Law & Motion Calendar

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1.         25CV01401, Michael Lennox v. Kuzma, M.D.

Plaintiff’s counsel Douglas Fladseth requests to be relieved as counsel of Plaintiff Michael Lennox (individually and as personal representative for the Estate of Gerry Lennox) due to a breakdown in the attorney-client relationship. The Court previously continued this matter to allow counsel to lodge and serve the proposed order as required by rule 3.1362(e) of the California Rules of Court, which counsel did on February 17, 2026. Being no opposition to the motion, the motion is GRANTED. The Court shall sign the proposed order lodged on February 17, 2026.

2.         25CV02868, Vasquez Martinez v. Strides Riding Academy LLC

Plaintiff Daniel Vasquez Martinez’s (“Plaintiff”) motion for leave to file the Third Amended Complaint (“TAC”) is GRANTED pursuant to C.C.P. section 473(a)(1) and rule 3.1324 of the California Rules of Court. Plaintiff shall file and serve on all Defendants the proposed TAC attached as Exhibit 1 to the motion within ten (10) days of service of notice of entry of the Court’s order on this motion.

       I.            Factual & Procedural History

On April 24, 2025, Plaintiff and DOES 1–50 filed the Complaint alleging 19 causes of action for various labor, employment, contract, and housing violations against Timothy Grace, Margaret Clancy, Strides Riding Academy LLC, and Strides Equestrian Foundation (together as “Defendants”) relating to Plaintiff’s employment caring for Defendant’s property and the horses boarded there. On July 18, 2025, Plaintiff filed his First Amended Complaint. On September 5, 2025, the parties filed a stipulation and order to allow Plaintiff to file a Second Amended Complaint (“SAC”), which the Court granted and ordered that Plaintiff file the SAC within 10 days of the order. (See Stipulation and Order, filed September 22, 2025.) Plaintiff filed the SAC on September 22, 2025. On December 10, 2025, Defendants filed a demurrer to the SAC, which is currently set for a hearing on April 8, 2026. Plaintiff now seeks leave of the Court to file the Third Amended Complaint (“TAC”) to correct the spelling of Plaintiff’s first last name, remove DOE Plaintiffs, remove several causes of action, separate and clarify the Ninth Cause of Action for retaliation, and clarify alter ego and joint employer allegations of fact.

    II.            Governing Law

C.C.P. section 473 states in relevant part that “[t]he court may…in its discretion [and] after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars...” (C.C.P. § 473(a)(1).)  “The discretionary power to allow amendments to the pleadings ... must be exercised liberally at all stages of the proceeding” and is usually exercised in favor of allowing amendments. (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.) Additionally, “[t]he policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) However, leave to amend may be properly denied if there is an unwarranted delay in seeking the relief and where the opposing party demonstrates that it will incur prejudice as a result. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Unreasonable delay alone does not justify denying leave to amend and the opposing party must also demonstrate prejudice. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) “Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 6:656, p. 6–182.) Additionally, rule 3.1324 of the California Rules of Court outlines the requirements for filing amendments to pleadings, including the contents and form of the motion and the supporting declaration.

 III.            Analysis 

Plaintiff argues that there is no delay in seeking amendment or any prejudice to Defendants as the amendments only clarify the existing causes of action, do not add any new causes of action, and Defendants have not yet filed their Answer nor has trial been set.

Defendants contend that Plaintiff’s request for leave is premature because of Defendants’ demurrer to the SAC and the instant motion should be denied or at least postponed until the Court rules on the issues raised in the demurrer or else Defendants will be left to demur, again, to Plaintiff’s TAC. Defendants argue that allowing Plaintiff leave to amend before hearing the demurrer creates a sequencing that allows Plaintiff to continue amending his Complaint without any ruling on the substance deficiencies of the Complaint.

Here, the Court is not persuaded by Defendants’ arguments. Defendants maintain that allowing Plaintiff leave to amend unduly burdens Defendants by having to demur to subsequent Complaints, this is unveiling. Notably, Plaintiff filed the instant motion for leave on November 11, 2025, which is nearly one month before Defendants filed their demurrer to the SAC on December 10, 2025. Therefore, there is no evidence of Plaintiff’s procedural gamesmanship as alluded to by Defendants and Plaintiff is simply engaging in standard pretrial motion practice. Defendants fail to identify any undue delay in Plaintiff’s amendment or prejudice as a result of such delay. Plaintiff filed for leave to amend before Defendants demurred to the SAC, Defendants opted to file the demurrer instead of an Answer, the parties are still engaged in discovery, and no trial date has been set in this case. Plaintiff’s counsel also cites numerous efforts to meet and confer with Defendants’ counsel to narrow the pleadings which was not productive. (Brown Decl., ¶¶ 24–26.) Thus, Defendants have failed to present any argument that would justify defying the liberal allowance of amendments to the pleadings at all stages of the proceeding. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 [“Where no prejudice is shown to the adverse party, the liberal rule of allowance [to amend a pleading in the furtherance of justice] prevails.”].) The motion is GRANTED.

 IV.            Conclusion

Plaintiff’s motion for leave to file the TAC Complaint is GRANTED. Plaintiff shall file and serve on all Defendants the proposed TAC attached as Exhibit 1 to the motion within ten (10) days of service of notice of entry of the Court’s order on this motion.

