The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
This is an action in diversity by plaintiff Amit Mahajan ("Plaintiff"), a New Jersey resident, for damages against defendants Sangeeta Kumar, Rajendra Kumar, Rajnesh Kumar, and Vijma Kumar (collectively "Defendants"), all California residents. On August 10, 2009, the court approved the stipulated dismissal of entity defendant iFreedom Direct Corp. with prejudice. In the instant motion, the remaining individual Defendants move individually for summary judgment as to some or all of Plaintiff's claims for relief. Because the facts are to a large extent individualized with respect to each Defendant's alleged participation in the events giving rise to this action, the court will consider the motions of various of the Defendants for partial summary judgment individually. In the discussion that follows, the court will refer to the individual defendants by their first names in order to avoid confusion. The court intends no disrespect. Diversity jurisdiction continues to exist pursuant to 28 U.S.C. § 1332. Venue is proper in this court.
GENERAL FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendants' proffered undisputed material facts consist mainly of denials of facts alleged by Plaintiff that correspond to the elements of the claims asserted by Plaintiff. Because there is no generally agreed set of undisputed facts, the court will borrow a summary of the alleged events that gave rise to this action with the understanding these are allegations are, in the main, disputed by the individual Defendants.
As the court summarized in its order of April 30, 2007: Plaintiff is a resident of Mercer County, New Jersey. Beginning at a time unknown, Plaintiff began a correspondence with Sangeeta after the latter "reached out" through an internet dating service. After some time, it became known to Plaintiff that Sangeeta was a real estate sales person working with defendant iFreedom (then New Freedom Mortgage Corp.), a mortgage broker. Relying on Sangeeta's representations and statements, Plaintiff formed the intent to purchase a house in California for himself and in his name only. Sangeeta told Plaintiff she would handle the transaction for Plaintiff and, by her representations, induced Plaintiff to send her substantially all of his savings. Plaintiff understood that Sangeeta would move into his house if their romantic interests blossomed.
Plaintiff alleges that Sangeeta received the money Plaintiff sent and she, and/or one or more of the named individual defendants deposited the money in a bank account belonging to Sangeeta and/or the other individual defendants. Plaintiff alleges that Defendants continued to misrepresent to Plaintiff that they intended to use the money Plaintiff sent to buy a house on Plaintiff's behalf and in Plaintiff's name. No such house was ever purchased and the money was never returned. Plaintiff also alleges that in the early part of May of 2005, Sangeeta falsely represented to Plaintiff that she owed money to an attorney and convinced Plaintiff that if he loaned her the money, she would pay Plaintiff back. Relying on Sangeeta's representations, Plaintiff loaned the requested money which has never been paid back. Plaintiff alleges Defendants do not even acknowledge the loan.
Plaintiff alleges that on or about late September of 2005, Defendants ceased all communication with Plaintiff and closed the bank accounts that held the funds Defendants received from Plaintiff. Defendants have not returned any of Plaintiff's money.
Doc. # 17 at 2:16 - 3:14.
Prior motions to dismiss the complaint were filed by entity defendant iFreedom Direct Corp. The court's rulings on these motions resulted in two amendments to the complaint. See Doc.#'s 17 and 54. The currently operative Second Amended Complaint (SAC) was filed on June 9, 2008. The SAC alleges a total of nine claim for relief. With the dismissal of iFreedom Direct, there remain seven claims for relief that pertain to one or more of the individual Defendants. The SAC alleges claims for relief under California common law against all Defendants for fraud and deceit, conversion, money had and received, tortuous interference with prospective business advantage, intentional infliction of emotional distress, and negligent misrepresentation. In addition, the SAC alleges a claim for relief against Sangeeta only for obtaining a credit report under false pretenses in violation of 15 U.S.C. § 1681.
Defendants' instant motion for partial summary judgment was filed on June 30, 2009. Plaintiff filed his opposition on July 23, 2009, and Defendants filed their reply on August 3, 2009. The court took the matter under submission as of August 10, 2009.
Rather than set forth Defendants' proffered undisputed material facts separately, the court will list those of Plaintiff's alleged facts Defendants deny or dispute in the relevant portions of the discussion that follows.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary judgment always has the initial responsibility of informing the court of the basis for its motion, the nature of the responsibility varies "depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial." Cecala v. Newman, 532 F.Supp.2d 1118, 1132-1133 (D. Ariz. 2007). A party that does not have the ultimate burden of persuasion at trial -- usually but not always the defendant -- "has both the initial burden of production and the ultimate burden of persuasion on the motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
I. Plaintiff's First Claim for Relief -- ...