THE WINDERMERE RELOCATION RAPE CASE
Court Declares that Windermere "...condoned a rape by a business colleague..."
The incredibly violent and insidious psychological ramifications of rape, connected through an “abusive work environment” serves as an unfortunate—yet credible—subtext for the way in which Windermere Real Estate treats employees and defrauded, damaged customers alike. Windermere’s application of aggressive, wasteful and mendacious litigation to stall and ruin innocent consumers serves as the coercive metaphor of corporate power and arrogance: Windermere has no genuine concern for the damage it has done to families or society, It cares only about how to manipulate the law and the courts to avoid any legal responsibility—and about how to deflect bad PR with disingenuous promotion like "Building Communities" and "The Windermere Foundation."
(Left to right) Windermere CEO Geoff Wood (far left) is listed as a Governing Person of Windermere Relocation. Peggy Scott (second from left), also a Governing Person of Windermere Relocation, "... did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint..." Windermere attorney Paul Stephen Drayna (third from left) is listed as the registered agent of RELO LLC, the entity name of Windermere Relocation. Windermere Founder John W. Jacobi (fourth from left) along with Gayle Glew (far right) are listed as Governing Persons of Windermere Relocation during the Little case. Glew told Ms. Little he did not want any "clouds in the office," and after she would not accept a pay cut, that she should "...clean out her desk."
All citizens who abhor such treatment of women in the workplace should recall Maureen Little v. Windermere Relocation when choosing real estate services. WindermereWatch visitors will also want to read the United States District Court of Appeals Ninth Circuit's Order and Amended Opinion from the Little case.
THE COURT STATED: "In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[ ]."
... "When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's "immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little" ... (COURT'S QUOTE HERE)
... Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.' " When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.
... In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[ ]." (COURT'S QUOTE HERE)
DOWNLOAD A PDF COPY OF THE COURT'S ORDER AND AMENDED OPINION HERE
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUITMAUREEN LITTLE,
Plaintiff-Appellant,No. 99-35668
v.
WINDERMERE RELOCATION, INC., a Washington corporation,
Defendant-Appellee.Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding
Argued and Submitted March 6, 2001--Seattle, Washington
Opinion Filed September 12, 2001
Amended January 23, 2002Before: Harry Pregerson, Sidney R. Thomas and
Ronald M. Gould, Circuit Judges.Opinion by Judge Thomas
D.C. No. CV-98-01184-RSL
ORDER AND AMENDED OPINION
COUNSEL
Marilee Erickson and Danielle A. Hess, Reed McClure, Seattle, Washington, for the appellant. Patrick N. Rothwell, Abbott, Davis, Rothwell, Mullin & Earle, P.C., Seattle Washington, for the appellee.
ORDER
The opinion filed on September 12, 2001, is hereby amended. With the amendments, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b).
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
OPINION
THOMAS, Circuit Judge:
Maureen Little ("Little") appeals from an order granting summary judgment on her claims of hostile work environment and retaliation in violation of Title VII, and wrongful dis- charge in violation of Washington state law. Because genuine issues of material fact exist on these claims, we reverse the judgment of the district court. We affirm the dismissal of her state law claim of negligent infliction of emotional distress.
Taking the facts in the light most favorable to the plaintiff, as we must in evaluating the propriety of a grant of summary judgment, see Ellison v. Brady, 924 F.2d 872, 873 (9th Cir. 1991), the events leading up to this lawsuit occurred as follows:
Little was employed by Windermere Relocation Services, Inc. ("Windermere") as a Corporate Services Manager, a position that required her "to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees." Until she was terminated, she received only positive feedback from her supervisors. Windermere's records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.
Unlike the other managers, Little's employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The over-ride was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.
One of Windermere's clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would "do whatever it takes to get this account" and that Little should "do the best job she could." Thus, Little believed that, as part of her job, she was to build a business relationship with Guerrero to try to get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.
On October 14, Little accepted Guerrero's invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drove her to her car.
Little was reluctant to tell anyone at Windermere about the rape because, in her own words, "I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account." This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little's supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared "what might happen to [Little] if [she] did tell."
On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere's Harassment Policy as a complaint-receiving manager. Little described Scott's response:
She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].
Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.
Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks . . . a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position. . . . I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.
When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's "immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.
She told me [later] that she had no idea Mr. Glew was going to cut my salary. It did not appear he had talked with her about my pay structure prior to his making his decision . . . . [She] was crying and she was upset, she said she had no idea that Gayle was going to talk about this at all. And she had no idea he was going to reduce my pay. And that she didn't want me to leave and she didn't know what to do. And she was pretty upset about the whole thing.
Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.' " When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.
Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000(e), and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims. We review the district court's grant of summary judgment de novo . Ellison, 924 F.2d at 873.
II
Little alleges that Windermere's response to the rape created a hostile work environment in violation of Title VII and the Washington Law Against Discrimination, Rev. C. Wash. § 49.60.180(3). Because Washington sex discrimination law parallels that of Title VII, see Payne v. Children's Home Society of Washington, Inc., 892 P.2d 1102, 1105 (Wash. Ct. App. 1995), it is appropriate to consider Little's state and federal discrimination claims together.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination, including sexual harassment, in employment. 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986).
When evaluating a claim of sexual harassment based on a hostile work environment, we must determine two things: whether the plaintiff has established that she or he was subjected to a hostile work environment, and whether the employer is liable for the harassment that caused the environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-89 (1998); Nichols v. Azteca Rest. Enters., Inc. , 256 F.3d 864, 871-75 (9th Cir. 2001). Both present mixed questions of law and fact that we review de novo. See Id. at 871, 875.
A
To establish that she was subjected to a hostile work environment, a plaintiff must prove that "1) she was subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) this conduct was sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment." Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (internal quotations and citation omitted). There is no doubt that Little was subjected to unwelcome physical conduct of a sexual nature; the dispute here centers around the third element: whether the conduct was sufficiently severe or pervasive to create an abusive or hostile work environment. The district court did not make any findings on the severity or pervasiveness of the conduct, but rather found that liability could not be imputed to Windermere, and granted summary judgment on that basis. However, Little does not seek relief based on imputed liability for the rape. Rather, her claim is about whether Windermere's reaction to the rape created a hostile work environment.
Under the third element, to determine whether an environment is sufficiently hostile or abusive to violate Title VII, we look "at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Clark County Sch. Dist. v. Breeden, _______ U.S. _______, 121 S. Ct. 1508, 1510 (2001) (internal quotation marks and citations omitted); see Nichols, 256 F.3d at 872. Moreover, "the work environment must both subjectively and objectively be perceived as abusive," Fuller, 47 F.3d at 1527 (citation omitted), and the objective portion of the claim is evaluated from the reasonable woman's perspective. Ellison, 924 F.2d at 879-80.
Little has tendered sufficient evidence to preclude summary judgment on her hostile work environment claim. Guerrero's rape of Little was "severe." Under the circumstances, it would have made a reasonable woman feel that her work environment had been altered: The nature of Little's employment extended the work environment beyond the physical confines of the corporate office. Having out-of-office meetings with potential clients was a required part of the job. The rape occurred at a business meeting with a business client. However, more significantly, Windermere's subsequent actions reinforced rather than remediated the harassment. Although she had no further contact with Guerrero, Little was not effectively removed from responsibility for the account. She was informed that reporting the rape would probably result in an adverse employment action, even to the point of jeopardizing her career. When she reported the rape to the President, he immediately decreased her compensation and referred her to corporate lawyers. Windermere disputes the significance of many of these events. However, viewing the facts in the light most favorable to Little, Windermere's failure to take immediate and effective corrective action allowed the effects of the rape to permeate Little's work environment and alter it irrevocably. Thus, genuine issues of material fact exist as to whether the "conduct was sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment" for Little. Fuller, 47 F.3d at 1527.
The tendered evidence stands in contrast to the circumstances of Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000). In Brooks, we held that a"single incident" of harassment that was not "severe" and that was followed by immediate corrective action by the employer was not sufficiently "severe or pervasive" to create a hostile work environment. Id. at 925-26. Here, in contrast to the single instance of fondling in Brooks, Little was victimized by three violent rapes. In Brooks, the harassing employee was fired; here, not only was there no remediation, the harassment was arguably reinforced by Little's employer.
A single "incident" of harassment -- and we assume arguendo that three rapes in the course of one evening constitutes a "single" incident -- can support a claim of hostile work environment because the "frequency of the discriminatory conduct" is only one factor in the analysis. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (noting that "no single factor is required"). Conduct is actionable if it is either "sufficiently severe or pervasive." Meritor, 477 U.S. at 67 (emphasis added). Indeed, the Supreme Court recently noted that an isolated incident can amount to a "discriminatory change[ ] in the `terms and conditions of employment' " when the incident is "extremely serious." Breeden, _______ U.S. _______, 121 S. Ct. at 1510 (citation omitted). Other circuits have come to a similar conclusion. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (noting that "even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for purposes of Title VII liability"); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990) (holding that a single incident where supervisor picked up plaintiff and forced her face against his crotch impliedly considered to create hostile environment); cf. DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir. 1996) ("[Although this single incident was insufficient, we do not] hold that a single incident of harassment never will support an actionable
claim.").
Rape is unquestionably among the most severe forms of sexual harassment. Being raped by a business associate, while on the job, irrevocably alters the conditions of the victim's work environment. It imports a profoundly serious level of abuse into a situation that, by law, must remain free of discrimination based on sex. Being raped is, at minimum, an act of discrimination based on sex. See Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) ("Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee's sex."). Thus, the employer's reaction to a single serious episode may form the basis for a hostile work environment claim.
In sum, taking the facts in the light most favorable to Little, because her employer effectively condoned a rape by a business colleague and its effects, Little was subjected to an abusive work environment that "detract[ed] from [her] job performance, discourage[d] [her] from remaining on the job, [and kept her] from advancing in [her] career[ ]." See Harris, 510 U.S. at 22.
B
Having determined that Little has presented a triable issue of whether she was subjected to a hostile work environment, we must decide whether Windermere can be liable for the harassment. See Nichols, 256 F.3d at 875; see also Meritor, 477 U.S. at 70-72 (noting that a Title VII plaintiff must also provide a basis for holding her employer liable for the harassment). "The relevant standards and burdens pertaining to employer liability vary with the circumstances." Nichols, 256 F.3d at 875.
In this circuit, employers are liable for harassing conduct by non-employees "where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct." Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997); see also Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998) (adopting Folkerson standard). The Equal Employment Opportunity Commission Guidelines endorse this approach: "An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action." 29 C.F.R.§ 1604.11(e) (emphasis added). Thus, if Windermere ratified Guerrero's rape of Little by failing to take immediate and effective corrective action, it is liable for the harassment.
Windermere's precise remedial obligations are defined by Ellison v. Brady:
[T]he reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy's ability to persuade potential harassers to refrain from unlawful conduct.
924 F.2d at 882 (footnote omitted). In addition,"[i]f 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach." Fuller, 47 F.3d at 1528-29.
As discussed above, Windermere's response to the rape was equivocal at best. Construing the facts in the light most favorable to Little, she was informed that she should "do anything" to get the account; she was advised by a co-worker not to report the incident to top management because it would damage her career; when she reported the rape to her supervisor, she was not effectively removed from the account; and, when she finally reported the incident to the President, she was demoted and terminated. There is no evidence that Windermere took steps to prevent contact between Little and Guerrero, such as effectively removing Little from the account or informing Starbucks that it must replace the contact it used with Windermere. Because of Windermere's failure to take appropriate remedial measures, Little has raised sufficient genuine issues of material fact as to whether Windermere ratified or acquiesced in the harassing conduct, and we reverse the district court's contrary conclusion.
C
In sum, Little has raised genuine issues of material fact as to whether Windermere's actions (or inactions) subsequent to Guerrero's rape of Little subjected Little to a hostile work environment. Windermere will be liable for the hostile work environment created at Windermere after Guerrero's rape if a jury finds that it ratified or acquiesced in the rape by failing to take immediate corrective action once it knew or should have known of the rape. Therefore, the district court erred in granting summary judgment on this claim.
III
Little also alleges that Glew reduced her pay and terminated her in retaliation for reporting the rape in violation of Title VII and the Revised Code of Washington § 49.60.210. Because Washington courts look to interpretations of federal law when analyzing retaliation claims, we again consider Little's state and federal claims together. See Graves v. Dept. of Game, 887 P.2d 424, 428 (Wash. Ct. App. 1994). Genuine issues of material fact preclude summary judgment on this claim.
To establish a prima facie retaliation claim under the opposition clause of 42 U.S.C. § 2000e-3(a), Title VII, Little must show 1) her involvement in a protected activity, 2) an adverse employment action taken against her, and 3) a causal link between the two. See Brooks, 229 F.3d at 928. Title VII provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter. " 42 U.S.C. § 2000e-3(a). It is unnecessary that the employment practice actually be unlawful; opposition thereto is protected when it is "based on a `reasonable belief ' that the employer has engaged in an unlawful employment practice." Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) (emphasis in original, citation omitted).
A prima facie case may be based on direct or circumstantial evidence. Id. "Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons." Id. The plaintiff can rebut this by producing "specific, substantial evidence of pretext." Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996). Pretext, too, may be shown by circumstantial evidence, see Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984), but it must consist of "more than a mere refutation of the employer's legitimate reason and [a mere assertion] that the discriminatory reason be the cause of the firing," Wallis, 26 F.3d at 890 (citation omitted).
Little established a prima facie case. The district court correctly found that Little could have reasonably believed that, in reporting the rape to Scott, she was opposing an unlawful employment practice. See Moyo, 40 F.3d at 985. Given Lit tle's belief that her relationship with Guerrero was strictly business, and that she met with him because it was part of her job as a Windermere employee, her belief that Windermere was required to take action in response to his assault of her was eminently reasonable. See, e.g., Fuller, 47 F.3d at 1528-29 (holding that an employer must remedy situation of sexual harassment).
Second, Glew's reduction of her guaranteed monthly base salary from $3,000 (including the override) to $2,000 constituted an "adverse employment action." An "adverse employment action" is "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in a protected activity." Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (citing EEOC Compliance Manual Section 8, "Retaliation, " ¶ 8008 (1998)). This definition includes actions "materially affect[ing] compensation, terms, conditions, or privileges" of employment. 42 U.S.C. § 2000e-2(a)(1); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109 (9th Cir. 2000). A cut in base pay is clearly such an adverse action, despite, as the district court noted, Little's "hopes and expectations [of her sales and bonuses] for coming months or years." See Ray, 217 F.3d at 1241 (9th Cir. 2000) (noting that "adverse employment action" is defined broadly); see, e.g., Hashimoto, 118 F.3d at 676 (holding that the dissemination of a negative job reference constitutes an "adverse employment action"). And, of course, termination of employment is an adverse employment action; Little has presented triable issues of fact that she was, indeed, fired.
Third, Little has presented evidence that the adverse employment action occurred within minutes of her reporting the rape to Glew. This close timing provides circumstantial evidence of retaliation that is sufficient to create a prima facie case of retaliation. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone); see, e.g., Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (stating that a prima facie case of causation was established when discharges occurred forty-two and fifty-nine days after EEOC hearings); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (stating that sufficient evidence existed where adverse actions occurred less than three months after complaint filed, two weeks after charge first investigated, and less than two months after investigation ended).
As required in a retaliation case, Windermere has properly rebutted Little's prima facie case with evidence of a legitimate, non-discriminatory motive for altering Little's pay structure. Glew testified and declared that he had grown increasingly dissatisfied with and concerned by Little's failure to make four closings per month, as contemplated in her employment agreement. Scott and Glew both testified that they met in November to discuss Little's lower-than-expected performance. Glew declared that, after considering the options, he decided to restructure Little's compensation to conform to the base that had been previously given. His decision to terminate her was consistent with his decision to restructure her pay. This evidence establishes a legitimate, non-discriminatory reason for the pay cut.
However, Little has tendered sufficient evidence, in addition to the proximity of events, to rebut this alleged reason. Little testified that, until the pay cut and termination, she had received only positive feedback, and that she never knew of the four-deal-per-month requirement; although her employment contract states so explicitly, she may have received verbal assurances that she believed were superceding. Little averred that it took time to establish business relationships, making it difficult to close four deals per month in her first year as a Corporate Services Manager, and that her supervisors knew that. Further, the data showing Little's superior performance, in addition to Little's belief that her work was more than satisfactory, cast doubt on Glew's decision to cut the pay of the most successful corporate caller Windermere apparently had yet employed, and particularly to make the cut non-negotiable. Little's description of Bellisario's surprise and concern at the pay cut supports this interpretation -- as Little's direct supervisor, Little believed that Bellisario would have been involved in that decision. These facts, together with the proximity in timing, suffice to create a question of fact regarding Windermere's motive in cutting Little's pay and ultimately terminating her employment. "[A] prima facie case is insufficient to preclude summary judgment, a plaintiff need produce `very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext." Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 870 (9th Cir. 1996) (citations omitted). Thus, summary judgment was inappropriate on this claim.
IV
In addition to her federal discrimination claims, Little has alleged that Windermere wrongfully discharged her in violation of Washington law. Under this Washington tort claim, Little must establish four elements: 1) the existence of a clear public policy (the clarity element); 2)"that discouraging the conduct in which [she] engaged would jeopardize the public policy (the jeopardy element)"; 3) that her public-policy-linked conduct was a substantial factor in (i.e. the cause of) Windermere's decision to discharge her (the causation element)"; and 4) that employers generally do not have an "over-riding justification" for wanting to use the activity as a factor affecting the decision to discharge (the absence of justification element). Ellis v. City of Seattle, 13 P.3d 1065, 1070 (Wash. 2000) (en banc) (quoting Gardner v. Loomis Armored Inc., 913 P.2d 377 ( Wash. 1996) (en banc)); see also Lins v. Children's Discovery Centers of America, Inc., 976 P.2d 168, 172 (Wash. Ct. App. 1999). Genuine issues of material fact preclude summary judgment on the elements of the claim, as well as whether Little resigned or was discharged.
First, Little has established the clarity element required by Washington Law Against Discrimination, Revised Code of Washington § 49.60. In analyzing this element, "courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme." Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089 (Wash. Ct. App. 1984).
In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively . . . . Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed.
Dicomes v. State, 782 P.2d 1002, 1006 (Wash. Sup. Ct. 1989) (en banc) (citation omitted). Little argued that Windermere discharged her because she made a complaint about sexual harassment. The Washington Supreme Court held recently that Revised Code of Washington sections 49.12.200 and 49.60.010 embody a clearly articulated public policy condemning sex discrimination in employment. See Roberts v. Dudley, 140 Wash. 2d 58, 69, 993 P.2d 901, 907 (2000) (en banc) (holding that discharging an employee because she was on maternity leave would violate that policy). Relatedly, discharging an employee because of his opposition to a practice in violation of a public policy forms a cause of action for wrongful discharge. See Ellis, 13 P.3d at 1070. Thus, Little has articulated a clear public policy -- against sex discrimination in employment -- that Windermere's action may have
contravened.
Little tendered sufficient evidence concerning the second element, namely, that she was "engaged in particular conduct" that "directly relate[d] to the public policy, or [that] was necessary for the effective enforcement of the public policy." Gardner, 913 P.2d at 377 (emphasis in original). In Ellis, after noting that a retaliation claim exists under § 49.60.210, the court found that "the jeopardy prong . . may be established if an employee has an objectively reasonable belief the law may be violated in the absence of his or her action. " 13 P.3d at 1071. As discussed previously, Little has established a reasonable belief that Guerrero had sexually harassed her and that her reporting to Windermere could prevent further harassment. She has therefore established the jeopardy prong of Gardner. Accord Ellis, 13 P.3d at 1071 (firing fireman "for raising questions about the legality of what he was told to do jeopardizes the public policy of following the fire code").
Little has raised a genuine issue of fact as to the third element, namely, whether Windermere's termination of her employment was in retaliation for her report of the rape -- that is, whether her report was a "substantial factor" in Windermere's decision to terminate her.
Finally, Windermere has offered -- and cannot offer -- any general overriding justification for using an employee's report of sexual harassment as a reason to discharge that employee. Cf. Lins, 976 P.2d at 173 (stating that employers have no "overriding justification" for wanting to consider employee's refusal to perform an unlawful order). In fact, Windermere's sexual harassment policy encourages employees to report such behavior and provides a mechanism by which Windermere can correct such behavior.
In sum, Little has established the first two elements of her wrongful discharge claim, and she has raised questions of fact regarding the second two elements. Thus, summary judgment was not appropriate on this claim.
V
The district court correctly entered summary judgment against Little on her claim for negligent infliction of emotional distress in violation of Washington state tort law. To establish this cause of action, Little "must show (1) that her employer's negligent acts injured her, (2) the acts were not a workplace dispute or employee discipline, (3) the injury is not covered by the Industrial Insurance Act, and (4) the dominant feature of the negligence claim was the emotional injury." Snyder v. Med. Srv. Corp. of Eastern Wash., 988 P.2d 1023, 1028 (Wash. Ct. App. 1999). Like all negligence claims, a negligent infliction of emotional distress claim requires duty, breach, proximate cause, and injury. Hunsley v. Giard, 553 P.2d 1096, 1102 (Wash. 1976). Little also must show objective symptoms of emotional distress. See Corrigal v. Ball & Dodd Funeral Home, Inc., 577 P.2d 580, 582 (Wash. 1978) (citing Hunsley, 553 P.2d at 1103).
However, Washington courts "[do] not recognize a claim against an employer for negligent infliction of emotional distress . . . `when the only factual basis for emotional distress [is] the discrimination claim.' " Robel v. Roundup Corp., 10 P.3d 1104, 1113 (Wash. 2000) (quoting Chea v. Men's Wearhouse, Inc., 932 P.2d 1261 (Wash. 1997)). Here, Little's only factual basis is that "Windermere failed to investigate Ms. Little's complaint, then cut her pay and terminated her employment." This argument formed an integral part of her discrimination claim and the emotional injury she alleges is compensable in her discrimination action. This cause of action is therefore not cognizable under Washington law and the entry of summary judgment was appropriate.
VI
In sum, we reverse the grant of summary judgment and remand for trial Little's claims of hostile work environment and retaliation in violation of Title VII and Washington's Law Against Discrimination and her claim for wrongful discharge in violation of public policy. We affirm the dismissal of her claim for negligent infliction of emotional distress in violation of Washington state tort law.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. The parties shall bear their own costs.
DOWNLOAD A PDF COPY OF THE OPINION HERE
Windermere Charged with Financial Elder Abuse—AGAIN.
(At left, Windermere Coachella Agent Faith Messenger, and Windermere Coachella / SoCal Owners Joseph R. "Bob" Deville and Bob Bennion.)
Windermere Real Estate Coachella Valley, Palm Desert, Portola Agent Faith Messenger, and Windermere Real Estate SoCal, Sued for Breach of Fiduciary Duty, Fraud and Deceit, Negligence, Negligent Misrepresentation, Financial Elder Abuse, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress and Breach of Contract, in Complaint Alleging:
"It was also not until March 6, 2013, that Messenger first presented Dr. Glancz with the C.A.R. form entitled “Disclosure and Consent for Representation of More Than One Buyer or Seller” for Dr. Glancz’s signature. Thus, the first written disclosure of Messenger's dual agent status, representing both Dr. Glancz and the Buyer did not occur until long after the initial offers had been signed and exchanged and weeks after most of the negotiations, misrepresentations by Messenger and her failures to inform Dr. Glancz had all taken place." and;
"Dr. Glancz is informed and believes that the misrepresentations, concealments, and non-disclosures of Messenger and all other wrongful acts alleged in this complaint were carried out within the course and scope of her duty as an agent for Windermere. Furthermore, Windermere contracted directly with Dr. Glancz and assigned Messenger to work for Dr. Glancz and had a duty and responsibility to oversee Messenger's conduct. As a consequence, Windermere is responsible for Messenger's conduct and is directly liable to Dr. Glancz not only for Windermere's failures, but for Messenger's failures and wrongful conduct under principles of agency and because Messenger's conduct is imputed to Windermere under the doctrine of respondeat superior," and;
"Dr. Glancz is informed and believes and thereon alleges that Defendants’ conduct constituted oppression, fraud, and malice in the commission of financial abuse, and Dr. Glancz is entitled to recover damages for the sake of example and by way of punishing Defendants for financial elder abuse pursuant to California Welfare and Institutions Code section 15657.5 and California Civil Code section 3294."