Unless oral argument is requested, the Court will sign the proposed order lodged with the motion.

3.         25CV05117, Belluomini v. A0690 Windsor LP

Defendant Nation’s Finest’s (“Nation’s Finest”) motion to set aside entry of default is GRANTED pursuant to C.C.P. section 473(b). Nation’s Finest shall file and serve the proposed demurrer to the Complaint attached as Exhibit A to the motion on all parties within fifteen (15) days of service of notice of entry of the Court’s order on this motion.

Accordingly, the Civil Default hearing set for Tuesday, March 17, 2026, at 3:00 p.m. in Department 19 is now VACATED, as will be further explained below.

I.                   Factual & Procedural History

This action arises from housing issues relating to Plaintiff Brandon Belluomini’s (“Plaintiff”) tenancy at a veteran housing property in Windsor, California allegedly co-owned and managed by Defendants Nation’s Finest, Urban Housing Communities, A0690 Windsor LP, and Buckingham Property Management (together as “Defendants”). On August 8, 2025, Plaintiff filed his Complaint for damages with the Court asserting 11 causes of action against Defendants, including violation of the implied warranty of habitability and discrimination in violation of the California Fair Employment and Housing Act. On August 19, 2025, Plaintiff filed a proof of service of summons showing personal service of the summons and Complaint on Nation’s Finest’s Manager in Charge, Kate Mathers, at its business address (2455 Bennett Valley Road, Suite C-105, Santa Rosa, CA 95404) on August 15, 2025, at 1:30 p.m. On October 16, 2025, Plaintiff filed an amended proof of service of summons showing that the server also mailed copies of the documents to Nation’s Finest on August 15, 2025. (See Boughner Decl., filed October 16, 2025.) 

On September 29, 2025, Plaintiff filed a request for entry of default against Nation’s Finest, which the Court granted and entered Nation’s Finest’s default on September 26, 2025. (See Request for Entry of Default, filed September 29, 2025; see also Proof of Service of Request for Entry of Default, filed October 7, 2025.) On October 7, 2025, Plaintiff filed a Request for Court Judgment. On October 20, 2025, the Court denied this request but set a prove-up hearing for November 18, 2025, at 3:00 p.m. in Department 19 for Plaintiff to present prima facie evidence to establish each claim and corresponding damages totaling $1,175,000.00 (the “Civil Default hearing”). (See Order Denied – Judgment, filed October 20, 2025.) On November 17, 2025, Nation’s Finest filed the instant motion to set aside the entry of its default. At the November 18, 2025, Civil Default hearing, Nation’s Finest’s counsel appeared, and the Court acknowledged the filing of its motion to set aside entry of default the day prior. (See Minute Orders, served November 18, 2025.) The Court continued the Civil Default hearing to Tuesday, March 17, 2026, at 3:00 p.m. in Department 19 and reset the Case Management Conference for April 2, 2026. (Ibid.) The Court now considers Nation’s Finest’s motion to set aside entry of default and its request to file a demurrer to the Complaint upon the Court granting the set aside.

II.                Governing Law

A.    Requests for Judicial Notice

The court may take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452(h).) The court must take judicial notice of any matter requested by a party, so long as it complies with the requirements under Evidence Code section 452. (Evid. Code § 453.) Courts may take notice of public records but not take notice of the truth of their contents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

B.     Discretionary Relief under C.C.P. Section 473(b)

C.C.P. section 473 allows the court to amend pleadings and relieve parties from a judgment or order taken against a party. Under Section 473(b), an application for discretionary relief from a judgment, dismissal, order, or other proceedings taken against a party or their legal representative must be (1) due to the party or their legal representative’s mistake, inadvertence, surprise, or excusable neglect; (2) accompanied by a copy of the answer or other pleading proposed to be filed; (3) made within a reasonable time not to exceed six months after the judgment, dismissal, order, or proceeding was taken. Relief under the discretionary provision of the statute only allows relief from attorney error fairly imputable to the client, i.e., whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Toho-Towa Co. v. Morgan Creek Prods., Inc. (2013) 217 Cal.App.4th 1096, 1112 [internal citations omitted].) Section 473 is remedial and is to be liberally construed to dispose of cases upon their substantial merits. (Taliaferro v. Taliaferro (1963) 217 Cal.App.2d 216, 220.)

 III.              Analysis

a.       Plaintiff’s Request for Judicial Notice

In support of his opposition to Nation’s Finest’s motion to set aside entry of default, Plaintiff requests that the court take judicial notice of six documents (various public records about the relationship of Defendant entities) from Plaintiff’s Exhibits List filed on January 13, 2026. The Court DENIES Plaintiff’s request for judicial notice as these documents appear to pertain to Plaintiff’s response to Nation’s Finest’s proposed demurrer rather than the motion to set aside entry of default as discussed in detail below. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand”].)

b.      Procedural Defects in Plaintiff’s Opposition and Supporting Documents

Plaintiff’s opposition contains several defects. First, Plaintiff failed to sign his opposition, declaration, and request for judicial notice filed on December 1, 2025. In the interest of disposing of cases on their merits, the Court shall consider Plaintiff’s opposition and supporting documents. However, should Plaintiff fail to sign other papers in this action, the Court will strike and not consider such papers even if timely filed. (CCP §128.7).

