Law & Motion Calendar

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Tentative Rulings

Wednesday, October 08, 2025 3:00 p.m.

1. 24CV02049, Cederborg v. Hanford Applied Restoration & Conservation

Plaintiff Mark Cederborg (“Plaintiff”) filed the complaint in this action against Hanford Applied Restoration and Conservation (“HARC”), Douglas Hanford (“Hanford”, together with HARC “Defendants”) and Does 1-10 with causes of action for breach of contract and declaratory relief (the “Complaint”). Defendants have in turn filed a cross-complaint against Plaintiff (the “Cross-Complaint”). Defendants had also filed an action in Solano County (case CU24-07002, the “Consolidated Action”) now under the current operative first amended consolidated complaint (the “FACC”) against EIP III Credit Co., LLC (“EIP”), Ecosystem Investment Partners III, LP (“Eco Investment”), EIP Partners III LP (“EIP Partners”), U.S. Specialty Insurance Company (“USS Insurance”), the State of California Department of Water Resources (the “DOWR”, together with other Consolidated Action FACC defendants, “Consolidated Action Defendants”), and Does 1-100. EIP has in turn filed a cross-complaint in the Consolidated Action against Defendants (HARC and Hanford), and Does 1-10 (the “Consolidated Cross-Complaint”, or “CXC”.

This matter is on calendar for HARC’s motion to compel further responses to requests for production of documents under CCP § 2031.310 (“RPODs”) from USS Insurance.

As of July 8, 2025, the Court has appointed a discovery referee, the Hon. Kevin Murphy (the “Referee”) as to this matter, and all the parties have signed the stipulation. The referee was stipulated by the parties, and was appointed to “hear and determine any and all discovery disputes.” The Referee filed a discovery management order on August 11, 2025, and to the Court’s knowledge have been heard by the Referee on September 22, 2025. The Referee has filed a discovery management order on August 8, 2025 asking the Court to take these motions off calendar as a result. This motion is properly adjudicated by the appointed referee, especially given that the matters should already be under submission at this time. Therefore, until such time as there is a referee’s report under CCP § 643, the Court will take the motion off the calendar.

2. 24CV02489, Looney v. Oaktown Ramp, LLC

Plaintiff Gary E. Looney dba Collectronics of California (“Plaintiff”), assignee of Young’s Market Company, obtained a default judgment against defendants Oaktown Ramp, LLC (“Defendant”), Louwenda Daniel Kachingwe (“Guarantor”, together with Defendant, “Defendants”). This matter is on calendar for Plaintiff’s motion to appoint a receiver, namely Landon McPherson (“Receiver”), to seize and sell liquor license number 562388 to satisfy the Judgment. The motion is GRANTED.

I. Governing Law

Appointment of a receiver is generally controlled by CCP §§ 564, et seq. A judgment debtor’s interest in an alcoholic beverage license is not subject to execution (Cal. Civ. Proc. Code (“CCP”) § 699.720(a)(1)), and therefore may be applied to the satisfaction of a money judgment only by appointment of a receiver under CCP § 708.630. CCP § 708.630(b) provides that the Court may appoint a receiver to transfer the debtor’s interest in the license, unless the debtor establishes that the amount of delinquent taxes and claims of prior creditors exceed the probable sale price of the license. Generally speaking, a receiver may be appointed to enforce a judgment where the judgment creditor shows that, considering the interests of both the creditor and the judgment debtor, the appointment of a receiver is a reasonable method to obtain the fair and orderly satisfaction of the judgment. CCP § 709.620. The legislative committee notes confirm that it is no longer a prerequisite for the judgment creditor to show that the judgment debtor “refuses to apply property in satisfaction of the judgment,” but the committee notes also state that “a receiver may be appointed where a writ of execution would not reach certain property and other remedies appear inadequate.” (Emphasis added). The availability of other remedies “does not, in and of itself, preclude the use of a receivership. [citation] Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership.” City & Cty. of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 745. In making this decision, the court must depend upon competent and admissible evidence submitted by the parties, and not conclusions and hearsay. McCaslin v. Kenney (1950) 100 Cal.App.2d 87, 94.
An order to show cause is a citation to a party to appear at a stated time and place to show why the requested relief should not be granted. Green v. Gordon (1952) 39 Cal.2d 230, 231. An order to show cause hearing does not shift the burden away from a party moving for appointment of a receiver. Moore v. Oberg (1943) 61 Cal.App.2d 216, 221. An order to show cause why a receiver should not be appointed is appropriate where the court has granted appointment of the receiver ex parte, as the court must have a hearing as to why the receiver who has been appointed by ex parte should not be confirmed. Cal. Rule of Court 3.1176.

