Nissenbaum v. NNH Cal Neva Services Co.

983 F. Supp. 2d 1245, 2013 WL 6158532, 2013 U.S. Dist. LEXIS 166692
CourtDistrict Court, D. Nevada
DecidedNovember 22, 2013
DocketNo. 3:11-CV-00253-LRH-WGC
StatusPublished
Cited by1 cases

This text of 983 F. Supp. 2d 1245 (Nissenbaum v. NNH Cal Neva Services Co.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nissenbaum v. NNH Cal Neva Services Co., 983 F. Supp. 2d 1245, 2013 WL 6158532, 2013 U.S. Dist. LEXIS 166692 (D. Nev. 2013).

Opinion

ORDER

LARRY R. HICKS, District Judge.

Before the Court is Defendants Canyon Capital Realty Advisors, LLC (“Canyon Capital”) and Canpartners Realty Holding Company IV, LLC’s (“Canpartners”) (collectively the “Canyon Entities”) Motion for Summary Judgment. Doc. #69.1 Plaintiff Susan B. Nissenbaum (“Nissenbaum”) filed an Opposition (Doc. # 76), to which the Canyon Entities replied (Doc. #77).

I. Factual Background

This case concerns Nissenbaum’s employment at the Cal Neva Resort, Spa and Casino (the “Cal Neva”) in Lake Tahoe, California and Nevada.

A. Nissenbaum’s Employment History

Nissenbaum began work at the Cal Neva as an employee of Sentry Hospitality of Nevada (“Sentry”) on February 16, 2005. See Doc. # 70, Ex. 11; see also Doc. # 70, Ex. 4. At that time, the Cal Neva was owned by Namcal, LLC (“Namcal”). See Doc. # 70, Ex. 11. Pursuant to the Management Agreement between Namcal and Sentry, dated February 15, 2005 (the “Management Agreement”), Sentry was the manager of the Cal Neva. Doc. # 70, Ex. 4. In January 2008, Sentry promoted Nissenbaum from Director of Human Resources to General Manager and gave her a salary increase. See Doc. # 71, Ex. 15. Sentry again increased Nissenbaum’s salary on June 24, 2008, effective retroactively to February 1, 2008. See Doc. #71, Ex. 16. On February 28, 2009, Sentry replaced Nissenbaum as General Manager, moving her into the role of Hotel Manager and decreasing her salary. See Doc. # 71, Ex. 17. Sentry’s explanation for the change was as follows: “[pjroperty in receivership; Managing Director replacing GM.” Id. Nissenbaum remained employed by Sentry at the Cal Neva until April 9, 2009. See Doc. # 70, Ex. 10; see also Doc. # 76, Ex. 14 (Nissenbaum Dep.), pp. 191— 92; Doc. # 76, Ex. 15 (Marcil Dep.), p. 114.

B. The Canyon Entities’ Relationship to the Cal Neva

On November 6, 2007, Canpartners entered into a Loan and Security Agreement (the “Loan Agreement”) with Namcal, pursuant to which Canpartners made a $25,000,000 loan (the “Loan”) to Namcal. Doc. # 70, Ex. 1. The Loan was secured by the Cal Neva property. See Doc. # 78, Ex. 5. Canyon Capital, as a member of Canpartners and a registered investment advisor, managed various investments on [1248]*1248behalf of Canpartners, including the Loan. See Doc. #70, Ex. 2 (Bosworth Dep.), p. 31. In order to secure repayment of the Loan, Namcal executed and delivered to Canpartners various security instruments, as is customary in commercial real estate lending practice. See Doc. # 69, p. 6; see also Doc. # 76, p. 3. Of particular relevance here, Namcal and Canpartners executed an Assignment of Management Agreement, Security Agreement and Subordination Recognition Agreement (the “Subordination Agreement”). Doc. # 70, Ex. 3. Referenced therein is the Management Agreement between Namcal and Sentry. See id.

