-13; Defendants’ Memorandum of Points and that he agreed to a price reduction of $298,500
19
Authorities, 4:19. because of hazardous waste materials
20 contamination—not because he was unaware of
the zoning of his own property.
21
Supporting Evidence: Broker’s UMF No. 7
22
23
Dated: April 8, 2022 WILSON, ELSER, MOSKOWITZ,
24 EDELMAN & DICKER LLP
25
By:
26 Peter C. Catalanotti
Ryan O. Manuel
27 Attorneys for Defendants
Zachary Barnes
28 Lee & Associates Oakland Commercial Real Estate
Services, Inc.
3
DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE
SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS
269521697v.1
1 PROOF OF SERVICE
2 Bulwinkle v. Lee & Associates and Zachary Barnes
Alameda County Superior Court Case No.: RG20066469
3
At the time of service I was over 18 years of age and not a party to this action. I am employed
4 by in the County of San Francisco, State of California. My business address is 655 Montgomery
Street, Suite 900, San Francisco, CA 94111. My business Facsimile number is (415) 434-1370.
5 On this date I served the following document(s):
6 DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND
COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S
7
SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS
8
on the person or persons listed below, through their respective attorneys of record in this action,
9 by the following means of service:
10 : By United States Mail. I placed the envelope(s) for collection and mailing, following our
ordinary business practices. I am readily familiar with this business’s practice for collecting and
11 processing correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the United States
12 Postal Service, in a sealed envelope with postage fully prepaid.
13 : By E-Mail: Based on a court order or an agreement of the parties to accept service by
email or electronic transmission, I caused the documents to be sent to the persons at the
14 email addresses listed below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
15 unsuccessful.
16 SEE ATTACHED SERVICE LIST
17 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct to the best of my knowledge.
18
EXECUTED on April 8, 2022, at San Francisco, California.
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20
Michael Folger
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PROOF OF SERVICE
265693245v.2
1 SERVICE LIST
2 Bulwinkle v. Lee & Associates and Zachary Barnes
Alameda County Superior Court Case No.: RG20066469
3
Dana Sack
4 Sack Rosenclin,.LLP
1437 Leimert Boulevard, Suite B
5 Oakland, California 94602
Telephone: (510) 286-2200
6 Email: ds@sackrosendin.com
7
Attorneys for Plaintiffs
8 MARK BULWINKLE
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PROOF OF SERVICE
265693245v.2
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, EDELMAN & DICKER LLP 4 655 Montgomery Street, Suite 900 San Francisco, CA 94111 5 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 6 Attorneys for Defendants 7 Zachary Barnes and Lee & Associates Oakland Commercial Real Estate Services, Inc. 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF ALAMEDA 11 MARK BULWINKLE, CASE NO.: RG20066469 RES. NO. 950897307171 12 Plaintiffs, ASSIGNED FOR ALL PURPOSES TO THE 13 v. HON. JAMES REILLY 14 ZACHARY BARNES, LEE & ASSOCIATES DEFENDANTS ZACHARY BARNES AND OAKLAND COMMERCIAL REAL ESTATE LEE & ASSOCIATES OAKLAND 15 SERVICES, INC., AND DOES 1-100, COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S 16 Defendants. SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 17 Hearing Date: April 13, 2022 18 Time: 3:00 p.m. Department: 25 19 Complaint Filed: July 1, 2020 20 Trial Date: June 22, 2022 Judge: The Hon. James Reilly 21 22 Defendants Zachary Barnes and Lee & Associates Oakland Commercial Real Estate 23 Services, Inc. (collectively, “Broker”) hereby submit their response to Plaintiff’s Separate 24 Statement of Disputed Material Facts. 25 /// 26 /// 27 /// 28 /// 1 DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 269521697v.1 1 Plaintiff’s Disputed Material Facts and Defendants’ Response and Supporting 2 Supporting Evidence Evidence: 1. A real estate agent or broker representing Objection: improper expert testimony and 3 an owner attempting to sell unimproved improper legal argument, lacks foundation, real property in Oakland has a duty to speculative, legal conclusion. See Objection 4 inform his or her client of the different kinds of improvements which could No. 1. 5 legally be built on the property and the amount and size of improvements which Without waiving said objections, DISPUTED. 6 could be developed, the number of This is an improper legal conclusion—not a potential units, including what additional material fact. The declaration of Mr. Edrington 7 uses, and number of potential units might is speculative, conclusory, and devoid of any be built if a conditional-use-permit or facts specific to this action. 8 variance were obtained. 9 Declaration of Expert Steven Edrington in Opposition to Defendants’ Motion for Supporting Evidence: Edrington Decl. 10 Summary Judgment or Summary Adjudication, ¶¶ 1-4. 11 2. A real estate agent or broker has a duty to Objection: improper expert testimony and inform his client of the current zoning of improper legal argument, lacks foundation, 12 the property and the uses and number of speculative, legal conclusion. See Objection 13 potential unit that might be built, including No. 2. what additional uses, and number of 14 potential units that might be built if a Without waiving said objections, DISPUTED. conditional use permit or variance were This is an improper legal conclusion—not a 15 obtained. material fact. The declaration of Mr. Edrington is speculative, conclusory, and devoid of any 16 Declaration of Expert Steven Edrington in facts specific to this action. 