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Maksoud v. Guelton

United States District Court, S.D. California

June 9, 2017

CHARBEL MAKSOUD, an individual, Plaintiff,
PHILIPPE GUELTON, an individual;, Defendants.


          Hon. Marilyn L. Huff United States District Judge

         On February 23, 2017, Plaintiff Charbel Maksoud (“Plaintiff”) filed a complaint asserting various causes of action relating to Plaintiff's investment in BT Software and Research, Inc. (Doc. No. 1.) On April 28, 2017, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. No. 16.) The FAC contains nineteen causes of action against eleven named defendants. (Id.) On May 10, 2017, Defendant Solutions IQ, Inc. filed a motion to dismiss the FAC for failure to state a claim. (Doc. No. 19.) On May 10, 2017, Defendants Pillsbury Winthrop Shaw Pittman, LLP and Christian Salaman filed a motion to dismiss for failure to state a claim. (Doc. No. 20.) On May 12, 2017, Defendant Tirrell Payton filed a motion to dismiss for failure to state a claim and failure to join an indispensable party. (Doc. No. 22.) On May 22, 2017, Plaintiff filed responses in opposition to defendants' motions to dismiss. (Doc. Nos. 25-27.) On June 1, 2017, Defendants Pillsbury Winthrop Shaw Pitman, LLP and Christian Salaman filed a reply. (Doc. No. 29.) On June 2, 2017, Defendant Solutions IQ, Inc. filed a reply. (Doc. No. 31.) On June 5, 2017, Defendant Tirrell Payton filed a reply. (Doc. No. 32.)


         These facts are taken from Plaintiff's complaint. (Doc. No. 16.) During the relevant times, Plaintiff resided in Joplin, Missouri. (Id. ¶ 14.) Through his neighbors, Bruce and Schrell Hopkins (“the Hopkins”), Plaintiff was introduced to Defendant Tirrell Payton (“Payton”). Plaintiff was also introduced to Defendant Philippe Guelton (“Guelton”) who owned a marketing company, SheKnows Media, (id. ¶ 15), and Defendant Paul Woodhull (“Woodhull”) and Defendant Shawn Smith (“Smith”) who worked for Momentum Marketing, (id. ¶ 16).

         Payton and the Hopkins were in the process of starting a company named BT Software and Research, Inc. (“BT”). (Id.) Following the incorporation of BT, Plaintiff understood that Bruce Hopkins was the president and Payton was the Chief Executive Officer. (Id. ¶14.) Plaintiff also understood that Guelton was a principal of BT. (Id. at 15.)

         After meeting defendants, Plaintiff alleges he was convinced to invest $250, 000 in BT to help develop an application called “Kaliki, ” intended to be a media platform. (Id. ¶ 19.) Plaintiff was told that Kaliki already had major contacts with automobile manufactures, as well as media conglomerates. (Id. ¶ 20.) In exchange for his $250, 000, Plaintiff was to receive an upfront 2.5% equity interest in BT, which would mature to 7.5% after two years. (Id. ¶ 21.) This amount was based on representations by Bruce Hopkins, Guelton, and Payton that BT had a valuation of $10, 000, 000. (Id. ¶ 21.) Bruce Hopkins and Payton also gave Plaintiff a document showing that a company, AdLarge, had invested additional monies in BT. (Id. ¶¶ 24, 25.) In consummating his investment, Plaintiff signed a Common Stock Purchase Agreement in May 2014. (Id. ¶ 34.)

         Following the investment, Plaintiff worked to create relationships with media companies in an attempt to market and advance Kaliki. Plaintiff also recruited his now deceased brother-in-law, Nadeem Baaklini, to develop a software search engine, OnSay. (Id. ¶ 27.) Plaintiff claims Defendants promised Baaklini would receive a 4% equity in BT and a lifelong salary of $200, 000 per year for the development of OnSay. (Id. ¶ 138.) After Baaklini died, the OnSay project was near completion and Plaintiff is the assignee of all of Baaklini's claims. (Id. ¶ 28-29.)

