Federal Deposit Insurance Corporation v. Varrasso et al

Filing 116

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 9/30/13 ORDERING that Premier and Bhatti's MOTION for Summary Judgment 103 is, DENIED as to Plaintiff's negligence claim and GRANTED as to Plaintiff's negligent misrepresentation claim. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 FEDERAL DEPOSIT INSURANCE CORPORATION as receiver for INDYMAC BANK, F.S.B., Plaintiff, 14 15 16 17 18 19 20 21 No. CIV. 2:11-2628 WBS CKD MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT v. RICHARD K. VARRASSO doing business as Richard Varrasso and Associates and AppraisalTrust.com, an individual; PREMIER VALLEY, INC. doing business as CENTURY 21 M&M ASSOCIATES, a California corporation; and KAREN BHATTI, an individual, Defendants. 22 23 24 ----oo0oo---Plaintiff Federal Deposit Insurance Corporation 25 (“FDIC”) as receiver for IndyMac Bank, F.S.B. (“IndyMac”) brought 26 this action against defendants Richard K. Varrasso, doing 27 business as Richard Varrasso and Associates and 28 AppraisalTrust.com, Premier Valley, Inc. (“Premier”), doing 1 1 business as Century 21 M&M Associates, and Karen Bhatti, arising 2 out of the sale of two residential properties. 3 that defendants obscured the true value of one of the properties 4 and sold it in a sham transaction to a straw buyer, who defaulted 5 on the purchase loans that plaintiff had later acquired. 6 and Bhatti (collectively, the “moving defendants”) now move for 7 summary judgment. 8 I. Plaintiff alleges Premier Factual and Procedural Background 9 In March 2006, Bhatti, working as an agent for Premier, 10 listed for sale on the Multiple Listing Service (“MLS”) a 11 property located at 2009 Saint Theresa Way in Modesto, California 12 (the “Weisbly property” or “the Property”). 13 (Docket. No. 103-5); Chartrand Decl. Ex. C (“Bhatti Dep.”) at 14 19:24-25:12 (Docket No. 103-3).) 15 behalf of the seller, Alam Singh, for whom she had sold property 16 before. (Bhatti Decl. ¶¶ 1-6 Bhatti listed the Property on (Bhatti Dep. at 14:4-16:5, 31:23-32:23.) 17 On multiple occasions over the next few months, Bhatti 18 relisted the Property at various prices between $449,000.00 and 19 $480,000.00. 20 she received offers for the Property during this period. 21 25:13-21.) 22 (Id. at 23:9-28:3.) Bhatti does not recall whether (Id. at Bhatti eventually enlisted another agent, Sophie 23 Reisiyannejad (also known as “Sophie Nejad”), to help locate a 24 buyer for the Property. 25 Nejad because Nejad had sold several homes in the same 26 neighborhood as the Property for more than $495,000.00 each. 27 (Id.) 28 with Nejad receiving the majority of the commission. (Bhatti Decl. ¶ 4.) Bhatti sought out Bhatti and Nejad agreed to an uneven commission split, 2 (Id.) 1 In October 2006, a purchase agreement was signed to 2 sell the Property to Marissa Weisbly for $499,000.00. (Bhatti 3 Dep. Ex. 5.) 4 lists $499,000.00 as the sale price but lists a $449,000.00 price 5 on the line used to calculate the commission. 6 Statement”).) 7 $13,470.00 in commission and Nejad received $17,960.00. 8 Decl. ¶ 6.) 9 out of the sale proceeds. The HUD-1 Settlement Statement for the purchase (Id. Ex. 7 (“HUD-1 Based on their arrangement, Bhatti received (Bhatti Singh, however, paid Bhatti an additional $25,000.00 (Id. ¶ 7; Bhatti Dep. 37:2-19.) 10 Bhatti explains this was to repay of number of personal loans for 11 thousands of dollars she had made to Singh and his family over 12 the years, but there was no formal note documenting this debt. 13 (Bhatti Decl. ¶ 7; Bhatti Dep. at 37:9-19.) 14 On October 28, 2006, Richard Varrasso conducted an 15 appraisal of the Property, valuing the Property at $520,000.00 16 (Chartrand Decl. Ex. A (“Varrasso Dep.”) Ex. D.) 17 maintains that Bhatti did not have any influence over the 18 appraisal process, although Bhatti did provide Varrasso with the 19 purchase agreement. 20 did not include the required listing history of the property in 21 his appraisal, as he did not receive the listing history from 22 Bhatti and believed the home was new and built or developed by 23 Bhatti’s husband or family. 