Second, many of Plaintiff’s citations to case law are either incomplete or false. In citing the legal standard for C.C.P. section 473(b), Plaintiff cites two cases: Hancock v. Lacer (1986) 188 Cal.App.3d 247 and Kendall v. Barker (1988) 197 Cal.App.3d 619. The case Hancock v. Lacer (1986) 188 Cal.App.3d 247 does not exist. The proper case the reporter, volume number, and pin cite pertain to an unpublished case: People v. Pender (1986) 188 Cal.App.3d 241, not “Hancock v. Lacer”. Furthermore, Plaintiff cites several cases to support his arguments but fails to provide the entire citation for the Court to verify such authority, e.g. “Hernandez v. McClanahan”, “Devlin v. Kearny Mesa AMC”, and “Elston v. City of Turlock”. While Plaintiff is representing himself in propria persona, he must abide by all applicable rules of conduct and procedure, which includes C.C.P. section 128.7(b) that affirms to the court that by presenting any paper to the court, all claims, defenses and legal contentions in such papers are warranted by existing law. (Emphasis added.) However, in light of the Court’s decision below granting Nation’s Finest’s motion to set aside entry of default, the Court in its discretion shall not order Plaintiff to show cause.

Self-represented parties are required to abide by the Rules of the Court and Code of Civil Procedure, and the Court is required to uphold the rule of law and promote access to justice while ensuring a fair process. Plaintiff’s actions at this stage do not rise to a level requiring monetary sanctions pursuant to C.C.P. sections 128.5 and 128.7. However, this does not foreclose Defendants from bringing noticed motions or the Court bringing its own motion regarding Plaintiff’s future conduct violating these rules, including improper or incorrect citation to case law.

c.       Set Aside Entry of Default

Nation’s Finest concedes that a member of its staff was served and accepted Plaintiff’s documents but that this person did not know the importance of the documents or what do with them upon receipt. (Flaherty Decl., ¶ 3.) Once Nation’s Finest’s CEO received the documents, he found counsel and states that he was mistaken in his understanding of the time frames associated with responding to lawsuits which resulted in a delay in obtaining counsel to represent Nation’s Finest. (Flaherty Decl., ¶¶ 4, 7.) Nation’s Finest argues that it was mistaken as to the factual circumstances regarding the time to respond to the summons and the legal meaning of a summons, which is reasonable as the person served on behalf of Nation’s Finest and the CEO, Mr. Flaherty, are laypeople, not attorneys. Nation’s Finest contends that the motion is timely because it was filed 53 days after the action was filed and that it acted with diligence to set aside the entry of default. Lastly, Nation’s Finest claims that Plaintiff will suffer no prejudice in setting aside the entry of default because it does not impair his rights and would allow Nation’s Finest to participate in this action.

Plaintiff opposes the motion arguing that Nation’s Finest has not established excusable neglect because Mr. Flaherty’s declaration is not credible, conclusory, and legally inadequate. Plaintiff further argues that Nation’s Finest did not act diligently because it ignored the lawsuit for over 30 days and allowed default to be entered. Plaintiff contends that he will suffer prejudice if default is set aside because he has prepared extensive exhibits for the prove-up hearing, suffered emotional distress, has prepared to call witnesses at the hearing, and granting this relief would result in delay and lost evidence. Here, Plaintiff fails to explain why such collection of evidence or exhibits would not continue to be of benefit to his case. Nor does Plaintiff describe what evidence would be lost as a result. Plaintiff insists that not understanding the importance of the summons and Complaint does not rebut proper service of these documents and does not justify the Court setting aside Nation’s Finest’s entry of default.

Here, Plaintiff misunderstands the standard of section 473(b). Valid service of the summons and Complaint and a valid entry of default against Nation’s Finest does not rebut or invalidate Nation’s Finest’s claimed mistake under this section. Notably, Plaintiff argues excusable neglect but Nation’s Finest is seeking relief for its mistake rather than excusable neglect. Nation’s Finest argues that its mistake was both of law and fact in the person who received the documents on behalf of Nation’s Finest did not understand the importance or urgency of the summons and Complaint and that Nation’s Finest’s CEO, Mr. Flaherty, did not understand the timing necessitating a response to the summons and Complaint when it finally came to his attention, comparing it to Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, which granted relief under 473 on the basis of a mistake that respondent in truth and fact believed he was served with a claim of lien which did not demand immediate attention and not a summons and complaint which did require immediate attention.

