This case was last updated from Los Angeles County Superior Courts on 01/02/2020 at 22:13:55 (UTC).

LUCIA ROSE AFFATATO VS. WISH PROPERTIES, INC., ET AL.

Case Summary

On 10/04/2017 LUCIA ROSE AFFATATO filed a Contract - Other Contract lawsuit against WISH PROPERTIES, INC . This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7188

  • Filing Date:

    10/04/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiff

AFFATATO LUCIA ROSE

Defendants

ROBIN SHERRY ANN

WISH PROPERTIES INC.

Attorney/Law Firm Details

Plaintiff Attorneys

MURPHY ROSEN LLP

KLEIN EDWARD ALLAN

Defendant Attorneys

MANNING & KASS ELLROD RAMIREZ TRESTER

ERLICH RINAT B

 

Court Documents

Amended Complaint - AMENDED COMPLAINT (1ST)

6/14/2018: Amended Complaint - AMENDED COMPLAINT (1ST)

Response - RESPONSE TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

10/7/2019: Response - RESPONSE TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Brief - BRIEF SUPPLEMENTAL IN CONNECTION WITH MOTION FOR SUMMARY JUDGMENT

11/1/2019: Brief - BRIEF SUPPLEMENTAL IN CONNECTION WITH MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; TRIAL SETTING CONFERENCE)

11/15/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; TRIAL SETTING CONFERENCE)

Minute Order - MINUTE ORDER (COURT ORDER)

12/4/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Notice of Ruling

12/5/2019: Notice of Ruling

Answer

3/20/2019: Answer

Opposition - Opposition TO DEFENDANTS WISH PROPERTIES, INC. AND SHERRY ANN ROBBIN'S MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

2/25/2019: Opposition - Opposition TO DEFENDANTS WISH PROPERTIES, INC. AND SHERRY ANN ROBBIN'S MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

Opposition - Opposition TO DEFENDANTS WISH PROPERTIES, INC. AND SHERRY ANN ROBBIN'S DEMURRER TO SECOND AMENDED COMPLAINT

2/25/2019: Opposition - Opposition TO DEFENDANTS WISH PROPERTIES, INC. AND SHERRY ANN ROBBIN'S DEMURRER TO SECOND AMENDED COMPLAINT

Reply - Reply Brief in Support of Motion to Strike Portions of Second Amended Complaint

3/1/2019: Reply - Reply Brief in Support of Motion to Strike Portions of Second Amended Complaint

Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued

10/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued

Case Management Statement

5/17/2018: Case Management Statement

Notice -

8/17/2018: Notice -

Opposition - TO DEFENDENT'S DEMURRER TO FIRST AMENDED COMPLAINT

9/10/2018: Opposition - TO DEFENDENT'S DEMURRER TO FIRST AMENDED COMPLAINT

Minute Order - Minute order entered: 2018-09-21 00:00:00

9/21/2018: Minute Order - Minute order entered: 2018-09-21 00:00:00

Reply -

9/14/2018: Reply -

Case Management Statement -

9/12/2018: Case Management Statement -

Request for Judicial Notice -

8/17/2018: Request for Judicial Notice -

70 More Documents Available

 

Docket Entries

  • 01/08/2020
  • Hearing01/08/2020 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Order to Show Cause Re: Submission of (proposed) Order and Judgment

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  • 12/30/2019
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Order to Show Cause Re: (Submission of (proposed) Order and Judgment) - Not Held - Continued - Stipulation

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  • 12/19/2019
  • Docketat 11:36 AM in Department A, William D. Stewart, Presiding; Court Order

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  • 12/19/2019
  • DocketMinute Order ( (Court Order Stipulation re Date of Order to Show Cause)); Filed by Clerk

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  • 12/19/2019
  • DocketStipulation and Order (re date of order to show cause; order); Filed by Wish Properties, Inc. (Defendant); Sherry Ann Robin (Defendant)

