Opinion
For Ronald W Grigg, Plaintiff: Guy R Bayley, LEAD ATTORNEY, Law Offices of Guy Bayley, Pasadena, CA; Ronald P Carnevali, Jr, LEAD ATTORNEY, PRO HAC VICE, Spence Custer Saylor Wolfe and Rose LLC, Johnstown, PA.
For Gregory O'Brien, Defendant: Timothy J Harris, LEAD ATTORNEY, Charlston Revich and Wollitz LLP, Los Angeles, CA.
For ADR Services Inc, Defendant: Jonathan Berres Cole, LEAD ATTORNEY, Nemecek and Cole PC, Sherman Oaks, CA; Lucy Hanna Mekhael, Nemecek & Cole, Sherman Oaks, CA.
For Whittier College, Defendant: Leila M. Rossetti, Paula Tripp Victor, LEAD ATTORNEYS, Anderson McPharlin and Conners LLP, Los Angeles, CA.
PROCEEDINGS: (IN CHAMBERS) ORDER RE: PENDING MOTION
Fernando M. Olguin, United States District Judge.
Having reviewed and considered all the briefing filed with respect to Defendants' Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (" Motion"), the court concludes that oral argument is not necessary and orders as follows. See Fed.R.Civ.P. 78; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).
INTRODUCTION
On November 15, 2013, plaintiff Ronald W. Grigg (" plaintiff" or " Grigg") filed the operative complaint in the Western District of Pennsylvania against: (1) Gregory O'Brien (" O'Brien"); (2) ADR Services, Inc. (" ADR Services"); and (3) Whittier College (" Whittier") (collectively, " defendants"), alleging various claims in connection with " false representations . . . relating to the qualifications [] O'Brien claimed to possess" when O'Brien served as an arbitrator over one of Grigg's disputes. (Amended Complaint (" Am. Compl.") at ¶ ¶ 5 & 32-35). Specifically, plaintiff alleges: (1) fraud against O'Brien and Whittier, ( see id. at ¶ ¶ 79-86); (2) negligent misrepresentation and negligence against ADR Services, ( see id. at ¶ ¶ 87-103); and (3) violations of the Pennsylvania Unfair Trade Practices and Consumer Law (" UTPCL"), 73 Pa. Cons. Stat. § § 201-1, et seq., as well as the California Unfair Competition Law (" UCL"), Business & Professions Code § § 17500, et seq., against all three defendants. ( See id. at ¶ ¶ 104-20).
The case was transferred to this court on April 14, 2014.
BACKGROUND
O'Brien is a retired judge of the Los Angeles County Superior Court and an arbitrator employed by ADR Services which provides " alternative dispute resolution services to litigants who desire to resolve their claims." (Am. Compl. at ¶ ¶ 41-42). In 2007, Grigg " agreed to use the services of" O'Brien and ADR Services to arbitrate a dispute between Grigg, a licensed attorney, and one of Grigg's former clients, Blaine Chaney (" Chaney"). ( See id. at ¶ ¶ 27 & 43). This dispute, Chaney v. Grigg, Los Angeles County Superior Court, Case No. BC 358695 (" Underlying Dispute"), involved, among other things, the attorney's fees that Grigg collected from Chaney. (See Joint Appendix of Evidence in Support of Defendants' Motion for Summary Judgment (" App'x Evid."), Exh. 41 (" Interim Award") at 1-2).
O'Brien was appointed as the arbitrator by Judge Aurelio Munoz of the Los Angeles County Superior Court. (See App'x Evid., Exh. 36).
Plaintiff's allegations in the instant matter stem from alleged " false representations relating to the qualifications of O'Brien[.]" (Am. Compl. at ¶ 8). According to plaintiff, his selection of O'Brien as an arbitrator " was based substantially on his reasonable belief as to the nature of O'Brien's qualifications and credentials, " which included O'Brien's graduation from Whittier Law School. (Id. at ¶ 44). Plaintiff alleges that O'Brien did not, in fact, graduate from Whittier Law School or otherwise receive a legal education from a law school accredited by the American Bar Association (" ABA"). ( See id. at ¶ ¶ 44 & 46).
