NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PARAPLUIE, INC., a California No. 12-55895
corporation,
D.C. No. 2:11-cv-02548-MMM-
Plaintiff - Appellant, SS
v.
MEMORANDUM*
HEATHER MILLS, an individual,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted February 7, 2014**
Pasadena, California
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
Heather Mills is known for being the ex-wife of Beatle Sir Paul McCartney.
Michele Blanchard is a publicist and principal of Parapluie, Inc., a public relations
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
firm. Blanchard did PR work for Mills from March 2005 to July 2008, but was not
paid for the first two years because, as Mills told Blanchard, Mills could not afford
the usual rate of $5,000 per month. Eventually, in March 2007, Blanchard spoke
with Mills’s sister, Fiona, and the two agreed that although Mills could not afford
$5,000 per month, she could pay Blanchard $3,000. Beginning in March 2007,
Blanchard sent monthly invoices for $3,000, all of which Mills paid. The
relationship soured and Blanchard quit in July 2008. The next month she sent
Mills a final invoice for $168,000. The final invoice included monthly charges of
$5,000 from April 2005 to March 2007, plus $2,000 ($5,000 less the $3,000 Mills
had already paid) for services between March 2007 and July 2008. Mills refused
to pay. Parapluie sued, claiming Mills had intentionally misrepresented her
financial situation and falsely promised to pay Blanchard when Mills got the “big
money.” The district court granted summary judgment in favor of Mills on both
claims and denied Parapluie’s request for leave to amend.
We have jurisdiction under 28 U.S.C. § 1291. Orders granting summary
judgment are reviewed de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610
(9th Cir. 2011). The denial of leave to amend is reviewed for abuse of discretion.
AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). We
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agree with the district court that Parapluie did not produce sufficient evidence to
show that a genuine issue of fact existed as to whether Mills’s representations were
false when made. And because Parpluie failed to show good cause, we find the
district court did not abuse its discretion in denying leave to amend. We therefore
affirm.
I. Summary Judgment
Summary judgment will be granted when “there is no genuine dispute as to
any material fact.” Fed. R. Civ. Pro. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Once the movant has met her initial burden of showing “an
absence of evidence” supporting the nonmoving party’s case, the burden is on the
nonmoving party to show with “specific facts” that there is a genuine issue of fact
suitable for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson,
477 U.S. at 250.
A. Intentional Misrepresentation
Parapluie contends that Mills lied about her finances in the spring of 2005
and again in March 2007, saying she “had no money,” and “cannot afford”
Blanchard’s fee, when in fact she could. To survive summary judgment, Parapluie
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must point to facts showing that Mills’s statements were false at the time she
uttered them. See Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990
(2004). The evidence is not sufficient to show that reasonable fact finders could
conclude this was the case.
Mills’s testimony (“I would have paid [Blanchard] if I had owed her
anything, whether I had sufficient money or not”) does not show that she was able
to afford Blanchard’s services in the spring of 2005 or March 2007. It establishes
only that Mills claims she could find a way to pay her debts regardless of whether
she could afford to.
Mills’s $30,000 charity bid on a cruise in March 2007 might create a
genuine issue of triable fact, except that Mills’s credit card payment for the cruise
was declined. Rather than establishing that Mills was able to afford $5,000 for PR
services, the charity bid shows quite the opposite.
As for Fiona’s request that Blanchard send her rental listings in Malibu and
Hollywood Hills, this does not show that Mills had the money, as opposed to the
desire, for the real estate. Nor was it clear that the real estate was even for her
sister Heather. Nor had Fiona specified a price range when she requested the
listings. The fact that Blanchard sent along listings for houses that rented for
$80,000 a month speaks to what Blanchard believed about Mills’s finances, not of
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Mills’s actual ability to afford this. Mills did rent two “very modest” properties
from Blanchard for $2,000 and $3,000 per week. The invoice shows Mills rented
the properties for a single week in October 2007, seven months after Mills said, “I
don’t know if I can pay the entire amount, but I’ll do something,” and several years
after she said she could not afford Blanchard’s fee. The subsequent rentals do not
show that Mills was lying when she made these statements.
Finally, Parapluie points to a £2.5 million interim payment Mills received in
April 2007 as part of her divorce settlement with McCartney. But the payment
came two years after Mills’s initial statement that she could not afford Blanchard’s
services. Indeed, Mills received the money the same month she began paying
Blanchard $3,000 a month, suggesting, if anything, that her earlier statements were
true when made, and that she started paying Blanchard when she got the £2.5
million.
Parapluie has not produced sufficient evidence to create a triable issue as to
whether Mills lied about her ability to pay Blanchard’s full fee. “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted.” Liberty Lobby, Inc., 477 U.S. at 249–50 (internal citations omitted).
B. Promissory Fraud
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After Blanchard asked whether Mills might pay her “a little something,”
Mills agreed, saying “I’ll take care of you when I get the big money.” Parapluie
argues this was a promise to pay Blanchard the regular fee of $5,000 in the future
and for the work Blanchard had done the previous two years. Parapluie argues that
Mills had no intention of keeping her promise when she told Blanchard she would
“take care of [her].”
A promise to do something in the future can give rise to fraud when the
promise is made with no intention to perform. See Downey Venture v. LMI Ins.
Co., 78 Cal. Rptr.2d 142, 161–62 (Cal. Ct. App. 1998). But Mills’s statement is
too vague to support a concrete promise to pay Blanchard $5,000 per month for
future work and for work done two years prior. The invoices Blanchard sent Mills
beginning in April 2007 stated the “total amount due” each month was $3,000, plus
expenses. These invoices negate any inference that the parties intended a
retroactive payment for the same periods for more money.
Parapluie supports a contrary inference from Fiona’s statements that
although Mills could not afford to pay $5,000, she could afford $3,000, “and would
take care of the rest as soon as they received the ‘big money.’” Parapluie argues
that Fiona’s statements can be imputed to Mills because she was acting as Mills’s
agent. An agency theory of liability was not advanced until summary judgment,
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after discovery had closed. Parapluie’s evidence for a promise to pay more than
Blanchard invoiced for past services is insufficient to establish a genuine issue of
fact. The suggested inference has no force as against Blanchard’s own invoices
stating the “total amount due.” The most that a jury could infer is that Blanchard
billed, Mills paid the bills, the bills were in fact for the “total amount due” pursuant
to their agreement, and there was vague, nonspecific talk about the future of their
commercial relationship after Mills got “big money.”
Because Parapluie failed to show there are triable issues as to whether a
promise was made, the district court properly granted summary judgment in favor
of Mills.
II. Denial of Leave to Amend
In its opposition to summary judgment, Parapluie sought to amend its
complaint to add new causes of action for account stated and open book account.
Parapluie’s request to amend came seven months after the deadline for such
requests had passed. Once a schedule has been established it “may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. Pro. 16(b)(4).
Good cause exists to modify a scheduling order when “it cannot reasonably be met
despite the diligence of the party seeking the extension.” Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Parapluie’s request for leave
to amend came months after the period for discovery and amendment of pleadings
had ended. Parapluie has given no explanation for why it could not reasonably
have sought leave to amend within the deadline set by the scheduling order. The
district court did not abuse its discretion by denying leave to amend.
The order of the district court is AFFIRMED.
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