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  • 12/05/2019
  • DocketNotice of Ruling; Filed by Wish Properties, Inc. (Defendant); Sherry Ann Robin (Defendant)

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  • 12/04/2019
  • Docketat 2:44 PM in Department A, William D. Stewart, Presiding; Court Order

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  • 12/04/2019
  • DocketCertificate of Mailing for ((Court Order) of 12/04/2019); Filed by Clerk

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  • 12/04/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 11/21/2019
  • DocketObjection (Plaintiff Lucia Affatato's Objection to Defendant's [ Proposed] Order Granting Motion for Summary Judgment); Filed by Lucia Rose Affatato (Plaintiff)

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97 More Docket Entries
  • 12/05/2017
  • DocketMinute order entered: 2017-12-05 00:00:00; Filed by Clerk

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  • 10/25/2017
  • DocketNotice of Ruling; Filed by Lucia Rose Affatato (Plaintiff)

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  • 10/18/2017
  • Docketat 08:30 AM in Department A; Court Order - Held

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  • 10/18/2017
  • DocketMinute order entered: 2017-10-18 00:00:00; Filed by Clerk

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  • 10/06/2017
  • DocketNotice of Related Case; Filed by Lucia Rose Affatato (Plaintiff)

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  • 10/04/2017
  • DocketCivil Case Cover Sheet; Filed by Lucia Rose Affatato (Plaintiff)

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  • 10/04/2017
  • DocketSummons; Filed by Lucia Rose Affatato (Plaintiff)

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  • 10/04/2017
  • DocketNotice of Case Management Conference; Filed by Court

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  • 10/04/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 10/04/2017
  • DocketComplaint filed-Summons Issued; Filed by Lucia Rose Affatato (Plaintiff)

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Tentative Rulings

Case Number: EC067188    Hearing Date: November 15, 2019    Dept: A

Affatato v Wish Properties

Motion for Summary Judgment

Calendar:

15

Case No.:

EC067188

Hearing Date:

November 15, 2019

Action Filed:

October 04, 2017

Trial Date:

Not Set

MP:

Defendants Wish Properties, Inc. dba Wish Sotheby’s International Realty and Sherry Ann Robbin

RP:

Plaintiff Lucia Rose Affatato

ALLEGATIONS:

Plaintiff Lucia Rose Affatato (“Plaintiff” or “Affatato”) alleges that she retained Defendants Wish Properties, Inc. (“Wish”) and Sherry Ann Robbin (“Robbin” collectively the “Defendants”) to represent her in connection with the sale of her home located on Hermitage Avenue in Valley Village to Ben Salem and/or his assignee pursuant to a written “listing agreement” referred to as Single Party Compensation Agreement. (SAC, ¶7, Ex. A.) Pursuant to the agreement, Plaintiff alleges that Defendants agreed to represent Affatato as her agent in connection with the sale of the property. She alleges that she disclosed to Defendants all material information regarding the property that she was aware of, including the fact that the actress Marilyn Monroe had once lived on the property.

Affatato alleges that she received an offer from Ben Salem to purchase the property, and pursuant to Defendants’ advice, Affatato provided various disclosures and notices pursuant to California law. However, she alleges that Defendants failed to advice Affatato to disclose that Marilyn Monroe had lived on the property, that this fact could impact Salem’s ability to develop the property, and the neighbors of the property were likely to oppose development of the property (“Concealed Information”). Thereafter, Salem’s assignee, Hermitage Enterprises, LLC (“HEL”) purchased the property from Affatato. She also alleges that she paid Defendants $27,000 in commission in connection with the sale of the property.

Affatato alleges that in 2016, Hermitage and Salem filed an action arising out of the purchase and sale of the property in Salem et al. v. Wish Properties, Inc. et al. (LASC No. EC064677, “Hermitage Lawsuit”). Affatato alleges she eventually settled the Hermitage Lawsuit without paying any money to Salem or HEL, but she incurred substantial fees and costs in defending herself.

The second amended complaint (“SAC”), filed October 10, 2018, alleges a single cause of action for breach of contract.

