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Warshawer v. Tarnutzer

United States District Court, W.D. Washington, Seattle

June 9, 2015

ROBERT WARSHAWER and KIM WARSHAWER, a married couple; GLENN BUTLER, Shareholder’s Agent or the former shareholders of Black Rock Cable, Inc., Plaintiffs,
RICK TARNUTZER, an individual; NANCY TARNUTZER, and individual, Defendants.




This matter comes before the Court on Defendant Nancy Tarnutzer’s Motion for Partial Summary Judgment on Contract Claim. Dkt. #41. Defendant argues that a check she wrote to Plaintiff Kim Warshawer (her daughter) on February 28, 2007, for $100, 000, was a loan that has not been repaid, and therefore she is entitled to judgment as a matter of law that she is entitled to repayment plus interest in the total amount of $375, 000. Id. Plaintiff opposes the motion, arguing that genuine disputes of material fact preclude summary judgment.[1] Dkt. #51. For the reasons set forth below, the Court agrees with Plaintiff and DENIES Ms. Tarnutzer’s motion for summary judgment.


This case arises from the sale of Black Rock Cable (“Black Rock”) and questions surrounding whether certain payments from Defendants to Plaintiffs prior to the sale were loans, gifts or investments into Black Rock. Dkt. #1. According to Defendants, in May or June of 2007, Plaintiff Kim Warshawer (who is Defendant Nancy Tarnutzer’s daughter and Defendant Rick Tarnutzer’s sister) was visiting in California and revealed to Mr. Tarnutzer that her and her husband Robert Warshawer’s business, Black Rock, was in serious financial trouble. Dkt. #6 at ¶ ¶ 2-3. Mr. Tarnutzer, believing that his sister’s husband would be successful in turning the business around, decided to invest in Black Rock. Id. at ¶ 4-5. Accordingly, he sent a check to Plaintiffs in the amount of $100, 000, marking the check with the notation “Black Rock Cable Inv.” Id. at 5-6 and Ex. A. Mr. Tarnutzer asserts that the notation “Inv.” reflected the word “investment.” He further asserts that he provided a note with the check stating that it was an investment. Id. at ¶ 6. Plaintiff subsequently cashed the check. Plaintiffs characterize the payment as a loan that they have attempted to repay, asserting that Mr. Tarnutzer never invested in Black Rock.[2] Dkt. #10 at ¶ 4.

Earlier in 2007, Ms. Tarnutzer had also apparently provided a check to Kim Warshawer in the amount of $100, 000. Dkt. #42 at ¶ 5 and Ex. A. The record is not clear about what this payment was for. Ms. Tarnutzer characterizes the payment as a loan. Id. The Warshawers characterize the money as a gift “which has nothing to do with this lawsuit.” Dkts. #8 at 3, fn. 1, #9 at ¶ 4, and #53 at ¶ 4. Ms. Tarnutzer now asserts that the loan has never been repaid. Dkt. #42 at ¶ 8.

In November of 2012, Plaintiffs sold Black Rock to Wavedivision for an alleged $50 million. Dkt. #4 at 3. Soon after learning of the sale, Mr. Tarnutzer attempted to obtain a return on his $100, 000 “investment, ” alleging that he was owed approximately $5 million. Dkts. #13 and #18, Ex. G. When his efforts to collect the money were unsuccessful, his attorney wrote a letter to Wavedivision providing notice of the dispute. Dkt. #18, Ex. G. Wavedivision has since held more than $3 million in escrow from distribution to Black Rock pending resolution of the dispute. Dkt. #10 at ¶ 9.

On June 6, 2014, Mr. Tarnutzer filed a lawsuit against the Warshawers, Black Rock Cable and Wavedivision in Orange County Superior Court in California. Dkt. #5, Ex. B. The same day, Robert Warshawer filed the instant lawsuit in Washington, in Whatcom County Superior Court, against Rick Tarnutzer and Nancy Tarnutzer. Dkt. #5, Ex. C. The case was subsequently removed to this Court. Dkt. #1. Defendants then moved for a transfer to the Central District of California for consolidation with their “first-filed” case. Dkt. #4. This Court deferred the motion to transfer, and stayed this case pending further proceedings in California. Dkt. #8.

On November 10, 2014, the parties notified the Court that the California action had been dismissed, and asked the Court to lift the stay and allow the matter to proceed. Dkt. #21. The Court did so on November 25, 2014. Dkt. #25. The instant motion eventually followed.


A. Standard of Review

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248.

The Court must draw all reasonable inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient showing on an essential element of her case with respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will ...

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