Breen v. Pruter , 679 F. App'x 713 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 17, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THERESIA RENEE BREEN, a citizen and
resident of Wyoming,
Plaintiff – Appellant,
v. No. 15-8132
(D.C. No. 1:14-CV-00081-NDF)
DORCY RUSSELL PRUTER, a citizen (D. Wyoming)
and resident of California; DORCY INC., a
North Carolina corporation with its
principal place of business in California,
Defendants – Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MATHESON, and McHUGH, Circuit Judges.
_________________________________
I. INTRODUCTION
Theresia Renee Breen sued Dorcy Russell Pruter and Ms. Pruter’s company,
Dorcy, Inc., alleging twenty causes of action arising out of Ms. Pruter’s services as a
“life coach.” The district court granted summary judgment and judgment as a matter
of law on seventeen of the causes of action, after which a jury found against
Ms. Breen on the three remaining claims. Ms. Breen appeals four of the district
court’s decisions made at various points in the litigation. We affirm.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
II. BACKGROUND
A. Factual History
For several years, Ms. Breen and her ex-husband had been involved in a highly
contentious child custody dispute. In 2012, the Wyoming state court in which the
case was pending ordered Ms. Breen to enroll in a “Conscious Co-Parenting” class,
designed—but not taught—by Ms. Pruter. At the end of the class, Ms. Breen’s
instructor recommended that she contact Ms. Pruter for continuing life coaching and
consulting services. On or around May 9, 2013, Ms. Pruter began coaching Ms.
Breen. Although Ms. Pruter is not a lawyer or a psychologist, she claimed to be the
“team leader” of a group of lawyers, psychologists, and paralegals. Ms. Pruter also
agreed to organize evidence from Ms. Breen’s child custody dispute into digital
timelines using a third-party service provider. On May 22, 2013, Ms. Breen paid
Ms. Pruter $3,500 to cover the cost of setting up this service.
On July 29, 2013, the parties entered into a Consulting Agreement, wherein
Ms. Pruter agreed to provide “consulting services to compile evidence, create
timelines, and write scripts to provide to [Ms. Breen’s] legal team” for assistance
with her child custody case. Because the initial $3,500 had been exhausted, the
parties agreed that Ms. Pruter would receive twenty percent of any settlement,
payout, court award, and/or any other money received from a court proceeding
related to the child custody dispute. Additionally, Ms. Breen granted Ms. Pruter the
rights to her life story, including “the right to use, depict, portray, impersonate, and
represent, in whole or in part, [Ms.] Breen’s life and all episodes, exploits, events,
2
incidents, personal experiences, and situations which occurred before or after signing
the agreement.”
B. Procedural History
On April 17, 2014, Ms. Breen filed a complaint in the United States District
Court for the District of Wyoming against Ms. Pruter and Dorcy Inc. (collectively,
Ms. Pruter) alleging twenty causes of action. These claims included contract
rescission, trespass to chattels, intentional infliction of emotional distress, fraud,
negligent misrepresentation, negligence per se, and a claim for violation of the
California Consumer Legal Remedies Act (CLRA).1 Ms. Pruter counterclaimed for
breach of contract or, in the alternative, unjust enrichment.
Ms. Pruter then filed a Federal Rule of Civil Procedure 12(c) motion for partial
judgment on the pleadings with respect to the CLRA claim, based on lack of personal
jurisdiction and inadequate notice. Because both parties had submitted materials
outside the pleadings, the district court converted the motion to dismiss to a motion
for summary judgment under Rule 56. The district court denied Ms. Pruter’s
jurisdictional arguments, but granted the motion on the ground that Ms. Breen had
failed to comply with the Act’s notice requirements. And it dismissed the CLRA
claim with prejudice.
1
Additionally, Ms. Breen moved for a preliminary injunction demanding that
Ms. Pruter turn over Ms. Breen’s evidence. The parties stipulated to an order
directing the return of the evidence, and Ms. Pruter complied. The parties do not
appeal the preliminary injunction stipulation, but it is relevant to the CLRA claim, as
discussed below.
3
Ms. Breen filed a Rule 59(e) motion to amend or alter the order, arguing the
court clearly erred in finding she had violated the CLRA’s notice requirements. In the
alternative, Ms. Breen asserted that even if the court was correct that she had failed
to give thirty days’ notice before seeking damages, it erred in dismissing the CLRA
claim with prejudice. The court denied the motion.
Thereafter, Ms. Pruter moved for summary judgment on the remaining claims.
At oral argument on the summary judgment motion, Ms. Breen conceded judgment
on the first six counts of her complaint which sought contract rescission, and Ms.
Pruter withdrew her unjust enrichment counterclaim. The district court granted
summary judgment on all but four of Ms. Breen’s remaining claims. Relevant to this
appeal, the court dismissed Ms. Breen’s negligence per se claims, concluding that the
pleaded statutes did not create a duty to Ms. Breen.
The day the district court entered its order, Ms. Breen filed a motion to amend
her complaint to include a count of “simple negligence.” The district court denied the
motion on the dual grounds of undue delay and unfair prejudice.
The case then proceeded to trial on the four remaining claims: intentional
infliction of emotional distress, trespass to chattels, common-law fraud, and negligent
misrepresentation. After presentation of the evidence, the district court granted
judgment as a matter of law on Ms. Breen’s trespass to chattels claim and on Ms.
Pruter’s breach of contract counterclaim. The court submitted the three remaining
claims to the jury, and the jury returned a verdict in favor of Ms. Pruter.
4
Ms. Breen then filed a motion for a new trial, arguing the district court had
committed four evidentiary errors: (1) excluding the books Ms. Pruter allegedly
plagiarized; (2) allowing Ms. Pruter’s witness, Dr. Childress, to testify on Ms.
Pruter’s expertise; (3) excluding Ms. Breen’s testimony regarding a potential real
estate transaction with which Ms. Pruter allegedly interfered; and (4) excluding two
exhibits containing email and text messages between Ms. Breen and Ms. Pruter. The
court found “that none of these alleged errors justify a new trial in this case,” and it
denied the motion. Ms. Breen appeals. We have jurisdiction under 28 U.S.C. § 1291.
III. DISCUSSION
Ms. Breen alleges the district court erred by: (1) dismissing the CLRA claim
with prejudice, (2) dismissing the negligence per se claims, (3) denying leave to
amend the complaint to add simple negligence, and (4) refusing to grant a new trial
based on alleged evidentiary errors. We address each of these issues in turn.
A. The District Court Did Not Err in Dismissing the CLRA Claim with Prejudice.
Ms. Breen asserts the district court erred in concluding she failed to comply
with the notice provisions of the CLRA and that, even if this was not error, the
district court should not have dismissed the CLRA claim with prejudice. We review a
district court’s grant of summary judgment de novo. Christy v. Travelers Indem. Co.
of Am., 810 F.3d 1220, 1225 (10th Cir. 2016). We are not “limited to the grounds
relied upon by the trial court but may uphold summary judgment on conclusions of
law supported by the record.” City of Wichita, Kan. v. Sw. Bell Tel. Co., 24 F.3d
1282, 1286 (10th Cir. 1994).
