Taylor v. Grunigen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RICHARD P. TAYLOR,

Plaintiff,

v. CIVIL ACTION NO.

19-11947-MBB

ERIK V. GRUNIGEN,

Defendant.

MEMORANDUM AND ORDER RE:

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 115);

PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT

(DOCKET ENTRY # 120)

April 26, 2022

BOWLER, U.S.M.J.

Pending before this court are two motions for summary

judgment. The first, filed by defendant Erik V. Grunigen

(“defendant” or “Grunigen”) (Docket Entry # 115), is opposed by

plaintiff Richard P. Taylor (“plaintiff” or “Taylor”) (Docket

Entry # 194-2). The second, filed by plaintiff (Docket Entry #

120), is opposed by defendant (Docket Entry # 135).

PROCEDURAL BACKGROUND

Plaintiff initiated this action on September 13, 2019.

(Docket Entry # 1). The amended complaint1 brings eight causes of

1 As noted in this court’s memorandum and order dated April 26,

2022, the governing complaint in this action is the proposed

amended complaint (with exhibits) that plaintiff filed on March

30, 2020 (Docket Entry ## 20-1 to 20-49) (the “amended

complaint”). (Docket Entry # 207, p. 2, n. 2).

action: violation of section 17704.10(c) of California’s Revised

Uniform Limited Liability Company Act (“RULLCA”) (Count I);

breach of the “1210 Fire Rock LLC Operating Agreement” (Count

II); violation of section 17701.13(d)(7) of RULLCA (Count III);

violation of section 17704.09 of RULLCA (Count IV); violation of

section 16404 of California’s Revised Uniform Partnership Act

(“RUPA”) (Count V); fraud in violation of California common law

(Count VI); conversion in violation of California common law

(Count VII); and fraudulent conveyance in violation of the

California Civil Code (Count VIII). (Docket Entry # 20-1, ¶¶

156-210). Plaintiff voluntarily dismissed Count VIII. (Docket

Entry # 86). Defendant filed an amended answer and alleged two

counterclaims for breach of contract and setoff, both arising

under California common law. (Docket Entry # 29).

On April 25, 2022, this court issued a memorandum and order

dismissing counts IV and VII of the amended complaint. (Docket

Entry # 207). Accordingly, in adjudicating the parties’ motions

for summary judgment (Docket Entry ## 115, 120), this court

addresses only the remaining counts of the amended complaint

(counts I, II, III, V, and VI) and defendant’s two

counterclaims.

STANDARD OF REVIEW

Summary judgment is designed “‘to pierce the boilerplate of

the pleadings and assay the parties’ proof in order to determine

whether trial is actually required.’” Tobin v. Federal Express

Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts

Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). Summary

judgment is appropriate “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.” Fed. R. Civ. P.

56(a). It is inappropriate, in contrast, “if the record is

sufficiently open-ended to permit a rational factfinder to

resolve a material factual dispute in favor of either side.”

Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

In adjudicating a motion for summary judgment, “the court

must examine the ‘record in the light most favorable to the

nonmovant’ and must make ‘all reasonable inferences in that

party’s favor.’”2 Garcia-Garcia v. Costco Wholesale Corp., 878

F.3d 411, 417 (1st Cir. 2017) (quoting Ameen v. Amphenol Printed

Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015)). However,

“facts must be viewed in the light most favorable to the

2 Where, as here, the parties have each filed a motion for

summary judgment, the court must “determine whether either of

the parties deserves judgment as a matter of law on facts that

are not disputed.” Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d

164, 170 (1st Cir. 2004). Each motion for summary judgment is

therefore reviewed separately and factual disputes are resolved

in favor of the nonmoving party. See OneBeacon America Ins. Co.

v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241

(1st Cir. 2012) (viewing cross motions for summary judgment

“‘separately,’ in the light most favorable to the non-moving

party, and draw[ing] all reasonable inferences in that party’s

favor”).

nonmoving party only if there is a ‘genuine’ dispute as to those

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed.

R. Civ. P. 56(c)). As such, “[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment.” Id.

“An issue is ‘genuine’ when a rational factfinder could

resolve it [in] either direction,” and a “fact is ‘material’

when its (non)existence could change a case’s outcome.” Mu v.

Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir. 2018); see

Scott, 550 U.S. at 380 (“‘Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no “genuine issue for trial.”’”

(citation omitted)). “To succeed in showing that there is no

genuine dispute of material fact, the moving party must direct

[the court] to specific evidence in the record that would be

admissible at trial.”3 Ocasio-Hernandez v. Fortuno-Burset, 777

F.3d 1, 4–5 (1st Cir. 2015). “That is, it must ‘affirmatively

produce evidence that negates an essential element of the non-

moving party’s claim,’ or, using ‘evidentiary materials already

3 However, a court may examine all of the record materials on

file even when not cited by the parties. Geshke v. Crocs, Inc.,

740 F.3d 74, 77 (1st Cir. 2014); Fed. R. Civ. P. 56(c)(3).

on file . . . demonstrate that the non-moving party will be

unable to carry its burden of persuasion at trial.’”4 Ocasio-

Hernandez, 777 F.3d at 4–5 (quoting Carmona v. Toledo, 215 F.3d

124, 132 (1st Cir. 2000)). “[C]onclusory allegations,

improbable inferences, and unsupported speculation” are ignored.

Garcia-Garcia, 878 F.3d at 417 (citation and internal quotation

marks omitted). “[I]f the summary judgment record

satisfactorily demonstrates that the plaintiff’s case is, and

may be expected to remain, deficient in vital evidentiary

support, this may suffice to show that the movant has met its

initial burden.” Carmona, 215 F.3d at 133. Once the moving

party has “demonstrate[d] the absence of any genuine issue of

material fact,” “the burden shifts to the nonmoving party, who

must, with respect to each issue on which [he or] she would bear

the burden of proof at trial, demonstrate that a trier of fact

could reasonably resolve that issue in [his or] her favor.”

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st

Cir. 2010).

4 “[A]ffidavits and deposition testimony are effective in

[supporting or] opposing summary judgment only when they are given

on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or deponent (as the case may

be) is competent to testify about the matter in question.” Hannon

v. Beard, 645 F.3d 45, 49 (1st Cir. 2011); see also Fed. R. Civ.

P. 56 (“An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.”).

“Where . . . a defendant moves for summary judgment on the

basis of an affirmative defense – like the statute of

limitations – the defendant bears the burden of proof and

‘cannot attain summary judgment unless the evidence that he

provides on that issue is conclusive.’” Ouellette v. Beaupre,

977 F.3d 127, 135 (1st Cir. 2020) (quoting Torres Vargas v.

Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998)). “If the

defendant produces such conclusive evidence, ‘the burden shifts

to the plaintiff to establish that the statute of limitations

does not apply.’” Ouellette, 977 F.3d at 135 (citation

omitted). “If the application of the statute of limitations

‘turn[s] on disputed issues of fact, those facts must be

resolved by a jury.’” Schneider v. BMW of N. Am., LLC, No. 18-

CV-12239-IT, 2019 WL 4771567, at *7 (D. Mass. Sept. 27, 2019)

(quoting Nat’l Ass’n of Gov’t Emps. v. Mulligan, 854 F. Supp. 2d

126, 131 (D. Mass. 2012) (citation and internal quotation marks

omitted)).

Uncontroverted statements of fact in a L.R. 56.1 statement

of material facts comprise part of the summary judgment record.

See L.R. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12

(1st Cir. 2003) (admitting a date on summary judgment because

plaintiff failed to contest date in L.R. 56.1 statement);

Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st

Cir. 2003) (admitting undisputed material facts that plaintiff

failed to controvert). Defendant filed a L.R. 56.1 statement of

material facts (Docket Entry # 117-1), to which plaintiff filed

a response (Docket Entry # 194-1, pp. 1-14) and a statement of

additional facts (Docket Entry # 194-1, pp. 15-75). Plaintiff

also filed, in support of his own motion, a L.R. 56.1 statement

of material facts (Docket Entry # 120-1), to which defendant

filed a response (Docket Entry # 136, pp. 1-13) and two

additional facts (Docket Entry # 136, pp. 13-14).

I. Defendant’s Motion for

Summary Judgment (Docket Entry # 115)

FACTUAL BACKGROUND5

From 1998 through 2017, Taylor and Grunigen (collectively,

“the parties”) “engaged together in a series of real estate

development projects.” (Docket Entry # 117-1, p. 1, ¶ 1)

(Docket Entry # 194-1, p. 1, ¶ 1). The parties’ “projects were

constructed pursuant to partnership arrangements” that were

“typically verbal.” (Docket Entry # 117-1, p. 1, ¶ 2) (Docket

Entry # 194-1, p. 2, ¶ 2); see also (Docket Entry # 194-1, p. 2,

5 As noted previously, plaintiff filed not only a response to

defendant’s statement of material facts but also a 61-page

statement of additional facts. See (Docket Entry # 194-1, pp.

1-14) (plaintiff’s response to defendant’s statement of facts);

(Docket Entry # 194-1, pp. 15-75) (plaintiff’s statement of

additional facts). In adjudicating defendant’s motion for

summary judgment, this court reviewed the entire summary

judgment record, excluding statements inappropriate for

consideration on summary judgment (e.g., conclusory and

immaterial allegations).

¶ 8) (Docket Entry # 194-3, p. 2, ¶ 7).

“In or about 2013 and ending in 2017, the parties developed

two luxury residences . . . in a gated community located on Fire

Rock Loop in Templeton, California . . . .” (Docket Entry #

117-1, p. 2, ¶ 4) (Docket Entry # 194-1, p. 2, ¶ 4). The

parties developed the first residential project, known as “1610

Fire Rock Loop” (“1610 Fire Rock Loop” or “1610 Fire Rock Loop

project”), pursuant to an unwritten partnership agreement (the

“1610 Fire Rock Loop partnership”). (Docket Entry # 117-1, p.

2, ¶¶ 5-7) (Docket Entry # 194-1, p. 2, ¶¶ 5-7). The parties

agreed “to contribute their respective services and to ‘split

expenses and profits equally.’” (Docket Entry # 117-1, p. 2, ¶

7) (Docket Entry # 194-1, p. 2, ¶ 7) (citation omitted).

“During the acquisition and pre-development phase for 1610 [Fire

Rock Loop], [Taylor] took the lead in acquisition, project due

diligence, financial modeling, market and feasibility analysis,

[and] assembling a team of construction professionals” and,

“with the support of Grunigen and Chad Logan (‘Logan’), who

Grunigen had hired as [g]eneral [c]ontractor, prepar[ed] a

project budget.” (Docket Entry # 194-3, p. 5, ¶ 23); see

(Docket Entry # 119-1, p. 2, ¶ 3). At his deposition on

September 17, 2020 (Docket Entry # 118-5),6 Taylor testified that

he “handled most of the paperwork” (Docket Entry # 118-5, p. 63)

(Docket Entry # 194-1, p. 3, ¶ 12) (Docket Entry # 194-1, p. 3,

¶ 12) and the “conceptual design” of the house at 1610 Fire Rock

Loop (Docket Entry # 118-5, p. 63); see (Docket Entry # 194-3,

p. 5, ¶ 23). Grunigen, in turn, “prepared the construction and

permit drawings” and “either he or Logan calculated the

quantities of materials needed for the house.” (Docket Entry #

194-3, p. 5, ¶ 23). “Taylor deferred to Grunigen on matters

pertaining to his role, duties and obligations as the owner [and

seller] of the of the 1610 [Fire Rock Loop] lot, . . . as the

warrantor of the new home and in his role as the [a]rchitect of

[r]ecord who had prepared the construction plans and takeoffs.”

(Docket Entry # 194-3, p. 7, ¶ 29); see (Docket Entry # 118-5,

p. 65) (Docket Entry # 194-1, p. 3, ¶ 11).

For the second project, which began in 2014 or 2015 and was

known as “1210 Fire Rock Loop” (“1210 Fire Rock Loop” or the

“1210 Fire Rock Loop project”), the parties also agreed to be

partners and split profits equally (the “1210 Fire Rock Loop

partnership”). (Docket Entry # 117-1, p. 2, ¶¶ 17-19) (Docket

Entry # 194-1, p. 5, ¶¶ 17-19) (Docket Entry # 194-3, p. 18, ¶¶

6 Docket Entry # 118-5 is a transcript of Taylor’s deposition

testimony. See (Docket Entry # 118-5). This court cites to the

transcript using its internal page numbers.

75-77); see (Docket Entry # 118-5, p. 109). The parties

additionally agreed that Taylor would take “the lead” in

“procuring financing, . . . financial modeling, [and]

acquisition,” and Grunigen would take “the lead” in “permitting”

and “conceptual design.” (Docket Entry # 194-3, p. 18, ¶ 76);

see (Docket Entry # 118-5, p. 110) (Taylor’s deposition

testimony that, for 1210 Fire Rock Loop: he “processed the

bills”; Grunigen “more so did the design of the house” and, with

Logan, “handled the permitting”; and the parties “jointly . . .

determined . . the design theme, modifications, [and] speccing”

and “oversaw Shane [Derrick]”7).

For both the 1210 Fire Loop partnership and 1610 Fire Rock

Loop partnership (together, the “partnerships”), the parties

“were jointly responsible for the management, operation,

obligations, and duties of the [p]artnership[s] and agreed to

each be responsible for fifty percent of the costs, expenses,

liabilities, management, operations, obligations, and duties of

the [p]artnerships’ business.” (Docket Entry # 194-3, p. 5, ¶

22). To fund the 1210 Fire Rock Loop project and 1610 Fire Rock

Loop project (together, the “projects”), “Grunigen and [Taylor],

as individuals, borrowed funds from the Oakmont Fund, LLC

7 Grunigen hired Shane Derrick (“Derrick”) as one of the general

contractors for the 1610 Fire Rock Loop project and/or 1210 Fire

Rock Loop project. (Docket Entry # 194-3, p. 12, ¶ 50).

(‘Oakmont’), which [they] then loaned to the partnerships, with

the loans secured by [d]eeds of [t]rusts and personal

guarantees.” (Docket Entry # 194-3, pp. 2-3). The parties

“agreed to make loans to the [] partnerships from [their] own

personal funds, as necessary, on a fifty-fifty basis.” (Docket

Entry # 194-3, p. 3, ¶ 9); see (Docket Entry # 117-1, p. 2, ¶¶

7, 17-19) (Docket Entry # 194-1, pp. 2, 5, ¶¶ 7, 17-19) (Docket

Entry # 194-3, p. 18, ¶¶ 75-77). There were two “differences in

the financing structure between the [] projects”: (1) “Grunigen

and [Taylor] [] agreed to share the profits earned by the 1210

[Fire Rock Loop] project with Oakmont under a [p]rofit

[p]articipation [a]greement”; and (2) “the [d]eed of [t]rust for

1610 [Fire Rock Loop] was only granted by Grunigen, as he was

the sole owner of the property, while the [d]eed of [t]rust for

1210 [Fire Rock Loop] was granted by Grunigen and [Taylor] as

tenants in common.” (Docket Entry # 194-3, p. 3, ¶ 10).

The parties retained a bookkeeper for the projects (Docket

Entry # 117-1, pp. 2, 4, ¶¶ 10, 20) (Docket Entry # 194-1, p. 3,

¶ 10) and requested that the bookkeeper “maintain the general

ledgers for [the] projects in accordance with generally accepted

accounting principles (‘GAAP’)” (Docket Entry # 194-3, p. 4, ¶

14); see (Docket Entry # 173, p. 3, ¶ 14); see also (Docket

Entry # 117-1, p. 3, ¶ 10) (Docket Entry # 118-5, pp. 19-20).

“Between November 2013 and September 2016,”8 the bookkeeper

“maintained and, upon request, updated accounting records for

the [] partnerships.” (Docket Entry # 194-3, p. 4, ¶ 14).

