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Federal Deposit Insurance Corporation, As v. Danny Tarkanian

May 3, 2012

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR LA JOLLA BANK, FSB,
PLAINTIFF,
v.
DANNY TARKANIAN, AN INDIVIDUAL; AMY M. TARKANIAN, AN INDIVIDUAL; JERRY TARKANIAN, AN INDIVIDUAL; LOIS TARKANIAN, AN INDIVIDUAL; GEORGE TARKANIAN, AN INDIVIDUAL; ZAFRIR DIAMANT, AN INDIVIDUAL; JOSEPHINE DIAMANT, AN INDIVIDUAL; DOUGLAS R. JOHNSON, AN INDIVIDUAL; DEBRA JOHNSON, AN INDIVIDUAL; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS. DANNY TARKANIAN; AMY M. TARKANIAN; JERRY TARKANIAN; LOIS TARKANIAN; GEORGE TARKANIAN; ZAFRIR DIAMANT; JOSEPHINE DIAMANT, THIRD PARTY PLAINTIFFS,
v.
BEN WIGGINS; DOES I-X, INCLUSIVE; AND ROE CORPORATIONS I-X, INCLUSIVE, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion for Summary Judgment on the Third Party Complaint filed by Third Party Defendant Ben Wiggins. (ECF No. 63).

BACKGROUND

On May 6, 2010, Plaintiff Federal Deposit Insurance Corporation ("FDIC"), as receiver for La Jolla Bank, initiated this action by removing the Complaint from San Diego Superior Court pursuant to 28 U.S.C. § 1441(b) and 12 U.S.C. § 1819(b)(2)(B). (ECF No. 1). The original complaint filed in San Diego Superior Court alleges two causes of action against Defendants Danny Tarkanian, Amy Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafir Diamant, Josephine Diamant, Douglas Johnson, and Debra Johnson ("Defendants") for breach of guaranty on loans for which the Defendants were individual guarantors. Id. at 30-48.

On June 11, 2010, Defendants filed Counterclaims against Plaintiff FDIC and a Third Party Complaint against Ben Wiggins ("Wiggins"). (ECF No. 6). In the Third Party Complaint, Defendants allege causes of action against Wiggins for (1) civil conspiracy and (2) aiding and abetting deceit. Id. at 28-42. Defendants allege that Wiggins conspired with La Jolla Bank and Robert Dyson "to wrongfully encumber [Defendants'] real properties and to shore up La Jolla Bank's somewhat shaky financial posture by using the Johnson Investments and the Vegas Diamond loan proceeds to repay Mr. Dyson's loans from La Jolla Bank," and that Wiggins "aided Mr. Dyson [and La Jolla Bank] in their actions to wrongfully obtain funds from [Defendants]." Id. at 40-41.

On November 21, 2011, Wiggins filed a Motion for Summary Judgment seeking judgment in his favor on the Third Party Complaint. (ECF No. 63). On December 13, 2011, Defendants filed an opposition. (ECF No. 72). On December 20, 2011, Wiggins filed a reply. (ECF No. 80).

On January 5, 2012, the Court dismissed Douglas Johnson and Debra Johnson as third party plaintiffs for failure to substitute counsel. (ECF No. 83). On April 17, 2012, the Court dismissed the counterclaims against Plaintiff FDIC after Plaintiff FDIC showed entitlement to judgment as a matter of law pursuant to 15 U.S.C. § 1823(e). (ECF No. 100).

UNDISPUTED FACTS

Vegas Diamond Properties, LLC ("Vegas Diamond") and Johnson Investments, LLC ("Johnson Investments") each owned property in Las Vegas, Nevada. Defendants Danny Tarkanian, Amy Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafir Diamant, and Josephine Diamant are the principals of Vegas Diamond. Defendants Douglas and Debra Johnson are the principals of Johnson Investments.

Vegas Diamond and Johnson Investments took out loans with La Jolla Bank totaling over $25 million, secured by their respective properties, and loaned the proceeds to developer Robert Dyson to be used for a real estate project in Anza, California. The Johnsons personally guaranteed the loan to Johnson Investments. Defendants Tarkanians and Diamants personally guaranteed the loan to Vegas Diamond. The ability of Vegas Diamond and Johnson Investments to repay their loans from La Jolla Bank was dependent on the ability of Dyson to repay his loans from Vegas Diamond and Johnson Investments.

Dyson was unable to repay the loans from Vegas Diamond and Johnson Investments. Defendants' respective properties were foreclosed upon in March 2011.

In support of his motion for summary judgment, Wiggins submitted a signed declaration stating that:

2. I was an independent contractor who provided services to the companies owned by Robert Dyson. I was not Mr. Dyson's accountant or bookkeeper. At the request of both Mr. Dyson and Danny Tarkanian, I sometimes acted as a go-between, including sometimes transmitting messages, delivering documents and obtaining signatures. I also prepared worksheets and paperwork related to the Anza Project which were requested by Mr. Dyson and Mr. Tarkanian. However, at no time did I knowingly conceal any facts or make any false statements.

3. I was not present nor involved in any discussions or negotiations between Mr. Tarkanian, Mr. Dyson and La Jolla Bank. I did not negotiate with La Jolla Bank or anyone else. I never did any work for La Jolla Bank. I did not conduct or participate in any loan negotiations on behalf of anyone. I did not restructure any loan for Mr. Johnson or anyone else. I did not participate in any decision making relating to Mr. Dyson's business, La Jolla Bank's business, Third Party Plaintiffs' business, or the Anza Project.

4. I did not act knowingly to conceal or misrepresent anything, did not conspire with anyone, and did not commit any acts in furtherance of any common design.

5. In addition, based upon my conversations with Mr. Johnson, Mr. Tarkanian and Mr. Dyson, it was apparent to me that the true facts relating to the loans on the project, the use of loan proceeds, the delays with the project, the political climate in the Anza Valley, and all the other matters Third Party Plaintiffs allege constituted wrongful concealment, were actually known by Mr. Tarkanian and/or his legal counsel at the time. (Wiggins Declaration; ECF No. 63-3).

Robert Dyson gave the following deposition testimony in this case: Q. ... What was your relationship -- or what is your current relationship with Mr. Wiggins?

A. He still does -- well, he doesn't now. We have someone else doing the accounting. Our relationship pretty much are friends and I counsel with him on occasion.

Q. ... between, let's say, 2001 and October 30, 2008, what was your relationship with Mr. Wiggins?

A. Very active. He was instrumental in preparing us in various activities in our ...


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