5
“[S]tate courts are the final arbiters of state law.” United States v. DeGasso,
369 F.3d 1139, 1145 (10th Cir. 2004). Thus, a federal court must apply a state statute
in accordance with the approach adopted by the state’s highest court. Rael v.
Sullivan, 918 F.2d 874, 877 (10th Cir. 1990). But where the state’s highest court has
not interpreted the relevant provision, the federal court “must predict how the court
would interpret the code in light of state appellate court opinions, decisions from
other jurisdictions, statutes, and treatises.” DeGasso, 369 F.3d at 1145 (internal
quotation marks omitted).
In analyzing the district court’s resolution of Ms. Breen’s CLRA claim, we
first discuss the statute’s notice provisions and then explain the actions taken by Ms.
Breen to comply with them. Next, we examine the allegations in Ms. Breen’s
complaint and the conflicting authority on whether she seeks “damages.” Ultimately,
we conclude the district court did not err in determining that Ms. Breen
inappropriately commenced an action for damages without proper notice. And we
also conclude the district court did not abuse its discretion by dismissing the CLRA
claim with prejudice.
1. The CLRA
The California Legislature adopted the CLRA to provide “a non-exclusive
statutory remedy for ‘unfair methods of competition and unfair or deceptive acts or
practices undertaken by any person in a transaction intended to result or which results
in the sale or lease of goods or services to any consumer.’” Gallin v. Superior Court,
281 Cal. Rptr. 304, 306 (Cal. Ct. App. 1991) (citation omitted); Cal. Civ. Code
6
§ 1770(a). Consumers who have suffered “any damage” resulting from unfair or
deceptive methods, acts, or practices, may bring an action to obtain actual damages,
an injunction, restitution of property, or “[a]ny other relief that the court deems
proper.” Id. § 1780(a).
But “[t]hirty days or more prior to the commencement of an action for
damages,” the consumer must provide written notice to the person alleged to have
violated the statute, demanding that the person “correct, repair, replace, or otherwise
rectify the goods or services alleged to be in violation of” the CLRA. Id. § 1782(a).
If, within thirty days of defendant’s receipt of the notice required under §1782(a), the
defendant gives—or agrees to give within a reasonable time—“an appropriate
correction, repair, replacement, or other remedy,” the consumer may not maintain
any claim for damages. Id. § 1782(b). If the lawsuit seeks “injunctive relief” only,
however, the consumer need not provide notice before filing suit. Id. § 1782(d).
Instead, the consumer may file a complaint seeking only injunctive relief, send notice
of a claim for damages at a later date, and then, after waiting at least thirty days from
the date of that notice, “amend his or her complaint without leave of court to include
a request for damages.” Id. But § 1782(b) bars the consumer’s right to maintain any
claim for damages if the defendant appropriately remediates the harms alleged in the
notice. Id.
7
Here, on April 15, 2014, Ms. Breen mailed Ms. Pruter a § 1782(a) notice,2
which stated:
In accordance with Cal. Civ. Code § 1782(a)(2), I demand that you,
within thirty days, “correct, repair, replace, or otherwise rectify the
services I have alleged to be in violation of Section 1770.” How you
propose to go about this is between you and your counsel, but would
include, at a minimum, turning over all [of Ms. Breen’s] evidence
without compensation . . . .3
Two days later, Ms. Breen filed her complaint, which included a CLRA claim
in which she alleged she was “entitled to an injunction enjoining [Ms. Pruter’s]
unlawful actions and ordering the restitution of [Ms. Breen’s] property.” She also
asked for attorney’s fees and costs under the CLRA. Ms. Breen explained in her
complaint that she had sent notice on April 15th as required by § 1782(a) and further
stated that she “reserve[d] her right under § 1782(d) to amend her Complaint to
include monetary damages, if [Ms. Pruter] fails to correct her actions within thirty
days of the date of said notice.”
2
Ms. Breen indicates in the letter, and later in her complaint, that this April
15, 2014, letter is a § 1782(a) notice letter under the CLRA.
3
Ms. Breen also requested that Ms. Pruter “mak[e] a reasonable proposal for
compensation for the clerical work of tagging evidence and inputting it into
databases.” The record is unclear whether Ms. Pruter complied with this request but,
regardless, Ms. Breen contends on appeal that she “sought only return of tangible
personal property she gave Pruter (evidentiary material) . . . . Breen didn’t seek, nor
did Pruter pay back, any money Breen gave her.” Ms. Breen additionally alleges
“[t]he property Breen sought to recover was evidence she gave Pruter, not money.”
Thus, the only relief Ms. Breen sought in her first § 1782(a) notice letter was the
return of the evidence.
8
On May 15, 2014, thirty days after Ms. Breen mailed the § 1782(a) notice, Ms.
Pruter turned over all of the evidence requested by Ms. Breen.4 Over a month later,
on June 18, 2014, Ms. Breen sent a second § 1782(a) notice letter demanding—for
the first time—that Ms. Pruter “pay damages for the harm” she caused Ms. Breen,
and stating Ms. Breen “would consider this dispute corrected or otherwise rectified in
exchange for a cash payment . . . in the amount of 3.5 million dollars.”
On July 18, 2014, Ms. Pruter filed a motion for partial judgment on the
pleadings with respect to the CLRA claim. At that time, Ms. Breen had not moved to
amend the complaint to include a demand for monetary damages as indicated in her
second § 1782(a) notice letter. The district court converted the motion for judgment
on the pleadings to one for summary judgment, and allowed the parties to submit
additional briefing. In Ms. Breen’s submission to the court, she stated: “[T]he CLRA
claim is, and mostly has been, about damages caused by [Ms. Pruter] that cannot be
remediated except in money, but the statute requires a formal exhaustion process
before money damages can be sought.”
The district court granted summary judgment in favor of Ms. Pruter, in part
because the court concluded Ms. Breen’s “real [CLRA] claim is a claim for
damages.” The court further found, however, that Ms. Breen had already received
remediation because Ms. Pruter “provided all the requested documents” Ms. Breen
4
Ms. Pruter turned over the evidence after the parties entered into a stipulated
consent decree on Ms. Breen’s motion and memorandum for preliminary injunction,
in which Ms. Breen requested, inter alia, an order requiring Ms. Pruter to turn over
all of Ms. Breen’s evidence.
9
sought. Because there was no other relief besides monetary damages that Ms. Breen
could still plausibly be seeking, the court concluded Ms. Breen violated § 1782(a)’s
notice requirement by improperly pleading damages in her complaint.
2. The Complaint Sought Relief in Violation of the CLRA Notice Requirements.
As discussed, California Civil Code § 1782(a) provides that at least thirty days
before a consumer may bring an action to recover damages, she must provide notice
of the alleged violation and demand that the defendant “correct, repair, replace, or
otherwise rectify the goods or services alleged to be in violation” of the CLRA. Here,
Ms. Breen filed her complaint only two days after the first § 1782(a) notice. Thus, if
Ms. Breen sought in her complaint to recover “damages,” then she violated the
CLRA.