24 contends that the Property was worth only $400,000.00 as of 25 December 21, 2006. 26 Varrasso (Varrasso Dep. at 45:2-5, 46:6-8.) (Id. at 56:2-24.) Varrasso Plaintiff (Paddock Decl. ¶ 3 (Docket No. 108-5).) Weisbly financed the purchase with two mortgage loans 27 (the “Weisbly loans”) totaling $499,000.00 from Kay-Co 28 Investments, doing business as Pro30 Funding (“Kay-Co”). 3 (Compl. 1 ¶ 11 (Docket No. 1).) 2 payment on the house and does not know who did. 3 Ex. D (“Weisbly Dep.”) at 29:24-30:7.) 4 the Property, Weisbly had no intention of moving into the house 5 or making mortgage payments. 6 financial information and employment history on Weisbly’s loan 7 application were false. 8 9 Weisbly did not pay the $1,000.00 down (Chartrand Decl. At the time she purchased (Id. at 28:5-7, 29:2-5.) The (Id. at 39:8-45:17.) IndyMac subsequently purchased the Weisbly loans from Kay-Co on the secondary market as part of a “bulk acquisition” of 10 multiple loans. 11 23; Gomez Decl. ¶¶ 6-10 (Docket No. 108-1).) 12 failed to make any mortgage payments, IndyMac foreclosed on the 13 Property and ultimately sold it on July 29, 2008, for 14 $140,000.00. 15 52:18.) 16 plaintiff was appointed receiver for IndyMac by the Office of 17 Thrift Supervision. 18 (Chartrand Decl. Ex. B (“Gomez Dep.”) at 14:8After Weisbly (Weisbly Dep. at 46:16-18; Gomez Dep. at 44:8- Plaintiff retained IndyMac’s legal claims after (Compl. ¶ 1.) Plaintiff filed its Complaint in the Northern District 19 of California on July 6, 2011, alleging six claims for relief. 20 That court subsequently transferred the case to the Eastern 21 District of California. 22 moving defendants in its third and fourth causes of action, for 23 negligence and negligent misrepresentation, respectively. 24 (Compl. ¶¶ 33-44.) 25 (Docket No. 24.) The Complaint names On January 21, 2012, the court denied Premier and 26 Bhatti’s motion to dismiss plaintiff’s claims for negligence and 27 negligent misrepresentation and granted in part and denied in 28 part Premier and Bhatti’s motion to strike. 4 (Docket No. 37.) 1 Premier and Bhatti now move for summary judgment or, in the 2 alternative, summary adjudication. 3 II. 4 (Docket No. 103.) Evidentiary Objections On a motion for summary judgment, “[a] party may object 5 that the material cited to support or dispute a fact cannot be 6 presented in a form that would be admissible in evidence.” 7 R. Civ. P. 56(c)(2). 8 does not necessarily have to produce evidence in a form that 9 would be admissible at trial, as long as the party satisfies the Fed. “[T]o survive summary judgment, a party 10 requirements of Federal Rules of Civil Procedure 56.” 11 Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) (quoting Block v. 12 City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001)) 13 (internal quotation marks omitted). 14 party’s evidence is presented in a form that is currently 15 inadmissible, such evidence may be evaluated on a motion for 16 summary judgment so long as the moving party’s objections could 17 be cured at trial. 18 433 F. Supp. 2d 1110, 1119–20 (E.D. Cal. 2006) (Shubb, J.). 19 Fraser v. Even if the non-moving See Burch v. Regents of the Univ. of Cal., Moving defendants raise eight evidentiary objections 20 (Docket No. 110-2), objecting to portions of two declarations 21 submitted by plaintiff on grounds of relevance, materiality, lack 22 of foundation, improper legal opinion or conclusion, and 23 improperly uncertain expert testimony. 24 Objections to evidence on the ground that the evidence 25 is irrelevant, vague and ambiguous, or constitutes an improper 26 legal conclusion are all duplicative of the summary judgment 27 standard itself. 28 can grant summary judgment only when there is no genuine dispute See Burch, 433 F. Supp. 2d at 1119–20. 5 A court 1 of material fact. 2 or without personal knowledge are not facts and can only be 3 considered as arguments, not as facts, on a motion for summary 4 judgment. 