Manipoun v. Dibela et al

Filing 89

ORDER (1) Granting Defendants' Motion for Summary Judgment; (2) Denying Defendants' Motion for Order Requiring Plaintiff to Post an Undertaking; and (3) Directing the Clerk of Court to Close this Case (Doc. Nos. 56 , 62 ). Signed by Judge Anthony J. Battaglia on 9/9/2019. (jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MERIDA MANIPOUN a.k.a. ANOMA
SENGVIXAY,

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ORDER:

Plaintiff,

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Case No.: 17-CV-02325-AJB-BGS

v.

(1) GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT;

LOU DIBELLA; CHRIS KELLY;
LINDA CARR; JAMES COX; SAN
DIEGO EUROPEAN MOTORCARS,
LTD. d/b/a ASTON MARTIN OF SAN
DIEGO; and DOES 1-20,

(2) DENYING DEFENDANTS’
MOTION FOR ORDER REQUIRING
PLAINTIFF TO POST AN
UNDERTAKING; AND

Defendants.

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(3) DIRECTING THE CLERK OF
COURT TO CLOSE THIS CASE

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(Doc. Nos. 56, 62)

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Pending before the Court are Defendants James Cox and Aston Martin of San
Diego’s motion for summary judgment and motion for order requiring Plaintiff to post an
undertaking. (Doc. Nos. 56, 72.) Plaintiff filed oppositions to both of Defendants’ motions.
(Doc. Nos. 59, 65, 70.) Plaintiff filed replies. (Doc. Nos. 60, 66, 73.) For the reasons set
forth more fully below, the Court GRANTS Defendants’ motion for summary judgment

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and DENIES Defendants’ motion for order requiring Plaintiff to post an undertaking.

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I.

BACKGROUND

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On May 7, 2016, Merida Manipoun (“Plaintiff”) participated in the “Dream

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Machine,” a promotional event held at Viejas Casino and Resort (“Casino”). (Doc. No. 50-

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1 at 4; Doc. No. 62-1 at 2–3.) Plaintiff was issued a “V Club Card” that garnered entries

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into a drawing each time the V Club Card was used on the slot machine. (Id.) Plaintiff

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“earned the opportunity” to participate in the drawing and was called on stage to select a

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single envelope from various envelopes available. (Doc. No. 50-1 at 5.) Plaintiff picked an

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envelope containing a certificate for an Aston Martin V8 Vantage (the “Car”). (Id.) Casino

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issued Plaintiff a Form 1099 indicating a $134,000 income, the suggested retail value of

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the Car. (Id. at 6.)

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On May 12, 2016, Mr. Dibella, the Casino’s manager, called Plaintiff to inform her

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she would not be receiving the Car. (Doc. No. 1 ¶ 26.) Defendants assert the Casino

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disqualified Plaintiff from the contest because she allowed her companion to use her V

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Club Card to improperly gain entries into the drawing, which constituted a violation of the

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contest rules. (Doc. No. 62-1 at 2.)

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On November 16, 2017, Plaintiff sued Defendants and three other defendants for

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fraud, conspiracy to defraud, breach of unfair competition, and breach of unilateral

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contract. (Doc. No. 1.) Other defendants to this action were Lou Dibella, Chris Kelly, and

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Linda Carr. (Id.) On May 10, 2018, Plaintiff voluntarily dismissed Defendants Dibella and

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Carr from this litigation. (Doc. No. 31.) On August 1, 2019, at the hearing on this present

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motion, Plaintiff stated that claims against Defendant Kelly were also dropped. (Doc. No.

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88 at 6.)

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On November 7, 2018, Defendants James Cox and Aston Martin of San Diego

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(“Defendants”) filed a motion for an order requiring Plaintiff to post an undertaking. (Doc.

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No. 56.) On February 6, 2019, Defendants filed a motion for summary judgment. (Doc.

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No. 62.) On February 20, 2019, Plaintiff filed a motion to strike Defendants’ motion for

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summary judgment as her response to Defendants’ motion. (Doc. No. 65.) While this
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Court’s briefing schedule on the Defendants’ summary judgment motion did not permit

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sur-replies, (Doc. No. 63), the Court granted Plaintiff’s motion to file a sur-reply. (Doc.

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No. 69.)

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II.

LEGAL STANDARD

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Summary judgment is appropriate under Federal Rule of Civil Procedure 56 if the

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moving party demonstrates the absence of a genuine issue of material fact and entitlement

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to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact

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is material when, under the governing substantive law, it could affect the outcome of the

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case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a

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reasonable jury could return a verdict for the nonmoving party. Id.