The Boilerplate Answer of Defendants Bennion & Deville Fine Homes, Inc. dba Windermere Real Estate Southern California and Faith Messenger to Complaint Asserts Twenty-Six Affirmative Defenses.
DOWNLOAD A COMPLETE COPY OF THE COMPLAiNT HERE
FILED JANUARY 23, 2014
SUPERIOR COURT OF CALIFORNIA
COUNTY OF RIVERSIDE, PALM SPRINGS COURTHOUSE
GEORGE GLANCZ, individually, and as Trustee of the Glancz Family Trust U/T/D April 21, 2005,
Plaintiff,
v.
WINDERMERE REAL ESTATE SOCAL, INC., a California corporation; FAITH MESSENGER, an individual,
Defendants
Case. No. PSC 1400430
[Action Filed: _____________ Case Assigned For All
Purposes to Dept. ____, the Hon. _____________________]
COMPLAINT FOR:
1) Breach of Fiduciary Duty
2) Fraud and Deceit;
3) Negligence;
4) Negligent Misrepresentation;
5) Financial Elder Abuse;
6) Intentional Infliction of Emotional Distress;
7) Negligent Infliction of Emotional Distress; and
8) Breach of Contract
Plaintiff GEORGE GLANCZ, individually, and as Trustee of the Glancz Family Trust U/T/D April 21, 2005 (“Plaintiff” or “Dr. Glancz”) alleges as follows:
PRELIMINARY ALLEGATIONS
1. Plaintiff Dr. George Glancz is, and at all times herein mentioned was, an individual residing in the State of California, County of Riverside, City of Palm Desert, and is also the Trustee of the Glancz Family Trust u/d/t April 21, 2005. Dr. Glancz is sixty-nine (69) years old. At all times relevant hereto, Dr. Glancz resided at 21 Avenida Andra, Palm Desert, California, 92211 (hereinafter, the “Property”).
2. Dr. Glancz is informed and believes and thereon alleges that Defendant Windermere Real Estate Socal, Inc. (hereinafter “Windermere”) is a corporation duly incorporated in the State of California with its primary place of business located at 71-691 Highway 111, Rancho Mirage, California. Dr. Glancz is informed and believes and thereon alleges that Windermere is a real estate company that offers brokerage and related services in connection with the purchase and sale of real estate in Riverside County and elsewhere.
3. Dr. Glancz is informed and believes and thereon alleges that Defendant Faith Messenger (hereinafter “Messenger”) is an individual residing in the County of Riverside, State of California. Dr. Glancz is informed and believes that at all times herein mentioned Messenger was and is employed by, or associated with, Windermere in her capacity as a real estate agent licensed by the State of California, and at all times acted as Windermere's representative, employee, and/or agent such that Messenger's conduct at issue herein was and is imputed to Windermere under general principles of agency and employment. Messenger and Windermere are hereinafter sometimes referred to collectively as “Defendants.”
ALLEGATIONS RELEVANT TO ALL CAUSES OF ACTION
4. On or about April 24, 2012, Dr. Glancz, as seller, and Windermere, as broker, entered into a written Residential Listing Agreement dated April 24, 2012 (the “Listing Agreement”). A true and correct copy of the Listing Agreement is attached hereto as Exhibit “1” and incorporated herein. The Listing Agreement granted Windermere the exclusive right to act as the broker for the sale of the Property for a six month term. Dr. Glancz is informed and believes that the parties to the Listing Agreement thereafter executed an extension or extensions to the Listing Agreement continuing Windermere's exclusive right to sell the Property through all relevant times herein mentioned. The Listing Agreement is signed on behalf of Windermere by Defendant Faith Messenger, who acted at all times herein mentioned as Dr. Glancz's real estate agent on behalf of Windermere.
5. The initial listing price for the Property in the Listing Agreement is $2,095,000.00.
6. On or about February 18, 2013, Messenger contacted Dr. Glancz to inform him that she had received an offer for the purchase of the Property from a person named Harold Rothman (“Rothman” or “Buyer”). The offer stated as follows: “The Purchase Price offered is One Million, Five Hundred Fifty Thousand (Dollars $ 1550000.00).” Under Finance Terms, the offer stated, “Initial Deposit: Deposit shall be made in the amount of $52,500.00 ....Balance of Purchase Price or Down Payment: In the amount of $1,497,500.00 to be deposited with Escrow Holder within sufficient time to close escrow.” A true and correct copy of the written California Residential Purchase Agreement and Joint Escrow Instructions dated February 18, 2013, including Counter-Offers One through Six described below, (collectively, the “Purchase Agreement” is attached hereto as Exhibit “2”, and incorporated herein in full by this reference. Dr. Glancz is informed and believes that Messenger represented Rothman as his agent in this transaction at the time the aforementioned offer was conveyed, however, Messenger did not provide written disclosure or seek to obtain written consent from Dr. Glancz for the joint representation at that time.
7. Dr. Glancz is informed and believes that on or about February 20, 2013, Messenger, on behalf of Dr. Glancz, presented a written counter-offer (“Counter-Offer One”) to Rothman which included the following stated terms: “(1) Sale Price $1,900,000; (2) Seller to carry back $450,000 at 5% for 5 year term - no prepayment penalty after the first 2 years; (3) Escrow to be 60 days; (4) Furnished per inventory list; (5) Possible 30-day lease back after COE.” Messenger was informed and was aware that Dr. Glancz, who is nearly seventy (70) years old, desired and would only agree to terms of financing which would allow him to receive the funds from the sale no later than 5 years after the close of escrow as Dr. Glancz had specific plans for the use of the funds as he nears retirement.
8. On or about February 21, 2013, Messenger telephoned Dr. Glancz and informed Dr. Glancz that Rothman had signed another counter offer (“Counter-Offer Two”) which Messenger stated included a purchase price of $1,650,000.00, the Property subject to an appraisal, with seller financing in the amount of $1,050,000.00 at 5% interest, monthly payments only, a sixty-day escrow with a seller lease back for thirty-days. Messenger did not immediately provide Counter-Offer Two to Dr. Glancz, but further informed Dr. Glancz that, aside from these terms she stated, there were no other material changes to the previous terms Dr. Glancz had offered.
9. Messenger failed to inform Dr. Glancz and he was, therefore, unaware that Counter-Offer Two provided for the seller to carry back a note and deed of trust with a fifteen year term, rather than the five year term in counter-offer one. Counter-Offer Two further provided for no prepayment penalty after the first five years. Counter-Offer Two stated as follows: “1. Sale Price to be $1,650,000. 2. Seller to carry $1,050,000.00 (or more) for 15 years at 5% Interest only with no pre-payment penalty after the first 5 years. . 3. Buyer to put down $600,000.00. 4. Property to be subject to appraisal. 5. Escrow to be 60 days with an option for seller to lease back after the COE for additional 30 days. 6. All other terms and conditions in original offer remain.” Messenger was well aware of Dr. Glancz' desires and knew he would not and could not agree to terms of seller financing in which he would receive only interest payments for fifteen years, and thereby not receive the majority of the purchase price or have access to those funds until he was nearly eighty-five (85) years old. Despite that knowledge and the knowledge that the funds could serve Dr. Glancz's intended purposes only if the balance of the purchase price were paid no later than five years after the close of escrow, Messenger either intentionally or negligently, omitted those essential terms from her explanation of the offer to Dr. Glancz.
10. On or about February 21, 2013, relying on Messenger's representations and without knowledge of the actual changed terms of the seller financing provided in Counter-Offer Two, Dr. Glancz signed another counter offer (“Counter-Offer Three”) to be transmitted by Messenger to Rothman, which included the following stated terms: “(1) Sale Price to be $1,725,000 - (2) Seller to carry First Trust Deed of $1,050,000 (or less)(or more) (3) Buyer to put minimum of $600,000 down payment (4) Seller to pay $5,000 after COE for additional 30 days (5) Seller to have attorney draft terms and conditions of First Trust Deed within 17 days of acceptance.” After Dr. Glancz had explained his situation, needs and desires, Messenger had suggested including the language in parenthesis “or more - or less” regarding the amount of the trust deed to allow Dr. Glancz the ability to adjust the amount of the note depending on the funds Dr. Glancz would need. Dr. Glancz had explained to Messenger his need to acquire a replacement home at a cost then unknown to Dr. Glancz, and to assist Dr. Glancz’s son and daughter-in-law who were then expecting the birth of another child and were themselves looking to purchase a new home. At that time, and repeatedly thereafter, Messenger informed Dr. Glancz that this arrangement - in which Dr. Glancz could adjust the respective amounts of the cash due at closing and the amount of seller financing - was acceptable to Rothman because Rothman had more than sufficient immediately available funds to pay whatever final allocation Dr. Glancz decided upon.
11. On or about February 22, 2013, Messenger came to Dr. Glancz's home with another counter offer from Rothman (“Counter-Offer Four”) which Messenger again explained to Dr. Glancz. Messenger informed Dr. Glancz that Counter-Offer Four included the following terms: Dr. Glancz could either (1) accept Counter-Offer Two (i.e., purchase price of $1,650,000.00, seller financing of $1,050,000.00 at 5% interest), with an appraisal contingency on value of $1,725,000.00; or (2) agree to a purchase price of $1,725,000.00, with an appraisal contingency, and the seller carrying back a First Trust Deed at 3.5% interest per annum for the terms negotiated in Counter Offers Two and Three. However, Dr. Glancz understood the terms and conditions of the prior counter-offers to be as explained to him by Messenger and described above (i.e., either option including a five-year note). With that understanding, Dr. Glancz instructed Faith Messenger to prepare another counter offer (“Counter-Offer Five”), which stated as follows: “Seller agrees to sell using either Option #1 or Option #2 as outlined in Counter-Offer Four. Decision will be made after discussion with Accountant by Monday, 2-25-2013 on or before 5:00 p.m.”
12. Messenger later informed Dr. Glancz that Rothman was agreeable to the proposal set forth in Counter-Offer Five. Therefore, Dr. Glancz decided to go with the second option described in the preceding paragraph, as Dr. Glancz understood those terms to be. Messenger prepared a further counter offer (“Counter-Offer Six”) which Dr. Glancz signed on February 26, 2013, and which Messenger was to provide to Rothman. Counter-Offer Six stated, “Seller has chosen Option #2 as described in Counter-Offer #5... Sale price to be $1,725,000.00 with seller carry of First Trust Deed at 3.5% for terms and conditions negotiated in Counter Offers #2 and #3.” Counter-Offer Six further provides that it is revoked if not accepted in writing by the buyer and received by the seller by 5:00 p.m. on the third day after it is made. Consequently, Rothman had until 5:00 p.m. on March 1, 2013, to deliver to Dr. Glancz or Messenger a signed Counter-Offer Six. At the time Dr. Glancz provided Messenger with the signed Counter-Offer Six, Messenger told Dr. Glancz that she believed Rothman would sign all the counter offers and that the sale was essentially a done deal.
13. On February 26, 2013, Dr. Glancz's attorney, Robert Patterson, telephoned Messenger at Windermere to request copies of all the contractual documents so that he could prepare the note and first trust deed. Messenger responded defensively and evasively insisting that the escrow company was “perfectly capable of preparing the note and deed of trust.” Attorney Patterson insisted that Messenger forward him the contractual documents and further informed Messenger that the documents he would prepare would be identical to those normally used for his clients and assured Messenger that he had no intention of making the transaction any more difficult than necessary. Although Messenger remained defensive, she agreed to have all offers and counter offers forwarded to Mr. Patterson shortly. That morning, Dr. Glancz' attorney, Patterson, sent Messenger an email confirming his request that Messenger fax or email him the offers and counter offers for the sale of Dr. Glancz's home and confirming that he would then draft a standard note and deed of trust, a true and correct copy of which email is attached hereto as Exhibit “3”.
14. On February 27, 2013, Messenger emailed Dr. Glancz falsely telling him that “[w]e have a fully executed agreement...” A true and correct copy of the February 27 email is attached hereto as Exhibit “4”.
15. Despite Messenger's promise to attorney Patterson on February 26th that she would forward all the contractual documents to him shortly, more than a week later no documents had been forwarded. Consequently, on Wednesday, March 6, 2013, attorney Patterson again emailed Messenger asking her to send him all the documents concerning the sale of the Property and requesting that she confirm receipt of the email. At 9:57 a.m., Messenger responded by email confirming that she did receive Patterson's email and stating that: “I waited until we passed a challenge.” Messenger did not explain what “challenge” she referred to. Messenger further wrote that she was on jury duty but would have her assistant email him the documents “before the end of the week.” Patterson responded by email at 10:00 a.m. “Thank you ...the sooner the better.” A true and correct copy of the email string between Messenger and Patterson of March 6, 2013, is attached hereto as Exhibit “5”.
16. It was also not until March 6, 2013, that Messenger first presented Dr. Glancz with the C.A.R. form entitled “Disclosure and Consent for Representation of More Than One Buyer or Seller” for Dr. Glancz’s signature. Thus, the first written disclosure of Messenger's dual agent status, representing both Dr. Glancz and the Buyer did not occur until long after the initial offers had been signed and exchanged and weeks after most of the negotiations, misrepresentations by Messenger and her failures to inform Dr. Glancz had all taken place.
17. Messenger was aware that Dr. Glancz had planned a trip to Hawaii starting on March 8, 2013. Consequently, on March 7, 2013, Messenger brought to Dr. Glancz's home two documents which she told Dr. Glancz were the supplemental escrow instructions (collectively, the “Escrow Instructions”) for the escrow for the sale of the Property to be opened with Foresite Escrow. At that time, Messenger told Dr. Glancz that because Rothman had signed all the papers, Dr. Glancz needed to sign the escrow documents before he left on his trip. At that time, Messenger stated to Dr. Glancz that the Escrow Instructions were the customary instructions that mirrored the terms of the Purchase Agreement and were necessary for Foresite Escrow to carry out those terms and bring the transaction to a close. Messenger further told Dr. Glancz that to the extent, if any, there were any conflicts between the Escrow Instructions and the Purchase Agreement, the Purchase Agreement would control. Based on these representations, and under the belief that a contract with Rothman already existed, Dr. Glancz signed and initialed the Escrow Instructions where Messenger indicated. A true and correct copy of the Escrow Instructions is attached hereto as Exhibit “6”.
18. While Dr. Glancz was in Hawaii, he contacted Faith Messenger and inquired regarding the status of the sale. It was only at this point that Messenger told him there was “a problem” and that the buyer was now “having second thoughts” about purchasing the Property. However, shortly after Dr. Glancz's return from Hawaii, Messenger told him everything was “now okay with the buyer,” or words to that effect. At no time during this conversation did Messenger state to Dr. Glancz that Rothman had not signed the offers and counter offers.
19. Despite Messenger's promise to attorney Patterson on March 6th that she would forward the contractual documents to him “before the end of the week,” it was only at 4:07 p.m., on Monday, March 11, 2013, that Patterson finally received an email from Jacklyn Chaney at Windermere attaching copies of the C.A.R. form Purchase and Sale Agreement and Counter-Offers 1-5. A true and correct copy of Ms. Chaney's email of March 11th (without attachments) is attached hereto as Exhibit "7". Ms. Chaney's email did not include or otherwise reference Counter-Offer Six, signed by Dr. Glancz on February 26, 2013, and purportedly signed by Rothman, according to Messenger, no later than February 27, 2013.
20. Contrary to Messenger's representation to Dr. Glancz on February 27, 2013, that the parties had a "fully executed agreement," Counter Offers One through Five attached to Ms. Chaney's email of March 11, 2013, show that there was not a “fully executed agreement” between Dr. Glancz and Rothman on that date. Instead, the counter offers show that they were not signed by Rothman until March 11th. Further, when Windermere finally produced a copy of Counter Offer Six, the document showed that it had not been signed by Rothman until March 14, 2013.
21. Because the offer and counter offers forwarded to attorney Patterson were extremely convoluted and did not show which of the two “options” constituted the parties supposed agreement, Patterson prepared drafts of the note and deed of trust based upon the terms communicated to him by Dr. Glancz; specifically, that purchase price was to be $1,725,000.00, the seller to take back a note for $1 million, with interest payments only at 3.5% for five (5) years, at which time the entire principal would become due, a prepayment Penalty for early repayment, and that the seller could require prepayment at any time without penalty.
Events Leading to the Buyer's Lawsuit Against Dr. Glancz
22. On or about March 20, 2013, attorney Patterson forwarded drafts of the note and deed of trust to Messenger at Windermere so that she could forward them to Rothman and/or his attorney for review. On March 22, 2013, Messenger sent an email to attorney Patterson attaching an email from Alex Yoffe, counsel for Rothman. In his March 21, 2013 email to Messenger, Mr. Yoffe states that based on his review of the Note, “there are significant issues, which substantially change the agreement for the purchase of the property.” He then notes that “unless changed,” several items are “absolute deal breakers.” Specifically, Mr. Yoffe wrote: “(1) the Note should be 15 years (not 5 years); (2) The Note should be an interest only note for the entire 15 years, with principal repaid at the end of the 15 years, unless [the] Purchaser chooses to pay early; (3) (the] Note should be for 3.5% for the 15 year term; (4) the prepayment penalty only applies, if the Note is prepaid in the first 5 years; (5) [the] Seller cannot draw down, or call the note at any time during the 15 years, unless there is a default; and (6) default shall require written notice, and at least a two week cure period after notice is received.” A true and correct copy of the March 22, 2013, email from Messenger, forwarding Mr. Yoffe's email of March 21, 2013, is attached hereto as Exhibit "8". Subsequent informal attempts to resolve the dispute were not successful.
23. On March 29, 2013, Rothman, Zachary P. Rothman, and the Harold B. Rothman Revocable Trust filed a lawsuit against Dr. Glancz in the Riverside County Superior Court as Case Number INC 1302067, captioned as “Complaint for Recording of a Notice of Pendency of Action for Damages for Breach of Contract, Negligent Misrepresentation, Fraud, and Specific Performance,” a true and correct copy which is attached hereto as Exhibit “9”. Dr. Glancz subsequently filed an answer to the complaint denying the allegations and setting forth numerous applicable affirmative defenses.
24. On or about April 2, 2013, attorney Yoffe served a copy of the Notice of Pendency Action recorded in connection with the lawsuit, a true and correct copy of which is attached hereto as Exhibit “10”. The Notice of Pendency of Action clouded title to Dr. Glancz's property rendering it impossible for him to sell the Property.
25. Rothman's lawsuit was based, not on the Purchase Agreement, but on the signed Escrow Instructions which Rothman alleged formed a binding contract between the parties, even in the absence of a separate purchase agreement. However, Dr. Glancz would never have signed the escrow instructions unless he had been under the mistaken belief that a contract already existed between the parties (i.e., the Purchase Agreement), that the Escrow Instructions accurately reflected the terms of the Purchase Agreement, as those terms were described to Dr. Glancz by Messenger, and that Dr. Glancz was required to sign the Escrow Instructions under the terms of the Purchase Agreement. Accordingly, Dr. Glancz was fraudulently induced to execute the Escrow Instructions by Messenger's misrepresentations, concealments, and/or breaches of fiduciary duty, as described herein.
26. In order to resolve the dispute and remove the Notice of Pendency of Action clouding title to Dr. Glancz's Property, Dr. Glancz and Rothman entered into a settlement in which Dr. Glancz was forced to accept a lower purchase price for the Property of $1,590,000.00, and to incur related costs, including but not limited to, significant legal fees, all as a result of the misrepresentations, concealments, negligence, and breaches of fiduciary duties on the part of Windermere and Messenger.
27. Subsequent communications between counsel for Rothman and Plaintiff's counsel revealed other and additional representations which Messenger, purporting to act on behalf of Dr. Glancz, had made to Rothman in the course of the negotiation and execution of the Purchase Agreement that were in direct contradiction to the desires and instructions of Dr. Glancz, such as the inclusion of various fixtures within the sale, which ultimately lead to additional conflict and dispute between Dr. Glancz and Rothman and which forced Dr. Glancz to incur additional related costs to settle the disputes with Rothman caused by Defendants.
28. Pursuant to a separate agreement with Dr. Glancz, Defendants have waived any commission or compensation which would have been due Defendants under the Listing Agreement upon sale of the Property and have thereby resolved the dispute regarding the obligation to pay compensation under the Listing Agreement and the total damages suffered by Dr. Glancz have thus been reduced by $62,940.00.
FIRST CAUSE OF ACTION
(For Breach of Fiduciary Duty Against All Defendants.)
29. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs I through 28, inclusive as though fully set forth herein.
30. Dr. Glancz alleges that there existed a fiduciary duty and/or relationship of trust and confidence (hereinafter “fiduciary duty”) between Dr. Glancz and Defendants arising out of their relationship and Defendants' role as Dr. Glancz's broker and real estate agent in connection with the sale of the Property and, therefore, in connection with the exchange of the offers and counter offers between Dr. Glancz and Rothman, as described above. The agency relationship in the real estate context existing between Dr. Glancz and Defendants was a strict fiduciary relationship that required Defendants to act in Dr. Glancz's best interests at all times.
31. Despite the misrepresentations and concealments by Defendants described above, and despite the fact that discovery of the full extent of Defendants’ wrongful acts are not fully known and discovery has yet to commence, Dr. Glancz is informed and believes and thereon alleges that Defendants, and each of them, breached their fiduciary duty to Dr. Glancz and took advantage of Dr. Glancz's dependence and trust, engaged in acts of self-dealing and self-profit desiring a “binding” contract between Dr. Glancz and Rothman by any means available so as to secure a double commission, and ignoring the best interests of Dr. Glancz, the various actions constituting breaches include, but are not limited to, the following:
A. Misrepresenting and concealing material terms of Rothman's counteroffers to Dr. Glancz, knowing and that Dr. Glancz relied on Defendants to fully, accurately, and faithfully describe the terms of the counter offers to Dr. Glancz, as further described below;
B. Misrepresenting and concealing from Dr. Glancz that Rothman's counteroffers included seller financing by means of a promissory note and deed of trust with no payment of principal for fifteen years, as opposed to the five years Defendants knew Dr. Glancz understood as being offered and which Defendants knew Dr. Glancz required given his disclosed age and his needs in retirement;
C. Misrepresenting and concealing from Dr. Glancz that Rothman's counteroffers did not allow the prepayment penalty intended by Dr. Glancz;
D. Misrepresenting to Dr. Glancz on February 27, 2013, that the parties had a “fully executed agreement” while concealing from Dr. Glancz that Rothman had not then signed the Purchase Agreement, including all counter-offers thereto;
E. Misrepresenting to Dr. Glancz that the Escrow Instructions contained no terms different from those represented to Dr. Glancz by Defendants;
F. Falsely and fraudulently misrepresenting to Dr. Glancz that Dr. Glancz's signature on the Escrow Instructions was a mere formality required by the Purchase Agreement, which Purchase Agreement did not in fact exist, thereby fraudulently inducing Dr. Glancz into signing the Escrow Instructions when Dr. Glancz had no intention of entering into a separate contract at the time he signed the Escrow Instructions;
G. Falsely and fraudulently stating to Dr. Glancz that in the event there was a conflict between the Purchase Agreement, which did not yet exist, and the Escrow Instructions that the terms of the Purchase Agreement (as Defendants knew Dr. Glancz understood them to be) would control.
H. Initially refusing and then delaying the provision of the Purchase Agreement documents to counsel for Dr. Glancz in furtherance of concealing the fact that the Purchase Agreement was not, in fact, executed at the time Messenger indicated it was complete.
1. Failing to timely provide written notice and obtain written approval of the joint representation by Defendants of Dr. Glancz and Rothman in the sales transaction at issue.