“Except for communications and copies of backup to substantiate

the transactions in the [] ledger,” the bookkeeper “did not

maintain any of the other partnership or land ownership business

books, records, and business documents.” (Docket Entry # 173,

p. 2, ¶ 9) (Docket Entry # 194-3, p. 5, ¶ 18). The bookkeeper’s

records were available to the parties upon request. (Docket

Entry # 117-1, p. 3, ¶ 10) (Docket Entry # 194-3, p. 5, ¶ 19)

(Docket Entry # 173, p. 2, ¶ 5).

“From November 2013 to April 2014,” and consistent with the

1610 Fire Rock Loop partnership’s “internal controls,” “backup

documentation was provided for all project expenses paid to

contractors and other third-party suppliers.” (Docket Entry #

194-3, p. 7, ¶ 31); see (Docket Entry # 194-3, p. 4, ¶ 16).

“Beginning in or about April 2014, . . . Grunigen and Logan

began requesting that [Taylor] advance them funds for” various

construction materials and services for the 1610 Fire Rock Loop

project, “either by paying them directly or by depositing money

8 The bookkeeper’s affidavit, filed in support of Taylor’s

opposition, indicates that she provided services to the parties

“between June 2014 and into 2016.” (Docket Entry # 173, p. 2, ¶

4). For the purpose of Grunigen’s motion for summary judgment

(Docket Entry # 115), however, the exact time frame is

immaterial.

in accounts they maintained with suppliers.” (Docket Entry #

194-3, p. 7, ¶ 31). Grunigen and Logan “represented to [Taylor]

that the quantities they specified in the quotes and purchase

orders were based on takeoffs they had calculated” and

“requested that payment on change orders and expense

reimbursements without any backup and immediately” (Docket Entry

# 194-3, pp. 7-8, ¶ 31); “told [Taylor] that the advances were

needed to ensure timely completion of the 1610 [Fire Rock Loop]

project and/or to avoid price increases for materials” (Docket

Entry # 194-3, p. 8, ¶ 32); and “promised [Taylor] . . . that,

at or before completion of the project and windup, backup for

all unsubstantiated advance payments, reimbursements or change

orders they were requesting would be provided” (Docket Entry #

194-3, p. 8, ¶ 34). “Grunigen also promised [Taylor] at the

time that any excess funds or materials purchased would be

returned to the [1610 Fire Rock Loop] partnership.” (Docket

Entry # 194-3, p. 8, ¶ 34).

“By early June 2014, [Taylor] [began] raising with Grunigen

concerns that Logan was becoming increasingly combative and

essentially abandoning his multiple responsibilities for the

construction of 1610 [Fire Rock Loop] and the pre-development

phase of 1210 [Fire Rock Loop] (including permitting).” (Docket

Entry # 194-3, p. 9, ¶ 36); see (Docket Entry # 119-1, p. 2, ¶

7) (“In or about 2014, . . . Taylor and [Grunigen] began to

experience disagreements. Among other things, [the parties] had

different views of the quality of the work performed by the

general contractor and about certain costs of construction.”).

Grunigen “dismissed [Taylor]’s concerns and defended Logan[] . .

. .” (Docket Entry # 194-3, p. 9, ¶ 37).

“On September 14, 2014, Grunigen sold 1610 [Fire Rock Loop]

to Francisco and Molly Barroso (‘the Barrosos’)” and subsequently

delivered to them “a new home limited single-family home

warranty” (the “warranty”). (Docket Entry # 194-3, p. 11, ¶¶ 46-

47) (capitalization altered); see (Docket Entry # 196-2). “Once

the Barrosos took possession of 1610 [Fire Rock Loop,] they made

over fifty warranty claims,” one of which related to doors that

leaked during rainy weather. (Docket Entry # 194-3, pp. 12, 14,

¶¶ 50, 56); see also (Docket Entry # 119-1, p. 4, ¶ 22). The

parties disagreed as to the cause of the leaks: Taylor believed

that Logan’s “poor installation” was the root cause, while

Grunigen maintained that the doors were defective.9 (Docket Entry

# 20-1, ¶ 74) (Docket Entry # 29, p. 10, ¶ 74). “In June 2016,

9 Grunigen alleges that, “after [t]he door issue at 1610 Fire

Rock Loop was examined numerous times, including by

representatives of the door’s manufacturer and by several

contractors, he and the parties’ lawyer at the time, Anthony

DiMonte (“DiMonte”), “determined that settlement was the best

course of action.” (Docket Entry # 117-1, p. 10, ¶ 59). Taylor

alleges that “[n]o inspection by a third-party neutral of the

Barrosos’ windows and doors was ever conducted.” (Docket Entry

# 194-1, p. 30, ¶ 69); see also (Docket Entry # 194-3, p. 13, ¶

54).

Grunigen told [Taylor] that the Barrosos were going to sue both

of [the parties] if [the parties] did not pay them as much as

$100,000 in settlement of their purported door leak claim.”

(Docket Entry # 194-3, p. 14, ¶ 57). Taylor subsequently learned

that “the Barrosos had never threatened to sue [him], [and] only

threatened to sue Grunigen . . . .”10 (Docket Entry # 194-3, p.

14, ¶ 58). In November 2017, “Grunigen represented to [Taylor]

that” an inspection of the doors in July 2017 “and [the]

circumstances established liability under [the] [] warranty, that

Logan, the Barrosos, and their pool and patio contractors had no

liability, and that without a $50,000 payment to the Barrosos,

they would sue both” parties. (Docket Entry # 194-3, p. 14, ¶

60). Grunigen also told Taylor that he needed his agreement to

settle with the Barrosos so that DiMonte could “begin drafting a

settlement agreement and that he would provide . . . . backup

documentation to support his representation that” the doors

themselves were faulty, “that water intrusion existed, and that

it was covered under [the] warranty.”11 (Docket Entry # 194-3,

10 Grunigen maintains that, in 2017, the Barrosos threatened to

sue both him and Taylor. (Docket Entry # 117-1, p. 9, ¶ 55)

(Docket Entry # 119-1, p. 4, ¶ 22). In adjudicating Grunigen’s

motion for summary judgment, however, this court must review the

record in the light most favorable to Taylor. See Garcia-

Garcia, 878 F.3d at 417.

11 Taylor also indicated to Grunigen that, along with the backup

documentation, a condition to his agreement to settle with the

Barrosos was that there be “a neutral third-party evaluation” of

the leak issue. (Docket Entry # 118-5, p. 253).

pp. 14-15, ¶ 60).

After Taylor agreed to move forward with the settlement,

Grunigen settled with the Barrosos “by paying . . . $55,000.00

on June 11, 2018.”12 (Docket Entry # 119-1, p. 4, ¶ 22); see

(Docket Entry # 194-3, pp. 14-15, ¶¶ 60-61). It “was not until

2019 that Grunigen advised [Taylor] that he had paid the

Barrosos $55,000 in June [2018] . . . .” (Docket Entry # 194-3,

p. 15, ¶ 61); see also (Docket Entry # 119-1, p. 4, ¶ 23)

(Grunigen affirming that, on June 11, 2018, he “wired $55,000

from [his] personal checking account to” the Barrosos “to settle

the claim”). Taylor later testified that, during his settlement

discussions with Grunigen and DiMonte, he “was on antipsychotics

. . . and Trazodone, and also for a period painkillers . . . .”

(Docket Entry # 118-5, p. 257). Taylor has refused to pay half

of the $55,000 settlement payment (Docket Entry # 117-1, pp. 9-

10, ¶¶ 56, 60) (Docket Entry # 194-1, pp. 11-12, ¶¶ 56, 60), and

Grunigen has never provided Taylor with a copy of the settlement

agreement (Docket Entry # 194-3, p. 15, ¶ 62).

In June 2015, a couple months after Taylor realized the

parties “were about to exhaust the money . . . borrowed from

12 Grunigen maintains that he did so “on the advice of counsel”

(Docket Entry # 119-1, p. 4, ¶ 22), but Taylor alleges that he

“has never received from DiMonte . . . or Grunigen documentation

supporting Grunigen’s claim . . . that DiMonte had recommended

to Grunigen that he settle with the Barrosos to avoid expensive

litigation.” (Docket Entry # 194-3, p. 16, p. ¶ 66).

Oakmont and lent to the 1210 [Fire Rock Loop] partnership,”

“[Taylor] began contributing more than [his] fifty-percent share

to the payment of [the 1210 Fire Rock Loop] partnership[’s]

expenses.” (Docket Entry # 194-3, p. 20, ¶¶ 87-88). “From

October 2015 until August 2016, Grunigen did not contribute

towards” the expenses of, “or devote much time to the . . .

business or management of,” the 1210 Fire Rock Loop project or

partnership, “while [Taylor] continued . . . to manage the [1210

Fire Rock Loop] project with Derrick and make additional loans

to the [1210 Fire Rock Loop] partnership to cover expenses

incurred in completing a short punch list, landscaping, and

detailing.” (Docket Entry # 194-3, pp. 20-21, ¶ 93); see also

(Docket Entry # 117-1, p. 4, ¶ 21). Taylor did so on the

“expect[ation] that Grunigen would pay [him] the amount needed

to balance [the parties’] loan accounts at closing or during the

windup . . . .” (Docket Entry # 194-3, p. 21, ¶ 93).

“In August 2015, [Taylor] advised Grunigen that [he] was

experiencing health issues and that [he] was going to return

home to Massachusetts to seek medical treatment.” (Docket Entry

# 194-3, p. 21, ¶ 98). “Between March 2016 and thereafter[,]

[Taylor] kept either Grunigen [or] DiMonte generally informed

about [his] declining health issues and treatment as they

progressed.” (Docket Entry # 194-3, p. 21, ¶ 99).

In his later depositions, Taylor testified that: “the

amount . . . he advanced to pay 1210 Fire Rock Loop project

bills was $90,764.60” (Docket Entry # 117-1, p. 4, ¶ 23) (Docket

Entry # 194-1, p. 5, ¶ 23); “Grunigen did not pay his

proportionate share of 1210 Fire Rock Loop project expenses”

(Docket Entry # 117-1, p. 5, ¶ 25) (Docket Entry # 194-1, p. 6,

¶ 25); “from the summer of 2016 until the fall of 2018, [Taylor]

‘absolutely’ lacked the mental capacity to make business

decisions” (Docket Entry # 117-1, p. 4, ¶ 28) (Docket Entry #

194-1, p. 5, ¶ 26); “during the time he . . . lacked the mental

capacity to make business decisions, he had been diagnosed with

a ‘severe episode of recurrent major depressive disorder with

psychotic features’ and had been prescribed Trazodone and

Trileptal” (Docket Entry # 117-1, p. 4, ¶ 28) (Docket Entry #

194-1, p. 5, ¶ 28)13; “from the summer of 2016 to the fall of

2018[,] [Taylor] put business decisions in the hands of Grunigen

and . . . DiMonte, because [Taylor] could not take care of his

day to day needs and lacked the ‘capacity to do anything’”

(Docket Entry # 117-1, p. 4, ¶ 29) (Docket Entry # 194-1, pp. 5-

6, ¶¶ 27, 29)14; and that “because [Taylor] was unable to

13 In a response to one of Grunigen’s interrogatories, Taylor

noted that “by December 2016, [he] was in a 40-hour per week

outpatient mental health program, and was also preparing to

undergo kidney surgery . . . .” (Docket Entry # 118-6, p. 11);

see (Docket Entry # 117-1, p. 5, ¶ 26).

14 Taylor disputes this fact “as incomplete” because, although he

“trusted Grunigen and DiMonte to protect his interests[,] [t]hey

did not.” (Docket Entry # 194-1, pp. 6-7, ¶¶ 27-29). The fact

function mentally, he charged Grunigen with ‘taking care of the

Fire Rock stuff’ and to act on his behalf” (Docket Entry # 117-

1, p. 4, ¶ 31) (Docket Entry # 194-1, p. 5, ¶ 31).

“Because of Taylor’s [] inability to participate in the

[parties’] business affairs . . ., the parties, on the advice of

mutually-retained counsel, agreed to place the 1210 [Fire Rock

Loop] project property in a two-member limited liability company

and Grunigen agreed to assume responsibility for the parties’

business decisions.”15 (Docket Entry # 117-1, p. 6, ¶ 33)

(Docket Entry # 194-1, p. 7, ¶ 33) see (Docket Entry # 194-1, p.

52, ¶ 172) (Docket Entry # 194-3, p. 23, ¶ 106); see also

(Docket Entry # 198, p. 14) (email in which DiMonte notes that

“the plan . . . is to transfer title into an LLC to streamline

the process of transferring title while [] Taylor is engaged

with a personal health issue”). The parties formed the 1210

Fire Rock, LLC (the “LLC”), of which Grunigen was a managing

member and Taylor was a non-managing member. (Docket Entry #

presented by Grunigen that Taylor “put business decisions in the

hands of Gruingen” and DiMonte because of his lack of capacity

does not suggest that Grunigen and DiMonte ultimately protected

his interests. This court therefore includes the fact as

presented by Grunigen, as it is not a genuine dispute of

material fact. See Fed. R. Civ. P. 56(a).

15 Taylor disputes this fact “as incomplete to the extent it

suggests that Grunigen fulfilled his responsibilities as LLC

manager, which [Taylor alleges] he did not.” (Docket Entry #

194-1, p. 7, ¶ 33). This court disagrees that Grunigen’s

statement makes such a suggestion and therefore admits this

fact, as presented by Grunigen. See Fed. R. Civ. P. 56(a).

119-2, p. 1). “DiMonte and ADLI Law Group [(‘ADLI’)] provided

legal services to the LLC and Grunigen from [the LLC’s]

formation . . . through the sale of 1210 Fire Rock Loop by the

LLC on March 9, 2017.” (Docket Entry # 194-3, p. 28, ¶ 139).

“On January 4, 2017, Taylor and Grunigen entered into the

‘Operating Agreement of 1210 Fire Rock, LLC,’ which . . .

govern[ed] the conduct of the affairs of the LLC” (the

“operating agreement”).16 (Docket Entry # 117-1, p. 6, ¶ 34);

see (Docket Entry # 194-1, p. 8, ¶ 34) (Docket Entry # 194-1, p.

52, ¶ 173); see also (Docket Entry # 119-2) (operating

agreement). The parties subsequently executed deeds conveying

their individual interests in 1210 Fire Rock Loop to the LLC.

(Docket Entry # 194-3, p. 23, ¶¶ 110-11). After learning that

the filing of a “preliminary change of ownership” form was

required for proper conveyance of the property via the executed

deeds, Taylor “made numerous requests that Grunigen file the

form” but “none has been filed” to date. (Docket Entry # 194-3,

p. 24, ¶¶ 113-14). To Taylor’s knowledge, “Grunigen never

16 Taylor disputes that the parties’ entered into the operating

agreement on January 14, 2017, suggesting instead that the

parties did so “[o]n or about February 13, 2017.” See (Docket

Entry # 194-1, p. 8, ¶ 34) (Docket Entry # 120-1, p. 6, ¶ 17).

The operating agreement itself, however, provides that it was

“made as of January 4, 2017.” (Docket Entry # 119-2, p. 2).

Regardless, whether the correct date the parties entered into

the agreement was January 4, 2017 or February 13, 2017 is

immaterial for the purposes of defendant’s motion for summary

judgment (Docket Entry # 115). See Fed. R. Civ. P. 56(a).

retained a bookkeeper to prepare and maintain financial ledgers

for the LLC and did not maintain them himself.” (Docket Entry #

194-3, p. 24, ¶ 116).

