Law & Motion Calendar

 

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1.         24CV00586, Clifton v. Christopherson: Motion to Compel Further Responses
Plaintiffs’ motion to compel further responses and privilege log from Defendants is CONTINUED to February 4, 2026 at 3:00 p.m. in Department 18. The parties have submitted a stipulation and proposed order requesting a continuance of the hearing so that they may continue their efforts to resolve this motion. The Court will sign the proposed order continuing the hearing.

2.         24CV00168, Radelfinger v. Ivaldi: Motion for Approval of Referee’s Final Report of Sale
The motion by the partition referee for approval of the referee’s final report of sale and for approval of referee fees and costs is CONTINUED to February 4, 2026, at 3:00 p.m. in Department 18 in order for the partition referee to submit a declaration providing evidentiary foundation for the factual representations made in the memorandum. It is further continued to allow the parties sufficient time to oppose the motion since the motion was not served in compliance with CCP § 1005(b). The motion was served on November 12, 2025, which is only 13 court days prior to the hearing. CCP § 1005(b) requires it to be served at least 16 court days prior to the hearing.

3-4.      25CV01117, Hernandez v. LoanDepot.com, LLC: Demurrer and Motion to Strike

This is a joint ruling on Defendant LoanDepot.com, LLC’s demurrer to the First Amended Complaint (“FAC”) and Defendant’s motion to strike. The demurrer to the complaint is SUSTAINED in part and OVERRULED in part. The demurrer is OVERRULED as to the First Cause of Action and SUSTAINED as to the Second and Third Causes of Action. Leave to amend the Second and Third Causes of Action is DENIED.

Defendant’s motion to strike Plaintiff’s prayer for punitive damages is GRANTED. Leave to amend the prayer for punitive damages is GRANTED.

Defendant’s request for judicial notice is GRANTED in part and DENIED in part, as explained below.

Defendant’s counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312.

This matter arises from the foreclosure sale of Plaintiff’s property, which is a single-parcel property that includes two residences: 3101 and 3105 Hoen Avenue. Plaintiff transferred title to the property to Ana Marisol Diaz Garcia, but remained the borrower under the mortgage loan and resident at 3101 Hoen Avenue.

Plaintiff alleges that there were irregularities in the foreclosure process that rendered the foreclosure sale void. This Court previously sustained this defendant’s demurrer to Plaintiff’s complaint in full based on Plaintiff’s failure to state a claim.

Plaintiff filed an amended complaint that re-alleged three of the same causes of action as the original complaint. Plaintiff now alleges in the FAC that tender is not required because (1) “the foreclosure sale is void due to fraud and non-compliance;” (2) “for void sales;” and (3) “for void instruments.” There is no material change in the factual allegations of the FAC from the original complaint. Defendant now demurs to all three causes of action on the basis that each is uncertain and fails to state facts sufficient to constitute a cause of action.

The Court notes that, though the Court previously found that Plaintiff had failed to show a likelihood of prevailing on the merits of his causes of action in denying Plaintiff’s motion for preliminary injunction, the standard of review on motion for preliminary injunction is much different from that on demurrer. On motion for preliminary injunction, the Court’s analysis depends on the sufficiency of the evidence presented. On the contrary, the Court may not consider evidence on demurrer and must only look to the sufficiency of the allegations.

Defendant’s Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED as to Exhibits 1-8 only, and DENIED as to the rest. Exhibits 9-18 consist of USPS Tracking printouts, which Defendant argues are judicially noticeable. Defendant cites an unpublished federal supplemental case in support of this argument, Chapman v. San Francisco Newspaper Agency (N.D. Cal. 2002) 2022 WL 31119944. However, Defendant’s argument is based on a misreading of the decision. The Chapman Court found that printouts from the USPS website confirming a delivery date are subject to dispute and are thus not judicially noticeable.

Plaintiff’s Causes of Action Are Not Uncertain

A demurrer for uncertainty pursuant to CCP § 430.10(f) will be sustained only where a defendant cannot reasonably respond, i.e. cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; see also A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 (“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”)

Defendant demurs to each cause of action on the basis of uncertainty. The causes of action are not uncertain, as it can easily be determined what claims must be admitted or denied. The demurrer on this basis is overruled.

Plaintiff Has Standing

Defendant argues that Plaintiff does not have standing to raise the claims alleged in the FAC because he no longer has an interest in the property since he deeded it to Ms. Diaz. However, Civil Code § 2924.12 provides that actions for material violations of the HBOR may be brought by “borrowers.” Defendant remained the borrower under the mortgage loan. Defendant has not cited any authority that provides that the borrower under a loan does not have standing to bring an action for violations of the foreclosure processes relating to that loan.