Ms. Breen first sought under the CLRA count of her complaint an order
enjoining Ms. Pruter’s unlawful practices. This is expressly permitted prior to
statutory notice. See id. § 1782(d) (“An action for injunctive relief brought under the
specific provisions of Section 1770 may be commenced without compliance with [the
§ 1782(a) notice requirement].”); see also Meyer v. Sprint Spectrum L.P., 200 P.3d
295, 301 (Cal. 2009). Ms. Breen also requested in the CLRA claim of her complaint
an injunction “ordering the restitution of [Ms. Breen’s] property.” She argues this
request is properly treated as injunctive relief available prior to statutory notice. But
Ms. Breen does not argue in her opening brief that her complaint asks only for an
injunction, not restitution. In her reply brief, she argues for the first time that her
10
complaint's request for "non-monetary restitution is essentially an injunction." She
has waived that argument. Hill v. Kemp, 478 F.3d 1236, 1250 (10th Cir. 2007).
Ms. Pruter contends the complaint seeks restitution under the CLRA claim,
which is barred without prior notice. The statute is less than clear on whether
restitution can be sought only after notice.
To be sure, the CLRA classifies restitution and injunctive relief as separate
categories of recovery available under the statute. A consumer who suffers “any
damage” as a result of a violation of the CLRA may bring an action to recover or
obtain any of the following:
(1) Actual damages, . . .
(2) An order enjoining the methods, acts, or practices.
(3) Restitution of property.
(4) Punitive damages.
(5) Any other relief that the court deems proper.
See Cal. Civ. Code § 1780(a). Here, the request for an order enjoining Ms. Pruter
from engaging in further unlawful conduct falls squarely within “An order enjoining
the methods, acts, or practices” alleged to have violated the CLRA. Id. § 1780(a)(2).
But the request for an “injunction ordering the restitution of Ms. Breen’s property” is
more appropriately placed in subparagraph (a)(3), which allows for relief in the form
of “Restitution of property.” See CarMax Auto Superstores Cal., LLC v. Superior
Court, No. E059594, 2014 WL 4533445, at *3 (Cal. Ct. App. Sept. 15, 2014)
(unpublished) (holding that the plaintiff sought damages in his complaint in violation
of the CLRA notice requirement where he pled he was “entitled to actual damages in
an amount yet to be determined, including restitution of the amount actually paid or
11
payable under the contract”); id. (“The only exemption to the notice requirement is
for actions that solely seek injunctive relief . . . .”).
Even accepting those classifications, however, the statute is silent on whether
a CLRA claim seeking restitution falls under § 1782(a)’s thirty-day notice
requirement as “an action for damages pursuant to this title.” Id. § 1782(a). Although
restitution of property is listed separately from “An order enjoining the methods,
acts, or practices” constituting the unlawful conduct, it is also in a category separate
from “Actual damages.” See Gutierrez v. PCH Roulette, Inc., No. H024243, 2003
WL 22422431, at *5 (Cal. Ct. App. Oct. 24, 2003) (unpublished) (“The statute
appears to limit the requirement of notice to actions for damages. Damages is only
one of several forms of relief available under the CLRA. On appeal Dealer
acknowledges that the only relief sought by Customers was restitution.”).
The California Supreme Court has not had occasion to decide the precise
question of whether notice is required only before a claim for “Actual damages,” or
prior to a claim for any relief beyond “An order enjoining the methods, acts, or
practices” that violate the CLRA.5 But in Meyer v. Sprint Spectrum L.P., the
5
Federal district courts interpreting California’s statute in diversity actions are
split on whether restitution falls under “damages” under the CLRA. Compare Oxina
v. Lands’ End, Inc., No. 14-cv-2577-MMA (NLS), 2015 WL 4272058, at *2 (S.D.
Cal. June 19, 2015) (unpublished) (“A claim for the equitable relief of disgorgement
or restitution is still a claim for damages.” (internal quotation marks omitted)), and
Ries v. Hornell Brewing Co., No. 5:10-cv-01139-JF/PSG, 2011 WL 1299286, at *6
(N.D. Cal. Apr. 4, 2011) (unpublished) (“[A] restitution claim brought under the
CLRA is a claim for damages and requires proper notice.”), with Vasic v.
PatentHealth, L.L.C., 171 F. Supp. 3d 1034, 1041 (S.D. Cal. Mar. 22, 2016)
(unpublished) (“Although Plaintiff sought restitution and disgorgement in the
12
California Supreme Court distinguished between “any damage” and “actual damages”
in assessing the standing requirement in § 1780(a). 200 P.3d 295, 298 (Cal. 2009)
(“Any consumer who suffers any damage as a result of” a violation of the CLRA
“may bring an action against that person to recover . . . (1) Actual damages . . . .”).
The court concluded that “the breadth of the phrase ‘any damage’ indicates a
category that includes, but is greater than, ‘actual damages,’ i.e., those who are
eligible for the remedy of ‘actual damages’ are a subset of those who have suffered
‘any damage.’” Id. at 299.
Although not directly on point, this analysis suggests the California Supreme
Court would likewise view the notice required “before commencement of an action
for damages” in § 1782(a) as applying to a category of damages greater than the
“actual damages” available under § 1780(a)(1). See In re Ford Tailgate Litig., No.
11-CV-2953, 2014 WL 1007066, at *9 (N.D. Cal. Mar. 12, 2014) (unpublished) (“If
the notice requirement in § 1782(a) pertaining to ‘an action for damages’ is read
narrowly to apply only to ‘actual damages,’ it would render the word ‘actual’ in
§ 1780 redundant and ignore the Legislature’s specific exemption of ‘injunctive
relief’ in § 1782(d).”).
original Complaint, these do not appear to be ‘damages’ for purposes of the
CLRA.”), and Rosales v. Fitflop USA, LLC, 882 F. Supp. 2d 1168, 1177 (S.D. Cal.
2012) (holding § 1782(a) notice was not required where the “complaint sought only
injunctive relief, restitution, and disgorgement, but not monetary damages”).
Although these decisions address restitution in the form of money damages, for the
reasons we discuss later in this decision, we do not read the statute as distinguishing
on that basis.
13
That interpretation is further supported by the Supreme Court’s statement in
Meyer that: “[S]ection 1782, subdivision (d) contemplates the filing of a CLRA
action for injunctive relief alone, and such actions are not subject to the requirements
of subdivisions (a) and (b) of notice and allowance for voluntary correction.” 200
P.3d at 301. Although the pronouncement was made in the context of reviewing the
statute’s standing requirements, it is consistent with an interpretation of the CLRA
that mandates notice prior to the commencement of an action seeking any relief other
than “[a]n order enjoining the methods, act, or practices” alleged to be unlawful.
This reading is also most consistent with the purpose of the notice
requirement, which is to put the defendant on notice of the alleged violations “to
permit appropriate corrections or replacements,” and to “facilitate precomplaint
settlements of consumer actions wherever possible.” Outboard Marine Corp. v.