32. Dr. Glancz is informed and believes that the misrepresentations, concealments, and non-disclosures of Messenger and all other wrongful acts alleged in this complaint were carried out within the course and scope of her duty as an agent for Windermere. Furthermore, Windermere contracted directly with Dr. Glancz and assigned Messenger to work for Dr. Glancz and had a duty and responsibility to oversee Messenger's conduct. As a consequence, Windermere is responsible for Messenger's conduct and is directly liable to Dr. Glancz not only for Windermere's failures, but for Messenger's failures and wrongful conduct under principles of agency and because Messenger's conduct is imputed to Windermere under the doctrine of respondeat superior.
33. Dr. Glancz is informed and believes that as a direct and proximate result of the breaches of fiduciary duty and the unlawful conduct of Defendants, Dr. Glancz is entitled to recover all compensable damages under the law in an amount to be determined at trial, including, but not limited to, the difference between the purchase price stated in the Purchase Agreement, $1,725,000.00, and the amount Dr. Glancz was forced to accept to settle Rothman's lawsuit, $1,590,000.00, as well as the lost interest, tax benefits, attorney's fees and costs incurred by Dr. Glancz in defending against and settling Rothman's claims in an amount to be determined according to proof at trial.
34. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them.
35. Dr. Glancz is further informed and believes and thereon alleges that the aforementioned conduct of Defendants were intentional acts and failures to disclose and breaches of fiduciary duty made with the intention on the part of Defendants of depriving Dr. Glancz of property or legal rights or otherwise causing injury and was despicable conduct that subjected Dr. Glancz to cruel and unjust hardship, in conscious disregard of Dr. Glancz's rights, so as to justify an award of exemplary and punitive damages in an amount according to proof.
SECOND CAUSE OF ACTION
(Fraud and Deceit Against All Defendants)
36. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 35, inclusive as though fully set forth herein.
37. Dr. Glancz alleges that at the times herein mentioned with respect to the representations and non-disclosures alleged herein, Defendants committed such acts and made such representations, engaged in non-disclosures and attempted to conceal her misrepresentations and non-disclosures while obligated by law to disclose the true facts kept from Dr. Glancz, with the intent to deceive Dr. Glancz in direct violation of Defendants' representations to the contrary and the duties existing to Dr. Glancz by Defendants under the Listing Agreement and by law, as alleged herein.
38. Dr. Glancz is informed and believes and thereon alleges that when Messenger made misrepresentations alleged herein and failed to disclose and concealed the true terms of the counter-offers for the purchase of the Property as well as the fact that there was no contract in effect at the time Messenger coerced Dr. Glancz to execute the escrow instructions, such conduct resulted in reliance by Dr. Glancz thereon and at a time Messenger knew them to be false and were made at the time to deceive and defraud Dr. Glancz and to induce Dr. Glancz to act in reliance on that conduct in the manner herein alleged.
39. Dr. Glancz is informed and believes and thereon alleges that at the time of these misrepresentations, deceit, non-disclosures and concealment, Dr. Glancz was ignorant of the falsity of Messenger's representations and believed them to be true and had no reason not to believe in the trustworthiness and honesty of Messenger. In reasonable reliance on the representations of Messenger and the professed and required good faith obligation of Messenger, Dr. Glancz was induced to and did employ Defendants and otherwise allow Defendants to occupy the positions they held and to undertake the duties and services to be rendered on behalf of Dr. Glancz as herein alleged. Had Dr. Glancz known the true facts, Dr. Glancz would not have allowed such action to occur. Dr. Glancz's reliance on Messenger's representations was justified and reasonable under the circumstances given when, how, and by whom they were made.
40. Dr. Glancz is informed and believes that the misrepresentations, concealments, and non-disclosures of Messenger and all other wrongful acts alleged in this complaint were carried out within the course and scope of her duty as an agent for Windermere. Furthermore, Windermere contracted directly with Dr. Glancz and assigned Messenger to work for Dr. Glancz and had a duty and responsibility to oversee Messenger's conduct. As a consequence, Windermere is responsible for Messenger's conduct and is directly liable to Dr. Glancz not only for Windermere's failures, but for Messenger's failures and wrongful conduct under principles of agency and because Messenger's conduct is imputed to Windermere under the doctrine of respondeat superior.
41. Dr. Glancz is informed and believes that as a direct and proximate result of the fraud and deceit of Defendants, Dr. Glancz is entitled to recover all compensable damages under the law in an amount to be determined at trial, including, but not limited to the difference between the purchase price stated in the Purchase Agreement, $1,725,000.00, and the amount Dr. Glancz was forced to accept to settle Rothman's lawsuit, $1,590,000.00, as well as the lost interest, tax benefits, attorney's fees and costs incurred by Dr. Glancz in defending against and settling Rothman's claims in an amount to be determined according to proof at trial.
42. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them.
43. Dr. Glancz is further informed and believes and thereon alleges that the aforementioned conduct of Defendants were intentional acts and failures to disclose constituting fraud and/or deceit made with the intention on the part of Defendants of depriving Dr. Glancz of property or legal rights or otherwise causing injury and was despicable conduct that subjected Dr. Glancz to cruel and unjust hardship, in conscious disregard on Dr. Glancz's rights, so as to justify an award of exemplary and punitive damages in an amount according to proof.
THIRD CAUSE OF ACTION
(For Negligence Against All Defendants.)
44. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs I through 35 and 37 through 43, inclusive as though fully set forth herein.
45. As the duly hired broker and agent for Dr. Glancz in the attempted sale of his home, Defendants and each of them owed a duty to Dr. Glancz to exercise the caution and care of a reasonable residential real estate broker/agent in all efforts to list and sell the Property.
46. In performing the acts alleged herein and engaging in the conduct described herein and, inter alia, failing to make all the proper disclosures, failing to inform and explain to Dr. Glancz all relevant terms of the counter-offers, and failing to keep Dr. Glancz apprised of the actual status of execution of the Purchase Agreement, Defendants and each of them failed to exercise the care and caution expected of a reasonable residential real estate broker/agent.
47. As a direct and proximate result of Defendants' negligence as described herein above, Dr. Glancz has incurred damages, losses, costs and fees in an amount to be determined at trial, including, but not limited to the difference between the purchase price stated in the Purchase Agreement, $1,725,000.00, and the amount Dr. Glancz was forced to accept to settle Rothman's lawsuit, $1,590,000.00, as well as the lost interest, tax benefits, attorney's fees and costs incurred by Dr. Glancz in defending against and settling Rothman's claims in an amount to be determined according to proof at trial.
FOURTH CAUSE OF ACTION
(For Negligent Misrepresentation Against All Defendants.)
48. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 28, 37 through 43, and 45 through 47, inclusive as though fully set forth herein.
49. Dr. Glancz is informed and believes and thereon alleges that the misrepresentations and concealments of Defendants as set forth herein, if not intentional, were negligent in that Defendants had no reasonable ground for believing them to be true or believing that they were not required to disclose the actual facts to Dr. Glancz, and were carried out with reckless disregard for their accuracy and for the well-being of Dr. Glancz.
50. Defendants made these representations and concealments with the intention of inducing Dr. Glancz to act in reliance thereon in the manner herein alleged, or with the expectation that Dr. Glancz would do so.
51. Dr. Glancz is informed and believes that the misrepresentations, concealments, and non-disclosures of Messenger and all other wrongful acts alleged in this complaint were carried out within the course and scope of her duty as an agent for Windermere. Furthermore, Windermere contracted directly with Dr. Glancz and assigned Messenger to work for Dr. Glancz and had a duty and responsibility to oversee Messenger's conduct. As a consequence, Windermere is responsible for Messenger's conduct and is directly liable to Dr. Glancz not only for Windermere's failures, but for Messenger's failures and wrongful conduct under principles of agency and because Messenger's conduct is imputed to Windermere under the doctrine of respondeat superior.
52. Dr. Glancz is informed and believes that as a direct and proximate result of Defendants' negligence, and as a consequence of the fiduciary relationship between the parties, Dr. Glancz is entitled to recover all compensable damages under the law in an amount to be determined at trial, including, but not limited to, the difference between the purchase price stated in the Purchase Agreement, $1,725,000.00, and the amount Dr. Glancz was forced to accept to settle Rothman's lawsuit, $1,590,000.00, as well as the lost interest, tax benefits, attorney's fees and costs incurred by Dr. Glancz in defending against and settling Rothman's claims in an amount to be determined according to proof at trial.
53. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them.
FIFTH CAUSE OF ACTION
(For Financial Elder Abuse Against All Defendants.)
54. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 28, 36 through 43, and 45 through 47, inclusive as though fully set forth herein.
55. Dr. Glancz is and at all times herein mentioned was a resident of California and an elder within the meaning of California Welfare and Institutions Code section 15610.27.
56. Dr. Glancz is informed and believes and thereon alleges that Defendants, and each of them, acted wrongfully and illegally by taking advantage of Dr. Glancz's age and physical condition, his dependence on, and trust and confidence in, Defendants to take, procure, or otherwise obtain control and/or a claim on assets of Dr. Glancz in the form of proceeds from the sale of Dr. Glancz’s residence rightfully belonging to Dr. Glancz by means of the false and fraudulent misrepresentations, concealments, non-disclosures, and other wrongful conduct herein alleged, for Defendants' own benefit in a manner completely contrary to the interests of Dr. Glancz and in violation of Defendants’ fiduciary duty to Dr. Glancz.
57. Dr. Glancz is informed and believes and thereon alleges that Defendants had obtained or sought to obtain the use and benefit of Dr. Glancz’s property in the form of proceeds from the sale of Dr. Glancz's residence, and had otherwise deprived Dr. Glancz of the use of his property, with the intent to defraud Dr. Glancz within the meaning of California Welfare and Institutions Code section 15610.30.
58. Dr. Glancz is informed and believes and thereon alleges that as a direct and proximate result of Defendants' wrongful conduct, Dr. Glancz has sustained damages in an amount according to proof at the time of trial.
59. Dr. Glancz is informed and believes and thereon alleges that in addition to all other remedies provided by law, Dr. Glancz is entitled to recover reasonable attorney’s fees and costs for financial abuse pursuant to California Welfare and Institutions Code section 15657.5.
60. Dr. Glancz is informed and believes and thereon alleges that Defendants’ conduct constituted oppression, fraud, and malice in the commission of financial abuse, and Dr. Glancz is entitled to recover damages for the sake of example and by way of punishing Defendants for financial elder abuse pursuant to California Welfare and Institutions Code section 15657.5 and California Civil Code section 3294.
61. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them.
SIXTH CAUSE OF ACTION
(For Intentional Infliction of Emotional Distress Against All Defendants.)
62. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 35, 36 through 43, 45 through 47, 49 through 53, and 55 through 61, inclusive as though fully set forth herein.
63. Dr. Glancz is informed and believes and thereon alleges that based on the allegations that Defendants willfully and maliciously and knowingly engaged in in the actions set forth herein with a conscious design to deprive Dr. Glancz of his rights.
64. Dr. Glancz is informed and believes and thereon alleges that Defendants' conduct was intentional, malicious, unprivileged, outrageous and done for the purpose of causing Dr. Glancz to suffer humiliation, anguish and emotional and physical distress. Defendants' conduct as alleged herein, was done with knowledge that Dr. Glancz would suffer mental anguish and emotional and physical distress and Defendants’ conduct was wanton and reckless disregard for the consequences of said actions to Dr. Glancz.
65. Dr. Glancz is informed and believes and thereon alleges as a direct and proximate result of the actions of Defendants alleged herein, Dr. Glancz has suffered humiliation, mental anguish and emotional and physical injuries, and Dr. Glancz has suffered loss of sleep, severe tension, profound shock and anxiety, all to Dr. Glancz’s damage in an amount according to proof, at the time of trial.
66. Dr. Glancz is informed and believes and thereon alleges in performing the acts herein alleged, Defendants acted fraudulently, maliciously, and oppressively, within the meaning of Civil Code section 3294, thereby justifying an award of punitive damages in an amount according to proof.
67. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them,
SEVENTH CAUSE OF ACTION
(For Negligent Infliction of Emotional Distress Against All Defendants.)
68. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 35, 37 through 43, 45 through 47, 49 through 52, 54 through 62, and 63 through 67, inclusive as though fully set forth herein.
69. Dr. Glancz is informed and believes and thereon alleges that the conduct of Defendants alleged herein, if not intentional, was negligent on the part of Defendants and was reckless and without due regard for the health and welfare of Dr. Glancz.
70. Dr. Glancz is informed and believes and thereon alleges that Defendants had a duty of care towards Dr. Glancz in light of Defendants' fiduciary duties to Dr, Glancz, as Dr. Glancz’s agent and representative, and due to the trust and confidence Dr. Glancz placed in Defendants. Said duties were breached as a result of the conduct herein alleged, which had continued through Defendants’ unjustified claim and demand on proceeds from the sale of Dr. Glancz's residence.
71. Dr. Glancz is informed and believes and thereon alleges that in their handling of the transaction at issue, Defendants acted negligently, carelessly, and without justification and in carrying out the acts herein alleged have intended to deprive Dr. Glancz of his rights and property. Defendants knew or should have known that Dr. Glancz would suffer severe emotional distress as a direct and proximate result of Defendants' conduct.
72. Dr. Glancz is informed and believes and thereon alleges as a direct and proximate result of the actions of Defendants alleged herein, Dr. Glancz has suffered humiliation, mental anguish and emotional and physical injuries, and Dr. Glancz has suffered loss of sleep, severe tension, profound shock and anxiety, all to Dr. Glancz's damage in an amount according to proof, at the time of trial.
73. Dr. Glancz is informed and believes and thereon alleges that pursuant to Civil Code section 3345, Dr. Glancz is entitled to recover three times the amount of damages otherwise recoverable against Defendants, and each of them.
EIGHTH CAUSE OF ACTION
(For Breach of Contract Against All Defendants.)
74. Dr. Glancz realleges and incorporates by reference the allegations of Paragraphs 1 through 35, 36 through 43, 45 through 47, 49 through 53, 55 through 61, 63 through 67, and 69 through 73, inclusive as though fully set forth herein.
75. Dr. Glancz and Defendants entered into a valid and enforceable contract when the parties executed the Listing Agreement for the Property whereby Defendants agreed to exercise reasonable effort and due diligence to achieve the purposes of the agreement and to confirm the agency relationship existing between Defendants and the parties, in writing, prior to or concurrent with Dr. Glancz’ execution of a purchase agreement and Dr. Glancz agreed to compensate Defendants with a percentage of the purchase price in the event that a buyer was procured during the listing period and Defendants otherwise complied with the contract.
76. Dr. Glancz is informed and believes and thereon alleges that Defendants breached the contract by failing to exercise the due diligence required to achieve the purposes of obtaining a buyer for the property on terms agreeable to Dr. Glancz, but instead, worked to obtain a buyer on terms that were knowingly disagreeable to Dr. Glancz thereby exerting efforts contrary to the purposes of the Listing Agreement and failed to confirm the agency relationship existing between Defendants and the parties in writing prior to Dr. Glancz' execution of the Purchase Agreement.
77. The Listing Agreement between Dr. Glancz and Defendants additionally contains an implied covenant of good faith and fair dealing. The implied covenant of good faith and fair dealing prohibits Defendants from engaging in any conduct that interferes with Dr. Glancz's ability to perform under the Listing Agreement or under any contract or prospective contract Dr. Glancz might enter into with a prospective purchaser of the Property, or otherwise denies Dr. Glancz the benefits of such contract with a prospective purchaser of the Property, which contract is expressly contemplated in the Listing Agreement.
78. Dr. Glancz is informed and believes and thereon alleges that Defendants’ efforts to push through an agreement with Rothman as a buyer on terms that were not in accord with what Defendants knew to be the desires of Dr. Glancz and Defendants’ failures to notify Dr. Glancz in writing of the dual agency relationship constitute direct breaches of the Listing Agreement and further constitute a breach of the implied covenant of good faith and fair dealing. Defendants’ further efforts to conceal Messenger’s true motives and to further conceal her deception constitute additional breaches of the covenant of good faith and fair dealing in force under the Listing Agreement.
79. As a direct and proximate result of Defendants’ breaches as herein alleged, Dr. Glancz has been denied the benefits of the Listing Agreement in that Dr. Glancz has been subjected to potential liability arising from the purported agreement between Dr. Glancz and Rothman, and has further sustained damages in the form of having to accept a lower purchase price for the Property and under less favorable terms than Dr. Glancz was led to believe he had reached and which he would otherwise have received but for the breaches of Defendant herein alleged. Dr. Glancz has sustained further damages by being required to incur significant legal expenses to defend against and settle the various claims of Rothman. The full extent of damages sustained by Dr. Glancz as a result of Defendants' breaches have not yet been ascertained, but are believed to be well in excess of this Court's jurisdictional minimum of $25,000.00.
80. Dr. Glancz requests an award of damages, costs of suit, and attorney fees that he is entitled to recover on this claim as provided by the parties' Listing Agreement.
WHEREFORE, Dr. Glancz prays for Judgment as follows:
On the First, Second, Fifth and Sixth Causes of Action:
1. For general and compensatory damages in the sum of not less than $800,000.00 according to proof;
2. For special damages for losses incurred by Dr. Glancz in connection with the sale of Dr. Glancz's residence and resolution of disputes with Rothman;
3. For all costs of suit including Dr. Glancz’s attorney's fees pursuant to Welfare and Institutions Code section 15657.5, according to proof;
4. For exemplary and/or punitive damages in an amount appropriate to punish Defendants, and each of them, and to deter Defendants and others from engaging in similar conduct, according to proof;
5. For treble damages pursuant to Civil Code section 3345.
On the Third, Fourth, Seventh and Eighth Causes of Action:
1 . For general and compensatory damages in the sum of not less than $800,000.00 according to proof;
2. For special damages for losses incurred by Dr. Glancz in connection with the sale of Dr. Glancz’s residence and resolution of disputes with Rothman;
3. For all costs of suit including Dr. Glancz's attorney's fees pursuant to Welfare and Institutions Code section 15657.5, according to proof;
4. For treble damages pursuant to Civil Code section 3345.
Dated: 1-22, 2013 Respectfully submitted,
SLOVAK BARON ENTEY MURPHY & PINKNEY LLP
By: _____________________________
JOHN O. PINKNEY
CHARLES L. GALLAGHER
TORY J. CHRISTENSEN
Attorneys Plaintiff GEORGE GLANCZ, individually
and as Trustee of the Glancz Family Trust
Read Another Windermere Elder Abuse Case Next:
WASHINGTON APPEALS COURT, DIVISION 1—NOS. 58439-9-I, 58531-2-I
National Real Estate Fraud Center Windermere Real Estate Case History: Windermere Freeland Agents Saul and Gabelein’s Abuse of a Vulnerable Adult
(Above L to R) 1: Utterly shameless liar and bully John W. Jacobi, Windermere founder and chairman who promotes "We are committed to... The highest ethical standards. Uncompromising honesty and integrity," but in reality—despite being presented hard evidence of dishonest, unethical Windermere misconduct—forces damaged and defrauded Windermere victims through years of ruinous, bankrupting litigation. When victims do indeed speak out, Jacobi falsely sues them for trade libel and defamation, tries to coerce the defendant into a "dark clause" settlement agreement through fear and intimidation, continues to prosecute the bogus action for years at enormous cost to the parties, then runs away and voluntarily dismisses his own lawsuit under Civil Rule 41, just prior to trial when the honest, innocent victim persists in refusing to sign away their speech rights. 2: Windermere general counsel, Paul S. Drayna, who spearheads illegal efforts to strip damaged Windermere clients of their speech rights. 3: Attorney John Demco of Windermere's Demco Law Firm, which prosecutes Windermere's anti-speech cases and unabashedly defends the most outrageous Windermere Realtor misconduct—no matter what it is. Demco is also a multi-franchise Windermere owner who defended his one-time mother-and-daughter Windermere Freeland/Whidbey agents, Samantha Saul and Linda Gabelein, about whom the court stated "...the Sauls and Gabeleins unduly influenced and exploited Emma."
(Above L to R) 4: Windermere-Demco Law Firm's lawyer, Matthew F. Davis who lies to courts and legal opponents alike in an all-out effort to win at any cost. In one particular case of note, Davis served a Windermere victim a lawsuit for libel and defamation, then emailed the victim not to hire an attorney! 5: L 'Nayim Shuman Austin, past Demco Law Firm attorney, ENDICOTT v. SAUL. 6&7: Samantha Saul and Linda Gabelein. 8: Barbara Mearing, current Windermere Freeland employee who got a $7500 commission from the sale of Emma's land: "Ms. Mearing testified that she was aware that the $150,000 sale price was low, but ‘not horribly low’. She also testified that the assessor’s values are not “spot on” and that sometime property sells for less or more than the assessed value. She said that it is always hard to estimate value but that she respected the fact that the seller gets to choose the price that he or she wants." The court later stated,"The court gives Ms. Mearing's testimony little weight."
DOWNLOAD THE COURT OF APPEALS PUBLISHED OPINION HERE.
ENDICOTT v. SAUL
Ronald ENDICOTT and Donald Endicott, Respondents, v. Robert and Samantha SAUL, husband and wife, and Linda and Vernon Gabelein, husband and wife, Appellants. Emma Endicott, Appellant, v. Ronald Endicott and Donald Endicott, Respondents.
Nos. 58435-9-I, 58531-2-I.
February 04, 2008
John W. Demco, Demco Law Firm PS, Matthew F. Davis, Attorney at Law, Seattle, WA, H. Clarke Harvey, Attorney at Law, Clinton, WA, for Appellants. Carolyn Cliff, Attorney at Law, Langley, WA, for Respondents. Michael Mert Waller, Zylstra Beeksma & Waller PLLC, Oak Harbor, WA, for Guardian Ad Litem Clarke Harvey, Attorney at Law,Clinton, WA, for Other Parties.
¶ 1 Emma Endicott (Emma), Samantha and Robert Saul (the Sauls), and Linda and Vernon Gabelein (the Gabeleins) challenge the trial court's decision to establish a limited guardianship for Emma under the Guardianship Act, chapter 11.88 RCW, and to issue a protective order under the Abuse of Vulnerable Adults Act (AVA), chapter 74.34 RCW. After a ten-day bench trial that took place over the course of three months, the trial court concluded clear, cogent, and convincing evidence established that Emma was at significant risk of personal and financial harm and that the Sauls and the Gabeleins unduly influenced and exploited Emma. Because substantial evidence supports the trial court's determination that Emma is incapacitated as to her person and as to her estate, that Emma is a vulnerable adult under the AVA, and that the Sauls and the Gabeleins exploited and unduly influenced Emma to sell her Whidbey Island view property to them for significantly below fair market value, we affirm.
FACTS
¶ 2 Emma Endicott is an 80-year-old woman who has lived almost her entire life on Whidbey Island and was married to Orvel “Shorty” Endicott for 43 years. Emma has two sons from an earlier marriage, John Earl (Earl) Fisher and Robert (Bob) Fisher. Shorty and Emma had twin sons, Ronald (Ron) Endicott and Donald (Don) Endicott. Ron and Don lived with Emma and Shorty for most of their lives. Emma's son Earl lives with his family in Seattle. Bob and his spouse Sandy live nearby in the house built by Emma's father.
¶ 3 Emma and Shorty lived in a small neighborhood on Whidbey Island that has scenic views of Mutiny Bay. In 1947, Shorty inherited 24 acres of view property overlooking Mutiny Bay. In 1976, Emma inherited five acres and a one-third interest in her parents' house that is located in the same general area.
¶ 4 During their 43-year marriage, Shorty managed and controlled all the finances and Emma and Shorty lived an extremely frugal life. Emma has never had a checking account or a credit card. Emma also never obtained a driver's license and, until shortly before the trial in this case, did not have a telephone.
¶ 5 Shorty died in 1998, leaving Emma the family home, the 24 acres of view and waterfront property, $114,000 in savings, and $556 per month from his pension benefits. Emma took over managing the finances and the property. After Shorty died, friends described Emma as devastated, lonely, and lost.