Plaintiff Has Not Failed to Join an Indispensable Party

Defendant argues that Ana Marisol Diaz Garcia is an indispensable party since the property interest was deeded to her. Defendant argues that since Plaintiff seeks to cancel the Deed of Trust, NOD, NOS, and the TDUS, the owner of the property must be a party to this action. However, the instant ruling sustains the demurrer to Plaintiff’s cause of action for cancellation of instruments without leave to amend. The Court further explains below that, since Plaintiff has failed to allege tender, offer of tender, or an exception to the tender requirement, Plaintiff’s remedies are limited to economic damages under Civil Code § 2924.12, which are personal to Plaintiff. Equitable relief, especially in the form of setting aside the sale, is not available to him. Accordingly, the Court does not find that Ms. Diaz is an indispensable party.

First Cause of Action – Violation of Civil Code § 2923.55

Civil Code section 2923.55 requires mortgage servicers to contact or make diligent efforts to contact the borrower to assess the borrower’s financial position and explore foreclosure prevention alternatives. “The remedies are different, depending on whether a trustee's deed upon sale has been recorded.” (Bustos v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 369, 376.) “‘If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.’” (Ibid.) “‘After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale.’” (Ibid.)

“A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.” (Karlsen v. Am. Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 117, see also Arnolds Mgmt. Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-579.) “This rule is premised upon the equitable maxim that a court of equity will not order that a useless act be performed.” (Arnolds Mgmt. Corp. v. Eischen, supra, at 578–79.)

As supporting this cause of action, Plaintiff alleges that “Defendants failed to contact Plaintiff or make diligent efforts.” Plaintiff alleges that his phone records, attached to the FAC, show that the Notice of Default contains a false statement that Plaintiff was called on January 10, 2024. He alleges that this rendered the foreclosure sale void and, thus, no tender is required. He also alleges that Defendant’s failure to contact him prevented him from exploring loan modifications or curing the default, which directly harmed his ability to avoid foreclosure.

Neither the HBOR nor California case law expressly defines the term

“material” for purposes of section 2924.12. However, federal district courts

applying California law have held that a violation is material if it affected

the borrower's loan obligations, disrupted the loan-modification process, or

otherwise harmed the borrower in connection with the borrower's efforts to

avoid foreclosure.

(Billesbach v. Specialized Loan Servicing LLC (2021) 63 Cal.App.5th 830, 845.)

Plaintiff has failed to allege tender. Plaintiff also failed to allege sufficient facts supporting his general allegations of fraud to support his contention that the foreclosure sale is void, rather than voidable. However, the tender requirement is a prerequisite only to setting aside the sale, not to recovery of economic damages, which Plaintiff seeks in the FAC. According to Civil Code § 2924.12, a lender shall be liable to a borrower for actual economic damages for violations of Civil Code § 2923.55. Accordingly, while Plaintiff’s prayer for equitable relief is unsupported, economic damages remain available to him for material breach.

Plaintiff has sufficiently alleged a material breach of the HBOR. He alleges that Defendant’s failure to contact him or make diligent efforts under the statute prevented him from avoiding foreclosure. Such allegations are sufficient to state this claim. Defendant points to several documents attached to its request for judicial notice to argue that the documentation proves that Plaintiff was notified of the foreclosure procedures. As previously explained to Defendant, the Court cannot take judicial notice of the truth of the contents of the documents and cannot consider evidence on demurrer.

Second Cause of Action – Violation of Civil Code § 2924f

Civil Code section 2924f requires a notice of sale to be published, posted and mailed 20 days before the sale and recorded 14 days before the sale after the trustee has waited three calendar months since the recording of the notice of default as required by section 2924b. Plaintiff alleges that the notice of trustee’s sale was not posted at Plaintiff’s residence, located at 3101 Hoen Avenue, but was rather posted at 3105 Hoen Avenue, and was not published for three consecutive weeks or mailed via certified mail with return receipt. Plaintiff alleges that these failures prejudiced Plaintiff because he was unaware of the sale and was unable to act on it.

Defendant raises the same arguments regarding tender as it did for the first cause of action. As explained above, Plaintiff has failed to allege tender, offer of tender or an exception to the tender requirement. Furthermore, unlike with Plaintiff’s first cause of action, Civil Code § 2924.12 does not provide for economic damages for violations of Civil Code § 2924f. Therefore, Plaintiff has failed to state facts sufficient to allege this cause of action. 

