United States District Court, D. Nevada
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT (ECF NOS.
P. GORDON, UNITED STATES DISTRICT JUDGE
2010, defendants Michael and Jeremy Bash pitched plaintiffs
Rama Sou, Tai Bui, and Scott Zimmerman, on investing in two
companies that owned property in Las Vegas: Ninety-Five Fort
Apache Complex, LLC (Fort Apache) and Royal View, LLC (Royal
View). The defendants allegedly told the plaintiffs of their
intent to develop the properties on a certain timetable. All
three plaintiffs invested in Fort Apache, and Sou and Bui
invested in Royal View, for a total of $300, 000. The
properties remain undeveloped.
lawsuit, the plaintiffs allege fraudulent inducement, false
promise, and negligent misrepresentation. They move for
summary judgment as to Jeremy Bash, arguing he made specific
representations about construction plans (pursuant to which
they made their investments) that were false because the
properties remain undeveloped. The defendants respond that
Bash's representations were not false, as the defendants
intended (and still intend) to develop the properties but
have been stymied by politics and a bad economy. Further, the
defendants contend that optimistic statements by Bash about
the properties are not actionable. Bash moves for summary
judgment on the claims against him on these same grounds.
parties are familiar with the facts of this case so I will
not repeat them here except where necessary. I deny the
plaintiffs' motion for summary judgment. There are
genuine disputes whether Bash's statements about the
properties were false or negligently made. I also deny
Bash's motion for summary judgment as untimely. Even if I
considered it, disputed facts would lead me to deny the
judgment is appropriate if the pleadings, discovery
responses, and affidavits demonstrate “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and draw
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenck,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Nevada law, the plaintiff must prove the following to sustain
a claim of fraudulent inducement:
(1) A false representation made by the defendant; (2)
defendant's knowledge or belief that its representation
was false or that defendant has an insufficient basis of
information for making the representation; (3) defendant
intended to induce plaintiff to act or refrain from acting
upon the misrepresentation; and (4) damage to the plaintiff
as a result of relying on the misrepresentation.
Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386
(Nev. 1998). “Fraud is never presumed; it must be
clearly and satisfactorily proven.” Havas v.
Alger, 461 P.2d 857, 860 (Nev. 1969). The plaintiffs
argue that Bash represented to them in 2010 that the
defendants were seeking final investments on the Fort Apache
property and that a retail plaza would be constructed within
eighteen months. The plaintiffs also argue that the
defendants represented that the Royal View property would be
developed as a commercial property with construction
commencing “immediately.” ECF No. 103 at 8. Yet
both properties remain undeveloped. According to the
plaintiffs, these facts show that Bash's representations
in 2010 must have been false and that Bash intended to
deceitfully induce them into investing in companies he knew
would not develop the properties.
contends that any statements by him were mere puffery, which
is not actionable as a misrepresentation. He also argues that
at the time he was pitching the property to the plaintiffs,
the defendants intended to develop and rezone the properties,
so this representation was accurate at the time it was made.
Bash contends that economic and political difficulties
resulted in the defendants' inability to develop the
properties on their intended timetable.
plaintiffs have not met their burden of demonstrating the
absence of disputes of material fact regarding whether
Bash's statements about the development plans were false
when made and that the defendants never intended to develop
the properties. The plaintiffs do not point to any evidence
showing that Bash's 2010 statements about the plans to
construct the properties were false. Meanwhile, in Bash's
response to interrogatories he states that the intent was to
commercially develop the properties but this intent has been
“put on temporary hold.” ECF No. 103-5 at 5-6.
fact that the properties were not developed on the original
timetable does not on its own prove fraud. Therefore, I deny
the plaintiffs' motion for ...