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The Gist of the Case
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Around 1/15/2000 Defendant Seller promised to pay Aguilar a commission to find a buyer for a 56 unit motel he occupied at the time. Around 2/20/2000 aguilar found Defendant Buyer on 3/4/00 Aguilar wrote & presented a full price offer to Defendant Seller. On 3/14/00 Defendant Seller wrote and faxed to Aguilar a counter offer, memorializing agreement to pay broker a commission. Thereafter Defendant Seller and the Defendant Buyers got together and negotiated a purchased price that excluded Aguilar's commission. If you have read Torelli v. J.P. and Buckaloo v. Johnson then you have read my case
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COMPLAINT FOR DAMAGES
Plaintiff complains and for causes of action alleges as follows:
Plaitiff, Teresa Aguilar, is now and at all times mentioned in this complaint was, a resident of Los Angeles County, California
Defendant Seller, Defendant Escrow, Defendant Buyer, are now, and at all times mentioned in this complaint were, individuals residing in Los Angeles County, California.
Plaintiff does not know the true names of defendants DOES 1 through 25, and therefore sues them by those fictitious names. Plaintiff is informed and believes, and on the basis of that information and belief alleges, that each of those defendants was in some manner legally responsible for the events and happenings alleged in this complaint and for plaintiff's damages. The names, capacities and relationships of DOES 1 through 25 will be alleged by amendment to this complaint when they are known.
Plaintiff is informed and believes, and on that basis alleges, that at all times mentioned in this complaint, defendants were the agents and employees of their codefendants, and in doing the things alleged in this complaint were acting within the course and scope of that agency and employment.
Real estate broker Teresa Aguilar (Plaintiff) was denied her commission due and owing on the sale of a 56 unit motel located at 1111 Vine Blvd., Los Angeles, California 90038. Thus, she brings this action against defendants, the sellers and the buyers of the property and/or their assignees, Defendant Escrow, XXX Kao, and Does 1 through 20. Plaintiff's principal claims are that the acts of defendants constituted the tort of intentional interference with prospective economic advantage, breach of contract, discrimination, conspiracy and damages.
The facts are as follows:Defendant Seller, acting individually and as agent for Defendants Wang, promised to pay Plaintiff 3% commission if she found a buyer for his property. Plaintiff interested the Defendant Buyer in the property, took him to see it, and discussed the attributes of the property as presented to her by Defendant Seller. The Plaintiff negotiated with Defendant Buyer for the purchase of the property, and as a result, Plaintiff wrote and submitted an offer of purchase dated March 4, 2000, (Exh.1). Defendant Seller, acting individually and as agent for Defendants Wang, accepted most all items including to pay commission to Plaintiff, but rejected in part some items, and executed a March 14, 2000, written counter offer that provided for the payment of a 6% commission to Plaintiff (Exh.2). Plaintiff presented the counter offer to Defendant Buyer the same day. On March 15, 2000, Plaintiff wrote to Defendant Seller a letter registering her buyer "and/or assignees" as her clients (Exh.3). On April 22, 2000, Defendant Buyer answered and agreed to the March 14, 2000,Defendant Seller's counter offer, in whole but with 2 changes (Exh.4). Defendant Seller agreed to supply these changes but never did and instead submitted another counter offer. At this time, unknown to Plaintiff, the buyer and his assignees carried out negotiations directly with Defendant Seller and through third parties and submitted another offer on the property without going through plaintiff, but while they were still negotiating the first offer through Plaintiff and while they encouraged her to continue with her efforts; Plaintiff did so with the knowledge, approval, and encouragement of Defendant Seller and the Defendant Buyer. On April 7, 2000, Defendant Seller terminated Plaintiff's services without good cause, making Plaintiff's further performance impossible (Exh.5). As a result of Plaintiff efforts, Defendant Seller sold the property to Defendant Buyers, for basically the same terms as they had with Plaintiff but at a reduced selling price which excluded part of Plaintiff Aguilar's commission.
FIRST CAUSE OF ACTION
(For Conspiracy Against All Defendants)
Plaintiff incorporates by this reference paragraphs 1 through 7 of this complaint.
On or around March 24, 2000, Defendants and each of them knowingly and willfully conspired and agreed among themselves to interfere with plaintiff's ability to successfully negotiate the purchase of the subject property. After Plaintiff found the defendant buyers the property they wanted, and after she found for defendant seller, buyers to purchase the property he wanted to sell, Defendants negotiated amongst themselves, while encouraging Plaintiff to continue with her efforts.