5 evidence, lawyers should challenge its sufficiency. 6 on any of these grounds are superfluous, and the court will 7 overrule them. Instead of challenging the admissibility of this 8 9 Statements based on improper legal conclusions Objections Because the court does not rely on any remaining evidence objected to in these declarations, the moving 10 defendants’ remaining objections are overruled as moot. 11 III. Legal Standard 12 Summary judgment is proper “if the movant shows that 13 there is no genuine dispute as to any material fact and the 14 movant is entitled to judgment as a matter of law.” 15 P. 56(a). 16 of the suit, and a genuine issue is one that could permit a 17 reasonable jury to enter a verdict in the non-moving party’s 18 favor. 19 (1986). 20 burden of establishing the absence of a genuine issue of material 21 fact and can satisfy this burden by presenting evidence that 22 negates an essential element of the non-moving party’s case. 23 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 24 Alternatively, the moving party can demonstrate that the non- 25 moving party cannot produce evidence to support an essential 26 element upon which it will bear the burden of proof at trial. 27 Id. 28 Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 The party moving for summary judgment bears the initial Once the moving party meets its initial burden, the 6 1 burden shifts to the non-moving party to “designate ‘specific 2 facts showing that there is a genuine issue for trial.’” 3 324 (quoting then-Fed. R. Civ. P. 56(e)). 4 the non-moving party must “do more than simply show that there is 5 some metaphysical doubt as to the material facts.” 6 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 7 “The mere existence of a scintilla of evidence . . . will be 8 insufficient; there must be evidence on which the jury could 9 reasonably find for the [non-moving party].” 10 Id. at To carry this burden, Matsushita Anderson, 477 U.S. at 252. 11 In deciding a summary judgment motion, the court must 12 view the evidence in the light most favorable to the non-moving 13 party and draw all justifiable inferences in its favor. 14 255. 15 and the drawing of legitimate inferences from the facts are jury 16 functions, not those of a judge . . . ruling on a motion for 17 summary judgment . . . .” 18 IV. 19 20 Id. at “Credibility determinations, the weighing of the evidence, Id. Analysis A. Negligence To prove a cause of action for negligence, a plaintiff 21 must show “(1) a legal duty to use reasonable care, (2) breach of 22 that duty, and (3) proximate cause between the breach and (4) the 23 plaintiff’s injury.” 24 App. 4th 1333, 1339 (2d Dist. 1998). Mendoza v. City of Los Angeles, 66 Cal. 25 1. Duty 26 “The existence of a legal duty to use reasonable care 27 in a particular factual situation is a question of law for the 28 court to decide.” Vasquez v. Residential Invs., Inc., 118 Cal. 7 1 App. 4th 269, 278 (4th Dist. 2004). 2 defendants’ motion to dismiss, the court previously rejected the 3 moving defendants’ contention that they owed no duty to 4 plaintiff. 5 The moving defendants again raise the issue of duty, but neither 6 cite new precedent nor identify facts sufficient to disturb the 7 court’s previous determination. 8 9 In denying the moving (Jan. 23, 2012 Order at 10:27—11:1 (Docket No. 37).) As the court previously noted, a real estate agent owes a duty to deal fairly and honestly with all parties in a 10 transaction, Nguyen v. Scott, 206 Cal. App. 3d 725, 736 (1st 11 Dist. 1988), as well as a general duty to third parties in 12 certain factual situations. 13 Invs., Inc. v. Praszker, 220 Cal. App. 3d 35, 42-43 (1st Dist. 14 1990) (applying a five-factor test to determine broker liability 15 to third parties). 16 party to the transaction, a duty to act fairly and honestly in 17 the transaction. 18 Kay-Co, it may sue to enforce that duty. 19 of Fresno, 111 Cal. App. 4th 1087, 1096 (5th Dist. 2003) (“The 20 assignment merely transfers the interest of the assignor. 