Singh v. Pooni et al

Filing 28

ORDER signed by Judge John A. Mendez on 3/6/15 GRANTING in part and DENYING in part 18 Motion to Dismiss. Amended complaint die within 20 days. Defendants' responsive pleading due within 20 days thereafter. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BUTA SINGH,

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2:14-cv-02146 JAM DAD

Plaintiff,

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No.

v.
HARMINDER S. POONI, RAVINDER
KAUR, and PAN-AM TRANSPORT,
INC., a Kansas corporation,

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ORDER GRANTING IN PART, AND
DENYING IN PART, DEFENDANTS’
MOTION TO DISMISS

Defendants.

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Defendants Harminder Pooni (“Defendant Pooni”), Ravinder

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Kaur Kalarai (“Defendant Kaur”), and Pan-Am Transport, Inc.

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(“Defendant Pan-Am”) (collectively, “Defendants”) move to

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dismiss (Doc. #18) Plaintiff Buta Singh’s (“Plaintiff”)

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complaint (Doc. #2).

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#22) and Defendants filed a reply (Doc. #25).

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reasons, Defendants’ motion is granted in part and denied in

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part. 1

Plaintiff opposes Defendants’ motion (Doc.
For the following

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for February 11, 2015.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

In 2012, Plaintiff purchased a 2005 Hummer H2.

Compl. ¶ 4.

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Over the next two years, he made a number of modifications to

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the vehicle, including the installation of a $10,000 sound

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system and a conversion to right-hand drive.

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Plaintiff alleges that “the purpose of these upgrades was to

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increase its market value in the European and Indian markets.”

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Compl. ¶ 4.

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Compl. ¶ 4.

In June 2014, Plaintiff and Defendant Pooni “agreed that

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Pooni would broker the sale of the vehicle on behalf of

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[Plaintiff.]”

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Defendant Pooni a commission of approximately $35,000 for a

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successful sale.

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Defendant Pooni possession of the vehicle and partially complete

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the bill of sale, to facilitate the eventual sale of the Hummer.

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Compl. ¶ 5.

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“made repeated false representations that he was actively

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engaged in attempting to locate a buyer for the vehicle.”

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Compl. ¶ 6.

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Compl. ¶ 5.

They agreed that Plaintiff would pay

Compl. ¶ 5.

Plaintiff agreed to give

Over the next few months, Defendant Pooni allegedly

Plaintiff alleges that Defendant Pooni and his daughter

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(erroneously identified as Pooni’s wife in the complaint),

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Defendant Kaur, “illicitly transferred title into their own name

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in the State of Kansas.”

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Defendant Pooni and Defendant Kaur “fraudulently and illicitly

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completed the bill of sale document . . . to indicate they

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themselves were the buyers, and that the purchase price was

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seventeen thousand dollars in cash,” despite the fact that “no

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cash ever changed hands.”

Compl. ¶ 6.

Compl. ¶ 7.
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He further alleges that

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Plaintiff alleges that Defendant Pooni “is the majority

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shareholder” of Defendant Pan-Am, which is “an overland trucking

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company based in Shawnee, Kansas.”

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Compl. ¶ 8.

On September 15, 2014, Plaintiff filed the complaint in

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this Court.

The complaint includes the following causes of

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action: (1) unlawful conversion; (2) theft by false pretenses;

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(3) breach of contract; (4) unfair business practices in

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violation of the California Unfair Competition Law (“UCL”); and

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(5) claim and delivery.

On September 16, 2014, Plaintiff filed

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an ex parte application for a writ of possession of the Hummer,

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which was subsequently granted by the Court.

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II.

OPINION

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A.

Judicial Notice

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Defendants request that the Court take judicial notice

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(Doc. #19) of several documents which are already part of the

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record in this case: (1) the Complaint; (2) Plaintiff’s

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declaration in support of his opposition to Defendants’ motion

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to quash the writ of possession; (3) the exhibits to Plaintiff’s

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declaration in support of his opposition to Defendants’ motion

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to quash the writ of possession; and (4) Plaintiff’s declaration

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in support of his application for a writ of possession.

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Court notes that it can only take judicial notice of the

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existence of these documents, not the facts contained therein.

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Regardless, these documents are already on the docket in this

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case, and Defendants’ request is DENIED as unnecessary.

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The

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B.

Analysis

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Personal Jurisdiction

Defendants argue that the Court does not have personal

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jurisdiction over Defendant Kaur or Defendant Pan-Am.

Mot. at

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3.

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purposely availed themselves of the benefits of the laws of

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California, such that personal jurisdiction over them does not

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exist.

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Am are subject to personal jurisdiction in California because of

Specifically, Defendants argue that neither Kaur nor Pan-Am

Mot. at 4-5.