While Plaintiff challenges Mr. Flaherty’s declaration, it was executed under penalty of perjury and the Court accepts his statements made therein. Mr. Flaherty being the agent for process for Nation’s Finest does not negate the fact that he was not the one personally served with the summons and Complaint on August 15, 2025, and the claimed mistake that the person served did not know the importance or time sensitive nature of the documents served. The Court finds that this mistake is reasonable. Even though Plaintiff has prepared for a prove-up hearing set by the Court for a judgment of Nation’s Finest’s default, this prejudice to Plaintiff for the time he has prepared for the hearing and alleged loss of evidence does not outweigh the liberal construction of section 473 to dispose of cases upon their substantial merits. (Taliaferro, supra, 217 Cal.App.2d at 220; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [reasoning that trial court order denying relief pursuant to C.C.P. section 473 denying relief is scrutinized more carefully than an order permitting trial on the merits where a default judgment was entered].) Additionally, this request for relief is timely made as Nation’s Finest’s default was entered on September 29, 2025 and it filed the instant motion for relief on November 17, 2025, which is a difference of only 49 days and therefore well within the six months required by section 473(b). Thus, Nation’s Finest’s motion to set aside the entry of default is GRANTED in the interest of permitting a trial on the merits.

D. Nation’s Finest’s Demurrer to the Complaint

C.C.P. section 473(b) requires that an application for discretionary relief be accompanied by a copy of the answer or other pleading proposed to be filed. Nation’s Finest included a copy of its demurrer to the Complaint it seeks to file should the Court set aside the entry of default. Since the Court granted Nation’s Finest’s motion for relief, the Court GRANTS Nation’s Finest request to file its demurrer to the Complaint. Nation’s Finest may file and serve the proposed demurrer to the Complaint attached as Exhibit A to the motion on all parties within fifteen (15) days of service of notice of entry of the Court’s order on this motion.

The Court notes that Plaintiff made several arguments in his opposition addressing the demurrer in its substance. However, these arguments are better suited in an opposition to the demurrer rather than the instant motion.

E.     The March 17, 2026 Civil Default Hearing

The Court set the prove-up hearing when all Defendants were defaulted. Now the Court has granted Nation’s Finest relief from entry of default and Defendants A0690 Windsor LP and Buckingham Property Management filed a motion to set aside their entry of default on January 26, 2026, which is currently set for a hearing on April 15, 2026. Given that defaulted Defendants have either been granted relief from such default or are awaiting a hearing on a motion for relief, there is no basis to continue with the Civil Default hearing and conducting such hearing would not be an effective use of judicial resources. Thus, the Court VACATES the March 17, 2026, Civil Default Hearing.

IV.             Conclusion

Nation’s Finest’s motion to set aside entry of default is GRANTED pursuant to C.C.P. section 473(b). Nation’s Finest shall file and serve the proposed demurrer to the Complaint attached as Exhibit A to the motion on all parties within fifteen (15) days of service of notice of entry of the Court’s order on this motion.

The Civil Default hearing set for Tuesday, March 17, 2026, at 3:00 p.m. in Department 19 is VACATED.

Unless oral argument is requested, the Court will sign the proposed order lodged with the motion.

4.         25CV05665, Red Carpet Storage, Inc. v. Canosa

I.                    Introduction

Defendants Kendrick Walker, Jay Kister, And Lynn Tardibuono’s demurrer to Plaintiff’s complaint is OVERRULED. All requests for judicial notice are GRANTED.

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

II.                 Complaint Allegations:

Plaintiff, Red Carpet Storage, Inc., filed a complaint on August 14. 2025 against Mariateresa Canosa, Kendrick Walker, Jay Kister, Lynn Tardibuono, and Sun Pacific Mortgage & Real Estate (“Sun Pacific”). Plaintiff alleges that Defendant Canosa was a licensed real estate appraiser. It alleges that Defendant Sun Pacific is a corporation that employed Defendants Walker, Kister, and Tardibuono. Plaintiff alleges that Defendants Walker and Kister are loan originators and/or licensed real estate brokers and Defendant Tardibuono is a licensed real estate salesperson.

The following allegations also form part of the operative pleading. Sun Pacific, Walker, Kister, and Tardibuono were in the business of arranging, marketing/selling, and brokering hard money loans. For multiple years Defendants maintained a business relationship whereby Sun Pacific, Walker, Kister, and/or Tardibuono sought investors and had Canosa perform appraisals of the real property that would be used to secure the loans and used that information to sell or market loans to potential investors. Such an arrangement was financially beneficial to Defendants and dependent on selling potential investors on the loan and the security therefore.

Part of the business includes hard-money lending. A critical factor used by investors, including Plaintiff, in deciding to invest in such loans is the loan-to-value ratio that measures the total proposed loan amount against the securing property’s fair market value as determined by appraisal. Defendants had a pattern and practice of shaping loan-to-value ratios for hard money loans such that the ratio was low enough to meet or exceed such criteria, a fact neither known to nor disclosed to Plaintiff.

On or about February of 2021, Sun Pacific, Walker, Kister, and/or Tardibuono solicited Plaintiff for the purposes of investing in a loan they were brokering for Reglita Camanide Tan (“Tan”) totaling $2,590,000. As alleged, in marketing and attempting to sell the loan to prospective investors, Sun Pacific, Walker, Kister, and/or Tardibuono procured and provided to investors an appraisal report from Canosa, which listed the Property's fair market value at $3,700,000. Relying on this representation, Plaintiff elected to invest $1,140,000 in the secured loan. The loan subsequently went into default and the investors foreclosed on the property.