It is undisputed that O'Brien attended Beverly College of Law (" Beverly") from 1969-72. (See Am. Compl. at ¶ ¶ 48 & 52; Answer of Defendant Gregory O'Brien to Amended Complaint (" O'Brien Ans.") at ¶ 65)). O'Brien submits, however, that he is currently properly classified as a graduate of Whittier Law School, ( see id. ), since Whittier Law School acquired Beverly College of Law after he graduated. (See Motion at 8-9). Plaintiff, though, claims that the Beverly College of Law " never merged with Whittier College[, ] which operates Whittier College School of Law." (Am. Compl. at ¶ 60). This supposed discrepancy forms the gravamen of plaintiff's complaint, as it is the basis for his misrepresentation and negligence claims as well as his claims under the Pennsylvania and California consumer protection laws. ( See id. at ¶ ¶ 79-120). According to plaintiff, O'Brien's misrepresentation as to the law school from which he graduated " resulted directly" in O'Brien's making various errors during the arbitration, which led to damages that include attorney's fees, lost earnings and earning capacity, and damage to plaintiff's reputation. ( See id. at ¶ ¶ 45-47).
While plaintiff appears to allege that O'Brien made multiple misrepresentations, (see, e.g., Am. Compl. at ¶ ¶ 42, 46, 58 & 75), the only specific allegations in the Amended Complaint relate to O'Brien's representation of his law school.
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Judgment must be entered " if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.
The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party fails to carry its initial burden of production, " the nonmoving party has no obligation to produce anything." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).
If the moving party has sustained its burden, the burden then shifts to the nonmovant to identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (A party opposing a properly supported motion for summary judgment " must set forth specific facts showing that there is a genuine issue for trial."). A factual dispute is material only if it affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth. SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). Summary judgment must be granted for the moving party if the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; see Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (parties bear the same substantive burden of proof as would apply at a trial on the merits).
" In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the " Statement of Genuine Disputes" and (b) controverted by declaration or other written evidence filed in opposition to the motion." Local Rule 56-3.
In determining whether a triable issue of material fact exists, the evidence must be considered in the light most favorable to the nonmoving party. See Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992). However, summary judgment cannot be avoided by relying solely on " conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (more than a " metaphysical doubt" is required to establish a genuine issue of material fact). " The mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to survive summary judgment; " there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
With this standard in mind, the court now turns to the arguments raised by defendants in their Motion.
DISCUSSION
Defendants argue that plaintiff's claims are barred by the applicable statutes of limitations. (See Motion at 19-21). The court will examine the statute of limitations for each claim.
I. FRAUD CLAIM AGAINST O'BRIEN AND WHITTIER.
Under California law, a fraud claim is subject to a three-year statute of limitations. See Cal. Code Civ. Proc. § 338(d). This limitations period is subject to the discovery rule, meaning " [a]n action for relief on the ground of fraud . . . is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud[.]" Id. " A plaintiff invoking the discovery rule defense must establish facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry." Galen v. Mobil Oil Corp., 922 F.Supp. 318, 322 (C.D. Cal. 1996) (internal quotation marks omitted). In other words, if " the alleged fraud occurred more than three years ago, Plaintiff bears the burden to show that [he] was not put on inquiry by any circumstances known to [him] or [his] agents at any time prior to the commencement of the three-year period preceding this lawsuit. Sec. Serv. Fed. Credit Union v. First Am. Title Co., 2012 WL 5954815, *14 (C.D. Cal. 2012), aff'd, 585 F.App'x 591 (9th Cir. 2014) (internal quotation marks omitted).
