Parapluie, Inc. v. Heather Mills

NOT FOR PUBLICATION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.