UNIVERSAL EXECUTIVE GROUP, INC. DBA INTERNATIONAL REAL ESTATE SERVICES, VS FANNY LEE

Tentative Rulings

Case Number: 19STLC07125    Hearing Date: November 04, 2020    Dept: 25

HEARING DATE: Wed., November 4, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Universal Executive Group, Inc. v. Lee COMP. FILED: 08-01-19

CASE NUMBER: 19STLC07125 DISC. C/O: 12-29-20

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Plaintiff Universal Executive Group, Inc. dba International Real Estate Services

RESP. PARTY: Defendant Fanny Lee

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Universal Executive Group, Inc. dba International Real Estate Services’ Motion for Summary Judgment is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on October 20, 2020 [ ] Late [ ] None

REPLY: None filed as of October 30, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On August 1, 2019, Plaintiff Universal Executive Group, Inc. dba International Real Estate Services (“Plaintiff”) filed an action for breach of contract against Defendant Fanny Lee (“Lee”). On September 10, 2019, Defendant filed an Answer and a Cross-Complaint against Plaintiff and Angela Costello (“Costello”) for breach of fiduciary duty and breach of contract. Plaintiff and Cross-Defendant Costello filed their Answer to the Cross-Complaint on September 26, 2019.

On August 19, 2020, Plaintiff filed the instant Motion for Summary Judgment (the “Motion”) as to the Complaint. On October 20, 2020, Defendant filed an Opposition. No reply brief was filed.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

1. Discussion

1. Defendant’s Evidentiary Objections

Defendant’s evidentiary objections, numbers 1, 2, 3, 6, and 8 are OVERRULED and numbers 4, 5, and 7 are SUSTAINED.

1. Breach of Contract Cause of Action

Plaintiff moves for summary judgment on its sole breach of contract cause of action.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Plaintiff is currently a licensed real estate corporation. (UMF No. 1.) Defendant was the owner of real property commonly known as 545 W. Foothill Blvd. #83, Glendora, CA 91741 (the “Property”). (UMF No. 3.) On or about March 12, 2019, the parties entered into a Residential Listing Agreement (the “Agreement”) to sell the Property. (UMF No. 4.) The Agreement states that Defendant employed and granted Plaintiff the “exclusive and irrevocable right to sell or exchange” the Property from March 13, 2019 through July 31, 2019. (Mot., Hernandez Decl., ¶¶ 3-4, Exh. 1.)

The Agreement also includes the following provision: “Seller agrees to pay to Broker as compensation for services irrespective of agency relationship(s), either 4.000 percent of the listing price (or if a purchase agreement is entered into, of the purchase price…OR (3) If without the Broker’s prior consent the Property is withdrawn from sale, conveyed, leased, rented, otherwise transferred, or made unmarketable by a voluntary act of Seller during the listing period or any extension.” (Id.; Mot., Hernandez Decl., ¶ 4, Exh. 1.) After execution of the Agreement, Plaintiff caused the Property to be listed for sale for $499,999.00 on the Multiple Listing Service (“MLS”). (UMF No. 7.)

Defendant worked with Jessica Costello (“Costello”), Plaintiff’s agent. (Mot., Hernandez Decl., ¶ 8, Exh. 2; Oppo., Lee Decl., ¶ 2.) Plaintiff presents copies of marketing materials for an open house held on April 6 and 7, 2019 (Mot., Hernandez Decl., ¶ 8, Exh. 2) and demonstrates that at least one formal offer on the Property was made for $499,999.00 (Id. at ¶ 9, Exh. 3). Plaintiff also presents evidence that on July 17, 2019, Defendant sent Costello, an email stating, “[a]s requested, please cancel listing on today 7/17/2019 [sic] morning. Thank you for your efforts during the listing agreement period. Give me the signed cancellation and remove listing.” (Mot., Hernandez Decl., ¶ 15, Exh. 4.) (Italics added.) After a response email from Costello regarding her efforts, Defendant replied, “I will not play the blame game with you, kindly cancel listing today 7/17/2019 and provide me your broker’s signed cancellation.” (Id.) (Italics added.) Following Defendant’s request to “cancel” the listing, on July 19, 2019, Plaintiff’s counsel sent Defendant a letter demanding payment of a broker commission of $19,999.96 (or 4% of the $499,999.00 listing price) resulting from Defendant’s “early cancellation of the listing and withdrawal of the Property from sale.” (Mot., Perry Decl., ¶ 5, Exh. 1.) It is undisputed that Defendant did not pay the demanded amount. (UMF No. 20.)

Despite all the evidence presented, Plaintiff did not submit evidence demonstrating the contract is valid and enforceable. Business and Professions Code section 10130 states that “[i]t is unlawful for any person to engage in the business of, act in the capacity of, advertise as, or assume to act as a real estate broker or a real estate salesperson within this state without first obtaining a real estate license from the department, or to engage in the business of, act in the capacity of, advertise as, or assume to act as a mortgage loan originator within this state without having obtained a license endorsement.” A contract entered into by an unlicensed broker is illegal and void. (Weber v. Tonini (1957) 151 Cal.App.2d 168, 170.) In addition, Business and Professions Code section 10136 requires that a person bringing or maintaining an action for collection of broker’s compensation allege and prove they were licensed at the time the alleged cause of action arose.

Here, although Plaintiff states that it is currently a licensed broker, it presents no evidence demonstrating it was a licensed broker at the time the parties entered into the Agreement or at the time this breach of contract cause of action arose. For this reason, the Court is unable to determine whether the contract is valid and enforceable.

Thus, Plaintiff has not carried its initial burden. Accordingly, the Motion is DENIED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Universal Executive Group, Inc. dba International Real Estate Services’ Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.