Here, the alleged fraud -- O'Brien and Whittier holding O'Brien out as a graduate of Whittier Law School -- took place well before the three-year limitations period expired. It is undisputed that O'Brien graduated from Beverly College of Law in 1972. (See App'x Evid., Exh. 4 (" O'Brien Decl.") at ¶ ¶ 3-4; O'Brien Ans. at ¶ 65). Indeed, O'Brien initially registered with the California State Bar (" State Bar") as a graduate of Beverly. (See O'Brien Decl. at ¶ 4; App'x Evid., Exh. 16). However, Whittier acquired the assets of Beverly in 1975, at which time the institution became known as the Whittier College Beverly School of Law. In the mid-1990's, the institution changed its name to Whittier Law School. (See App'x Evid., Exh. 1 (" Gordon Decl.") at ¶ 8-9; id., Exh. 3 (" Haythorn Decl.") at ¶ 2).
Since at least 1995, the California State Bar (" State Bar") has had a policy that when a law school is acquired by another educational institution, the name of the new institution will be used on the State Bar's website. (See App'x Evid., Exh. 10 (" Lambert Depo.") at 25-26). Further, when the name of a law school is changed, the name is automatically updated for all graduates of the law school. ( See id. at 33). O'Brien did not take any steps to change the name on the State Bar website himself; indeed, members of the State Bar cannot access the website to change the name of the law school they graduated from. ( See id. ). Therefore, since at least the mid-1990's, O'Brien's public profile has reflected that he graduated from Whittier Law School.
On November 12, 2007, O'Brien issued his Interim Award in the arbitration proceeding between plaintiff and his former client. (See Interim Award at 1). The Interim Award denied plaintiff any relief under the contingency fee agreement between Grigg and Chaney, finding the agreement to be " so exorbitant and wholly disproportionate to the services performed as to shock the conscience[.]" (Id. at 20).
O'Brien issued his Final Arbitration Award (" Final Award") on November 20, 2008. (See App'x of Evid., Exh. 50 (Final Award) at 9). On January 2, 2009, plaintiff filed a Petition to Vacate the Arbitration Award (" Petition"). ( See id., Exh. 51 (" Petition") at 1). In his Petition, Grigg asserted that O'Brien had been biased against him ( see id., Attachment 10(c)(2) at 81), and that O'Brien had failed to disclose all legally required subject matters to the parties (see, e.g., id. at 36-51), including his " Deficient Professional Background." (Id. at 36).
The record is undisputed that after O'Brien issued the Interim Award, in April 2008, plaintiff began to investigate O'Brien's background and qualifications. For example, plaintiff filed a " Motion to Disqualify Gregory C. O'Brien for Failure to Disclose" in state court, arguing that O'Brien had failed to disclose an " improper relationship" and had been subject to " undue influence." (See App'x Evid., Exh. 45 (" Motion to Disqualify") at 1-2; Motion at 23). In addition, plaintiff testified that he received O'Brien's resume and curriculum vitae in 2008 and by that point he had actually " lost faith in [O'Brien's] ability to serve as an arbitrator." (See App'x Evid., Exh. 9 (" Grigg Depo.") at 151-152 & 156; Motion at 24).
It is also undisputed that in April 2008, all the information plaintiff needed to pursue the fraud claim -- including O'Brien's resume and the websites for the State Bar, the ABA, and Whittier Law School -- against O'Brien and Whittier was clearly available to him. Indeed, such information was available to plaintiff even before the Motion to Disqualify was filed, as the subject information has been publicly available for years. (See Motion at 23-24). And yet, plaintiff did not file the original complaint in the instant matter until November 5, 2013 -- a lapse of more than five and a half years.
Plaintiff asserts that his claim is not time-barred because " ongoing fraud perpetrated by the Defendants prevented the Plaintiff from discovering his claims." (See Motion at 32); see also Grisham v. Philip Morris, Inc., 670 F.Supp.2d 1014, 1021 (C.D. Cal. 2009) (" A plaintiff who exercises reasonable diligence in attempting to discover a cause of action may be prevented from discovering relevant information due to a defendant's wrongdoing . . . [and a] defendant's fraud in concealing a cause of action against him will toll the statute of limitations[.]") (internal quotation marks omitted). However, the evidence of the " ongoing fraud" plaintiff refers to (see Motion at 32-33), is nothing more than facts that are undisputed, i.e., that O'Brien's law degree originated from Beverly and that Whittier Law School did not actually confer degrees to any students in 1972, that have no bearing on the issues before the court.