Plaintiff alleges that the Canosa appraisal grossly overvalued, erroneously, and otherwise improperly assessed the Property's fair market value as of the date of the appraisal, the result of which artificially lowered the loan-to-value ratio such that the referenced hard-money lending criteria were met. Defendants knowingly and intentionally packaged the Tan loan for sale to prospective investors such that it appeared the referenced loan-to-value criteria were met when in fact the truth was otherwise and failed to disclose this to Plaintiff. Defendants knew or should have known, and/or recklessly disregarded the probability, that their representations regarding the Tan loan, inclusive of the appraisal, were false, misleading, and likely to harm investors. As a result, Plaintiff alleges it has been damaged in the amount of not less than $1,500,000 as of July 30, 2025.

The moving defendants are Walker, Kister, and/or Tardibuono only. They demur to each cause of action of the complaint. Plaintiff’s complaint alleges five causes of action against these defendants: Negligence, Breach of Fiduciary Duty, Negligent Misrepresentation, Fraud, and Unfair Business Practices. Defendants demur to each on the basis that it is time-barred, it is uncertain, and it fails to state sufficient facts.

III. Governing Authority & Analysis

A. Statute of Limitations

A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily, barred. (Childs v. State of California (1983) 144 Cal.App.3d 155, 161.) “It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred. (Ibid., citing Valvo v. University of Southern Cal. (1977) 67 Cal.App.3d 887, 895. Italics in original.) “[W]e consider the pleading of ‘on or about’ June 10, 1980, sufficient to withstand a general demurrer, as it reveals only that plaintiff's action may be barred.” (Ibid. See also Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359-360 [where Plaintiff broadly alleged “on or about July of 1977”, the Court found that a demurrer could not be sustained on the basis of the statute of limitations].)

Defendants argue that their demurrer should be sustained as to each cause of action of the complaint on the basis that each cause of action is barred by the applicable statute of limitations. However, it does not appear on the face of the complaint that any of the causes of action are time barred. Furthermore, Plaintiff alleges that it was approached to invest in the loan “in or about” February of 2021. Such “in or about” allegation is sufficient to overcome demurrer on statute of limitations grounds.

B. Uncertainty

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.”)

Defendants demur 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.

C. Sufficiency of Stated Facts

1. Negligence

The “well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause, and damages.” (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) 

Plaintiff alleges that Defendants Sun Pacific, Walker, Kister, and/or Tardibuono owed a duty of care to Plaintiff to ensure that the appraisal report they procured and provided to Plaintiff was accurate, proper, and reliable. Plaintiff alleges that Defendants breached their duty of care by preparing, procuring, and providing an appraisal report that grossly overvalued, erroneously, and otherwise improperly assessed and valued the property. Plaintiff also alleges that their conduct directly and proximately caused Plaintiff damage in an amount not less than $1,500,000. These allegations are sufficient to state a claim for negligence against these defendants.

2. Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.)

Plaintiff alleges that Defendants Sun Pacific, Walker, Kister, and Tardibuono owed Plaintiff a fiduciary duty of the highest good faith, loyalty, and full disclosure of all material facts concerning the transaction that might have affected Plaintiff's decision. Defendants argue that Plaintiff’s cause of action fails because a fiduciary duty does not exist between a broker and a lender. However, “A mortgage loan broker owes a fiduciary duty of the ‘highest good faith toward his principal’ and ‘is “charged with the duty of fullest disclosure of all material facts concerning the transaction that might affect the principal's decision.”’” (Barry v. Raskov (1991) 232 Cal.App.3d 447, 455.) “The broker owes this duty to the lender-investor as well as to the borrower.” (Ibid.)

Defendants cite McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1398, and Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 for the proposition that “a fiduciary duty does not exist in a purely commercial situation such as between a broker and lender.” (Def. MPA p. 5.) However, neither case provides as such. The McCann case discusses whether a fiduciary duty exists in a purely commercial situation that involves an arms-length transaction involving a money transfer. The Kim case discusses whether a fiduciary duty is owed by a bank to its loan customers. Neither case is instructive here. The Barry case, supra, clearly provides that a fiduciary duty exists under the facts alleged by Plaintiff.

Defendants argue that if such duty existed, then it was discharged when Defendants provided an appraisal from a licensed appraiser before funding, pursuant to Bus. & Prof. Code § 10232.6(a). The question of whether Defendants discharged their fiduciary duty is a question of fact that is not properly before the Court at this time. Plaintiff has sufficiently alleged the elements of this cause of action.

3. Fraud and Negligent Misrepresentation

The general elements of fraud are “misrepresentation, knowledge of falsity, intent to induce reliance on the misrepresentation, justifiable reliance on the misrepresentation, and resulting damages.” (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 803, citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)  The elements for negligent misrepresentation are “the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-31.)

“To withstand demurrer, facts constituting every element of fraud must be alleged with particularity.” (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 35.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “[T]he requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy’ [citations] or ‘when the facts lie more in the knowledge of the’ defendant.” (Ibid.; citing Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) In addition, Plaintiffs only need to allege the ultimate facts—not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

Defendants demur to Plaintiff’s fraud and negligent misrepresentation causes of action on the basis that they lack the required specificity for fraud allegations. Less specificity is required when the allegations indicate the defendants must necessarily possess full information concerning the facts of the controversy. Such is true here. Plaintiff’s fraud and negligence allegations are sufficiently specific.