Defendant Seller was induced by Defendant Buyers not to consummate the sale through Plaintiff, therefore Plaintiff must recover damages from the defendants in a tort action for conspiracy.
SECOND CAUSE OF ACTION
(For Breach of Implied Contract and Intentional Interference with a Prospective Economic Advantage Against All Defendants)
Plaintiff incorporates by these reference paragraphs 1 through 10 of this complaint.
Defendant Buyers contacted and dealt with the sellers Wang and Defendant Seller independently after having been shown the property by the Plaintiff, and with full knowledge of the existing agreement between Defendant Seller and Plaintiff as written on the counter offer dated March 14, 2000, thereon conspired to induce the breach of the existing agreement.
Thereafter, Defendant Seller agreed with Defendant Buyers to breach his agreement [Civ. Code §§ 3300-3318] and to defraud Plaintiff and knowingly participated in the conspiracy with the intent to not pay the plaintiff the commission. Civ. Code § 1710(4). Also, Defendant Escrow overtly acted in furtherance of the conspiracy to prevent and deprive Plaintiff of payment of her earned commission, by refusing to pay her at the close of escrow as demanded by Plaintiff in writing in May 22, 2000; the request for payment included a copy of the signed agreement to pay commission by Defendant Seller (Exh. 6). Defendants and each of them did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracy and above-alleged agreement.
Defendants, furthered the conspiracy by cooperation with and lent aid and encouragement to one another ratified and adopted the acts of Does 1 through 20, defendants, they closed the transaction concealing from Plaintiff their agenda in that Defendant Seller terminated Plaintiff real estate services and asked her in writing 'not to talk to her buyer again' while her buyer, Defendant Buyer, hid from Plaintiff claiming to be out of town but sending his son XXX Patel to encourage Plaintiff to continue with her efforts, while the Defendant Buyers negotiated with Defendant Seller and others.
On March 15, 2000, Plaintiff registered Defendant Buyers and/or his assignees as her buyers with Defendant Seller. On or around March 16, 2000, Defendant Seller told Plaintiff that her buyer Defendant Buyers was contacting him directly and through others, and making other offers.
As a proximate result of the wrongful acts herein alleged and as a proximate result of defendants' acts complained of above, plaintiffs have suffered irreparable economic and emotional damages and she has been generally damaged in the sum of $132,000, the 6% commission of subject property's purchased price, plus interest, expenses and damages as listed below. Harper and James, Torts § 6.11, p. 510 (1956).
Defendants did the things herein alleged maliciously and to oppress, to defraud, and to coerce plaintiff. Plaintiff is therefore entitled to exemplary and punitive damages in the sum of $800,000. Civ. Code § 3333.
WHEREFORE, plaintiff demands judgment as set forth below. ///
THIRD CAUSE OF ACTION
For Fraud Against all Defendants, including
Defendant Seller (not fully litigated in previous claim)
Plaintiff incorporates by this reference paragraphs 1 through 18 of this complaint.
On or about March 4, 2000, Defendant Buyer falsely and fraudulently represented to plaintiff that he was the owner of the property located at 1111 Beverly Blvd., Los Angeles, CA 90036; on or about March 22, 2000; Defendant Buyer falsely and fraudulently represented to plaintiff that he had the balance of the deposit ready to open escrow and promised to give it to her but never did; later Defendant Buyer refused to talk to Plaintiff by phone or in person.
The representations made by defendant were in fact false. The true facts were: 1) The property located on Beverly Blvd., that Defendant Buyer claimed to own, when in fact the property ownership was under a ZZZ Patel and YYY Patel; 2) Defendant Buyer never intended to give Plaintiff the full deposit to open escrow, and in fact started to contact Defendant Seller directly and through third parties, making other offers but while sending his son XXX Patel to encourage Plaintiff to continue with her efforts; 3) Defendant Buyer while claiming to be out of town was in fact negotiating with Defendant Seller directly and through others but while having his son, XXX Patel, mislead Plaintiff.
Defendant Seller terminated Plaintiff real estate services demanding in writing that she not talk to her buyer again.
The true facts were that 1) although Defendant Seller denied ever telling Plaintiff, on March 18, 2000, that her buyer was sending others, he wrote on the April 7, 2000, "I only told you a Mexican Agent. ... [was being sent by Defendant Buyer]" (Exh. 5), admitting that he had made the statement; 2) Defendant Seller cut off Plaintiff name from purchase agreement in order to conceal the fact that he had even increased Plaintiff's commission from 3% to a 6%; 3) Defendant Seller demanded in writing when he terminated Plaintiff Real Estate services, that she "not talk to her buyer again" to discourage Plaintiff from following up any longer with the Defendant Buyer in order for the defendants to be free to collude.