The operating agreement is governed by California law. See

(Docket Entry # 119-2, p. 25, section 14.04). Under the

operating agreement, the LLC’s management is “vested in the

[m]anaging [m]ember,” Grunigen, who has the “exclusive power and

authority . . . to carry out the purposes of the [LLC] to

perform all acts and . . . undertakings which [he] may deem

necessary or advisable . . . and to take all actions not

inconsistent with . . . [the] [a]greement necessary to operating

the . . . [LLC] in accordance with [the] [a]greement and the

laws of California.” (Docket Entry # 119-2, p. 6, section

3.02(A)). As the managing member, Grunigen possesses a “duty of

care in the discharge of” his duties to the LLC and Taylor that

“is limited to refraining from engaging in grossly negligent

conduct, intentional misconduct, or a knowing violation of the

law.” (Docket Entry # 119-2, p. 6, section 3.07(A)); see

(Docket Entry # 117-1, p. 6, ¶ 36) (Docket Entry # 194-1, p. 8,

¶ 36). “[I]n the event of a disagreement regarding any

financial records or any matter related thereto,” the operating

agreement states that “the parties shall in good faith attempt

to resolve such disagreement . . . [and] if the parties cannot

agree such parties shall each submit their positions, together

with the basis for such positions, to any mutually acceptable

third party.” (Docket Entry # 119-2, p. 13, section 6.04); see

(Docket Entry # 117-1, p. 6, ¶ 35) (Docket Entry # 194-1, p. 8,

¶ 35).

With respect to capital contributions to the LLC, the

operating agreement provides, inter alia, that: (1) “in the

event that . . . funds . . . in excess of available loan

proceeds . . . are required to pay . . . expenditures of the

[LLC] . . ., then upon [m]ajority [a]pproval of the [m]embers,

each [m]ember shall contribute to the capital of the [LLC] . . .

his proportionate share of such required additional funds”

(Docket Entry # 119-2, p. 8, section 4.04(A)); (2) “the failure

by any [m]ember . . . to make any additional capital

contribution within fifteen (15) days after [the LLC’s] demand .

. . shall constitute . . . default by such [m]ember under [the]

[operating] [a]greement” (Docket Entry # 119-2, p. 8, section

4.04(B)(i)); and (3) “[a]fter an event of default . . ., the

defaulting [m]ember shall repay to the non-defaulting [m]embers

the amounts advanced on such [m]ember’s behalf, together with

interest thereon . . .” and the non-defaulting members may

“bring an action in law or in equity . . . to collect all

amounts to which the non-defaulting [m]embers are entitled [],

plus all costs and expenses of maintain such suit . . . .”

(Docket Entry # 119-2, p. 8, section 4.04(B)(ii)); see (Docket

Entry # 117-1, p. 6, ¶ 37) (Docket Entry # 194-1, p. 8, ¶ 37).

“No vote for [m]ajority [a]pproval,” which would trigger the

default provision in section 4.04(B)(i) of the operating

agreement, “was ever taken for a capital contribution call.”

(Docket Entry # 117-1, p. 7, ¶ 39) (Docket Entry # 194-1, p. 9,

¶ 39); see (Docket Entry # 119-2, p. 8, section 4.04(B)(i)).

Finally, section 6.02 of the operating agreement requires

Grunigen to maintain and, after the end of each fiscal year,

furnish to Taylor certain financial and tax documents of the

LLC. (Docket Entry # 119-2, pp. 11-12, sections 6.02(C), (D)).

The operating agreement requires that the financial statements

be prepared in accordance with GAAP. See (Docket Entry # 119-2,

p. 12, section 6.02(C)).

“Immediately prior to the closing of the 1210 Fire Rock

Loop [p]roject, Taylor communicated with the title company and

his attorney to discuss what he claimed was a loan to the LLC in

the approximate amount of $66,519.26.” (Docket Entry # 117-1,

p. 7, ¶ 43) (Docket Entry # 194-1, p. 9, ¶ 43); see (Docket

Entry # 20-1) (“In January 2017, Messrs. Grunigen and DiMonte

received a demand, via FATCO [the title company], that Taylor be

paid from the closing on 1210 Fire Rock Loop the approximately

$66,519.26 he had lent the [1210 Fire Rock Loop]

[p]artnership/LLC to complete 1210 Fire Rock Loop.”). Taylor

subsequently testified, inter alia, that: (1) he told the title

company “the amount could change” in that it “could go up or

down or might go away” (Docket Entry # 117-1, p. 7, ¶ 44)

(Docket Entry # 194-1, p. 9, ¶ 44); see (Docket Entry # 118-5,

p. 317); (2) he received an email from DiMonte noting that his

“contribution [of the $66,519.26] had to come off the closing

statement” (Docket Entry # 118-5, pp. 317-18); see (Docket Entry

# 117-1, p. 7, ¶ 45) (Docket Entry # 194-1, p. 9, ¶ 45); and (3)

DiMonte “struck [] off” the “contribution,” which Taylor

suggests was done with Grunigen’s authorization (Docket Entry #

118-5, pp. 318-19) (“[]DiMonte struck [the contribution] off . .

. . I have no reason to believe he would do anything without

having the LLC manager authorize him to do that.”). Taylor also

testified that Grunigen and DiMonte “never assigned [his] loan

to the LLC.” (Docket Entry # 118-5, pp. 320). He further

testified that he advanced $90,764.06 to the 1210 Fire Rock Loop

partnership “based on the filed tax returns and the final

verified financials” and explained that he previously alleged

that he had advanced approximately $134,000 based on “the best

knowledge available to [him]” at the time.17 (Docket Entry #

17 The amended complaint alleges that Taylor “made loans to . . .

[the] LLC totaling $134,113.53 (including interest) . . . .”

(Docket Entry # 20-1, p. 44, ¶ 168) (emphasis added). Taylor

later testified that he was “really not a hundred percent sure

if [he] made a loan to the . . . [1210 Fire Rock Loop] LLC,” as

opposed to the 1210 Fire Rock Loop partnership. (Docket Entry #

118-5, pp. 457-59). He then noted, based on “the true and best

information” available at the time of his deposition, that he

118-5, pp. 317-18); see also (Docket Entry # 117-1, p. 8, ¶ 49)

(Docket Entry # 194-1, p. 10, ¶ 45) (Docket Entry # 194-3, pp.

26-27, ¶¶ 132-33). “In 2017, the 1210 Fire Rock Loop project

was sold.”18 (Docket Entry # 117-1, p. 7, ¶ 41) (Docket Entry #

“loaned approximately $90,764.50 out of [] pocket to the [1210

Fire Rock Loop] project,” “[n]one of” which “was advanced to the

LLC.” (Docket Entry # 118-5, pp. 459, 461, 463). In his

affidavit filed in support of his opposition to Grunigen’s

motion for summary judgment, Taylor indicates that he made loans

to both the 1210 Fire Rock Loop partnership and LLC. (Docket

Entry # 194-3, p. 26, ¶ 132). He also affirms that “[t]he

principal amount of [his] loan during the 1210 [Fire Rock Loop]

[p]artnership” was “between $85,000 and $95,000 through the

reconciliation process” and, with the addition of “the amounts

[he] loaned to the LLC in 2017, “the total principal” was

“around $120,000.” (Docket Entry # 194-3, p. 27, ¶ 134).

18 In Grunigen’s statement of facts, he states that plaintiff’s

“alleged loans were never listed on the books and records of the

1210 [Fire Rock Loop] [p]artnership or the . . . LLC, but even

if the funds allegedly loaned by Taylor to the partnership had

been loaned to the LLC, none of the conditions that would

trigger the payment of interest, costs and fees, was met.”

(Docket Entry # 1117-1, p. 8, ¶ 50). In attempting to dispute

this, Taylor cites to three paragraphs in his statement of

additional facts in which he discusses the “estimated principal

amount [he] claims . . . he is owed on his loans to the 1210

[Fire Rock Loop] partnership and the LLC.” (Docket Entry # 194-

1, p. 55, ¶ 195); see (Docket Entry # 194-1, p. 10, ¶ 50). This

does not genuinely dispute Grunigen’s proposed fact that

Taylor’s “alleged loans were never listed on the books and

records of the 1210 [Fire Rock Loop] [p]artnership or the . . .

LLC.” (Docket Entry # 1117-1, p. 8, ¶ 50). Taylor also notes,

however, that “Grunigen has thus far refused to provide final,

reconciled, verified and complete books of account for the LLC.”

(Docket Entry # 194-1, p. 55, ¶ 195); see (Docket Entry # 194-3,

p. 27, ¶ 133). Thus, because Taylor suggests that it is unclear

whether the final books and records would reflect his purported

loans, and because this court must review the record in the

light most favorable to Taylor, this court declines to admit on

summary judgment Grunigen’s proposed fact that the loans were

never reflected on the books and records of the 1210 Fire Rock

Loop partnership or LLC. See Garcia-Garcia, 878 F.3d at 417.

194-1, p. 9, ¶ 41).

Around “the sale of 1210 Fire Rock Loop project,” Grunigen

began working with “Taylor’s friend and attorney-in-fact, Kenley

Branscome (‘Branscome’) to assist in working with the bookkeeper

and preparing the necessary K-1’s for the LLC.” 19 (Docket Entry

# 117-1, p. 8, ¶¶ 51-52) (Docket Entry # 194-1, p. 10, ¶¶ 51-

52). “On May 17, 2018, Branscome reported to Grunigen that he

had the ledger, and that the K-1[] could be completed [based on

the ledger], once Grunigen” sent him an email with the

“expenses.” (Docket Entry # 117-1, p. 8, ¶ 53) (Docket Entry #

194-1, p. 11, ¶ 53); see (Docket Entry # 163-1) (May 17, 2018

email from Branscome to Grunigen). On May 31, 2018, Grunigen

reported to Branscome that he was “working on [the] expenses for

the k1’s [sic].” (Docket Entry # 163-1, p. 20). On September

13, 2018, Grunigen asked Branscome to “send [him] the k1’s

19 Grunigen alleges that, after the sale of 1210 Fire Rock Loop,

he relied on Branscome “to assist in working with the bookkeeper

and preparing the necessary K-1’s for the LLC.” (Docket Entry #

117-1, p. 8, ¶ 51). An affidavit by the bookkeeper indicates

that she “never worked with [] Branscome in any capacity related

to 1610 or 1210 [Fire Rock Loop] and [has] not communicated with

him in over a decade.” (Docket Entry # 183, p. 3, ¶ 12).

Branscome, in his own affidavit, confirms that he did not have

any contact with the bookkeeper, that he began assisting

Grunigen with the 1210 Fire Rock Loop project on Taylor’s behalf

in or around September 2016 (when Taylor’s “mental and physical

health” declined), and that he agreed to help Grunigen prepare

the LLC’s 2017 K-1 form and locate “any financial ledger for the

LLC [he] could find.” (Docket Entry # 163, pp. 4-6, ¶¶ 15, 21-

23); see (Docket Entry # 117-1, p. 8, ¶¶ 51-52) (Docket Entry #

119-1, p. 3, ¶¶ 17-18).

[sic]” and instructed Branscome to “just use the [HUD] and

disregard [Grunigen]’s additional expenses” because he did not

“care about the loss.” (Docket Entry # 163-1) (September 13,

2018 text from Grunigen to Branscome); (Docket Entry # 119-2, p.

37) (same). When Branscome failed to respond, Grunigen followed

up on his request three times before Branscome finally indicated

he would have the K-1 ready by October 10, 2018. See (Docket

Entry # 163-1, p. 22). Branscome prepared the K-1 form with the

ledger and HUD statement but without any “other information or

documents.” (Docket Entry # 163, p. 6, ¶¶ 26-27). He sent a

draft of the K-1 form to Grunigen on October 15, 2018. (Docket

Entry # 163, p. 7, ¶ 27); see (Docket Entry # 119-3, p. 2)

(October 15, 2018 email from Branscome to Grunigen).

“In April 2019, [Taylor] became aware that, during the

period Grunigen managed the LLC, at least $20,423 of the funds”

in a trust account Taylor had established with ADLI “were used

to pay for matters related to the LLC without [his]

authorization.” (Docket Entry # 194-3, p. 28, ¶ 141). The

trust funds were “only to be used to cover [Taylor’s] personal

legal expenses while [he] was ill.” (Docket Entry # 194-3, p.

28, ¶ 140). Despite Taylor’s requests that Grunigen and/or

DiMonte “refund the funds debited from [his trust] account or at

least half plus the overcharges for check cashing and a double

billing and [] their assurances . . . that the funds would be

returned,” no funds have been returned to Taylor. (Docket Entry

# 194-3, p. 28, ¶ 142).

On June 7, 2019, Taylor emailed Gary Casmano of Oakmont and

requested that he forward various documentation “regarding 1210

Fire Rock Loop,” including a “copy of [the] ‘audit’ of 1210

Firerock [sic] project records that [Casmano] indicated was

being completed in 2017.” (Docket Entry # 198-3, p. 1). Taylor

then forwarded the email to Grunigen, requesting that he, “as

manager of [the] [LLC],” “follow up with [Casmano] to ensure he

promptly responds to” Taylor’s requests. (Docket Entry # 198-3,

p. 1). On June 11, 2019, Taylor emailed Grunigen and requested

a “copy of the cancelled check to Francisco [Barroso] for

$55,000,” a “copy of any cancelled checks that should be added

to the project ledgers for a final CPA validation,” and an

update on the “[s]tatus [of] the LLC [t]ax [r]eturn and proposal

for validating the 1210 [Fire Rock Loop] project ledger.”

(Docket Entry # 198-3, p. 5).

On June 10, 2019, Taylor noted in an email to Grunigen that

Grunigen owed him “a debt in the amount of $121,156 . . . plus

interest for the debt related to the 1210 Firerock [sic] Loop

matter,” which was “originally due in full on or about March 8,

2017.” (Docket Entry # 198-2, p. 30). Taylor also “recognized

[that Grunigen] may have off-sets up to $27,500 to the total

amount due with regards to the 1610 Fire rock loop door leak

matter . . . .” (Docket Entry # 198-2, p. 30). Taylor

requested that Grunigen “forward copies of all documentation and

third party evaluations [he] used to determine the $12,000 +/-

of doors were defective, substantiated a $50,000 settlement as a

reasonable, and that an added $5,000 was due the [Barrosos],” as

well as “copies of [the] executed settlement agreement,

cancelled check payable to the [Barrosos] and evidence the

subject doors were replaced.” (Docket Entry # 198-2, p. 30).

According to Taylor, “Grunigen has thus far refused to

provide final, reconciled, verified and complete books of

account for the LLC.”20 (Docket Entry # 194-3, p. 27, ¶ 133).

Grunigen belatedly filed the LLC’s 2017 tax return in 2021.

(Docket Entry # 119-1, p. 4, ¶ 26); see (Docket Entry # 117-1,

p. 10, ¶ 63) (Docket Entry # 194-1, p. 12, ¶ 64) (Docket Entry #

194-3, p. 31, ¶ 156). “Taylor and his accountant [initially]

told [Grunigen] that, in their opinion, [the LLC tax return]

need not be filed,”21 but Grunigen ultimately filed the tax

20 Grunigen, in turn, maintains that he has “repeatedly provided

whatever books and records [he has] for the LLC to Taylor, but

[has] not provided them according to GAAP, as [he has] been

advised that GAAP preparation has no application in this case,

and because such effort would be very expensive.” (Docket Entry

# 119-1, p. 4, ¶ 25).

21 Although plaintiff disputes this fact (Docket Entry # 194-1,

pp. 12-13, ¶ 64), it is admitted on summary judgment because he

failed to cite to the record in disputing such fact. See L.R.