4. Unfair Business Practices

“The UCL defines ‘unfair competition’ as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Zhang v. Superior Ct. (2013) 57 Cal.4th 364, 370.) “An ‘unlawful’ business practice or act within the meaning of the UCL ‘is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.’” (Bernardo v. Planned Parenthood Fed'n of Am. (2004) 115 Cal.App.4th 322, 351.)

Plaintiff has sufficiently pleaded fraud against these Defendants. It alleges that such fraud was carried out pursuant to a business activity. Accordingly, Plaintiff has sufficiently pleaded this cause of action.

5.         SCV-273231, Love v. Escalente-Sonoma, LLC

Plaintiff Jerome Love (“Plaintiff”) filed the complaint in this action individually and on behalf of all others similarly situated and the Labor and Workforce Development Agency (“LWDA”) against defendants Escalante-Sonoma, LLC (“Defendant”) for a single cause of action under the Private Attorney General Act (“PAGA”) for labor law violations. This matter is on calendar for Plaintiff’s unopposed motion for preliminary approval of the PAGA action settlement (the “Motion”). The Motion is CONTINUED.

I.                    The Complaint

The presently operative Second Amended Complaint (“Complaint”) alleges that Defendant failed to comply with California Labor Code (“LC”) provisions during the course of his employment with Defendant, and alleges on information and belief, that these policies were also enforced on other employees.

The Complaint contains a single cause of action under PAGA for civil penalties resulting from the violations of Labor Code §§ 226.7, 512, 558, 510, 1194,1194.2, 226(a),(e) 1174(d), 201-203,204(a)(b), 2802, 210, 218, 222, 6400,6401, 6403, 6404, 6407, and 8 CCR § 3202. Plaintiff seeks to collect on a representative basis PAGA civil penalties for themselves and other employees.

II.                 Governing Law

The California Supreme Court has explained that the Private Attorney General Act (Cal. Labor Code § 2698, et seq., “PAGA”) was enacted in 2003 to permit “aggrieved employees, acting as private attorneys general,” to bring lawsuits against employers for Labor Code violations. Arias v. Superior Court (2009) 46 Cal. 4th 969, 980.  One of the goals of the statute is to foster compliance with state labor laws. Id. Thus, PAGA provides that an “aggrieved employee” may bring an action “on behalf of himself or herself and other current or former employees” to recover civil penalties for violations of the Labor Code. Lab. Code §2699. Where the Labor Code does not set forth its own penalty, PAGA sets forth several civil penalties. Lab. Code §2699(f)(2). “Of the civil penalties recovered, 75 percent goes to the Labor and Workforce Development Agency [“LWDA”], leaving the remaining 25 percent for the ‘aggrieved employees.’” Arias, supra, 46 Cal. 4th at 980–981; see also Lab. Code § 2699 (m) (for notices filed after July 1, 2024, 65% is distributed to the LWDA, and 35% to aggrieved employees). An employee suing under PAGA “does so as [a] proxy or agent of the state’s labor law enforcement agencies.” Id. at 986. Thus, PAGA actions “primarily seek to vindicate the public interest in enforcement of California’s labor law.” Baumann v. Chase Inv. Servs. Corp. (9th Cir. 2014) 747 F.3d 1117, 1123.

A trial court “shall review and approve any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” Lab. Code § 2699(l)(2); see also Williams v. Superior Court (2017) 3 Cal.5th 531, 549 (“PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected”). The court “should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” Moniz v. Adecco USA, Inc.,(2021) 72 Cal.App.5th 56, 77 (“Moniz”). “The most important factor (in the fair, adequate and reasonable standard) is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.” Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399, 407–408 (as to class actions).

“PAGA does not provide that aggrieved employees must be heard on the approval of PAGA settlements.” Moniz, 72 Cal. App. 5th 56, 77. 79. Indeed, some courts have found that other approved PAGA litigants as to the same claims lack standing to object to a PAGA settlement, as the real party in interest is the LWDA. Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, 971; contra Moniz v. Adecco USA, Inc., 72 Cal.App.5th 56, 72-73. The trial court reviews the PAGA settlement as a safeguard. Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 88 (settlement of individual claims did not affect PAGA claims, as those individual claims were not subject to PAGA “safeguards” under Lab. Code § 2699(l)(2)). The trial court must review whether the settlement is fair adequate and reasonable, and in doing so considering PAGA’s purposes and policies is relevant. Moniz, supra, 72 Cal.App.5th at 77.

Federal decisions addressing PAGA settlements have found it appropriate, but not necessarily required, to consider traditional class-action standards and those set forth in Hanlon v. Chrysler Corp. (9^th Cir.1998) 150 F.3d 1011, or “any other coherent analysis.” O’Connor v. Uber Technologies (N.D. Cal.2016) 201 F.Supp.3d 1110, 1134. As set forth in Hanlon, courts have considered factors such as the strength of the claim, risk, expense, complexity, amount and terms of settlement, discovery, and experience of counsel.

A.    Counsel’s Fees

Trial courts review both the settlement, and the requests for fees thereon. Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 709. The analysis is often analogized to the jurisprudence on class action fees. See Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 703.

