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Michael J. Fitzpatrick v. Brian Fitzpatrick

May 6, 2013


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


On May 8, 2013, this court held a hearing on defendants' motions to dismiss. Plaintiff Michael Fitzpatrick appeared in pro per. Danning Jaiang appeared for defendant Gold Mountain Winery, Inc. Douglas Roeca appeared for defendants Brian and Dianne Fitzpatrick. On review of the motions, the documents filed in support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


The complaint, filed December 5, 2012, is factually sparse, but does allege that beginning in 1974 plaintiff "participated in a series of investments, both as Partner and Creditor, involving Defendants Brian and Dianne Fitzpatrick." Compl. ¶ 5. Plaintiff appears to allege that he loaned an unspecified amount of money on unspecified dates to Brian and Dianne -- presumably for business purposes -- with the belief or understanding that "in the end," and despite poor accounting, he would be repaid. Instead, plaintiff claims that Brian and Dianne conspired with Gold Mountain Winery in 2011 to sell the Fitzpatrick Winery and the Fitzpatrick Lodge without plaintiff's knowledge and/or consent. Plaintiff now seeks a return on his investments in the amount of $1,000,000.

Plaintiff brings this diversity action against Brian and Dianne for breach of an implied contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, fraud, theft by deception, constructive trust, and unjust enrichment. As to Gold Mountain Winery, plaintiff claims that this entity conspired with Brian and Dianne to defraud plaintiff of his recorded interest in the wine inventory of Fitzpatrick Winery "as well as other acts." Compl. ¶ 13.

On February 27, 2013, defendants Brian and Dianne filed a motion to dismiss or, in the alternative, motion for more definite statement, to which defendant Gold Mountain Winery filed a joinder. Despite the joinder, Gold Mountain Winery filed its own motion to dismiss on March 15, 2013.


The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).


In their respective motions, the defendants seek dismissal on the ground that plaintiff's bare complaint fails to state a claim as to any of them.*fn1 The defendants argue that plaintiff's claims are so vague that they fail to meet even the liberal pleading standards of Federal Rule of Civil Procedure 8(a)(2), which "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). For the reasons set forth below, the court agrees. Accordingly, plaintiff's complaint will be dismissed. In his opposition to both motions, plaintiff sets forth substantial, specific facts that leads the court to conclude that leave to amend should be granted.

A. Fraud

Plaintiff alleges that all defendants defrauded plaintiff out of his unspecified shares of the Fitzpatrick Winery and Lodge and/or his share in the wines produced and sold by the Fitzpatrick Winery and Lodge after transfer to the Gold Mountain Winery.

The elements of a California fraud claim are: (1) misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of the falsity (or "scienter"); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Lazar v. Superior Court, 12 Cal. 4th 631, 638 (Cal. 1996). "[T]o establish a cause of action for fraud a plaintiff must plead and prove in full, factually and ...

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