17 Opposition to Defendants’ Motion for Summary Judgment or Summary Adjudication, 18 ¶¶ 1-5. Supporting Evidence: Edrington Decl. 3. It is a breach of the standard of care which Objection: improper expert testimony and 19 real estate agents and brokers in Oakland improper legal argument, lacks foundation, 20 owe to their clients to fail to obtain and speculative, legal conclusion. See Objection provide their clients with information about No. 4. 21 the current zoning of the property and the uses and number of potential unit that Without waiving said objections, DISPUTED. 22 might be built, including what additional This is an improper legal conclusion—not a uses, and number of potential units that material fact. The declaration of Mr. Edrington 23 might be built if a conditional use permit or is speculative, conclusory, and devoid of any 24 variance were obtained. It is essential in facts specific to this action. order for the client to determine the market 25 value of the property, the price at which to list the property, and to be prepared to Supporting Evidence: Edrington Decl. 26 respond to price offers. 27 Declaration of Expert Steven Edrington in 28 Opposition to Defendants’ Motion for 2 DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 269521697v.1 1 Plaintiff’s Disputed Material Facts and Defendants’ Response and Supporting 2 Supporting Evidence Evidence: Summary Judgment or Summary Adjudication, 3 ¶¶ 1-3, 6-7. 4 4. Mark Bulwinkle was never informed by Objection: speculative, conclusory and lacks Defendants that the zoning of the property foundation. See Objection No. 14. 5 at issue had been changed from RM-2 to HB-X before the close of escrow, even Without waiving said objections, DISPUTED. 6 though Defendants knew that the zoning at The evidence that Plaintiff cites to does not the time of sale was HB-X. support the purported fact offered by Plaintiff. 7 While the evidence demonstrates that Broker 8 Declaration of Plaintiff Mark Bullwinkle in knew that the zoning of the property at the time Opposition to Defendants’ Motion for of the sale was HBX-2, there is no evidence to 9 Summary Judgment or Summary Adjudication, support Plaintiff’s claim that Broker knew the ¶1-6; Defendants’ Memorandum of Points and zoning had been changed from RM-2 to HB-X 10 Authorities, 4:19. during Plaintiff’s ownership or that Broker never informed Plaintiff about the zoning of the 11 property. Broker created an advertisement 12 showing that the property was zoned HBX-2. 13 Supporting Evidence: Bulwinkle Decl., ¶¶ 1- 6; Broker’s UMF No. 2. 14 5. Mark Bulwinkle would not have agreed to Objection: speculative, conclusory and lacks sell the property for as little as $300,000 foundation, improper legal argument. See 15 had Defendants told him what they knew Objection No. 13. 16 about the zoning of the property. Without waiving said objections, DISPUTED. 17 Declaration of Plaintiff Mark Bullwinkle in This is argument—not a fact. The evidence Opposition to Defendants’ Motion for does not support this purported material fact. In 18 Summary Judgment or Summary Adjudication, response to written discovery, Plaintiff stated ¶8-13; Defendants’ Memorandum of Points and that he agreed to a price reduction of $298,500 19 Authorities, 4:19. because of hazardous waste materials 20 contamination—not because he was unaware of the zoning of his own property. 21 Supporting Evidence: Broker’s UMF No. 7 22 23 Dated: April 8, 2022 WILSON, ELSER, MOSKOWITZ, 24 EDELMAN & DICKER LLP 25 By: 26 Peter C. Catalanotti Ryan O. Manuel 27 Attorneys for Defendants Zachary Barnes 28 Lee & Associates Oakland Commercial Real Estate Services, Inc. 3 DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 269521697v.1 1 PROOF OF SERVICE 2 Bulwinkle v. Lee & Associates and Zachary Barnes Alameda County Superior Court Case No.: RG20066469 3 At the time of service I was over 18 years of age and not a party to this action. I am employed 4 by in the County of San Francisco, State of California. My business address is 655 Montgomery Street, Suite 900, San Francisco, CA 94111. My business Facsimile number is (415) 434-1370. 5 On this date I served the following document(s): 6 DEFENDANTS ZACHARY BARNES AND LEE & ASSOCIATES OAKLAND COMMERCIAL REAL ESTATE SERVICES, INC.’S RESPONSE TO PLAINTIFF’S 7 SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS 8 on the person or persons listed below, through their respective attorneys of record in this action, 9 by the following means of service: 10 : By United States Mail. I placed the envelope(s) for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and 11 processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States 12 Postal Service, in a sealed envelope with postage fully prepaid. 13 : By E-Mail: Based on a court order or an agreement of the parties to accept service by email or electronic transmission, I caused the documents to be sent to the persons at the 14 email addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 15 unsuccessful. 16 SEE ATTACHED SERVICE LIST 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. 18 EXECUTED on April 8, 2022, at San Francisco, California. 19 20 Michael Folger 21 22 23 24 25 26 27 28 PROOF OF SERVICE 265693245v.2 1 SERVICE LIST 2 Bulwinkle v. Lee & Associates and Zachary Barnes Alameda County Superior Court Case No.: RG20066469 3 Dana Sack 4 Sack Rosenclin,.LLP 1437 Leimert Boulevard, Suite B 5 Oakland, California 94602 Telephone: (510) 286-2200 6 Email: ds@sackrosendin.com 7 Attorneys for Plaintiffs 8 MARK BULWINKLE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 265693245v.2