As to class actions, with respect to the request for attorneys’ fees and costs, “[o]ur courts have always been cognizant of the inherent tension between the interests of class membership and counsel in settlement of class action litigation.” Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 555-56. “In any class action there is always the temptation for the attorney for the class to recommend settlement on terms less favorable to his clients because a large fee is part of the bargain.” Apple Computer, Inc. v. Sup. Ct. (2005) 126 Cal.App.4th 1253, 1269. For this reason the majority of courts have found, for example, that it is impermissible to have a class representative too closely associated with the class attorney. Id. at 1264, citing Susman v. Lincoln American Corp. (7th Cir.1977) 561 F.2d 86, 90–91. It has also been recognized that once a settlement agreement is reached, the interests of class counsel and defendant are no longer necessarily adverse. See, e.g. Consumer Privacy Cases, 175 Cal.App.4th at 555-56, citing In re General Motors Corp. Pick–Up Truck Fuel Tank (3rd Cir.1995) 55 F.3d 768, 819–820 (“a defendant is interested only in disposing of the total claim asserted against it; ... the allocation between the class payment and the attorneys’ fees is of little or no interest to the defense.’ ... [T]he divergence in financial incentives [between the class and counsel] creates the ‘danger ... that the lawyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange for red-carpet treatment for fees.’”)

Because of the potential for fraud, collusion or unfairness, thorough judicial review of fee applications is required in all class action settlements and the fairness of the fees must be assessed independently of determining the fairness of the substantive settlement terms. Dunk, 48 Cal.App.4th at 1808-09. Thus, the court has a duty, independent of any objection, to assure that the amount and mode of payment of attorneys’ fees are fair and proper, and may not simply act as a rubber stamp for the parties’ agreement. See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128-29. “The evil feared in some settlements-unscrupulous attorneys negotiating large attorney’s fees at the expense of an inadequate settlement for the client-can best be met by a careful ... judge, sensitive to the problem, properly evaluating the adequacy of the settlement for the class and determining and setting a reasonable attorney’s fee…” Zucker v. Occidental Petroleum Corp. (9th Cir.1999) 192 F.3d 1323, 1328-29 n. 20 (internal citation omitted). 

California recognizes “[t]wo primary methods of determining a reasonable attorney fee in class action litigation…” Laffitte v. Robert Half Internat., Inc. (2016) 1 Cal.5th 480, 489. The percentage method “calculates the fee as a percentage share of a recovered common fund or the monetary value of plaintiffs’ recovery.” Id. By contrast, “[t]he lodestar method…calculates the fee ‘by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate…Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” Id. citing Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26; see also Serrano v. Priest (1977) 20 Cal.3d 25, 48. In Laffitte, the Court clarified that it is within the trial court’s discretion to use the “percentage method” to “to calculate a fee in a common fund case, where the award serves to spread the attorney fee among all the beneficiaries of the fund…” 1 Cal.5th at 503. The Court stated that “[w]e join the overwhelming majority of federal and state courts in holding that when class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created.” Id. “The choice of a fee calculation method is generally one within the discretion of the trial court, the goal under either the percentage or lodestar approach being the award of a reasonable fee to compensate counsel for their efforts.” Id. at 504 citing Consumer Privacy Cases, 175 Cal.App.4th at 557-58.

III.              The Settlement

According to the Motion, Plaintiff asserted a single cause of action for various Labor Code and Business and Professions Code violations centered around failure to allow for rest and meal periods, and the failure to timely pay wages both during employment and at separation. Defendant contends that Plaintiff is unlikely to prevail on the merits as the claims presented were based on individualized violations not easily proven in representative claims, as well as the risks associated with how the penalties are stacked. See generally Otkupman Decl. ¶¶ 10-30.  

The Otkupman Declaration establishes that Plaintiff’s counsel engaged in informal discovery and investigation. Otkupman Decl. ¶ 18. On June 17, 2025, the parties mediated the matter with Lynn Frank. Otkupman Decl. ¶ 17. Prior to the mediation, Defendant had provided documents responsive to the informal discovery requests, including payroll information covering the applicable statutory period. (The aggrieved employees are defined in the Settlement Agreement and Release of PAGA Claims [attached to Otkupman Decl., Exhibit 2, hereinafter “Settlement Agreement”] as all current and former non-exempt employees of  Defendant who worked in California from March 2, 2022 to August 17, 2025). Settlement Agreement ¶ 1.6 and 1.27.) Otkupman Decl. ¶ 16.

Plaintiff used the sampling of data provided by Defendants to calculate the amount in controversy. Otkupman Decl. ¶ 23, 28. Based on that data, Plaintiff’s counsel was able to undertake a thorough analysis of potential damages for the claims alleged in the Complaint, determining that the maximum fine of $100 per pay period would apply to the 7,069 pay periods at issue. Plaintiff estimates that the maximum amount of potential fines across for which Defendant may be liable for the alleged violations equals $706,900.00 (7,069 pay periods at issue * $100 per pay period cap under Lab. Code § 2699 (f)(2)(A)). The estimated maximum penalties to be distributed to the LWDA is therefore $530,175, and an average of $883.63 per aggrieved employee ($176,725 / 200 aggrieved employees). Otkupman Decl. ¶¶ 23, 28. At the mediation, the parties came to an agreement based on the assistance of the mediator. Otkupman Decl. ¶ 17.