II. Analysis

The supporting Looney Declaration states that there has been no response to post-judgment letters or interrogatories. Looney Decl. ¶ 8-10. Plaintiff has filed a motion to compel, which the Court granted via order on March 10, 2025. Court’s 3/10/2025 Order on Plaintiff’s Motion to Compel. Plaintiff claims to have “investigated the Defendants [sic] finances” but claims to have not received any useful information for collecting on the Judgment. Looney Decl. ¶ 6. And similarly, the brief argues that all other assets are essentially valueless, that its sole remaining asset is the liquor license and that as a result, the Judgment may never be satisfied absent the appointment of a receiver Looney Decl. ¶¶ 11-12. Plaintiff states that he has been unable to locate any financial assets, although the business is open. Looney Decl. ¶¶ 4, 7, & 12. Plaintiff requests the Court appoint Receiver to take possession of and sell Defendants’ liquor license, license number 562388, in order to satisfy the Judgment of $4,014.73.

Plaintiff has obtained a Court order compelling responses to post-judgment discovery. Plaintiff’s declaration avers that the order was served on March 27, 2025, which allowed Defendants 30 days from notice of the order within which to respond to the order. Court’s 3/10/2025 Order on Plaintiff’s Motion to Compel; Looney Decl. ¶ 12. Defendants have continued to fail to respond, despite court orders compelling that response within 30 days. Id. at ¶ 11. This motion followed on July 16, 2025.

Defendants’ failure to respond evidences a general intractability in engaging with this matter, and the judgment thereon. Plaintiff has demonstrated that “considering the interests of both the judgment creditor and the judgment debtor, the appointment of a receiver is a reasonable method to obtain the fair and orderly satisfaction of the judgment.” See CCP § 708.620.

Plaintiff has sufficiently shown that the appointment of a receiver is warranted and therefore, the motion is GRANTED.

The Receiver shall post an undertaking in the amount of $1,000.00 upon his appointment.

III. Conclusion

The motion is GRANTED. The Receiver shall post an undertaking in the amount of $1,000.00 upon his appointment.

Plaintiff shall submit an order to the Court consistent with the proposed order attaching this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

3. 24CV03497, Bala v. Ford Motor Company
Plaintiff Gary C Bala and Boulay C Bala (together “Plaintiffs”) filed the complaint (the “Complaint”) in this action against defendant Ford Motor Company (“Manufacturer”), defendant Hansel Ford Lincoln (“Dealer”, together “Defendants”), and Does 1-10, relating to Plaintiff’s 2020 Ford Explorer (the “Vehicle”) purchased from Dealer.

This matter is on calendar for Plaintiffs’ motion for sanctions against their prior counsel, Strategic Legal Practices, LLP (“SLP”) under Code of Civil Procedure (“CCP”) §§ 128.5 and 128.7. The Court continues the motion to December 3, 2025, and sets an order to show cause re: sanctions against Plaintiffs subject to CCP § 128.5 and 128.7.

I. Governing Authorities

Courts in California have no inherent power to sanction, only those directly granted by statute. Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1455 ("(O)ur trial courts have no inherent power to impose monetary sanctions.").

§ 128.5. Frivolous actions or delaying tactics; order for payment of expenses; punitive damages

(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay….
(b) For purposes of this section:
(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.
(2) “Frivolous” means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.

CCP Sec. 128.7(b) states:

“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”

Subsection(c) provides: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.”