21 assignee ‘stands in the shoes’ of the assignor, taking [its] 22 rights and remedies . . . .” (citations omitted)).1 See Norman I. Krug Real Estate Here, the moving defendants owed Kay-Co, a Because plaintiff now “stands in the shoes” of See Johnson v. County The Moving 23 The moving defendants contend that recognizing a duty to plaintiff would subject real estate brokers to “ongoing duties” to third party strangers after transactions have closed. (See Defs.’ Mem. at 13:9-24 (Docket No. 103-1).) The duty at issue here is not “ongoing” but rather stems directly from the transaction. Plaintiff alleges wrongdoing “in creating the Purchase Contract and failing to disclose information to Kay-Co. before the transaction closed.” (Pl.’s Mem. of P. & A. at 12:1516 (Docket No. 108-1).) Plaintiff does not argue that moving 8 1 24 25 26 27 28 1 defendants, therefore, are not entitled to summary judgment on 2 the ground that they did not owe a duty to plaintiff. 3 2. Breach 4 “Ordinarily, the issues of breach and causation are 5 questions of fact for the jury.” 6 of Porterville, 801 F. Supp. 2d 965, 990 (E.D. Cal. 2011) (Ishii, 7 J.) (citing Lindstrom v. Hertz Corp., 81 Cal. App. 4th 644, 652 8 (2d Dist. 2000)). 9 there is insufficient evidence, a defendant’s lack of negligence 10 11 J.P. ex rel. Balderas v. City “However, in an appropriate case in which may be determined on summary judgment.” Id. Although they primarily contest the elements of duty, 12 causation, and damages, the moving defendants essentially argue 13 that there are no facts establishing a dispute about whether 14 Bhatti failed to act fairly and honestly in the transaction. 15 moving defendants assert they “had absolutely nothing to do with” 16 the fraud of Weisbly, who was represented by her own real estate 17 agent, Nejad. 18 Bhatti testified she did not know Weisbly and had not interacted 19 with Nejad prior to selling the Weisbly property. 20 at 14:2-3, 29:19-24.) 21 she received in additional commission from the sale was to pay 22 off a previous debt owed her by Singh, the seller, who was the 23 priest at Bhatti’s church. 24 (Defs.’ Mem. at 10:3-5.) During her deposition, (Bhatti Dep. Bhatti also testified that the $25,000.00 (Bhatti Dep. at 37:9-19.) Considering the evidence in the light most favorable to 25 plaintiff, however, there are questions of fact as to whether 26 Bhatti, who owed the lender a duty to act fairly and honestly, 27 28 The defendants breached a duty long after escrow closed or after defendants’ duties to their own client ended. 9 1 knew or should have known that the sale was not legitimate. 2 best, a jury could reasonably infer that, given Bhatti’s previous 3 inability to sell the Property for several months at a lower 4 listing price, (Bhatti Dep. at 23:9-28:3), Bhatti should have 5 known the Property was overvalued and there was a possibility 6 that Weisbly was not a legitimate purchaser. 7 At At worst, a jury could infer from Bhatti’s commission 8 based on the undocumented loan to the seller that Bhatti had a 9 substantial stake in making the sale, (Bhatti Dep. at 37:14-19), 10 and may have influenced or intentionally withheld information 11 from the Varrasso appraisal to ensure a high price. 12 Dep. at 56:2-24.) 13 transaction from the price discrepancy on the HUD-1 Statement, as 14 although moving defendants contend this was a scrivener’s error, 15 plaintiff argues such a mistake is “highly irregular.” 16 (Deutscher Decl. ¶ 5 (Docket No. 108-4).) 17 (Varrasso A jury could also infer dishonesty in the These inferences and credibility determinations are 18 best left for the jury to decide. See Anderson, 477 U.S. at 255. 19 Plaintiff, therefore, has established genuine issues of material 20 fact on the element of breach. 21 3. Causation 22 To show causation, a plaintiff must prove: “(1) that 23 the defendant’s breach of duty (his negligent act or omission) 24 was a substantial factor in bringing about the plaintiff’s harm 25 and (2) that there is no rule of law relieving the defendant of 26 liability.” 27 481 (2d Dist. 1996). 