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A party seeking summary judgment bears the initial burden of establishing the

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absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The moving

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party can satisfy this burden in two ways: (1) by presenting evidence that negates an

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essential element of the nonmoving party’s case; or (2) by demonstrating the nonmoving

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party failed to establish an essential element of the nonmoving party’s case on which the

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nonmoving party bears the burden of proving at trial. Id. at 322–23. “Disputes over

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irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec.

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Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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Once the moving party establishes the absence of a genuine issue of material fact,

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the burden shifts to the nonmoving party to set forth facts showing a genuine issue of a

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disputed fact remains. Celotex Corp., 477 U.S. at 330. When ruling on a summary

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judgment motion, a court must view all inferences drawn from the underlying facts in the

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light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith

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Radio Corp., 475 U.S. 574, 587 (1986).

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III.

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DISCUSSION

Defendants bring two separate motions. Defendants seek summary judgment as well

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as an order requiring Plaintiff to post an undertaking.

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A.

Motion for Summary Judgment

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Defendants seek summary judgment, or partial summary judgment, as to the

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following causes of action: (1) fraud; (2) conspiracy to defraud; (3) breach of unfair

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competition law; and (4) breach of unilateral contract. (Doc. No. 62.) However, the Court

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notes that at the hearing on August 1, 2019, Plaintiff abandoned her claims of fraud,

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conspiracy, and unfair competition against Defendants. Plaintiff solely argued that her

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breach of contract claim survives Defendants’ motion. However, since the briefing

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addressed all four claims, the Court will briefly address each claim on the merits.

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Further, Plaintiff argued that Defendants’ motion was untimely as Plaintiff’s motion

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for leave to amend her complaint and reopen discovery was pending. Plaintiff moved to

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strike Defendants’ motion on this basis. However, the Court previously denied Plaintiff’s

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motion for leave to amend her complaint. (Doc. No. 76.) Accordingly, the Court denies

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Plaintiff’s request to strike Defendants’ motion as moot.

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i.

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To prevail on a fraud claim, a plaintiff must prove: (1) the defendant made a false

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representation as to a past or existing material fact; (2) the defendant knew the

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representation was false at the time it was made; (3) in making the representation, the

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defendant intended to deceive the plaintiff; (4) the plaintiff justifiably and reasonably relied

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on the representation; and (5) the plaintiff suffered resulting damages. Lazar v. Superior

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Court, 12 Cal. 4th 631, 638 (1996).

Fraud

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Defendants argue Plaintiff’s fraud claim must fail because (1) Plaintiff lacks

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evidence that Defendants made any representation, much less a false representation; and

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(2) Plaintiff expressly admitted that Defendants made no false representation. (Doc. No.

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62-1 at 6–7.)

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In support, Defendants cite to Plaintiff’s responses to written discovery and her

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video deposition. (Id. at 6–8.) In Plaintiff’s written discovery, Defendants’ counsel asked

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“If you contend that an employee or officer of [the Dealership] represented to you that a

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fact was true that was not true, please state all facts which support that contention[.]”
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(“Samouris Decl..” Ex. B at 4:18–20, Doc. No. 62-5.) Plaintiff responded, “James Cox of

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[the Dealership] refused to deliver a 2016 Aston Martin Vantage despite being shown all

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of the winning documents.” (Id. at 4:23–24.) Defendants contend a “refusal” is not a false

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representation; indeed, “it is not a representation at all.” (Doc. No. 62-1 at 6.)

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With respect to the “scienter” element, Defendants point to Plaintiff’s response to

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written discovery wherein Plaintiff generally asserts “James Cox of [Dealership] had

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delivered other Aston Martins from previous years and previous Dream Machine drawings.

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He clearly knew . . . [Plaintiff] was entitled to a car.” (Samouris Decl. at 5:26–28, Doc. No.

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62-5.) However, Defendants contend Plaintiff’s unsupported, conclusory claims are

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insufficient to withstand summary judgment. (Doc. No. 62-1 at 6–7.)

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Finally, Plaintiff “expressly admitted” that Defendants made no false representation.

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(Doc. No. 62-1 at 7.). Plaintiff’s “fatal admission” in her deposition was when she was

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asked, “Did Mr. Cox ever tell you something that you later discovered was not true?” to

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which she answered, “I didn’t talk to them.” (Doc. No. 62-1 at 7.; “Manipoun Depo.,” Ex.

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A at 33:23–34:3, Doc. No. 62-4.)

