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Embraceable You Designs, Inc v. First Fidelity Group

December 3, 2012


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge



Plaintiff Embraceable You Designs, Inc. moves for summary judgment against Defendants First Fidelity Group, Ltd. ("First Fidelity"); First Fidelity Asset Group, LLC ("Asset Group"); Lynn Dale Bogart; Simon Shaw; Michelle Dalton; and M Dalton Fashions, Inc. ("Fashions"). (ECF No. 96.) Defendants failed to oppose this motion, which the Court may deem as consent to ruling in favor of Embraceable You. Local R. 7-12. Nevertheless, the Court has considered the merits of Embraceable

You's motion and, for the reasons discussed below, GRANTS in PART and DENIES in PART Embraceable You's motion for summary judgment.*fn1


Plaintiff Embraceable You is a California corporation owned by Jenny Von Holtermann that manufactured and sold women's and children's clothing. (FAC ¶ 5; Mot. 2.) Defendant First Fidelity is a private equity fund previously registered in the British Virgin Islands. (SUF 2.) It has its principal place of business in London, England, and it also has California offices in Beverly Hills and Newport Beach. (FAC ¶ 6.) Defendant Simon Shaw is First Fidelity's managing director. (SUF 3.) Defendant Asset Group is a Nevada limited liability company affiliated with First Fidelity whose manager is Defendant Lynn Dale Bogart. (Id.) Bogart, also known as Joseph Lekar,*fn2 is a felon convicted of aiding and abetting wire fraud and money laundering. (SUF 1.) Defendant Michelle Dalton is the President of fellow Defendant Fashions, a California corporation. (FAC ¶ 9.)

In November 2007, Von Holtermann put Embraceable You up for sale to finance her son's college education. (Mot. 2.) In January 2008, Dalton agreed to purchase Embraceable You's business assets, specifically the "TULULA, UNDER TEE brand trademark" and the company's goodwill, customer lists, office furniture, office equipment, office supplies, and warehouses. (Von Holtermann Decl. Ex. E, at 37.) Dalton offered to pay for these tangible and intangible assets with two First Fidelity bonds. (Id. ¶ 3.) The first bond was set to mature on January 15, 2010; the second was set to mature on January 30, 2010. (Id.)

Because Von Holtermann had never owned securities before, she asked Dalton to send her a copy of the bonds. (Id. ¶¶ 4--5.) Dalton sent Von Holtermann a copy of the front page of the bonds and a letter from Shaw that stated the bonds were transferable. (SUF 11.) Dalton, who represented First Fidelity along with Bogart,*fn3 also told Von Holtermann that the bonds could be redeemed prior to maturity. (SUF 12; Mot. 2.) But Dalton and Bogart did not inform Von Holtermann that First Fidelity was no longer a valid private equity fund. (SUF 12.) As of November 1, 2007, First Fidelity had been stricken off the British Virgin Islands' register of corporations for nonpayment of funds, and as of July 30, 2008, it was in a state of receivership. (SUF 2.) Likewise, no one revealed to Von Holtermann that on December 5, 2007, the California Corporations Commissioner had ordered Asset Group to desist and refrain from offering or selling securities in the state. (SUF 3; Mot. 6.)

Bogart shipped the bonds to Von Holtermann, but when she received them on February 18, 2008, she saw the language on the back of the bonds for the first time indicating that the bonds were not registered under any securities act and could not be redeemed prior to their maturity date. (FAC ¶¶ 26--29; Von Holtermann Decl. ¶ 8.) When Von Holtermann questioned Dalton and Bogart about these restrictions, Dalton reassured Von Holtermann that she could redeem the bonds at any time. (SUF 16.) Von Holtermann relied on this statement and proceeded to close the deal on the sale of Embraceable You's business assets to Dalton, especially since Dalton also agreed to purchase Embraceable You's inventory "as needed in [the] future" and assume its showroom lease. (Von Holtermann Decl. ¶¶ 10--11 & Ex. E, at 39.)

After closing the deal in mid-February 2008, Dalton picked up Embraceable You's assets and inventory but did not reimburse the company for its inventory and refused to assume its lease. (Id. ¶ 12; Mot. 5.) Instead, Dalton sought rescission of the Embraceable You sale and alleged that Von Holtermann had caused her damages via failure of consideration and fraudulent and negligent misrepresentation. (Von Holtermann Decl. Ex. E, at 39.)

As a result of this dispute, the parties commenced an arbitration proceeding. (Id. ¶ 19.) One of the issues discussed was Embraceable You's inventory. (Id. Ex. E, at 39--40.) Von Holtermann alleged that she sold the inventory to Dalton, while the arbitrator found that Dalton had attempted to return all the clothing and had placed it in a storage facility for Von Holtermann to pick up. (Id. Ex. E, at 40.) No evidence showed that Von Holtermann ever retrieved her property. (Id.)

Because of Dalton's failure to pay for the inventory and assume Embraceable You's lease, Von Holtermann tried to redeem her bonds on April 16, 2008. (FAC ¶ 32.) First Fidelity refused this request twice: once on June 30, 2008, and again on October 10, 2008. (Id. ¶¶ 32, 37.) The reason for the latter denial was that First Fidelity knew Dalton was seeking rescission of the Embraceable You sale. (Id. ¶ 37 & Ex. 7.) As such, First Fidelity believed "an actual pending dispute as to the rightful owner of the bonds" existed between the two parties. (Id. ¶ 37.) Von Holtermann also attempted to obtain payment of the interest due on the bonds on January 29, 2009, but First Fidelity denied this request as well. (Id. ¶¶ 38--39.) First Fidelity's failure to honor Von Holtermann's redemption of the now-matured bonds and pay interest continues today. (Mot. 3.)

Several procedural issues also transpired prior to the filing of this motion to further complicate the matter. On December 21, 2009, Dalton filed for bankruptcy in the United States Bankruptcy Court for the Central District of California, Riverside Branch. (ECF No. 66.) Afterward, Embraceable You moved for default judgment against Bogart on January 5, 2010, because he failed to answer. (ECF No. 74.) On March 5, 2010, the Court stayed the present case pending Dalton's bankruptcy petition in Riverside. (ECF No. 97.) At the same time, the Court denied Embraceable You's default judgment against Bogart without prejudice, deeming it premature because liability as to the other Defendants had yet to be determined. (ECF No. 80.)

By March 7, 2010, the Court had dismissed all Defendants but Dalton and Bogart. (ECF No. 81--84.) On March 11, 2010, the Court lifted the bankruptcy stay on the case, and Embraceable You attempted to ascertain Bogart's true identity. (ECF No. 91.) As of April 22, 2012, Embraceable You was unable to locate Bogart. (ECF No. 92.) After receiving an Order to Show Cause due to failures to file periodic status reports, Embraceable You filed the instant motion for summary judgment on October 22, 2012. (ECF No. 96.)


Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts through admissible evidence that show a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill's Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is "material" where the resolution of that fact might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving and nonmoving parties' versions of events differ, courts are ...

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