¶ 6 Initially, Emma relied on Ron and Don. But increasingly, Emma came to rely on Linda Gabelein and Samantha Saul. Linda is married to Vernon Gabelein. Emma's brother is married to Vernon Gabelein's sister. Linda has two daughters from a previous marriage, Samantha Saul and Dina Thompson. Samantha is married to Robert Saul, who grew up on Whidbey Island with Ron and Don. Linda Gabelein and Samantha Saul own homes in the same neighborhood as Emma and are both real estate agents with Windermere Real Estate (Windermere). Emma testified that Linda is like a daughter to her and that she worships Linda. Emma was also very close to Samantha. In June 2003, Emma executed a durable power of attorney, giving Samantha the authority to make all decisions on her behalf.
¶ 7 It is undisputed that Emma wants to live on her own in her house on Whidbey Island for the rest of her life. When Shorty died, Emma's childhood friend, Frank Robinson, offered to purchase a 445-foot beachfront portion of her property for $660,000. A long-time neighbor, Ray Lotto, later offered to buy most of Emma's property for $1.5 million and give Emma a life estate in her residence. Instead, in three separate real estate transactions, Emma sold the majority of her property to Dina Thompson and her spouse, to the Sauls, and to the Gabeleins. After the three real estate transactions with the Gabelein family members, Emma was left with 13.77 acres, but over a third of it was swamp and marshland.
¶ 8 In September 2001, Emma decided to sell the five acres she inherited from her parents after Earl and Bob Fisher were unable to agree on how to pay expenses for the property.1 After unsuccessfully attempting to sell the property by putting up a for sale sign, Emma asked Samantha, who had recently acquired her real estate license, to list the property for sale.
¶ 9 The assessed value for the five-acre parcel was $82,326. Samantha originally listed the property for sale at $69,500. After two months, Samantha lowered the price to $64,500. When Dina Thompson and her spouse offered to buy the property for $52,000, Samantha acted as a dual agent for her sister and her brother-in-law and Emma. Emma relied on Samantha's advice and accepted the offer of $52,000. The court rejected Samantha's testimony that she did not suggest a price to her sister as not credible. Emma received $45,000 from the sale. Bob and Sandy Fisher were extremely upset that Emma sold the five acres and as a result were estranged from Emma for a number of years.
¶ 10 In February 2002, Emma sold another five acres of waterfront view property to Samantha and Robert Saul for $80,000. The 2001 assessed value of the property was $195,524. Samantha initially denied that she suggested the sales price of $80,000. But at trial Samantha admitted that she did. After purchasing the five acres, the Sauls invested $40,000 to $100,000 in improvements. When the Sauls applied for a home construction loan in July 2004, according to a bank appraisal, the five acre view property was valued at $400,000.
¶ 11 After the Sauls bought the property from Emma, Roy Lotto told Samantha he was willing to pay $1.5 million for the rest of Emma's property and would give Emma a life estate in her residence. Lotto said Samantha told him that she would be able to get the property for him. But in June 2004, Emma signed a purchase and sale agreement with Linda and Vernon Gabelein to sell five acres of prime view property next to the five acres Emma sold to the Sauls for $150,000. There is no dispute that the property was worth $324,000. The “Vacant Land Purchase and Sales Agreement” states that a five-acre parcel will “be created by Buyer paid short plat” with “all other expenses paid by Buyer” and a net purchase price of $150,000. The Addendum states that the “Seller may be selling the property substantially below market value as the property has not been exposed on the open market.” The Addendum also states that because the buyer is a Windermere real estate agent, the agreement was “conditioned on review and approval by Sellers [sic] attorney.” Because Emma's attorney was representing the Gabeleins in another real estate matter, Linda Gabelein arranged for Emma to meet with another attorney about the agreement. Emma's meeting with the attorney lasted approximately 20 to 30 minutes.
¶ 12 In September 2004, Emma and the Gabeleins signed another addendum to the Purchase and Sale Agreement that allowed the Gabeleins to assign their interest in the property to the Sauls and obtain a boundary line adjustment. It is undisputed that the purpose of the boundary line adjustment was to avoid the public notice requirement for a short plat and prevent Ron and Don from learning about the sale before it closed. According to an unchallenged finding, the Sauls and the Gabeleins acted with “deliberate secrecy” throughout this real estate transaction. Before signing the Addendum, Emma met with the same attorney again for about 20 to 30 minutes. Following the boundary line adjustment, Emma was left with a parcel of approximately nine acres, more than half of which is swamp and marshland. The sale closed on May 16, 2005. There is no dispute that, at closing, the property was worth $427,000.
¶ 13 During the evening of June 14, 2005, Emma fell down. Ron drove to Bob Fisher's house to call 911. When the paramedics arrived, Emma refused to go to the hospital. On the morning of June 16, Don found Emma on the floor and halfway under her bed. Ron and Don drove Emma to the hospital. Don said his mother's eyes were glazed, she was confused, and she did not know where she was. When they arrived at the hospital, the hospital personnel determined Emma was not competent to refuse hospitalization. The court concluded it was not likely that Ron and Don would have called 911 if Emma had not fallen, as they claimed. The trial court also concluded that Emma's memory was suspect and “she is suggestible to the memories of others, especially as to what happened the night before she went in to the hospital in June 2005.”
¶ 14 At some point, Samantha notified the hospital that she had the power of attorney for Emma. Samantha also told the hospital social worker that Emma said Ron and Don hit her and that was why she was in the hospital. Samantha was present when the social worker interviewed Emma. Emma told the social worker that she did not remember why she was in the hospital, but that Ron and Don yelled at her a lot, that they were controlling, and they would not let her watch television. That same day, Emma filed a petition for a domestic violence protection order against Ron and Don. The court entered a temporary restraining order requiring Ron and Don to move out of the house.2 When Emma was released from the hospital, she went to live with Bob and Sandy Fisher. Emma lived with the Fishers until December.
¶ 15 On July 11, 2005, Ron and Don filed a petition to establish a guardianship for Emma and for her estate, to obtain a protective order for Emma as a vulnerable adult under the AVA, and to rescind the May 2005 real estate transaction with the Sauls and the Gabeleins. Ron and Don alleged that Emma was incapacitated as to her person and as to her estate, that the Sauls and the Gabeleins exerted undue influence over Emma, and that the Sauls and Gabeleins financially exploited her.
¶ 16 Prior to trial, Emma, the Sauls, and the Gabeleins filed a motion to bifurcate the request to rescind the May 2005 real estate transaction. The Sauls and the Gabeleins also filed a motion to exclude evidence relating to alleged undue influence concerning the 2005 real estate transaction. The court granted the motion to bifurcate the request to rescind the 2005 real estate transaction, but denied the motion to exclude testimony about undue influence related to the transaction.
¶ 17 A ten-day bench trial began in December 2005 and concluded in March 2006. During the course of the trial, the court heard testimony from 36 witnesses and admitted more than 75 exhibits. At the conclusion of the trial, the court issued a 55-page written opinion consisting of 94 separate findings of fact and 26 conclusions of law. The court concluded that Emma was incapacitated as to her person and as to her estate, that Samantha and Linda had a confidential and fiduciary relationship with Emma, that Emma was a vulnerable adult under the AVA, and that the Sauls and Gabeleins unduly influenced and financially exploited Emma. The court appointed Emma's son Earl as a limited guardian with the “goal of allowing Emma to live in her house for as long as possible” 3 and entered a protective order under the AVA prohibiting the Sauls and the Gabeleins from transferring or encumbering the property Emma sold in May 2005.
ANALYSIS
¶ 18 On appeal, Emma, Samantha and Robert Saul, and Linda and Vernon Gabelein challenge the trial court's determination that Emma is incapacitated as to her person and as to her estate. Emma, the Sauls, and the Gabeleins also contend the trial court erred in shifting the burden to Samantha and Linda to prove lack of undue influence and finding Emma was a vulnerable adult
under the AVA.
Standard of Review
¶ 19 We review the trial court's decision following a bench trial to determine whether the findings are supported by substantial evidence and whether those findings support the conclusions of law. Dorsey v. King County, 51 Wash.App. 664, 668-69, 754 P.2d 1255 (1988). Substantial evidence is the quantum of evidence sufficient to persuade a rational fairminded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). In determining the sufficiency of evidence, an appellate court need only consider evidence favorable to the prevailing party. Bland v. Mentor, 63 Wash.2d 150, 155, 385 P.2d 727 (1963). In evaluating the persuasiveness of the evidence, and the credibility of witnesses, we must defer to the trier of fact. Burnside v. Simpson Paper Co., 123 Wash.2d 93, 108, 864 P.2d 937 (1994). “[C]redibility determinations are solely for the trier of fact [and] cannot be reviewed on appeal.” Morse v. Antonellis, 149 Wash.2d 572, 574, 70 P.3d 125 (2003). Unchallenged findings of fact are also verities on appeal. In re Estate of Jones, 152 Wash.2d 1, 8, 93 P.3d 147 (2004); RAP 10.3(g). We review questions of law de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 879-880, 73 P.3d 369 (2003).
¶ 20 The clear, cogent and convincing burden of proof contains two components: (1) the amount of evidence necessary to submit the question to the trier of fact or the burden of production, which is met by substantial evidence; and (2) the burden of persuasion. As to the burden of persuasion, the trier of fact, not the appellate court, must be persuaded that the fact in issue is “highly probable.” Colonial Imports, Inc. v. Carlton Northwest, Inc., 121 Wash.2d 726, 734-735, 853 P.2d 913 (1993).
¶ 21 In determining whether the evidence meets the “clear, cogent and convincing” standard of persuasion, the trial court must make credibility determinations and weigh and evaluate the evidence.
Bland, 63 Wash.2d at 154, 385 P.2d 727.
What constitutes clear, cogent, and convincing proof necessarily depends upon the character and extent of the evidence considered, viewed in connection with the surrounding facts and circumstances. Whether the evidence in a given case meets the standard of persuasion, designated as clear, cogent, and convincing, necessarily requires a process of weighing, comparing, testing, and evaluating-a function best performed by the trier of the fact, who usually has the advantage of actually hearing and seeing the parties and the witnesses, and whose right and duty it is to observe their attitude and demeanor. Bland, 63 Wash.2d at 154, 385 P.2d 727.
¶ 22 Thus, the appellate court's role is limited to determining whether substantial evidence supports the trial court's findings of fact. Bland, 63 Wash.2d at 154, 385 P.2d 727. It is for the trial court, and not this reviewing court, to determine whether the evidence in a given case meets the standard of persuasion designated as “clear, cogent and convincing.” Id.
Limited Guardianship
¶ 23 Emma, the Sauls, and the Gabeleins challenge the trial court's conclusion that Emma is incapacitated as to her person and as to her estate. The standard of proof in a guardianship proceeding is clear, cogent, and convincing evidence. RCW 11.88.045(3). In determining incapacity as to the person, the court must determine whether the individual is at significant risk of personal harm “based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.” RCW 11.88.010(1)(a). In determining incapacity as to the estate, the court must decide if there is a significant risk of financial harm based upon a demonstrated inability “to adequately manage property or financial affairs.” RCW 11.88.010(1)(b). The guardianship statute authorizes the superior court to appoint a guardian for an incapacitated person.
¶ 24 RCW 11.88.010 provides in pertinent part:
(1) The superior court of each county shall have power to appoint guardians for the persons and/or estates of incapacitated persons, and guardians for the estates of nonresidents of the state who have property in the county needing care and attention.
(a) For purposes of this chapter, a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety.
(b) For purposes of this chapter, a person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.
¶ 25 Under RCW 11.88.010(1)(c), the determination of incapacity “is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.” In making this determination, the trial court considers evidence from all sources, not just experts. In re Guardianship of Stamm v. Crowley, 121 Wash.App. 830, 841, 91 P.3d 126 (2004).
¶ 26 Here, the trial court concluded clear, cogent, and convincing evidence established that Emma is at a significant risk of personal harm “based on a demonstrated inability to adequately provide for her nutrition, health, or physical safety.”
The court concludes, based on clear, cogent, and convincing evidence, that Emma is at significant risk of personal harm based on a demonstrated inability to adequately provide for her nutrition, health, or physical safety. In the court's opinion, the professionals who have concluded otherwise have not had all of the information that was provided to this court during the trial, having based their opinions primarily on short interviews done months ago.
¶ 27 Substantial evidence supports the trial court's conclusion that Emma is incapacitated as to her person. The trial court found that the unbiased testimony of Emma's neighbors, Don Gulliford and Janet Lotto, was more credible than the testimony of other witnesses. According to the unchallenged testimony of Don Gulliford, he found Emma wandering along a roadside ditch in the summer of 2003, holding a toothbrush. When he stopped to help her, Emma did not appear to know where she was going and “seemed confused and [in need] of assistance.” When Janet Lotto brought Emma food in November 2004 and in December 2004, Emma appeared confused and told Lotto to whisper “because she did not want Vernon Gabelein to know about the food.” And according to the testimony of other witnesses, there were multiple occasions in 2005 when Emma did not recognize people she had known for decades. In addition, the court relied on Frank Robinson's undisputed testimony about Emma. Robinson was a friend of Emma's since childhood and regularly visited her. According to Robinson, in the summer of 2005 and at trial, Emma did not recognize him and acted agitated and confused when he spoke to her.
¶ 28 It is also undisputed that when Emma was hospitalized in June 2005, the hospital personnel determined she was not competent to refuse medical care because she “was disoriented” and confused. Before Emma was admitted to the hospital in 2005, Emma had not been to a doctor or had any medical care for over thirty years.
¶ 29 There is also no dispute that “Emma does not cook, and relies on others for her meals.” And on the occasions when Emma cooked, she burned or undercooked the food or cooked spoiled meat. Emma would also turn the stove on and sometimes forget to turn it off and often dropped her lit cigarettes on the floor without noticing. In addition, the trial court's finding that Emma continued to go through “the garbage at the county boat ramp, even after being advised that it was dangerous because needles from illegal drug use had been discarded there” is unchallenged.
¶ 30 The court considered but expressly rejected the opinion of the psychologist, Dr. Janice Edwards, that Emma did not need a guardian, because the opinion was based on a “short interview[ ] done months ago.”
The court has struggled with these opinions because the court has respect for these professionals. But Dr. Edwards' impressions reflect a two-hour visit at the end of September of 2005.[Her] impressions are widely divergent from what the court observed of Emma over a period from December of 2005 through March 2, [2006], through ten days of trial. Even the guardian ad litem, who testified after Emma, acknowledged that if she were looking at Emma solely based on Emma's testimony in court, that she too might have doubts as to whether Emma needed a guardian.
The court is also mindful that the professionals based their opinions on information gathered when Emma was staying with Bob and Sandy Fisher. But the court concludes that things have changed since Emma moved back into her home alone on December 1, 2005... The court concludes that Emma appears to have gone downhill since she started living alone on December 1, 2005.
In evaluating Dr. Edwards' opinion, the trial court expressly “credit[ed] the information elicited on cross-examination.”
Dr. Edwards is a forensic psychologist who has done over 100 guardianship evaluations. However, the court credits the information elicited during her cross-examination: that she was not aware of much of the evidence provided to the court in this trial. For example, Dr. Edwards was not aware ? that Emma had not been to a doctor in over 30 years until she was hospitalized in June of 2005, that Emma had no preventative checkups or any well health care until the guardianship petition was filed, that Emma had refused emergency medical care, or that Emma was considered not competent to refuse hospitalization when she was admitted to the hospital in June of 2005.
¶ 31 During cross examination, the GAL also admitted that before her investigation was complete and before talking to “Earl Fisher, Emma's oldest son and the proposed guardian; Janet Lotto[; or] Emma's [siblings],” she had already decided that she would not recommend a guardianship.
¶ 32 Emma's trial testimony also supports the trial court's conclusion of incapacity. For instance, Emma's description about what she said when Janet Lotto brought food to her was incoherent:
Q. And you were in court when Janet Lotto described bringing food to you after Thanksgiving and Christmas?
A. Yes.
Q. And you told her to whisper and not to tell Vernon about it. Do you remember Janet saying that?
A. What? No. I know what that was all about. I don't know if I should tell it or not. But she got scared one night and she come up and I should have went with her. I told her afterwards, too, I said, Janet, I should have went with you. Because it was not at night, it was in sort of the afternoon.
And Emma often had difficulty answering simple questions during the trial. For example, when asked “[h]ow long have you had that microwave?” she replied “[s]ince I've been-and you should see the house. They're painting the house inside. Inside. Linda and Sandy, my daughter-in-law, well, Linda, there's-and we were talking about it the other day, we're going to finish painting the inside.” When asked “[w]hat did you believe that the property was worth when you agreed to sell it?” Emma replied “No, I sold it because there was so much junk up there.” Asked about the property that she sold for $150,000 that was worth $427,000, “Emma scoffed and said, ‘It's just sand’.”
¶ 33 The court found Emma was “frail, confused, unsteady, disoriented, childlike, and oftentimes belligerent.” According to the court, while it is not unusual for a person of Emma's age to be forgetful, “Emma's forgetfulness had another element to it. It is not that Emma could not remember something; it is that Emma refused to believe certain things had happened at all. On other occasions, Emma asserted certain information as if it was the truth when she clearly had no memory of the event.” The trial court also clearly rejected the argument that an infection in February caused Emma's sometimes incoherent testimony.4
¶ 34 Emma, the Sauls, and the Gabeleins rely on Elston v. McGlauflin, 79 Wash. 355, 140 P. 396 (1914), to argue the trial court impermissibly relied on its own observations of Emma's behavior at trial as evidence of incapacity in violation of ER 605. Emma, the Sauls, and the Gabeleins specifically challenge findings of fact 76, 92, and 93, claiming they were unable to challenge the court's observations that were not made part of the record.
¶ 35 Finding of fact 76 states:
If Emma did not agree with the testimony from other witnesses, she would make faces of astonishment or bafflement, indicating clearly her disagreement with the testimony. She continued to talk in court, at times so loudly that she would have to be reminded by the court to be quiet. In December of 2005, during the testimony of her sister-in-law, Ruth Gabelein Ohm, Emma laughed, smiled, talked, and looked around as if she was at a social gathering. Emma's attorney frequently had to tell her to be quiet. The court understands that a guardianship proceeding is a difficult time for anyone. But Emma's behavior in court was dramatically different from anyone else that the court has observed in ten years on the bench.
¶ 36 Finding of fact 92 states:
As Ron was testifying, Emma was saying to her attorney, loudly enough for anyone in the courtroom to hear, “That's not true! That's not true!”
¶ 37 Finding of fact 93 states:
In reaching its decision in this case, the court has carefully considered the opinions of the professionals described above: i.e., that Emma is fine. But it is the court's strong impression, and the court finds, that Emma is not, in fact, fine but rather that she is incapacitated. Emma has not appeared to be fine to this court, or to many people who are part of her family or otherwise knowledgeable about her and who have nothing to gain from their testimony about their concerns.
¶ 38 Under ER 605 “[t]he judge presiding at the trial may not testify in that trial as a witness.” In Elston, during the trial in an action to recover damages allegedly caused by negligent construction of an apartment building on a steep slope, the judge visited the site without the knowledge of the parties or counsel. Elston, 79 Wash. at 357, 140 P. 396. On appeal, the court held that the trial court's independent investigation impermissibly denied the parties a fair trial. Elston, 79 Wash. at 359, 140 P. 396. “The court unwittingly became a witness in the case and in some degree, at least, based his judgment upon his own independent experience and preconceived opinion.” Id. Here, unlike in Elston, the trial judge did not conduct an independent investigation or make a decision based upon independent experience and preconceived opinions. And in deciding the incapacity and competency of a witness, the trial court is entitled to draw on its observations of the witness. See Day v. Santorsola, 118 Wash.App. 746, 765, 76 P.3d 1190 (2003); State v. Avila, 78 Wash.App. 731, 735, 899 P.2d11 (1995).
¶ 39 The record also shows that on numerous occasions, the judge noted Emma's inappropriate courtroom behavior. For example, the court admonished Emma “to not make comments out loud during” the testimony of other witnesses. And as finding of fact 93 makes clear, the trial court considered but expressly rejected the expert opinions offered and primarily relied on the trial testimony of disinterested witnesses such as Don Gulliford, Janet Lotto, and Frank Robinson in reaching the conclusion that Emma is at significant risk of personal harm “based on a demonstrated inability to adequately provide for her nutrition, health, or physical safety.” 5
¶ 40 Substantial evidence also supports the trial court's conclusion that “Emma is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.” There is no dispute that Emma wishes to remain in her home as long as possible, but that “Emma is not able to protect her resources to meet her future needs” and her “uni[n]formed decisions will have an enormous impact on her” ability to do so. The parties also do not challenge the finding that Emma “has absolutely no idea of property values or financial planning” or that after months of litigation about the value of the properties she sold “Emma is unaware of the market value of the property that she sold and does not even care.” Although Emma insisted “I know what I sold,” when she finally understood that she was being asked how much the property was worth, she admitted “I don't know. I don't know all that. Jeepers.” Emma also testified that “I forget how many acres I've got left. I had 24 but I don't have that much now. I don't know what all I have.”
¶ 41 In addition, the evidence establishes Emma has difficulty paying bills and is unaware of her finances.6 Emma relies on the bank tellers to make entries in her check register and could not account for the withdrawal of money. Emma did not recognize entries in her checkbook and could not explain the withdrawals from her account in 2004. And according to one of the court's unchallenged findings, “[i]n addition to having unaccounted withdrawals from her savings, Emma has little understanding of ‘investments,’ which also leaves her vulnerable to others.”
¶ 42 Because substantial evidence supports the trial court's findings, we conclude the court did not err in appointing a limited guardianship for Emma to allow her to meet her medical and day-to-day needs and assist her in managing her finances and property.
Abuse of Vulnerable Adults Act Protection Order
¶ 43 Emma, the Sauls, and the Gabeleins also contend that the trial court erred in concluding Emma was a vulnerable adult and entering a protective order under the Abuse of Vulnerable Adults Act (AVA), chapter 74.34 RCW. Relying on former RCW 74.34.110(2),7 Emma, the Sauls, and the Gabeleins assert that the court had to find by clear, cogent and convincing evidence that Emma was a vulnerable adult when she signed the purchase and sale agreement with the Gabeleins in 2004 and the evidence does not support finding Emma was a vulnerable adult in 2004.8
¶ 44 Statutory interpretation is a question of law we review de novo. Western Telepage, Inc. v. City of Tacoma, 140 Wash.2d 599, 607, 998 P.2d 884 (2000). The court's primary goal is “to ascertain and give effect to legislative intent.” State v. Pac. Health Ctr., Inc., 135 Wash.App. 149, 158-59, 143 P.3d 618 (2006). Legislative intent is determined primarily from the statutory language, viewed “in the context of the overall legislative scheme.” Collection Servs. v. McConnachie, 106 Wash.App. 738, 741, 24 P.3d 1112 (2001). If the statute's meaning is plain on its face, we give effect to that plain meaning. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002).
¶ 45 The stated purpose of the AVA is to protect vulnerable adults from abuse, financial exploitation, and neglect. RCW 74.34.110. Under the AVA, the court shall conduct a hearing on a petition for an order of protection and can enter an order to protect the vulnerable adult from exploitation, “not to exceed one year.” Former RCW 74.34.130.
¶ 46 Former RCW 74.34.110(2) provides that: A petition shall allege that the petitioner is a vulnerable adult and that the petitioner has been abandoned, abused, financially exploited, or neglected, or is threatened with abandonment, abuse, financial exploitation, or neglect by respondent.
¶ 47 A “vulnerable adult” is defined as a person “[s]ixty years of age or older who has the functional, mental, or physical inability to care for himself or herself” or is “[f]ound incapacitated under chapter 11.88 RCW” Former RCW 74.34.020(13). The AVA establishes an action for the protection of vulnerable adults in cases of “abandonment, abuse, financial exploitation, or neglect.” The AVA definition of “abuse includes exploitation of a vulnerable adult.” Former RCW 74.34.020(2). “[E]xploitation” is defined as “an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior.” Former RCW 74.34.020(2)(d). According to the statutory definition of “exploitation,” exploitation can only occur when the adult is vulnerable. Under the plain language of the AVA, we conclude the court must find an individual is a vulnerable adult at the time of the alleged exploitation.
