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John Casaretto Aka Juan Casaretto and v. Coldwell Banker Realty; Keller Williams Realty

April 15, 2011

JOHN CASARETTO AKA JUAN CASARETTO AND GLORIA CASARETTO, PLAINTIFFS,
v.
COLDWELL BANKER REALTY; KELLER WILLIAMS REALTY;
OSCAR MARTINEZ COLDWELL DBA CENTURY MEDALLION LOS GATOS;
BANKER REALTY AND ALEXIS JAN WILLOW MORTGAGE COMPANY;
BRIGHAM'S MOTION FOR VALLEY OF CALIFORNIA, INC, DBA
COLDWELL BANKER; TIMOTHY CONWAY; AND ALEXIS JAN BRIGHAM,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING SUMMARY JUDGMENT

Defendants Valley of California, Inc. dba Coldwell Banker Realty (Coldwell) and Alexis Jan Brigham (Brigham) (together, Defendants) move for summary judgment of the single claim 21 asserted against them in this matter (Motion, Dkt. No. 42). The Court held a hearing on this 22 motion on April 14, 2011. Based on the parties' arguments and the evidence presented in the 23 papers and at the hearing, and for the reasons set forth below, Defendants' Motion is GRANTED.

Property) for sale. Koss Decl. ISO Mot., Ex. A (Pl. Dep.) at 17:20-18:1. The Property housed a 5 combination auto body/repair shop. Id. at 13:8-17. A potential buyer, Mr. Emilio Montes De Oca, 6 made an offer to purchase the property on April 7, 2007. See Koss Decl. Ex. D (Pl.'s Dep. Ex. 3). 7

In the ensuing negotiations, De Oca was represented by real estate agent Brigham (who was then 8 associated with Keller Williams Realty), and Plaintiffs were represented by real estate agent Oscar 9

I. Introduction and Factual Background

The claims in this case arise from a commercial property transaction. In 2005, Plaintiffs John and Gloria Casaretto listed their property at 238 Curtner Avenue in Campbell, California (the 4 Martinez.*fn1 Id. The parties negotiated the potential purchase over the next several months and 10 ultimately reached an agreement. See Koss Decl. Ex. F (Pl.'s Dep. Ex. 16).

12 with a $43,500 down payment. The offer was contingent upon De Oca obtaining a first mortgage 13 loan secured by a deed of trust for $935,000, and a second such loan for $425,000. Plaintiffs 14 offered to "carry back" $100,000, also secured by a deed of trust. Id. At the time of this offer, 15 12, 2007 offer. Therefore, the parties restructured the deal so that the purchase price reflected in 17 the sales contract was $1.1 M (the appraised value of the Property). See Koss Decl. Ex. M (Pl.'s 18 Dep. Ex. 21); Ex. H (Pl.'s Dep. Ex. 15). This agreement stated that De Oca would obtain a first 19 loan of $935,000, and the Plaintiffs would "carry back" a loan for $55,000, at 10% interest and 20 payable in two years. Id. The Plaintiffs and De Oca signed this agreement on October 22, 2007.

Id. In addition to the $1.1 M contemplated by this offer, the Plaintiffs agreed to loan De Oca the 22 outstanding $400,000 to reflect the agreed-upon overall value of $1.5 M. Plaintiffs understood that 23 this loan would be paid back in the "next following days" after the close of escrow on the $1.1 M 24 contract. See Koss Decl. Ex. T (Pl.'s Dep. 66:1-15).

Plaintiffs claim their understanding that the $400,000 loan would be funded near the time of the close of escrow on the $1.1 M contract was based on representations by Martinez, the proposed 27

On October 12, 2007, Plaintiffs accepted De Oca's offer of $1,499,000 for the Property Brigham was associated with Coldwell. Id. De Oca was unable to secure funding for the October funder (defendant Tim Conway), and Brigham. Regarding representations made by Brigham, Mr. 2

Casaretto testified that in October, 2007, while the various contracts were being negotiated, 3 Brigham told him that Tim Conway was a "wealthy guy" who would loan De Oca the money to 4 cover the $400,000 loan. See Rice Decl. Ex. I (Pl. Dep. 75:22-76:9). At the October 22, 2007 5 signing, Brigham also reportedly told Mr. Casaretto that Conway said he would loan this money to 6 20. Also at the October 22, 2007 signing, Mr. Casaretto testified that Brigham said she was 8

De Oca, and that he would receive the money in the "next following days." Id. at 77:2-18; 61:15-7 "applying for a second loan" in case Conway never made the loan, and that "either way" funding 9 would be secured. Id. at 95:20-10. 10

On November 1, 2007, Plaintiffs and De Oca signed a promissory note by which De Oca promised to repay $400,000 by November 15, 2007. See Koss Decl., Ex. V (Pl.'s Dep. Ex. 28). If payment was not made by this date, the debt would be subject to 14% interest per year, interest-13 only payments would be due monthly, and the balance would be due in two years. The note also 14 stated that in case of a default, the entire note was due and payable immediately at Plaintiffs' 15 option. Id. 16

November 15, 2007. On November 27-28, 2007, Plaintiffs and De Oca executed another purchase 19 agreement for the improvements on the Property and goodwill of the Plaintiffs' business, which 20 stated that De Oca offered $400,000 for these things. See Koss Decl. Ex. EE (Pl. Dep. Ex. 34). 21

The offer in this second contract states that escrow will close on November 30, 2007, or 45 days 22 after acceptance (meaning January 14, 2008). Martinez wrote to Conway on January 5, 2008, 23 asking if he required anything else ...


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