Plaintiff responds that both Kaur and Pan-

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their actions relating to the purported sale of the Hummer.

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Opp. at 6.

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A federal district court has personal jurisdiction over a

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nonresident defendant in a diversity of citizenship case where

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(1) a state statute of the forum confers personal jurisdiction

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over the nonresident defendant and (2) the exercise of

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jurisdiction accords with federal constitutional principles of

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due process.

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(9th Cir. 1984).

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410.10 of the California Code of Civil Procedure permits the

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exercise of jurisdiction to the extent authorized by the

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Constitution of the United States.

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the second, constitutional requirement, the “basic federal rule

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is that the defendant must have certain minimum contacts with

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the forum such that the maintenance of the suit does not offend

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traditional notions of fair play and substantial justice.”

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at 1392.

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in determining whether specific personal jurisdiction exists

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over a defendant:

Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1392
With regard to the first requirement, section

Id. at 1392.

With regard to

Id.

The Ninth Circuit has adopted the following approach

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(1) The nonresident defendant must do some act or
consummate some transaction with the forum or perform
some act by which he purposefully avails himself of
the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws. (2) The claim must be one which arises out of or
results from the defendant's forum-related activities.
(3) Exercise of jurisdiction must be reasonable.

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Id. at 1393.

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Accordingly, Plaintiff must demonstrate that both Defendant Kaur

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and Defendant Pan-Am purposely availed themselves of the

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privilege of conducting activities in California, and that this

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matter arises out of that California-related activity.

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Plaintiff, as the party seeking to invoke federal jurisdiction,

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has the burden of establishing that personal jurisdiction over

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Defendants exists.

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only a prima facie showing of jurisdictional facts through the

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submitted materials in order to avoid a defendant's motion to

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dismiss.”

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F.2d 1280, 1285 (9th Cir. 1977).

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Id at 1392.

However, Plaintiff “must make

Data Disc, Inc. v. Sys. Tech. Associates, Inc., 557

Although Plaintiff does not allege that Defendant Kaur

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accompanied her father to California, he alleges that she took

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the following actions in relation to the purported sale of the

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Hummer: (1) Defendant Kaur and Defendant Pooni “illicitly

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transferred title into their own name in the State of Kansas;”

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and (2) Defendant Kaur and Defendant Pooni “fraudulently and

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illicitly completed the bill of sale document . . . to indicate

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they themselves were the buyers[.]”

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of these allegations, Plaintiff points to the purported Bill of

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Sale for the vehicle, which appears to list “Harminder S. Pooni

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and/or Ravinder Kaur Kalirai” as “Buyer.”
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Compl. ¶¶ 6-7.

In support

Bolanos Declaration,

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Ex. 1.

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Title, which lists “Ravinder Kalirai” as the “Transfer on Death

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Benefactor.”

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the supporting documentation are sufficient to satisfy

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Plaintiff’s prima facie burden.

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Kaur did not speak with Plaintiff and did not travel to

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California, her status as a joint buyer of a California vehicle

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from a California seller – in a transfer that was initiated in

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California – constitutes a purposeful availment of the forum of

Plaintiff also points to the Kansas Certificate of

Pooni Declaration, Ex. A.

These allegations and

Despite the fact that Defendant

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California.

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transfer of that vehicle, the Court has personal jurisdiction

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over Defendant Kaur and Defendants’ motion to dismiss for lack

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of personal jurisdiction is DENIED, with regard to Defendant

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Kaur.

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As Plaintiff’s claims arise from the disputed

Conversely, Plaintiff fails to allege that Defendant Pan-

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Am, through an authorized agent, played any role in the transfer

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of the vehicle.

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that effect.

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Defendant Pooni acted “in both his individual capacity and as

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the authorized agent of Pan-Am,” he cites to an allegation in

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the complaint which makes no mention of Pooni as an authorized

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agent of Defendant Pan-Am.

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Other than conclusory allegations which mention Pan-Am along

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with both other defendants, the only portion of the complaint

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which directly relates to Defendant Pan-Am reads as follows:

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Nor has Plaintiff submitted any documents to

Although Plaintiff argues in his opposition that

Opp. at 7 (citing Compl. ¶ 22).

On information and belief, Pooni is the majority
shareholder of a Kansas corporation called Pan-Am
Transport, Inc. This is an overland trucking company
based in Shawnee, Kansas. The entity owns trucks
which could easily transport the subject vehicle
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across state lines and indeed out of the United
States. Plaintiff Singh is informed and believes that
the vehicle is located at Pan-Am’s Shawnee
headquarters.

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Compl. ¶ 8.
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Notably absent from the complaint is any allegation that

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Defendant Pooni was acting as an authorized agent for Pan-Am

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when he spoke with Plaintiff Singh.

