United States District Court, S.D. California
ART COHEN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
DONALD J. TRUMP, Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
[ECF NO. 180]
Hon.
Gonzalo P. Curiel United States District Judge
Before
the Court is Defendant Donald J. Trump’s
(“Defendant”) motion for summary judgment.
Defendant’s Motion for Summary Judgment, or in the
Alternative, Partial Summary Judgment (“Def.
Mot.”), ECF No. 180. The motion has been fully briefed.
See Plaintiff’s Response in Opposition to
Defendant’s Motion for Summary Judgment, or in the
Alternative, Partial Summary Judgment (“Pl.
Resp.”), ECF No. 220; Defendant’s Reply in
Support of Motion for Summary Judgment or, in the
Alternative, Partial Summary Judgment (“Def.
Reply”), ECF No. 248. A hearing on the motion was
conducted on July 22, 2016. ECF No. 263.
Upon
consideration of the moving papers, oral argument, and the
applicable law, and for the following reasons, the Court
DENIES Defendant’s motion.
FACTUAL
BACKGROUND
A.
Defendant Donald J. Trump
Defendant
is a real estate magnate, television personality, and author.
In 2004, Defendant helped found Trump University
(“TU”), a private, for-profit entity offering
real estate seminars and purporting to teach
Defendant’s “master strategies” for real
estate success. Pl. Resp., Ex. E, at 242, 244-50; see
also Id. at 191-241. TU began with web-only content in
2005, and shifted to live events in 2007. Plaintiff’s
Response to Defendant’s Separate Statement of
Undisputed Facts ¶ 13 (“Pl. SSUF”), ECF No.
220-10; Trump Dep. 193:12-18, Def. Mot., Ex. 2.[1]
For
TU’s live events, consumers were first invited to a
ninety-minute Free Preview, which was preceded by an
orchestrated marketing campaign using mailed invitations and
TU website, radio, and newspaper advertising. See
Pl. Resp., Exs. E-F. For example, consumers were sent
“Special Invitation[s] from Donald J. Trump”
which included a letter signed by Defendant that stated
“[m]y hand-picked instructors and mentors will show you
how to use real estate strategies.” Pl. Resp., Ex. F.
Newspaper advertisements displayed a large photograph of Mr.
Trump, stating “[l]earn from Donald Trump’s
handpicked expert, ” and quoted Mr. Trump as saying:
“I can turn anyone into a successful real estate
investor, including you.” Pl. Resp., Ex. E, at 191-207.
Similarly, other advertisements displayed large photographs
of Mr. Trump and included statements such as “Learn
from the Master, ” “The next best thing to being
his Apprentice, ” and “Nobody on the planet can
teach you how to make money in real estate better than I
can.” Pl. Resp., Ex. E, at 242, 244-50; Ex. T, at
321-22. Further, TU advertisements utilized various forms of
recognizable signs associated with accredited academic
institutions, such as a “school crest” used on TU
letterhead, presentations, promotional materials and
advertisements, see Pl. Resp., Exs. E, F, I, L, P,
as well as language comparing TU with such institutions,
see Main Promotion Video, Pl. Resp., Ex. L
(“We’re going to teach you better than the
business schools are going to teach you and I went to the
best business school.”); TU Marketing Guidelines, Pl.
Resp., Ex. P, TU-DONNELLY0000016-17 (describing the
“Trump University Community” as including
“Staff, ” “Faculty, ”
“Instructors, ” and “Program Directors
(Trump University’s Admissions Department)”;
including under “Catch Phrases/Buzz Words”
“Ivy League Quality, ” and under
“Tone” “Thinking of Trump University as a
real University, with a real Admissions process-i.e., not
everyone who applies, is accepted”; and encouraging TU
employees to “[u]se terminology such as”
“Enroll, ” “Register, ” and
“Apply”).
Plaintiffs
have provided evidence that Defendant reviewed and approved
all advertisements. Trump Dep. 279:18-280:16, Pl. Resp., Ex.
D; Bloom Dep. 73:3-74:2, Pl. Resp., Ex. H.