56.1; Fed. R. Civ. P. 56(e); Cochran, 328 F.3d at 12; Stonkus,

322 F.3d at 102; see also Brown v. CitiMortgage, Inc., No. CV

16-11484-LTS, 2018 WL 2739932, at *2 (D. Mass. Apr. 13, 2018)

return “[w]hen Taylor changed his mind.” (Docket Entry # 119-1,

p. 4, ¶ 26).

DISCUSSION

Defendant moves this court to: (1) “enter summary judgment

on . . . all counts currently remaining in the [a]mended

[c]omplaint[] in his favor[] by dismissing each such count with

prejudice”; and (2) “grant summary judgment in his favor on both

counts set forth in his [c]ounterclaims, with entry of judgment

in the amount of $27,500.00 against [plaintiff].” (Docket Entry

# 115, p. 1). As noted previously, counts I, II, III, V, and VI

are the remaining causes of action before this court. See

(Docket Entry # 207).

A. Count I: Violation of Section 17704.10(c) of RULLCA

Count I alleges violation of section 17704.10(c) of RULLCA

(“section 17704.10(c)”), which requires a manager of “a limited

liability company with more than 35 members” to “cause an annual

report to be sent to each of the members not later than 120 days

(“[Plaintiff] purports to dispute [defendant’s] assertion of

fact but cites no admissible evidence. Thus, the fact is deemed

admitted.”). Plaintiff’s (purportedly “corrected”) response to

defendant’s statement of facts and plaintiff’s statement of

additional facts (together, Docket Entry # 194-1) are littered

with not only typographical errors (e.g., plaintiff’s surname is

misspelled as “TacOylor” in the very first sentence of his

response) but also incorrect citations to the record, which puts

the burden on this court to sift through the various affidavits

and other documents he filed to find the correct references.

This court, however, cannot work around plaintiff’s failure to

cite to the record at all.

after the close of the fiscal year,” and such report must

include “an income statement and a statement of cashflows for

the fiscal year.” Cal. Corp. Code § 17704.10(c); see (Docket

Entry # 20-1, pp. 41-42). Along with other defenses to Count I,

defendant argues that plaintiff “cannot establish that he is

entitled to any relief” under section 17704.10(c) because that

section applies only to limited liability companies with more

than 35 members and the “1210 Fire Rock LLC is a two-member

entity.” (Docket Entry # 116-2, p. 8). Plaintiff does not deny

that section 17704.10(c) is applicable to only limited liability

companies with more than 35 members (and that the LLC has only

two members) but nevertheless insists that defendant’s reliance

on section 17704.10(c) is “misplaced” because the operating

agreement required defendant “to prepare and maintain books of

account in accordance with GAAP and provide a statement of the

balance in Taylor’s capital account . . . .” (Docket Entry #

194-2, p. 3).

Plaintiff entirely misses (or, more accurately, ignores)

the point. As defendant notes, it is undisputed that the LLC

consists (and always has consisted) solely of two members:

plaintiff and defendant. (Docket Entry # 116, p. 8); see

(Docket Entry # 20-1, p. 32, ¶ 119) (Docket Entry # 117-1, p. 6,

¶ 33) (Docket Entry # 194-1, p. 7, ¶ 33); see also (Docket Entry

# 194-1, p. 52, ¶ 172) (Docket Entry # 194-3, p. 23, ¶ 106). It

is also clear that section 17704.10(c) applies only to those

companies with more than 35 members. See Cal. Corp. Code §

17704.10(c). Accordingly, plaintiff is not entitled to relief

under section 17707.10(c), summary judgment on Count I is

appropriate, and this court need not address the parties’ other

arguments as to Count I.22 See Cal. Corp. Code § 17704.10(c);

Fed. R. Civ. P. 56(a).

B. Count II: Breach of the Operating Agreement

Count II alleges that defendant breached various provisions

of the operating agreement. (Docket Entry # 20-1, p. 44). The

amended complaint first alleges that defendant, as managing

member of the LLC, breached his obligation under section 6.02(C)

of the operating agreement (“section 6.02(C)”) to, within 90 days

of the end of each fiscal year:

prepare an [a]nnual [r]eport of the LLC which included a

balance as of the end of such fiscal year; a profit and

loss statement for the LLC for such fiscal year; a

statement of the balance in [defendant] and [plaintiff]’s

capital account; the amount of their shares of the LLC’s

income, gain, losses, deductions and other relevant items

for [f]ederal income tax purposes; and copies of any

other financial statements of the [LLC] (balance sheets,

statements of income, statement of the members’ equity,

and statement of cash flows) prepared in accordance with

GAAP.

(Docket Entry # 20-1, pp. 42-43, ¶¶ 163-64); see (Docket Entry #

22 Additionally, to the extent that plaintiff now relies on a

breach of the operating agreement to seek relief under Count I,

plaintiff already alleges a breach of the agreement in Count II.

See (Docket Entry # 20-1, p. 42).

119-2, p. 12, section 6.02(C)). The amended complaint next

alleges that defendant “breached his obligations under [s]ection

6.02(D) of the [o]perating [a]greement” (“section 6.02(D)”):

by failing to prepare or cause to be prepared all

[f]ederal, [s]tate, and local income tax and information

returns for the . . . LLC on a timely basis, cause such

tax and information returns to be filed with the

appropriate governmental authorities, and [] forward to

[plaintiff], within seventy-five (75) days after the end

of each fiscal year, a true copy of the LLC’s information

return filed with the Internal Revenue Service for the

preceding fiscal year.

(Docket Entry # 20-1, p. 43, ¶ 166); see (Docket Entry # 119-2,

p. 12, section 6.02(D)). Third, the amended complaint alleges

that defendant breached his obligation under section 4.04(A) of

the operating agreement (“section 4.04(A)”) “to contribute to

the capital of the LLC his proportionate share of [] required

additional funds,” while plaintiff loaned $134,113.53 to the

LLC.23 (Docket Entry # 20-1, p. 43-44, ¶¶ 167-68); see (Docket

Entry # 119-2, p. 8, section 4.04(A)). Additionally, according

to plaintiff, defendant’s “failure to make an additional capital

contribution” under section 4.04(A) “constituted an event of

default under the [o]perating [a]greement” that entitles

plaintiff to repayment of his loans and certain interest thereon

(along with, potentially, plaintiff’s costs and expenses of

23 As noted previously, plaintiff testified that: (1) “[t]he

number now” of “what [he is] owed” is no longer $134,113.53 and

instead $90,764.06, “based on the filed tax returns and final

verified financials.” (Docket Entry # 118-5, p. 463).

maintaining this action). (Docket Entry # 20-1, p. 43, ¶¶ 170-

71); see (Docket Entry # 119-2, p. 8, section 4.04(A)).

In moving for summary judgment on Count II, defendant

presents the following arguments: (1) defendant fulfilled his

obligation under the operating agreement to prepare and deliver

to plaintiff the requisite LLC financials (albeit, not according

to GAAP); (2) defendant filed the LLC’s tax return “for the one

year (2017) of its existence” (albeit, late); (3) defendant is

not obligated to pay half of plaintiff’s alleged loan of

$134,113.53 because the loan was to the 1210 Fire Rock

partnership (rather than the LLC) and “[a]ny claims for funds

advanced to an oral partnership are subject to a two year

statute of limitations, which expired” before the complaint was

filed; (4) “nowhere in Count II does [plaintiff] allege that he

suffered any harm as a result of any of [defendant’s] actions or

inactions,” despite “an allegation of such harm [being] an

essential element of [plaintiff]’s claims under Count II”; and

plaintiff “is barred from relief from this [c]ourt” for a breach

of the operating agreement because he “failed to comply with a

condition precedent” of the operating agreement (Docket Entry #

116-2, pp. 9-11).24

24 The “condition precedent” that defendant cites is a provision

stating: “in the event of a disagreement regarding any financial

records or any matter related thereto, the parties shall in good

faith attempt to resolve such disagreement . . . [and] if the

1. Defendant’s Failure to Prepare

the LLC’s Financials According

to GAAP in Breach of Section 6.02(C)

Under section 6.02(C), defendant – as the managing member

of the LLC – had an obligation to:

furnish to each [m]ember [i.e., plaintiff], within

ninety (90) days after the end of each fiscal year, an

annual report of the [LLC] . . . [that] include[s] a

balance as of the end of such fiscal year; a profit and

loss statement of the [LLC] for such fiscal year; a

statement of the balance in the capital account of such

[m]ember; the amount of such [m]ember’s share of the

[LLC]’s income, gain, losses, deductions and other

relevant items for [f]ederal income tax purposes; and

copies of any other financial statements of the [LLC]

(balance sheets, statement of income, statement of

[m]ember’s equity, and statement of cash flows) prepared

in accordance with GAAP.

See (Docket Entry # 119-2, p. 12, section 6.02(C)). Defendant

admits that, although he “did cause the LLC financials to be

prepared and delivered, [he] did not do so according to GAAP, as

he had been advised that GAAP has no application under the

circumstances and would [be] a [sic] unnecessary expense.”

(Docket Entry # 116-2, p. 9, n. 1); see (Docket Entry # 119-1,

p. 4, ¶ 25) (defendant affirming as such). He therefore

breached his obligation under section 6.02(C) to prepare the

financial documents required thereunder in accordance with

parties cannot[,] . . . such parties shall each submit their

positions . . . to [a] mutually acceptable third party.”

(Docket Entry # 116-2, pp. 9-10). (Docket Entry # 116-2, pp. 9-

10) (quoting (Docket Entry # 119-2, p. 13, section 6.04)).

GAAP.25 See (Docket Entry # 119-2, p. 12, section 6.02(C)).

2. Defendant’s Failure to Timely

File the LLC’s Tax Returns

in Breach of Section 6.02(D)

Under section 6.02(D), defendant - as the managing member

of the LLC – had an obligation to file the LLC’s tax returns “on

a timely basis” and to, within 75 days of the end of each fiscal

year, forward to plaintiff “a true copy of the [LLC’s]

information return filed with the Internal Revenue Service . . .

.” See (Docket Entry # 119-2, p. 12, section 6.02(D)).

Defendant concedes that, although he filed the LLC’s tax return

for 2017 (“the one year . . . of its existence”), he was “late”

in doing so. (Docket Entry # 116-2, p. 10). He therefore

breached his obligation under section 6.02(D) to file the LLC’s

tax returns in a “timely” manner. See (Docket Entry # 119-2, p.

25 Under section 3.07 of the operating agreement (“section

3.07”), defendant possesses a “duty of care in the discharge of”

his duties to the LLC and plaintiff that “is limited to

refraining from engaging in grossly negligent conduct,

intentional misconduct, or a knowing violation of the law.”

(Docket Entry # 119-2, p. 6, section 3.07(A)); see (Docket Entry

# 117-1, p. 6, ¶ 36). Additionally, in discharging his duties,

defendant is “fully protected in relying in good faith upon the

records of the [LLC] and upon such information, opinions,

reports or statements by” plaintiff or his agents “as to matters

. . . [he] reasonably believes are within such person[s’]

professional or expert competence . . . .” (Docket Entry # 119-

2, p. 6, section 3.07(A)). Because defendant does not cite or

otherwise rely on section 3.07 to defend his breaches of the

operating agreement alleged in Count II, this court does not

address section 3.07 in evaluating whether summary judgment is

appropriate as to Count II.

12, section 6.02(D)). He defends his untimely filing of the

LLC’s 2017 tax return on the basis that he did so only “after

[plaintiff] and his accountant earlier took the position that

they need not be filed, insofar [as] the members had reported

their income from the [1210 Fire Rock Loop] partnership and no

taxes would be due.” (Docket Entry # 116-2, p. 10); see (Docket

Entry # 119-1, p. 4, ¶ 26) (defendant affirming as such). As

noted previously, plaintiff failed to properly dispute this fact

and therefore it is admitted on summary judgment. See L.R.

56.1; Cochran, 328 F.3d at 12; Stonkus, 322 F.3d at 102; Brown,

2018 WL 2739932, at *2. Defendant does not, however, cite any

caselaw (or any authority) demonstrating how his reliance on the

opinions of plaintiff and his accountant excuses his breach of

section 6.02(D).26

26 As further detailed below, defendant frequently fails to cite

supporting authorities in his brief. Under L.R. 7.1(b)(1), a

movant is required to file with his or her motion “a memorandum

of reasons, including citation of supporting authorities, why

the motion should be granted.” L.R. 7.1(b)(1) (emphasis added).

This court “‘enjoy[s] broad latitude in . . . administering

[the] local rules’” and “may ‘demand adhered to specific

mandates contained in the local rules.’” Blanchard v. Cortes-

Molina, 453 F.3d 40, 46 (1st Cir. 2006) (brackets in original

omitted) (quoting NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 6

(1st Cir. 2002)); see Rissman Hendricks & Oliverio, LLP v. MIV

Therapeutics Inc., No. CV 11-10791-MLW, 2013 WL 12321564, at *1

(D. Mass. June 14, 2013) (“A district court may deny a motion,

without prejudice, for failure to comply with the Local

Rules.”); see also (“Failure to comply with any of the

directions or obligations set forth in [the local rules], or

authorized by, the[] rules may result in dismissal, default, or

the imposition of other sanctions as deemed appropriate . . .

3. Defendant’s Obligation to Pay

Half of Plaintiff’s Alleged Loan

Defendant argues that, because plaintiff has admitted his

alleged loan of $134,113.53 was made to the 1210 Fire Rock

partnership (rather than the LLC) before 2017, his claim for

reimbursement of the funds he advanced to the 1210 Fire Rock

partnership is barred by California’s two-year statute of

limitations. (Docket Entry # 116-2, p. 10). Plaintiff denies

that the statute of limitations bars his reimbursement claim.

(Docket Entry # 194-2, p. 6). Plaintiff’s reasoning is that:

(1) his reimbursement claim began to accrue in August 2019 and,

because he initiated this action on September 13, 2019 (Docket

Entry # 1), he filed well within the two-year limitations

period; and (2) his health issues incapacitated him and thereby

tolled the statute of limitations. See (Docket Entry # 194-2,

pp. 6-7).

According to plaintiff, “[b]eginning in 2015 . . .,

[defendant] consistently recognized that [plaintiff] had paid at

least $110,000 more than his fifty-percent share of the expenses

incurred in developing 1210 Fire Rock Loop and promised to pay

him the amount necessary to balance their capital accounts . . .

.” (Docket Entry # 194-2, p. 2). Plaintiff maintains that “his

.”). This court instructs the parties to include citation to

supporting authorities for their arguments in any briefs

accompanying future motions.

cause of action against [defendant] accrued” as of August 2019,

when “defendant told [plaintiff] he could not or would not pay

his fifty percent share of” expenses. (Docket Entry # 194-2, p.

3). However, plaintiff does not cite to where in the record it

demonstrates that defendant told plaintiff in August 2019 that

he would not pay his share of expenses. Furthermore,

plaintiff’s statement of facts does not reference any

conversation between plaintiff and defendant in August 2019 in

which defendant made plaintiff aware that he did not intend to

pay his share of expenses.27 See generally (Docket Entry # 194-

1). Plaintiff’s argument is therefore unavailing.

As defendant notes, plaintiff unequivocally testified that

his loan of $90,764.06 (which he previously alleged, in the

amended complaint, to be $134,113.53) was entirely to the 1210

Fire Rock Loop partnership, rather than the LLC. See (Docket

Entry # 118-5, p. 463) (plaintiff’s testimony that, regarding

the $90,764.06 loan, “[n]one of that [amount] was advanced to

the LLC” but rather the 1210 Fire Rock Loop partnership).

Plaintiff also testified that the “bulk” of the 1210 Fire Rock

27 The closest statement to this effect in plaintiff’s statement

of facts is that, on July 29, 2019, defendant left a voicemail

message for “admitt[ing] that he owed [plaintiff] about $55,000

for the 1210 [Fire Rock Loop] project but claimed that he could

not make a lump sum payment and needed a payment plan.” (Docket

Entry # 194-1, p. 59, ¶ 216); see (Docket Entry # 194-3, p. 32,

¶ 53).