¶ 48 Relying on the opinion of Dr. Edwards and the fact that the GAL did not recommend a guardianship, Emma, the Sauls, and the Gabeleins contend the evidence does not support the trial court's conclusion that Emma was a vulnerable adult under the AVA in 2004 when she signed the purchase and sale agreement. Since her husband died in 1998, Emma has been vulnerable to others, who have taken advantage of her desire to please those persons she perceives as being her friends or looking out for her best interests, such as Linda Gabelein and Samantha Saul. Emma has sold property to members of the Gabelein family for a fraction of its value jeopardizing her ability to remain in her home for the remainder of her life.
¶ 49 The testimony of Dr. Edwards and the GAL about Emma's mental capacity “presents one source of information among many, credibility is the province of the judge, and the judge can cast a skeptical eye when called for.” Stamm, 121 Wash.App. at 841, 91 P.3d 126. And the court rejected the opinion of Dr. Edwards as based on spending very limited time with Emma while she was being taken care of by and living with Bob and Sandy Fisher.
¶ 50 In addition, Emma, the Sauls, and the Gabeleins argue that Emma was not a vulnerable adult under the AVA because the GAL “concluded Emma was not an exploited vulnerable adult.” They mischaracterize the GAL's testimony. While the GAL testified that she did not believe the Gabeleins had “purposely done something to hurt” Emma, the GAL's report states that “[n]one of this means that Emma has not been unduly influenced.”
¶ 51 Evidence concerning Emma's incapacity under chapter 11.88 RCW also supports the trial court's conclusion that Emma was a vulnerable adult when she entered into the purchase and sale agreement with the Gabeleins in 2004.9 For instance, in 2003, the same year that Don Gulliford found Emma wandering along a ditch, disoriented and confused, Emma gave Samantha Saul a durable power attorney apparently without realizing it was effective immediately. Emma told Dr. Edwards that “she had made a power of attorney over to Samantha Saul [that] is not in effect, but will become active if she is unable to handle her own affairs.” 10 And as previously described, it is undisputed that by 2004 Emma could not independently manage her finances or take care of herself. And Ron testified that he stopped accepting out-of-town jobs in 2004 because his brother could no longer care for Emma by himself.
¶ 52 On this record, substantial evidence supports the trial court's conclusion that Emma was a vulnerable adult in 2004 under the AVA when she sold the property to the Gabeleins.
¶ 53 Emma, the Sauls, and the Gabeleins also challenge the trial court's conclusion that the Sauls and the Gabeleins exploited Emma by exerting undue influence over her by inducing her to sell her property to them in 2004 at a price far below the market value. They argue that Emma was not exploited because she met with an attorney about the 2004 purchase and sale agreement. But the trial court's unchallenged finding that Emma had “absolutely no idea of property values” supports the court's conclusion that Emma was exploited despite meeting with an attorney. And the unchallenged finding that Emma did not understand the effect of selling her property on her ability to live independently in her home for the rest of her life also supports the conclusion that Emma was exploited, despite meeting with an attorney.
¶ 54 Next, Emma, the Sauls, and the Gabeleins contend the property sale was not a gift and the trial court erred in relying on White v. White, 33 Wash.App. 364, 655 P.2d 1173 (1982), to shift the burden to the Sauls and Gabeleins to prove lack of undue influence. The trial court ruled that Emma made a gift to the Sauls and the Gabeleins. “By selling her property as far below its market value as she has, Emma has, in essence, made gifts to the Sauls and the Gabeleins of substantial value, based on the difference between the sales price and the fair market value of each property.”
¶ 55 As a general rule, the party seeking to set aside an inter vivos gift has the burden of showing the gift is invalid. Lewis v. Estate of Lewis, 45 Wash.App. 387, 388, 725 P.2d 644 (1986). But if the recipient has a confidential or fiduciary relationship with the donor, the burden shifts to the donee to prove “a gift was intended and not the product of undue influence.” Lewis, 45 Wash.App. at 389, 725 P.2d 644; White, 33 Wash.App. at 368, 655 P.2d 1173.11 “[E]vidence to sustain the gift between such persons must show that the gift was made freely, voluntarily, and with a full understanding of the facts. If the judicial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee must be deemed to have failed in the discharge of his burden and the claim of gift must be rejected.” McCutcheon v. Brownfield, 2 Wash.App. 348, 356, 467 P.2d 868 (1970). The donee's burden of proof is clear, cogent, and convincing evidence. Pedersen v. Bibioff, 64 Wash.App. 710, 720, 828 P.2d 1113 (1992). Whether a legal fiduciary relationship exists is a question of law, which we review de novo. S.H.C. v. Lu, 113 Wash.App. 511, 524, 54 P.3d 174 (2002). Whether a confidential relationship exists is a question of fact. McCutcheon v. Brownfield, 2 Wash.App. 348, 356-57, 467 P.2d 868 (1970).
¶ 56 The Sauls and the Gabeleins dispute the trial court's conclusion that Samantha and Linda had a confidential or fiduciary relationship with Emma. “A confidential or fiduciary relationship between two persons may exist either [in law] because of the nature of the relationship between the parties or the confidential relationship between persons involved may exist in fact.” McCutcheon, 2 Wash.App. at 356-57, 467 P.2d 868. A confidential relationship exists when one person has gained the confidence of the other and “purports to act or advise with the other's interest in mind.” McCutcheon, 2 Wash.App. at 357, 467 P.2d 868.
¶ 57 The power of attorney Emma executed in June 2003 that gives Samantha “all of the powers of an absolute owner over [Emma's] assets and liabilities,” including the authority to “[l]ease, sell, release, convey, exchange, mortgage, and release any mortgage on land, and any interest therein,” establishes Samantha had a legal fiduciary relationship with Emma. While Emma, the Sauls, and the Gabeleins argue that Samantha's fiduciary role is irrelevant because she did not purchase the property in 2004, the trial court's finding that her role was critical to the sale is unchallenged-“[t]he Gabelein transaction would not have occurred without the Sauls' participation in a boundary line adjustment.”
¶ 58 Substantial evidence also supports the court's findings that both Samantha and Linda had a confidential or fiduciary relationship with Emma and exerted undue influence over her. It is undisputed that Samantha was involved in all three real estate transactions and, for each transaction, “Emma thought the property was worth a substantial amount less than it was.” Samantha gained Emma's confidence and purported to act in Emma's best interest as her friend, giving advice based on her superior knowledge. For example, Samantha testified that in the 2002 sale, she rejected Emma's proposed price of $52,000 as “too low,” then showed Emma “comparable” property sales records demonstrating that $80,000 was a fair market value.12 But the trial court found $80,000 was a “bargain” price and below fair market value.13
¶ 59 Linda also gained Emma's confidence and purported to advise Emma as her friend and act with Emma's best interests in mind, using her superior knowledge. In the 2004 property transaction, Linda rejected Emma's price as “too low” but told Emma that comparable sales data showed $150,000 was “in the ballpark” of a reasonable price. Yet on appeal, there is no dispute that the property is “some of the best view property on Whidbey Island” and was worth $324,000 in June 2004 and $427,000 when the sale closed in May 2005.14 It is also undisputed that Linda was the listing agent for a house on a small lot in the same neighborhood that sold for only $150,000 around the same time. The trial court noted that this sale also showed that Linda's claim that $150,000 was “in the ballpark” was not credible.
¶ 60 Citing conclusions of law 10 and 17, the Sauls and the Gabeleins also claim the court erred by imposing a fiduciary duty on Samantha and Linda contrary to the laws governing real estate agents.15 Conclusion of law 10 states: Given Emma's age, her lack of sophistication in financial matters, and her almost childlike trust in Samantha and Linda, each of them should have insisted upon getting appraisals and paying fair market value in purchasing property from Emma.
¶ 61 Conclusion of law 17 states:
Samantha had an obligation to advise Emma about the fair market value of the property that Samantha purchased from her before the purchase. Linda had an obligation to advise Emma about the fair market value of the property that Linda purchased from her before the purchase.
¶ 62 It is undisputed that neither Linda nor Samantha acted as Emma's real estate agent for the 2004 real estate transaction. In context, it is clear that the crux of conclusions of law 10 and 17 is not the role Samantha and Linda played as real estate agents but rather their responsibility, because of their close relationship with Emma and Emma's unequivocal trust in and reliance on them, to use their superior knowledge in Emma's best interest.
¶ 63 Because the trial court correctly concluded that Samantha and Linda had a confidential relationship with Emma, as a matter of law they have the burden to prove a gift was not a result of undue influence. In a number of cases, Washington courts have held that below-market sales are gifts. In the Matter of the Estate of McLeod, 105 Wash.2d 809, 814, 719 P.2d 88 (1986) (in the context of the inheritance tax, “the excess of the fair market value above the [amount paid] was a gift”); Glorfield v. Glorfield, 27 Wash.App. 358, 359, 617 P.2d 1051 (1980) (for community property purposes in a dissolution, “sales which were substantially below fair market value” were characterized as gifts). Emma, the Sauls, and the Gabeleins cite no case to the contrary.
¶ 64 The only authority Emma, the Sauls, and the Gabeleins cite to support their argument that the 2004 transaction was not a gift is the introduction to the Washington Administrative Code (WAC) provision regulating taxation of real property transfers. WAC 458-61A-201(1)
provides:
Generally, a gift of real property is not a sale, and is not subject to the real estate excise tax. A gift of real property is a transfer for which there is no consideration given in return for granting an interest in the property. If consideration is given in return for the interest granted, then the transfer is not a gift, but a sale, and it is subject to the real estate excise tax to the extent of the consideration received.
But a later example in WAC 458-61A-201(6)(b) explains that the value transferred in excess of the consideration received is a gift:
(ii) Keith and Jean, as joint owners, convey their residence valued at $200,000 to Jean as her sole property. There is no underlying debt on the property. In exchange for Keith's one-half interest in the property, Jean gives Keith $10,000. Keith has made a gift of $90,000 in equity, and received consideration of $10,000. Real estate excise tax is due on the $10,000.
¶ 65 We conclude the trial court did not err in concluding that Emma's sale for well below market value was a gift and in shifting the burden to the Sauls and the Gabeleins to prove undue influence.16
¶ 66 According to one of the court's unchallenged findings of fact, “Emma did not have any idea of the value of the property that she sold to the Gabeleins and still does not.” Emma's lack of expertise in real estate and financial matters is also undisputed. Because Emma never had a full understanding of the facts, the claim of gift must be rejected.
¶ 67 Even if the Sauls and Gabeleins did not have the burden to prove undue influence, substantial evidence supports the court's conclusion that clear, cogent, and convincing evidence establishes “Emma has been exploited by the Sauls and the Gabeleins.” Undue influence can exist “when highly unreasonable consideration is coupled with other inequitable incidents.” Lewis v. Estate of Lewis, 45 Wash.App. 387, 391, 725 P.2d 644 (1986). “Even though no directly false statements are made, if there appears to be a studied effort to produce a false impression upon the mind of the party from whom land is being purchased, this, together with inadequacy of price, will be sufficient to authorize relief.” Downing v. State, 9 Wash.2d 685, 689-90, 115 P.2d 972 (1941).
¶ 68 Here, Samantha and Linda convinced Emma that they were looking out for her best interests by telling Emma her price was “too low,” then suggesting prices that were still egregiously low. Emma was also given misleading “comparable” property sales to lead her to believe that the bargain sale prices were reasonably close to market value.
¶ 69 After the first sale to the Thompsons, the Sauls asked Emma to sell them property.17 While Emma offered to sell the property to the Sauls for $52,000, they agreed to buy it for $80,000. Before trial, Samantha took the position that Don or Emma suggested $80,000 as the purchase price. But at trial, Samantha admitted that she proposed $80,000. However, she claimed that $80,000 was “in the range of what was reasonable” for five acres with a marine mountain view, despite the undisputed evidence that the property was assessed at $195,524 the previous year. And when the Sauls applied for a loan two years later, the bank appraisal valued the property at $400,000.
¶ 70 A few months after the sale to the Sauls, Linda Gabelein testified that she approached Emma about buying another five-acre parcel. During the transaction, Linda also purported to act in Emma's best interest by insisting on paying more than Emma initially offered but then agreeing to a price that was still far below market value. Sometime after the 2004 purchase and sale agreement, an addendum was executed. Linda brought the boundary line adjustment paperwork to Emma to sign. Emma signed at least two versions, including one that lacked a legal description or a map. In the boundary line adjustment that was finally approved, all of the less-desirable marsh and swampland was excluded from the five acres the Gabeleins purchased. The Sauls and the Gabeleins also took steps to ensure Ron and Don did not learn about the 2004 real estate transaction until after closing. Linda Gabelein told a fellow real estate agent that the sale was “hush-hush” and “a really good deal.”
¶ 71 There was also testimony that both the Sauls and the Gabeleins told others they were able to influence Emma. According to one unchallenged finding, Samantha told Ray Lotto that “she was working on Emma, by being nice to her and taking her on trips to Costco, so that she could get a listing on Emma's property that Lotto wanted to buy.” Ray Lotto testified that Samantha thought “given enough time [she would] be able to get this property for” him. Emma's daughter-in-law Sandy Fisher testified that Vernon Gabelein told her that he “could talk Emma into giving Bob Fisher and Earl Fisher her remaining five-acre parcel of property?” 18 And according to the GAL, Linda and Samantha could “get Ms. Endicott to change her mind.” The unchallenged findings also show that Samantha's influence over Emma extended beyond real estate. For instance, when Ron and Don questioned “the prudence of Emma's purchase of a 30-year annuity in 2002, she would not believe that their questions were valid until she had Samantha Saul check out the situation.” And it is undisputed that during Emma's testimony, she “volunteered, ‘[i]f Sam told you that, that's the truth.’ ? As Emma said, if Samantha Saul says it, that's the truth for Emma.”
¶ 72 Substantial evidence also supports the trial court's finding that the undue influence of the Sauls and the Gabeleins over Emma caused her “to act in a way that is inconsistent with relevant past behavior.” 19 Many witnesses testified that Emma was extremely frugal. Emma used to dig through trash to find can labels she could turn in for fifty cents or a dollar. Emma has always worn secondhand clothes she got for free. She did not replace her 50-year-old broken dentures because she did not want to spend the money. Before Shorty's death, the couple had never conveyed any property except when Emma gave her favorite sister Annie the one-third interest she inherited in their parent's home.20
¶ 73 On this record, we conclude the trial court did not err in ruling Emma is a vulnerable adult under the AVA and issuing a protective order preventing the Sauls and the Gabeleins from transferring or encumbering the property she sold to them in 2004.
CONCLUSION
¶ 74 We affirm the trial court's decision establishing a limited guardianship for Emma and issuing an order of protection for her as a vulnerable adult under the AVA. Substantial evidence supports finding that Emma is incapacitated as to her person and as to her estate, and that the Sauls and the Gabeleins unduly influenced and exploited Emma. As the prevailing parties on appeal, upon compliance with RAP 18.1, Ron and Don are entitled to attorney fees on appeal under RCW 11.96A.150 and RCW 74.34.130.21
FOOTNOTES
1. There was an understanding in the family that Earl and Bob would inherit Emma's five acres.
2. The court later entered an order of protection against Don because of an unrelated incident a year earlier.
3. The court selected Earl Fisher because he would act in his mother's best interest, he was impartial, and he was not interested in obtaining Emma's money or property.
4. “The court does not attribute Emma's behavior during trial solely to the urinary tract infection. The court observed Emma's behavior for three full days in December of 2005 and two full days in January of 2006, and her behavior was as described above. There is no suggestion that Emma was suffering from a urinary tract infection then. Even if she was suffering from a urinary tract infection, the antibiotics prescribed for her on February 8, 2006, would have been completed on February 13 or 14. Emma's disorientation cleared up with 24 hours when she was at the hospital in June of 2005 for the same condition. The difference between June of 2005 and February of 2006 is that Emma was no longer living with anyone who monitors whether she was taking her medication. Samantha, who took her to the hospital on February 8, testified that she did not know if Emma had finished her medication. Because Emma was diagnosed with two urinary tract infections in such a short period of time, the court questions whether she took all of her antibiotics as prescribed.”
5. And because substantial evidence supports finding Emma incapacitated, any error is harmless.
6. At some point Emma inadvertently let her homeowners' insurance lapse and apparently she often paid bills even when the statements showed a credit balance.
7. In this opinion, the statutory citations to the AVA refer to the version in effect in 2004 and 2005. Effective July 22, 2007, some sections of the AVA were amended in ways that do not affect this appeal.
8. Ron and Don contend the Sauls and the Gabeleins argue for the first time on appeal that the court erred in not addressing whether Emma was a vulnerable adult at the time of the Purchase and Sale Agreement in 2004. But below the Sauls and the Gabeleins took the position that the AVA required proof that Emma was vulnerable when she was allegedly
exploited in 2004.
9. Emma, the Sauls, and the Gabeleins assert the relevant time period was when the purchase agreement for the third sale was signed on June 15, 2004. Ron and Don assert the last exploitation occurred at the closing on May 16, 2005. Because substantial evidence supports finding Emma incapacitated before June 2004, we need not resolve the parties' disagreement about the relevant time period.
10. The court expressly found the psychologist's report of Emma's statement credible.
11. Emma, the Sauls, and the Gabeleins also contend that only the donor may challenge the transaction and that White only applies to a rescission action. But the holding in White is not limited to actions by donors to rescind. See Matter of Estate of Eubank, 50 Wash.App. 611, 619-20, 749 P.2d 691 (1988); Lewis, 45 Wash.App. at 388-89, 725 P.2d 644.
12. Samantha's testimony also supports the challenged finding that Samantha knew Emma did not know the value of the property.
13. This challenged finding is supported by substantial evidence. The property was assessed at $195,524 in 2001, and an appraisal showed the land alone was worth at least $300,000 two years after the Sauls bought it.
14. The court's finding that the appraisal Ron and Don submitted was more credible is unchallenged. According to that appraisal, the five acres was worth $324,000 in June 2004.
15. Because the findings, conclusions, and protective order only relate to the 2004 real estate transaction, we need not address challenges to the findings and conclusions related to the first sale to Dina Thompson and her spouse, who are not parties to this action nor subject to the protective order.
16. The White court also distinguished inter vivos gifts from will contests. In will contests, the initial burden is on the party challenging the testamentary gift. By contrast, with an inter vivos gift the donor “strips himself of that which he can still enjoy and of which he may have need during his life.” White, 33 Wash.App. at 371, 655 P.2d 1173 (quoting Whalen v. Lanier, 29 Wash.2d 299, 312, 186 P.2d 919 (1947)).
17. The court rejected the testimony that Emma approached the Sauls. The trial court relied on Emma's statement to the psychologist that the Sauls asked her to sell them property and “she agreed?” And in the protection order hearing, Emma again stated that the Sauls “c[a]me and asked” about buying the property.
18. Because the trial court found Sandy Fisher's testimony about the sale in 2004 noncredible, Emma, the Sauls, and the Gabeleins assert substantial evidence does not support the trial court's finding that the conversation occurred. But while the court rejected Sandy Fisher's testimony that Emma was not exploited in the 2004 sale as not credible, the court expressly found her testimony about the conversation with Vernon was credible.
19. Former RCW 74.34.020(2)(d).
20. Emma, the Sauls, and the Gabeleins argue that because Shorty always controlled the finances, Emma never had a chance to sell anything or give expensive gifts before he died. But for at least the first three years after Shorty died, Emma continued to live very frugally and did not sell any property. The largest gift Ron remembered Emma ever giving was $75 to her sister Annie on her 75th birthday in 2000.
21. Because we affirm, we also conclude the trial court did not abuse its discretion in awarding Ron and Don attorney fees under RCW 11.96A.150 and RCW 74.34.130.
SCHINDLER, A.C.J.
WE CONCUR: APPELWICK, C.J., and BECKER
"Further, at all times relevant to the events alleged in this action, Windermere Coachella was and is licensed by the State of California as a real estate broker, doing business as a real estate broker and operating an unlawful franchise arrangement with defendant Windermere Real Estate Services Company ("Windermere Services") from which both Windermere Coachella and Windermere Services have unlawfully split over a million dollars in commissions from real estate transactions within the State of California." JUMP TO THIS ALLEGATION HERE
"...At the time of the increase in purchase price, with the knowledge and/or consent of Windermere Coachella, Windermere Services, Deville and Shambaugh, Kovall told the Tribe that the increase was the result of "some people from New York," who were supposedly interested in the property, and therefore constituted potential competitors for the property for the Tribe." JUMP TO THIS ALLEGATION HERE
DOWNLOAD A PDF COPY OF THE COMPLAINT HERE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
TWENTY-NINE PALMS BAND OF MISSION INDIANS OF CALIFORNIA; TWENTY-NINE PALMS ENTERPRISES CORPORATION; and ECHO TRAIL HOLDINGS, LLC, a limited liability company,
Plaintiffs,
vs.
DAVID ALAN HESLOP, an individual, DIVERSIFICATION RESOURCES, LLC, a limited liability company, NATIONAL DEMOGRAPICS [sic], Inc., a corporation, PEGGY SHAMBAUGH, an individual, BENNION & DEVILLE FINE HOMES, INC., doing business as WINDERMERE REAL ESTATE COACHELLA VALLEY, a corporation, and Does I through 100,
Defendants.
Case No. RIC10006101
Honorable John Vineyard, Dept. 7
FOURTH AMENDED COMPLAINT FOR:
(1) BREACH OF CONTRACT;
(2) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;
(3) BREACH OF FIDUCIARY DUTY;
(4) BREACH OF CONTRACT;
(5) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;
(6) BREACH OF FIDUCIARY DUTY;
(7) PROFESSIONAL NEGLIGENCE; and
(8) UNFAIR TRADE PRACTICES
Plaintiffs Twenty-Nine Palms Band of Mission Indians of California, Twenty-Nine Palms Enterprises Corporation, and Echo Trail Holdings, LLC (sometimes collectively referred to herein as "Plaintiffs") allege, as follows:
GENERAL ALLEGATIONS
1. At all times relevant to the events alleged in this action, Plaintiff Twenty-Nine Palms Band of Mission Indians of California was and is a Sovereign Native American Nation duly recognized by the government of the United States of America. At all times relevant to the events alleged in this action, Plaintiff Twenty-Nine Palms Enterprises Corporation was and is a federally chartered corporation duly organized and existing under the laws of the government of the United States of America, and was and is wholly owned by Plaintiff Twenty-Nine Palms Band of Mission Indians of California. Together, these two entities are sometimes hereinafter collectively referred to as the "Tribe."
2. At some of the times relevant to the events alleged in this action, Plaintiff Echo Trail Holdings, LLC ("Echo Trail Holdings") was and is a limited liability company organized and existing under the laws of the State of California and was and is wholly owned by the Tribe.
3. At all times relevant to the events alleged in this action, defendant David Alan Heslop ("Heslop") was and is an individual and, on information and belief, a resident of the County of San Luis Obispo.
4. Plaintiffs are informed and believe that Defendant Diversification Resources, LLC, a Nevada limited liability company ("DRL-NV") is a limited liability company organized under the laws of the State of Nevada. Plaintiffs are informed and believe that in or about August 2006, Heslop formed DRL-NV. On information and belief, Heslop was, and is, the sole member and manager of DRL-NV; and its business affairs were, and are, controlled by Heslop. Plaintiffs are further informed and believe and thereon allege that in or about August 2007, a conversion was filed with the California Secretary of State, whereby Defendant DRL-NV was purportedly converted to Defendant Diversification Resources, LLC, a California limited liability company ("DRL-CA"). Assuming that the conversion was lawfully effected, all debts, liabilities and obligations of DRL-NV continue as debts, liabilities and obligations of DRL-CA, and all rights of creditors, including Plaintiffs, were preserved unimpaired against DRL-CA, as if the alleged conversion had not occurred.
