This case was last updated from Los Angeles County Superior Courts on 03/18/2020 at 01:37:04 (UTC).

REMAX TITANIUM TEAM NUVISION ET AL VS JAMES D OLSON ET AL

Case Summary

On 04/12/2017 REMAX TITANIUM TEAM NUVISION filed a Contract - Other Contract lawsuit against JAMES D OLSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL P. LINFIELD. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7788

  • Filing Date:

    04/12/2017

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL P. LINFIELD

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

NUVISION REMAX TITANIUM TEAM

KUSUMA RUDY L.

REMAX TITANIUM TEAM NUVISION

OLSON JAMES D.

CHAN ALEXANDER

EPIC DEED SERVICE INC.

THE ESTATE OF JAMES D. OLSON

Defendants, Respondents and Cross Defendants

OLSON JAMES D.

TONG WILLIAM

GOLDEN LAND INVESTMENT & FINANCIAL

DOES 1 TO 100

ESTATE OF JAMES OLSON

KELLY JOSEPH AS ADMINISTRATOR OF THE ESTATE OF JAMES D. OLSON

ALAMILLO JOANNA AS ADMINISTRATOR OF THE ESTATE OF JAMES D. OLSON

LOS ANGELES COUNTY PUBLIC ADMINISTRATOR AS ADMINISTRATOR FOR THE ESTATE OF JAMES D. OLSON

Defendant, Respondent and Cross Plaintiff

GOLDEN LAND INVESTMENT & FINANCIAL

Other

SHIODA GENE H. ESQ.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHENG PAUL P. ESQ.

CHENG PAUL PO REN

CHENG PAUL P.

DRISKELL JOSHUA R.

MONTES RAUL MENDOZA

CHENG PAUL P

CHIAO CHING K

Defendant and Respondent Attorneys

KEVIN LIU

DENNIS SYNA N. DEPUTY COUNTY COUNSEL

SHIODA GENE H. ESQ.

LIU KEVIN

DENNIS SYNA N.

Defendant and Cross Plaintiff Attorney

LIU KEVIN

Plaintiff and Cross Defendant Attorneys

CHENG PAUL P.

CHENG PAUL P

CHIAO CHING K

DENNIS SYNA N. DEPUTY COUNTY COUNSEL

DENNIS SYNA N.

 

Court Documents

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE; HEARING ON DEMURRER - WITHOUT MOTION...)

4/30/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE; HEARING ON DEMURRER - WITHOUT MOTION...)

Objection - PLAINTIFFS' EVIDENTIARY OBJECTIONS TO GOLDEN LAND INVESTMENT & FINANCIAL AND WILLIAM TONGS' MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION; (PROPOSED) ORDER

1/22/2020: Objection - PLAINTIFFS' EVIDENTIARY OBJECTIONS TO GOLDEN LAND INVESTMENT & FINANCIAL AND WILLIAM TONGS' MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION; (PROPOSED) ORDER

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

10/18/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES)

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

8/1/2019: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

Opposition - OPPOSITION PLAINTIFFS' OPPOSITION TO THE PUBLIC ADMINISTRATOR'S DEMURRER

6/18/2019: Opposition - OPPOSITION PLAINTIFFS' OPPOSITION TO THE PUBLIC ADMINISTRATOR'S DEMURRER

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF REBECCA GARDNER REGARDING DEFENDANTS' FAILURE TO MEET AND CONFER FOR JOINT TRIAL DOCUMENTS

4/26/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF REBECCA GARDNER REGARDING DEFENDANTS' FAILURE TO MEET AND CONFER FOR JOINT TRIAL DOCUMENTS

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE SUZANNE ONUKI, CSR# 13734

4/30/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE SUZANNE ONUKI, CSR# 13734

Exhibit List

4/17/2019: Exhibit List

Reply - REPLY OF DEFENDANT LOS ANGELES COUNTY PUBLIC ADMINISTRATOR, AS ADMINISTRATOR OF THE ESTATE OF JAMES OLSON, TO PLAINTIFFS OPPOSITION TO DEMURRER

4/19/2019: Reply - REPLY OF DEFENDANT LOS ANGELES COUNTY PUBLIC ADMINISTRATOR, AS ADMINISTRATOR OF THE ESTATE OF JAMES OLSON, TO PLAINTIFFS OPPOSITION TO DEMURRER

