Bruce Bickoff v. Wells Fargo Bank, N.A.
705 F. App'x 616
| 9th Cir. | 2017Background
- Bickoff obtained a construction loan from Wells Fargo governed by a Construction Loan Agreement (CLA), deed, and promissory note; Wells Fargo could not produce a signed CLA copy at summary judgment.
- Bickoff alleges the CLA guaranteed conversion to permanent financing and that Wells Fargo and its employees misrepresented or failed to disclose a requalification requirement.
- Wells Fargo produced an exemplar CLA (unsigned form) and other written loan materials showing the program’s purpose but containing conditions and limitations on permanent financing.
- The district court granted summary judgment for Wells Fargo on contract and misrepresentation claims, finding no guaranteed permanent financing, no actionable misrepresentation, and alternative bases (material breach, speculative damages, failure to mitigate).
- Bickoff appealed the denial of an adverse inference from spoliation, the consideration of the exemplar CLA, and the summary judgment on contract and misrepresentation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an adverse inference for spoliation of the CLA was warranted | Bickoff: Wells Fargo’s inability to produce signed CLA permits an adverse inference that CLA guaranteed permanent financing | Wells Fargo: CLA loss occurred before duty to preserve; no evidence of intentional destruction | No adverse inference — loss occurred before duty to preserve and no evidence of intentional spoliation |
| Admissibility of exemplar CLA at summary judgment | Bickoff: Exemplar CLA is unreliable and should not be considered | Wells Fargo: Federal Rule of Evidence 1004 permits other evidence when originals are lost and proponent acted in good faith | Exemplar CLA admissible — district court did not abuse discretion |
| Whether the contract (CLA, deed, note) guaranteed permanent financing | Bickoff: Contract included a guarantee of permanent financing | Wells Fargo: Governing documents and program materials impose conditions limiting any conversion; no guarantee | No contractual guarantee — summary judgment for Wells Fargo proper |
| Misrepresentation (failure to disclose requalification; affirmative misstatements) | Bickoff: Wells Fargo employees led him to believe permanent financing was guaranteed and failed to disclose requalification verbally | Wells Fargo: Written disclosures existed; no evidence employees knowingly misled or had duty to disclose orally | No actionable misrepresentation — plaintiff failed to show fraudulent or knowingly false statements or duty to disclose orally |
Key Cases Cited
- Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806 (9th Cir. 2002) (standard for adverse inference/spoliation and reviewing district court discretion)
- Ritchie v. United States, 451 F.3d 1019 (9th Cir. 2006) (spoliation inference when evidence intentionally destroyed after duty to preserve arises)
- Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971 (9th Cir. 2009) (timing of duty to preserve relevant to spoliation inferences)
- Domingo ex rel. Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002) (review of district court evidentiary rulings on summary judgment)
- Guebara v. Allstate Ins. Co., 237 F.3d 987 (9th Cir. 2001) (summary judgment reviewed de novo)
- Ragland v. U.S. Bank Nat’l Ass’n, 147 Cal. Rptr. 3d 41 (Ct. App. 2012) (disclosure duties in loan contexts)
- Lazar v. Superior Court, 909 P.2d 981 (Cal. 1996) (fraud requires knowledge falsity or lack of reasonable belief)
- Wells Fargo Bank, N.A. v. FSI, Fin. Sols., Inc., 127 Cal. Rptr. 3d 589 (Ct. App. 2011) (standards for misrepresentation claims)