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Notably, Plaintiff’s testimony consists of contradictory statements. While Plaintiff

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did indeed testify in her deposition that she did not talk to Defendants, she also testified

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that she had spoken to someone at the Dealership but could not remember his name.

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(Manipoun Depo. at 9:11–13.) She further testified “that person said they’re going to call

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the casino,” but no other communication was had with the Dealership thereafter. (Id. at

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9:20–11:1.) She also testified she “maybe” spoke to Mr. Cox, (Id. at 11:13–15), and that

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Mr. Cox told her he was going to call her back. (Id. at 13:2–6.) As such, her testimony is

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unclear as to whether there was one, two, or no conversations at all with the Dealership.

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To the extent there was communication with the Dealership, it remains undisputed

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there were no substantive communications between Plaintiff and Defendants. Indeed,

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Plaintiff testified the conversation(s) was limited to a representative of the Dealership

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telling her they would call the Casino (or her). This does not amount to a “representation.”

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Moreover, Plaintiff does not oppose any of Defendants’ arguments – and at the August 1,
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2019 hearing admitted she was abandoning her claim of fraud against Defendants. (See

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generally Doc. No. 70.)

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ii.

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“Under California law, there is no separate and distinct tort cause of action for civil

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conspiracy.” Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211,

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1228 (9th Cir. 1997); see also Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th

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503, 510 (1994) (“Conspiracy is not a cause of action” rather, it is “a legal doctrine that

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imposes liability on persons who, although not actually committing a tort themselves, share

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with the immediate tortfeasors a common plan or design in its perpetration.”)

Conspiracy to De-Fraud

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Plaintiff’s conspiracy claim requires admissible evidence of “actual knowledge.”

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(Doc. No. 62-1 at 8); Kidron v. Movie Acquisition Corp., 40 Cal. App. 4th 1571, 1582

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(1995) (“the conspiring defendants must also have actual knowledge that a tort is planned

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and concur in the tortious scheme with knowledge of its unlawful purpose.”); Choate v.

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Cnty. of Orange, 86 Cal. App. 4th 312, 333 (2000) (plaintiffs have a “weighty burden” to

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prove civil conspiracy and “must show that each member of the conspiracy acted in concert

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and came to a mutual understanding to accomplish a common and unlawful plan, and that

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one or more of them committed an overt act to further it.”).

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Defendants submitted a declaration from Mr. Cox stating, “[t]he Casino operated the

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Drawing and selected the winner. The Dealership and I played no role in the operation of

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the Drawing and/or the selection of the winner.” (“Cox Decl.,” Doc. No. 62-2 at ¶ 3). The

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declaration continues, “[t]he Dealership and I played no role in deciding whether [Plaintiff]

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was a winner and/or whether she would be given a car. The Dealership and I did not issue

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a tax Form 1099 to [Plaintiff] and have no knowledge of any such form being given to her.”

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(Id.)

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Like the substantive fraud claim, Plaintiff does not oppose any of Defendants’

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arguments and stated at the August 1, 2019 hearing that she was abandoning her civil

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conspiracy claim against Defendants.

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iii.

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California’s UCL permits civil recovery for “any unlawful, unfair or fraudulent

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business act or practice and unfair, deceptive, untrue or misleading advertising. . . .” Cal.

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Bus. & Prof. Code § 17200. Under the UCL, “there are three varieties of unfair

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competition: practices which are unlawful, unfair or fraudulent.” In re Tobacco II Cases,

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46 Cal. 4th 298, 311 (2009). To establish an “unlawful” business practice, “a UCL action

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borrows violations of other laws and treats these violations, when committed pursuant to

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business activity, as unlawful practices[.]” Peterson v. Cellco P’ship, 164 Cal. App. 4th

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1583, 1590 (2008) (internal quotation marks omitted). “An ‘unfair’ business practice is

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actionable under the [UCL] even if it is not ‘deceptive’ or ‘unlawful.’” Buller v. Sutter

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Health, 160 Cal. App. 4th 981, 990 (2008). An “unfair” business practice occurs “when it

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offends an established public policy or when the practice is immoral, unethical, oppressive,

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unscrupulous or substantially injurious to consumers.” Wilner v. Sunset Life Ins. Co., 78

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Cal. App. 4th 952, 965 (2000) (internal quotation marks and citations omitted). “An act or

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practice is unfair if the consumer injury is substantial, is not outweighed by any

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countervailing benefits to consumers or to competition, and is not an injury the consumers

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themselves could reasonably have avoided.” Daugherty v. Am. Honda Motor Co., Inc., 144

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Cal. App. 4th 824, 839 (2006). Finally, a “fraudulent” business practice is distinct from a

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common law claim and a plaintiff does not need to prove the elements of common law

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fraud to obtain relief. In re Tobacco II Cases, 46 Cal. 4th at 312. “[T]he term ‘fraudulent,’

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as used in the UCL, has required only a showing that members of the public are likely to

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be deceived.” Daugherty, 144 Cal. App. 4th at 838.