PRESENTATION:

Defendants filed the instant motion on August 02, 2019, Plaintiff opposed the motion on October 04, 2019, and a reply brief was submitted on October 11, 2019. The motion was originally heard on October 18, 2019, where the Court continued the motion to November 15, 2019, upon request for further briefing. Plaintiff filed her supplemental brief on November 01, 2019, and Defendants field their supplemental reply on November 08, 2019.

RELIEF REQUESTED:

Defendants move for summary judgment.

DISCUSSION:

Standard of Review – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Code Civ. Proc. § 437c(p)(2).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

With a summary judgment motion, a three-step analysis is required of the trial court. AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65. First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. Id. Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. Id. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. Id. On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. Code of Civ. Proc. §437c(o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.

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First Cause of Action (Breach of Contract) – The elements of a breach of contract cause of action are: (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.

On review of the moving papers, the Court concludes from the record before it that there is no material dispute as to the existence of the Single Party Compensation Agreement provided as Exhibit C to the Decl. of Robbin. It is also undisputed that Plaintiff performed on the contract by paying the commission owed pursuant to its terms on or around December 2013. PSS No. 10. Defendants argue that there is no material dispute that they complied with all terms of their contract with Plaintiff, because the purpose of the transaction – to sell the property and compensate the brokers – was performed. Motion, 7:8-16. The Court concurs with Defendants’ assessment that it is undisputed that the terms of the contract were performed. PSS Nos. 8-10; Decl. of Robbin, Ex. C.

Plaintiff, however, contends that Defendants breached contractual obligations that are imposed on real estate brokers by law, in that Defendants failed to disclose to the buyer that the property had briefly housed Marylin Monroe despite their knowledge of the same. Opposition, 3:5-5:2. As to this proposition, the California Supreme Court has held that “[i]mplied contractual terms ‘ordinarily stand on equal footing with express terms’ [Citation], provided that, ‘as a general matter, implied terms should never be read to vary express terms.’” Retired Employees Assn. of Orange Cty., Inc. v. Cty. of Orange (2011) 52 Cal. 4th 1171, 1179.

On review of the initial moving papers, and the Court’s own investigation into real estate broker’s duties pursuant to the Civil Code, the Court could not identify any breach made by Defendants to Plaintiff, the seller, in carrying out their obligations under the contract prior to oral arguments. While real estate broker’s owe a duty to disclose the results of a visual inspection under Civ. Code §2079(a), such duty is for the benefit of the buyer, not the seller of the property. Additionally, the duties described of a dual representative real estate broker, as is the case here, would militate against the disclosure of the information at issue in the instant case, as “a dual agent may not, without the express permission of the respective party, disclose to the other party confidential information, including, but not limited to, facts relating to either the Buyer’s or Seller’s financial position, motivations, bargaining position, or other personal information that may impact price”. Civ. Code §2079.16 (emphasis added).

In Plaintiff’s further briefing she highlights the common law duty to perform contractual obligations with reasonable care, (Supp. Opp. 4:8-6:15), and a duty by a broker to counsel and advise their principal to make disclosures, (Supp. Opp. 6:16-10:13). The Court’s understanding of the supplemental briefing is that Plaintiff is, in effect, arguing that Defendants had an implied contractual duty to aid Plaintiff in drafting the Seller Disclosures so that the sale of the property could proceed, and that they breached their duty by failing to advise Plaintiff to disclose that the home was briefly resided in by Marylyn Monroe.

Defendants, in their supplemental reply brief, argue that implied terms like that advanced by Plaintiff are only incorporated into express contractual terms (1) when they are implied by the language of the contract itself, (2) when it is in the contemplation of the parties at the time the contract was entered, (3) when they are included by legal necessity, (4) when it can be rightfully assumed that the parties would have included the duties had they recognized the error in omitting them, and (5) when the implied duties are not expressly foreclosed by the language of the contract. Supp. Reply pp. 3.