The court notes that plaintiff made no effort to put forth any evidence or argument relating to equitable tolling. (See, generally, Motion at 30-37).
Plaintiff also asserts that " Defendants' reliance on the 2008 proceedings is misplaced[]" because Grigg's " initial investigation . . . was not focused on O'Brien's substandard legal education, for Grigg had no reason to know that O'Brien's representations as to his schooling were inaccurate[.]" (Motion at 33). Plaintiff's assertions are unpersuasive. First, given that all the information plaintiff needed to evaluate O'Brien's " schooling" was available to plaintiff at the time he filed his Motion to Disqualify in April 2008, there is no dispute that plaintiff had actual or presumptive knowledge of facts sufficient to put him on inquiry. See Galen, 922 F.Supp. at 322.
Second, even assuming the court did not rely on the " 2008 proceedings, " there is no dispute that by January 2009, plaintiff was already investigating O'Brien's alleged " Deficient Professional Background." (See Petition, Attachment 10(c)(2), at 36). Indeed, plaintiff does not even address the 2009 proceedings in his opposition papers, effectively conceding that, at least by January 2009, he had begun to focus on O'Brien's " substandard legal education." (See, generally, Motion at 30-37).
The record is undisputed that plaintiff has been litigating this matter in some form since 2008, repeatedly attempting to set aside the arbitration award. What's more, plaintiff's contention that O'Brien was unqualified to serve as arbitrator is not a new one. In September 2012, plaintiff filed a motion for relief in the Bankruptcy Court for the Western District of Pennsylvania (" Bankruptcy Court") seeking to vacate the arbitration award as moot, which the Bankruptcy Court denied. (See Bankruptcy Court Opinion at 2). Plaintiff then filed a Motion for Reconsideration, along with a Second Motion for Relief, based in part on the argument that O'Brien was allegedly " engaged in a scheme of ongoing credential fraud because he did not hold a Juris Doctorate degree from Whittier College School of Law as he claimed." ( See id. at 5 & 17-18) (internal quotation marks omitted). The Bankruptcy Court dismissed this argument as " totally lacking in merit." ( See id. at 18).
The court finds plaintiff's contention rather puzzling because plaintiff makes no effort to explain why O'Brien's years as a lawyer and Superior Court judge have no relevance to O'Brien's qualifications to serve as an arbitrator. It strains credulity to assert that, after several years of practice and service as a Superior Court judge, the decisive factor in deciding whether an individual is qualified to serve as an arbitrator is whether or not he or she attended an ABA accredited law school. It seems clear to the court that the instant matter appears to be the latest in a series of attempts by plaintiff to avoid paying the arbitration award entered against him in the Underlying Dispute. After O'Brien awarded more than two million dollars to Chaney, plaintiff unsuccessfully petitioned to vacate the arbitration award in January 2009. (See App'x Evid., Exh. 51). The award was confirmed by the trial court and by the California Court of Appeal. ( See id., Exhs. 52-54). Plaintiff then filed multiple unsuccessful motions in the Bankruptcy Court for the Western District of Pennsylvania seeking " relief from judgments entered in California state courts." (See App'x Evid., Exh. 56 (" Bankruptcy Court Opinion")).
In responding to the Second Motion for Relief, O'Brien submitted a declaration regarding his law school degree. ( See id. ). Therein, O'Brien " clearly explain[ed] . . . that the law school was founded in 1966 as Beverly School of Law and that Beverly joined Whittier College in 1975 at which time diplomas were reissued and degrees were retroactively conferred on all alumni from Beverly under the Whittier Name." (Id.). The court finds no reason here to suspect otherwise.
In short, plaintiff has not put forth any evidence that defendants perpetrated or attempted to perpetrate fraud of any sort. Further, even if there was such evidence, the fraud claim would be tolled " only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it." O'Very v. Spectratek Techs., Inc., 2003 WL 25781235, *3 (C.D. Cal. 2003). Under the circumstances, the court finds that plaintiff had more than " presumptive knowledge of facts sufficient to put him on inquiry, " see Galen, 922 F.Supp. at 322, and is thus barred from pursuing his fraud claim against O'Brien and Whittier Law School.
