By Marisa Kendall, From The Recorder

SAN JOSE — A Santa Clara County judge sent a contract suit against Facebook Inc. founder Mark Zuckerberg toward trial Thursday, ruling that emails from Zuckerberg, his assistant and his financial adviser raise the question of whether the billionaire reneged on promises he allegedly made in connection with a 2012 real estate purchase.

With about one month to go until the case’s scheduled trial date, Judge Patricia Lucas denied the bulk of Zuckerberg’s motion for summary adjudication. Her tentative ruling, which she largely adopted Thursday, cited several emails that suggest Zuckerberg was willing to capitalize on his fame to get a lower price on the property that abutted his backyard in Palo Alto.

“We are trying to ‘wow’ these schmucks so they will accept an offer for the home that is reasonable,” Zuckerberg’s financial adviser, Divesh Makan, wrote to the CEO’s assistant in late 2012. “The plan is to have [Zuckerberg] spend 15 [minutes] with them, make them feel special etc. Perhaps you can prepare [two] goodie bags as well.”

The seller, Mircea Voskerician, claims he gave Zuckerberg a $2.6 million discount in exchange for the billionaire’s word that he would help Voskerician promote his business. When it came time to cash in on the promised introductions and references, Voskerician says Zuckerberg ignored his many attempts to reach out.

Lucas wrote the evidence “presents a triable issue of material fact as to whether Zuckerberg made the alleged promises without a then-present intent to perform.”

In an email leading up to the first meeting with Voskerician, Zuckerberg wrote, “Feel free to use meeting me as a negotiating carrot with them. That likely has real soft value to them and may make them more likely to want to give us a good deal.”

Zuckerberg’s lawyers at Cooley have argued that he never contracted to help Voskerician. In her tentative order, Lucas referenced a 2013 email in which Zuckerberg’s assistant wrote: “I just had a quick chat with [Zuckerberg] on this issue—and he said he does remember saying that he would help [plaintiff] in a ‘light’ way. … Definitely not interested in using his services as a developer.”

Another note from Makan said Zuckerberg “is not going to take a [meeting] with [plaintiff] … ever.”

Lucas cleared the path on Thursday for Voskerician’s claims of promissory fraud, intentional misrepresentation, rescission, conspiracy, and aiding and abetting. The judge held off deciding whether to toss Zuckerberg’s breach-of-oral-contract claim after hearing arguments Thursday from Zuckerberg’s lawyer, Cooley partner Patrick Gunn.

The lawsuit, filed in May 2014, has evolved into a battle as colorful as it is contentious. Zuckerberg’s lawyers have raised questions about the credibility of key documents and witnesses, including a mysterious African prince who figures into Voskerician’s story.

Briefs filed last month by the Cooley team contest whether Voskerician would have been able to close on the purchase of the property were it not for the money he received from Zuckerberg. The lawyers cited conflicting versions of the same Voskerician bank statement from Sept. 2012—one of which shows a balance of $3.8 million and one that shows a balance of $79,522—implying one may have been doctored. They also question the way Voskerician procured those funds—accusing him of making money by stealing medical equipment from prior employer Stryker Corp. and selling it on eBay.

On the other side, Voskerician’s counsel has accused Zuckerberg of using a private investigator to intimidate a key Voskerician witness and his family.

To make matters more interesting, Voskerician’s lawyer, David Draper of San Jose firm Terra Law, moved on Thursday to withdraw from the case. Draper’s motion claimed “an actual conflict has arisen between plaintiff and Terra Law.” Draper cited California Rules of Professional Conduct rules 3-700 and 3-200. Rule 3-200 forbids a lawyer from litigating a matter “that is not warranted under existing law” or is “for the purpose of harassing or maliciously injuring any person.”

Draper declined to comment Thursday.

In court, Voskerician told Judge Lucas that he believes he can have new counsel in place by next week.

Cooley’s Gunn argued Thursday that the alleged agreement between Zuckerberg and Voskerician is too vague to hold up in court. For example, the alleged oral contract doesn’t specify how often Zuckerberg must meet with Voskerician, or how he must serve as a reference.

And in an email to a friend, Gunn argued, Voskerician wrote that he intended Zuckerberg to be paid for any referrals that led to business. That’s inconsistent with other evidence, Gunn said.

“His own evidence in the case shows that even he doesn’t understand, or didn’t understand, what the terms of the alleged contract would be,” Gunn said.

Draper, Voskerician’s lawyer, said in court that the agreement is “pretty basic.”

“[Zuckerberg]’s supposed to say: ‘here’s a guy who’s looking to build a house. You might want to use him,’ ” Draper said. But even if the agreement were vague, that hardly matters because whatever the terms were, Zuckerberg didn’t abide by them.

“Mr. Zuckerberg didn’t do anything,” Draper said.

In her tentative ruling, Lucas had found the contract “is not so uncertain or indefinite so as to be rendered unenforceable.” But she agreed to take the matter under submission Thursday.

Lucas also denied a summary adjudication motion brought by Makan, Zuckerberg’s financial adviser, who is accused of conspiracy to commit fraud and aiding and abetting fraud.

IMAGE: Facebook CEO Mark Zuckerberg

For more on this story go to: http://www.therecorder.com/id=1202738752318/Emails-Burn-Facebook-Founder-in-Real-Estate-Dispute#ixzz3nYH0YYv7