5. As a result of Heslop's failure and refusal to respond to any discovery to date, Plaintiffs are currently unable to determine the precise legal status of DRL-NV or the legal effectiveness of the alleged conversion. Plaintiffs are informed and believe and thereon allege that DRL-CA and Heslop failed to notify creditors of DRL-NV of the alleged conversion. Plaintiffs are further informed and believe and thereon allege that DRL-NV failed to transfer its assets (including possible insurance coverage) to DRL-CA in connection with the alleged conversion, and instead, transferred such assets to Heslop, with the intent to defraud its creditors and to escape liability for its debts. Accordingly, the purported "conversion" has no effect on Plaintiffs' claims against DRL-NV
6. Plaintiffs are informed and believe and thereon alleged that DRL-NV and Heslop knowingly and willfully conspired and agreed among themselves, and with Paul P. Bardos, to defraud Plaintiffs out of hundreds of thousands of dollars by charging Plaintiffs spurious consulting fees for construction and construction management. Defendants Heslop and DRL-NV did the acts and things here and alleged pursuant to, and in furtherance of, the conspiracy and the above-alleged agreement.
7. In the alternative, since DRL-NV contends that it is a "dissolved" limited liability company, pursuant to California Corporations Code § 17355, this action may be maintained against DRL-NV to the extent of its undistributed assets, including, without limitation, any insurance assets held by DRL-NV that may be available to satisfy claims. (DRL-NV and DRL-CA are hereinafter collectively referred as "DRL.")
8. On information and belief, at all times relevant to the events alleged in this action defendant National Demographics, Inc. ("NDI") was and is a corporation doing business in the States of Nevada and/or California. Further, on information and belief, NDI was formed by Heslop on or about July 12, 1979; Heslop was and is one of the owners of stock in NDI; and, at various times referred to in this action, Heslop was an officer and director of NDI. On information and belief, NDI has its principal place of business in the County of Los Angeles, at 1217 Glenwood Road, Glendale, CA 91202.
9. On information and belief, in doing or failing to do the things alleged in this action, Heslop was acting in the course and scope of his responsibilities as the managing owner and agent of DRL and as a managing officer, director and agent of NDI.
10. On information and belief, at all times relevant to the events alleged in this action, defendant Peggy Shambaugh ("Shambaugh") was and is an individual and a resident of the County of Riverside. At all times relevant to the events alleged in this action, Shambaugh was and is a real estate licensee and a real estate agent with defendant Bennion & Deville Fine Homes, Inc., which does business as Windermere Real Estate Coachella Valley.
11. At all times relevant to the events alleged in this action, defendant Bennion & Deville Fine Homes, Inc., doing business as Windermere Real Estate Coachella Valley ["Windermere Coachella") was and is a corporation organized and existing under the laws of the State of California with various places of business, including one in Palm Desert, California. Further, at all times relevant to the events alleged in this action, Windermere Coachella was and is licensed by the State of California as a real estate broker, doing business as a real estate broker and operating an unlawful franchise arrangement with defendant Windermere Real Estate Services Company ("Windermere Services") from which both Windermere Coachella and Windermere Services have unlawfully split over a million dollars in commissions from real estate transactions within the State of California.
12. On information and belief, at all times relevant to the events alleged in this action, defendant Windermere Services was and is a corporation organized and existing under the laws of the State of Washington with its principal place of business in Seattle, Washington and offices in various states including, but not limited to, the offices of Windermere Coachella in California. On further information and belief, Windermere Services managed and controlled Windermere Coachella through defendant Bob Deville ("Deville") and others in, among other matters, the events alleged in this action, so as to render Windermere Services legally responsible in some manner for not only its own wrongful conduct but also the wrongful conduct of Windermere Coachella and certain others alleged below. On further information and belief, at all times relevant Windermere Services had an unlawful franchise arrangement with Windermere Coachella, operated as a real estate broker without a license and unlawfully split over a million dollars in commissions with Windermere Coachella from real estate transactions within the State of California.
13. On information and belief, at all times relevant to the events alleged in this action, defendant Deville was and is an individual residing in Southern California, an owner, operator, officer, manager and alter ego of Windermere Coachella, a member of Windermere Services' management team, and a supervisor of Windermere Services' franchise operation, including an unlawful franchise arrangement with Windermere Coachella.
14. Plaintiffs are unaware of the true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants sued herein as Does 1 through 100, inclusive, and therefore sue said Defendants by such fictitious names. On information and belief, Plaintiffs allege that each fictitiously named Defendant is legally responsible in some manner for the wrongful conduct described below, and is therefore legally responsible for the injury and damage to Plaintiffs alleged in this action. Plaintiffs will amend this Complaint to allege the true names and capacities of these fictitiously named Defendants when the same have been ascertained.
15. On information and belief, Plaintiffs allege that the Defendants, and each of them, were the duly authorized and acting agents, employees, partners, joint venturers, coconspirators and/or the alter egos of each of the other Defendants, and in doing the things alleged in this action, each Defendant was acting within the course and scope of his, her or its employment and authority from the other Defendants and/or the other Defendants have approved and/or ratified all such conduct.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
16. At some time before the events alleged in this Complaint, Heslop was associated with the Claremont McKenna College as a professor and/or an administrator. At all times relevant to the events alleged in this action, Heslop was associated with the Rose Institute ("Rose"), as an officer, director and/or sponsor of some sort. Rose holds itself out to the public as being capable of providing services, including survey research, fiscal analysis, and database development and as the author of studies of political and demographic trends.
17. While at Claremont McKenna College or through Rose, Heslop became acquainted with Gary E. Kovall ("Kovall").
18. From and after about 1997, Kovall represented the Tribe and its related entities, first as an attorney with his own office and subsequently through a series of law partnerships and/or affiliations. Beginning in or about 2002, Kovall continued to represent the Tribe and also to provide advice and counsel to the Plaintiffs of a type generally provided by an entity's general counsel pursuant to an oral agreement. However, Kovall submitted written invoices for all of his services and was paid for all of his services by the Tribe. In this capacity, Kovall became an integral part of the Tribe's management and the operations of the Tribe's business endeavors. Beginning in or about 2007, and continuing to in or about 2009, Heslop convinced representatives of the Tribe, including, Kovall and Gene Gambale, the predecessor of Kovall as the Tribe's legal advisor, that he had special knowledge, training and skill in business affairs, including the acquisition of business opportunities, the acquisition of real estate and the management of construction. In addition, Heslop knew of Kovall's relationship with the Tribe and took steps to endear himself to Kovall and the Tribe so as to be able to influence and control the business decisions made by the Tribe.
19. The Tribe hired Heslop and at his recommendation DRL and NDI to, among other things, advise the Tribe with respect to a variety of matters, including, without limitation, all phases of real estate investment (such as, for example, the acquisition and valuation of real property and the retention of real estate lawyers, appraisers, and brokers), all phases of construction matters involving the Tribe (such as the retention and oversight of consultants, owner-representatives, contractors, and sub-contractors), and in connection with the negotiation of agreements with each such type of construction person and entity in connection with construction work proposed or undertaken by the Tribe. During such times the Tribe also utilized the legal service of Kovall to advise it with respect to such matters, Kovall also represented the Tribe in mediations and litigation matters in which the Tribe was a party, including matters pertaining to the Tribe's business operations. Kovall also represented the Tribe with respect to political matters affecting the Tribe's business operations, and with respect to investments and other business transactions which were of potential benefit to the Tribe, including, without limitation, recyclables and solar product ventures. Heslop and his entities also advised the Tribe with respect to such matters. In the course of such representation, Kovall and Heslop gained considerable and intimate knowledge regarding the Tribe's assets and business operations, as well as its organizational and social structure, its chain of command, and its manner of doing things.
20. In or about 1998, the Plaintiffs retained Heslop, who thereafter, began to advise the Tribe on various business ventures, including those described below, for which Heslop was paid as the Tribe's trusted advisor. In addition, based on the recommendation of Heslop, the Tribe entered into special consulting arrangements with various persons and entities, including DRL, NDI and Paul P. Bardos and his related entities, and the Tribe paid Heslop and these other consultants hundreds of thousands of dollars for their services.
The Total Tire Venture
21. On information and belief, beginning in or about 1997 as a result of the recommendation of Heslop and Kovall, the Tribe invested over $5 million in a "recycling" venture in the Sacramento, California area, known as the "Total Tire" venture. The Tribe did not understand or appreciate that Heslop and Kovall arranged for the ownership of the Total Tire venture to be set up so that they each acquired an ownership interest in the venture without investing any money of their own. Thus, the Tribe took all of the financial risk, which resulted in a total financial loss to the Tribe of over $5 million. In or about 2001, Kovall and Heslop conspired together to convince the Tribe to invest more money in this venture when it was clear, or should have been clear, to them that any further investment by the Tribe would be lost. As a result, the Tribe lost additional sums in the Total Tire venture in excess of $1.5 million. Kovall submitted invoices for the legal work he did on the Total Tire venture and was paid for that work by the Tribe. Kovall and Heslop failed to properly disclose the ownership interest they took in the Total Tire venture and failed to obtain the informed consent of the Tribe to the taking of this interest. Kovall and Heslop conspired together to convince the Tribe to invest these additional funds in the Total Tire venture knowing those funds would probably be lost because Kovall and Heslop believed this was the only means available to them to protect their ownership interests in the deal. In so doing and despite the fiduciary relationship they each had with the Tribe, they sacrificed the interests of the Tribe in favor of protecting their own ownership interests.
Bardos and Kickbacks
22. While Heslop was advising the Tribe as described above, in connection with various business matters, including construction and remodeling issues, Heslop, acting individually and through DRL, purported to advise the Tribe on construction issues involving the Tribe. Heslop and DRL used Paul P. Bardos to provide these services. Later, Kovall and Heslop convinced the Tribe that it needed someone to manage or control its construction work and convinced the Tribe to retain Paul P. Bardos and his company to provide these services. Kovall and Heslop also recommended Paul P. Bardos, Bardos Construction, Inc., Bardos Construction Company and/or Cadmus Construction, Inc. ("Cadmus") (a Bardos company) (collectively "Bardos") for various positions and relationships with the Tribe without revealing (and, indeed, concealing) the nature and extent of their relationships with Bardos. In addition, on information and belief, Bardos compensated Heslop and Kovall, for their recommendation of Bardos to the Tribe, and Kovall and Heslop failed to disclose this benefit to the Tribe. Moreover, Heslop did not obtain the consent of the Tribe to his (Heslop's) receipt of these benefits from Bardos. In addition, Kovall and Heslop hired for the Tribe, or recommended for hire by the Tribe, Bardos in connection with construction work related to the Tribe's casino operations without recommending a competitive bid process for the selection of a contractor. Moreover, Heslop did so at a time when Heslop knew or should have known the agreements proposed for Bardos for the construction work were inadequate and insufficient to protect the interests of the Tribe in that they allowed Bardos to charge excessive and unreasonable fees to the Tribe. Heslop also knew or should have known that Cadmus, an entity Bardos used to provide services to the Tribe, lacked experience in construction of the types of projects for which it was hired by the Tribe, and was undercapitalized and unlicensed.
23. Between May 2007 and June 2008, Bardos paid Heslop approximately $683,000 from the millions of dollars he received from the Tribe as a kickback for contracts he was able to acquire from the Tribe due to the recommendation of Heslop and Kovall. On information and belief, Heslop, in turn, paid some portion of those funds to Kovall or to Shambaugh for Kovall's benefit, or to someone identified by Kovall. The Tribe did not know of the foregoing described payments of kickbacks and did not approve them. In addition, while Heslop purported to advise the Tribe in connection with its dealings with Bardos, Bardos was supplying work and materials to Kovall at little or no cost in connection with the construction or remodeling of property owned by Kovall in the Big Bear area, thereby creating a clear conflict of interest for Kovall. Heslop knew Bardos was providing his service to Kovall but never disclosed these facts to the Tribe. Heslop and Kovall concealed Kovall's receipt of these other benefits from Bardos from the Tribe. On information and belief, Bardos also provided similar undisclosed benefits to Heslop in connection with personal construction work done by Bardos for Heslop while Heslop purported to provide independent advice to the Tribe.
The Moskow Action
24. In August 2003, the Tribe sold certain real property located in the City of Laguna Beach, California to Dr. and Mrs. Lonnie Moskow (the "Moskows"). In June 2004, the Moskows filed a construction defect case in Orange County Superior Court against the Tribe and certain of its members, and Mrs. Moskow claimed injury (bodily injury) from exposure to mold.
25. In or about 2004, Kovall retained attorneys Nada L Edwards, Robert Rosette and Monteau & Peebles ("M & P") to represent the Tribe and others in the defense of the Moskow action. On information and belief, Rosette was, at the time, a partner in the firm of M & P. Later, while still representing the Tribe in the Moskow action, M & P reorganized itself and became Fredericks & Peebles ("F & P"), but continued to represent the Tribe in the Moskow action. In 2007, F & P reorganized itself into Fredericks Peebles & Morgan ("FP & M"), but continued to represent the Tribe in the Moskow action.
26. At the recommendation of Kovall and/or Heslop, the attorneys representing the Tribe in the Moskow action retained various consultants and/or experts in connection with the defense of the Moskow action, including Bardos and Peggy Shambaugh ("Shambaugh"). Shambaugh at the time was the girlfriend of Kovall. Later, in 2008, she became his wife. As described above, Bardos paid Kovall and/or Heslop for recommending him and his companies to the Tribe.
The 47 Acres
27. Beginning in about 2005 and continuing into 2008, Kovall represented the Tribe with respect to the acquisition of approximately 47 acres of real property known as the "Echo Trail" property (hereafter the "Echo Trail property" or "the 47 acres"), from its then owner Dillon Road Associates, LLC, and other matters related to the Tribe's acquisition of the property. The Echo Trail property is located in the City of Coachella, County of Riverside. The Tribe also used the services of Heslop and, at his recommendation, NDI, in connection with its evaluation of the transaction by which it acquired the 47 acres. Ultimately, Heslop, acting for himself and for DRL and NDL and Kovall persuaded the Tribe to purchase the 47 acres. In addition, Kovall persuaded the Tribe to utilize the services of Windermere Coachella as the buyer's broker in the transaction, with Shambaugh as the responsible individual salesperson. On information and belief, Windermere Coachella, Windermere Services, Deville and Shambaugh were brought into this transaction less than two months before it closed, at a point when negotiations between the Tribe and the then-owner of the land were at an end or near an end. Further, on information and belief, the services provided by Windermere Coachella, Windermere Services, Deville and Shambaugh in connection with the Plaintiffs' acquisition of the 47 acres were of little or no value to the Tribe.
28. Unbeknownst to the Tribe, at the time Kovall represented the Tribe in connection with the acquisition of the Echo Trail property, Kovall was in a romantic relationship with Shambaugh, in which the two, at the time of the purchase of the 47 acres, lived together and held themselves out as being husband and wife. In July 2008, following his divorce from his then-wife in 2007, Kovall and Shambaugh were formally married. On information and belief, Heslop, individually and on behalf of DRL and NDI, knew of the romantic relationship between Kovall and Shambaugh at the time Shambaugh and Windermere Coachella were hired by the Tribe to represent it in connection with the acquisition of the 47 acres and throughout the time Windermere Coachella, Windermere Services, Deville and Shambaugh represented the Tribe. At no time did Heslop or Kovall ever disclose to the Tribe Kovall's relationship to Shambaugh, or the conflict of interest created thereby. Instead, Heslop, Kovall and Shambaugh actively concealed this relationship, as a means of personally benefiting from the purchase of the 47 acres. For Kovall, he was able to secure a portion of the commission. For Heslop, he was able to, among other things, secure the position as the first manager of Echo Trail Holdings and fees for acting in that capacity and as the advisor to the Tribe in making its decision to purchase the 47 acres for himself as well as fees for DRL and NDI and fees he anticipated he would receive from the Tribe in the future for development of the 47 acres. Such concealment and relationship between Kovall and Shambaugh created a clear conflict of interest for Kovall and Heslop, who, as noted above, represented the Tribe and Echo Trail Holdings, an entity formed by the Tribe to take title to parcels of real property, including the Echo Trail property.
29. Kovall, ostensibly on behalf of the Tribe, negotiated a sales price of $29 million, which was to include a 3.5% commission to Windermere Coachella and their licensed salesperson, Shambaugh. On information and belief, Kovall, Heslop, Shambaugh, Deville, Windermere Coachella and Windermere Services knew or should have known the Echo Trail property had a market value of no more than $20 million. On information and belief, beginning in 2006 and continuing into 2008, Heslop directed NDI to make various payments to Kovall, totaling many thousands of dollars. On further information and belief, these payments by NDI to Kovall represent a portion of Kovall's share of the kickbacks Heslop received from Bardos, and/or kickbacks for recommending NDI to assist with the acquisition of the 47 acres and were never disclosed by Kovall, Heslop or NDI to the Tribe.
30. Later, as a result of negotiations conducted by Kovall, ostensibly on behalf of the Tribe, the commission for Windermere Coachella and Shambaugh was reduced from 3.5% to 3.0%, but the purchase price was raised to $31 million, apparently to compensate for the reduction in the percentage of the commission to Windermere Coachella, Shambaugh and Windermere Services. At the time of the increase in purchase price, with the knowledge and/or consent of Windermere Coachella, Windermere Services, Deville and Shambaugh, Kovall told the Tribe that the increase was the result of "some people from New York," who were supposedly interested in the property, and therefore constituted potential competitors for the property for the Tribe.
31. While acting on behalf of Windermere Coachella and Windermere Services, Deville was actively involved in the 47 acres transaction. Deville oversaw the 47 acres transaction and communicated with Windermere Coachella and its employees regarding the acquisition of the 47 acres. Windermere Coachella and Windermere Services, through their agent and/or alter ego Deville, knew or should have known that certain of the individuals assigned to act on behalf of Plaintiffs in connection with the 47 acres transaction were grossly lacking the commercial real estate experience and knowledge necessary to adequately represent Plaintiffs in this $30 million plus deal. As a manager of Windermere Coachella in the 47 acres transaction, Deville knew that the individuals assigned to represent Plaintiffs were incompetent and inexperienced but did nothing to rectify the situation, despite the fact that he was "supervising" and following the transaction with bated breath.
32. The negotiations resulted in a September 19, 2007 option agreement between the seller and the purchaser Echo Trail property. Ultimately, the property sold to Echo Trail Holdings for $31 million, which amount was paid by the Tribe. The escrow for the purchase of the property took place in or about November 2007. Shambaugh, Windermere Coachella and Windermere Services received a total commission of approximately $1 million on the sale and Heslop, as stated above, became the first Manager of Echo Trail Holdings, the entity taking title to the 47 acres. Naturally, as an owner, operator, officer, manager and alter ego of Windermere Coachella, a member of Windermere Services' management team, and a supervisor of Windermere Services' franchise operation, including an unlawful franchise arrangement with Windermere Coachella, Deville benefited from the unlawfully split commission.
33.. The Tribe hired and paid Heslop to review the proposed acquisition of the 47 acres and make a recommendation to the Tribe. As part of Heslop's review, and at Heslop's recommendation, the Tribe hired NDI and paid it tens of thousands of dollars in or about early 2006 and in 2007 to conduct valueless studies to justify Heslop's recommendations with respect to the acquisition of the 47 acres. Heslop reviewed the transaction and recommended to the Tribe that it acquire the 47 acres for a price that exceeded $30 million. On information and belief, the 47 acres was worth no more than $20 million at that time of Heslop's recommendation. Part of the reason for Heslop's recommendation was his relationship with Kovall and Bardos and the financial benefits he received from them. On information and belief, Heslop and Kovall recommended to the Tribe that Echo Trail Holdings be formed as a Limited Liability Company to take title to the Echo Trail property, and that Heslop be appointed as the sole manager of Echo Trail Holdings. As a result of the recommendations of Heslop and Kovall, the Tribe formed Echo Trail Holdings with Heslop as the only manager of the company and its business, and arranged for Echo Trail Holdings to take title to the 47 acres. In his capacity as advisor to the Tribe, Heslop occupied a special position of trust and confidence. On information and belief, Heslop knew of the relationship between Kovall, on the one hand, and Shambaugh, on the other, and deliberately did not disclose such information to the Tribe. In his June 24, 2008 letter of resignation, Heslop stated, "You will remember that the Tribe instructed me to keep all transactions strictly confidential: I have done this and believe that the Tribe's position has been effectively protected and its secrets maintained."
34. In his position of leadership in NDI, Heslop repeatedly stated knowledge of the importance of the confidentiality and secrecy of the Tribe's interests. For example, in a July 2007 document entitled, "Development of 47 acre site", Heslop stated, "In order to preserve the absolute secrecy of the Tribe's possible interest in the site and its plans, needed contacts have not been made with professionals in the entertainment field. Thus, the recommendations are based primarily on this consultant's past experience and knowledge of the entertainment industry." As a further example, NDI's 29 Palms Market Study Proposal, dated November 7, 2007 includes the following language: "First and foremost, all information, data, analysis and report will be treated in the strictest confidence. This report will be a vital resource for the tribe and the Spotlight 29 Casino in planning their future business strategy, and NDI will ensure that every aspect of this study is conducted with the utmost in secrecy and discretion." NDI made payments to Kovall after the preparation of this report. On 'information and belief, Heslop directed NDI to make these payments to Kovall.
35. The Tribe is further informed and believes that Kovall arranged for Shambaugh to provide other real property related services for the Tribe in connection with other matters, including litigation, in which the Tribe was involved and for which Shambaugh received payment from the Tribe. The value of these services by Shambaugh was worth little or nothing to the Tribe in that it could not rely on Shambaugh to provide independent expert advice on tribal matters.
FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT
(By All Plaintiffs Against Heslop, DRL, NDL and Does 1-25)
36. Plaintiffs re-allege and incorporate here by this reference paragraphs 1 through 35, above, as though fully set forth at length.
37. Heslop agreed to provide expert consulting services to the Tribe, individually and through DRL and NDI, beginning in or about 1998 and continuing up to approximately June of 2008, for which the Tribe paid Heslop and these defendants hundreds of thousands of dollars. Heslop and the other defendants provided these services in connection with various transactions, including construction and construction management, the Total Tire venture, the Moskow action and the acquisition of the 47 acres. The agreements between Heslop, DRL and NDI, on the one hand, and the Tribe, on the other, were both verbal and in writing. Heslop, individually, and on behalf of DRL and NDI continued to represent the Plaintiffs in these matters up to at least June of 2008 when Heslop resigned as Manager of Plaintiff Echo Trail Holdings, and NDI's last known payment to Kovall was made in April, 2008.
38. Plaintiffs performed all of the things required of them under the various agreements described above, and there is no condition to their right to full performance of the agreements from the Defendants.
39. In doing or failing to do the things described, the defendants breached the agreements they had with the Plaintiffs, together with obligations imposed by law. As a direct and proximate breach by the Defendants, Plaintiffs have suffered damages in the form of overpayments of fees, payments for useless services, payments for advice tainted by kickbacks and undisclosed benefits from persons and/or entities with whom Plaintiffs dealt in matters in which Defendants provided services to Plaintiffs, erroneous advice and recommendations, and other errors and malfeasance in an amount which is presently unknown but which exceeds the jurisdictional minimum of this Court.
40. In addition, Heslop has received benefits and/or kickbacks as described above for business received by others from the Tribe and Heslop has been unjustly enriched by the receipt of such benefits and kickbacks. Heslop should be made to pay over those benefits to the Tribe and, where those funds or benefits have been invested in other property by Heslop, a constructive trust should be imposed on Kovall's interest in any such property.
SECOND CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENTANT OF GOOD FAITH AND FAIR DEALING
(By All Plaintiffs Against Heslop, DRL, NDL and Does 1-25)
41. Plaintiffs re-allege and incorporate here by this reference paragraphs 36 through 40, above, as though fully set forth at length.
42. In every contract entered into or to be performed in this State, there is an implied covenant of good faith and fair dealing which requires each of the parties to the contract to take no action to prevent the other party to the contract from realizing the benefit of same.
