Agha-Kahn v. Pacific Community Mortgage Inc et al, No. 2:2016cv01124 - Document 180 (D. Nev. 2018)

Court Description: ORDER granting 172 Motion for Summary Judgment; Signed by Judge James C. Mahan on 1/23/2018.; Flaharty Family Trust (a trust including subject property), Christopher J Flaharty (an individual) and Nichole R Flaharty (an individual) terminated. (Copies have been distributed pursuant to the NEF - JM)
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Agha-Kahn v. Pacific Community Mortgage Inc et al Doc. 180 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 SALMA AGHA-KHAN, M.D., 8 Plaintiff(s), 9 10 11 Case No. 2:16-CV-1124 JCM (NJK) ORDER v. PACIFIC COMMUNITY MORTGAGE, INC., et al., Defendant(s). 12 13 Presently before the court is defendants Christopher Flaharty, Nichole Flaharty,1 and the 14 Flaharty Family Trust’s (“the Flaharty defendants”) motion for summary judgment. (ECF No. 15 16 17 172). Plaintiff Salma Agha-Khan filed a response (ECF No. 178), to which defendants replied (ECF No. 179). I. 18 19 The instant case centers around a dispute over real property located at 1967 Cherry Creek Circle, Las Vegas, Nevada. (ECF No. 1). 20 21 22 23 Facts On July 30, 2004, plaintiff purchased the property for $964,102 pursuant to a grant, bargain and sale deed. (ECF No. 172-4). Also on July 30, 2004, a deed of trust was recorded in favor of Ghanima Masarani, Mounir Mokaddam, and Joseph Saddi in an amount of $350,000.2 (ECF No. 172-5). 24 25 26 1 27 28 Defendants Christopher and Nichole Flaharty are named in their personal capacity and as trustees of the Flaharty Family Trust. (ECF No. 1). 2 On August 24, 2005, the deed of trust was reconveyed pursuant to a substitution of trustee and deed of reconveyance (which was recorded on September 7, 2005). (ECF No. 172-6). James C. Mahan U.S. District Judge Dockets.Justia.com 1 On September 8, 2004, plaintiff obtained a loan from Pacific Mortgage Company for 2 $615,000. (ECF No. 172-7). This loan was secured by a deed of trust, recorded on September 8, 3 2004 (“the Pacific DOT”). Id. On October 26, 2006, plaintiff obtained an open-ended line of credit for $200,000 from 4 5 GreenPoint Mortgage Funding, Inc. (ECF No. 172-8). 6 On January 13, 2010, Pacific recorded a notice of breach and default and election to sell 7 under the Pacific DOT. (ECF No. 172-9). On May 4, 2010, Pacific recorded an assignment of its 8 deed of trust to Aurora Loan Services. (ECF No. 172-10). On May 14, 2010, a notice of trustee’s 9 sale under Pacific DOT was recorded. (ECF No. 172-11). On September 2, 2010, Steven Joe and 10 Michael McNeill purchased the property $594,891.05 pursuant to a trustee’s deed upon sale 11 (recorded on September 13, 2010). (ECF No. 172-12). 12 On February 24, 2011, the Flaharty defendants purchased the subject property from Joe 13 and McNeill for $722,500. (ECF No. 172-13). In order to finance the purchase, the Flaharty 14 defendants obtained a loan secured by a deed of trust in favor of Wells Fargo. Id. 15 On May 19, 2016, five years and nine months after the foreclosure sale, plaintiff filed the 16 instant complaint. (ECF No. 1). Plaintiff filed three causes of action against all defendants: unjust 17 enrichment, breach of contract, and negligence. Id. These are the only causes of action that 18 reference the Flaharty defendants. See id. 19 On February 3, 2017, the court granted eight motions to dismiss and denied plaintiff’s 20 motion for leave to file an amended the complaint. (ECF No. 137). In relevant part, the court 21 held, 22 Plaintiff filed her complaint on May 19, 2016, regarding alleged actions that either occurred in 2004 or, at the latest, 2010. (ECF No. 1). Therefore, the only claim that could still be live is her fourth claim, breach of contract. However, plaintiff claims that the loan contract was immediately breached when the loan was executed—in 2004. (Id.). Therefore, the period for bringing that claim has expired as well. (Id.); see also NRS 11.190(1). 23 24 25 Id. 26 II. Legal Standard 27 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 28 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, James C. Mahan U.S. District Judge -2- 1 show that “there is no genuine dispute as to any material fact and the movant is entitled to a 2 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is 3 “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 4 323–24 (1986). 5 For purposes of summary judgment, disputed factual issues should be construed in favor 6 of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be 7 entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts 8 showing that there is a genuine issue for trial.” Id. 9 In determining summary judgment, a court applies a burden-shifting analysis. The moving 10 party must first satisfy its initial burden. “When the party moving for summary judgment would 11 bear the burden of proof at trial, it must come forward with evidence which would entitle it to a 12 directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has 13 the initial burden of establishing the absence of a genuine issue of fact on each issue material to 14 its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 15 (citations omitted). 16 By contrast, when the nonmoving party bears the burden of proving the claim or defense, 17 the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential 18 element of the non-moving party’s case; or (2) by demonstrating that the nonmoving party failed 19 to make a showing sufficient to establish an element essential to that party’s case on which that 20 party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving 21 party fails to meet its initial burden, summary judgment must be denied and the court need not 22 consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159– 23 60 (1970). 