A party seeking sanctions pursuant to 128.7 must first, before filing the motion, serve the offending party with a motion for sanctions commencing a 21-day “safe harbor” period during which the offending party may withdraw or correct the improper pleading and avoid sanctions. CCP § 128.7 (c)(1). If the pleading is not withdrawn during the “safe harbor” period, the motion for sanctions may be filed. Malovec v Hamrell (1999) 70 Cal. App. 4th 434, 440.

CCP § 128.7 (c)(1) requires that the motion for sanctions be served in compliance with CCP § 1010 twenty-one days before filing. Per CCP § 1010, “(n)otices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” The papers served to being the safe harbor period must be the same papers as those eventually filed with the court. CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007. “Section 128.7's incorporation of section 1010 is compulsory, not permissive.” Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538 (“Galleria”). A CCP § 128.7 motion served to the responding party to begin the safe harbor period must include the date the motion would be made, or it is fatally defective. Id. “‘Close’ is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute.” Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.

Sanctions for violations of CCP § 128.7(b) may be imposed as a penalty payable to the court, non-monetary sanctions in order to deter such conduct, or “if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.” CCP § 128.7(d). Conversely, motions for sanctions may “itself be subject to a motion for sanctions.” CCP § 128.7(h) (emphasis added). “On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.” CCP, § 128.7 (c)(2).

II. The Court Requires Plaintiffs to Either Withdraw the Motion or be Subject to the Order to Show Cause

In reviewing Plaintiffs’ memorandum of points and authorities, it was quickly apparent to the Court that the brief contained citations to cases that either did not stand for the proposition that Plaintiffs rely upon, or do not exist at all.

Mitchell v. Superior Court (1999) 20 Cal.4th 232, 241: Plaintiffs’ provided citation is actually to People v. Martinez (1999) 20 Cal.4th 225, 241. There is a California Supreme Court case with this name, Mitchell v. Superior Court (1984) 37 Cal.3d 591, which does not stand for the proposition Plaintiffs advance.

In re Attorney Discipline Bd. (1973) 10 Cal.3d 420, 425: There is no published California appellate case with this name. The citation leads to Legislature v. Reinecke (1973) 10 Cal.3d 396, 425.

Fracasse v. Brent (1972) 6 Cal.3d 784, 792: This case does not support Plaintiffs’ associated legal contention. The case relates to entitlement of an attorney to fees for settlement obtained after being fired by the client. It does not provide that the court may void fee agreements for misconduct.

Estate of Charlisse (1991) 1 Cal.App.4th 808, 814: There is no published California appellate case with this name. The citation leads to Chicago Title Ins. Co. v. California Canadian Bank (1991) 1 Cal.App.4th 798, 814.

Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470: This case relates to class actions and not attorney profit from their own misconduct.

Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916: This case does not stand for propositions of law related to unjust enrichment from attorney malpractice.

Phoenix Solutions, Inc. v. Wells Fargo Bank, N.A. (2003) 107 Cal.App.4th 1199, 1210: There is no published California appellate case with this name. The pin citation leads to Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1210.

Plaintiffs have provided authorities which cannot be said to be anything other than frivolous under these facts. The appropriate remedy from the Court’s perspective is issuance of an order to show cause why sanctions should not issue under CCP § 128.5 and CCP § 128.7. This is in accordance with the recently published case of Noland v. Land of the Free, L.P. (Cal. Ct. App., Sept. 12, 2025, No. B331918) 2025 WL 2629868, at *8 (Court of Appeal issued an order to show cause, and when the brief was not withdrawn, sanctions of $10,000 were issued).

Counsel did not identify this deficiency, and therefore ordering sanctions payable to them appears improper. Rather, the sanctions shall be payable to the Court in an amount sufficient to deter the conduct in the future. The Court will issue an order to show cause re: sanctions as to Plaintiffs. The amount of sanctions in the Order to Show Cause will be $4,000. Plaintiffs have 21 days from service of the order to show cause to have the motion “withdrawn or appropriately corrected”. The Court notes that this is not an opportunity for Plaintiffs to pivot their request and re-work the motion. Plaintiffs will either provide accurate and binding authority for the propositions they advance or withdraw the motion.

The Court sets the Order to Show Cause for December 3, 2025, at 3pm in Department 19. Plaintiff’s motion is continued to the same date.