28 related issues involve questions of fact, unless reasonable Leslie G. v. Perry & Assocs., 43 Cal. App. 4th 472, Under California law, the basic causation- 10 1 persons will not dispute the absence of causality. 2 United States, 228 F.3d 944, 953 (9th Cir. 2000) (citing 3 Constance B. v. State of California, 178 Cal. App. 3d 200, 207-08 4 (3d Dist. 1986)). 5 of whether the actor’s conduct “was a substantial factor in 6 bringing about the plaintiff’s harm is open to reasonable 7 difference of opinion.” 8 quotations omitted). 9 Vickers v. Summary judgment is improper if the question Id. at 954 (internal citations and Plaintiff ultimately seeks damages from the Property 10 being overvalued and the loan being under-secured. 11 offers two arguments causally connecting the moving defendants’ 12 wrongdoing to plaintiff’s harm. 13 Plaintiff First, plaintiff contends that Bhatti sold the Property 14 above its actual value. 15 disclosed the true value of the property, plaintiff argues, Kay- 16 Co. would have never funded the loans. 17 more fundamental level, had Bhatti not sought out Nejad or 18 approved the sale to Weisbly, the transaction would not have 19 taken place to begin with. 20 (Pl.’s Opp’n at 8:18-22.) Had Bhatti (Id. at 9:2-6.) At a (Id. at 8:23-9:3.) Second, plaintiff contends Bhatti’s nondisclosure 21 regarding the Property’s true value enabled IndyMac to purchase 22 the loans. 23 loans on the secondary market as part of a bulk package of 24 residential mortgage loans with a maximum loan-to-value ratio. 25 (Gomez Decl. ¶¶ 7-10.) 26 “data points” including the purchase price, along with Varrasso’s 27 appraisal, allegedly influenced by Bhatti. 28 16, 25:11-19.) According to plaintiff, IndyMac purchased the Weisbly The loan purchase considered a number of (Gomez Dep. at 22:9- Plaintiff argues that if the purchase price had 11 1 more accurately reflected the value of the Property, IndyMac 2 would not and could not have purchased the loans, given that the 3 loans would have been under-secured according to IndyMac’s 4 formula. 5 (Gomez Decl. ¶ 11.) Based on these facts and inferences, whether the moving 6 defendants’ negligence in making the sale was a “substantial 7 factor” in causing the lender to suffer losses on the purchase 8 loan is not beyond “reasonable difference of opinion.” 9 228 F.3d at 954. 10 Vickers, Moving defendants, therefore, are not entitled to summary judgment on the issue of causation. 11 4. Damages 12 The moving defendants’ final argument, that plaintiff 13 did not suffer damages, fails because the argument relies on the 14 Varrasso appraisal valuing the Property at $520,000.00. 15 Mem. at 7:25-8:7.) 16 Varrasso appraisal valued the Property at $520,000.00, the 17 Property was worth more than the loans purchased by IndyMac at 18 $499,000.00, and thus IndyMac suffered no loss from the 19 transaction. 20 the Varrasso appraisal is a factual question at issue in this 21 case. 22 at $400,000.00).) 23 establish that plaintiff did not suffer damages as a matter of 24 law.2 25 Moving defendants also argue that plaintiff’s damages were partly the result of market conditions, which resulted in a decline in residential property values across the region. (Defs.’ Mem. at 8:8-25.) Other courts invited to follow this line of reasoning have declined to do so. See F.D.I.C. v. Van Dellen, No. CV 10-4915 DSF (SHx), 2012 WL 4815159, at *10 (C.D. 12 26 27 28 (Defs.’ Moving defendants contend that because the (Id.) This ignores, however, that the accuracy of (See Paddock Decl. ¶ 3 (valuing the Property in late 2006 2 The Varrasso appraisal is insufficient to 1 Accordingly, because a disputed issue of material fact 2 remains with respect to whether Bhatti breached her duty to act 3 fairly and honestly in the transaction, and whether that breach 4 caused damages to plaintiff, the court will deny the moving 5 defendants’ motion for summary judgment on plaintiff’s negligence 6 claim. 