Opposition - OPPOSITION THE PERSON MOST KNOWLEDGEABLE FOR PLAINTIFF REMAX TITANIUM TEAM NUVISIOIN'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL HIS DEPOSITION

3/14/2019: Opposition - OPPOSITION THE PERSON MOST KNOWLEDGEABLE FOR PLAINTIFF REMAX TITANIUM TEAM NUVISIOIN'S OPPOSITION TO DEFENDANTS' MOTION TO COMPEL HIS DEPOSITION

Declaration - Declaration in Support of Motion to Compel Deposition

2/8/2019: Declaration - Declaration in Support of Motion to Compel Deposition

Minute Order - Minute Order (Hearing on Motion to Compel Responses to Demand for Inspectio...)

1/25/2019: Minute Order - Minute Order (Hearing on Motion to Compel Responses to Demand for Inspectio...)

FIRST AMENDED SUMMONS CROSS-COMPLAINT

6/29/2018: FIRST AMENDED SUMMONS CROSS-COMPLAINT

SUMMONS -

4/12/2017: SUMMONS -

NOTICE OF CASE MANAGEMENT CONFERENCE

4/18/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE OF SUMMONS

5/9/2017: PROOF OF SERVICE OF SUMMONS

CASE MANAGEMENT STATEMENT -

8/25/2017: CASE MANAGEMENT STATEMENT -

171 More Documents Available

 

Docket Entries

  • 03/16/2020
  • Docketat 08:30 AM in Department 34; Jury Trial ((3-5days)) - Not Held - Vacated by Court

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  • 03/04/2020
  • Docketat 09:00 AM in Department 34; Final Status Conference - Not Held - Vacated by Court

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  • 03/04/2020
  • DocketRequest for Dismissal; Filed by Rudy L. Kusuma (Plaintiff); Remax Titanium Team Nuvision (Plaintiff)

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  • 03/04/2020
  • DocketRequest for Dismissal; Filed by Rudy L. Kusuma (Cross-Defendant); Remax Titanium Team Nuvision (Cross-Defendant)

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  • 03/04/2020
  • DocketRequest for Dismissal; Filed by Golden Land Investment & Financial (Cross-Complainant)

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  • 02/27/2020
  • DocketNotice of Settlement; Filed by Rudy L. Kusuma (Plaintiff); Remax Titanium Team Nuvision (Plaintiff); Golden Land Investment & Financial (Defendant) et al.

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  • 02/27/2020
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 02/11/2020
  • DocketSubstitution of Attorney; Filed by Alexander Chan (Cross-Defendant)

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  • 02/11/2020
  • DocketSubstitution of Attorney; Filed by Remax Titanium Team Nuvision (Cross-Defendant)

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  • 02/11/2020
  • DocketSubstitution of Attorney; Filed by Rudy L. Kusuma (Plaintiff)

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231 More Docket Entries
  • 07/24/2017
  • DocketCASE MANAGEMENT STATEMENT

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  • 07/11/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 07/11/2017
  • DocketProof-Service/Summons; Filed by Remax Titanium Team Nuvision (Plaintiff)

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  • 05/09/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 05/09/2017
  • DocketProof-Service/Summons; Filed by Remax Titanium Team Nuvision (Plaintiff)

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  • 04/18/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/18/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/12/2017
  • DocketComplaint; Filed by Rudy L. Kusuma (Plaintiff); Remax Titanium Team Nuvision (Plaintiff)

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  • 04/12/2017
  • DocketCOMPLAINT FOR DAMAGES DEMAND FOR JURY TRIAL REQUESTED 1. BREACH OF CONTRACT ;ETC

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  • 04/12/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC657788    Hearing Date: February 05, 2020    Dept: 34

SUBJECT: Motion for Summary Judgment, or in the alternative, Summary Adjudication

Moving Party: Defendants Golden Land and William Tong

Resp. Party: Plaintiffs Remax Titanium Team Nuvision and Rudy Kusuma

Defendants’ motion for summary judgment is GRANTED.

PRELIMINARY COMMENTS:

Defendants’ MPA is replete with CAPITLIZED words, bolded words, BOLDED AND CAPITALIZED words, and underlined words. This makes reading the MPA more difficult.