43. To the extent they do not represent breaches of the express contract, Defendants, in doing the things described above, breached the covenant of good faith and fair dealing and deprived the Tribe and Echo Trail Holdings of the benefits of their agreements with the Defendants in connection with each of the matters identified above and as to other matters as yet unidentified. As a direct and proximate result of the breach by the Defendants, Plaintiffs have suffered the damages described above in an amount which is presently unknown, but which exceeds the jurisdictional minimum of this Court.
THIRD CAUSE OF ACTION FOR BREACH OF FIDUCLARY DUTY
(By All Plaintiffs Against Heslop, DRL, NDL and Does 1-25)
44. Plaintiffs re-allege and incorporate here by this reference paragraphs 41 through 43 as though fully set forth at length.
45. At all times relevant to the events alleged above, Heslop, individually and on behalf of DRL and NDI, occupied a position of trust and confidence with the Plaintiffs. In that position Heslop was provided access to information about the Plaintiffs' business operations, inner workings and plans for the future. Indeed, Heslop was consulted for his advice, for which the Plaintiffs paid him, on various projects, ventures and strategies for the use of the Plaintiffs' property and property rights. For example, Heslop advised the Tribe to invest in the Total Tire venture and to continue to invest money in the Total Tire venture when he knew or should have known that the additional investment would result in additional loss to the Tribe. Heslop did so, in part, because he had a personal financial interest in this venture that was not properly disclosed. Heslop also advised the Tribe to use the services of Bardos, as described above, when he knew or should have known that Bardos was not qualified to provide these services to the Tribe. Part of the reason Heslop recommended Bardos to the Tribe was the kickbacks that Bardos was providing to Heslop. Heslop also advised the Tribe to hire DRL and NDI in connection with services that neither organization was qualified to provide, or under circumstances where the services were valueless, at least in part because Heslop owned or managed these entities. On information and belief, Heslop benefited financially from the services he arranged for DRL and NDI to provide to the Tribe. Heslop was also hired by the Tribe to provide a confidential analysis and recommendation with respect to whether the Plaintiffs should purchase the 47 acres, the correct price to pay for the 47 acres, and how the property might be developed beneficially by the Plaintiffs after it was acquired. In these positions Heslop, individually and on behalf of DRL and NDI, and the other Defendants acquired confidential information about the Tribe's business plans; indeed, they were responsible for many of the Tribe's business decisions and plans and arrangements. Given Heslop's position and given the nature of the services he, DRL and NDI provided to Plaintiffs, Heslop, DRL and NDI occupied a position as fiduciaries in their dealings with Plaintiffs.
46. In doing the things described above, including, without limitation, setting up or continuing to recommend ventures to profit themselves at the expense of the Plaintiffs, and taking undisclosed benefits from persons and entities with whom the Plaintiffs dealt, the Defendants breached their fiduciary duties to Plaintiffs. As a direct and proximate result of such breach by the Defendants, Plaintiffs have suffered the damages described above in an amount which is presently unknown but which exceeds the jurisdictional minimum of this Court.
47. In doing or failing to do the things described above, Defendants acted with malice, fraud or oppression as those terms are defined by California law by, among other things:
(a) Accepting kickbacks as described above from persons and entities with whom Plaintiffs dealt in exchange for causing the Plaintiffs to enter into agreements with these persons and entities;
(b) Taking ownership interests in business ventures with Plaintiffs without properly disclosing to Plaintiffs the ownership interest and inherent conflicts of interest involved with these ventures; and
(c) Concealing material information from the Plaintiffs about certain
business ventures in connection with which Defendants provided consulting and expert services, including, without limitation, the relationship between Kovall and Shambaugh and Windermere in connection with the Plaintiffs' acquisition of the 47 acres.
Accordingly, in addition to any other relief awarded to the Plaintiffs against the Defendants, Plaintiffs are entitled to the imposition of punitive damages.
FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT
(By All Plaintiffs Against Shambaugh, Deville Windermere Coachella and Does 28-50)
48. Plaintiffs re-allege and incorporate here by this reference paragraphs 1 through 35 [sic], above, as though fully set forth at length.
49. Shambaugh and Windermere Coachella provided real estate brokerage and/or expert or consulting services to the Plaintiffs for which the Tribe paid them over $1 million. The agreements between Plaintiffs, on the one hand, and Shambaugh and Windermere Coachella, on the other, were both verbal and in writing.
50. Attached hereto as Exhibit "A" is a true and correct copy of the written agreement between Echo Trail Holdings, on the one hand, and Windermere Coachella and Shambaugh, on the other, for broker services in connection with the acquisition of the Echo Trail property. Exhibit "A" relates to the Plaintiffs' purchase of the Echo Trail property, the escrow for which closed on November 7, 2007. The funds for the purchase of the Echo Trail property came from the Tribe.
51. Attached hereto as Exhibit "B" is a true and correct copy of the Disclosure Regarding Real Estate Agency Relationships form filled out and provided to Echo Trail Holdings by Defendants in connection with the Plaintiffs' acquisition of the Echo Trail property. In Exhibit "B," there is an acknowledgement by Defendants of the existence of a fiduciary relationship, and concomitant duty of honesty and full disclosure. Despite the recognition and acknowledgement of this relationship, neither Windermere Coachella nor Deville or Shambaugh ever disclosed the relationship between Kovall and Shambaugh as described above, or the fact that the Tribe was paying more than the market value of the Echo Trail property.
52. Plaintiffs performed all of the things required of them under the agreements described above, and there is no condition to their right to full performance of the agreements from Defendants.
53. In doing or failing to do the things described above, Windermere Coachella and Shambaugh, and Deville as an alter ego of Windermere Coachella, breached the agreements they had with Plaintiffs, together with obligations imposed by law, by among other things, failing to disclose the romantic relationship that existed between Shambaugh and Kovall, by failing to disclose the market value of the Echo Trail property, and by failing to disclose the fact that Defendants were providing little or no services to Plaintiffs in connection with the acquisition of the 47 acres. As a direct and proximate breach by Defendants, Plaintiffs have suffered the damages described above in an amount which is presently unknown, but which exceeds the jurisdictional minimum of this Court.
54. In addition, Shambaugh and Windermere Coachella (and Deville as an alter ego, owner, operator, officer and manager of Windermere Coachella) have received benefits and compensation as described above for which they did little or nothing under circumstances where their ability to provide such services was the direct result of the undisclosed romantic relationship between Shambaugh and Kovall. As a result, they have been unjustly enriched by the receipt of such benefits and compensation. Shambaugh, Deville and Windermere Coachella should be made to pay over those benefits to the Tribe and, where those funds or benefits have been invested in other property by them, a constructive trust should be imposed on their interest in any such property.
FIFTH CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENTANT OF GOOD FAITH AND FAIR DEALING
(By AR Plaintiffs Against Shambaugh, Deville, Windermere Coachella and Does 28-50)
55. Plaintiffs re-allege and incorporate here by this reference paragraphs 48 through 54, above, as though fully set forth at length.
56. In every contract entered into or to be performed in this State, there is an implied covenant of good faith and fair dealing which requires each of the parties to the contract to take no action to prevent the other party to the contract from realizing the benefit of same.
57. To the extent they do not represent breaches of the express contract, Defendants, in doing the things described above, breached the covenant of good faith and fair dealing, and as a direct and proximate result of the breaches by Shambaugh, Deville and Windermere Coachella, Plaintiffs have suffered the damages described above in an amount which is presently unknown but which exceeds the jurisdictional minimum of this Court.
SIXTH CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY
(By All Plaintiffs Against Shambaugh, Deville, Windermere Coachella, Windermere
Services and Does 28-50)
58. Plaintiffs re-allege and incorporate here by this reference paragraphs 10 through 15, 27 through 35 and 36 through 57, above, as though fully set forth at length.
59. Given their respective positions as either real estate brokers, licensees, experts and/or consultants, and given the positions they assumed vis a vis Plaintiffs in connection with the purchase of real property (including but not limited to the 47 acres transaction) and the giving of expert advice with respect to real estate related questions, and/or given their contract and acknowledgement of the fiduciary nature of that position, Shambaugh, Deville, Windermere Coachella and Windermere Services were fiduciaries in their dealings with Plaintiffs.
60. In doing the things described above, these Defendants breached their fiduciary duties to Plaintiffs. As a direct and proximate result of such breaches by these Defendants, Plaintiffs have suffered the damages described above in an amount which is presently unknown but which exceeds the jurisdictional minimum of the Superior Court.
61. In doing or failing to do the things described above, Defendants acted with malice, fraud or oppression as those terms are defined by California law by, among other things:
(a) Concealing the relationship between Shambaugh and Kovall;
(b) Accepting commissions for non-existent services;
(c) Placing their financial interests above those of Plaintiffs;
(d) Knowingly advising Plaintiffs to purchase the 47 acres despite Defendants' knowledge that the transaction would cause Plaintiffs to suffer significant financial loss so that Defendants would receive the benefit of a $1 million commission; and
(e) Entering into an unlawful agreement to share a commission of approximately $1 million among Windermere Coachella and Windermere Services (an unlicensed entity) and Kovall (an unlicensed individual).
Accordingly, in addition to any other relief awarded to Plaintiffs against Defendants, Plaintiffs are entitled to the imposition of punitive damages.
SEVENTH CAUSE OF ACTION FOR PROFESSIONAL NEGLIGENCE
(By All Plaintiffs Against Shambaugh, Deville, Windermere Coachella, Windermere
Services and Does 28-50)
62. Plaintiffs re-allege and incorporate here by this reference paragraphs paragraphs 10 through 15, 27 through 35 and 36 through 61, above, as though fully set forth at length.
63. Shambaugh, Deville, Windermere Coachella and Windermere Services negligently represented Plaintiffs in connection with the acquisition of the Echo Trail property, and/or negligently negotiated agreements for Plaintiffs, and/or negligently supervised agents, representatives and/or employees, as described above, in connection with the business affairs of Plaintiffs for which Defendants were paid by Plaintiffs to represent them.
64. While acting on behalf of Windermere Coachella and Windermere Services, Deville was actively involved in the 47 acres transaction. Deville oversaw the 47 acres transaction and communicated with Windermere Coachella and its employees regarding the acquisition of the 47 acres. Windermere Coachella and Windermere Services, through their agent and/or alter ego Deville, knew or should have known that certain of the individuals assigned to act on behalf of Plaintiffs in connection with the 47 acres transaction were grossly lacking the commercial real estate experience and knowledge necessary to adequately represent Plaintiffs in this $30 million plus deal. As a manager of Windermere Coachella in the 47 acres transaction, Deville knew that the individuals assigned to represent Plaintiffs were incompetent and inexperienced but did nothing to rectify the situation, despite the fact that he was "supervising" and following the transaction.
65. As a proximate result of the negligence of Defendants, Plaintiffs have sustained loss and injury, the precise amount of which is presently unknown, but which exceeds the jurisdictional minimum of this Court. Further, Defendants have profited from their wrongful conduct by among other things, collecting and/or benefiting from commissions and fees which they would not have received in the absence of such wrongful conduct. Accordingly, Defendants should disgorge to Plaintiffs the funds they have wrongfully acquired, together with interest thereon.
EIGHTH CAUSE OF ACTION FOR UNFAIR TRADE PRACTICES
(By All Plaintiffs Against Windermere Coachella, Windermere Services, Deville and
Does 28-50)
66. Plaintiffs re-allege and incorporate here by this reference paragraphs 62 through 65, above, as though fully set forth at length.
67. On information and belief, at all times relevant to the events alleged in this action, Windermere Services and Windermere Coachella have held themselves out to Plaintiffs and the general public as franchisor and franchisee, respectively; when, in fact, their relationship is that of licensor and licensee as defined in the only document produced by Windermere Coachella as to the relationship between the parties — a trademark licensing agreement. Also on information and belief, no valid and lawful franchise agreement has ever existed between Windermere Services and Windermere Coachella. On further information and belief, Windermere Services was not licensed as a real estate broker in the State of California.
68. At all times relevant to the events alleged in this action, Windermere Coachella (and its owner, operator, manager and alter ego Deville) and Windermere Services engaged in the following acts, each of which constitute unlawful, unfair and/or fraudulent business practices within the meaning of California Business and Professions Code Section 17200:
(a) Failing to disclose the fact that Heslop had a preexisting and ongoing financial arrangement with Windermere Coachella, through Shambaugh and her then boyfriend, now husband, Kovall, or the fact that Plaintiffs were paying substantially more than market value for the Echo Trail property;
(b) Concealing the fact that Heslop had a preexisting and ongoing financial arrangement with Windermere Coachella, through Shambaugh and Kovall, or the fact that Plaintiffs were paying substantially more than market value for the Echo Trail property;
(c) Accepting commissions for non-existent services, or for services performed without the requisite disclosures and/or due diligence, as hereinabove alleged; and
(d) Windermere Coachella's unlawfully sharing real estate commissions with Windermere Services, an unlicensed entity, on not only the Echo Trail property transaction but also, on information and belief, various other real estate transactions with consumers other than Plaintiffs throughout the State of California, all in violation of California law.
On information and belief, Windermere Coachella (and its owner, operator, manager and alter ego Deville) and Windermere Services engaged in the above-mentioned acts for the purpose of injuring Plaintiffs and other prospective purchasers of real property similarly situated. By virtue of the conduct alleged herein, there is a likelihood of actual and pernicious confusion and an unfair and inequitable advantage for any real estate broker employing the aforementioned business model or device, and based on the unlawful, unfair and fraudulent practices of these Defendants, a permanent injunction should issue to prevent these Defendants from engaging in such unlawful and fraudulent conduct and restitution should be ordered from these Defendants of all unlawful commissions derived from the real estate transactions involving Plaintiffs.
WHEREFORE, Plaintiffs pray for relief as follows:
On the First Cause of Action by All Plaintiffs for Breach of Contract against Heslop, DRL. NDL and Does 1-25:
1. For compensatory damages in an amount according to proof;
2. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
3. For an order imposing a constructive trust;
On the Second Cause of Action by All Plaintiffs for Breach of Implied Covenant of Good Faith and Fair Dealing against Heslop, DRL, NDL and Does 1-25:
4. For compensatory damages in an amount according to proof,
5. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
6. For an order imposing a constructive trust;
On the Third Cause of Action by All Plaintiffs for Breach of Fiduciary Duty against Heslop, DRL, NDL and Does 1-25:
7. For compensatory damages in an amount according to proof;
8. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
9. For an order imposing a constructive trust;
10. For punitive and exemplary damages in an amount according to proof;
On the Fourth Cause of Action by All Plaintiffs for Breach of Contract against Shambaugh, Deville, Windermere Coachella, and Does 28-50:
11. For compensatory damages in an amount according to proof;
12. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
13. For an order imposing a constructive trust;
On the Fifth Cause of Action by All Plaintiffs for Breach of Implied Covenant of Good Faith and Fair Dealing against Shambaugh, Deville. Windermere Coachella and Does 28-50:
14. For compensatory damages in an amount according to proof;
15. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
16. For an order imposing a constructive trust;
On the Sixth Cause of Action by All Plaintiffs for Breach of Fiduciary Duty against Shambaugh, Deville, Windermere Coachella, Windermere Services and Does 28-50:
17. For compensatory damages in an amount according to proof;
18. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
19. For an order imposing a constructive trust;
20. For punitive and exemplary damages according to proof;
On the Seventh Cause of Action by All Plaintiffs for Professional Negligence against Shambaugh. Deville, Windermere Coachella, Windermere Services and Does 28-50:
21. For compensatory damages in an amount according to proof;
22. For orders requiring restitution and a disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein;
23. For an order imposing a constructive trust;
On the Eighth Cause of Action for Unfair Trade Practices against Windermere Coachella, Windermere Services, Deville and Does 28-50:
24. For an order requiring restitution and disgorgement of all profits, benefits and other compensation obtained as a result of the conduct alleged herein in favor of Plaintiffs as to those real estate transactions involving Plaintiffs;
25. For a permanent injunction barring Defendants from engaging fraudulent and unfair practices as real estate brokers as alleged herein;
On All Causes of Action by All Plaintiffs Against All Defendants:
26. For costs of suit;
27. For interest at the maximum allowable by law;
28. For such other and further relief as the Court deems just and proper.
Dated: April 4, 2012 SPOLIN COHEN MAINZER & BOSSERMAN LLP
Complete Set of Case Pleadings and Documents:
9/17/2015; INITIAL COMPLAINT—EVIDENCE 1—EVIDENCE 2
10/13/2015; COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
10/14/2015; FIRST AMENDED COUNTERCLAIM BY DEFENDANT AND COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY FOR DAMAGES AND INJUNCTIVE RELIEF
10/26/2015; PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PURSUANT TO F.R.C.P. 12(b)(6) (Download doc here.)
10/29/2015; PLAINTIFFS’ OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
11/2/2015; REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
11/3/2015; SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
11/4/2015; PLAINTIFFS BENNION & DEVILLE FINE HOMES, INC., BENNION & DEVILLE FINE HOMES SOCAL, INC., AND WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COUNTERCLAIM PURSUANT TO F.R.C.P. 12(b)(6)
11/4/2015; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS BENNION & DEVILLE FINE HOMES, INC., BENNION & DEVILLE FINE HOMES SOCAL, INC., AND WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC.’S MOTION TO DISMISS FIRST AMENDED [sic] [COUNTERCLAIM]
MAjOR CASE UPDATE: 11/6/2015; ORDER DENYING COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICE COMPANY’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER: “...While this Court certainly understands WSC’s concerns, the language of their own contracts does nothing to protect them from such an occurrence.”
11/12/2015; JOINT STIPULATION FOR (i) PLAINTIFFS TO FILE FIRST AMENDED COMPLAINT; AND (ii) COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY TO VOLUNTARILY DISMISS COUNTS FIVE, SIX, AND SEVEN OF FIRST AMENDED COUNTERCLAIM
11/12/2015; ORDER GRANTING JOINT STIPULATION FOR (i) PLAINTIFFS TO FILE FIRST AMENDED COMPLAINT; AND (ii) COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY TO VOLUNTARILY DISMISS COUNTS FIVE, SIX, AND SEVEN OF FIRST AMENDED COUNTERCLAIM
11/16/1015; FIRST AMENDED COMPLAINT—FIRST AMENDED COMPLAINT EVIDENCE 1—FIRST AMENDED COMPLAINT EVIDENCE 2
11/27/2015; ANSWER OF COUNTER- DEFENDANTS BENNION & DEVILLE FINE HOMES, INC., BENNION & DEVILLE HOMES SOCAL, INC., WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC., AND ROBERT L. BENNION TO FIRST AMENDED COUNTERCLAIM
12/4/2015; JOINT RULE 26(f) REPORT
12/7/2015; ANSWER OF DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
12/7/2015; NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS—Local Rule 7.1-1 No Notice of Interested Parties
12/9/2015; ORDER (IN CHAMBERS) SETTING PRE−TRIAL & TRIAL DATES [& DISCOVERY CUT-OFF]
12/14/2015; ANSWER OF COUNTER-DEFENDANT JOSEPH R. DEVILLE TO FIRST AMENDED COUNTERCLAIM (Download doc here.)
