Friday, August 2, 2013
C.A. Declines to Publish Decision on Realtors’ Rights
By a MetNews Staff Writer
The Court of Appeal for this district has spurned requests to partially publish an opinion that could have been useful to real estate agents who contend they were rooked out of a commission.
Plaintiff Barbara Tardif, an agent with Nourmand & Associates in Brentwood, may proceed, under Div. Four’s decision, with her action against Arman Zatikyan and Lilit Grigoryan. They allegedly sold their home for $9 million to an alter ego of Tardif’s clients in a secret deal aimed at skirting her entitlement to a 2.5 percent take of the purchase price.
However, the July 3 opinion will be of no precedential value, under an order Tuesday which maintains the designation of the opinion as one “not certified for publication.”
Partial publication had been sought by the California Association of Realtors, as well as by Tardif.
Had the request been granted, it would have established that agents for buyers may, under appropriate circumstances, be recognized as third party beneficiaries under listing agreements.
Zatikyan, a proprietor of Le Posh Salon Spa on Sunset Boulevard in Hollywood, had co-owned a home on Cherokee Lane in Beverly Hills with Grigoryan. They put it up for sale in 2008 after buying a 13,200-sq. foot house in the Beverly Ridge Estates gated community for $18 million.
The agreement with their listing agent provided that if a sale of the Cherokee Lane property were consummated, the broker for the buyers would receive a 2.5 percent commission.
Tardif showed the property to high-living clients of hers, Brian and Snizhana Willis. (Brian Willis has since been linked to investor frauds, with an Orange County Superior Court judge last year describing activities of Willis’s California company, against which a judgment was entered, as a “classic con game.”)
The Willises offered $8.6 million; the sellers countered with a $9.22 million offer; the Willises then asked Tardiff to present an $8.9 million offer. Before she had a chance to do so, the Willises allegedly announced their disinterest in pursuing a purchase.
However, Tardif later learned that the home was purchased for $9 million by Island Shore Services, LLC, purportedly an alter ego of the Willises.
Nourmand & Associates, LLC, assigned its right to a broker’s fee to Tardif, who sued Zatikyan and Grigoryan, as well as Arline Bolin, the listing agent. Los Angeles Superior Court Judge John Reid, since retired, sustained a demurrer to the fourth amended complaint, without leave to amend.
Reversal of the ensuing judgment of dismissal came in an opinion by Presiding Justice Norman Epstein, who wrote:
“Tardif adequately alleged she was a third party beneficiary of the Listing Agreement and that this agreement to pay her commission was breached when the property was sold to an entity that is the alter ego of the buyers she procured. Under the language of the Listing Agreement, sellers promised to pay the cooperating broker’s commission.”
The jurist said the decision in Steve Schmidt & Co. v. Berry (1996) 183 Cal.App.3d 1299 was “instructive.” There, it was held that an agent for buyers was entitled to a commission from the owner of real property when he refused to sell on the terms stated in the listing agreement.
Tardif alleged that the defendants concealed from her that a sale had been consummated by designating the property as having been withdrawn from the Multiple Listing Service, rather than sold. Epstein said she adequately pled a cause of action for intentional interference with prospective economic advantage.
Tardif’s attorney, Gerard L. Friend, said yesterday he thought there should be partial publication because the decision would be of “widespread interest” and, if could be cited, would “change the law.”
“I’m happy at the decision for my client,” he remarked, but added:
“I’m unhappy that it’s not a decision that can be used by others.”
Friend said the opinion appears to him to meet the guidelines for publication, but added:
“I don’t know enough about the politics that go into an appellate court’s decision when to publish.”
Tardif commented that she is “very disappointed” that the case will remain entirely unpublished, insisting that it is a “hugely important decision” for the real estate industry.
She said she has been involved in litigation for four years and declared that “the most important thing about the case to me” was that it might serve as a deterrent to maneuvers which deprive agents of their commissions.
Tardif related that she has asked Friend to request that the California Supreme Court order that the opinion be published.
Yasha Bronshteyn of Ginzburg & Bronshteyn represented Zatikyan and Grigoryan. Jerry K. Staub was the lawyer for Bolin. Bronshteyn was reported to be out of the office and Staub could not be reached for comment.
The case is Tardif v. Zatikyan, B240701.
Copyright 2013, Metropolitan News Company