Plaintiff’s opposition cuts-and-pastes (or “snips”) sections from Defendants’ MPA. It would be more readable if Plaintiffs quoted Defendants’ words, rather than pasted a screen-shot of Defendants’ words.

BACKGROUND:

This lawsuit arises out a dispute between realtors concerning the sale of James D. Olson’s real property. Plaintiffs Remax Titanium Team Nuvision (“Remax”) and Rudy Kusuma allege James Olson executed a purchase agreement and joint instructions with DLA Investments, LLC that listed Plaintiffs as the brokers. Plaintiffs also allege that before escrow closed William Tong, who is the principal of Golden Land Investments & Financial, Inc. (“Golden Land”), persuaded Olson to cancel the purchase agreement and enter another purchase agreement with Farid Zahir that listed Golden Land as the listing agent. Plaintiffs’ lawsuit asserts a cause of action, among others, for interference of contractual relations against Golden Land.

Plaintiffs commenced this action on April 12, 2017 against Defendants Golden Land, William Tong, and James Olson for: (1) breach of contract; and (2) intentional interference with contractual relations, arguing Defendants interfered with Plaintiffs’ contract of the sale of real property.

On October 5, 2017, Olson died. The Los Angeles County Public Administrator is the personal representative of The Estate of James D. Olson (the “Public Administrator”).

On May 14, 2019, Plaintiffs’ filed their first amended complaint (“FAC”) for (1) breach of contract; and (2) intentional interference with contractual relations. The breach of contract claim is asserted against Defendant Olson and the intentional interference claim is asserted against Defendants Golden Land and Tong.

On July 1, 2019, the Court sustained the Public Administrator’s demurrer to the FAC without leave, and subsequently dismissed the Public Administrator from the FAC.

On June 29, 2018, Cross-Complainant/Defendant Golden Land filed the operative first amended cross-complaint (“FACC”) which asserts causes of action for: (1) Inducing Breach of Contract, (2) Intentional Interference with Contractual Relations, (3) Indemnity, (4) Breach of Contract, (5) Misrepresentation, and (6) Negligence.

On November 22, 2019, Defendants William Tong and Golden Land filed the instant motion for summary judgment, or in the alternative, motion for summary adjudication as to Plaintiffs’ claims against them.

ANALYSIS:

A. Evidentiary Objections

Plaintiffs submit 19 evidentiary objections to Defendants’ evidence in support of their motion. The Court OVERRULES thse objections. (The Court notes that the statements objected to in objections 15-17 are irrelevant. But since they are irrelevant, they don’t affect the Court’s analysis, and there is no reason for Plaintiffs to waste their time objecting to these statements, or for the Court to sustain the objections.)

B. Procedural Issues

Plaintiffs argue that the motion for summary judgment, or in the alternative, summary adjudication should be denied because it has the following various procedural flaws:

1. Kevin Liu, Esq.' s declaration in support of this motion to authenticate exhibits is procedurally improper based on Evidence Code Section 1271.

2. It is not clear whether Defendants are seeking summary judgment or summary adjudication.

3. Defendants Golden/Tong's motion is procedurally defective because the Separate Statement of Undisputed Material Facts as to their motion for summary adjudication does not comply with Code of Civil Procedure ("CCP") section 437c(b)(3) and California Rules of Court, rule 3.1350.

4. The moving party's memorandum is 13 pages long, and does not contain a table of contents or table of authorities pursuant to California Rules of Court, rule 3.1113(f). (Opp., pp. 2:18-3:4.)

As to the first issue, it is not necessary for an individual with personal knowledge to testify regarding a business record, as long as he or she is familiar with the procedures followed. (Jazaryeri v. Mao (2009) 174 Cal. App. 4th 301, 322.) “The key to establishing admissibility of a document made in the regular course of business is proof that the person who wrote the information or provided it had knowledge of the facts from personal observation.” (Ibid.) Furthermore, documents are routinely authenticated through declarations submitted by attorneys, who have personal knowledge of how the exhibits were obtained and identified, who had identified them, and their status as true and correct copies of the “originals.” (Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 523.)

