Van Wagner v. Court of Master Sommeliers, Americas

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 GREGORY VAN WAGNER, et al., Case No. 22-cv-05001-EMC

8 Plaintiffs,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART INDIVIDUAL

DEFENDANTS’ MOTION TO DISMISS

10 COURT OF MASTER SOMMELIERS, AND STRIKE; AND DENYING

AMERICAS, et al., NARITO’S MOTION TO DISMISS

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Defendants. Docket Nos. 56, 57

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14 Plaintiffs Gregory Van Wagner, Daniel Pilkey, and Peter Bothwell have filed suit against

15 (1) a nonprofit organization known as the Court of Master Sommeliers, Americas (“CMS”), and

16 (2) fifteen individuals who were formerly members of the CMS Board of Directors.1 In 2018,

17 Plaintiffs passed an examination administered by CMS. As a result, they were certified as “Master

18 Sommeliers” and became members in the organization. Subsequently, CMS learned that there

19 was a cheating incident related to the examination. According to Plaintiffs, they were not

20 involved in the cheating incident. CMS, however, determined that all test results for the 2018

21 examination would be invalidated. Plaintiffs assert that CMS made this decision without

22 conducting a fair and impartial investigation. Plaintiffs thus filed suit.

23 Currently pending before the Court are two motions. One motion has been filed by all

24 individual defendants other than Mr. Narito (collectively, “Individual Defendants”). The other

25 motion has been filed by Mr. Narito. In both motions, the main challenge is to the claims for

26 breach of fiduciary duty (“BOFD”). Previously, one of the former board members, Mr. Stamp,

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1 Those individuals are: Devon Broglie, Matt Stamp, Peter Granoff, Craig Collins, Steve Poe, Eric

1 successfully contested the BOFD claim that had been asserted against him, but the Court gave

2 Plaintiffs leave to amend. See Docket No. 40 (minutes).

3 Having considered the parties’ briefs as well as the oral argument of counsel, the Court

4 hereby GRANTS the Individual Defendants’ motion to dismiss but DENIES the motion to strike

5 as moot. Mr. Narito’s motion to dismiss is DENIED. Plaintiffs have leave to amend the BOFD

6 claim as asserted against the Individual Defendants.

7 I. FACTUAL & PROCEDURAL BACKGROUND

8 In the operative first amended complaint (“FAC”), Plaintiffs allege as follows.

9 CMS is a California nonprofit mutual benefit corporation. See FAC ¶ 31. It has a Board

10 of Directors. See FAC ¶ 55. The Individual Defendants and Mr. Narito were all directors during

11 the relevant period of events.

12 CMS “touts itself as dedicated to setting the global standard of excellence for beverage

13 service within the hospitality industry.” FAC ¶ 31. CMS provides four levels of certification for

14 sommeliers. An examination is given for each level. The highest level is for “Master

15 Sommelier.” See FAC ¶ 33. A Master Sommelier is admitted as a member of CMS. See FAC ¶

16 36. Worldwide, there are only 269 Master Sommeliers. In the United States, there are 172. See

17 FAC ¶ 32. Master Sommeliers tend to make over $164,000 a year. See FAC ¶ 41 (noting that

18 individuals who have lower levels of certification tend to make less – between $50,000 and

19 $80,000).

20 The Master Sommelier examination “consists of three sections: a verbal theory

21 examination, an individual blind tasting and identification of six wines in 25 minutes, and a

22 practical service component that focuses on restaurant beverage service and salesmanship.” FAC

23 ¶ 38. Candidates “must pass all three sections . . . within a three-year period. . . . The lengthy

24 examination period reflects the fact that the average candidate requires two to three attempts to

25 pass the full examination.” FAC ¶ 39.

26 Plaintiffs each took the Master Sommelier examination in September 2018. See FAC ¶ 43.

27 At the examination, CMS offered the practical and tasting sections. See FAC ¶ 44. At the

1 passed. Plaintiffs were also admitted as members of CMS. See FAC ¶¶ 46-50.

2 Sometime before October 5, 2018, “CMS claimed to have learned that [Mr.] Narito, a

3 CMS member, CMS Director[,] and exam proctor for the September 2018 tasting [section]

4 improperly disclosed confidential test information about the tasting portion . . . via email to select

5 and specific candidates, two of whom also successfully passed the tasting portion and were

6 admitted as CMS members.” FAC ¶ 52. The CMS Board held four meetings, specifically, on

7 October 5, 8, 10, and 11, 2018. See FAC ¶ 56. During the October 5 meeting, the Board

8 “authorized further investigation into the matter and established a ‘special advisory committee to

9 oversee continued investigation by legal counsel; to report the results of the investigation to the

10 Board; and to make recommendations to the Board.’” FAC ¶ 58. The members of the special

11 advisory committee were Mr. Brogie, Mr. Stamp, Mr. Collins, Mr. Granoff, and Mr. Poe. See

12 FAC ¶ 59. Legal counsel who conducted the investigation was the firm Davis Wright Tremaine,

13 LLP (“Davis Wright”). According to Plaintiffs, because Davis Wright was already CMS’s outside

14 legal counsel prior to the investigation, it was not independent. See FAC ¶ 62.