Ultimately, as a breach of contract cause of action, the terms of the contract control, and in the contract at issue between Plaintiff and Defendants, the sole obligation that Defendants undertook to perform in relation to Plaintiff’s disclosure obligations was to “give Seller an agency disclosure form prior to presenting an offer to purchase.” Decl. of Robbin, Ex. C (Subpart 2A, underneath the heading of “AGENCY RELATIONSHIPS”). As shown by the completed Real Estate Transfer Disclosure Statement and Seller Property Questionnaire, it is evident that Plaintiff received the disclosure documents that Defendant was obligated to provide under the terms of the contract. To the extent that Plaintiff is arguing that Defendants had an implied duty to help her complete the disclosures, the Court considers such an implied term foreclosed by the express disclaimer of such aid in the Seller Property Questionnaire, Section III, bullet point 5. Decl. of Robbin, Ex. B, Sec. III (“A broker cannot answer the questions for you or advise you on the legal sufficiency of any answers or disclosures you provide.”).

As the Real Estate Transfer Disclosure Statement does not include any questions related to any historical designation of the property such that the value may be affected, any duty that Defendants could have had as to assisting Plaintiff in the creation of the document is not causally related to the failure of Plaintiff to disclose. See Decl. of Robbin, Ex. A. Whereas Plaintiff’s completion of the Seller Property Questionnaire was completed with the express disclaimer of any duty of the Defendants to aid in the completion of the document, and this is the document where Plaintiff represented that the Property was not “historically designated [and does not] fall within an existing or proposed Historical District.” Decl. of Robbin, Ex. B, Section V(L)(8). Indeed, the Seller Property Questionnaire specifically informs the Plaintiff that “[s]omething that you do not consider material or significant may be perceived differently by the Buyer” and that in the event of any question about whether something should be disclosed, “you should consult a real estate attorney in California of your choosing”, and not seek the advice of the broker. Decl. of Robbin, Ex. B, Section III.

When read in the context of all three of the relevant documents, the Court cannot infer the existence of the implied term that Plaintiff advances as the basis for Defendant’s liability. The proposed contract term to aid Plaintiff in completing real estate disclosure forms is expressly foreclosed by the terms of the Seller Property Questionnaire, is not relevant to the Real Estate Transfer Disclosure Statement (which does not reach the matter subject to the instant litigation), and is not implied in the first instance by Defendants sole obligation to provide Plaintiff with the relevant disclosures.

Other than general propositions of law describing the level of duty a broker owed to their principal, Plaintiff’s legal references are insufficient to establish that the implied contract term advocated by Plaintiff exists under these circumstances. Opposition, pp. 3-6; Supp. Opp. pp. 4-10. The Court additionally concurs with Defendants analysis of the relevance of the breach of proposed duties to the Plaintiff on the basis of the duties described more fully above. The instant cause of action is one sounding in breach of contract, and not one of Plaintiff’s long abandoned breach of fiduciary duty causes of action. Supp. Reply 7:23-8:16.

Finally, Defendants contend that Plaintiff was not injured by any alleged breach. Motion, 7:17-8:16. Plaintiff’s opposition and supplemental opposition do not address the issue of damages, and the Court will treat the issue as conceded by Plaintiff. See Opposition; see also Supp. Opp. (Plaintiff does not address the issue of damages in the supplemental documents). Additionally, the Court considers that if Defendants had disclosed the information at issue here, the likely result would have been a significant diminution in the value of the property, as the buyer is alleged to have purchased the property for the purpose of development, which was stymied by the undisclosed information regarding Marylin Monroe’s brief residence. As such, it stands to reason, although no evidence is before the Court one way or another, that Plaintiff actually experienced a windfall from her and Defendants’ non-disclosure of the information to the buyer.

The Court will grant the instant motion.

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RULING: GRANT

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Wish Properties, Inc. dba Wish Sotheby’s International Realty and Sherry Ann Robbin’s Motion for Summary Judgment came on regularly for hearing on November 15, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED.

DATE: _______________ _______________________________

JUDGE