Here, Defendants’ counsel, Kevin Liu, Esq., sufficiently authenticated the documents by establishing his personal knowledge thereof. (Liu Decl., ¶¶ 1-4.) Further, Plaintiffs rely upon some of the exhibits Defendants submitted, and an authentication objection should not be sustained where the objecting party relied on the same evidence. (Sierra v. Santa Clara University (2014) 226 Cal.App.4th 830, 855.)

As to the second and third issues, a court cannot adjudicate any issue except those precisely stated in the notice.  (Gonzales v. Sup. Ct. (1987) 189 Cal. App. 3d 1542, 1546.) California Rules of Court, rule 3.1350, subdivision (d) states:

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”

Defendants’ notice of motion states that they move for summary judgment “on the grounds that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In the alternative, “the defendants shall move the court pursuant to [Code of Civil Procedure section] 437c, [subdivision] (f), on the grounds that the cause of action alleged in the pleadings, the second cause of action for intentional interference with contractual relation, ha[s] no merit.” (01/03/20 Notice of Errata, Ex. A, Motion for Summary Judgment/Adjudication (“Motion”), p. 5:5-12.)

The Court finds that there are no defects with Defendants’ notice of motion. Based on the notice of motion, the Court may determine whether summary judgment is proper, or in the alternative, whether summary adjudication as to the second cause of action for intentional interference of contractual relations is proper.

The separate statement identifies the sole issue for this motion for summary judgment or summary adjudication – whether the one cause of action asserted against Defendants, the intentional interference of contractual relations, is proper. The Court also finds that the separate statement is in proper format.

As to the fourth issue, “[a] memorandum that exceeds 10 pages must include a table of contents and a table of authorities.” (Cal. Rules of Court, rule 3.1113(f).) Defendants filed a notice of errata on January 3, 2020, identifying that it erroneously filed its motion for summary judgement without the table of contents or table of authorities, and submitted another motion to cure these issues. As Plaintiffs filed their opposition on January 22, 2020, Plaintiffs had sufficient notice of Defendants’ notice of errata.

The Court will therefore reach the merits of the motion.

C. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code of Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

D. Discussion

a. Intentional Interference with Contractual Relations

Defendants explain that “Plaintiffs[’] principal complaints [sic] as to Moving Defendants, is the allegation that Moving Defendants tortuously interfered with the agency relationship between Plaintiffs and the decedent Olson, and as a result, Plaintiffs allege injuries that they were denied sales commissions owed to them by Olson under the terms of Remax’s listing agreement with Olson.” (Motion, p. 3:16-20.)

Defendants assert that they “had an existing listing agreement when Plaintiffs approached Decedent and executed their listing agreement during the exclusive listing period given to Moving Defendants by Decedent.” (Motion, p. 6:20-22.) Therefore, “there is no contractual relationship, no prospective commission, no tortuous conduct, and no legal injury for purpose of the claim for tortuous interference alleged by Plaintiffs.” (Id. at p. 6:22-24.)

Plaintiff’s second cause of action is for intentional interference with contractual relations, based on a Listing Agreement Plaintiffs entered into with Defendant Olson on January 15, 2017, for the sale of the property. (FAC, ¶ 69.)

The elements of a cause of action for intentional interference with contractual relations are: “(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

Business and Professions Code section 10018.15 defines an exclusive right to sell listing agreement as:

“[A] listing agreement whereby the owner grants to a seller's agent, for a specified period of time, the exclusive right to sell, find, or obtain a buyer for the real property, and the seller's agent is entitled to the agreed compensation if, during that period of time, the real property is sold, no matter who effected the sale, or when the seller's agent receives and presents to the owner any enforceable offer from a ready, able, and willing buyer on terms that are authorized by the listing agreement or accepted by the owner. An ‘exclusive right to sell listing agreement’ may provide for compensation to the seller's agent if the property is sold within a specified period after termination of the listing agreement.” (Bus. & Prof. Code, § 1018.15.)

It is the general rule that when a contract specifies the period of its duration, it terminates on the expiration of such period.” (Beatty Safway Scaffold, Inc. v. Skrable (1960) 180 Cal.App.2d 650, 654.) It is also a general principle that “[w]here a contract has but a single object, and such object is . . . wholly impossible of performance . . . the entire contract is void.” (Civ. Code, § 1598.)