Loop partnership’s “expenses” “occurred in 2015” and that,

throughout 2015 and 2016, he spoke with defendant about the need

“to settle up.” (Docket Entry # 118-5, pp. 447, 450). In his

affidavit filed in support of his opposition, plaintiff

indicates that he made loans to both the 1210 Fire Rock Loop

partnership and LLC, but he does not provide the exact amounts.

See (Docket Entry # 194-3, p. 26, ¶¶ 132-34). Plaintiff’s

affidavit plainly contradicts his earlier deposition testimony.

Compare (Docket Entry # 194-3, p. 26, ¶¶ 132-34), with (Docket

Entry # 118-5, p. 463). Furthermore, in plaintiff’s opposition,

he does not attempt to explain (let alone acknowledge) his

earlier testimony that his loan was only to the LLC. See

generally (Docket Entry # 194-2). For these reasons, this court

agrees with defendant that any obligation defendant may have to

reimburse plaintiff for his share of plaintiff’s loan would fall

under his obligations to the 1210 Fire Rock Loop partnership.28

28 “Even if the sums had been ‘loaned’ to the LLC,” defendant

also argues, “none of the conditions that would trigger the

payment of interest, costs and fees, claimed under Count II, was

met” (i.e., a vote for majority approval to call upon Grunigen

to contribute capital to the LLC) (Docket Entry # 116-2, p. 11).

This argument relies on section 4.04(A) of the operating

agreement, which provides: “in the event that . . . funds . . .

in excess of available loan proceeds . . . are required to pay .

. . expenditures of the [LLC] . . ., then upon [m]ajority

[a]pproval of the [m]embers, each [m]ember shall contribute to

the capital of the [LLC] . . . his proportionate share of such

required additional funds.” (Docket Entry # 119-2, p. 8,

section 4.04(A)). “Majority approval” is defined in the

operating agreement as “the affirmative vote or consent of

See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5

(1st Cir. 1994) (“When an interested witness has given clear

answers to unambiguous questions, he cannot create a conflict

and resist summary judgment with an affidavit that is clearly

contradictory, but does not give a satisfactory explanation of

why the testimony is changed.”); accord Orta-Castro v. Merck,

Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st Cir.

2006); see also Mahan v. Bos. Water & Sewer Comm’n, 179 F.R.D.

49, 53 (D. Mass. 1998) (“If a party simply could offer a

contradictory, post-deposition affidavit to defeat summary

judgment without providing a “satisfactory explanation” for the

contradiction, the purpose of summary judgment would be

defeated” (citation omitted)).

Under California law, the statute of limitations is “two

years for breach of an oral contract,” such as the parties’ oral

[m]embers owning fifty-one (51%) of the total [p]ercentage of

[m]embership [i]nterest.” (Docket Entry # 119-2, p. 3). Here,

it is undisputed that “[n]o vote for [m]ajority [a]pproval was

ever taken for a capital contribution call.” (Docket Entry #

117-1, p. 7, ¶ 39) (Docket Entry # 194-1, p. 9, ¶ 39). This

court therefore agrees that, absent a “vote for [m]ajority

[a]pproval” pursuant to section 4.04(A), section 4.04(B) of the

operating agreement (the “default” provision) was not triggered.

See (Docket Entry # 119-2, p. 8, section 4.04(B)) (providing

that a member’s failure to make a capital contribution call

required under section 4.40(A) constitutes a default entitling

the non-defaulting member to “the amounts advanced on such

[m]ember’s behalf, together with interest thereon,” and to sue

the defaulting member for the owed amounts).

agreement to form the 1210 Fire Rock Loop partnership.29 See

Zecos v. Nicholas-Applegate Cap. Mgmt., 42 F. App’x 31, 32 (9th

Cir. 2002); see also Cal. Code Civ. Proc. § 339; (Docket Entry #

117-1, p. 2, ¶ 19) (Docket Entry # 194-1, p. 5, ¶ 19) (Docket

Entry # 194-3, p. 18, ¶¶ 75-77). “A cause of action for a breach

of an oral contract accrues at the time of the breach, i.e.,

when the party charged with the duty to perform under the

contract fails to perform.” Zecos, 42 F. App’x at 32; Vestis,

LLC v. Caramel Sales, Ltd., No. SACV182257DOCKESX, 2019 WL

3312212, at *6 (C.D. Cal. Apr. 30, 2019); see Romano v. Rockwell

Internat., Inc., 926 P.2d 1114, 1119 (Cal. 1996) (providing that

cause of action for breach of contract does not accrue until

“the time specified therein for performance has arrived”

(citation and internal quotation marks omitted)). “[T]he rule

of delayed commencement provides that when a ‘defendant,

obligated to perform over a period of time, is guilty of [a]

material breach, the plaintiff may waive it and stand on the

contract until the time for final performance,’ and ‘the statute

of limitations [does] not [] begin running until the date when

29 Plaintiff has not alleged in Count II any “elements of fraud

such as would bring it within the purview of section 338

(subdivision 4), of the [California] Code of Civil Procedure,”

which provides for a three-year statute of limitations. See

Davies v. Krasna, 535 P.2d 1161, 1165 (Cal. 1975) (citation and

internal quotation marks omitted); see also Cal. Code Civ. Proc.

§ 338.

the last performance is due.’” Vahora v. Masood, No. 1:16-CV-

1624-LJO-SKO, 2017 WL 1213423, at *8 (E.D. Cal. Apr. 3, 2017)

(brackets in original omitted) (quoting Israelsky v. Title Ins.

Co., 261 Cal. Rptr. 72, 76 (Cal. Ct. App.), as modified on

denial of reh’g (June 20, 1989); see also Romano, 926 P.2d at

1120 (“In the context of successive breaches of a continuing

contractual obligation, . . . where the parties did not mutually

abandon or rescind it upon a breach or successive breaches, the

injured party could wait until the time arrived for a complete

performance by the other party and then bring an action for

damages for such breaches.” (citation and internal quotation

marks omitted)); Lambert v. Commonwealth Land Title Ins. Co.,

811 P.2d 737, 740 (Cal. 1991) (“California courts have long

given the ‘plaintiff, in cases where a continuing duty has been

breached, the option of filing suit when the time for complete

performance has passed.’” (citation omitted)). “[T]he rule of

delayed commencement applies to [an] oral partnership agreement”

that is “an executory contract that require[s] future

performance from” the partners. Vahora, 2017 WL 1213423, at *12

(holding “partnership agreement was an executory contract that

required future performance from [defendant] and [plaintiff]”

because defendant “was to run the day-to-day operations,

[plaintiff] was to assist in management, and both parties were

to share in profits”). Here, per the parties’ agreement, they

had an ongoing duty to equally split the profits and expenses of

the 1210 Fire Rock Loop partnership. See (Docket Entry # 117-1,

p. 2, ¶¶ 17-19) (Docket Entry # 194-1, p. 5, ¶¶ 17-19) (Docket

Entry # 194-3, p. 18, ¶¶ 75-77); see also (Docket Entry # 118-5,

p. 109). Thus, “under the rule of delayed commencement,”

defendant’s alleged breaches for failing to reimburse various

amounts owed to plaintiff “did not begin to accrue until the

time for final performance under the oral contract,” which would

be “the [1210 Fire Rock Loop] partnership’s termination.” See

Vahora, 2017 WL 1213423, at *12 (“The rule of delayed

commencement provides that the statute of limitations does not

accrue until the time for complete performance (the partnership

equivalent being the partnership's termination).”).

It is unclear from the record, however, when the 1210 Fire

Rock Loop partnership terminated, “i.e., when all of the pre-

existing [1210 Fire Rock Loop] partnership contractual

obligations at the time of dissolution expired or were

resolved.” See Vahora, 2017 WL 1213423, at *12 (emphasis

omitted). According to plaintiff’s statement of facts, “the

[1210 Fire Rock Loop] [p]artnership was dissolved on December

20, 2016,” the day before the parties executed deeds conveying

to the LLC their individual interests to 1210 Fire Rock Loop.

(Docket Entry # 194-1, pp. 52, 69, ¶¶ 175-76, 264).

“‘Dissolution, however, does not terminate [a] partnership[,]

which . . . continues until the winding up of partnership

affairs is completed.’” Vahora, 2017 WL 1213423, at *10

(quoting King v. Stoddard, 104 Cal. Rptr. 903 (Cal. Ct. App.

1972) (internal quotation marks and citation omitted)); see Cal.

Corp. Code § 16802(a) (“The partnership is terminated when the

winding up of its business is completed.”). Defendant does not

address when the 1210 Fire Rock Loop partnership dissolved or

terminated.

As noted previously, “[w]here, as here, a defendant moves

for summary judgment on the basis of an affirmative defense –

like the statute of limitations – the defendant bears the burden

of proof and ‘cannot attain summary judgment unless the evidence

that he provides on that issue is conclusive.’” Ouellette, 977

F.3d at 135 (quoting Torres Vargas, 149 F.3d at 35 (1st Cir.

1998). Because defendant has failed to allege when the 1210

Fire Rock Loop partnership terminated (and therefore when the

statute of limitations began to accrue), he has not met his

burden of demonstrating that plaintiff’s claim is time barred.30

See Vahora, 2017 WL 1213423, at *12; Ouellette, 977 F.3d at 135;

30 Even if the parties’ agreement to enter into the 1210 Fire

Rock Loop partnership was not a continuing one, defendant would

still bear the burden of alleging when the 1210 Fire Rock Loop

partnership terminated (which would be when plaintiff’s cause of

action for breach of the parties’ oral agreement began to

accrue). See Ouellette, 977 F.3d at 135 (explaining that

“defendant bears the burden of proof” when bringing a statute of

limitations defense); Vahora, 2017 WL 1213423, at *12.

see also Vestis, 2019 WL 3312212, at *6 (“Viewing the evidence

presented in the light most favorable to the non-moving party,

the breach of the oral contract with respect to the []

[p]urchase [a]greement is not barred by the two-year statute of

limitations.”). Accordingly, this court does not also address

whether, assuming the two-year statute of limitations applies,

plaintiff’s health problems tolled the statute of limitations.

See (Docket Entry # 194-2, p. 2) (citation omitted).

4. Plaintiff’s Failure to Allege Harm

According to defendant, plaintiff has failed to “allege

that he suffered any harm as a result of any of the actions or

inactions taken by [defendant].”31 (Docket Entry # 116-2, p.

31 The only caselaw that defendant cites in support of this

argument is from this court, interpreting Massachusetts law.

See (Docket Entry # 116-2, pp. 8, 11) (citing Davis v. Dawson,

Inc., 15 F. Supp. 2d 64, 133 (D. Mass. 1998) (“Damages

constitute an essential element to [a] breach of contract

claim.”). However, plaintiff’s breach of contract claim in

Count II arises under California law. See (Docket Entry # 20-1,

pp. 42-44, ¶¶ 161-72); (Docket Entry # 119-2, p. 25, section

14.04). Regardless, whether Count II arises under Massachusetts

or California law, the result is the same: damages are an

essential element to a claim for breach of contract. See Agam

v. Gavra, 186 Cal. Rptr. 3d 295, 305 (Cal. Ct. App. 2015) (“‘A

cause of action for damages for breach of contract is comprised

of the following elements: (1) the contract, (2) plaintiff’s

performance or excuse for nonperformance, (3) defendant’s

breach, and (4) the resulting damages to plaintiff.’” (citation

omitted)). Additionally, plaintiff must show damages regardless

of whether his loan was to the LLC (in which case defendant’s

alleged failure to pay his “fair share” would constitute a

breach of the operating agreement) or to the 1210 Fire Rock Loop

partnership (in which case defendant’s alleged failure to pay

his “fair share” would constitute a breach of the parties’ 1210

11). Plaintiff maintains that this argument has “no merit” and

that he needs the LLC’s “books of account [prepared] in

accordance with GAAP” and “a statement of [his capital

account’s] balance”32 so that he can then “determine the amount

of [his] damages” and whether “a portion of the loan he made to

fund the 1210 [Fire Rock Loop] project in excess of his fifty-

percent share was converted to a fifty percent membership

interest in the LLC.” (Docket Entry # 194-2, p. 3). Thus,

plaintiff does not deny that he must show damages for his breach

of contract claim but instead alleges that he is unable to

calculate his damages at this time because of defendant’s

failure to fulfill his obligations under the operating

agreement.

As defendant notes, the amended complaint does not

explicitly allege that defendant’s breach of the operating

Fire Rock Loop partnership agreement).

32 Section 4.07 of the operating agreement provides as follows:

“[t]he [LLC] shall establish and maintain a separate [c]apital

[a]ccount for each [m]ember in accordance with standard

accounting practices and the terms of [e]xhibit B [of the

operating agreement].” (Docket Entry # 119-2, p. 9, section

4.07). “Exhibit B, [section] 2” of the operating agreement

delineates, inter alia, how the LLC must “establish and maintain

a separate [c]apital [a]ccount for each [m]ember . . . .”

(Docket Entry # 119-2, pp. 30-31). As noted previously, under

section 6.02(c), defendant has an obligation as the LLC’s

managing member to, within 90 days of “the end of each fiscal

year,” furnish to plaintiff, inter alia, “a statement of the

balance in [plaintiff’s] capital account” and “financial

statements of the [LLC] . . . prepared in accordance with GAAP.”

(Docket Entry # 119-2, p. 12, section 6.02(C)).

agreement caused plaintiff “damages.” See (Docket Entry # 20-1,

pp. 42-44, ¶¶ 161-72). The amended complaint does, however,

allege that defendant has “failed to repay to [plaintiff] the

amounts he advanced on the LLC’s behalf to complete the 1210

Fire Rock Loop project, such that [defendant] is now personally

indebted to [plaintiff] for the amounts advanced with interest

thereon . . ., plus all costs and expenses of maintaining this

action . . . .” (Docket Entry # 20-1, p. 44, ¶ 172).

This court finds that “[t]he summary judgment record

contains sufficient evidence of damages.” See LPP Mortg., Ltd.

v. M/V Cape Ann, No. CV 02-10787-MBB, 2005 WL 8176142, at *10

(D. Mass. Jan. 20, 2005). The amended complaint alleges that

plaintiff ultimately paid more than his share of the LLC’s

expenses because of defendant’s failure to reimburse him. See

(Docket Entry # 20-1, p. 44, ¶¶ 167-72). At his deposition,

plaintiff testified that defendant failed to pay his

proportionate share of the 1210 Fire Rock Loop partnership’s

expenses. (Docket Entry # 118-5, pp. 448-52, 459-60). In the

affidavit he filed in support of his opposition, he affirmed

that: he “contribut[ed] more than [his] fifty-percent share to

the payment of [the 1210 Fire Rock Loop] partnership expenses”

(Docket Entry # 194-3, p. 20, ¶ 88); “[f]rom October 2015 until

August 2016, [defendant] did not contribute towards the payment

of [the 1210 Fire Rock Loop] project expenses . . ., while

[plaintiff] continued . . . [to] make additional loans to the

[1210 Fire Rock Loop] partnership to cover expenses . . . .”

(Docket Entry # 194-3, pp. 20-21, ¶ 93); and that he loaned

money to both the 1210 Fire Rock Loop partnership and LLC beyond

his proportionate share (Docket Entry # 194-3, p. 71, 27, ¶

134). Thus, while plaintiff has been inconsistent as to whether

his loans were to the 1210 Fire Rock Loop partnership or the LLC

(or both), he has consistently alleged that he paid more than

his “fair share” of expenses. These allegations, coupled with

this court’s obligation to view the record in the light most

favorable to plaintiff when adjudicating defendant’s motion for

summary judgment, leads this court to find that plaintiff has

sufficiently alleged for Count II that he suffered financial

harm. See Garcia-Garcia, 878 F.3d at 417.

