settled on DBSI North Stafford. Donnerstag declared that the Roberts did not consult him about
the DBSI property nor did they ask him to perform due diligence on the investment on their
behalf. At the time, Donnerstag did not anticipate that his involvement in the sale would be
construed as a securities transaction.
Donnerstag's summary judgment motion included various exhibits and Robert Roberts's
deposition. At deposition, Robert Roberts testified that he had worked in real estate for 50 years
and that he did not believe the DBSI sale constituted a securities transaction but, rather, a real
estate transaction. Nor did he consider Donnerstag to be the seller of the property or a seller of
securities generallyhe
— considered DBSI to be the seller. Consistent with Donnerstag's
recollection, Robert Roberts explained that he had asked Donnerstag and other real estate brokers
to identify potential 1031 exchange properties. Donnerstag presented the Roberts with options
- common program. DBSI's
but none suited them until they learned about DBSI's tenancy in-
Rottman then contacted them and explained that DBSI was " a great company, it's safe,
conservative, they've been in business 27, 28 years, and there are a number of properties [the
5 Because this argument is dispositive, we do not include Donnerstag's additional claims.
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No. 43018 5
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Roberts] could consider investing in."Clerk's Papers (CP)at 119. Rottman also provided the
Roberts written materials about DBSI and its properties.
Robert Roberts evaluated the DBSI North Stafford information, which included a