The undisputed facts show that on August 24, 2016, Olson entered into a Residential Listing Agreement with Golden Land and Tong for the sale of real property identified as 3910 Drysdale Ave., Los Angeles, CA 90032. (Liu Decl., Ex. 1.) This agreement began on August 24, 2016 and expired on February 23, 2017. (Ibid.) The agreement states that Olson grants Defendants with “the exclusive and irrevocable right to sell” the subject property during the period of August 24, 2016 and February 23, 2017. (Ibid.)

It is also undisputed that on February 3, 2017, Olson and Plaintiffs signed a different Residential Listing Agreement that began on January 15, 2017 and end on May 31, 2017 for the sale of real property identified as 3910 Drysdale Ave., Los Angeles, CA 90032. (Liu Decl., Ex. 4.)

This second listing agreement between Olson and Plaintiffs did not invalidate and/or replace the prior listing agreement between Olson and Defendants. (Liu Decl., Ex. 5, Tong Depo., p. 29:2-13.) It is also undisputed that Olson did not cancel his original listing agreement with Defendants and their duties in representing Olson’s best interests continued until the agreement expired on February 23, 2017. (See Liu Decl., Ex. 1.)

On January 30, 2017, DLA Investments, LLC (“DLA”) executed a Residential Income Property Purchase Agreement and Joint Escrow Instructions to purchase the Subject property from Olson for $640,000.00 with Plaintiff Remax as the Listing Agent. (Liu Decl., Ex. 7.) This agreement states that Remax is the listing agent of the seller exclusively. (Ibid.)

The Court finds that it is undisputed that the exclusive listing agreement with Defendants and Olson predated the agreement between Olson and Plaintiffs, and existed at the time Plaintiffs obtained their listing agreement with Olson. It would have been impossible for Olson to grant the exclusive right to sell to Plaintiffs while Defendants’ and Olson’s exclusive listing agreement was in effect; Plaintiffs’ subsequent exclusive listing agreement with Olson is void. Further, Plaintiffs do not rebut Defendants’ evidence in order to demonstrate there is a triable issue of material fact that their contract with Olson is valid.

Defendants have presented undisputed evidence that negates the essential first element of the intentional interference with contractual relations claim.

The Court GRANTS Defendants’ motion for summary judgment and summary adjudication.

Case Number: BC657788    Hearing Date: January 23, 2020    Dept: 34

SUBJECT: Motion for Summary Judgment, or alternatively for Summary Adjudication, to Cross-complainant Golden Land Investment & Financial, Inc.’s First Amended Cross-complaint

Moving Party: Cross-Defendant Los Angeles County Public Administrator, as Administrator of the Estate of James Olson (“Public Administrator”)

Resp. Party: Cross-complainant/Defendant Golden Land Investment & Financial, Inc. (“Golden Land”)

The Public Administrator’s motion for summary judgment is GRANTED.

BACKGROUND:

This lawsuit arises out a dispute between realtors concerning the sale of James D. Olson’s real property. Plaintiffs allege Olson executed a purchase agreement and joint instructions with DLA Investments, LLC that listed Plaintiffs as the brokers. Plaintiffs also allege that before escrow closed William Tong, who is the principal of Golden Land Investments & Financial, Inc. (“Golden Land”), persuaded Olson to cancel the purchase agreement and enter another purchase agreement with Farid Zahir that listed Golden Land as the listing agent. Plaintiffs’ lawsuit asserts a cause of action, among others, for interference of contractual relations against Golden Land.

On October 5, 2017, Olson died. The Los Angeles County Public Administrator is the personal representative of The Estate of James D. Olson (the “Public Administrator”).

On July 1, 2019, the Court sustained the Public Administrator’s demurrer to the FAC without leave, and subsequently dismissed the Public Administrator from the FAC.

On June 29, 2018, Cross-complainant/Defendant Golden Land filed the operative first amended cross-complaint (“FACC”) which asserts causes of action for: (1) Inducing Breach of Contract, (2) Intentional Interference with Contractual Relations, (3) Indemnity, (4) Breach of Contract, (5) Misrepresentation, and (6) Negligence.

Causes of action 3-6 are against The Estate of James D. Olson, among other defendants.

On October 25, 2019, Cross-defendant The Estate of James D. Olson, through the Public Administrator, filed this motion as to Golden Land’s FACC. On January 9, 2019, Golden Land filed an opposition. The Public Administrator’s Reply was filed on January 17, 2020.

