FILED
NOT FOR PUBLICATION MAY 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NEST26 GROUPS, INC.; ALAN HO; No. 10-56950
UITO CHAU,
D.C. No. 2:10-cv-00596-DDP-RZ
Plaintiffs - Appellants,
v. MEMORANDUM *
RADER, FISHMAN & GRAUER PLLC;
MARY MARGARET O’DONNELL, an
individual and as an agent of Rader,
Fishman & Grauer PLLC,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted May 10, 2012 **
Pasadena, California
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
*
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).
Nest26 Groups, Inc. (Nest) appeals the district court’s grant of summary
judgment in favor of Appellees Rader, Fishman & Grauer PLLC (Rader) and Mary
Margaret O’Donnell (O’Donnell). Nest asserts that Rader and O’Donnell served as
Nest’s legal representatives for the registration and assignment of its PRATTS
trademark. Nest contends that the district court erred when it entered summary
judgment based on Nest’s failure to establish the requisite attorney-client
relationship for its breach of fiduciary duty, fraud, and gross negligence claims.
Nest failed to present any evidence in support of its fiduciary duty claim,
and the undisputed facts demonstrate that Rader and O’Donnell did not represent
Nest in registering or assigning the trademark. See Zenith Ins. Co. v. Cozen
O’Connor, 148 Cal.App.4th 998, 1010 (2007) (“California law is settled that a
client’s subjective belief that an attorney-client relationship exists, standing alone,
cannot create such a relationship, or a duty of care owed by the attorney to that
plaintiff. This is because a plaintiff cannot unilaterally establish an attorney-client
relationship, and its hindsight beliefs that such a relationship existed are thus
legally irrelevant. . . .”) (citations and internal quotation marks omitted).
Summary judgment was also warranted on Nest’s fraud claim because Nest
did not raise a material factual dispute regarding whether it reasonably relied on
any advice from O’Donnell, or whether O’Donnell’s conduct proximately caused
2
Nest’s damages. See Mega Life & Health Ins. Co. v. Superior Ct., 172 Cal.App.4th
1522, 1530 (2009) (“The plaintiff must allege and prove that he actually relied
upon the misrepresentations, and that in the absence of fraud, would not have
entered into the . . . transaction.”) (citation omitted); see also Stephenson v.
Argonaut Ins. Co., 125 Cal.App.4th 962, 974-75 (2004) (“Whatever form it takes,
the injury or damage must not only be distinctly alleged but its causal connection
with the reliance on the representation must be shown. Damage to be subject to a
proper award must be such as follows the act complained of as a legal certainty.”)
(citation and internal quotation marks omitted).
The district court properly granted summary judgment on Nest’s gross
negligence claim because Nest failed to establish the requisite statutory basis for its
claim. See Eriksson v. Nunnink, 191 Cal.App.4th 826, 856 n.18 (2011)
(“California does not recognize a distinct cause of action for gross negligence
independent of a statutory basis.”) (citation and internal quotation marks
omitted).1
AFFIRMED.
1
Because Nest failed to articulate any amendments that would have cured
the deficiencies in its complaint, the district court did not err in granting summary
judgment without leave to amend. See Johnson v. Lucent Techs. Inc., 653 F.3d
1000, 1012 (9th Cir. 2011).
3