24 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 25 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 26 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 27 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 28 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing James C. Mahan U.S. District Judge -3- 1 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 2 631 (9th Cir. 1987). 3 In other words, the nonmoving party cannot avoid summary judgment by relying solely on 4 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 5 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 6 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 7 for trial. See Celotex, 477 U.S. at 324. 8 At summary judgment, a court’s function is not to weigh the evidence and determine the 9 truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, 10 Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all 11 justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the 12 nonmoving party is merely colorable or is not significantly probative, summary judgment may be 13 granted. See id. at 249–50. 14 III. Discussion 15 Here, defendants argue that summary judgment in their favor is proper as the applicable 16 statute of limitations has run on all of plaintiff’s claims. (ECF No. 172). Further, defendants argue 17 that plaintiff’s unjust enrichment, breach of contract, and negligence claims fail as a matter of law. 18 Id. Plaintiff argues that defendants’ motion for summary judgment is premature and that disputed 19 material facts preclude summary judgment. (ECF No. 178). 20 Under Nevada law, unjust enrichment is an equitable doctrine that allows recovery of 21 damages “whenever a person has and retains a benefit which in equity and good conscience 22 belongs to another.” Unionamerica Mortg. & Equity Trust v. McDonald, 626 P.2d 1272, 1273 23 (Nev. 1981); see also Asphalt Prods. v. All Star Ready Mix, 898 P.2d 699, 701 (Nev. 1995). The 24 statute of limitation for an unjust enrichment claim is four years. In re Amerco Derivative Litig., 25 252 P.3d 681, 703 (Nev. 2011) (citing NRS 11.190(2)(c)). To state an unjust enrichment claim, a 26 plaintiff must plead and prove three elements: 27 28 James C. Mahan U.S. District Judge (1) a benefit conferred on the defendant by the plaintiff; (2) appreciation by the defendant of such benefit; and -4- 2 (3) an acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of the value thereof. 3 Takiguchi v. MRI Int’l, Inc., 47 F. Supp. 3d 1100, 1119 (D. Nev. 2014) (citing Unionamerica, 626 4 P.2d at 1273). However, where there is an express contract, an unjust enrichment claim is 5 unavailable. Leasepartners Corp. v. Robert L. Brooks Trust Dated November 12, 1975, 942 P.2d 6 182, 187 (Nev. 1997) (finding that the existence of an expressed, written agreement bars an unjust 7 enrichment claim because there can be no implied agreement). 1 8 In Nevada, “to succeed on a breach of contract claim, a plaintiff must show four elements: 9 (1) formation of a valid contract; (2) performance or excuse of performance by the plaintiff; (3) 10 material breach by the defendant; and (4) damages.” Laguerre v. Nev. Sys. of Higher Educ., 837 11 F. Supp. 2d 1176, 1180 (D. Nev. 2011) (citing Bernard v. Rockhill Dev. Co., 734 P.2d 1238, 1240 12 (Nev. 1987) (“A breach of contract may be said to be a material failure of performance of a duty 13 arising under or imposed by agreement.”)). 14 A negligence claim under Nevada law must adequately demonstrate: (1) that defendant 15 owed plaintiff a duty of care; (2) that defendant breached the duty of care; (3) actual and proximate 16 causation; and (4) damages. Hammerstein v. Jean Dev. West, 111 Nev. 1471, 1475 (1995). 17 Here, plaintiff’s claims against the Flaharty defendants are all time-barred. The court held 18 in its prior order granting numerous other defendants’ motions to dismiss that all of plaintiff’s 19 claims against all defendants are time-barred. (ECF No. 137). As the Flaharty defendants did not 20 file a motion to dismiss, the court’s decision did not dismiss plaintiff’s claims against the Flaharty 21 defendants. However, the holding in that decision is dispositive over the instant motion. 22 In addition to plaintiff’s claims against defendant being time-barred, plaintiff’s complaint 23 fails to state cognizable causes of action against the Flaharty defendants. In regards to plaintiff’s 24 unjust enrichment claim, plaintiff did not confer a benefit onto defendant, much less a benefit 25 “under circumstances such that it would be inequitable for [the defendants] to retain the benefit 26 without payment of the value thereof.” See Takiguchi, 47 F. Supp 3d at 1119. Plaintiff’s breach 27 of contract claim fails because plaintiff never entered into a contract with the Flaharty defendants. 28 See Laguerre, 837 F. Supp. 2d at 1180. Plaintiff’s negligence claim fails because plaintiff cannot James C. Mahan U.S. District Judge -5- 1 demonstrate a duty owed by the Flaharty defendants to plaintiff or a breach of any such duty. See 2 Hammerstein, 111 Nev. at 1475. 3 IV. Conclusion 4 Accordingly, 5 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion for 6 7 8 9 summary judgment (ECF No. 172) be, and the same hereby is, GRANTED. DATED January 23, 2018. __________________________________________ UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-