Superior Court, 124 Cal. Rptr. 852, 858–59 (Cal. Ct. App. 1975). To that end, the
CLRA requires that the consumer give notice of the alleged violations and “[d]emand
that the person correct, repair, replace, or otherwise rectify the goods or services
alleged to be in violation of Section 1770.” Cal. Civ. Code § 1782(a). And it further
provides that “no action for damages may be maintained . . . if an appropriate
correction, repair, replacement, or other remedy is given.” Id. at § 1782(b). By
expressly providing for broad corrective action during the thirty-day notice period,
not limited to the payment of money, the statute imposes a framework designed to
avoid litigation irrespective of the nature of the relief requested. If the parties can
agree to a remedy during the notice period, no action for damages can be brought and
14
the goal of precomplaint resolution is fulfilled. Id. § 1782(b); see also People v.
Hubbard, 371 P.3d 578, 583 (Cal. 2016) (stating that in resolving questions of
statutory interpretation, “our primary task is to give effect to the Legislature’s
intended purpose in enacting the law”).
The CLRA provides only one exception to this thirty-day notice requirement,
providing that “[a]n action for injunctive relief brought under the specific provisions
of Section 1770 may be commenced without compliance with subdivision (a).” Cal.
Civ. Code § 1782(d). Again, this exception, when limited to injunctive relief in the
form of “[a]n order enjoining the methods, act, or practices,” furthers the statute’s
goal of reducing consumer litigation. By obtaining injunctive relief, the consumer
can prevent new violations of the CLRA and thereby also prevent potential litigation
brought by new consumers injured by those continuing practices. Cf. Davis v.
Louisiana-Pacific Corp., No. F051301, 2008 WL 2030495, at * (Cal. Ct. App. May
13, 2008) (holding plaintiffs did not seek “injunctive relief” as provided in § 1782(d)
because they sought only a remedy of “repairing or replacing a roof” and the
defendant “had already stopped production of [the defective] shingles and had ceased
the alleged deceptive practices.”). But all of the other relief available under § 1780
can be provided to the original consumer during the thirty-day notice period, thereby
obviating the need for litigation. And whether the relief requested by that consumer is
in the form of money damages, restitution of property, or other relief, the advantage
of avoiding litigation is the same.
15
By interpreting the phrase “an action for damages” in § 1782(a) to refer
broadly to all of the relief available under § 1780, we also harmonize the provisions
of the CLRA. See Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses,
LLC, 352 P.3d 391, 396 (Cal. 2015) (“[A] court must, where reasonably possible,
harmonize statutes, reconcile seeming inconsistenc[ies] in them, and construe them to
give force and effect to all of their provisions.”) (internal quotation marks omitted)).
If § 1782(a)’s requirement of notice thirty days prior to “an action for
damages,” refers only to notice of a claim for relief in the form of money damages,
the provision disallowing an action for damages if an “appropriate correction, repair,
replacement, or other remedy is given” makes little sense. This is because no notice
would be required before an action seeking relief in the form of such corrective
action. And if § 1782(a) is read to require notice only for claims seeking relief in the
form of money damages, § 1782(d) would be rendered superfluous. There would be
no need to carve out a claim for injunctive relief from the notice requirement if the
phrase “an action for damages” already limited the thirty-day notice provision to
claims seeking relief in the form of money damages. By interpreting “an action for
damages” to refer broadly to any action to recover for the relief available to a
consumer injured by a violation of the CLRA, each provision of the statute is
afforded meaning and the goal of resolving disputes precomplaint is fulfilled.
Accordingly, we conclude that the California Supreme Court would hold that the
CLRA requires notice before any action for relief, with the sole exception of an
16
action for “[a]n order enjoining the methods, acts, or practices,” alleged to violate the
statute.
Here, Ms. Breen filed her complaint without waiting thirty days after serving
notice on Ms. Pruter. She sought relief in the form of an injunction against the
practices that violate the CLRA, as well as the restitution of her property. In light of
the guidance from the California Supreme Court in Meyer, the district court did not
err in concluding that Ms. Breen’s CLRA claim violated the CLRA’s notice
provisions.
3. The District Court Did Not Abuse Its Discretion in Dismissing the CLRA Claim
with Prejudice.
Ms. Breen next argues that, even if the complaint did improperly seek damages
in violation of the CLRA notice requirements, the district court abused its discretion
in dismissing the claim with prejudice. Our analysis of this issue is complicated by
the fact that the statute is silent on the question and that the California Supreme
Court has never had occasion to consider it. We are therefore bound to follow “the
state’s intermediate court decisions absent convincing evidence that the highest court
would decide otherwise.” Commonwealth Prop. Advocates, LLC v. Mortg. Elec.
Registration Sys., Inc., 680 F.3d 1194, 1204 (10th Cir. 2011) (internal quotation
marks omitted). But that guidance is illusory because the California Courts of Appeal
do not agree on the answer to this question. And, unlike in the Tenth Circuit, “there is
no horizontal stare decisis in the California Court of Appeal.” Sarti v. Salt Creek
Ltd., 85 Cal. Rptr. 3d 506, 510 (Cal. Ct. App. 2008). Therefore, we are tasked with
17
deciding which approach the California Supreme Court is more likely to adopt.
DeGasso, 369 F.3d at 1145.
In Outboard Marine Corp. v. Superior Court, a panel of the California Court
of Appeal found the plaintiffs did not submit the proper notice letter until several
months after they filed a complaint seeking damages. 124 Cal. Rptr. 852, 858–59
(Cal. Ct. App. 1975). The plaintiffs argued that substantial compliance was all that
was needed to satisfy the statute, especially since the CLRA mandates a liberal
construction. Id. The court rejected that argument, noting that a liberal construction
does not condone ignoring the plain language of a clear and unambiguous statute. Id.
at 858. The court further reasoned that the
purpose of the notice requirement of section 1782 is to give the
manufacturer or vendor sufficient notice of alleged defects to permit
appropriate corrections or replacements. . . . The clear intent of the act
is to provide and facilitate precomplaint settlements of consumer actions
wherever possible and to establish a limited period during which such
settlement may be accomplished. This clear purpose may only be
accomplished by a literal application of the notice provisions.
Id. at 858–59; see also Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 950
(S.D. Cal. 2007) (“Permitting Plaintiff to seek damages first and then later, in the
midst of a lawsuit, give notice and amend would destroy the notice requirement’s
utility, and undermine the possibility of early settlement.”). Subsequent decisions
have relied on Outboard Marine’s call for “literal application of the notice
provisions” to hold that noncompliant CLRA claims should be dismissed with
prejudice. See, e.g., Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1195–96
(S.D. Cal. 2005), rev’d on other grounds sub nom. AT&T Mobility LLC v.
18
Concepcion, 563 U.S. 333 (2011); Von Grabe v. Sprint PCS, 312 F. Supp. 2d 1285,
1304 (S.D. Cal. 2003); Berry v. Webloyalty.com, Inc., No. 10-cv-1358-H (CAB),
2010 WL 8416525, at *5 (S.D. Cal. Nov. 16, 2010) (unpublished).
Thirty-four years later, and without mentioning Outboard Marine,6 a different
panel of the California Court of Appeal decided Morgan v. AT&T Wireless Services,
Inc., 99 Cal. Rptr. 3d 768 (Cal. Ct. App. 2009). In Morgan, the plaintiffs filed a
complaint alleging a CLRA violation and later amended the complaint to add a claim
for damages, without first satisfying the CLRA’s notice requirement. Id. at 773–77.