5. The Operating Agreement’s Provision

on Dispute Resolution Provision

Defendant argues that plaintiff’s “persistence in seeking

more or different documentation from [defendant] is a matter

which [plaintiff] agreed, under the terms of [section 6.04 of]

the [o]perating [a]greement, to take up with an independent

third party, as a condition precedent to litigation.”33 (Docket

33 The only case defendant cites in support of this argument is

from the Ninth Circuit, interpreting Nevada law. See (Docket

Entry # 116, p. 10) (citing S.B. Corp. v. Hartford Acc. & Indem.

Co., 100 F.3d 964 (9th Cir. 1996)). As noted previously, Count

II arises under California law, but this does not substantially

Entry # 116-2, p. 9); see (Docket Entry # 119-2, p. 13, section

6.04). Plaintiff, in turn, maintains that the “dispute

resolution process set forth in [s]ection 6.04 . . . is only

triggered by a disagreement regarding the financial records of

the LLC,” and therefore is not applicable here because “[t]he

financial records of the LLC are still incomplete and in draft

form.” (Docket Entry # 104-2, pp. 4-5). Plaintiff insists that

“there are no financial records with which [he] can disagree”

“[u]ntil [defendant] complies with his obligation to prepare

full, true, complete, and accurate records and books of account

prepared in accordance with GAAP.” (Docket Entry # 194-2, p.

5).

In support of his argument that the “books of account and

financial ledgers for the LLC exist only in draft form” and are

“incomplete on their face,” plaintiff points to deposition

change the analysis of the parties’ obligations under section

6.04. Under California law, “[a] condition precedent is either

an act of a party that must be performed or an uncertain event

that must happen before the contractual right accrues or the

contractual duty arises.” Platt Pac., Inc. v. Andelson, 862

P.2d 158, 162 (Cal. 1993); see Orlando v. Carolina Cas. Ins.

Co., No. CIV F 07-0092AWISMS, 2007 WL 781598, at *4 (E.D. Cal.

Mar. 13, 2007); Realmuto v. Gagnard, 1 Cal. Rptr. 3d 569, 573

(Cal. Ct. App. 2003). “The existence of a condition precedent

normally depends upon the intent of the parties as determined

from the words they have employed in the contract.” Realmuto, 1

Cal. Rptr. 3d at 573. “If a condition precedent ‘is not

fulfilled, the right to enforce the contract does not evolve.’”

Orlando, 2007 WL 781598, at *4 (quoting Kadner v. Shields, 97

Cal. Rptr. 742, 748 (Cal. Ct. App. 1971)).

testimony by defendant’s accountant, Gerry Tulis (“Tulis”).34

(Docket Entry # 194-2, p. 4). Tulis testified that he prepared

draft “financials” for the LLC but had “no knowledge” as to

whether they had been completed or not. (Docket Entry # 126-4,

p. 32). He also indicated, however, that his “involvement” in,

and “work product” relating to, the LLC was “a draft, period,”

suggesting that he would not normally finalize the financials on

the LLC’s behalf and that it was left to the LLC itself to do

so. (Docket Entry # 126-4, p. 32); see also (Docket Entry #

126-4, pp. 30-31). Although defendant insists that he “did

cause the LLC financials to be prepared and delivered,” he does

not explicitly note whether he delivered the final financials.

See (Docket Entry # 116-2, p. 9, n. 1).

Even assuming defendant did not finalize and deliver the

34 Plaintiff cites the entire deposition transcript of Tulis,

rather than a particular page (or particular quoted language)

therein. See (Docket Entry # 194-2, p. 4); (Docket Entry # 126-

4) (Tulis’s deposition testimony). To the extent plaintiff

wishes to rely on deposition testimony in the future, this court

instructs him to use proper citations so that the court need not

unnecessarily sift through an entire 192-page deposition

transcript on his behalf. See L.R. 56.1; Morales v. A.C.

Orssleff’s EFTF, 246 F.3d 32, 35 (1st Cir. 2001) (noting that

plaintiff’s “general reference to [deposition] testimony without

pinpointing where in th[e] 89-page deposition support for that

reference could be found . . . is precisely the situation that

Local Rule 311.12 [which is similar to L.R. 7.1(b) and 56.1]

seeks to avoid” and that parties ignore such rules “at their own

peril” (citation omitted)). Furthermore, plaintiff alleges in

his opposition that Tulis prepared only draft financials, rather

than alleging as such in his L.R. 56.1 statement of facts. See

generally (Docket Entry ## 194-1, 194-2).

LLC’s final financials, this court is not convinced that “there

are no financial records with which [plaintiff] can disagree”

under section 6.04. See (Docket Entry # 194-2, p. 5). This

court reiterates the clear language of section 6.04:

[i]n the event of a disagreement regarding any financial

records or any matter relating thereto . . ., upon

written notice, the parties shall in good faith attempt

to resolve such disagreement within fifteen (15)

calendar days of . . . such notice. If the parties

cannot agree within such . . . period, such parties shall

each submit their positions, together with the basis for

such positions, to any mutually acceptable third party

(or, if such parties cannot so agree, a ‘Big 4’

accounting firm that has not represented any of the

parties to such disagreement within the prior two (2)

year period) (the ‘[d]ispute [r]esolution [f]irm’).

Such third party shall have thirty (30) calendar days to

resolve such disagreement, choosing either the

[m]anaging [m]ember’s or the [n]on-[m]anaging [m]ember’s

basis for each position. The [m]anaging [m]ember shall

then revise the financial statements prepared, if

necessary, to reflect the resolution of each

disagreement.

(Docket Entry # 119-2, p. 13, section 6.04). Plaintiff’s claims

that defendant failed to deliver the LLC’s final financials (and

in accordance with GAAP) and failed to timely file the LLC’s tax

returns clearly qualify as “disagreement[s] regarding” the LLC’s

“financial records or [] matter[s] related thereto.” See

(Docket Entry # 119-2, p. 13, section 6.04). The language of

section 6.04 does not restrict the dispute resolution process to

“draft” or “final” financial records, but simply “financial

records.” See (Docket Entry # 119-2, p. 13, section 6.04). A

“draft” financial record is still a financial record. See Coral

Farms, L.P. v. Mahony, 277 Cal. Rptr. 3d 872, 877 (Cal. Ct. App.

2021) (“In interpreting a contract, we give the words their

ordinary and popular meaning, unless the parties or usage have

given the words a specialized or technical meaning.”); Cal. Code

Civ. Proc. § 1644 (“The words of a contract are to be understood

in their ordinary and popular sense . . . unless a [technical

or] special meaning is given to them by [the parties or]

usage.”). Similarly, a tax return is a financial record and the

filing of a tax return is a “matter related thereto,” and

therefore whether defendant timely filed the LLC’s tax returns

is “a disagreement regarding [] financial records.” See (Docket

Entry # 119-2, p. 13, section 6.04); see also Coral Farms, 277

Cal. Rptr. 3d at 877; Cal. Code Civ. Proc. § 1644.

However, this court does not find that plaintiff was

required to engage in the dispute resolution procedure of

section 6.04 prior to bringing Count II. When a contract

requires that the parties engage in certain dispute resolution

procedures before filing suit, the satisfaction of such

procedures is a condition precedent to filing suit. See B & O

Mfg., Inc. v. Home Depot U.S.A., Inc., No. C 07-02864 JSW, 2007

WL 3232276, at *8 (N.D. Cal. Nov. 1, 2007) (explaining that a

requirement that the parties engage in mediation before filing

suit “is a condition precedent to the parties’ right to sue . .

. .”). Thus, a plaintiff’s failure to engage in those

procedures prior to filing suit warrants dismissal. See Brosnan

v. Dry Cleaning Station Inc., No. C-08-02028 EDL, 2008 WL

2388392, at *1 (N.D. Cal. June 6, 2008) (“Failure to mediate a

dispute pursuant to a contract that makes mediation a condition

precedent to filing a lawsuit warrants dismissal.”); see also

Centaur Corp. v. ON Semiconductor Components Indus., LLC, No. 09

CV 2041 JM BLM, 2010 WL 444715, at *3 (S.D. Cal. Feb. 2, 2010);

Delamater v. Anytime Fitness, Inc., 722 F. Supp. 2d 1168, 1180–

81 (E.D. Cal. 2010).

“To determine whether a contract makes mediation [or other

form of dispute resolution] a condition precedent to filing a

lawsuit, a court applies standard principles of contract

construction.” Centaur, 2010 WL 444715, at *3; see Del Rey

Fuel, LLC v. Bellingham Marine Indus., Inc., No.

CV1201008MMMMANX, 2012 WL 12941956, at *5 (C.D. Cal. Apr. 10,

2012) (“California courts have determined that the existence of

an agreement to arbitrate should be determined through the

application of ordinary principles of contract law.”).

“[P]rovisions of a contract will not be construed as conditions

precedent in the absence of language plainly requiring such

construction.” Rubin v. Fuchs, 459 P.2d 925, 928 (Cal. 1969);

see Corbrus, LLC v. 8th Bridge Cap., Inc., No.

219CV10182CASAFMX, 2021 WL 2781811, at *13 (C.D. Cal. July 1,

2021); Barroso v. Ocwen Loan Servicing, LLC, 146 Cal. Rptr. 3d

90, 97 (Cal. Ct. App. 2012). “When courts have found that

mediation [or another form of dispute resolution] is a condition

precedent to initiating litigation, the parties’ agreement has

both (i) addressed the issue of filing a lawsuit, and (ii)

specified that mediation [or the other form of dispute

resolution] must first take place . . . .” Franke v. Yates, No.

19-CV-00007-DKW-RT, 2019 WL 4856002, at *6 (D. Haw. Oct. 1,

2019) (citing two cases applying California law); see, e.g.;

Centaur, 2010 WL 444715, at *1-2 (finding mediation was

condition precedent to lawsuit where parties agreed to mediate

future disputes and, if mediation was unsuccessful, to “then []

submit[] [the dispute] to the courts within Arizona for

resolution”); Brosnan, 2008 WL 2388392, at *1 (finding mediation

was condition precedent to lawsuit where each party agreed “to

enter into mediation of all disputes involving [their]

[a]greement . . . prior to initiating any legal action against

the other”); Delamater, 722 F. Supp. 2d at 1177 (where parties

agreed that mediation was a condition precedent to filing suit

because they had agreed “to enter into mediation of all disputes

involving [the] [a]greement or any other aspect of [their]

relationship . . . prior to initiating any legal action or

arbitration against the other” (emphasis added)).

Here, section 6.04 does not indicate that the parties must

first engage in the dispute resolution procedure delineated

therein before filing suit. See (Docket Entry # 119-2, p. 13,

section 6.04). Plaintiff was therefore not required to first

resort to section 6.04’s dispute resolution procedure before

bringing Count II against defendant. See Rubin, 459 P.2d at 928

(“[P]rovisions of a contract will not be construed as conditions

precedent in the absence of language plainly requiring such

construction.”). Thus, “[w]hile [this] [c]ourt recognizes that

the parties may have intended for some disputes to be handled

through the dispute resolution process[] of [section 6.04],

[this] [c]ourt does not agree with [defendant]’s assertion that

a party’s failure to submit its claims to the [section 6.04]

dispute resolution procedure[] is an absolute bar to

litigation.” Bombardier, 298 F. Supp. 2d at 4–5.

For the foregoing reasons, summary judgment as to Count II

is inappropriate. See Fed. R. Civ. P. 56(a).

C. Count III: Violation of

Section 17701.13(d)(7) of RULLCA

Count III alleges that defendant violated section

17701.13(d)(7) of RULLCA (“section 17701.13(d)”) and “failed

without justification to comply with the requirements of

[s]ection 17704.10.” (Docket Entry # 20-1, pp. 45-46).

Section 17701.13(d) requires “[e]ach limited liability

company [to] maintain,” inter alia: “[c]opies of the . . .

company’s federal, state, and local income tax or information

returns and reports, if any, for the six most recent fiscal

years” (Cal. Corp. Code § 17701.13(d)(4)); and “[t]he books and

records of the . . . company as they relate to [its] internal

affairs . . . for at least the current and past four fiscal

years” (Cal. Corp. Code § 17701.13(d)(7)).

Section 17704.10 of RULLCA (“section 17704.10”) governs a

limited liability company’s obligation to provide its members,

upon request, certain information the company must maintain under

section 17701.13(d). See Cal. Corp. Code §§ 17704.10(a), (b),

(e). Section 17704.10(a), for example, provides as follows:

[u]pon the request of a member . . ., for purposes

reasonably related to the interest of that person as a

member . . ., a manager . . . shall promptly deliver, in

writing, to the member . . ., at the expense of the

limited liability company, a copy of the information

required to be maintained by paragraphs (1), (2), and (4)

of subdivision (d) of [s]ection 17701.13, and any written

operating agreement of the limited liability company.

Cal. Corp. Code § 17704.10(a).35 Section 17704.10(b) provides as

35 Plaintiff interprets the language of section 17704.10(a) to

indicate that the “information required to be maintained” is

that “information required” by not only “paragraphs (1), (2), and

(4) of subdivision (d) of [s]ection 17701.13” but also that

“information required” by “any written operating agreement of the

limited liability company.” See Cal. Corp. Code § 17704.10(a);

(Docket Entry # 194-2, p. 1) (“Section 17704.10(a) of the

California Corporations Code provides, in pertinent part, that,

upon the request of a member of an LLC, ‘for a purpose

reasonably related’ to his interest as a member, the LLC manager

‘shall promptly deliver, in writing, to the member . . . a copy

of the information required to be maintained by . . . any

operating agreement of the LLC.’” (alteration in original)).

Section 17704.10(a), however, can also be read as providing that

the manager: (1) must provide the “information required to be

follows:

(b) Each member . . . has the right, upon reasonable

request, for purposes reasonably related to the interest

of that person as a member . . . to each of the following:

(1) To inspect and copy during normal business hours any

of the records required to be maintained pursuant to

[s]ection 17701.13.

(2) To obtain in writing from the limited liability

company, promptly after becoming available, a copy of the

limited liability company’s federal, state, and local

income tax returns for each year.

Cal. Corp. Code § 17704.10(b). Finally, under section

17704.10(e), “a limited liability company with 35 or fewer

members” has an obligation to send to its members “within 90 days

after the end of each taxable year the information necessary to

complete federal and state income tax or information returns and

. . . a copy of the . . . company’s federal, state, and local

income tax or information returns for the year.” Cal. Corp. Code

§ 17704.10(e).

Defendant maintains that “[plaintiff] was provided all of

the books and records that [defendant] had with regard to

maintained” by the first, second, and fourth paragraphs of

section 17703.13; and (2) must provide a copy of the company’s

operating agreement. See Cal. Corp. Code § 17704.10(a).

However, defendant does not dispute plaintiff’s reading of the

statue, and this court could not identify any authority

clarifying which interpretation of section 17704.10(a) is

correct. As such, in evaluating defendant’s motion for summary

judgment, this court proceeds with plaintiff’s reading of

section 17704.10(a). Under either interpretation, however, and

for the reasons delineated below, defendant has failed to show

that he is entitled to summary judgment on Count III.

the LLC, including the closing documents and tax returns . . .

.” (Docket Entry # 116-2, p. 12). He also reiterates that: (1)

“if [plaintiff] had any dispute about” whether defendant

provided all the necessary books and records, “[plaintiff] was

obligated, by contract, to take the matter up with a neutral

third party, rather than bring this matter to this [c]ourt for

resolution”; and (2) “[plaintiff] has failed to allege that any

of the acts taken, or not taken by [defendant] in regard to the

financial documents or tax returns, caused him damage.” (Docket

Entry # 116-2, p. 12).