On December 9, 2008, following Nam-cal’s default on the Loan, Canpartners recorded a Notice of Default and Election to Sell under the California Deed of Trust. See Doc. # 69, p. 8. On December 10, 2008, Canpartners recorded a similar Notice of Default and Election to Sell under the Nevada Deed of Trust. See id. On December 16, 2008, Richard Bosworth (“Bosworth”), on behalf of Canpartners, visited the Cal Neva for the first time since the Loan was made to Namcal in order to inspect the property. See id. This was the first time that Nissenbaum met Bosworth, or any other representative from Canpartners. See Doc. # 70, Ex. 5 (Nissenbaum Dep.), p. 133. During this December visit, Bosworth spoke with Nissenbaum about the financial condition of the Cal Neva, which she characterized as a “financial mess.” See Doc. # 70, Ex. 2 (Bosworth Dep.), p. 76. Based on Bosworth’s visit and a subsequent phone call from Nissenbaum further indicating the financial decline of the Cal Neva, Canpartners sought the appointment of a receiver to oversee management and control of the Cal Neva until the time of foreclosure. Id. at 76-78; see also Doc. # 76, Ex. 9 (Can-partners’ Motion for Appointment of Receiver).

On February 5, 2009, Michael McPherson (“McPherson”) was appointed by the Washoe County District Court to act as Receiver of the Cal Neva. Doc. # 70, Ex. 6. The receivership order granted McPherson broad authority to “take possession of the [Cal Neva] and hold, manage, and maintain [it] ..., preserving it from loss, material injury, destruction, substantial waste, or loss of income therefrom.” Id. at 2. Additionally, the receivership order explicitly authorized McPherson to “make payroll, including employees.” Id. Finally, the receivership order specifically authorized McPherson “[t]o borrow or otherwise receive funds from [Canpartners] ... as may be necessary to satisfy the costs and expenses of the receivership[.]” Id. at 4. To that end, Canpartners made approximately seven (7) protective advances at McPherson’s request during the period of receivership (from February 5, 2009 through April 9, 2009). See Doc. # 70, Ex. 7 (emails referencing wire transfers and Wire History Summary Reports); see also Doc. # 76, Ex. 8 (McPherson’s time log). Bosworth testified that the protective advances were necessary to preserve the value of the Cal Neva, which was the collateral for the Loan, until the foreclosure was complete and ownership changed hands. Doc. # 70, Ex. 2 (Bosworth Dep.), p. 146.

On April 8, 2009, Canpartners foreclosed on the Cal Neva, and its subsidiary, Can-partners Cal Neva, became the new owner through trustee sales conducted in both California and Nevada. Id. at 183; Doc. # 70, Ex. 8. Later that same day, pursuant to its rights under the Subordination Agreement, Canpartners terminated the Management Agreement between Namcal and Sentry, effective April 9, 2009. Doc. #70, Ex. 8. Also on April 8, 2009, Can-partners Cal Neva and NHH Cal Neva Services Co., LLC (“NHH”) executed the Amended and Restated Management Agreement (the “NHH Management [1249]*1249Agreement”), pursuant to which NHH took over management of the Cal Neva. Doc. # 70, Ex. 9. On April 9, 2009, Ernie Catanzaro (“Catanzaro”) of NHH sent a letter to William Jackson (“Jackson”) of Sentry, then General Manager of the Cal Neva, informing him that NHH would not be retaining him or Nissenbaum. Doc. # 70, Ex. 10.

C. Procedural History

On April 3, 2009, Nissenbaum, through counsel, sent a letter to Bosworth (among others) complaining of gender discrimination, unequal pay, and demanding payment for lost wages. Doc. # 71, Ex. 21. The letter was not addressed to any representative of NHH. See id. On April 10, 2009, Nissenbaum filed a complaint with the Nevada Equal Rights Commission, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Equal Pay Act of 1963 (“Equal Pay Act”). See Doc. # 27, ¶ 50. Nissenbaum’s complaint was subsequently forwarded to the United States Equal Employment Opportunity Commission (the “EEOC”). See id. The EEOC ultimately terminated its investigation on both claims without issuing any findings of fact or conclusions of law. See id. at ¶ 51, ¶ 52. On December 20, 2011, Nissenbaum, through prior counsel, filed a First Amended Complaint (“FAC”), naming the Canyon Entities as defendants. See id.

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983 F. Supp. 2d 1245, 2013 WL 6158532, 2013 U.S. Dist. LEXIS 166692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nissenbaum-v-nnh-cal-neva-services-co-nvd-2013.