II. NEGLIGENT MISREPRESENTATION AND NEGLIGENCE CLAIMS AGAINST ADR SERVICES.
As for plaintiff's negligent misrepresentation and negligence claims against ADR Services, these claims are also predicated upon O'Brien holding himself out as a Whittier Law School graduate. (See Am. Compl. at ¶ ¶ 87-103). Plaintiff contends that ADR Services " had a duty to verify the accuracy of [O'Brien's] representations[, ]" and that ADR Services breached this duty when it " failed to verify the actual institution at which Mr. O'Brien studied law[.]" ( See id. at ¶ ¶ 91 & 99-100). Both negligent misrepresentation and negligence are governed by two-year statutes of limitation. See Cal. Code Civ. Proc. § 339(1). For the reasons provided above, plaintiff is barred from bringing these claims against ADR Services.
A negligent misrepresentation claim sometimes is governed by a three-year statute of limitations if it is grounded in fraud, see Fanucci v. Allstate Ins. Co., 638 F.Supp.2d 1125, 1133 n. 5 (N.D. Cal. 2009) (applying a three-year statute of limitations to a claim for negligent misrepresentation where plaintiff's complaint included allegations of deceit and defendant had no reasonable grounds for believing that his representations were true when made), but plaintiff's claims would be time-barred even under the three-year limit. See supra at § I.
III. PENNSYLVANIA UTPCPL AND CALIFORNIA UCL CLAIMS AGAINST ALL DEFENDANTS.
Plaintiff also alleges that all defendants violated the unfair business practices statutes of both Pennsylvania and California. (See Am. Compl. at ¶ ¶ 104-20). Again, plaintiff's claims are based only on O'Brien's alleged falsification of his law school credentials, i.e., defendants allegedly violated the Pennsylvania UTPCPL and California UCL by " misrepresent[ing] the quality and nature of O'Brien's credentials" and " misrepresent[ing] the nature, characteristics and/or qualities of Mr. O'Brien's services and/or commercial activities and false affiliation with Whittier College." ( See id. at ¶ ¶ 108 & 114).
As a threshold matter, a transferred diversity action generally uses the statute of limitations that would have applied had the action originated in the transferee state. See 14D Wright & Miller, Federal Practice & Procedure § 3827, 532 n. 23 (citing Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir. 2007)). The instant matter was transferred to this district from the Western District of Pennsylvania. (See Court's Order of April 14, 2014). Had the action originated in California, the applicable substantive law would have been the UCL, and unfair competition claims in California are governed by a four-year statute of limitations. See Cal. Bus. & Prof. Code § 17208.
While there may be " some dispute as to whether this four-year statute of limitations also applies to Section 17500 claims or if those claims are instead governed by California Code of Civil Procedure Section 338(a), which sets forth a default three-year statute of limitations for 'liability created by a statute, '" Harshbarger v. Philip Morris, Inc., 2003 WL 23342396, *5 (N.D. Cal. 2003), plaintiff is time-barred under both. See supra at § I.
Further, the parties do not dispute that the discovery rule applies to these claims as well. (See, generally, Motion at 21 & 34-35); see also Dean v. United of Omaha Life Ins., 2007 WL 7079558, *14-15 (C.D. Cal. 2007) (" The substance of [plaintiff's] UCL claim is analogous to a common law action for fraud, for which the discovery rule is applicable by statute. . . . We therefore hold the discovery rule applicable to UCL actions."). Thus, for the reasons stated above, plaintiff is barred from bringing his UCL claim against defendants.
CONCLUSION
Taking the facts in the light most favorable to the non-moving party, as the court must on defendants' motion for summary judgment, see Barlow, 943 F.2d at 1134, there are no genuine issues of material fact. Therefore, the court grants defendants' motion for summary judgment on all of plaintiff's causes of action.
This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED THAT defendants' Motion for Summary Judgment (Document No. 155) is granted. Judgment shall be entered accordingly.