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supporting documents suggest that Pan-Am played any significant

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role in the disputed transfer of the vehicle.

Nor do Plaintiff’s

Although

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Plaintiff argues that “the vehicle went to Pan-Am’s address of

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record with the Kansas Secretary of State,” this address also

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happens to be the residential address of Defendant Pooni.

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at 7; Bolanos Declaration, Ex. 6.

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reliance on a FedEx receipt listing “Panam Transport Inc.” as

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the recipient of title-related documents does not demonstrate

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any meaningful participation by Pan-Am: it was Plaintiff who

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sent these documents and, again, the address is the same as

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Defendant Pooni’s residential address.

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2.

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Opp.

Similarly, Plaintiff’s

Bolanos Declaration, Ex.

As Plaintiff has not put forth sufficient allegations or

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evidence that Defendant Pan-Am purposely availed itself of the

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forum of California, the Court does not have personal

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jurisdiction over Defendant Pan-Am and Defendants’ motion to

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dismiss for lack of personal jurisdiction is GRANTED WITH LEAVE

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TO AMEND, with regard to Defendant Pan-Am.

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Conforte, 47 F. App'x 838, 843 (9th Cir. 2002).

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2.

See Chirila v.

Subject Matter Jurisdiction

Defendants next argue that the matter must be dismissed
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because the Court lacks subject matter jurisdiction.

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Specifically, Defendants argue that diversity jurisdiction does

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not lie because the amount in controversy is less than $75,000.

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Mot. at 6.

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complaint - $80,000 – controls unless Defendants can prove “to a

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legal certainty” that the claim is actually for less than the

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jurisdictional threshold.

Mot. at 6.

Plaintiff responds that the amount pled in the

Opp. at 4.

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Where complete diversity exists and a plaintiff has

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expressly alleged damages that exceed the jurisdictional

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threshold, federal jurisdiction exists unless it appears “to a

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legal certainty” that the claim is actually for less than the

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amount pled.

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402 (9th Cir. 1996) (noting that the “legal certainty test is

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applicable in . . . cases . . . brought in federal court in

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which the plaintiff has filed a good faith complaint alleging

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damages in excess of the required jurisdictional minimum”).

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Here, Plaintiff has alleged that “the vehicle is reasonably

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valued in excess of seventy-five thousand dollars” and that he

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was “damaged in the amount of eighty thousand dollars.”

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¶¶ 2, 8.

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certainty” that the value of the Hummer is less than $75,000.

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Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,

Compl.

Defendants must, therefore, show “to a legal

Defendants make several arguments, all of which fail to

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meet the demanding “legal certainty” standard.

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Defendants argue that “the Kelley Blue Book value of a 2005 H2

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Hummer with all available packages and amenities [and comparable

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mileage] is less than $30,000[.]”

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vehicle at issue in this case differs significantly from the

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typical Hummer, in that it has been converted to right hand
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Mot. at 7.

First,

However, the

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drive.

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comparable Hummer with right hand drive has a market value of

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well under $75,000.

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hand drive conversion renders the vehicle less valuable and

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desirable,” they offer no legal or evidentiary support for this

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conclusion.

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the exhibits submitted by Plaintiff – although well-taken – are

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misplaced: the burden is on Defendants, not Plaintiff, to

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establish the value of the Hummer to a legal certainty.

Missing from Defendants’ argument is any showing that a

Although Defendants “submit that the right-

Mot. at 7.

Similarly, Defendants’ objections to

Reply

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at 1.

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amount pled by Plaintiff controls and Defendants’ motion to

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dismiss for lack of subject matter jurisdiction is DENIED.

Having failed to satisfy their burden of proof, the

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3.

Failure to State a Claim

Defendants argue that Plaintiff’s fourth cause of action

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for violation of the UCL must be dismissed for failure to state

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a claim.

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because the UCL claim is based in fraud, it must meet the

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heightened pleading standard of Rule 9(b).

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Plaintiff disputes the applicability of Rule 9(b), and also

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argues that the allegations in the complaint satisfy that

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heightened standard.

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Mot. at 7.

Specifically, Defendants argue that,

Mot. at 8.

Opp. at 8.

Rule 9(b) of the Federal Rules of Civil Procedure requires

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that allegations of fraud set forth the “who, what, when, where,

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and how” of the alleged misconduct.

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USA, 317 F.3d 1097, 1106 (9th Cir. 2003).

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pleading standard does not only apply to claims for which fraud

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is an essential element.

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“allege[s] a unified course of fraudulent conduct,” that claim

Vess v. Ciba-Geigy Corp.

Id. at 1103.

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This heightened

Rather, when a plaintiff

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“is said to be grounded in fraud or to sound in fraud, and the

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pleading of that claim as a whole must satisfy the particularity

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requirement of Rule 9(b).”