15 Just three days later, on October 8, 2018, CMS concluded the investigation, stating that the

16 “‘investigation to date had established conclusively that it was impossible to determine who might

17 have received or spread the information.’” FAC ¶ 63. The investigation was inadequate. For

18 example, none of the CMS members who had passed the tasting portion of the September 2018

19 examination (including Plaintiffs) were interviewed. See FAC ¶¶ 65-68. Also, CMS did not ask

20 any of these members for emails, texts, or phone records. See FAC ¶ 71. Mr. Narito was not

21 interviewed either, nor were his emails reviewed – even though Mr. Narito’s employer offered his

22 work emails to CMS for review. See FAC ¶¶ 69-70.

23 According to Plaintiffs, CMS did not conduct a reasonable, independent investigation

24 because doing so “would have revealed the cheating and sexual misconduct in which the CMS

25 Board and CMS Members had engaged since at least 2009.” FAC ¶ 74; see also FAC ¶ 77

26 (alleging that “CMS intentionally did not conduct a proper investigation . . . in order to avoid the

27 discovery and exposure of past and ongoing improper sexual misconduct of and cheating by the

1 termination of the Board and CMS members’ CMS memberships”). See, e.g., FAC ¶¶ 84-86

2 (alleging that there was a cheating incident in 2009 on the theory section of the examination, and

3 that some of the candidates who passed that examination went on to become Board members,

4 including Mr. Broglie); FAC ¶¶ 90-91 (alleging that Mr. Stamp “had inappropriate sexual

5 relationships with two women who took the 2018 Exam” and that Mr. Broglie “had an

6 inappropriate sexual relationship with a junior-level CMS candidate whom he was mentoring).

7 Plaintiffs maintain that

8 [a] full and fair investigation by the CMS and its Board would have

required . . . it to engage an independent third party investigator to

9 conduct the investigation of the practices of the CMS relative to the

MS Exam, applications for the MS Exam, relationships between the

10 applicants and the CMS Board members and CMS members

generally, relationships between the CMS and CMS Members and

11 the wine industry, process for the selection of CMS members to

serve as “proctors” or administrators of the MS Exam, the MS Exam

12 protocols for day of Exam procedures and sequestration of

candidates.

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14 FAC ¶ 78 (emphasis added).

15 Plaintiffs contend that, “[h]ad CMS and the CMS Board conducted an independent

16 investigation, the results would have been available to the CMS members, including Plaintiffs,

17 who would have then had an opportunity to review the results of the investigation and fully

18 prepare for and have a full and fair hearing based thereon.” FAC ¶ 119. Plaintiffs also allege that

19 CMS’ unlawful suspensions have and continue to deny Plaintiffs the

right they have earned to participate in CMS events, to earn

20 compensation commensurate with being a Master Sommelier and to

have the opportunities that come with the title Master Sommelier.

21 CMS’ suspension has denied Plaintiff the right to the platform and

the public exposure provided by being a member of the CMS. The

22 CMS’ suspension of Plaintiffs has denied them the opportunity to

hone and maintain their wine and beverage skills by participating in

23 CMS events. The CMS’ suspension of Plaintiffs has cost them

endorsement and sponsorship opportunities. The CMS’ unlawful

24 suspensions of Plaintiffs have damaged Plaintiffs goodwill and

caused them substantial reputational harm, being cast as part of a

25 “cheating scandal” and having their Master Sommelier titles

stripped.

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27 FAC ¶ 129.

1 e.g., breach of contract. As to the Individual Defendants and Mr. Narito, however, Plaintiffs assert

2 only claims for BOFD.

3 II. DISCUSSION

4 A. Legal Standard

5 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain

6 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

7 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil

8 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss

9 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

10 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must .

11 . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d

12 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and

13 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.

14 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a

15 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient

16 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

17 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial

18 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

19 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The

20 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

21 possibility that a defendant has acted unlawfully.”2 Id. (internal quotation marks omitted).

22 B. Individual Defendants’ Motion to Dismiss and Strike

23 The gist of Plaintiffs’ claim against the Individual Defendants is that they breached their

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2 In their motion to dismiss, the Individual Defendants repeatedly use the phrase “more plausible

than not.” See, e.g., Ind. Defs.’ Mot. at 11-2 (arguing, e.g., that “[i]t is more plausible than not

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that the time and cost of such investigation [as Plaintiffs claim should have been done] would not

have been viable under the circumstances”). This is not the correct standard. The Ninth Circuit

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has stated that, “[i]f there are two alternative explanations, one advanced by defendant and the

other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to

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dismiss under Rule 12(b)(6). Plaintiff’s complaint may be dismissed only when defendant’s

1 fiduciary duty by failing to conduct and full and fair investigation into the cheating incident – and

2 that they did so to conceal their own past misconduct, including a prior cheating incident and

3 inappropriate sexual relationships.