EVIDENTIARY OBJECTIONS:

The Public Administrator’s objections do not comply with California Rules of Court, Rule 3.1354, and hence the Court need not rule on them. (See CRC, Rule 3.1354(a) and (c).) Further, none of the objections are material to the Court’s ruling on the Motion for Summary Judgment. (See CCP § 437c(q).)

Nonetheless, for the sake of completeness, the Court makes the following rulings on these objections:

Objection

1

SUSTAINED

2 ¶7

SUSTAINED

3 ¶ 8

SUSTAINED

4 ¶9

SUSTAINED

5 ¶ 14

SUSTAINED

6 ¶ 15

SUSTAINED

7 ¶ 21

SUSTAINED

8 ¶ 22

SUSTAINED

ANALYSIS:

Cross-defendant Public Administrator brings its motion for summary judgment, or alternatively summary adjudication, on the following grounds:

(1) The Public Administrator is not liable to Cross-Complainant for indemnity because a right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury. Since the Public Administrator and Cross-Complainant are not liable to Plaintiffs Remax Titanium Team Nuvision and Rudy Kusuma ("Plaintiffs") for the same injury, there is no basis for equitable indemnity.

(2) Cross-Complainants cause of action for breach of contract against the Public Administrator fails because damages which are remote, contingent or merely possible cannot serve as a legal basis for recovery.

(3) Cross-Complainant cannot prove essential elements of its cause of action for misrepresentation against the Public Administrator because James Olson made no false representation to Cross-Complainant.

(4) The Public Administrator is not liable to Cross-Complainant for negligence because James Olson owed no duty of care to Cross-Complainant.

A. Evidentiary Objections

Neither party has filed evidentiary objections. While Golden Land appears to object to evidence in its responsive statement, evidentiary objections in writing must be separately filed. (CRC, Rules 3.1352, 3.1354(b) [“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.”].) Thus, written objections in a separate statement are improper, and the Court does not consider them.

B. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code of Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

C. Discussion

The Court addresses each ground of the Public Administrator’s motion against the FACC below.

1. Request for Judicial Notice

The Court GRANTS the Public Administrator’s request to take judicial notice of records of this court (RJN, Exhs. 1-5). (Evid. Code, § 452(d)(1).) Nonetheless, the Court notes that it is not necessary to request judicial notice of pleadings in the current case; a party can always cite to pleadings that are already part of the current case file.

2. On-Going Discovery: CCP § 437c(h)

Golden Land requests the motion be denied because discovery is on-going and both parties are still working to obtain evidence from key witnesses. The Court has authority to deny or continue a motion for summary judgment when key facts may exist but have not been discovered and the party seeking the denial or continuance puts forth in affidavits the reasons it has been unable to obtain the subject evidence.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c(h).)

Golden Land’s affidavits submitted in opposition do not assert that any facts essential to justify the opposition may exist but cannot, for reasons stated, be presented. In facts, Golden Land’s affidavits do not even address this issue. Golden Land states only in the memorandum of points and authorities that “third-party individuals including the real estate agent representing DLA; ZAHIR; and real estate agent experts who can attest to the complexity of two competing exclusive listings” have yet to be deposed. (Opp. 13:27-28.) Golden Land contends these persons are key witnesses and may help negate key elements in the moving papers. Even if the Court overlooked the requirement that Golden Land must put its reasons for denial in affidavits, the reasons provided in the memorandum of points and authorities are conclusory and are insufficient to deny the motion under section 437c(h).

Thus, the Court proceeds to the merits of the motion.

3. Third Cause of Action – Indemnity

The Public Administrator contends Golden Land cannot establish a cause of action against the Public Administrator for indemnity because the Court dismissed Plaintiffs’ first amended complaint against the Public Administrator and equitable indemnity maybe obtained only from one who is jointly and severally liable to the injured party based on the commission of a tort.

It is undisputed that Golden Land’s indemnity claim does not assert vicarious liability, strict liability, or express contractual indemnity against the Public Administrator. Instead, the claim is based on equitable indemnity based on implied contractual indemnity. (Opp. 11:19.)

