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Jennifer Cory Trost, A Resident of the State of California v. Leilani P. Embernate

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII


December 6, 2011

JENNIFER CORY TROST, A RESIDENT OF THE STATE OF CALIFORNIA, PLAINTIFF,
v.
LEILANI P. EMBERNATE, A RESIDENT )
OF THE STATE OF HAWAII, FORMERLY DOING ) BUSINESS AS TYPICALLY TROPICAL PROPERTIES, LLC AND PACIFIC STAR MORTGAGE, INC.; TYPICALLY TROPICAL PROPERTIES, LLC, A HAWAII LIMITED ) LIABILITY COMPANY NOW KNOWN AS RAINBOW REAL ESTATE GROUP, LLC; AND PACIFIC STAR MORTGAGE, INC., A DISSOLVED HAWAII CORPORATION. DEFENDANTS.

The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS TYPICALLY TROPICAL PROPERTIES, LLC'S AND RAINBOW REAL ESTATE GROUP LLC'SMOTION TO DISMISS

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS TYPICALLY TROPICAL PROPERTIES, LLC'S AND RAINBOW REAL ESTATE GROUP, LLC'S MOTION TO DISMISS

I. INTRODUCTION

Defendants Typically Tropical Properties, LLC, and Rainbow Real Estate Group (collectively "Typically Tropical")*fn1 move to dismiss Plaintiff Jennifer Cory Trost's Complaint filed on July 25, 2011. Co-Defendant Leilani P. Embernate ("Embernate"), proceeding pro se, has filed an Answer and Counterclaim, but has not filed any position as to Typically Tropical's Motion.*fn2

The Motion primarily argues that the Complaint is barred by applicable statutes of limitations. The court heard the Motion on December 5, 2011, and orally ruled that (1) Counts One (fraud), Two (breach of fiduciary duty), and Three (breach of contract) are not time-barred, but that (2) Count Four (negligent and intentional infliction of emotional distress) is barred by a two-year statute of limitations. This Order provides an explanation of the oral rulings and addresses certain matters that were not discussed at the hearing.

II. BACKGROUND

The court need not repeat the allegations of the Complaint, which the court assumes as true for purposes of this Motion. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.1 (9th Cir. 2003). Essentially, the Complaint alleges a continuing "scheme to defraud" Plaintiff that began in October 2002 and ran to November 2006. It alleges a series of eleven real-estate related investment transactions whereby Plaintiff's real estate agent/mortgage broker/investment counselor also borrowed and loaned money from Plaintiff, commingled funds, and committed various acts of fraud or self-dealing without disclosure and without providing accountings. It alleges fraud, breach of fiduciary duty, breach of contract, infliction of emotional distress, and other counts seeking equitable remedies. It alleges that the activities were concealed from Plaintiff until November 2006. Doc. No. 1, Compl. ¶ 10.

The Complaint was filed on July 25, 2011. Because many of the transactions occurred before July 25, 2005 (six years prior to the filing of the Complaint), Typically Tropical moves to dismiss, primarily on statute of limitations grounds.*fn3

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]"

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Id. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S.at 555). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S.at 556). Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not show that the pleader is entitled to relief as required by Rule 8. Id.

A claim may be dismissed under Rule 12 as "barred by the applicable statute of limitations only when 'the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). Such motion should be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000) (citation omitted).

IV. DISCUSSION

A. Count One -- "Fraud, Misrepresentation, Concealment and Deceit"

Count One alleges that the continuing scheme and various transactions constituted fraud. A six-year statute of limitations under Hawaii Revised Statutes ("HRS") § 657-1(4)*fn4 applies to claims of fraud or fraudulent misrepresentation. See Eastman v. McGowan, 86 Haw. 21, 27, 946 P.2d 1317, 1322 (1997); Au v. Au, 63 Haw. 210, 217, 626 P.2d 173, 179 (1981); Mroz v. Hoaloha Na Eha, Inc., 360 F. Supp. 2d 1122, 1135 (D. Haw. 2005).

Here, the Complaint alleges sufficient details to establish a plausible continuing scheme to defraud through November 2006. That is, at least three transactions in the scheme to defraud occurred after July 25, 2005. As pled, Count I is not time barred.

