The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER GRANTING DEFENDANT BOWEN'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is a Motion for Partial Summary Judgment filed by Defendant Kimberley Bowen ("Bowen"), requesting that judgment be entered in her favor on Plaintiff's ninth cause of action for breach of fiduciary duty ("Motion") (Docket 102). After considering the moving, opposing and replying papers thereon, and for the reasons stated below, the Court hereby GRANTS Bowen's Motion.
Defendants Sandra Chapple ("Chapple") and Charles Hawkins ("Hawkins") allegedly conducted two seminars on behalf of Defendants Richard Wolper ("Wolper"), Empire Custom Homes, LLC ("Empire"), Sterling Mountain Properties Deer Canyon ("Sterling"), Mountain Lake Ventures, LLC ("Mountain Lake"), Shelby Ahlstrom ("Ahlstrom")*fn1 , Kimberly Bowen ("Bowen"), and RE/MAX Advantage.*fn2 Plaintiffs Dony Besser, Silvia Besser, Robert Magnotta, Zaven Kulajian, Virginia Lane, Charla Kabana, Jake Winett, Erin Winett, Juli Humbles, and Pat Rogers ("Plaintiffs") attended the seminars.
At the seminars, Defendants allegedly represented to Plaintiffs that for $40,000 each, Plaintiffs could cause the construction of a single family residence in Utah ("Utah Properties"). Defendants allegedly represented that this payment was not an investment, but rather a down payment on real property owned by Wolper, to be subdivided and developed by Mountain Lake, Sterling, and Empire and sold to third parties for a profit. The $40,000 was to be held in trust until the close of escrow, and after the financing was secured, each Plaintiff's down payment would be refunded.
Plaintiffs aver that they contributed $40,000 each as a down payment on the Utah Properties, and were told that an escrow account had been opened on ten real properties that had been subdivided from Wolper's estate. Plaintiffs allege that within a few months after receiving the funds, Defendants refused to return any phone calls or any other communications from Plaintiffs. Plaintiffs allege that these Defendants have repeatedly sold, and continue to sell, the same real property to individuals around the country.
Plaintiffs assert ten causes of action in their Fourth Amended Complaint ("4AC"), the currently operative complaint in this matter. Only one of these causes of action is relevant to the instant Motion: Plaintiffs' ninth claim for breach of fiduciary duty against Bowen. Bowen moves for summary judgment on this cause of action, arguing that Plaintiffs have failed to adduce any evidence that Bowen was in a fiduciary relationship with any of the Plaintiffs. In the 4AC, Plaintiffs pled the existence of a fiduciary duty by virtue of Bowen's alleged status as their real estate agent in purchasing the properties at issue. 4AC, ¶¶ 121, 124. Bowen argues that, after the close of discovery, Plaintiffs have failed to uncover any evidence that Bowen agreed to serve as Plaintiffs' real estate agent or that Plaintiffs otherwise took on any fiduciary obligations with respect to the Plaintiffs. Bowen thus requests that the Court enter summary judgment in her favor.
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548 (1986). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out that the non-moving party has failed to present any genuine issue of material fact. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
Once the moving party meets its burden, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." Fed. R. Civ. P. 56(e)(2); see also Anderson, 477 U.S. at 248-49. Furthermore, a party cannot create a genuine issue of material fact simply by making assertions in its legal papers. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252.
A successful claim for breach of fiduciary duty requires the plaintiff to prove (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach. Pierce v. Lyman, 1 Cal.App.4th 1093, 1101 (1991). "The absence of any one of these elements is fatal to the cause of action." Id.Bowen argues that Plaintiffs have failed to adduce sufficient evidence to establish the first of these elements: the existence of a fiduciary relationship. Plaintiffs proffer two main theories in response: (1) that there is a genuine issue of material fact regarding whether Bowen served as Plaintiffs' real estate agent throughout the initial transaction regarding the Utah Properties, and (2) that there is a genuine issue of material fact regarding whether Bowen agreed to serve as Plaintiffs' agent in future transactions involving the Utah Properties. Plaintiffs also attempt to resist summary judgment on the basis of two new theories that do not appear in the 4AC: (1) that Bowen owed fiduciary duties by virtue of her alleged status as an "escrow officer" in control of Plaintiffs' funds and (2) that Bowen owed fiduciary duties to Plaintiffs on account of her alleged position as Chief Executive Officer of Defendant Empire Custom Homes. None of Plaintiffs' theories have merit. Plaintiffs have failed to establish a genuine issue of material fact regarding the existence of a fiduciary relationship between Plaintiffs and Bowen. Bowen is entitled to judgment as a matter of law on this claim.
a. The Initial Transaction
Plaintiffs' base their breach of fiduciary duty claim, first, on the assertion that Bowen assumed fiduciary duties during the initial Utah Properties transaction, either because she acted as Plaintiffs' real estate agent in purchasing the properties or because she owed Plaintiffs fiduciary duties by virtue of her role ...