2/16/2016; JOINT REQUEST AND STIPULATION OF THE PARTIES TO ENTER A PROTECTIVE ORDER
2/17/2016; STIPULATED PROTECTIVE ORDER GOVERNING THE USE AND DISSEMINATION OF CONFIDENTIAL DOCUMENTS AND MATERIALS
4/27/2016; NOTICE OF APPEARANCE OF COUNSEL, DEFENDANT AND COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY
5/6/2016; MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND RESPONSES
5/6/2016; JOINT STIPULATION RE: PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND RESPONSES
5/23/2016; SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND RESPONSES [L.R.37-2.3]
5/26/2016; NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS
6/8/2016; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL
7/1/2016; DECLARATION OF JEFFREY A. FEASBY RE: COURT’S JUNE 8, 2016 ORDER
8/9/2016; JOINT STIPULATION TO CONTINUE TRIAL AND RELATED DATES
8/29/2016; PLAINTIFFS/COUNTER DEFENDANTS’ MEMORANDUM OF CONTENTIONS OF FACT AND LAW [L.R. 16-4]
8/29/2016; B&D PARTIES’ PROPOSED WITNESS LIST
8/29/2016; B&D PARTIES’ PROPOSED EXHIBIT LIST
8/29/2016; DEFENDANT AND COUNTER-CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S MEMORANDUM OF CONTENTIONS OF LAW AND FACT
8/29/2016; WINDERMERE REAL ESTATE SERVICES COMPANY’S PROPOSED WITNESS LIST
8/29/2016; DEFENDANT AND COUNTER-CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S PROPOSED EXHIBIT LIST
8/29/2016; NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS—B&D
8/29/2016; NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS—WSC
9/12/2016; [PROPOSED] FINAL PRETRIAL [BRIEF] CONFERENCE ORDER
9/19/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT
9/19/2016; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT
9/19/2016; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
9/19/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
[PROPOSED] ORDER GRANTING WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT
9/26/2016; PLAINTIFFS’ OPPOSITION TO DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT
9/26/2016; DECLARATION OF JOSEPH R. DEVILLE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
9/26/2016; PLAINTIFFS’ STATEMENT OF GENUINE DISPUTES OF MATERIAL FACT IN OPPOSITION TO DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND STATEMENTS OF UNCONTROVERTED FACTS
9/26/2016; EXHIBITS
10/3/2016; REPLY IN SUPPORT OF DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT
10/3/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOSEPH R. DEVILLE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
10/3/2016; FINAL PRETRIAL CONFERENCE: TRIAL POSTPONED TO JANUARY 31, 2017
10/20/2016; ORDER GRANTING [WSC] DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; PLAINTIFFS AND COUNTER- DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; DEC. OF KEVIN A. ADAMS IN SUPPORT OF PLAINTIFFS AND COUNTER DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; DEC. OF JOSEPH R. DEVILLE IN SUPPORT OF PLAINTIFFS AND COUNTER DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; DEC. OF ERIC FORSBERG IN SUPPORT OF PLAINTIFFS AND COUNTER DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; PLAINTIFFS’ SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
10/24/2016; [PROPOSED] ORDER GRANTING PLAINTIFFS AND COUNTER- DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/31/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/31/2016; [UNCONTROVERTED FACTS] DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
10/31/2016; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF COUNTER-CLAIMANTS’ OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
11/7/2016; REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
11/7/2016; OBJECTION TO DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
11/7/2016; REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW; OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT OF GENUINE DISPUTES
11/21/2016: COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF APPLICATIONS AND APPLICATIONS FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT
11/21/2016: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S APPLICATIONS FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT
11/21/2016: DECLARATIONS OF DRAYNA, FEASBY, OSTER, TEATHER
11/21/2016: APPLICATIONS FOR RIGHT TO ATTACH, 1, 2, 3, 4
11/28/2016: MEMORANDUM OF
BENNION & DEVILLE FINE HOMES, INC., BENNION & DEVILLE FINE HOMES SOCAL, INC., ROBERT L. BENNION, AND JOSEPH R. DEVILLE IN OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S APPLICATIONS FOR WRITS OF ATTACHMENT
11/28/2016: DECLARATIONS OF ADAMS, DEVILLE, SUNDERLAND
11/28/2016: SUPPORTING EXHIBITS A, C, K
11/29/2016: OBJECTION TO DECLARATIONS OF MICHAEL TEATHER AND PAUL S. DRAYNA FILED IN SUPPORT OF WINDERMERE REAL ESTATE SERVICES COMPANY’S APPLICATIONS FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT [D.E. 72]
11/30/2016: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS AND COUNTER-DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT:
12/5/2016; REPLY IN SUPPORT OF COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S APPLICATIONS FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT
12/5/2016; DECLARATIONS OF DRAYNA, OSTER, TEATHER
12/5/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF KEVIN ADAMS IN OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDERS AND ORDERS
12/5/2016; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOSEPH R. DEVILLE IN OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR WRITS OF ATTACHMENT
1/9/2017; CIVIL MINUTES – GENERAL- JURY TRIAL RESET TO MAY 30, 2017
1/26/2017; ORDER DENYING WINDERMERE REAL ESTATE SERVICES COMPANY'S APPLICATIONS FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT
3/20/2017; PLAINTIFFS AND COUNTER-DEFENDANTS’ NOTICE OF MOTION AND MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT
3/20/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT; EXHIBIT A, EXHIBIT B
3/27/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT
3/27/2017; DECLARATION OF JEFFREY A. FEASBY IN OPPOSITION TO PLAINTIFFS AND COUNTER- DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT
3/27/2017; DECLARATION OF DAVID E. HOLMES IN OPPOSITION TO PLAINTIFFS AND COUNTER- DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT
4/3/2017; PLAINTIFFS AND COUNTER- DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO EXCLUDE THE TESTIMONY OF DAVID E. HOLMES BASED ON FRE 403, 702 AND DAUBERT
4/3/2017; THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE [#1] TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF BREACH BY SERVICES SOCAL NOT IDENTIFIED IN THE NOTICE OF TERMINATION
4/3/2017; DECLARATION OF JOSEPH R. “BOB” DEVILLE IN SUPPORT OF PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF BREACH BY SERVICES SOCAL NOT IDENTIFIED IN THE NOTICE OF TERMINATION
4/3/2017; THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE [#2] TO EXCLUDE EXHIBITS AND OTHER EVIDENCE CONCERNING LOANS TO PLAINTIFFS FROM THIRD PARTIES
4/3/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF PLAINTIFFS AND COUNTER- DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EXHIBITS AND OTHER EVIDENCE CONCERNING LOANS TO PLAINTIFFS FROM THIRD DEFENDANT PARTIES
4/3/2017; B&D EVIDENCE LIMINE 2
4/3/2017; THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE [#3] TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF THE PERSONAL WEALTH OF PLAINTIFFS BENNION OR DEVILLE
4/3/2017; PLAINTIFFS’ AND COUNTER-DEFENDANTS’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANTS AND COUNTER-PLAINTIFFS’ REBUTTAL EXPERT REPORT
4/3/2017; DECLARATION OF KEVIN A. ADAMS ISO PLAINTIFFS’ AND COUNTER-DEFENDANTS’ MOTION TO STRIKE REBUTTAL EXPERT REPORT
4/3/2017; PLAINTIFFS’ AND COUNTER- DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO STRIKE DEFENDANTS AND COUNTER-PLAINTIFFS’ REBUTTAL EXPERT REPORT
4/3/2017; B&D MOTION TO STRIKE EVIDENCE
4/10/2017; [#1] OPPOSITION TO THE B&D PARTIES’ MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF BREACH BY SERVICES SOCAL NOT IDENTIFIED IN THE NOTICE OF TERMINATION
4/10/2017; [#2] OPPOSITION TO THE B&D PARTIES’ MOTION IN LIMINE TO EXCLUDE EXHIBITS AND OTHER EVIDENCE CONCERNING LOANS TO PLAINTIFFS FROM THIRD PARTIES
4/10/2017; DECLARATION OF PAUL S. DRAYNA IN SUPPORT OF COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY'S OPPOSITION TO COUNTER- DEFENDANTS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF LOANS
4/10/2017; [#3] OPPOSITION TO THE B&D PARTIES’ MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF THE PERSONAL WEALTH OF PLAINTIFFS BENNION OR DEVILLE
4/10/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION TO STRIKE DEFENDANTS AND COUNTER- PLAINTIFFS’ REBUTTAL EXPERT REPORT
4/10/2017; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF COUNTERCLAIMANT’S OPPOSITIONS TO COUNTER- DEFENDANTS’ MOTIONS IN LIMINE AND MOTION TO EXCLUDE REBUTTAL REPORT
4/17/2017; THE B&D PARTIES’ REPLY IN SUPPORT OF MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF BREACH BY SERVICES SOCAL NOT IDENTIFIED IN THE NOTICE OF TERMINATION
4/17/2017; THE B&D PARTIES’ REPLY IN SUPPORT OF THEIR MOTION IN LIMINE TO EXCLUDE EXHIBITS AND OTHER EVIDENCE CONCERNING LOANS TO PLAINTIFFS FROM THIRD PARTIES
4/17/2017; THE B&D PARTIES’ REPLY IN SUPPORT OF THEIR MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF THE PERSONAL WEALTH OF PLAINTIFFS BENNION OR DEVILLE
4/17/2017; PLAINTIFFS AND COUNTER- DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STRIKE DEFENDANTS AND COUNTER-PLAINTIFFS’ REBUTTAL EXPERT REPORT
4/17/2017; [#4] THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE AND ARGUING THAT B&D FINE HOMES WAS OBLIGATED TO TRANSFER DOMAINS AND EVIDENCE OF EXPENSES FOR OBTAINING DOMAIN NAMES; DEVILLE DECLARATION
4/17/2017; [#5] THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF WORK PERFORMED ON THE SUNDBERG PRIOR TO OCTOBER 2013; DEVILLE DECLARATION; ADAMS DECLARATION
4/17/2017; [#6] THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE WSC FROM INTRODUCING EVIDENCE WITHHELD ON GROUNDS OF PRIVILEGE; ADAMS DECLARATION
4/17/2017; [#7] THE B&D PARTIES’ NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE WSC FROM REFERING TO THE B&D PARTIES COLLECTIVELY; ADAMS DECLARATION
4/17/2017; [#1] DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL; MEMO IN SUPPORT; DRAYNA DECLARATION; FEASBY DECLARATION
4/17/2017; [#2] DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE PORTIONS OF PLAINTIFFS AND COUNTER-DEFENDANTS’ REBUTTAL REPORT; MEMO IN SUPPORT; ROWLETT DECLARATION
4/17/2017; [#3] DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO DISMISSED CLAIMS; MEMO IN SUPPORT
4/17/2017; [#4] DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO ITS OFFER TO PURCHASE PLAINTIFFS AND COUNTER-DEFENDANTS; MEMO IN SUPPORT
4/24/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF THE B&D PARTIES’ OPPOSITION TO WSC’S DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL
4/24/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF THE B&D PARTIES’ OPPOSITION TO WSC’S MOTION IN LIMINE TO RELATED DISMISSED CLAIMS
4/24/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF THE B&D PARTIES’ OPPOSITION TO WSC’S MOTION IN LIMINE TO EXLCUDE EVIDENCE RELATED TO ITS OFFER TO PURCHASE PLAINTIFFS AND COUNTER-DEFENDANTS
4/24/2017; THE B&D PARTIES’ OPPOSITION TO WSC’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO DISMISSED CLAIMS
4/24/2017; THE B&D PARTIES’ OPPOSITION TO WSC’S DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL
4/24/2017; THE B&D PARTIES’ OPPOSITION TO WSC’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO ITS OFFER TO PURCHASE PLAINTIFFS AND COUNTER- DEFENDANTS
4/24/2017; DECLARATION OF JOSEPH R. DEVILLE IN OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S APPLICATION FOR RIGHT TO ATTACH ORDERS FOR ISSUANCE FOR WRITS OF ATTACHMENT
4/2017; D4/2ECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF COUNTERCLAIMANT’'S OPPOSITION TO COUNTER- DEFENDANTS’' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF WORK PERFORMED ON THE SUNDBERG REPORT PRIOR TO OCTOBER 2013
4/24/2017; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF COUNTERCLAIMANT’'S OPPOSITION TO COUNTER- DEFENDANTS’' MOTION IN LIMINE TO EXCLUDE EVIDENCE WITHHELD ON GROUNDS OF PRIVILEGE
4/24/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM REFERRING TO THE B&D PARTIES COLLECTIVELY
4/24/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE OF WORK PERFORMED ON THE SUNDBERG REPORT PRIOR TO OCTOBER 2013
4/24/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE WITHHELD ON GROUNDS OF PRIVILEGE
4/24/2017; PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE PORTIONS OF PLAINTIFFS’ REBUTTAL REPORT
4/24/2017; PETER WROBEL DECLARATION IN SUPPORT OF THE B&D PARTIES’ OPPOSITION TO WSC’S DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL
4/24/2017; OPPOSITION TO PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM INTRODUCING EVIDENCE THAT B&D FINE HOMES WAS OBLIGATED TO TRANSFER DOMAINS AND EVIDENCE OF EXPRENSES FOR OBTAINING DOMAIN NAMES
5/1/2017; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF DEFENDANT AND COUNTERCLAIMANT’S REPLY BRIEF IN SUPPORT OF ITS DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL
5/1/2017; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF DEFENDANT AND COUNTERCLAIMANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO ITS OFFER TO PURCHASE PLAINTIFFS AND COUNTER- DEFENDANTS
5/1/2017; REPLY IN SUPPORT OF THE B&D PARTIES’ MOTION IN LIMINE #7 TO PRECLUDE WSC FROM REFERING TO THE B&D PARTIES COLLECTIVELY
5/1/2017; REPLY IN SUPPORT OF THE B&D PARTIES’ MOTION IN LIMINE #4 TO PRECLUDE WSC FROM INTRODUCING EVIDENCE AND ARGUING THAT B&D FINE HOMES WAS OBLIGATED TO TRANSFER DOMAINS AND EVIDENCE OF EXPENSES FOR OBTAINING DOMAIN NAMES
5/1/2017; REPLY IN SUPPORT OF THE B&D PARTIES’ MOTION IN LIMINE #6 TO PRECLUDE WSC FROM INTRODUCING EVIDENCE WITHHELD ON GROUNDS OF PRIVILEGE
5/1/2017; REPLY IN SUPPORT OF THE B&D PARTIES’ MOTION IN LIMINE #5 TO PRECLUDE WSC FROM INTRODUCING EVIDENCE OF WORK PERFORMED ON THE SUNDBERG PRIOR TO OCTOBER 2013
5/1/2017; DEFENDANT AND COUNTERCLAIMANT’S REPLY BRIEF IN SUPPORT OF ITS DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT PETER WROBEL
5/1/2017; WINDERMERE REAL ESTATE SERVICES COMPANY’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOSEPH R. DEVILLE IN OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR WRITS OF ATTACHMENT
5/1/2017; DEFENDANT AND COUNTERCLAIMANT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO ITS OFFER TO PURCHASE PLAINTIFFS AND COUNTER-DEFENDANTS
5/1/2017; DEFENDANT AND COUNTERCLAIMANT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO PRECLUDE PORTIONS OF COUNTER- DEFENDANTS’ REBUTTAL REPORT
5/1/2017; DEFENDANT AND COUNTERCLAIMANT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO DISMISSED CLAIMS
5/8/2017; ORDER DENYING PLAINTIFFS AND COUNTER-DEFENDANTS’ MOTION TO EXCLUDE THE TESTIMONY OF DA VID E. HOLMES
5/22/2017; B&D PARTIES’ AMENDED EXHIBIT LIST
5/22/2017; B&D PARTIES’ AMENDED WITNESS LIST
5/22/2017; WSC COUNSEL ADDED
5/23/2017; AMENDED NOTICE OF LODGING [PROPOSED] FINAL PRETRIAL CONFERENCE
5/23/2017; [PROPOSED] AMENDED FINAL PRETRIAL CONFERENCE ORDER
5/24/2017; WINDERMERE SERVICES COMPANY’S NOTICE OF OBJECTIONS TO THE B&D PARTIES’ AMENDED WITNESS LIST
5/25/2017; ORDER DENYING PLAINTIFFS AND
COUNTER-DEFENDANTS’ MOTION TO STRIKE DEFENDANTS AND
COUNTER-PLAINTIFF’S REBUTTAL
EXPERT REPORT
5/25/2017; CIVIL MINUTES TRIAL RESET
5/26/2017; OBJECTIONS TO THE [PROPOSED] JOINT EXHIBIT LIST
5/26/2017; [PROPOSED] AMENDED JOINT EXHIBIT LIST
5/26/2017; THE B&D P ARTIES’ OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF OBJECTIONS TO THE B&D PARTIES’ AMENDED WITNESS LIST
5/26/2017; DECLARATION OF KEVIN A. ADAMS ISO THE B&D PARTIES’OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF THE OBJECTIONS TO THE B&D PARTIES AMENDED WITNESS LIST
5/31/2017; ORDER DENYING DEFENDANT AND COUNTER-CLAIMANTS DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT
6/9/2017; THE B&D PARTIES’ NOTICE OF MOTION AND MOTION FOR CLARIFICATION, OR, IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION OF THE COURT’S MAY 31, 2017 ORDER (DKT. NO. 138)
6/9/2017; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF THE B&D PARTIES’ MOTION FOR CLARIFICATION, OR, IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION OF THE COURT’S MAY 31, 2017 ORDER (DKT. NO. 138)
6/9/2017; EVIDENCE, A-D
6/9/2017; EVIDENCE, E-I
6/13/2017; ORDER GRANTING THE B&D PARTIES’ MOTION FOR CLARIFICATION [DKT. NO. 138]
6/13/2017; AMENDED ORDER DENYING DEFENDANT AND COUNTERCLAIMANT’S DAUBERT MOTION IN LIMINE TO EXCLUDE PLAINTIFFS’ EXPERT
7/10/2017; DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/10/2017; DEFENDANT’S AND COUNTERCLAIMANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/12/2017; NOTICE OF LODGING [PROPOSED] STATEMENT OF CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
7/12/2017; STATEMENT OF CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
7/17/2017; THE B&D PARTIES’ OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/17/2017; DECLARATION OF KEVIN A. ADAMS ISO THE B&D PARTIES’ OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/17/2017; OBJECTIONS TO WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL (Dkt. No. 142-1)
7/24/2017; CONSENT TO PROCEED BEFORE A MAGISTRATE JUDGE
7/24/2017; DEFENDANT’S AND COUNTERCLAIMANT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/24/2017; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF COUNTERCLAIMANT’S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE GARY KRUGER FROM TESTIFYING AT TRIAL
7/27/1027; (IN CHAMBERS) ORDER VACATING PENDING HEARING DATES
10/17/2017; CIVIL MINUTES - GENERAL
10/27/2017; JOINT STATUS REPORT [ADVANCED BY COURT TO 11/1/2017 @ 1 PM]
11/1/2017; CIVIL MINUTES GENERAL
1/10/2018; (IN CHAMBERS) ORDER: COUNSELING PARTIES TO CONSENT TO U.S. MAGISTRATE JUDGE
1/30/2018; AUDIO RECORDING ORDER
1/31/2018; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT
1/31/2018; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT
1/31/2018; DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
1/31/2018; DECLARATION OF PAUL S. DRAYNA IN SUPPORT DEFENDANT AND COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMARY JUDGMENT
1/31/2018; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF DEFENDANT AND COUNTERCLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMARY JUDGMENT
1/31/2018; PROPOSED ORDER
2/1/2018; JOINT STATUS REPORT
2/8/2018; OPPOSITION TO DEFENDANT WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT [D.E. 154]
2/8/2018; THE B&D PARTIES’ SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT
2/8/2018; DECLARATION OF KEVIN A. ADAMS IN SUPPORT OF PLAINTIFFS AND COUNTER DEFENDANTS’ OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT
2/8/2018; DECLARATION OF JOSEPH R. DEVILLE IN OPPOSITION TO WINDERMERE REAL ESTATE SERVICES COMPANY'S APPLICATION FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR ISSUANCE OF WRITS OF ATTACHMENT
2/8/2018; NOTICE OF LODGING [PROPOSED] STATEMENT OF CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
2/8/2018; STATEMENT OF CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
2/26/2018; CIVIL MINUTES GENERAL. COURT WILL HEAR OUTSTANDING MOTIONS 4/3/2018 @ 10 A.M
3/21/2018; REPLY IN SUPPORT OF WINDERMERE REAL ESTATE SERVICES COMPANY’S MOTION FOR PARTIAL SUMMARY JUDGMENT
3/21/2018; WINDERMERE REAL ESTATE SERVICES COMPANY’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOSEPH R. DEVILLE IN OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDERS AND ORDERS FOR WRITS OF ATTACHMENT [Document No. 157-2]
4/3/2018; CIViL MINUTES - GENERAL: [TRIAL SET FOR JULY 10, 2018 @ 8:30 A.M.]
4/11/2018; CIVIL MINUTES - GENERAL [Ruling on motion]
4/11/2018; CIVIL MINUTES – GENERAL [Rulings on motions]
4/19/2018; CIVIL MINUTES – GENERAL: DEADLINES, EXHIBITS, CONDUCT AT TRIAL
4/26/2018; DEFENDANT AND COUNTERCLAIMANT’S NOTICE OF MOTION AND MOTION IN LIMINE TO EXCLUDE OPINION OF PLAINTIFFS’ EXPERT PETER WROBEL RE: NET VALUE
4/26/2018; DEFENDANT AND COUNTERCLAIMANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE OPINION OF PLAINTIFFS’ EXPERT PETER WROBEL RE: NET VALUE
4/26/2018; DECLARATION OF JEFFREY A. FEASBY IN SUPPORT OF DEFENDANT AND COUNTERCLAIMANT’S MOTION IN LIMINE TO EXCLUDE OPINION OF PLAINTIFFS’ EXPERT PETER WROBEL RE: NET VALUE
4/26/2018; NOTICE OF ERRATA RE: DEFENDANT AND COUNTERCLAIMANT’S MOTION IN LIMINE TO EXCLUDE OPINION OF PLAINTIFFS’ EXPERT PETER WROBEL RE: NET VALUE
5/9/2018; PLAINTIFF WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC.’S OPPOSITION TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OPINION OF EXPERT PETER WROBEL RE: NET VALUE
5/16/2018; REPLY BRIEF IN SUPPORT OF DEFENDANT AND COUNTERCLAIMANT’S MOTION IN LIMINE TO EXCLUDE OPINION OF PLAINTIFFS’ EXPERT PETER WROBEL RE: NET VALUE
6/11/2018; DEFENDANT AND COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S PROPOSED VOIR DIRE
6/11/2018; PLAINTIFFS/COUNTER- DEFENDANTS’ PROPOSED VOIR DIRE SPECIAL QUESTIONS
DEFENDANT AND COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S PROPOSED SPECIAL JURY INSTRUCTIONS
DEFENDANT AND COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S PROPOSED SPECIAL VERDICT
PLAINTIFFS’ PROPOSED VERDICT FORMS
PROPOSED JOINT JURY INSTRUCTIONS AND OBJECTIONS
PROPOSED AMENDED JOINT JURY INSTRUCTIONS AND OBJECTIONS
6/15/2018; NOTICE OF LODGING [PROPOSED] SECOND AMENDED FINAL PRETRIAL CONFERNC ; [PROPOSED] SECOND AMENDED FINAL PRETRIAL CONFERENCE ORDER
6/18/2018; CIVIL MINUTES FINAL PRETRIAL CONFERENCE
6/21/2018; CIVIL MINUTES PROCEEDINGS
6/22/2018; SECOND AMENDED FINAL PRETRIAL CONFERENCE ORDER
6/27/2018; WSC TRIAL BRIEF
7/10/2018; [PROPOSED] SECOND AMENDED JOINT EXHIBIT LIST
7/10/2018; SUPPLEMENTAL PROPOSED SPECIAL JURY INSTRUCTIONS
7/11/2018; DEFENDANT AND COUNTERCLAIMANT’'S MOTION IN LIMINE TO EXCLUDE NEWLY DISCLOSED DAMAGES EVIDENCE
7/11/2018; CIVIL MINUTES – TRIAL; WITNESSES CALLED, SWORN, TESTIFIED; EXHIBITS IDENTIFIED & ADMITTED; CASE CONTINUED
7/12/2018; CIVIL MINUTES - TRIAL
7/13/2018; PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM PRESENTING TESTIMONY OR ARGUMENT THAT THE LAW REQUIRED IT TO SUBMIT THE AREA REPRESENTATIVE’S AUDITED FINANCIALS AS PART OF THE FRANCHISE REGISTRATION
7/15/2018; DEFENDANT AND COUNTERCLAIMANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT RELATED TO CRIMINAL AND CIVIL PENALTIES
7/15/2018; DEFENDANT AND COUNTERCLAIMANT’'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE NEWLY DISCLOSED DAMAGES EVIDENCE
7/14/2018; PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE DAMAGES EVIDENCE
7/14/2018; CIVIL MINUTES TRIAL
7/16/2018; CIVIL MINUTES - TRIAL
7/17/2018; CIVIL MINUTES – GENERAL (MOTION GRANTED IN CHAMBERS)
7/17/2018; CIVIL MINUTES – TRIAL
7/17/2018; DEFENDANT AND COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S FIRST SUPPLEMENTAL PROPOSED SPECIAL JURY INSTRUCTIONS
7/18/2018; CIVIL MINUTES - TRIAL
7/18/2018; PLAINTIFFS’ SECOND SET OF SUPPLEMENTAL PROPOSED SPECIAL JURY INSTRUCTIONS
7/19/2018; CIVIL MINUTES - TRIAL
7/20/2018; CIVIL MINUTES – TRIAL
7/22/2018; PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE DEFENDANT FROM ARGUING THAT WINDERMERE SERVICES SOUTHERN CALIFORNIA, INC.’S FAILURE TO SERVICE WINDERMERE HOMES AND ESTATES WAS A MATERIAL BREACH OF THE AREA REPRESENTATION AGREEMENT
7/22/2018; DEFENDANT AND COUNTER CLAIMANT WINDERMERE REAL ESTATE SERVICES COMPANY’S OBJECTION TO B&D PARTIES’ PROPOSED SPECIAL INSTRUCTION NO. 6 – MATERIAL BREACH OF CONTRACT REQUIRES DAMAGES AND ALTERNATIVE PROPOSED AMENDMENED INSTRUCTION
7/23/2018; CIVIL MINUTES – TRIAL (CLOSING STATEMENTS MADE)
7/24/2018; CIVIL MINUTES – TRIAL (JURY RETIRES TO DELIBERATE)
7/25/2018; CIVIL MINUTES – TRIAL (JURY RESUMES DELIBERATIONS)
7/26/2018; SPECIAL VERDICT
7/26/2018; RELEASE OF EXHIBITS
8/2/2018; CIVIL MINUTES – GENERAL [TELEPHONIC STATUS CONFERENCE]
8/6/2018; WINDERMERE REAL ESTATE SERVICES COMPANY’S NOTICE OF LODGING [PROPOSED] JUDGMENT
8/6/2018; [PROPOSED] JUDGMENT [$2,122,409.86]
8/8/2018; PLAINTIFFS AND COUNTER-DEFENDANTS’ OBJECTION TO [PROPOSED] JUDGMENT
8/16/2018; JUDGMENT of $2,122,409.86 entered by Magistrate Judge Douglas F. McCormick, in favor of Windermere Real Estate Services Company against Bennion and Deville Fine Homes Inc, Bennion and Deville Fine Homes SoCal, Inc., Windermere Services Southern California Inc.
SHAMBAUGH, BENNION & DEVILLE, WINDERMERE COACHELLA, WINDERMERE SERVICES and JOSEPH R. DEVILLE SETTLE: Notice of Ruing & Entry of Judgment— “PLEASE TAKE NOTICE that the Motion for Good Faith Determination filed by Moving Parties PEGGY SHAMBAUGH, BENNION & DEVILLE FINE HOMES, INC. dba WINDERMERE REAL ESTATE COACHELLA VALLEY, WINDERMERE REAL ESTATE SERVICES COMPANY and JOSEPH R DEVILLE ("SETTLING PARTIES") came on for hearing on January 14, 2013, at 9:00 a.m., in Department 07 of the above-reference court, located at 4050 Main Street, Riverside, California. Cheryl D. Davidson, Esq. appeared for SETTLING PARTIES. Gordon Bosserman, Esq (appearing telephonically) and Scott Spolin, Esq. appeared for Plaintiffs. Connie Anderson, Esq. appeared telephonically for David Alan Heslop and Diversification Resources. [¶] The Court, after considering the moving papers and the lack of opposition thereto, found that the proposed settlement was within the ball park of SETTLING PARTIES' proportionate share of liability and was reasonable and equitable pursuant to the terms of Tech-Bilt, Inc. vs. Woodward-Clyde and Associates (1989) 38 Cal.3d 488. The court found no evidence of collusion or conduct aimed to injure the interests of the non-settling parties. The Court granted the Motion for Good Faith Settlement…”