Third Cause of Action – Cancellation Instruments

Civil Code section 3412 provides that: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” However, “because a cause of action to cancel a written instrument under section 3412 sounds in equity, a debtor must generally allege tender or offer of tender of the amounts borrowed as a prerequisite to such claims.” (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 819.) As explained above, Plaintiff has failed to allege tender, offer of tender, or an exception to the tender requirement. Therefore, Plaintiff has failed to state this cause of action.   

Motion to Strike

Defendant seeks to strike Plaintiff’s prayer for punitive damages, arguing that Plaintiff has failed to allege facts substantiating Plaintiff’s allegations of willful, oppressive, or fraudulent conduct. Punitive damages may be stricken where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) The Court agrees that Plaintiff has not alleged sufficient facts supporting his prayer for punitive damages. Plaintiff makes general allegations of fraudulent conduct, but they are not sufficient to support a prayer for punitive damages.

Leave to Amend

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) However, “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.)

Here, it is clear that Plaintiff cannot state his Second and Third Causes of Action because he has failed to allege tender. Plaintiff has failed to demonstrate that he is able to allege tender or an applicable exception to the tender rule. Accordingly, leave to amend the Second and Third Causes of action is denied.

However, this is the first time Defendant’s motion to strike punitive damages has been reviewed by the Court, since it was previously rendered moot. It is not entirely apparent to the Court that Plaintiff will be unable to state facts supporting a prayer for punitive damages. Therefore, leave to amend the prayer for punitive damages is granted.
 

5.         SCV-270486, Sager v. Summit Food Service, LLC: Motion for Final Approval of Class Action Settlement

Plaintiffs Gabriel Sager and Elizabeth Adams’s unopposed motion for final approval of the class action settlement is GRANTED.

The Court will sign the proposed order lodged with the moving papers.

On March 29, 2022, Plaintiff Gabriel Sager filed his class action complaint against Defendant in this county, alleging several wage and hour violations of the California Labor Code. On June 23, 2022, Plaintiff Elizabeth Adams filed her class action complaint in Placer County, also alleging various violations of the California Labor Code. On July 2, 2024, Plaintiff Sager filed a First Amended Class & Representative Action Complaint to consolidate both actions.

The parties engaged in formal discovery and meet and confer efforts. On March 22, 2023, and June 2, 2023, the parties participated in mediation before David Phillips. After two full days of mediation, followed by a mediator’s proposal, the parties reached a settlement. The Court granted preliminary approval of the parties’ settlement. The parties now seek the Court’s final approval of the settlement.

The parties’ settlement is for a total amount of $349,101.20 to be paid out to settlement class members without the need to submit a claim for or take any affirmative action. The parties seek approval of (1) Plaintiffs’ attorney’s fees of $116,367.07 (one-third of gross settlement), (2) Plaintiffs’ attorney’s costs of $17,639.34, (3) a class representative award of $10,000 to each Plaintiff, (4) settlement administration expenses of $7,250, and (5) civil penalties in the amount of $10,000, 75% of which will be paid to the LWDA and 25% of which will be distributed to PAGA members based on the number of pay periods during the PAGA period. After receiving notice of the settlement, no class members opted out or objected to it.

After preliminary approval of a settlement, the court must determine the settlement is fair, adequate, and reasonable. (C.R.C., Rule 3.769(g); Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.) A presumption of fairness exists where: 1) the settlement is reached through arm's length bargaining; 2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; 3) counsel is experienced in similar litigation; and 4) the percentage of objectors is small. (Dunk v. Ford Motor Co., supra, at 1802.) The test is not for the maximum amount plaintiff might have obtained at trial on the complaint but, rather, whether the settlement is reasonable under all of the circumstances. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 250.) In making this determination, the court considers all relevant factors including “the strength of [the] plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128.)

Plaintiffs have shown the existence of each element required for the presumption of fairness to apply. The settlement was reached through arms-length negotiation, the parties engaged in sufficient investigation and discovery to inform their mediation negotiations, class counsel is experienced in similar litigation, and there are no objectors. The Court also finds that the settlement is fair considering the remaining relevant factors listed in Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; i.e. strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement. Finally, the Court finds the amounts requested for attorney’s fees and costs, for the class representative service payment, and for the settlement administrator fees to be reasonable and sufficient.

6.         23CV00397, Pienta v. Trunnell: Motion for Summary Adjudication

The hearing on Defendants’ motion for summary adjudication is DROPPED from calendar. The parties filed a stipulation and proposed order requesting that this Court issue an order granting this motion. The Court did so on September 25, 2025. Accordingly, this motion has already been granted.

***This is the end of the Tentative Rulings***