4 The Individual Defendants argue first that the BOFD claim is not viable because it is not

5 plausible that a reasonable investigation would have encompassed all that Plaintiffs contend

6 should have been done. This argument lacks merit. It is a question of fact as to what would have

7 been a reasonable investigation. A reasonable jury could find that the investigation that was done

8 was lacking – e.g., because it was conducted in a short period of time, because Mr. Narito was not

9 interviewed, and because test takers were not interviewed either.

10 The Individual Defendants contend next that the BOFD claim should be dismissed because

11 it is not plausible that a reasonable investigation would have uncovered the asserted past

12 misconduct. This argument presents a closer call; however, at this juncture, the Court need not

13 resolve the dispute. Plaintiffs have claimed that the Individual Defendants did a truncated

14 investigation in order to avoid their prior misconduct from being exposed – i.e., to explain why the

15 Individual Defendants did what they did. But motive may not be an essential element of a BOFD

16 claim. See Gutierrez v. Girardi, 194 Cal. App. 4th 925, 932 (2011) (“‘The elements of a cause of

17 action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary

18 duty; and (3) damage proximately caused by the breach.’”); Knutson v. Foster, 25 Cal. App. 5th

19 1075, 1093-94 (2018) (“The breach of fiduciary duty can be based upon either negligence or fraud

20 depending on the circumstances.”); CACI 4100, Directions for Use (“The elements of a cause of

21 action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and

22 damage proximately caused by that breach. No fraudulent intent is required.”). In other words,

23 even without a bad motive, the Individual Defendants could arguably have failed to conduct a full

24 and fair investigation. On the other hand, motive may have some relevance to, e.g., the issues of

25 punitive damages and possibly causation. See Knutson, 25 Cal. App. 5th at 1094 (stating that

26 “[s]ubstantial factor causation is the correct causation standard for an intentional breach of

27 fiduciary duty”; adding that “[t]he authors of the Restatement Third of the Law Governing

1 differently from negligent breach”).

2 The Court holds, however, that the Individual Defendants have made one argument

3 challenging the BOFD claim that is meritorious. Specifically, Plaintiffs have failed to adequately

4 allege causation because they not alleged that a full and fair investigation would have led to a

5 different outcome – i.e., that there would not have been a “blanket” invalidation of the tasting

6 exam results or that Plaintiffs at least would not have had their tasting exam results invalidated. It

7 is not evident at this juncture, for instance, that an investigation could have ferreted out which test-

8 takers obtained the inside information resulting in disqualification of a limited few. Here, there is

9 evidence that multiple test-takers had access to the information. If cheaters could not reasonably

10 be identified and isolated, and there was a significant risk that many other unidentified test takers

11 also cheated, such that the breadth of cheating could not reasonably be ascertained, it is

12 conceivable that the Board may have made the same decision as it did here – to invalidate the

13 entire test.

14 In their papers, Plaintiffs suggest that they do not need to make such an allegation in order

15 to have a viable BOFD claim. Plaintiffs note that, in their complaint, they have alleged as follows:

16 “Had CMS and the CMS Board conducted an independent investigation, the results would have

17 been available to the CMS members, including Plaintiffs, who would have then had an

18 opportunity to review the results of the investigation and fully prepare for and have a full and fair

19 hearing based thereon.” FAC ¶ 119. According to Plaintiffs,

20 Plaintiffs do not allege – because it is not a basis of their claim –

what the CMS might have done with the information uncovered

21 from a legitimate investigation. Plaintiffs’ allegations are that the

Defendants intentionally did not conduct a full investigation, but

22 rather conducted a sham investigation and hearing to avoid the

discovery of prior cheating and sexual misconduct by members of

23 the CMS and Defendants themselves.

24 Opp’n at 6 (emphasis in original). In this regard, Plaintiffs seem to assert an intangible injury to

25 their procedural dignitary interests.

26 But any such argument ignores the true gravamen of their complaint – that as a result of

27 the disqualification and loss of their Master Sommelier certification, they have lost income. Nor

1 results in no tangible harm, but only a dignitary interest in the right to a fair hearing is actionable.

