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Casun Invest, A.G. v. Ponder

United States District Court, D. Nevada

January 6, 2020

CASUN INVEST, A.G., Plaintiffs,
v.
MICHAEL H. PONDER, et al., Defendants.

          ORDER

         Presently 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).

         Also 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).

         Also 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).

         I. Background

         The 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).

         On 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).

         On 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).

         Gunn 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).

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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. 1987).

         In 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 ...


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