7 B. Negligent Misrepresentation 8 The elements of negligent misrepresentation are: (1) 9 the misrepresentation of a past or existing material fact, (2) 10 without reasonable ground for believing it to be true, (3) with 11 intent to induce another’s reliance on the fact misrepresented, 12 (4) justifiable reliance on the misrepresentation, and (5) 13 resulting damage. 14 Partners, LLC, 158 Cal. App. 4th 226, 243 (2d Dist. 2007). 15 “Liability for negligent misrepresentation must flow from an 16 assertion of material fact, not from an implied representation or 17 nondisclosure.” 18 1413 KJM AC, 2013 WL 1310589, at *4 (E.D. Cal. Mar. 28, 2013) 19 (citing Yanase v. Auto. Club of So. Cal., 212 Cal. App. 3d 468, 20 473 (4th Dist. 1989)). 21 22 Apollo Capital Fund, LLC v. Roth Capital Wilson v. Household Fin. Corp., No. CIV S-12- Plaintiff originally contended that Bhatti misrepresented the purchase price of the Property as $499,000.00, 23 24 25 26 27 28 Cal. Oct. 5, 2012) (“While evidence on the subject of the economic downturn is admissible, the downturn is not a ‘superseding cause.’ The focus of this action is Defendants’ conduct at the time the loans were made.”). This argument fails to establish that plaintiff did not suffer damages attributable to the moving defendants. The court accordingly declines to take judicial notice of various economic figures offered by the moving defendants. (See Req. for Judicial Notice (Docket No. 103-6).) 13 1 and that the true purchase price was some lower amount. 2 Compl. at ¶¶ 40-43.) 3 the purchase price of the Property was $499,000.00. 4 to Defs.’s Separate Stmt. of Undisputed Facts ¶ 20 (Docket No. 5 108-1).) 6 representations in creating the Purchase Contract and failing to 7 disclose information to Kay-Co before the transaction closed.” 8 (Pl.’s Mem. at 12:15-16.) 9 (See Plaintiff no longer disputes, however, that (Pl.’s Resp. Plaintiff instead argues that “Bhatti made the Other than the purchase contract, which plaintiff 10 contends generally represented the sale as a legitimate 11 transaction, plaintiff does not identify a particular affirmative 12 misrepresentation by Bhatti or Premier. 13 plaintiff’s case is that “Weisbly’s fraudulent purchase of the 14 Property was only possible because of Bhatti’s failure to 15 disclose” that the Property was overvalued and under-secured and 16 that “Indymac was damaged as a direct and proximate result of 17 Bhatti’s omissions.” 18 see also id. at 9:2-3 (“Bhatti never disclosed to Kay-Co that the 19 ultimate purchase price well exceeded the known value of the 20 Property.”); id. at 11:19-21 (“[H]ad Defendants accurately 21 disclosed that the Property’s known value was less than the 22 amount in the Purchase Contract, the Loans could not have been 23 sold to IndyMac in the first instance . . . .”).) 24 Rather, the heart of (Pl.’s Opp’n at 4:21-24 (emphasis added); Although plaintiff suggested at oral argument that 25 defendants affirmatively misrepresented the value of the 26 Property, no documents support this contention. 27 plaintiff comes to an affirmative representation of value is the 28 purchase price, which, as discussed above, plaintiff admits was 14 The closest 1 accurate. 2 that the transaction was legitimate. 3 negligent misrepresentation] does not apply to implied 4 representations.” 5 Wilson, 2013 WL 1310589, at *4. 6 fails because implication or omission cannot form the basis of an 7 action for negligent misrepresentation. 8 plaintiff has failed to establish a triable issue with respect to 9 its negligent misrepresentation claim, the court will grant 10 moving defendants’ motion for summary judgment that claim. 11 At most, the purchase contract impliedly represented However, “the doctrine [of Yanase, 212 Cal. App. 3d at 473; see also Plaintiff’s claim therefore Accordingly, because IT IS THEREFORE ORDERED that Premier and Bhatti’s 12 motion for summary judgment be, and the same hereby is, DENIED as 13 to plaintiff’s negligence claim and GRANTED as to plaintiff’s 14 negligent misrepresentation claim. 15 Dated: September 30, 2013 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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