B. Count Two -- "Damages for Breach of Fiduciary Duty"

Count Two alleges a breach of fiduciary duty. Typically Tropical characterizes a breach of fiduciary duty as a tort, and thus argues that the claim is barred by a two-year period in HRS § 657-7.*fn5 Indeed, some Hawaii authority indeed indicates that -- in deciding whether attorneys' fees can be awarded on such a claim -- breach of fiduciary duty can be characterized as a tort. See TSA Int'l Ltd. v. Shimizu Corp., 92 Haw. 243, 264, 990 P.2d 713, 734 (1999) ("TSA's claims for . . . breach of fiduciary duty sound in tort" under HRS § 607-14). But it can also be contractual in nature. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 886 (9th Cir. 2000) ("[W]here a party's breach of fiduciary duty claim is based on the non-performance or breach of contractual obligations and the complaint seeks damages flowing from that non-performance or breach, the claim would sound in assumpsit[.]") (applying Hawaii law).

"For a breach of fiduciary duty claim, 'the applicable statute of limitations is determined by -- as variously phrased -- the nature of the right sued upon, the primary interest affected by the defendant's wrongful conduct, or the gravamen of the action.'" Manosca v. Wachovia Mortg., 2011 WL 2970824, at *6 (N.D. Cal. July 20, 2011). This rule is consistent with Hawaii law. Cf. Kona Enters., 229 F.3d at 886. If the gravamen of a breach of fiduciary duty claim is fraud, then the fraud limitations period applies. See Monaghan v Ford Motor Co., 897 N.Y.S.2d 482, 484 (N.Y. App. Div. 2010) ("[W]here an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute [applicable to claims of fraud].") (New York law); Nev. State Bank v. Jamison Family P'ship, 801 P.2d 1377, 1382 (Nev. 1990) ("A breach of fiduciary duty is fraud and, therefore, the three-year statute of limitations [for fraud]" applies.) (Nevada law).

Accordingly, because Plaintiff's Complaint asserts a breach of fiduciary duty claim based on fraud, the applicable statute of limitations is HRS § 657-1(4). The gravamen of Plaintiff's breach of fiduciary duty claim is based on a broker's self-dealing and failures to disclose, and thus sounds in fraud.*fn6 Because the Complaint alleges breaches of fiduciary duty within the six-year period, Count Two may not be dismissed at this stage as time-barred.

C. Count Three -- "Damages for Breach of Contract"

A six-year statute of limitations applies to Count Three. See HRS § 657-1(1).*fn7 The Complaint alleges a continuing contractual relationship between Plaintiff and Defendants, and Plaintiff's counsel made clear at the hearing that Plaintiff alleges the existence of a single contract with Defendants continuing until November 2006. Accordingly, because events occurred within the six-year period, Count Three as pled is timely.

D. Count Four -- "Damages for Negligent/Intentional Infliction of Emotional Distress" Acc. Ins. Co., 986 F. Supp. 1334, 1336 (D. Haw. 1997) ("Negligent and intentional infliction of emotional distress claims are personal injury claims, and therefore fall within the limits outlined in H.R.S. § 657-7."). Accordingly, Count Four is facially time barred based on the allegations of the Complaint. Count Four is DISMISSED without leave to amend.*fn8

Count Four seeks recovery in tort for infliction of emotional distress (i.e., "damage or injury to persons or property"). The two-year limitation period under HRS § 657-7 applies to Count Four. See, e.g., Guillermo v. Hartford Life &

V. CONCLUSION

Defendant Typically Tropical's Motion to Dismiss is GRANTED in part and DENIED in part. Count Four is DISMISSED without leave to amend as to all Defendants. Counts One, Two, and Three, however, are not barred by applicable statutes of limitations and remain as to all Defendants.

IT IS SO ORDERED.

J. Michael Seabright

Trost v. Embernate et al., Civ. No. 11-00458 JMS-KSC, Order Granting in Part and Denying in Part Defendants Typically Tropical Properties, LLC's and Rainbow Real Estate Group, LLC's Motion to Dismiss


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