         Plaintiff alleges that, following his investment, defendants failed to complete their side of the bargain and misused his $250, 000. Plaintiff alleges that, as part of his investment, he was to receive his stock certificates but never did. Plaintiff understood that Defendant Christian Salaman (“Salaman”) and his law firm, Pillsbury Winthrop Shaw Pittman, LLP (“Pillsbury”), were responsible for drafting the documents but never did so. (Id. ¶ 23.) Plaintiff also claims that Payton and his wife, Defendant Susan Payton, misappropriated money from BT and used that money to further Payton's career with Solutions IQ, Inc. (Id. ¶ 31.)

         As of the date of his complaint, Plaintiff claims he never received his shares of BT and BT was ultimately forfeited. (Id. ¶¶ 6, 33.)



         A motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has failed to state a claim upon which relief can be granted. Conservation Force v. Salazar, 646 F.3d 1240, 1241 (9th Cir. 2011). A complaint will survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The pleadings must go beyond “labels and conclusions” and the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A “formulaic recitation of the elements” is not enough. Id.; accord Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

         When reviewing a motion to dismiss, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). The court need not, however, accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Thus, pleadings unsupported by factual allegations are not entitled to a presumption of truth. Id. (“It is the conclusory nature of respondent's allegations . . . that disentitles them to the presumption of truth.”).


         “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Federal courts apply this standard regardless of whether the substantive law is state or federal. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). To satisfy the heightened standard of Rule 9(b), the pleadings must be “specific enough to give defendants notice of the particular misconduct . . . so they can defend against the charge and not just deny that they have done anything wrong.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir. 1993)). Put another way, the pleadings must provide “‘the who, what, when, where, and how' of the misconduct charged.” Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

         The heightened pleading standard of Rule 9(b) applies to all claims “grounded in fraud” and may include claims where fraud is not a required element. Id. at 1103-1104. “Where fraud is not an essential element of a claim, only those allegations of the complaint which aver fraud are subject to Rule 9(b)'s heightened pleading standard.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). If the averment fails to meet the heightened standard, then the Court should disregard the fraud allegations and analyze the sufficiency of the claim only as to the non-fraudulent conduct. Id.


         Plaintiff names Defendant Solutions IQ, Inc. (“Solutions”) in four of his claims: (1) unjust enrichment, (Doc. No. 16 at 7), (2) restitution, (id. at 9), (3) constructive trust (id. at 20), and (4) declaratory relief, (id. at 25). Solutions argues that all of the claims against it should be dismissed because Plaintiff has not met his burden at the pleading stage. (Doc. No. 19-2 at 2.) The Court agrees with Solutions.

         Plaintiff has failed to offer sufficient facts to establish a plausible claim against Solutions. Twombly, 550 U.S. at 570. The FAC provides only one allegation of wrongdoing against Solutions: that Solutions “knowingly and/or negligently accepted funds from [Defendant] Tirrell.” (Doc. No. 16 ¶ 31.) This bare assertion, based solely on Plaintiff's information and belief, is precisely the type of legal conclusion that is not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. And because the FAC provides no other facts to support Plaintiff's claims against Solutions, it does not provide “fair notice of what [Plaintiff's] claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). As such, the Court grants Solutions' motion to dismiss.[1]

         When dismissing a complaint, “leave to amend should be granted unless the district court determines the pleading could not possibly be cured by the allegation of other facts.” Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). In his opposition brief, Plaintiff argues he is able to assert additional facts to cure any deficiency against Solutions. (Doc. No. 26 at 13-14.) Thus, the Court dismisses Plaintiff's claims against Solutions with leave to amend.


         Plaintiff named Defendants Pillsbury Winthrop Shaw Pittman LLP and Christian Salaman (together the “Pillsbury Defendants”) in two of his claims: (1) breach of fiduciary duties of care and loyalty, (Doc. No. 16 at 12), and (2) professional negligence, (id. at 19). The Pillsbury Defendants represented BT as legal counsel during the relevant times. (Id. ¶ 22; see also Doc. No. 20-1 at 4.) As counsel for BT, Plaintiff alleges the Pillsbury Defendants violated their duties to Plaintiff. The Pillsbury ...

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