2 Traditional causation which results in measurable harm is a conventional element of a claim for

3 BOFD. See LaMonte v. Sanwa Bank Cal., 45 Cal. App. 4th 509, 517 (1996) (“In order to plead a

4 cause of action for breach of fiduciary duty against a trustee, the plaintiff must show the existence

5 of a fiduciary relationship, its breach, and damage proximately caused by that breach; the absence

6 of any one of these elements is fatal to the cause of action.”); Cal. Civ. Code § 3333 (“For the

7 breach of an obligation not arising from contract, the measure of damages, except where otherwise

8 expressly provided by this code, is the amount which will compensate for all the detriment

9 proximately caused thereby, whether it could have been anticipated or not.”); cf. Filbin v.

10 Fitzgerald, 211 Cal. App. 4th 154, 166 (2012) (“To prevail in a legal malpractice action, ‘[s]imply

11 showing the attorney erred is not enough.’ The plaintiff must also establish that, but for the

12 alleged malpractice, settlement of the underlying lawsuit would have resulted in a better

13 outcome.”).

14 Accordingly, the Court holds that the BOFD claim as currently pled is inadequate.

15 However, the Court shall give Plaintiffs leave to amend as this specific deficiency was not the

16 basis of the prior dismissal.

17 To the extent the Individual Defendants have moved to strike allegations in the amended

18 complaint, that motion is essentially moot in light of the Court’s ruling above. However, the

19 Court notes (as it did before) that the Individual Defendants’ motion to strike punitive damages is

20 more in the nature of a motion to dismiss. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d

21 970, 974-75 (9th Cir. 2010) (“hold[ing] that Rule 12(f) does not authorize district courts to strike

22 claims for damages on the ground that such claims are precluded as a matter of law”). The Court

23 also notes that, to the extent Plaintiffs pursue a theory of intentional BOFD, which would give rise

24 to the possibility of punitive damages, they should not lump the Individual Defendants together

25 but rather explain, with respect to each Individual Defendant, how he or she acted, e.g., with

26 malice.

27 C. Mr. Narito’s Motion to Dismiss

1 claim asserted against him. Mr. Narito argues that the claim must fail because, at the time that

2 Plaintiffs took the examination, they were not members of CMS and thus there was no fiduciary

3 relationship between them and Mr. Narito.

4 A fiduciary relationship is any relation existing between parties to a

transaction wherein one of the parties is . . . duty bound to act with

5 the utmost good faith for the benefit of the other party. Such a

relation ordinarily arises where a confidence is reposed by one

6 person in the integrity of another, and in such a relation the party in

whom the confidence is reposed, if he voluntarily accepts or

7 assumes to accept the confidence, can take no advantage from his

acts relating to the interest of the other party without the latter's

8 knowledge or consent. A fiduciary relation in law is ordinarily

synonymous with a confidential relation.

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In the commercial context, traditional examples of fiduciary

10 relationships include those of trustee/beneficiary, corporate directors

and majority shareholders, business partners, joint adventurers, and

11 agent/principal. Inherent in each of these relationships is the duty of

undivided loyalty the fiduciary owes to its beneficiary, imposing on

12 the fiduciary obligations far more stringent than those required of

ordinary contractors.

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14 Gilman v. Dalby, 176 Cal. App. 4th 606, 613-14 (2009) (internal quotation marks omitted).

15 “Existence of a . . . fiduciary relationship depends on the circumstances of each case and is a

16 question of fact for the fact trier.” Kudokas v. Balkus, 26 Cal. App. 3d 744, 750 (1972); see also

17 Hasso v. Hapke, 227 Cal. App. 4th 107, 150 (2014) (“[I]t is a question of fact whether, given the

18 circumstances of the case, there exists a confidential relationship giving rise to a common law

19 fiduciary duty.”).

20 The Court finds that there is a question of fact as to whether Mr. Narito stood in a fiduciary

21 relationship with Plaintiffs while they were test takers and not CMS members. A reasonable jury

22 could find that Plaintiffs placed confidence and trust in Mr. Narito as the proctor of the exam (i.e.,

23 to insure the validity of the exam and not to jeopardize the same), and that Mr. Narito accepted

24 that position of confidence and trust in accepting the position of proctor.

25 Accordingly, Mr. Narito’s motion to dismiss is denied.

26 III. CONCLUSION

27 For the foregoing reasons, the Court grants the Individual Defendants’ motion to dismiss

1 Plaintiffs have leave to amend their complaint as to the Individual Defendants if they can

2 || do so in good faith. Any amended complaint must address the causation deficiency identified

3 above. It would be helpful for Plaintiffs to clarify whether their BOFD claim is a claim for

4 || intentional BOFD or negligent. If Plaintiffs assert a claim for intentional BOFD, for which

5 punitives are possible, then, as noted above, Plaintiffs cannot lump all Individual Defendants

6 || together.

7 Plaintiffs shall have four weeks to amend their BOFD claim against the Individual

8 || Defendants.

9 This order disposes of Docket Nos. 56 and 57.

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11 IT ISSO ORDERED.

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13 Dated: December 28, 2023

LL

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EDW. M. CHEN

= 16 United States District Judge

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