Plaintiff claims that Defendants, by an act of fraud, caused Plaintiff not to received the agreed commission. Plaintiff also claims that as a result, she suffered money losses which the law calls damages. Plaintiff seeks to recover those damages in this proceeding. Promise made without the intent to perform it is actionable fraud
When the defendants made their representations they knew them to be false, and these representations were made by defendant with the intent to defraud and deceive the plaintiff and with the intent to induce plaintiff to act in the manner herein alleged, and at the time defendant made the promises to plaintiff, of signing counter offer dated March 22, 2000, to use her services as a real estate broker to this transaction, and to give her the deposit to open escrow, defendants had no intention of performing them.
Plaintiff, at the time these representations were made by defendants and at the time plaintiff took the actions herein alleged, was ignorant of the falsity of defendants' representations and believed them to be true, further, Plaintiff, at the time these promises were made and at the time plaintiff took the actions herein alleged, was ignorant of defendant's secret intention not to perform and plaintiff could not, in the exercise of reasonable diligence, have discovered defendant's secret intention. In reliance on these representations, plaintiff was induced to and did continue with her efforts with the negotiations. Had the plaintiff known the actual facts, she would not have taken such action to the detriment of other business prospects and if the plaintiff had known of the actual intention of defendants, plaintiff would not have taken such action. Plaintiff's reliance on defendant's representations was justified because they were constantly encouraging her to continue with her efforts in the negotiations. Calif.Civ.Code 3294(c)3(d).
As a proximate result of defendant's fraud and deceit and the facts herein alleged, plaintiff was economically and physically harmed by reason of which plaintiff has been damaged in the sum of $360,000.
In doing the acts herein alleged, defendant acted with oppression, fraud, and malice, and plaintiff is entitled to punitive damages in the sum of $500,000. Civ. Code § 3294.
The fraud claim against Defendant Seller in the previous trial was not fully and fairly litigated in an adversary hearing, and thus was not established due to the fact that the trial court dismissed the claim without due process and only due to procedural technicalities.
WHEREFORE, plaintiff demands judgment as set forth below.
FOURTH CAUSE OF ACTION
For Breach Of Implied Covenant Of Good Faith And Fair Dealing
Against All Defendants
Plaintiff incorporates by this reference paragraphs 1 through 30 of this complaint.
California law implies a covenant of good faith and fair dealing in all contracts between parties entered into in the State of California. The defendants named above in this cause of action, lack good faith by doing of their intentional acts, prevented the completion of the purchase by Plaintiff and the receipt of her commission. Defendants having frustrated by their own remissness the realization of the contractual objectives of Plaintiff, cannot take advantage of such conduct to efface the Real Estate Broker Plaintiff's right to her commission.
Defendant Buyer misrepresented the fact that he owned certain properties, to encourage Plaintiff to put her utmost efforts to have his offer accepted by Defendant Seller which led the plaintiff to rely on Defendant Buyer as a willing and able purchaser. Defendant Buyer promised to provide the deposit to open escrow but instead began to contact the seller Defendant Seller directly, and through others.
Defendant Buyer had knowledge of falsity or lack of reasonable ground for belief in the truth of the representation that he owned the property at 1111 Beverly Blvd. His intent to induce Plaintiff reliance and that actual and justifiable reliance by plaintiff resulted in damages.
As a result of the actions of defendants Defendant Seller, Wang, Defendant Buyers, Defendant Escrow, and Does 1 through 25 and each of them, set forth herein above, said defendants have violated the implied covenant of good faith and fair dealing against said Plaintiff herein, and as a result thereof, Plaintiff is entitled to damages as prayed.
The actions of said defendants, as herein before described in violation of said implied covenant of good faith and fair dealing have caused the Plaintiff to suffer damages in that she did not receive promised payment for her real estate services in the amount of $132,000.
WHEREFORE, plaintiff demands judgment as set forth below.
FIFTH CAUSE OF ACTION
(For Discrimination Against All Defendants)
Plaintiff incorporates by this reference paragraphs 1 through 37 of this complaint.
Defendants subjected Plaintiff to gender and race discrimination, by exposing her to a hostile working environment in refusing in various occasions to come to the phone to talk to her and in claiming to be out of town, while on the other hand having others calling and encouraging her to continue with her efforts, thus the result of making her work, without intending to compensate her.