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complaint that attributes misrepresentations to all defendants,

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lumped together for pleading purposes . . . is insufficient.”

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Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990).

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Id. at 1103-04.

Generally, “a

Here, Plaintiff’s fourth cause of action “sounds in fraud.”

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Vess, 317 F.3d at 1106

The essential allegation is that

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“Defendants, and each of them, engaged in the unfair and

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deceptive business practice of holding themselves out as brokers

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of luxury and exotic vehicles, when in reality their intention

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was to co[n]vert the vehicles to their own uses.

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are at the same time unlawful, unfair, and deceptive.”

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¶ 22.

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conduct,” the heightened pleading standard of Rule 9(b) applies

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and Plaintiff must sufficiently allege the “who, what, when,

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where, and how” for each Defendant.

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been dismissed from this lawsuit for lack of personal

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jurisdiction, the Court must examine Plaintiff’s UCL claim for

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the two remaining defendants: Defendant Pooni and Defendant

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Kaur.

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These actions
Compl.

As Plaintiff has alleged a “unified course of fraudulent

As Defendant Pan-Am has

Plaintiff alleges with adequate specificity the fraudulent

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conduct of Defendant Pooni.

He alleges that, in June 2014, he

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and Pooni “agreed that Pooni would broker the sale of the

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vehicle on [Plaintiff’s] behalf.”

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months “during subsequent telephone conversations,” Defendant

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Pooni “made repeated false representations that he was actively

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engaged in attempting to locate a buyer for the vehicle.”
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Compl. ¶ 5.

In the following

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Compl. ¶ 6.

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false because Defendant Pooni and Defendant Kaur “had already

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illicitly transferred title into their own name in the State of

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Kansas.”

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Pooni), the “what” (that he would serve as the broker in the

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sale of Plaintiff’s vehicle), the “when” (June 2014 and the

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following months), the “where” (in California and Kansas), and

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the “how” (in person and in phone conversations) of the alleged

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fraud.

Plaintiff alleges that these representations were

These allegations describe the “who” (Defendant

Defendants’ argument that Plaintiff does not “identify

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the fraudulent words that allegedly constituted the

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misrepresentation” is without merit.

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alleged with sufficient particularity with regard to Defendant

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Pooni.

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fourth cause of action is DENIED, to the extent that it is

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brought against Defendant Pooni.

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Plaintiff’s UCL claim is

Accordingly, Defendants’ motion to dismiss Plaintiff’s

Conversely, Plaintiff does not allege the fraudulent

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conduct of Defendant Kaur with adequate specificity.

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allegations against Defendant Pooni, Plaintiff’s allegations

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against Defendant Kaur are conclusory and run afoul of the rule

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against “lump[ing] together for pleading purposes” all

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defendants.

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quoted above, Plaintiff alleges that “Defendants, and each of

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them, engaged in the unfair and deceptive business practice of

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holding themselves out as brokers of luxury and exotic vehicles,

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when in reality their intention was to co[n]vert the vehicles to

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their own uses.”

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allegations as to the fraudulent statements or

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misrepresentations made by Defendant Kaur, and the circumstances

Sears v. Likens, 912 F.2d at 893.

Compl. ¶ 22.

Unlike the

For example, as

In the absence of specific

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surrounding those statements, Plaintiff has failed to adequately

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allege his UCL claim against this defendant.

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to dismiss Plaintiff’s fourth cause of action is GRANTED WITH

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LEAVE TO AMEND, to the extent it is brought against Defendant

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Kaur.

Defendants’ motion

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III.

ORDER

For the reasons set forth above, the Court GRANTS WITH
LEAVE TO AMEND Defendants’ motion to dismiss Plaintiff’s

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complaint for lack of personal jurisdiction, insofar as it is

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brought against Defendant Pan-Am, and DENIES Defendants’ motion

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to dismiss for lack of personal jurisdiction, insofar as it is

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brought against Defendant Pooni and Defendant Kaur.

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DENIES Defendants’ motion to dismiss for lack of subject matter

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jurisdiction.

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motion to dismiss Plaintiff’s fourth cause of action, insofar as

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it is brought against Defendant Kaur, and DENIES Defendants’

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motion to dismiss Plaintiff’s fourth cause of action, insofar as

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it is brought against Defendant Pooni.

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The Court

The Court GRANTS WITH LEAVE TO AMEND Defendants’

Plaintiff’s Amended Complaint must be filed within twenty

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(20) days from the date of this order.

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pleading is due within twenty (20) days thereafter.

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Plaintiff elects not to file an Amended Complaint, the case will

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proceed consistent with this Order:

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IT IS SO ORDERED.
Dated: March 6, 2015

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Defendants’ responsive
If