The plaintiffs then filed a third amended complaint, again requesting CLRA
damages, and alleging they had mailed the required notice. Id. at 777–80. The
defendant argued the CLRA claim should be dismissed because the plaintiffs had not
complied with the notice requirement before filing the second amended complaint.
Id. at 789. The Court of Appeal agreed the second amended complaint should be
dismissed, but declined to do so with prejudice. Id. at 789–90.
The court explained that “[a] dismissal with prejudice of a damages claim filed
without the requisite notice is not required to satisfy” the purpose of “allow[ing] a
defendant to avoid liability for damages if the defendant corrects the alleged wrongs
within 30 days after notice, or indicates within that 30-day period that it will correct
those wrongs within a reasonable time.” Id. at 789; Benson v. S. Cal. Auto Sales, Inc.,
192 Cal. Rptr. 3d 67, 77 (Cal. Ct. App. 2015) (“[The CLRA] actually has two
6
It is unclear why the court in Morgan never mentions Outboard Marine. Both
parties addressed and analyzed the case in their briefs to the Morgan court.
19
purposes. Protecting consumers is one; providing efficient and economical
procedures to secure such protection is the other.”); Trabakoolas v. Watts Water
Techs., Inc., No. 12-cv-01172-YGR, 2012 WL 2792441, at *8 (N.D. Cal. July 9,
2012) (unpublished) (dismissing damages claim with leave to amend after finding the
CLRA notice requirement was intended to “resolve quickly and efficiently consumer
complaints . . . [and] inured to the consumers’ benefit,” and therefore should not
operate as a “sword against consumers.”). Accordingly, the Court of Appeal in
Morgan dismissed the second amended complaint, but did so without prejudice to the
plaintiff’s right to refile after satisfaction of § 1782(a)’s notice requirement.7 99 Cal.
Rptr. 3d at 789–90.
Here, the district court rejected the Morgan approach, instead agreeing with
Outboard Marine that “strict compliance with the notice requirements is the only way
to accomplish the CLRA’s pre-litigation settlement goals.” Where the California
courts themselves are in disagreement, we cannot say the district court abused its
discretion in following one line of that state’s decisions. And we are further
convinced the district court acted within its discretion under the particular facts of
this case.
7
And some courts have followed a middle ground, forbidding dismissal with
leave to amend, and instead requiring dismissal “without leave to amend, . . . but also
without prejudice to the refiling of the damages claim.” See, e.g., Torrent v. Ollivier,
No. CV 15-02511 DDP (JPRx), 2016 WL 4596341, at *3 (C.D. Cal. Sept. 2, 2016)
(unpublished). This ensures that defendants will not have “to defend against an
improperly noticed CLRA damages claim while simultaneously attempting to rectify
the underlying issues.” Id.20
Although the CLRA does not speak to whether it is appropriate to dismiss a
premature request for damages under the CLRA with or without prejudice, the statute
does expressly indicate one instance in which a claim for damages under the Act is
barred. Cal. Civ. Code. § 1782(b), provides: “no action for damages may be
maintained under Section 1780 if an appropriate correction, repair, replacement, or
other remedy is given, or agreed to be given within a reasonable time, to the
consumer within 30 days after receipt of the notice.” And the California Court of
Appeal has determined that whether a defendant has made appropriate correction,
repair, replacement, or promised to do so within a reasonable amount of time is
within the discretion of the trial court. See Benson, 192 Cal. Rptr. 3d at 73. Because
this unambiguous provision of the CLRA is applicable under the present facts, the
district court acted well within its discretion to dismiss the action with prejudice,
even under the Morgan line of cases.
Here, the district court determined that Ms. Pruter “provided all the requested
documents” Ms. Breen sought in the first § 1782(a) letter. Both parties agree. Indeed,
the complaint itself states that Ms. Breen would amend that pleading to include a
claim for monetary damages only if Ms. Pruter “fail[ed] to correct her actions within
thirty days of the date of [the first] notice.” And in her reply brief to this court, Ms.
Breen noted that “[i]f the purpose of the notice requirement is to settle disputes
without litigation, [the first § 1782(a) notice] served its purpose here.” Because the
district court determined and the parties agree that Ms. Pruter corrected the alleged
violation within thirty days of the first § 1782(a) notice, the CLRA unambiguously
21
provides that “no action for damages may be maintained.” Cal. Civ. Code § 1782(b).
The district court therefore did not abuse its discretion in dismissing the CLRA claim
with prejudice.
On appeal, Ms. Breen contends she did not receive full remediation because
Ms. “Pruter never made any offer that would remediate [Ms. Breen’s] monetary
damages, even though they were clearly stated in Breen’s second CLRA demand
letter.” But the remediation occurred within thirty days of Ms. Pruter’s receipt of the
first § 1782(a) notice, and a full month before Ms. Breen filed her second § 1782(a)
notice in which she sought, for the first time, $3.5 million in monetary damages. See
also Meyer v. Sprint Spectrum L.P., 88 Cal. Rptr. 3d 859, 866 (Cal. 2009) (“[N]o
CLRA action for damages may be maintained if there is appropriate correction within
30 days after receipt of notice.”). Because the district court, the parties, and we agree
that Ms. Pruter appropriately remediated Ms. Breen’s harms as alleged in her first
§ 1782(a) notice letter, and did so long before she sent her second § 1782(a) notice
requesting $3.5 million in monetary damages, we affirm the dismissal of the CLRA
claim with prejudice.
B. The District Court Correctly Granted Summary Judgment on the Unauthorized
Practice of Law and Psychology Negligence Claims.
Ms. Breen next asserts the district court erred in granting summary judgment
on her three negligence claims arising from the unauthorized practice of law and
psychology. Count Thirteen of Ms. Breen’s complaint alleged:
By providing [Ms. Breen] with legal and psychological analyses and
advice without being licensed to provide either, [Ms. Pruter’s] conduct
22
should be held to the same standard of such a professional and any
conduct that would be considered malpractice by such a licensed lawyer
or psychologist should be treated at law as the commission of
malpractice by [Ms. Pruter].
Counts Fourteen and Fifteen alleged that by advising Ms. Breen, a Wyoming citizen
and resident, on matters relating to law and psychology without being legally
authorized or licensed to do either, Ms. Pruter engaged in the unauthorized practice
of both law and psychotherapy respectively.8 Again, we review the district court’s
grant of summary judgment de novo. Christy v. Travelers Indem. Co. of Am., 810
F.3d 1220, 1225 (10th Cir. 2016). The parties do not dispute that Wyoming law
applies to these claims.
In Wyoming, a plaintiff must prove four elements to establish a claim of
negligence:
(1) the defendant owed the plaintiff a duty to conform to a specified
standard of care;
(2) the defendant breached the duty of care;
(3) the defendant’s breach of the duty of care proximately caused injury
to the plaintiff; and
(4) the injury sustained by the plaintiff is compensable by money
damages.