Pursuant to the Settlement Agreement, Defendant will pay $320,000 as the Gross Settlement Amount. Settlement Agreement ¶ 1.13. From that amount, the following will be deducted: 1) attorneys’ fees of $106,666.67 (which is approximately 1/3 of the Gross Settlement Fund) and up to $20,000 of costs and expenses, currently accrued at $12,890.52; and 2) settlement administration costs, not to exceed $10,000 (parties have received a capped bid for $3,499). See Settlement Agreement ¶ 3.2; Otkupman Decl. ¶¶ 39, 40. If these sums are all approved by the Court, this results in a Net Settlement Fund of a minimum of $183,333.33 ($196,943.81 at present) to be distributed to the LWDA and aggrieved employees. The Net Settlement Fund will be distributed 75% to the LWDA ($137,500), then pro rata to the aggrieved employees, based on the number of pay periods worked by such individual as compared to the total number of aggregate number of pay periods by all such individuals during the PAGA Period. Settlement Agreement ¶ 3.3. This results in an average PAGA settlement payment of approximately $229.16 ($45,833.33 / 200). Aggrieved Employees are responsible for any taxes owed resulting from settlement payments. Settlement Agreement ¶ 3.3. The settlement is non-reversionary as any funds will be distributed to the LWDA and aggrieved employees. Settlement Agreement ¶ 3.1.

The Settlement Agreement sets forth the procedure and timeline for providing notice to the Aggrieved Employees (which will be sent by the administrator via first class mail). Settlement Agreement ¶ 1.21, 4.1-4.5. Plaintiff has also submitted a proposed notice to Aggrieved Employees (the “Proposed Notice”) (Otkupman Decl., Ex. 7) for inclusion with the payments which includes basic information about the case, and the payment amount due to the recipient. Under the Settlement Agreement, Aggrieved Employees under the PAGA claims release “all claims for PAGA penalties that were alleged, or reasonably could have been alleged, based on the PAGA Period, including the facts stated in the Operative Complaint and the PAGA Notice, and they shall each be bound by the Approval Order and Judgment and be forever barred from pursuing any of the Released Claims against any of the Released Parties. For avoidance of doubt, all PAGA Group Members shall be barred from bringing, joining, or otherwise participating in a PAGA representative action or otherwise making, joining, or participating in a claim against any of the Released Parties for any of the Released PAGA Claims”. Settlement Agreement ¶ 5.2.

IV.              Analysis

On review of the Proposed Notice, the Court has concern that the proposed notice does not accurately reflect the claims actually released by the settlement and so may misinform Aggrieved Employees about their ability to participate in future PAGA claims. As the Court has noted, the Settlement Agreement releases “all claims for PAGA penalties that were alleged, or reasonably could have been alleged, based on the PAGA Period, including the facts stated in the Operative Complaint and the PAGA Notice, and they shall each be bound by the Approval Order and Judgment and be forever barred from pursuing any of the Released Claims against any of the Released Parties. For avoidance of doubt, all PAGA Group Members shall be barred from bringing, joining, or otherwise participating in a PAGA representative action or otherwise making, joining, or participating in a claim against any of the Released Parties for any of the Released PAGA Claims” Settlement Agreement ¶ 5.2 (emphasis added).

In contrast, the Proposed Notice only tells the Aggrieved Employees that “The settlement releases claims for civil penalties only alleged in the complaint under PAGA (Labor Code §§ 2698, 2699 et seq.) for the period of March 2, 2022 through August 17, 2025 (the “PAGA Period”).” The Court does not believe that the release of possible claims is per se improper, quite the opposite. Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 82 (Court approval of release of claims not listed in PAGA notice and not included in the complaint, but could have been alleged, was within discretion and was in accord with principles of collateral estoppel) disapproved of on other grounds by Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664. However, the notice clearly must accurately reflect those claims being released so Aggrieved Employees may know whether they can proceed in possible PAGA actions later. The Proposed Notice must be corrected to reflect the release of all possible claims, or the release must be restricted to those claims disclosed by the Proposed Notice.

The Court continues this matter to April 1, 2026 at 3:00 pm in Department 19. Plaintiff is to file a corrected Proposed Notice by March 23, 2025.

6.         SCV-273542, Ming v. Cottingham

Counsel George W. Wolff requests to be relieved as counsel for Defendant Angel Brothers Lath & Plastering, Inc. due to a breakdown in the attorney-client relationship. However, counsel Wolff’s signature is missing on page two of the Notice of Motion and Motion to be Relieved as Counsel (form MC-051), and his signature is illegible on page two of the Declaration in Support of Attorney’s Motion to be Relieved as Counsel (form MC-052). The Court previously continued this matter from February 6, 2026, to March 13, 2026, to allow counsel Wolff to correct these errors, but the Court served the February 6, 2026, Minute Orders to an incorrect email address for counsel Wolff. Therefore, this matter is CONTINUED to Friday, April 24, 2026 at 3:00 p.m. in Department 19 to allow counsel Wolff to refile the forms with legible signatures. Should counsel not correct the signature defects, the Court shall strike the unsigned papers pursuant to C.C.P. section 128.7(a).

        

 

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