Breach of Unfair Competition Law

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Defendants argue Plaintiff cannot prove it made any misleading representation to

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Plaintiff. (Doc. No. 62-1 at 10.) Defendants offer three reasons for this contention: (1) there

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is no supporting evidence Dealership made a misleading representation; (2) Cox’s

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declaration disclaims making any representation to Plaintiff, let alone a misleading one;

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and (3) in her deposition, Plaintiff testified Cox made no false statement to her. (Id.)

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Moreover, Defendants argue they cannot be held “vicariously liable for the purported
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wrongs of the Casino.” (Id.); see also People v. Toomey, 157 Cal. App. 3d 1, 14 (1984)

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(“The concept of vicarious liability has no application to actions brought under the unfair

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business practices act.”); Emery v. Visa Int’l Serv. Ass’n, 95 Cal. App. 4th 952, 960 (2002)

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(“A defendant's liability must be based on his personal participation in the unlawful

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practices and unbridled control over the practices that are found to violate section 17200

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or 17500.”) (internal quotations omitted).

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It is unclear whether Plaintiff even addressed the unfair competition claim in her

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response – it certainly was not properly addressed. However, Plaintiff again stated at the

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August 1, 2019 hearing that she was abandoning this claim against Defendants as well.

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iv.

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The elements of a cause of action for breach of contract are: (1) the existence of the

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contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach;

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and (4) the resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman, 51 Cal.

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4th 811, 821 (2011).

Breach of Unilateral Contract

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Defendants argue Plaintiff lacks evidence to prove an essential element of her

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contract claim – the existence of a contract. (Doc. No. 62-1 at 11.) In support of this

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argument, Defendants cite to Plaintiff’s deposition:

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Q: Do you recall ever entering into any agreement with the car dealership?
Ms. Colt [Plaintiff’s counsel]: Objection. Calls for a legal opinion.

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A: No.

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(Manipoun Depo. at 11:2–6.)

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As explained above, Plaintiff had no substantive discussions with Defendants. (See

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Doc. No. 11.) During Plaintiff’s deposition, she testified she had no communication with

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Defendants except for one instance where someone at the Dealership told her they would

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call her back. (Id.) (citing Manipoun Depo. at 8:23–11:1.)

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Plaintiff contends a contract was formed between Plaintiff and Defendants. (Doc.
No. 70 at 8.) To support her position, Plaintiff offers the following as evidence:
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Exhibits 1 & 2:

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mailed to Plaintiff and her husband;

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Exhibit 3:

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Exhibit 4:

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(Id. at 9–10.)1

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A 1099 form issued by Viejas Casino to Plaintiff reporting
$134,000 as “other income.”

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The Car Winners Log with Plaintiff’s name and signature
indicating she is the winner of an Aston Martin V8 Vantage.

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A promotional offer for the “Dream Machine” drawing that was

As to Exhibits 1 and 2, Plaintiff admits the promotional mailer “does not mention
San Diego European Motorcars, Ltd, d/b/a Aston Martin of San Diego specifically, but it
does mention the Aston Martin car and they are the only Aston Martin dealership in the
area.” (Id. at 8–9.)
As to Exhibit 3, Plaintiff points out “paragraph three explicitly identifies Aston
Martin of San Diego by name, and it states that they are ‘required to provide a copy of the
sales contract to Viejas Casino & Resort after the transaction is complete.’” (Id. at 9.) She
argues this “is sufficient in and of itself to establish the existence of an enforceable
contract.” (Id.)
Finally, as to Exhibit 4, Plaintiff argues the 1099 form filed with the IRS indicating
“Plaintiff had already received a car . . . proves the existence of a contract after the fact by
[the Casino’s] established course of conduct.” (Id. at 9–10.)
The facts remain undisputed. Plaintiff does not dispute Defendants’ factual assertion
that Plaintiff had no substantive discussions with Defendants. Defendants do not dispute

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To note, Plaintiff also included an Exhibit 5, which is a copy of the “V Club Membership
Privileges and Conditions” that indicates misuse of an individual’s V Club Card could
result in disqualification from the promotion. This exhibit was offered to prove Plaintiff
was improperly disqualified. The Court notes that whether or not the disqualification was
warranted is irrelevant to the threshold issue of whether a contract was formed.
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the existence of, nor the content contained in, the four exhibits Plaintiff relies upon.