Downtown Auto Parts, Inc. v. Toner, 91 P.3d 917, 919 (Wyo. 2004). “Whether a duty
exists is a question of law for the court and may arise based upon common law,
contract or statute.” Id.8
Ms. Breen concedes that Count 13 is “not analytically different” from Counts
Fourteen and Fifteen: “Any way one looks at it, [Ms.] Breen was asking the district
court to hold [Ms. Pruter] to the standards of care of those professions.”
23
For a negligence per se claim, the court must “decide whether to declare the
legislative . . . enactment to be the minimum standard of care as a matter of law. In
other words, if the enactment establishes the standard of care, its breach establishes
the first two elements of the cause of action.” Frost v. Allred, 148 P.3d 17, 19 (Wyo.
2006) (citation omitted). But “[b]efore a statute can be said to establish a standard of
care, there must be a legal duty to which the statutory standard of care can be
applied.” Sorensen v. State Farm Auto. Ins. Co., 234 P.3d 1233, 1240 (Wyo. 2010).
In Sorensen, the Wyoming Supreme Court refused to recognize a private cause
of action for negligent failure to maintain liability insurance. Id. at 1237–39. The
court in Sorensen first reasoned that “[w]hen the legislature has intended a statute to
create a new tort duty, it either has plainly stated that a violation gives rise to an
action for damages, or has employed language leaving no room for doubt that the
provision modifies the common law and imposes a duty not previously recognized.”
Id. at 1239 (citations omitted); see also Herrig v. Herrig, 844 P.2d 487, 493–94
(Wyo. 1992) (holding the legislature did not intend to create a private right of action
under the unfair claims settlement practices statute). Second, the Wyoming Supreme
Court weighed the factors identified in Gates v. Richardson, 719 P.2d 193 (Wyo.
1986),9 and declined to impose a common law duty. Sorensen, 234 P.3d at 1242–43.
9
The factors are:
(1) the foreseeability of harm to the plaintiff, (2) the closeness of the
connection between the defendant’s conduct and the injury suffered, (3)
the degree of certainty that the plaintiff suffered injury, (4) the moral
blame attached to the defendant’s conduct, (5) the policy of preventing
24
Ms. Breen argued in the district court that Ms. Pruter’s duty arose from
statute, specifically Wyoming Statute §§ 33-5-117 (unauthorized practice of law) and
33-27-119(b) (unauthorized practice of psychology).10 The court relied on Sorensen
to find that “the legislature did not intend for the statutes to create a new tort duty
because they neither plainly stated that a violation would give rise to an action for
damages, nor did they leave little doubt that the statute modified the common law and
imposed a new tort duty.” The district court determined “there is no duty in a
negligence claim for the unauthorized practice of law and psychology, because
Wyoming has not established a private cause of action.”11
On appeal, Ms. Breen argues Ms. Pruter “had a duty . . . to provide her
services using the care of a reasonable person” and the duty did not arise from
statute. Ms. Breen explains she only listed the unauthorized practice of law and
future harm, (6) the extent of the burden upon the defendant, (7) the
consequences to the community and the court system, and (8) the
availability, cost and prevalence of insurance for the risk involved.
Gates v. Richardson, 719 P.2d 193, 196 (Wyo. 1986).
10
Section 33-5-117 provides: “It shall be unlawful, and punishable as
contempt of court, for any person not a member of the Wyoming state bar to hold
himself out or advertise by whatsoever means as an attorney or counselor-at-law.”
Section 33-27-119(b) provides: “[A]ny person who represents himself as a
psychologist and who engages in the practice of psychology in violation of this act, is
guilty of a misdemeanor . . . .”
11
The district court found the statutes at issue to be comprehensive
enactments. It noted that “the Wyoming Supreme Court and the State Board of
Psychology are granted broad rule making, investigatory, and enforcement authority.
There is no express provision to the contrary and therefore, the Court believes the
Wyoming Legislature did not intend for the statutes to be enforced by private action.”
25
psychology statutes to demonstrate the standard of care, not the duty itself. But Ms.
Breen’s complaint mentions neither the reasonable person standard nor general
negligence. In fact, Ms. Breen concedes on appeal that she “inadvertently” did not
plead a general negligence cause of action.12 And even if she had pled that the
statutes applied only to the standard of care and not the duty, this reasoning was
directly rejected in Sorensen: “Before a statute can be said to establish a standard of
care, there must be a legal duty to which the statutory standard can be applied. Thus,
. . . we address first whether [the statute] should be construed to establish a common
law duty actionable in negligence.” 234 P.3d at 1240. The court in Sorensen then
analyzed the Gates factors and declined to recognize a new common law cause of
action for failure to maintain insurance. Id. at 1240–43. Although Ms. Breen now
argues that the duty arises from common law and that the Gates factors weigh in
favor of creating a common law unauthorized practice tort, the complaint wholly fails
to allege a common law duty13 and “absent extraordinary circumstances, we will not
consider arguments raised for the first time on appeal.” McDonald v. Kinder-Morgan,
Inc., 287 F.3d 992, 999 (10th Cir. 2002). No such circumstances are present here.
12
Ms. Breen explains she did not file a separate count because she thought a
general negligence claim was like a “lesser included offense of negligence arising
under negligence per se.”
13
In her reply brief, Ms. Breen asserts that she never argued the Gates factors
because Ms. Pruter’s summary judgment brief never argued a lack of duty, and
therefore, Ms. Breen was under no obligation to address them. However, it is Ms.
Breen who bears the burden of proving negligence, and she wholly failed in her
complaint or elsewhere to argue a common law duty.
26
The district court correctly determined that the unauthorized practice statutes
do not grant a private right of action under Wyoming law. Ms. Breen has waived any
argument that the duties arise from common law. Therefore, the district court
correctly dismissed Ms. Breen’s unauthorized practice claims.
C. The District Court Did Not Abuse Its Discretion in Denying Ms. Breen’s Motion to
Amend the Complaint to Add a Simple Negligence Claim.
Next, Ms. Breen argues the district court abused its discretion in denying her
motion to amend the complaint to add a claim for simple negligence. The same day
the district court issued its summary judgment order dismissing the unauthorized-
practice negligence claims, Ms. Breen filed a motion to amend her complaint to
include a claim of “simple negligence.” The proposed count alleged:
[Ms. Pruter] did not render her coaching and other services using the
reasonable level of care and prudence of a reasonable person. . . .
Alternatively, [Ms. Pruter] did not render her coaching and other
services using the reasonable level of care and prudence of a reasonable
person practicing in the field of life-coaching people who were going
through high-conflict divorce or child custody situations, or
experiencing parental alienation.
We review for abuse of discretion a district court’s denial of a motion to
amend the complaint. Gorsuch, Ltd. B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d
1230, 1240 (10th Cir. 2014). “An abuse of discretion occurs where the district court
clearly erred or ventured beyond the limits of permissible choice under the
circumstances.” Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1262 (10th Cir.
2012); see also Rocky Mtn. Christian Church v. Bd. of Cty. Comm’rs, 613 F.3d 1229,
27
1239–40 (10th Cir. 2010) (stating that a district court abuses its discretion where it
“issues an arbitrary, capricious, whimsical, or manifestly unreasonable judgment”).
