Lopes et al v. Vieira et al

Filing 311

ORDER GRANTING Motion for Summary Judgment by defendant Downey Brand LLP against Plaintiff Antonio Estevam, signed by Judge Oliver W. Wanger on 10/12/2010. (Kusamura, W)

Lopes et al v. Vieira et al

Doc. 311

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J A M E S R. KIRBY II (SBN 088911) S E G A L & KIRBY LLP 7 7 0 L Street, Suite 1440 S a c ra m e n to , CA 95814 T e le p h o n e : [phone] F a c s im ile : [phone] A tto rn e ys for Defendant DOW N E Y BRAND LLP

5 6 U N IT E D STATES DISTRICT COURT 7 E A S T E R N DISTRICT OF CALIFORNIA 8 F R E S N O DIVISION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 D e fe n d a n ts 25 26 27 28 / Defendant Downey Brand LLP (Downey Brand or the firm) has moved for s u m m a ry judgment on all causes of action asserted against the firm by Plaintiff A n to n io Estevam (Estevam).
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M A N U E L LOPES and MARIANA L O P E S , dba LOPES DAIRY; R A Y M O N D LOPES; JOSEPH L O P E S and MICHAEL LOPES, in d ivid u a lly and dba W E S T S ID E H O L S T E IN ; ALVARO M A C H A D O and TONY ESTEVAM, P la in tiffs , vs .

C A S E NO. 1:06-CV-01243-OW W -S M S

O R D E R GRANTING MOTION FOR S U M M AR Y JUDGMENT BY DEFENDANT D O W N E Y BRAND LLP AGAINST P L AIN T IF F ANTONIO ESTEVAM

G E O R G E VIEIRA; MARY V IE IR A ;C A L IF O R N IA MILK J u d g e Oliver W. Wanger M A R K E T , a California Corporation; V A L L E Y GOLD, LLC, a California L im ite d Liability Company; GENSKEM U L D E R , LLP a California Limited L ia b ility Partnership; ANTHONY C A R Y ; DOW N E Y BRAND LLP, a C a lifo rn ia Limited Liability P a rtn e rs h ip ; CENTRAL VALLEY D A IR Y M E N , INC. a California Food a n d Agricultural Nonprofit C o o p e ra tive Association, and DOES 1 through 25, inclusive,

Dockets.Justia.com

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E s te v a m asserts claims against Downey Brand for alleged violations of 15 U .S .C . §78j(b) and Securities and Exchange Commission Rule 10b-5 (Fourth C a u s e of Action) and California Corporations Code Section 54000(d) (Fifth Cause o f Action) as well as common law claims for negligence, intentional m is re p re s e n ta tio n and negligent misrepresentation (Sixth through Eighth Causes o f Action). Second Amended Complaint at 30: 2 - 43: 12. Downey Brand's m o tio n is granted on all causes of action for the following reasons: T h e Court finds it is undisputed that Estevam did not purchase a security. Downey Brand's Undisputed Fact (DBUF) 2. Because he did not purchase a s e c u rity , Estevam cannot establish his federal or state securities fraud claims. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 735-736 (1975); K a m e n v. Lindly, 94 Cal.App.4th 197, 206 (2001). A s to Estevam's common law claims, the Court finds Estevam has failed to c re a te triable issues and the following facts are undisputed: Downey Brand never re p re s e n te d Central Valley Dairymen, Inc. (CVD), the cooperative to which E s te va m belonged, DBUF 1; Estevam did not read any of the documents a s s o c ia te d with the Valley Gold offering to investors or those prepared by Valley G o ld 's accountants, DBUF 3; and he never retained Downey Brand to represent h im nor has he ever spoken to, or heard anything said by, a Downey Brand a tto rn e y, DBUF 4. E s te v a m submits no evidence Downey Brand intended, or had reason to e xp e c t, that any misrepresentation concerning Valley Gold would be repeated and a c te d upon by a person who did not invest in Valley Gold. Nor does Estevam p re s e n t evidence that his friends upon whom he says he relied were acting as his a g e n ts . Assuming for purposes of this motion that Estevam has placed in issue a n "indirect representation" cause of action, he submits no evidence to establish th e necessary elements of such a claim. See Lovejoy v. AT&T Corp., 92 Cal.App. 4 th 85, 94 (2001).
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D o w n e y Brand did not have an attorney-client relationship with Estevam g ivin g rise to a duty to disclose facts nor did the firm represent CVD. See g e n e ra lly Fox v. Pollack, 181 Cal.App. 3d 954, 960-61(1986). Downey Brand's re p re s e n ta tio n of Valley Gold, an entity, did not create an attorney-client re la tio n s h ip between Downey Brand and Estevam giving rise to a duty to disclose. See, e.g., La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court, 121 C a l.A p p .4 th 773, 784 (2004); Cal. R. Professional Conduct 3-600(E). T h e re fo re , for the reasons set forth in more particular in the Court's S e p te m b e r 27, 2010 Memorandum of Decision IT IS HEREBY ORDERED THAT: D o w n e y Brand's motion for summary judgment against Plaintiff Antonio E s te va m on the Second Amended Complaint is GRANTED.

SO ORDERED.

D a te d : October 12, 2010

/s / OLIVER W . W A N G E R U n ite d States District Judge

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