At the
beginning of each Free Preview, a promotional video was
played in which Defendant stated:
We’re going to have professors and adjunct professors
that are absolutely terrific. Terrific people, terrific
brains, successful. . . . The best. We are going to have the
best of the best and honestly if you don’t learn from
them, if you don’t learn from me, if you don’t
learn from the people that we’re going to be putting
forward-and these are all people that are handpicked by
me-then you’re just not going to make in terms of the
world of success. . . . we’re going to teach you better
than the business schools are going to teach you and I went
to the best business school.
Main Promotion Video, Pl. Resp., Ex. L.
Individuals
were then invited to attend a $1, 495 Fulfillment Seminar.
Compl. 15, ECF No. 1. Those who paid for the Fulfillment
Seminar were allegedly promised a three-day seminar and one
year of expert interactive support. Id. at 20.
After
the Fulfillment Seminar, individuals were invited to sign up
for the Trump Elite Program for up to $34, 995. Id.
Elite Program participants were allegedly promised unlimited
mentoring for an entire year. Id. at 21.
B.
Plaintiff Art Cohen
Plaintiff
Art Cohen (“Plaintiff”) is a businessman and
resident of the state of California. Compl. 4. Plaintiff
alleges learning about Trump University from a 2009 San Jose
Mercury News advertisement. Id. Plaintiff alleges
receiving a “special invitation” by mail to
attend a Trump University seminar. Id. Drawn in by
Defendant’s name and reputation as a real estate
expert, Plaintiff attended a free preview event. Id.
Plaintiff then paid $1, 495 to Trump University to attend a
three-day real estate retreat, where he subsequently
purchased a “Gold Elite” program for $34, 995.
Id. at 5.
Plaintiff
avers that he would not have paid for any of the TU programs
had he known that Defendant had not handpicked the TU
instructors, and/or that TU was not a
“university.” Id.; see also
Cohen Dep., 150:9-151:17, 151:20-152:9, Def. Mot., Ex. 10.
PROCEDURAL
BACKGROUND
On
October 18, 2013, Plaintiff filed a complaint alleging a
single cause of action for mail and wire fraud in violation
of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962(c). Compl. On the
same day, Plaintiff filed a “notice of related
case” requesting that the case be transferred to the
undersigned Judge because the present action is related to
Low v. Trump University, LLC, No. 10-cv-940-GPC-WVG.
ECF No. 3.[2]
On
February 21, 2014, the Court denied Defendant’s motion
to dismiss. ECF No. 21. On November 27, 2014, the Court
granted Plaintiff’s motion for class certification. ECF
No. 53. The Court noted that Plaintiff’s “theory
of recovery under RICO is that Defendant committed
‘fraud and racketeering’ by marketing Trump
University ‘Live Events’ as an institution with
which he was integrally involved as well as ‘an actual
university with a faculty of professors and adjunct
professors.’” Id. at 5-6 (citation
omitted). The Court certified the following class:
All persons who purchased Live Events from Trump University
throughout the United States from January 1, 2007 to the
present.[3]
Id. at 22-23.
On
September 21, 2015, the Court granted in part and denied in
part Plaintiff’s motion for approval of class notice
and directing class notice procedures. ECF No. 130;
Low, ECF No. 419. On November 15, 2015, the opt-out
period expired. See Id. at 11.
On
April 22, 2016, Defendant filed the instant motion. Def.
Mot., ECF No. 180.[4] On June 3, 2016, Plaintiff responded. Pl.
Resp., ECF No. 220. On June 17, 2016, Defendant replied. Def.
Reply, ECF No. 248. A hearing on the motion was held on July
22, 2016. ECF No. 263.
LEGAL
STANDARD
Federal
Rule of Civil Procedure 56 empowers the Court to enter
summary judgment on factually unsupported claims or defenses,
and thereby “secure the just, speedy and inexpensive
determination of every action.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment
is appropriate if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c). A
fact is material when it affects the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The
moving party bears the initial burden of demonstrating the
absence of any genuine issues of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this burden by demonstrating that the nonmoving party
failed to make a showing sufficient to establish an element
of his or her claim on which that party will bear the burden
of proof at trial. Id. at 322-23. If the moving
party fails to bear the initial burden, summary judgment must
be denied and ...