[T]raditional equitable indemnity differs significantly from express contractual indemnity, in that the former is not available in the absence of a joint legal obligation to the injured party. [citation] Consequently, as to matters of substantive law one may defend against a traditional equitable indemnity action by relying on “whatever immunities or other limitations on liability would otherwise be available” against the injured party. [citation] The principal question for us is whether or not a requirement of a joint legal obligation also applies when implied contractual indemnity is at issue. We conclude the answer is yes, based on the underlying rationale of this common law doctrine and the case law that has developed over the years.

(Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160-1161, emphasis added.) In Prince, plaintiff Jackson suffered injuries while on Prince’s property when Jackson attempted to dislodge a kite from a power line. (Id. at 1155.) Jackson initially filed a lawsuit against Pacific Gas & Electric Co. because it controlled the power lines. (Id. at 1156.) But, the lawsuit was dismissed because PG&E was immune from liability to Jackson. (Ibid.) Then, Jackson sued Prince for premises liability. (Ibid.) Prince, in turn, filed a cross-complaint against PG&E for indemnity. (Ibid.) In Prince, the issue before the California Supreme Court was whether PG&E was liable to Prince for indemnity under implied contractual indemnity. (Id. at 1161.) “PG & E argues its immunity under section 846 shields it from liability for implied contractual indemnity.” (Id. at 1159.) The court agreed with the argument and stated, “even assuming the existence of a sufficient contractual relationship and duty, PG & E’s immunity from liability to Jackson bars Prince from recovering implied contractual indemnity in any event.” (Id. at 1060.) After reviewing several cases that discuss implied contractual indemnity, the court held “that implied contractual indemnity has always been subject to the rule that ‘there can be no indemnity without liability.’ [citation] Application of this rule here compels the conclusion that PG & E’s immunity from liability to Jackson under section 846 bars Prince from recovering on an implied contractual indemnity theory.” (Id. at 1165.)

Here, Golden Land alleges the existence of a contract between it and Olson. (FACC ¶ 20.) However, Golden Land cannot show the Public Administrator is liable, or shares legal responsibility, to the Plaintiffs in this lawsuit because the Court sustained the Public Administrator’s demurrer to the Plaintiffs’ action without leave and later dismissed the Public Administrator from the action. (UMF 12.) Thus, a claim for implied contractual indemnity fails as a matter of law because there can be no indemnity without liability.

In opposition, Golden Land quotes Prince for the proposition that, “an implied contractual indemnity claim, like a traditional equitable indemnity claim, is subject to the American Motorcycle rule that a party’s liability for equitable indemnity is based on its proportional share of responsibility for the damages to the injured party.” (Prince, supra, 45 Cal.4th at 1165.) But, this portion of Prince supports the principle that the implied contractual indemnity claim must have “the required showing that [proposed indemnitor] bears some legal responsibility for [third-party’s] injuries.” (Id. at 1168.) Here, the Public Administrator has no legal responsibility for Plaintiffs’ injuries because the Court sustained the Public Administrator’s demurrer without leave and dismissed the party from the Plaintiffs’ action.

Accordingly, the Public Administrator meets its burden to show the cause of action has no merit because not all of the elements of the cause of action can be established.

In opposition, Golden Land does not show that a triable issue of one or more material facts exists as to the cause of action, and thus, Golden Land does not meet its burden.

Golden Land contends it would be entitled to attorneys’ fees if Golden Land’s claim for indemnity is successful. (Opp. 12:1-13:14.) This argument does not address the issue of whether the claim for indemnity itself has merit. The issue of whether Golden Land could recover attorneys’ fees based on its indemnity claim assumes the success of the indemnity claim. Thus, the Court is not persuaded this contention helps show the indemnity claim has merit.

Summary adjudication is GRANTED as to the third cause of action against the Public Administrator.

4. Fourth Cause of Action – Breach of Contract

The Public Administrator contends the cause of action for breach of contract against the Public Administrator fails because damages which are remote, contingent or merely possible cannot serve as a legal basis for recovery.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

“No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.” (Civ. Code, § 3301.)

A claim for lost profits is not sufficiently ascertainable when it is based on “assumptions [that are] inherently uncertain, contingent, unforeseeable and speculative.” (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739.)

