United States District Court, D. Nevada
before the court is defendants Michael H. Ponder
(“Ponder”), NVWS Properties, LLC's
(“NVWS”) and defendant/third-party plaintiff
Lezlie Gunn's (“Gunn”) motion for partial
summary judgment. (ECF No. 199). Plaintiff Casun Invest, A.G.
(“Casun”) and third-party defendant Dr.
Hans-Peter Wild (“Wild”) filed a response (ECF
No. 207), to which Ponder, NVWS, and Gunn (collectively
“defendants”) replied (ECF No. 212).
before the court is Casun's motion for partial summary
judgment against Ponder for breach of fiduciary duty. (ECF
No. 198). Ponder filed a response (ECF No. 209), to which
Casun replied (ECF No. 216).
before the court is Wild's motion for summary judgment.
(ECF No. 197). Gunn filed a response (ECF No. 208), to which
Wild replied (ECF No. 215).
instant action arises from a dispute regarding the transfer
of real property located at 140 Josselyn Lane, Woodside,
California 94602 (“Woodside property”). (ECF No.
1). Casun, a Swiss corporation, alleges that it owned the
Woodside property until Ponder-Casun's former
director-and Gunn-who was both romantically and
professionally involved with Wild- conspired to unlawfully
transfer the property to NVWS in exchange for $1.5 million.
Id. Casun further alleges that it has not received
any portion of the sale proceeds. Id. Gunn admits
that she created NVWS as a Nevada limited liability company
approximately three weeks prior to the Woodside conveyance,
but denies that she conspired with Ponder to take the
Woodside property from Casun without paying compensation.
(ECF No. 12).
December 16, 2016, Casun filed the underlying complaint,
asserting nine causes of action: (1) constructive trust
against NVWS and Gunn; (2) equitable lien against NVWS and
Gunn; (3) unjust enrichment against NVWS and Gunn; (4) breach
of fiduciary duty against Ponder; (5) aiding and abetting
breach of fiduciary duty against NVWS and Gunn; (6)
constructive fraud against Ponder; (7) civil conspiracy
against Ponder, NVWS, and Gunn; (8) alter ego liability
against Gunn; (9) attorney's fees and costs against
Ponder, NVWS, and Gunn. (ECF No. 1).
February 7, 2017, Gunn filed a third-party complaint against
Wild, who owns 98% of the stock in Casun. (ECF Nos. 12, 135).
Gunn asserts a single third-party claim for express indemnity
pursuant to a contract that allegedly requires Wild to
indemnify Gunn against any and all claims. (ECF No. 12). The
indemnity provision provides as follows:
In the event or situation that any person, entity, or
governmental agency of any jurisdiction or country,
threatens, attempts or proceeds, indirectly or directly, with
any claim(s), action(s), suit(s) and/or legal proceeding(s)
against Lezlie J. Gunn, at any time and for any reason
whatsoever, for, or in relation to, anything whether it is
tangible, intangible and/or real property, that Lezlie J.
Gunn received and/or will receive from Dr. Hans-Peter Wild
and/or his estate, during his life or through his estate, Dr.
Hans-Peter Wild hereby agrees that he, his estate, and/or any
foundation(s) or entities Dr. Hans-Peter Wild has or will
create, shall defend, indemnify, forever release, and hold
Lezlie J. Gunn completely harmless from any such claim(s),
action(s), suit(s), liabilities, damages, and/or legal
proceeding(s) brought on against Lezlie J. Gunn.
Furthermore, if a portion of this Indemnification Agreement
is deemed invalid by any jurisdiction, the remaining portions
of this Indemnification Agreement shall be upheld as if the
invalid portion was not included in the Indemnification
Agreement. The Indemnification Agreement is irrevocable.
This Indemnification Agreement shall be enforced in
accordance with the laws of the State of Nevada, in the
United States of America.
(ECF No. 197 at 4-5) (emphasis removed).
and Wild both move for summary judgment in their favor
regarding the indemnification claim. (ECF Nos. 197; 199). The
defendants move for summary judgment as to Casun's first,
fourth, fifth, seventh, eighth, and ninth causes of action.
(ECF No. 199). Casun moves for summary judgment on its breach
of fiduciary duty claim. (ECF No. 209).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by ...