Proper grounds for denying leave include “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation marks omitted). Here
the district court denied the motion to amend for two independent reasons: undue
delay and unfair prejudice.
1. Undue Delay
The court found undue delay because (1) Ms. Breen’s “argument that
negligence has been in this case since the beginning lends credence to the notion that
the simple negligence claim should have been [pled] much earlier,” and (2) Ms.
Pruter’s motion for summary judgment placed Ms. Breen “on notice that the
negligence claims, as [pled], were in danger of being dismissed from the case.”
Although Ms. Pruter filed her motion for summary judgment on June 12, 2015, Ms.
Breen did not file her motion to amend the complaint until August 6, 2015. Trial was
scheduled to begin on August 31, 2015, discovery had closed, the court had already
decided the summary judgment motions, and the pretrial conference had been held.
The court found this delay “undue and unacceptable.”
On appeal, as in the district court, Ms. Breen argues it did not become apparent
until the summary judgment hearing that her unauthorized practice claims could be
28
dismissed. But the district court found to the contrary that Ms. Pruter’s motion for
summary judgment placed Ms. Breen on notice that her claims were in danger of
being dismissed. We agree. Ms. Pruter’s summary judgment motion specifically
alleged that “Wyoming law does not appear to provide for a private cause of action”
for unauthorized practice of law. Rather than seeking to amend the complaint to add a
common law negligence claim at that time, Ms. Breen waited until the discovery and
dispositive motion deadlines had passed and trial was imminent. The district court
did not abuse its discretion by finding Ms. Breen unduly delayed submitting her
motion to amend.
2. Unfair Prejudice
The court additionally found that allowing the amendment “would be unduly
and unfairly prejudicial to” Ms. Pruter. Ms. Breen argued that Ms. Pruter would
suffer no prejudice if the complaint was amended to add a common law negligence
claim because there would be no need to conduct new discovery or designate a new
expert. But the district court concluded that Ms. Pruter, not Ms. Breen, “get[s] to
decide how to defend a case. [Ms. Pruter] should have the opportunity to properly
address any new claims by conducting discovery, and making [her] own
determination of whether an expert witness is appropriate.” The court also found the
amendment unfairly prejudicial because Ms. Pruter would not have the opportunity to
file a motion for summary judgment before the start of trial. “[Ms. Pruter] should
have the opportunity to fairly defend against all claims that are brought, and at this
29
late stage in the proceeding that would not be possible without unnecessarily
delaying the process.”
Under these circumstances, we cannot conclude the district court’s denial of
Ms. Breen’s motion to amend was “arbitrary, capricious, whimsical, or manifestly
unreasonable.” Rocky Mtn. Christian Church, 613 F.3d at 1239–40. We therefore
hold the district court did not abuse it discretion, and we affirm its denial of the
motion to amend.
D. The District Court Did Not Abuse Its Discretion in Denying Ms. Breen’s Motion for
New Trial Based on Alleged Evidentiary Ruling Errors.
Finally, Ms. Breen argues the district court incorrectly denied her motion for
new trial based on four alleged evidentiary errors during the course of the trial. We
review the decision to deny a new trial for abuse of discretion. United States v. Kelly,
929 F.2d 582, 586 (10th Cir. 1991). A motion for new trial “is not regarded with
favor and should only be granted with great caution.” Id. Admissibility of evidence is
also reviewed for abuse of discretion. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296
(10th Cir. 1998). Evidentiary rulings “generally are committed to the very broad
discretion of the trial judge, and they may constitute an abuse of discretion only if
based on an erroneous conclusion of law, a clearly erroneous finding of fact or a
manifest error in judgment.” Leprino Foods Co. v. Factory Mut. Ins. Co., 653 F.3d
1121, 1131 (10th Cir. 2011) (internal quotation marks omitted). Even if “error is
found in the admission of evidence, we will set aside a jury verdict only if the error
prejudicially affects a substantial right of a party.” Sanjuan, 160 F.3d at 1296.
30
Prejudice is found “if it can be reasonably concluded that with or without such
evidence, there would have been a contrary result.” Id. (citation omitted).
On appeal, Ms. Breen argues the district court abused its discretion in denying
her motion for new trial because the court inappropriately: (1) excluded evidence that
Ms. Pruter allegedly plagiarized certain books, (2) admitted Dr. Childress’s
testimony in violation of Federal Rule of Evidence 701, (3) excluded Ms. Breen from
testifying regarding her economic loss, and (4) excluded exhibits containing text
message and emails between Ms. Breen and Ms. Pruter.
1. Admission of Books and Summary
At trial, Ms. Breen’s counsel attempted to present a summary exhibit he had
prepared demonstrating that Ms. Pruter allegedly plagiarized various books. When
Ms. Pruter’s counsel objected, the court called a sidebar, explaining the books were
hearsay and could be admitted only under one of the exceptions to the hearsay rule.
Ms. Breen’s counsel asked the court if it could take judicial notice of one of the
books, but the court explained it must be either a learned treatise or fall under one of
the other exceptions to the hearsay rule.
After this interaction, Ms. Breen’s counsel never moved to admit the books or
the summary exhibit, and never made any further arguments for their admission. As a
result, the district court held this alleged error should be reviewed for plain error. But
because Ms. Breen never moved to admit the books or cited a specific rule of
evidence supporting their admission, the district court determined it had not clearly
erred or abused its discretion in excluding them.
31
The court also found no error in not admitting the summary because it was
offered for demonstrative purposes only, and therefore, “the issue of whether this
summary would be admitted as evidence was never before the Court.” Finally, Ms.
Breen could not show that any alleged error affected her substantial rights. See
Sanjuan, 160 F.3d at 1296 (stating that even if “error is found in the admission of
evidence, we will set aside a jury verdict only if the error prejudicially affects a
substantial right of a party”). The district court found that Ms. Breen’s counsel was
able to cross-examine Ms. Pruter “regarding her extensive use of other authors’
works in her book. This was not a copyright infringement trial that required proof of
the extent and nature of taking materials from one book and putting them into
another.”
On appeal, Ms. Breen asserts the same arguments she presented in the district
court and also attempts to assert additional arguments never presented before the
district court. She claims our standard of review is abuse of discretion. But where
Ms. Breen’s counsel never moved for admission of either the books or the summary
exhibit below, the district court correctly noted that appellate review is limited to
plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir.
2011) (“If a newly raised legal theory is entitled to appellate review at all . . . it may
form a basis for reversal only if the appellant can satisfy the elements of the plain
error standard of review.”).
And because Ms. Breen asserts this claim should be reviewed for abuse of
discretion and never cites or argues under the plain error standard, she has forfeited
32
this claim on appeal. See United States v. McGlothin, 705 F.3d 1254, 1264 (10th Cir.