In his opposition, plaintiff does not cite, or address his

claim under, section 17701.13(d)(7).36 The heading for Count III

in the amended complaint indicates that Count III alleges a

violation of 177013(d)(7). The body text of Count III, however,

cites and discusses section 17701.13(d)(7) and various

subsections of section 17704.10. Thus, in substance, plaintiff

appears to allege a violation of both section 17701.13(d)(7) and

section 17704.10. As noted above, these two sections are

interconnected, as section 17704.10 requires that a manager

provide to a member (upon request) certain information the LLC

must maintain under section 17701.13(d)(7). For this reason,

36 Plaintiff also does not cite or otherwise address section

17701.13(d)(7) in his brief supporting his motion for summary

judgment. See (Docket Entry # 121).

this court does not consider plaintiff’s claim for a violation

of section 17701.13(d)(7) waived at the summary judgment stage.

See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st

Cir. 1995) (“[A]n issue raised in the complaint but ignored at

summary judgment may be deemed waived.”); Montany v. Univ. of

New England, 858 F.3d 34, 41 (1st Cir. 2017) (agreeing that the

plaintiff’s “failure to put forth any argument in her opposition

to defendants’ motion for summary judgment to the effect that

[one of the defendants] breached a provision of the student

handbook constitute[d] abandonment of any such claim”). This

court also arrives at this conclusion because defendant did not

argue in his reply that plaintiff has waived or otherwise

abandoned his claim for violation of section 17701.13.(d)(7).37

Plaintiff maintains that there are genuine issues of

material fact as to whether defendant complied with section

17704.10 but also argues that “[t]he record establishes

peradventure that [defendant] has failed to”:

(1) [] create or . . . maintain[] books of account for

the LLC in accordance with GAAP [as required by the

operating agreement] ; (2) furnish [plaintiff] an annual

report of the LLC, including a year-end balance; a profit

and loss statement; a statement of the balance in

[plaintiff]’s capital account; and the amount of

[plaintiff]’s share of the LLC’s income, gain, losses,

deductions and other relevant items for [f]ederal income

tax purposes; and (3) furnish, within seventy-five days

after the end of the LLC’s fiscal year (2017), a copy of

37 Defendant simply notes that plaintiff’s “[o]pposition does not

address his claim under [s]ection 17701.13(d)(7).”

the LLC’s information return.

(Docket Entry # 194-2, p. 2). Additionally, plaintiff denies,

contrary to defendant’s suggestion (Docket Entry # 116-2, p. 8),

“that the only information [he] needed to prepare his 2017 tax

returns was a K-1, and that a K-1 was provided on a timely

basis.” (Docket Entry # 194-2, p. 2). He maintains that

neither he nor Branscome (his attorney-in-fact) “has ever been

supplied with a complete and accurate K-1” and that, because of

defendant’s failure to provide “final, reconciled, and verified

books of account for the LLC or the annual report,” plaintiff

would be “unable to determine [the] accuracy” of even a complete

K-1. (Docket Entry # 194-2, pp. 2-3); see (Docket Entry # 122,

p. 9, ¶ 37).

At the least, whether defendant allowed plaintiff access to

or provided “all of the books and records that [defendant] had

with regard to the LLC” is a genuine dispute of material fact

that precludes summary judgment as to Count III. See (Docket

Entry # 117-1, p. 10, ¶ 61) (defendant alleging that he

“repeatedly provided whatever books and records he has for the

LLC to [plaintiff] . . . .”); (Docket Entry # 194-1, p. 12, ¶

61) (citing (Docket Entry # 194-1, p. 57, ¶ 204) (plaintiff

alleging that defendant “has thus far refused to provide final,

reconciled, verified and complete book of account for the LLC .

. . .”)); (Docket Entry # 194-3, p. 28, # 141) (plaintiff

affirming that he has “not been provided true, accurate and

complete books of account and records for the LLC . . . .”).

“[A] rational factfinder could resolve” the issue of whether

defendant sufficiently provided plaintiff with the LLC’s books

and records (as required by sections 17701.13(d)(7) and 17704.10)

in either party’s favor, and this issue is “‘material’” because

it “could change . . . [the] outcome” of Count III (which is

based on defendant’s alleged failure to provide the requisite

books and records). See Omni Hotels, 882 F.3d at 5; see also

Scott, 550 U.S. at 380. Furthermore, for the reasons set forth

above as to Count II, this court disagrees that plaintiff was

obligated to resort to the operating agreement’s dispute

resolution procedure before bringing Count III. Defendant also

fails to explain or otherwise show why plaintiff must

demonstrate harm to sufficiently plead a violation of section

17704.10 or section 17701.13(d). For these reasons, summary

judgment as to Count III is also inappropriate.

D. Count V: Violation of Section 16404 of RUPA

Count V alleges that defendant breached: (1) his “duty of

loyalty to the [1610 Fire Rock Loop] [p]artnership” and plaintiff

under section 16404(a) of RUPA (“section 16404(a)”) “by, among

other things, dealing with the [1610 Fire Rock Loop]

[p]artnership in the conduct of the [1610 Fire Rock Loop]

[p]artnership on or [sic] behalf of parties having an interest

adverse to the [1610 Fire Rock Loop] [p]artnership, including but

not limited to Logan and the Barrosos”; and (2) “his duty of care

and obligation of good faith and fair dealing to” plaintiff, as

his partner, under section 16404(d) of RUPA (“section 16404(d)”).

(Docket Entry # 20-1, pp. 47-48, ¶¶ 189-94).

Under section 16404(a), a partner “owes to the partnership

and the other partners” the fiduciary duties of loyalty and

care. Cal. Corp. Code § 16404(a). “A partner’s duty of

loyalty” includes “refrain[ing] from dealing with the

partnership in the conduct or winding up of the partnership

business as or on behalf of a party having an interest adverse

to the partnership.” Cal. Corp. Code § 16404(a). “A partner’s

duty of care ‘is limited to refraining from engaging in grossly

negligent or reckless conduct, intentional misconduct, or a

knowing violation of the law.’”38 t’Bear, 359 F. Supp. 3d at 900

(quoting Cal. Corp. Code § 16404(c)). Section 16404 also

requires a partner to “discharge the duties to the partnership

38 In alleging gross negligence, a plaintiff “must prove that

[the] defendant’s actions constituted a complete lack of due

care “‘or an extreme departure from the ordinary standard of

conduct.’” t’Bear v. Forman, 359 F. Supp. 3d 882, 900 (N.D.

Cal. 2019) (quoting Rosencrans v. Dover Images, Ltd., 122 Cal.

Rptr. 3d 22, 31 (Cal. Ct. App. 2011) (internal quotations and

citations omitted)). Reckless conduct “involves more than

‘inadvertence, incompetence, unskillfulness, or a failure to

take precautions’” and is demonstrated by a “‘conscious choice

of a course of action . . . with knowledge of the serious danger

to others involved in it.’” Delaney v. Baker, 971 P.2d 986

(Cal. 1999) (citation omitted).

and the other partners . . . with the obligation of good faith

and fair dealing.” Cal. Corp. Code § 16404(d).

In moving for summary judgment as to Count V, defendant

highlights portions of plaintiff’s deposition testimony. See

(Docket Entry # 116-2, pp. 14-15). Defendant first notes that,

when plaintiff was asked whether he “believe[d] that [defendant]

ever did anything in connection with 1610 that he did not

reasonably believe was in the best interest of that partnership,”

he answered that he could not “make an assessment on []

[defendant’s] thought process” and that he did not “know the

relationships between [defendant] and other people, so . . .

[plaintiff was] still at a loss of information.” (Docket Entry #

116-2, p. 14) (internal quotations omitted) (quoting (Docket

Entry # 185-5, p. 167)). Defendant’s counsel then asked whether

plaintiff had “any basis on which to believe that [defendant]

ever did anything in connection with 1610 that he didn’t think

was good for 1610,” and plaintiff responded that he did not know.

(Docket Entry # 116-2, p. 15) (internal quotations omitted)

(quoting (Docket Entry # 185-5, p. 167)). Second, defendant

notes that, when plaintiff was asked why he “defer[red] to”

defendant, he testified that he did so because defendant is “an

architect and [] the owner” of 1610 Fire Rock Loop and was “out

in the field,” whereas plaintiff was “in a compromised position

of control” because he was “sitting in an office 300 miles away.”

(Docket Entry # 116-2, p. 15) (internal quotations omitted)

(quoting (Docket Entry # 185-5, p. 166)). Third, in explaining

why he deferred to defendant when defendant “wanted to pay

something that [plaintiff] thought . . . was either too much or

not needed,” plaintiff testified that he “took what [defendant]”

told him “as truth and fact” and that he had “no reason not to

doubt [defendant’s] fiduciary commitment or loyalty to

[plaintiff] in authorizing those payments.” (Docket Entry # 185-

5, p. 71); see (Docket Entry # 116-2, p. 15).

Defendant then argues that, “[t]o the extent that the

settlement payment [to the Barrosos] could form the basis for a

claim under Count VI [sic], the undisputed facts do not support

such a claim.” (Docket Entry # 116-2, p. 15). He points to

plaintiff’s “extensive[]” testimony that, “in 2017, [plaintiff]

participated in a review of the settlement terms with his

attorney.” (Docket Entry # 116-2, p. 15); see, e.g., (Docket

Entry # 118-5) (plaintiff’s testimony that he approved the

settlement agreement but did so while medicated). Defendant

takes issue with the fact that plaintiff:

now claims that[,] in January 2017, he took the position

that settlement could only go forward if there was a

‘third party independent evaluation’ of the doors that

were causing the warranty issue, [but] also claims . .

. he took that position . . . [while] ‘medicated,’ ‘on

antipsychotics and Trazodone’ and that, at this time, he

had already placed business decisions for the 1610 [Fire

Rock Loop] [p]artnership ‘in [defendant] and counsel’s

hands’ . . . .

(Docket Entry # 116-2, pp. 15-16) (brackets and citations

omitted). Defendant then notes: “[u]ltimately, having had the

doors examined and repaired numerous times, including by

independent evaluators, [defendant] accepted the advice of

counsel, in the face of a threat of suit, and settled with the

[Barrosos] for $55,000.00.” (Docket Entry # 116-2, p. 16).

Based on the foregoing, defendant appears to argue that he

did not violate any duties of care any loyalty to the 1610 Fire

Rock Loop partnership or plaintiff because he properly relied on

the advice of counsel in deciding to settle – on behalf of the

1610 Fire Rock Loop partnership and plaintiff – with the

Barrosos for $55,000. Defendant, however, fails to cite a

single case or other legal authority to support his argument

that his conduct did not violate his duties to the 1610 Fire

Rock partnership and plaintiff under section 16404.

Plaintiff, in turn, opposes summary judgment as to Count V

on the basis that:

[t]he record [] is chock full of evidence from which a

trier of fact could reasonably find that [defendant]

violated his fiduciary duties to [plaintiff], from his

broken promises to provide backup for the advances and

reimbursements he requested [plaintiff] to pay in the

April 2014 to August 2014 time period on 1610 [Fire Rock

Loop], to ignoring clearcut evidence that the door and

window leaks the Barrosos experienced were the result of

Logan’s improper installation and/or as a result of the

Barrosos’ alteration of the grade at the rear of the

house, to misrepresenting to [plaintiff] that a third-

party inspection had absolved Logan and the Barrosos of

any liability for the door leaks and found him liable

under [the] [] warranty, when no neutral third-party

inspection was ever conducted, to his unauthorized use

of [plaintiff]’s ADLI trust funds to pay his share of

the LLC’s legal expenses.

(Docket Entry # 194-2, p. 8) (citations omitted). Plaintiff

also argues that “the business judgment rule” (which he

interprets defendant as citing) does not “insulate [defendant]’s

conduct” because “the common law business judgment rule,

‘strictly speaking’ does not protect ‘[]noncorporate entities’

such as oral partnerships.” (Docket Entry # 194-2, p. 8)

(quoting Lamden v. La Jolla Shores Clubdominium Homeowners

Assn., 980 P.2d 940 (Cal. 1999) (“[N]either the California

statute nor the common law business judgment rule, strictly

speaking, protects noncorporate entities . . . .”)). However,

plaintiff continues, even if the business judgment rule did

apply, the protective presumption it creates for defendant

“would be rebutted [] by the overwhelming evidence establishing

fraud, bad faith, overreaching and his unreasonable failure to

investigate the Barroso’s [sic] claim.” (Docket Entry # 194-2,

pp. 8-9) (citing Lee v. Interinsurance Exch., 57 Cal. Rptr. 2d

798, 811 (Cal. Ct. App. 1996)).

In his reply, defendant responds that plaintiff fails to not

only “address the legal authority cited by” defendant in his

motion for summary judgment but also “cite a single example of a

time [defendant] ever promoted interests adverse to that of the .

. . 1610 Fire Rock [Loop] [p]artnership.” (Docket Entry # 192, p.

7). Ironically, however, defendant does not address plaintiff’s

argument that the business judgment rule does not apply here, nor

does he cite any case or other legal authority in his reply to

support his argument that his conduct did not violate section

16404. See generally (Docket Entry # 192, pp. 7-8).

This court therefore concludes that whether defendant’s

conduct constituted a violation of his duties under section

16404 is a genuine issue of material fact that is not

appropriate for summary judgment. See Fed. R. Civ. P. 56(a);

Pierce, 741 F.3d at 301. Construing the record in plaintiff’s

favor, this court finds that a rational factfinder could

conclude that defendant’s conduct constituted a violation of his

duties under section 16404 of RUPA. See Omni Hotels, 882 F.3d

at 5; Pierce, 741 F.3d at 301.

E. Count VI: Fraud in Violation of California Common Law

Count VI alleges that defendant, with “malice and

oppression” (Docket Entry # 20-1, p. 50, ¶ 201), committed

common law fraud by:

intentionally (a) conceal[ing] material facts from

[plaintiff] relating to the LLC’s expenses in

constructing 1210 Fire Rock Loop and the [1610] Fire

Rock Loop [p]artnership’s expenses in constructing 1610

Fire Rock Loop; and (b) affirmatively misrepresented

material facts concerning the status, progress,

expenses, profits and/or losses in 1210 Fire Rock Loop

and . . . 1610 Fire Rock Loop.

(Docket Entry # 20-1, p. 48, ¶ 196). Plaintiff alleges that he

“justifiably relied on [defendant]’s fraudulent [and material]

misrepresentations and non-disclosures/omissions” based on

defendant’s “expertise” in the industry and “superior knowledge”

of the projects. (Docket Entry # 20-1, p. 49, ¶ 197); see

(Docket Entry # 20-1, p. 49, ¶ 199). According to plaintiff,

defendant “made such affirmative misrepresentations” knowing

“them to be false” and “with the specific intent of harming

[plaintiff] by causing him to advance monies to and make

payments on behalf of the LLC and 1210 Fire Rock [Loop]

[p]artnership . . . when he had no intention of contributing his

one-half share.” (Docket Entry # 20-1, p. 49, ¶ 198).

Plaintiff further alleges that: he was “ignorant of the falsity

of [defendant]’s representations[]”; “could not, in the exercise

of reasonable diligence, have discovered [defendant]’s” material

non-disclosures; and relied “on [defendant]’s affirmative

misrepresentations and material omissions/concealments” by

“continu[ing] to advance substantial funds to complete 1210 Fire

Rock Loop and was further induced to refrain from discovering

and investigating the actual circumstances surrounding his

investments.” (Docket Entry # 20-1, p. 49, ¶ 199). Finally,

plaintiff maintains that defendant’s “fraud and deceit”

proximately caused him financial harm. (Docket Entry # 20-1,

pp. 49-50, ¶¶ 199, 200).

