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Lopes v. Vieira

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


November 12, 2010

MANUEL LOPES AND MARIANA LOPES, DBA LOPES DAIRY; RAYMOND LOPES; JOSEPH LOPES AND MICHAEL LOPES, INDIVIDUALLY AND DBA WESTSIDE HOLSTEIN; MARIA MACHADO AS TRUSTEE OF THE MACHADO FAMILY TRUST; AND TONY ESTEVAM, PLAINTIFF,
v.
GEORGE VIEIRA; MARY VIEIRA; CALIFORNIA MILK MARKET, A CALIFORNIA CORPORATION; VALLEY GOLD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY; GENSKE-MULDER LLP, A CALIFORNIA LIMITED LIABILITY PARTNERSHIP; ANTHONY CARY; DOWNEY BRAND LLP, A CALIFORNIA LIMITED LIABILITY PARTNERSHIP; CENTRAL VALLEY DAIRYMEN, INC. A CALIFORNIA FOOD AND AGRICULTURAL NONPROFIT COOPERATIVE ASSOCIATION, AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER GRANTING MOTION FOR SUMMARY FOR SUMMARY JUDGMENT BY DEFENDANT GENSKE MULDER, LLP AGAINST PLAINTIFF ANTONIO ESTEVAM

Judge: Hon. Oliver W. Wanger Location: U.S. District Court 2500 Tulare Street Fresno, California 93721

Complaint Filed: September 11, 2006

2ndAmed.Compt Filed: April 02, 2008

Trial Date: TBA

Defendant Genske "Mulder & Co. LLP ("Genske Mulder") has moved for summary judgment on all causes of action asserted against it by Plaintiff Antonio B. Estevam ("Estevam").

Estevam asserts claims against Genske Mulder for alleged violations of 15 U.S.C. § 78j(b) and Securities and Exchange Commission Rule 10b-5 (Fourth Cause of Action) and California Corporations Code Section 54000(d) (Fifth Cause of Action) as well as claims for negligence, intentional misrepresentation and negligent misrepresentation (Sixth through Eighth Causes of Action). Second Amended Complaint at ¶108-174.

Genske Mulder‟s motion is granted on all causes of action for the following reasons:

The Court finds it is undisputed that Estevam did not purchase a security. Genske Mulder‟s Undisputed Fact (GMUDF) 1. Because he did not purchase a security, Estevam cannot establish his federal or state securities fraud claims. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 735-736 (1975); Kamen v. Lindly, 94 Cal.App.4th 197, 206 (2001).

As to Estevam‟s common law claims, the Court finds Estevam has failed to create triable issues and the following facts are undisputed: Estevam did not read any of the documents associated with the Valley Gold offering to investors or those prepared by Genske Mulder, GMUDF 2; and he never retained Genske Mulder as his accountant GMUDF 5; nor has he ever spoken to, or heard anything said by Genske Mulder, GMUDF 8.

Estevam submitted no evidence Genske Mulder intended, or had reason to expect, that any misrepresentation concerning Valley Gold would be repeated and acted upon by a person who did not invest in Valley Gold. Nor does Estevam present evidence that his friends upon whom he says he relied were acting as his agents. Memorandum Decision at 17:22-18:5. Assuming for purposes of this motion that Estevam has placed in issue an "indirect representation" cause of action, he submits no evidence to establish the necessary elements of such a claim. See, Lovejoy v. AT&T Corp., 92 Cal.App.4th 85, 94 (2001).

Genske Mulder did not have an accountant-client relationship with Estevam giving rise to a duty to disclose facts. See generally Fox v. Pollack, 181 Cal.App.3d 954, 960-61(1986). Genske Mulder accounting work for Valley Gold, an entity, did not create an relationship between Genske Mulder and Estevam giving rise to a duty to disclose. See, e.g., La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court, 121 Cal.App.4th 773, 784 (2004.

Therefore, for the reasons set forth in more particular in the Court‟s September 27, 2010

Memorandum of Decision

IT IS HEREBY ORDERED THAT:

Genske Mulder‟s motion for summary judgment against Plaintiff Antonio B. Estevam on the Second Amended Complaint is GRANTED.

IT IS SO ORDERED.

20101112

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