Tattersalls LTD. v. Wiener

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TATTERSALLS LTD., Case No.: 3:17-cv-1125-BTM- KSC 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 14 GERALD WIENER, et al., ADJUDICATION AND PARTIAL 15 Defendants. SUMMARY JUDGMENT 16 [ECF Nos. 90, 161] 17 18 On January 13, 2020, the Court heard oral argument on Plaintiff’s motion for 19 summary adjudication and partial summary judgment against Defendants Gerald 20 Wiener and Finance California Inc. (ECF No. 90 (“Mot.”)). Plaintiff’s motion is 21 DENIED. 22 I. STANDARD 23 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 24 Procedure if the moving party demonstrates the absence of a genuine issue of 25 material fact and entitlement to judgment as a matter of law. Celotex Corp. v. 26 Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing 27 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, 28 Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1 1997). A dispute is genuine if a reasonable jury could return a verdict for the 2 nonmoving party. Anderson, 477 U.S. at 248. 3 A party seeking summary judgment always bears the initial burden of 4 establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 5 323. The moving party can satisfy this burden in two ways: (1) by presenting 6 evidence that negates an essential element of the nonmoving party’s case; or (2) 7 by demonstrating that the nonmoving party failed to establish an essential element 8 of the nonmoving party’s case on which the nonmoving party bears the burden of 9 proving at trial. Id. at 322–23. Once the moving party establishes the absence of 10 genuine issues of material fact, the burden shifts to the nonmoving party to set 11 forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 12 U.S. at 314. When ruling on a summary judgment motion, the court must view all 13 inferences drawn from the underlying facts in the light most favorable to the 14 nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 15 574, 587 (1986). 16 II. ANALYSIS 17 Plaintiff seeks partial summary judgment on two items: (1) “the breach of 18 contract claim” and (2) that “The Premae Company was used for fraud.” (ECF No. 19 90 (“Notice of Motion”), 1:13–19.) 20 1. Breach of Contract 21 Plaintiff’s motion fails with respect to breach of contract for two reasons. 22 First, the Court cannot enter summary judgment on a claim that is not asserted. 23 See Fed. R. Civ. P. 56(a). Plaintiff’s first amended complaint does not include a 24 cause of action for breach of contract. (ECF No. 11 (“FAC”).) 25 Second, the Court cannot grant summary judgment on immaterial facts. See 26 Celotex, 477 U.S. at 322. Plaintiff suggests the immateriality of whether DeHaven 27 breached a contract with Plaintiff by stating that “[t]his case has never been about 28 the breach of contract.” (Mot., 4:21). Upon close review of the remainder of 1 Plaintiff’s briefing, the Court is unable to find any indication that the purported 2 breach is material to this case. 3 2. Premae’s Involvement in Fraud 4 Summary judgment on Premae’s purported involvement in fraud fails 5 because the Court cannot adjudicate unclear issues. Rule 56 requires the movant 6 to “identify[] each claim or defense — or part of each claim or defense — on which 7 summary judgment is sought.” Fed. R. Civ P. 56(a) (emphasis added). Plaintiff’s 8 motion is rife with vague assertions, such as: “[Premae] was used for fraud.” 9 (Notice of Motion, 1:16–19.) As Defendants note, Plaintiff does not “specify[] who 10 committed what acts constituting what form of fraud.” (ECF No. 103, 7:12–15). 11 The Court finds that Plaintiff has not identified which facts should be summarily 12 judged. Plaintiff thus necessarily fails to establish that such facts would be 13 material. See Anderson, 477 U.S. at 248. Plaintiff has not met its burden under 14 Celotex, 477 U.S. at 322. 15 III. CLAIM AND ISSUE PRECLUSION 16 Plaintiff argues that summary judgment on the two aforementioned facts is 17 appropriate because claim and issue preclusion bar relitigation of these matters. 18 (Mot., 1:2–16.) Plaintiff requests preclusive effect be given to both federal1 and 19 state court2 judgments. (Mot., Exhs. 2, 6–8, 12–13, 17–18.) Federal common 20 law governs the preclusion analysis for the federal judgments and California law 21 governs the analysis for the California judgments. Taylor v. Sturgell, 553 U.S. 22 880, 891 (2008); Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988). 23 The federal standard for claim preclusion requires “(1) an identity of claims; 24 (2) a final judgment on the merits; and (3) identity or privity between the parties.” 25 26 27 1 Tattersalls Ltd. v. DeHaven, No. 2:11-cv-06311-SJO-JEM (C.D. Cal. May 4, 2012); PC Specialists, Inc. v. DeHaven, No. 16-90022-CL (Bankr. S.D. Cal. Aug. 29, 2016). 28 2 The Premae Company, LLC v. Richard Doan, 37-2012-00098024-CU-BC-CTL (Cal. Super. Ct. May 19, 2014); 1 Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016). California 2 has an identical standard. Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 3 (2002). First, Plaintiff does not raise a breach of contract claim in the instant 4 case, (id. at 1:22–23.), so there is no identity of claims between the cases 5 supporting claim preclusion on breach of contract. Second, there remains a 6 dispute of material fact whether DeHaven and Premae — the defendants in the 7 fraud judgments — were in privity with Wiener and Finance California. Plaintiff’s 8 allegation that a partnership existed between Defendants and DeHaven/Premae, 9 even if undisputed, would not establish privity under California law. DKN 10 Holdings LLC v. Faerber, 61 Cal. 4th 813, 825 (2015) (citing Dillard v. McKnight, 11 34 Cal. 2d 209, 214 (1949)). There is thus no identity or privity between the 12 parties to support claim preclusion on Premae and fraud. 13 In California, issue preclusion applies: “(1) after final adjudication (2) of an 14 identical issue (3) actually litigated and necessarily decided in the first suit and 15 (4) asserted against one who was a party in the first suit or one in privity with that 16 party.” DKN Holdings, 61 Cal. 4th at 819. The federal doctrine of issue 17 preclusion “bars ‘successive litigation of an issue of fact or law actually litigated 18 and resolved in a valid court determination essential to the prior judgment.’” 19 Taylor, 553 U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. 742, 748–49 20 (2001)). Federal issue preclusion typically may not be applied against a nonparty 21 to the original suit, because that person “generally has not had a ‘full and fair 22 opportunity to litigate’ the claims and issues settled in that suit.” Id. The U.S. 23 Supreme Court has established some exceptions to this rule, including situations 24 where the nonparty had a “pre-existing ‘substantive legal relationship[]’” with the 25 party to the previous suit or where the nonparty’s interests were adequately 26 represented by a party in the previous suit. Taylor, 553 U.S. at 893–95 (citations 27 omitted). On the present record, none of these exceptions conclusively apply 28 here. Since there remains a dispute of material fact regarding whether Wiener 1 ||and Finance California were in privity with DeHaven and Premae, the Court 2 ||cannot grant summary judgment on either of the issues Plaintiff presents. 3 Plaintiff does not meet the requirements of either test. Accordingly, neither 4 ||claim preclusion nor issue preclusion is proper here. 5 IV. CONCLUSION 6 Plaintiff's motion for summary adjudication and partial summary judgment 7 ||(ECF No. 90) is DENIED. Plaintiff's ex parte motion to expedite the ruling on this 8 || motion (ECF No. 161) is DENIED as moot. 9 || IT IS SO ORDERED. 10 ||Dated: March 5, 2020 11 a Thad Meith rane 40 Hono ble Barry Ted Moskgwitz United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28