Defendant Seller demanded for Plaintiff to find him a buyer, and Defendant Buyer demanded for Plaintiff to find him a motel to purchase. They both demanded for Plaintiff to start the process, negotiate, and when the sale was close to consummation, they started to throw monkey wrenches on the transaction and brought a male agent to interfere, who was not even licensed in California at the time; further, these defendants hid, demanded termination of contacts, opened, and closed escrow behind Plaintiff's back with the aid of Defendant Escrow and Does 1 through 25. As a result of defendants' misconduct, Plaintiff was excluded from participation in her own transaction and her ability to make the sale was restricted on the basis of her gender and race.
The defendants "lied to, and gave false and misleading information" to Plaintiff who sought to help the seller sell his property, and buyer to purchase it.
FIFTH CAUSE OF ACTION
(For Intentional Infliction of Emotional Distress Against All Defendants)
Plaintiff incorporates by this reference paragraphs 1 through 41 of this complaint.
The enticement, hide and seek actions as collected efforts by defendants were intentional and reckless infliction, by extreme and outrageous conduct, of severe emotional and mental distress caused to Plaintiff in that after constantly encouraging her to make great efforts to put the transaction together at their incessant insistence, the defendants' systematic pressuring to frustrate those same efforts that they promoted upon Plaintiff, was malicious and outrageous conduct with the intent to cause Plaintiff confusion and distress. The special relationship that existed between the parties justifies recovery. Defendants' conduct prevented Plaintiff from performing under her agreement with Defendant Seller and made Plaintiff's performance more burdensome and expensive. Therefore, Plaintiff is entitled to recover damages in an amount that will compensate her for the financial loss resulting from the loss of the benefits of the contractual relationship and prospective economic advantage, for emotional distress or actual harm that resulted from the interference and disruption, and any other loss or harm caused by Defendants' malicious wrongdoing.
SIXTH CAUSE OF ACTION
(For Retaliation Against Defendant Seller)
Plaintiff incorporates by this reference paragraphs 1 through 43 of this complaint.
Retaliation was part of the decision to terminate Plaintiff real estate services and without legitimate reasons to do so. It was retaliation for Plaintiff reminding Defendant Seller as to the double commission liability payment if he signed another set of a purchase agreement with Plaintiff's buyers, the Defendant Buyers. Up to March 20, 2000, Defendant Seller was satisfied with Plaintiff performance to the point of increasing her commission from 3% to 6% as memorialized in counter offer dated March 14, 2000, (Exh. 2). As a result of Defendant Defendant Seller's actions, Plaintiff suffered retribution for warning Defendant Seller of liability for dealing directly with Plaintiff's buyers, therefore, Plaintiff must be compensated for retaliatory tactics suffered. Defendant Seller joined in the conspiracy in order to retaliate against her for forewarning him about the two commission liabilities, and should have known better than to take adverse action. The evidence support the punitive damages award based on the plaintiff's retaliation claim in the amount of $500,000.
WHEREFORE, plaintiff prays judgment against defendants and each of them, as follows:
1. For general damages in the sum of $860,000 -- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay;
2. For compensatory damages in the sum of $500,000 -- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay;
3. For punitive damages in the sum of $500,000 against each defendant;
WHEREFORE, plaintiffs pray for judgment against defendants as follows:
On the First Cause of Action:
1. For general damages in an amount not less than $500,000; and
2. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On the Second Cause of Action:
1. For general damages in an amount not less than $500,000; and
2. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On the Third Cause of Action:
1. For damages in an amount not less than $500,000; and
2. For general damages in an amount not less than $500,000; and
3. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On the Fourth Cause of Action:
1. For damages in an amount not less than $500,000; and
2. For general damages in an amount not less than $500,000; and
3. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On the Fifth Cause of Action:
1. For general damages in an amount not less than $500,000; and
2. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On the Sixth Cause of Action:
1. For damages in an amount not less than $500,000; and
2. For general damages in an amount not less than $500,000; and
3. For special damages in an amount to be determined
-- Plus responsibility to pay defendants' claims adjudged against all other Defendants if unable to pay.
On All Causes of Action:
1. For costs of suit incurred herein;
2. For such other and further relief as the court may deem proper -- Plaintiff also expects all defendants to render surety if they cannot make surety for damages and penalties to be paid to Plaintiff.
A jury trial is demanded.
DATED: February 11, 2002
Respectfully submitted,
By: __________________________
Teresa Aguilar, Plaintiff pro se
VERIFICATION
I, Teresa Aguilar, am a Plaintiff in the above-entitled action. I have read the foregoing and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Long Beach, California.
DATED:
Teresa Aguilar, Plaintiff Pro se |
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