Jury Sides with Coldwell Banker Residential Brokerage on Square Footage Dual Agency Case

On April 5, 2018, the jury in a second trial ruled in favor of the listing salesperson and Coldwell Banker on all claims in a square footage case. This is the second jury to exonerate the listing salesperson and broker in the same matter.

Billionaire Horiike bought a large Malibu house for $12.25 million in 2007. Although he admitted not reading any of the documents containing varying square footage such as permits, disclosures, public records, architectural drawings, he claimed the “approximate square footage” of 15,000 square feet on a flyer was a misrepresentation and a breach of the listing salesperson’s fiduciary duty.

The first jury held in favor of the broker and the listing salesperson on intentional and negligent misrepresentation claims. The judge had dismissed the breach of fiduciary duty claim against the broker that was based solely on the listing salesperson’s actions as the buyer’s salesperson, also licensed with Coldwell Banker, was not named.

In 2016, the California Supreme Court ruled that there was an agency relationship between the buyer and the broker and listing salesperson. The trial court retried all counts from the first trial plus the breach of fiduciary duty claim. Again, the jury found, after only a day of deliberation, that the broker and listing agent were not in breach even given the dual agency structure. The defense team was headed by Neil Gunny with Robert Shulkin assisting in a compelling defense of the broker and salesperson.