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Therefore, the issue remaining is whether these facts establish the formation of a contract

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between Plaintiff and Defendants. This determination is a matter for the Court. See

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Robinson & Wilson, Inc. v. Stone, 35 Cal. App. 3d 396, 407 (1973) (“[W]hether a certain

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or undisputed state of facts establishes a contract is one of law for the court . . . On the

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other hand, where the existence and not the validity or construction of a contract or the

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terms thereof is the point in issue, and the evidence is conflicting or admits of more than

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one inference, it is for the jury or other trier of the facts to determine whether the contract

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did in fact exist[.]”)

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Notably, Plaintiff cites to a law review article, a series of case law, and the

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Restatement (Second) of Contract, without ever expressly applying them to the facts of this

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case. (See generally Doc. No. 70.) In fact, some are simply inapplicable to the facts here.2

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In what is seemingly an argument for co-party liability, Plaintiff cites Clark v. Washington,

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25 U.S. 40 (1827). In Clark, the Court held a municipal corporation empowered (by the

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charter granted by Congress to the city of Washington) to “authorize the drawing of

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lotteries” is liable to a winning lottery ticket holder even if the corporation had sold the

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entire lottery to an individual who had agreed to execute the details of the lottery, including

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payment of prizes. Id. at 44. Plaintiff analogizes this type of liability to a modern-day

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situation where the lottery company and the gas station would be liable to the purchaser

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for a winning ticket. (Doc. No. 70 at 5.) This analogy is not supported by any legal

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authority. Moreover, Plaintiff appears to seek extension of the “gas station” liability

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analogy to the facts here by holding Defendants liable to Plaintiff. (See Doc. No. 5.)

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For example, Plaintiff cites to the Restatement (Second) of Contracts with respect to thirdparty beneficiaries but fails to discuss its relevance in this case where the suit is not brought
by a third-party beneficiary. (Doc. No. 70 at 6.) As another example, Plaintiff cites a series
of case law with respect to waiver of breach through course of conduct, even though this
case contains no allegations of waiver of breach. (Id. at 7–8.)
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Assuming arguendo, that gas stations are liable for selling winning tickets (which neither

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party cites to authority that supports or contradicts this theory), Defendants persuasively

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distinguish the facts here by arguing it did not operate the promotion nor sell anything to

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Plaintiff. (Doc. No. 73 at 4.)

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Moreover, none of the exhibits Plaintiff relies upon proves the existence of a contract

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between Plaintiff and Defendants. (Doc. No. 73 at 4.) Defendants contend Exhibits 1 and

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2 (the promotional mailer) “confirm[] what the Dealership has already shown – that Viejas

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Casino exclusively operates the promotion.” (Id.) Moreover, Defendants argue Exhibit 3

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(the winner’s log) “is clear[ly] prepared by Viejas Casino to be signed by the casino patron,

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and that the Dealership did not create it or sign it.” (Id.) Defendants also point out that the

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winner’s log states “Management [of the Casino] will resolve any dispute or situation not

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covered by the official promotional rules and that decision shall be final and binding on all

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participants in this promotion.” (Id.); (see also Doc. No. 70-3 at 2.) Finally, Exhibit 4 (the

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1099 form) was issued by the Casino and not the Defendants. (Id.) The Court agrees with

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Defendants’ analysis and finds that a contract did not exist between Plaintiff and

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Defendants.

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Accordingly, the Court GRANTS Defendants’ motion for summary judgment in its

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entirety.

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B.

Motion for Order Requiring Plaintiff to Post an Undertaking

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In light of the Court granting Defendants’ motion for summary judgment,

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Defendants’ motion for an order requiring Plaintiff to post an undertaking is moot. The

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case is now closed. Defendants may seek the appropriate motion for attorneys’ fees and

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costs. The Court DENIES Defendants’ motion for an order requiring Plaintiff to post an

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undertaking as moot.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendants’ motion for summary

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judgment in its entirety and DENIES Defendants’ motion for an order requiring Plaintiff

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to post an undertaking as moot. Accordingly, the Court DIRECTS the Clerk of Court to

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CLOSE this case.

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IT IS SO ORDERED.

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Dated: September 9, 2019

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