Defendant moves for summary judgment as to Count VI on the

basis that “the [a]mended [c]omplaint fails to satisfy the

[particularity] requirements of Fed. R. Civ. 9(b) . . . .”

(“Rule 9(b)”)39 (Docket Entry # 116-2, p. 17). More

specifically, he argues that, under Rule 9(b), “[i]t is

inadequate to aver knowledge generally unless there are also

other facts in the complaint ‘that make it reasonable to believe

that defendant knew that a statement was materially false or

misleading.’” (Docket Entry # 116-2, pp. 17-18) (quoting N. Am.

Cath. Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8,

13 (1st Cir. 2009) (citation and internal quotation marks

omitted)).

In response, plaintiff maintains that the record

sufficiently establishes both ordinary and constructive fraud.40

(Docket Entry # 194-2, pp. 10-11). According to plaintiff,

defendant’s “experience as an architect performing takeoffs from

construction plans and his ability to quickly perform such

takeoffs through the use of his CAD system . . . supports an

inference that he had actual knowledge that the quantities

specified on the quotes [for the projects’ materials and

39 Rule 9(b) provides that, “[i]n alleging fraud . . ., a party

must state with particularity the circumstances constituting

fraud . . . .” Fed. R. Civ. P. 9(b).

40 Count VI in the amended complaint alleges only ordinary fraud.

See (Docket Entry # 20-1, pp. 48-50, ¶¶ 195-201).

services] were vastly overstated.” (Docket Entry # 194-2, p.

10) (citation omitted). Plaintiff further maintains that the

record, along with defendant’s “failure, despite his repeated

promises, to [] furnish the promised backup for the advanced and

reimbursements [] requested,” supports “the . . . inference . .

. that [defendant] intended to defraud the 1610 [Fire Rock Loop]

partnership . . . .” (Docket Entry # 194-2, pp. 10-11).

Finally, plaintiff argues that he has sufficiently established a

claim for constructive fraud because: “[a] fiduciary

relationship existed between” him and defendant (as partners)

that obligated defendant “to disclose the fact that excess

quantities” of construction materials were being ordered; and

the “record . . . support[s] an inference that [defendant]

gained an advantage over [plaintiff] by misleading him, to his

prejudice, into paying advances or reimbursements . . . with

empty promises that the backup documentation would be provided.”

(Docket Entry # 194-2, pp. 10-11).

“The elements of a cause of action for fraud in California

are: ‘(a) misrepresentation (false representation, concealment,

or nondisclosure); (b) knowledge of falsity (or ‘“scienter”’);

(c) intent to defraud, i.e., to induce reliance; (d) justifiable

reliance; and (e) resulting damage.’”41 Kearns v. Ford Motor

41 “A fraudulent state of mind includes not only knowledge of

falsity of the misrepresentation but also an intent to . . .

Co., 567 F.3d 1120, 1126 (9th Cir. 2009) (emphasis omitted)

(quoting Engalla v. Permanente Med. Grp., Inc., 938 P.2d 903,

917 (Cal.), as modified (Cal. July 30, 1997) (internal quotation

marks and citations omitted)); see Ragland v. U.S. Bank Nat’l

Assn., 147 Cal. Rptr. 3d 41, 56 (Cal. Ct. App. 2012). Whether a

defendant made “(1) misrepresentations that (2) were made with

scienter and (3) the intent to defraud” are generally questions

of fact. See Erhart v. BofI Holding, Inc., No. 15-CV-02287-BAS-

NLS, 2020 WL 1550207, at *42 (S.D. Cal. Mar. 31, 2020); see also

Intrieri v. Superior Ct., 12 Cal. Rptr. 3d 97, 109 (Cal. Ct.

App. 2004) (“Whether [a party’s] statements were false is a

triable question of material fact . . . .”); Pub. Emps.’ Ret.

Sys. v. Moody’s Invs. Serv., Inc., 172 Cal. Rptr. 3d 238, 258

(Cal Ct. App. 2014) (“Intent to induce reliance is usually a

‘question of fact’ for the jury.”); Locke v. Warner Bros., 66

Cal. Rptr. 2d 921, 928 (Cal. Ct. App. 1997) (“[T]he issue of

fraudulent intent is one for the trier of fact.”); Buist v. C.

Dudley De Velbiss Corp., 6 Cal. Rptr. 259, 264 (Cal. Ct. App.

1960) (“Knowledge of the party charged with concealment and the

materiality of the concealment are both questions of fact.”).

Whether a plaintiff’s reliance was reasonable is also generally

induce reliance on it.” Beckwith v. Dahl, 141 Cal. Rptr. 3d

142, 161 (Cal. Ct. App. 2012) (citations and internal quotation

marks omitted).

a question of fact. See OCM Principal Opportunities Fund, L.P.

v. CIBC World Mkts. Corp., 68 Cal. Rptr. 3d 828, 856 (Cal.), as

modified (Cal. Dec. 26, 2007) (“Except in the rare case where

the undisputed facts leave no room for a reasonable difference

of opinion, the question of whether a plaintiff’s reliance is

reasonable is a question of fact.” (citations and internal

quotation marks omitted)). To show constructive fraud, a

plaintiff must allege “(1) a fiduciary relationship, (2)

nondisclosure, (3) intent to deceive, and (4) reliance and

resulting injury.” Tindell v. Murphy, 232 Cal. Rptr. 3d 448,

456 (Cal. Ct. App. 2018).

Although “[f]ederal courts apply state law to determine

whether the elements of fraud have been pleaded adequately to

state a cause of action, [] Rule 9(b) requires that the

circumstances establishing fraud must be stated with sufficient

particularity.” Amazing Ins., Inc. v. DiManno, No.

219CV01349TLNCKD, 2021 WL 5234736, at *7 (E.D. Cal. Nov. 10,

2021); see Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103

(9th Cir. 2003) (“‘[W]hile a federal court will examine state

law to determine whether the elements of fraud have been pled

sufficiently to state a cause of action, the Rule 9(b)

requirement that the circumstances of the fraud must be stated

with particularity is a federally imposed rule.’” (citation

omitted)). “Like an action for fraud, constructive fraud must

be pled with specificity.” Tindell, 232 Cal. Rptr. 3d at 456.

“Rule 9(b)’s particularity standard requires ‘an account of the

time, place, and specific content of the false representation,

as well as the [identities] of the parties to the

misrepresentation.’” Vestis, 2019 WL 3312212, at *11 (quoting

Swartz v. KPMG, 476 F.3d 756, 763 (9th Cir. 2007)); Fed. R. Civ.

P. 9(b). “Malice, intent, knowledge, and other conditions of a

person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).

Here, plaintiff pleads the necessary elements of fraud, but

the issue on summary judgment is whether he did so in compliance

with Rule 9(b)’s particularly requirements. As defendant notes,

“a complaint’s general averment of the defendant’s ‘knowledge’

of material falsity” is inadequate “unless the complaint also

sets forth specific facts that make it reasonable to believe

that defendant knew that a statement was materially false or

misleading.” Cardinale, 567 F.3d at 12. Viewing the record in

plaintiff’s favor, this court concludes that the amended

complaint sets forth such facts.

Although defendant maintains that plaintiff has conceded

that certain allegations in the amended complaint are inaccurate

(or that plaintiff was otherwise mistaken as to certain project

quotes) (Docket Entry # 116, p. 17), there are other allegations

that support a claim for fraud against defendant. For instance,

the amended complaint alleges that: in March 2014, “in a

departure from the [1610 Fire Rock Loop] [p]artnership’s typical

. . . practices, and . . . when . . . [plaintiff] was dealing

with the final illness of a close family member, [] [defendant]

and Logan represented to [plaintiff] that they intended to

purchase approximately 3,000 square feet of driveway pavers for

1610 Fire Rock Loop”; to avoid a scheduled price increase to

each square foot of the pavers, “[defendant] asked [plaintiff]

to quickly cut him a check for $9,501.00 so that he could

purchase the pavers at the lower price”; plaintiff cut a check

to defendant personally “[b]ased on that representation”;

“[defendant] subsequently allocated the original 3,000 square

feet of pavers for use at the 1210 Fire Rock Loop project, but

failed to request reimbursement from Barrosos for the time and

overhead costs incurred . . . in making the switch”; “[o]n

August 2014, [d]efendant sent [plaintiff] a quote for an

additional $1,168.27 for 445 square feet of pavers that he

represented Logan had paid for the pavers for the driveway

ribbon for 1610 Fire Rock [Loop], which was only 80 square feet

in size”; “[i]n total, [plaintiff] advanced $4,668.27 to Logan,

at [defendant]’s direction, for 1,143 square feet of pavers for

which, as it turned out, Logan only paid $2,428.81”; and

“[d]espite [plaintiff’s] repeated requests . . ., [defendant]

and Logan have refused to furnish final invoices and proof of

payment for the $4,668.27 [plaintiff] advanced for the 1,588

square feet of pavers.” (Docket Entry # 20-1, pp. 8-9, ¶¶ 32-

39). Based on allegations such as these, this court disagrees

that “the evidence adduced to date has fully vindicated

[defendant] with respect to the few allegations that could

possibly support [plaintiff]’s claim of fraud.” See (Docket

Entry # 116, p. 17).

This court also concludes that there are material questions

of fact barring summary judgment on Count VI, such as whether

defendant knew “that the quantities specified on the quotes [for

the projects’ materials and services] were vastly overstated”

and/or “intended to defraud the 1610 [Fire Rock Loop]

partnership . . . .” (Docket Entry # 194-2, pp. 10-11); see

Fed. R. Civ. P. 56(a); Erhart, 2020 WL 1550207, at *42; Moody’s,

172 Cal. Rptr. 3d at 258; Intrieri, 12 Cal. Rptr. 3d at 109.

Because this court finds that “a rational factfinder [could]

resolve [these] material factual dispute[s] in favor of either

side,” summary judgment is inappropriate on Count VI. See

Pierce, 741 F.3d at 301.

F. Defendant’s Counterclaims

The amended answer alleges two counterclaims for breach of

contract and setoff. (Docket Entry # 29). The breach of

contract counterclaim arises from the $55,000 settlement payment

to the Barrosos that “[defendant] expended . . . in connection

with the [1610 Fire Rock Loop] [p]roject, over and above that

contributed by [plaintiff],” despite the parties’ agreement to

“split evenly expenses incurred . . . from the [1610 Fire Rock

Loop] [p]roject.” (Docket Entry # 29, p. 29, ¶¶ 5, 9).

Defendant “seeks to recover $27,500.00 from [plaintiff] for his

proportionate share of [the] $55,000.00 settlement . . . .”

(Docket Entry # 116-2, p. 19). As for the setoff counterclaim,

“[t]o the extent that this [c]ourt determines that there is any

amount due and owing by [defendant] to [plaintiff], [defendant]

requests that this [c]ourt order and permit a setoff or

recoupment in favor of [defendant] in reduction of such amount.”

(Docket Entry # 29, p. 29, ¶ 12).

In moving for summary judgment on his counterclaims,

defendant argues that: (1) it is undisputed that the parties

agreed to equally split the expenses for 1610 Fire Rock Loop and

that defendant paid the Barrosos $55,000 in a settlement “on the

advice of counsel”; and (2) it is “apparent” that “[plaintiff]

agreed to give [defendant] full control of the business affairs

of the 1610 [Fire Rock Loop] [p]artnership when he was in the

midst of a mental break.” (Docket Entry # 116-2, pp. 19-20).

Once again, however, defendant does not cite any caselaw or

other legal authority in support of his argument that plaintiff

committed a breach of contract entitling defendant to summary

judgment on his counterclaims.42

Plaintiff denies that he owes defendant half of the $55,000

settlement sum. He argues that defendant “failed to meet any of

the conditions that [plaintiff] told him needed to be satisfied

in order for [plaintiff] to consider a warranty claim for the

doors” and that defendant “ignored the recommendations” of

plaintiff and others to “call in a third-party neutral to

conduct an inspection” of the Barrosos’ doors. (Docket Entry #

194-2, pp. 12-13). He further argues that defendant:

failed to even consider making a claim against Logan’s

insurance policy on which he was a named additional

insured or suggest to the Barrosos that their alteration

of the grading at the rear of the house voided his

warranty[;] . . . told [plaintiff] that the Barrosos

were going to sue them both when he knew, as Francisco

Barroso testified at his deposition, that the only one

he was holding responsible for the door leak was him[;]

. . . paid in settlement a sum several times more than

the original cost of the doors and windows, . . .

supposedly . . . on a recommendation that DiMonte could

not recall . . . giving and [] nowhere reflected in

ADLI’s bills[;] and, when [plaintiff]’s friend and

attorney-in-fact had the unmitigated gall to demand that

he provide evidence to support his claim that

[plaintiff] owed half of the settlement amount, simply

refused to provide it and wanted to know when he could

pick up a check.

(Docket Entry # 194-2, p. 13). In his statement of additional

facts, which defendant highlights for this court, plaintiff

alleges that “there is no evidence in the record to support the

42 Nor does he even specify the elements of a breach of contract

claim under California law.

payment by [defendant] of the sum of $55,000.00 to the Barrosos

. . . .” (Docket Entry # 194-1, p. 30, ¶ 71). Defendant, in

turn, maintains that “there is ample evidence of that payment in

the record” (Docket Entry # 192, p. 9), pointing to plaintiff’s

allegation in the amended complaint that “[defendant] claimed .

. . that he had made a $55,000 payment via wire transfer to the

Barrosos” (Docket Entry # 20-1, p. 21, ¶ 85). Plaintiff also

noted in the amended complaint that it was not until July 2019

that defendant finally “provide[d] purported documentation” of

the settlement sum and that the documentation was “facially

incomplete and appeared to violate federal law in that it lacked

address information for the recipient of the purported wire.”

(Docket Entry # 20-1, p. 21, ¶ 85).

Thus, while the record suggests that defendant did in fact

pay $55,000 to the Barrosos, the parties dispute whether

plaintiff was obligated, based on the parties’ agreement to

evenly split expenses, to pay half of that sum. It is

undisputed that the parties agreed to split the 1610 Fire Rock

Loop partnership’s expenses equally. See (Docket Entry # 117-1,

p. 2, ¶ 7) (Docket Entry # 194-1, p. 2, ¶ 7). As noted

previously, plaintiff maintains that he conditioned his

agreement “to move forward” with the settlement on defendant’s

full disclosure to him of “all the relevant circumstances” of

the settlement and provision of “all backup” documentation as to

the settlement and underlying repair issue. (Docket Entry #

194-3, p. 15, ¶ 61). According to plaintiff, defendant never

satisfied those conditions. (Docket Entry # 194-3, p. 15, ¶

64). For example, plaintiff alleges, defendant did not disclose

at the time “that the Barrosos had never threatened to sue

[plaintiff], [and] only threatened to sue [defendant] . . . .”

(Docket Entry # 194-3, p. 14, ¶ 58).

However, the parties had already agreed to equally split

the 1610 Fire Rock Loop partnership’s expenses long before June

2016, which is when plaintiff alleges that defendant told him

about the impending settlement with the Barrosos and plaintiff

made clear to defendant that he would only agree to the

settlement on certain conditions. See (Docket Entry # 194-3, p.

14, ¶ 57). This raises of the issue as to whether, at the time

the parties agreed to split the 1610 Fire Rock Loop

partnership’s expenses equally, they agreed to certain

conditions or limitations as to when each would be expected to

pay half of the expenses. Neither party alleges that they did

so. Separately, plaintiff’s allegation that “that the Barrosos

had never threatened to sue [him], [and] only threatened to sue

[defendant]” (Docket Entry # 194-3, p. 14, ¶ 58) raises the

issue as to whether t

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