2013) (“At no point in either of his briefs to this court on appeal, however, did
McGlothin argue his entitlement to relief under the applicable standard. By failing to
argue his entitlement to relief under the applicable standard, McGlothin has forfeited
the argument in this court.”); United States v. Games-Perez, 695 F.3d 1104, 1111–12
(10th Cir. 2012) (holding an argument waived because the defendant neither laid out
“the appropriate standard of review nor developed an argument for relief under the
applicable standard”); McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010)
(“[E]ven if Ms. McKissick’s duress arguments were merely forfeited before the
district court, her failure to explain in her opening appellate brief why this is so and
how they survive the plain error standard waives the arguments in this court.”). We
therefore affirm the district court’s denial of the motion for new trial on this ground.
2. Dr. Childress’s Testimony
At trial, Ms. Pruter called Dr. Childress, a clinical psychologist specializing in
children and families who had known Ms. Pruter personally for about two years.
When Ms. Pruter’s counsel began questioning Dr. Childress regarding the “quality of
Ms. Pruter’s work,” Ms. Breen’s counsel objected, arguing Dr. Childress was listed
as a fact witness and not as an expert witness. The court then allowed Ms. Breen’s
counsel under Rule 701 to voir dire Dr. Childress “on his ability to testify based on
his perception.” See Fed. R. Evid. 701 (governing opinion testimony by lay
witnesses). After voir dire, Ms. Breen’s counsel moved to strike Dr. Childress’s
testimony. The court denied the motion, noting that Dr. Childress had not yet
33
testified. Ms. Pruter’s counsel then proceeded to question Dr. Childress, but as the
district court explained in its order denying the new trial motion, Ms. Breen’s
“counsel did not object to any of [Ms. Pruter’s] counsel’s questions and/or to Dr.
Childress’ answers.” It therefore concluded that plain error review applied and that a
new trial was not warranted.
On appeal, Ms. Breen argues that Dr. Childress’s testimony was improperly
based on scientific, technical, or other specialized knowledge that exceeds the bounds
of lay witness opinion permitted under Rule 701. But Ms. Breen’s counsel never
raised these objections at trial, and on appeal she makes no attempt to meet the plain
error standard. Instead, Ms. Breen contends that objecting after the offending
testimony would have been pointless because “it’s impossible to un-ring a bell, which
is all instructing the jury to ignore the testimony would’ve done.” Additionally, Ms.
Breen fails to address how she was substantially prejudiced by Dr. Childress’s
testimony despite the opportunity to cross-examine him on his lack of personal
knowledge about Ms. Pruter’s interactions with Ms. Breen. As above, Ms. Breen has
waived this argument by failing to assert the proper standard of review—plain
error—and by failing to “develop[] an argument for relief under” this standard. See
Games-Perez, 695 F.3d at 1111–12.
3. Ms. Breen’s Testimony Regarding Potential Commission
During trial, Ms. Breen offered testimony as to the extent of her damages.
Specifically, she attempted to testify about her belief that, but for Ms. Pruter’s
negligent advice, she would have earned a commission in the amount of $660,000 on
34
a real estate transaction. On Ms. Pruter’s counsel’s objection, the district court
allowed counsel to voir dire Ms. Breen “regarding the basis for her conclusions on
the loss she suffered from withdrawing from the project.” Although ultimately
excluding the testimony as “remote and speculate,” the court allowed Ms. Breen’s
counsel to submit an offer of proof that the property was worth approximately $11
million and that Ms. Breen’s commission would have been 6% of the sales price. But
even Ms. Breen’s counsel admitted that the property value was speculative.
Ms. Breen argued that the exclusion of this evidence warranted a new trial.
The district court disagreed, noting that because the jury decided against Ms.
Breen on her substantive claims, it never reached the issue of damages. And the
district court found there “is no reason for the Court to conclude that the lost profits
testimony would have changed the Jury’s determination on whether Breen met her
burden on the claims.”
On appeal, Ms. Breen argues this evidence should have come in under Federal
Rule of Evidence 701 because business owners may testify on the amount of money
the business stood to make absent the wrongful conduct of others. But Ms. Breen
ignores the fact that she could only speculate on how much the property was worth.
More importantly, Ms. Breen fails to assert why this alleged error in excluding her
testimony about damages prejudiced her where the jury found that Ms. Pruter was not
liable at all. Indeed, Ms. Breen has not even suggested that the jury would have come
to a different conclusion on the merits had it known the amount of commission she
expected to earn on this transaction. Under these circumstances, the district court did
35
not abuse its discretion in denying a new trial based on the exclusion of Ms. Breen’s
testimony on this issue.
4. Text and Email Messages Between Ms. Breen and Ms. Pruter
At trial, Ms. Breen moved to admit two exhibits totaling 316 pages of text
messages and emails between Ms. Breen and Ms. Pruter. Ms. Pruter’s counsel
objected to the exhibits based on double hearsay, and Ms. Breen’s counsel countered
that the emails and text messages were “not being offered for the truth of whatever
any other person is—is asserting or what any other person may have said.” Instead,
Ms. Breen moved for admission to show the relationship between the parties. The
district court “sustained the objection, but gave [Ms.] Breen’s counsel an opportunity
to redact the objectionable material from the exhibits.” At a later conference, the
district court advised Ms. Breen’s counsel “that it was unlikely the Jury would read
such a large exhibit and suggested pulling the most significant text and emails for
individual consideration. [Ms.] Breen never sought to offer the redacted emails or
texts again during trial.”
In her motion for new trial, Ms. Breen argued that statements of a party
opponent are admissible as nonhearsay, and that any “limited amount of hearsay was
not objectionable,” and therefore should have been admitted by the court. The district
court found no abuse of discretion because: (1) “while the texts and emails from
Pruter to Breen were a statement of a party opponent, the texts and emails from
Breen to Pruter were hearsay without any exception”; (2) the exhibit was confusing
and prejudicial because it was a large document and would have been admitted
36
without any context to the jury; (3) the texts contained “information about other
people’s minor children and other items that were not admissible”; and (4) Ms. Breen
never moved to admit the redacted version of the text and email conversations.
On appeal, Ms. Breen argues this was “important evidence” and the “failure to
admit this evidence was devastating to [her].” Although it is likely true that it would
have been beneficial for the jury to see some of these messages to get a sense of the
relationship between the parties, Ms. Breen never moved for admission of the
redacted texts and emails. Furthermore, the court’s reasons for directing that the
exhibit be redacted and simplified do not constitute an abuse of discretion.
We agree with the district court that none of these alleged errors justifies a
new trial in this case. Accordingly, the district court did not abuse its discretion in
denying the motion for a new trial.
IV. CONCLUSION
We affirm the district court in all respects. First, the district court did not err in
dismissing Ms. Breen’s CLRA claim and did not abuse its discretion in dismissing it
with prejudice. Second, the district court correctly dismissed Ms. Breen’s
unauthorized-practice negligence claims because the statutes do not provide a private
right of action, and Ms. Breen failed to argue to the district court that this duty arises
from common law. Third, the district court did not abuse its discretion in denying the
motion to amend based on undue delay and undue prejudice. And finally, the court
did not abuse its discretion in denying the motion for new trial based on evidentiary
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rulings, where Ms. Breen has failed to show either plain error or an abuse of
discretion and Ms. Breen did not suffer substantial prejudice.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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