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Quigley v. American Claims Services, Inc.

United States District Court, E.D. California

March 18, 2015



KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the motion for summary judgment by defendants American Claims Services, Inc. (ACS), John Bannon, Bill T. Johnson, and Susan B. Johnson (collectively, defendants). (Defs.' Mot. Summ. J., ECF No. 51.) The court submitted the matter without a hearing. As explained below, the court DENIES in part and GRANTS in part defendants' motion.


The claims in this case arise out of defendants' alleged unauthorized use of plaintiff's insurance adjuster license in California. Plaintiff is a California licensed insurance adjuster. (ECF No. 13 at 2.) ACS is an insurance claims management company that engaged in the business of adjusting insurance liability claims in California from 2005 to 2013. (Pl.'s Resp. Defs.' Separate Statement Undisputed Facts ¶ 1, ECF No. 61.) John Bannon was ACS's president. (Id. ¶ 2.) Bill Johnson was a shareholder of ACS. (Id. ¶ 3.) Susan Johnson was ACS's chief financial officer. (Id. ¶ 4.)

In February 2006, Mr. Bannon, on behalf of ACS, sent a letter to plaintiff requesting that she become defendants' qualified manager in California by completing a form with the California Department of Insurance (DOI). (ECF No. 39-1 ¶ 4.) ACS made that request because it could not conduct business in California without an organization insurance adjuster license; ACS could obtain an organization insurance adjuster license if it retained a licensed qualified manager in California. ( See id. ¶ 9; see also ECF No. 39-5 at 81.) In the same letter, Mr. Bannon stated he would "make every effort to substitute [himself] for [plaintiff] ASAP." (Ex. 4, ECF No. 38-2.) In return for the use of plaintiff's name and license, ACS agreed to send contract work to plaintiff. (ECF No. 43 ¶ 3; ECF No. 61 ¶ 18.)

Plaintiff agreed and filled out a form with the DOI, thus becoming ACS's qualified manager. (Ex. 5, ECF No. 38-2.) Consequently, the DOI issued a license to ACS, with an effective date of March 2006. (Ex. 6, ECF No. 38-2.) That license included plaintiff's name as a qualified manager. (Id. ) When ACS's license was renewed in July 2008, plaintiff was again named as the designated qualified manager for ACS. (Ex. 8, ECF No. 38-2.) Plaintiff "remained continuously designated as the qualified manager until January 31, 2013, when she was terminated from that organization license." (Id. ) However, for the 2010 and 2012 renewals, defendants did not include plaintiff's name as the qualified manager on the renewal applications; rather, the applications identified Mr. Bannon as ACS's qualified manager. ( See Exs. 9 & 10, ECF No. 38-2.) Plaintiff alleges that she never allowed ACS to use her name and license for such a long time and that she first learned about ACS's alleged unauthorized use on January 8, 2013. ( See ECF No. 38-1 at 3; ECF No. 61 ¶ 25.) At that time, plaintiff sent a letter to Mr. Bannon, noting she had learned about ACS's use and that ACS's use had exceeded her initial authorization's scope. (Ex. 11, ECF No. 38-2.) When plaintiff contacted defendants, defendants did not deny that ACS "continued to list [plaintiff's] name with the [DOI]." (ECF No. 61 ¶ 26.) In February 2013, Mr. Bannon became ACS's qualified manager. (Ex. 1 at 25, ECF No. 38-5.)

The operative complaint makes four claims: (1) misrepresentation and fraud; (2) unfair competition and trade practices; (3) conversion; and (4) misappropriation of name, identity, likeness, and signature. ( See generally Second Am. Compl., ECF No. 14.) On November 5, 2014, this court denied plaintiff's motion for summary judgment on her misappropriation claims. (ECF No. 58.) Defendants now move for summary judgment on all of plaintiff's four claims. (ECF No. 51.) Plaintiff opposes the motion (ECF No. 60), and defendants have replied (ECF No. 69).


Under Federal Rule of Civil Procedure 56(a), a "party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Fed.R.Civ.P. 56(a). A court will grant summary judgment "if... there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).[2]

The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact...." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record...; or show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).

In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

A court may consider evidence as long as it is "admissible at trial." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). "Admissibility at trial" depends not on the evidence's form, but on its content. Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) (citing Celotex Corp., 477 U.S. at 324). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). If the opposing party objects to the proposed evidence, the party seeking admission must direct the district court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible...." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). However, courts are sometimes "much more lenient" with the affidavits and documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).


Defendants make six main arguments. First, defendants contend plaintiff's four claims are barred by the applicable statutes of limitations. (ECF No. 51 at 6-13.) Second, defendants argue Bill Johnson and Sue Johnson are not vicariously liable for any acts in which they did not personally participate. (Id. at 13-14.) Third, defendants maintain plaintiff has no remedy under California Business and Professions Code section 17200, et seq. (UCL). (Id. at 14-17.) Fourth, defendants reason plaintiff's conversion claim cannot proceed because defendants' acts did not interfere with plaintiff's use of her license. (Id. at 17-18.) Fifth, defendants assert plaintiff's misappropriation claim does not apply to the facts of this case because the use of plaintiff's license was for administrative purposes only. (Id. at 18-19.) Finally, defendants say plaintiff cannot recover punitive damages as a matter of law. (Id. at 19-20.)

The court addresses each ...

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