In the moving papers, the Public Administrator presents the following evidence. Golden Land contends it would have received a higher commission but for Cross-defendants’ interference. (UMF 13.) Golden Land’s claim for lost profits is based on the assumption that but for Olson’s signing a listing agreement with Plaintiff Remax: (1) Olson would not have been motivated to quickly sell his property because of fear that the government was going to foreclose on the property, (2) the tenants would have been evicted, and (3) the actual buyer or some other, yet to be discovered buyer, would have been ready, willing, and able to purchase the property for more than the $640,000 selling price before Golden Land’s listing agreement had expired. (UMF 15.)

The Court determines the Public Administrator’s evidence sufficiently shows Golden Land’s claim for lost profits is based on assumptions that are inherently uncertain, contingent, unforeseeable, or speculative. Thus, damages for breach of contract would not be sufficiently ascertainable to be recoverable.

Accordingly, the Public Administrator meets its burden to show the cause of action has no merit because the Public Administrator shows the element of damages of the cause of action cannot be established.

Next, the burden shifts to Golden Land.

After reviewing Golden Land’s memorandum of points and authorities and responsive separate statement, the Court finds Golden Land fails to put forth any evidence on this issue, and therefore, Golden Land does not raise a triable issue of material fact. Further, any damages that Golden Land may have had “to its reputation in the real estate community as a result of this lawsuit” are not compensable. (See Opposition, p. 4:24-25.) Thus, Golden Land does not meet its burden.

Summary adjudication is GRANTED as to the fourth cause of action against the Public Administrator.

5. Fifth Cause of Action – Misrepresentation

The Public Administrator contends Golden Land cannot prove essential elements of its cause of action for misrepresentation against the Public Administrator because James Olson made no false representation to Golden Land.

Claims for intentional and negligent misrepresentation require that the defendant make a false representation. (CACI (2020) Nos. 1900, 1903.)

“[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1102.)

The Court determines the Public Administrator meets its burden by showing Golden Land cannot establish Olson made an affirmative misrepresentation. Tong testified as follows:

Q: To your knowledge, did Mr. Olsen ever make a false statement to you about anything concerning this sale?

A: No, as far as I know. (UMF 17.)

Next, the burden shifts to Golden Land to show a triable issue of material fact.

Golden Land provides the declaration of Tong, who states: “Between February 3, 2017 and February 14, 2017, I was still in active communications with OLSON regarding the marketing of the Subject Property to increase interest in it, and OLSON never informed me that REMAX was involved or that the Subject Property was in escrow.” (Opp., Tong Decl. ¶ 11, emphasis added.)

Tong’s declaration does not raise a triable issue of material fact because it does not show Olson affirmatively misrepresented material facts. At best, it shows Olson concealed material facts. But, the cause of action is for “Misrepresentation” based on Olson’s alleged misrepresentations. (FACC ¶¶ 75-77.)

In response to UMF 17, Golden Land cites to allegations in the FACC. These allegations are not verified, so, alone, they are insufficient to show a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2) [“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.”].)

Based on the foregoing, the Court finds Golden Land does not raise a triable issue of material fact. Thus, Golden Land does not meet its burden.

Summary adjudication is GRANTED as to the fifth cause of action against the Public Administrator.

6. Sixth Cause of Action – Negligence

The Public Administrator contends it is not liable to Golden Land for negligence because James Olson owed no duty of care to Golden Land.

In the moving papers, the Public Administrator asserts the FACC does not allege that Olson had a duty of care to Golden Land. (Mot. 18:19; UMF 22.) A review of the FACC confirms this. The Public Administrator also asserts “no California court has held that when a seller retains a broker to sell his property that the seller has a duty of care to the broker.” (Mot. 18:20)

Based on the foregoing, the Public Administrator meets its burden because it shows Golden Land cannot establish the element of duty.

Next, the burden shifts to Golden Land to show a triable issue of fact.

In opposition, Golden Land does not dispute that the FACC does not allege Olson owed a duty of care to Golden Land. (Response to UMF 22.) Also, Golden Land does not dispute the contention that no California court has held that when a seller retains a broker to sell his property that the seller has a duty of care to the broker.

Thus, the Court finds Golden Land does not meet its burden.

Summary adjudication is GRANTED as to the sixth cause of action against the Public Administrator.

D. Conclusion

The Public Administrator’s Motion for Summary Judgment is GRANTED.