4. 25CV00200, Baldinger v. Carrington Mortgage Services, LLC
Demurrers SUSTAINED in full with leave to amend. Plaintiff has leave to amend within 10 days of the service of the notice of entry of this order. Defendants are to serve the notice of entry of this order within 5 days of entry of this order. California Rule of Court (“CRC”) 3.1320(g).

I. Facts

Plaintiff Tarney Baldinger, Trustee of the Tarney Baldinger 2000 Trust Created by Declaration of Trust, Dated August 15, 2000 (“Plaintiff”) complains that Defendants improperly sold real property she owns at 18044 Poplar Avenue, Sonoma (the “Property”) the Property at a foreclosure sale (the “Sale”) on September 18, 2024.

Plaintiff alleges that she is 79-year-old elder, she acquired title to the Property in 1996, the Property is her primary residence, and she has lived on the Property since the purchase. She does not otherwise describe the Property or its character.

According to the complaint, the events at issue involve foreclosure on an Adjustable Rate Deed of Trust (Home Equity Conversion) (the “DOT”) securing a Reverse Mortgage Loan (the “Loan”) against the Property, which Plaintiff signed on January 25, 2017. This was “transferred to” Defendant Carrington Mortgage Services, LLC (“Carrington”). Plaintiff alleges that, at unspecified times, she fell into default on property taxes (the “Taxes”) and was unable to obtain continued homeowner’s insurance (the “Insurance”). Comp., ¶28. She alleges that Carrington accordingly paid for Insurance and Plaintiff sent Carrington an initial payment for the Insurance as required but does not clarify when this occurred. Ibid.

As set forth in Complaint ¶¶28-33, on May 1, 2024, Defendant Clear Recon Corp. (“CRC”) allegedly recorded a Notice of Trustee’s Sale (“NOS”) for the Property, listing June 12, 2024, as the sale date for a debt of $456,186.53. Plaintiff received a letter (the “Letter”) from Carrington on May 8, 2024, stating that the Loan was in default (the “Default”) due to non-payment of taxes “and/or lender-placed… insurance.” The Letter added that Carrington had advanced $12,196.56 on Plaintiff’s behalf and that Plaintiff had the responsibility to repay that amount “as soon as possible.” The Letter included copies of a Repayment Plan Agreement (the “Agreement”) which required Plaintiff to return a copy with signature and an initial payment of $265.15 by June 5, 2024. The Agreement allegedly stated, in pertinent part,

“By agreeing to enter into this Repayment Plan Agreement, and having the

Due and Payable status of my… loan deferred, I…, on behalf of

myself… and all parties claiming by or through me…, agree that [to]

the extent that the loan has been accelerated, the acceleration is deemed

revoked upon my … execution of this agreement, and statute of repose,

laches or any other time-based doctrine of defense due to the mortgagee's

or servicer's, or their successors' and assigns', failure to commence and/or

complete foreclosure of the property when I… defaulted on my… loan

for not paying the required property taxes and/or insurance premiums in a

timely manner. Any tax and/or insurance refund received while in the

Repayment Plan Agreement will reduce the total default balance and does

not negate your responsibility to continue with your required monthly

payment.

This agreement could be subject to the final approval of the investor or

insurer of your loan.

If your loan is called Due and Payable, and you do not cure the default, we

would be required to initiate a foreclosure action of your property.”

Plaintiff believed that compliance with the Agreement would remove the Default and result in rescission of the Notice of Default (“NOD”). Comp., ¶¶31-35, 125-128. She therefore signed the Agreement, requiring monthly payments of $265.15 on the 5^th of each month until full payment of the balance of $12,196.56. Carrington sent Plaintiff a letter acknowledging receipt of the signed Agreement. Plaintiff thought that she had set up automatic payments but this was incorrect since she admits that she “later learned that it was done incorrectly.” Comp., ¶¶31-35, 125-128. After this, she alleges, the Sale was postponed to September 18, 2024. Comp., ¶36.

Plaintiff adds, vaguely, that she fell into default on the Taxes and that at an unspecified time “thereafter” she submitted a complete loan modification application to Defendants. She again does not state when she submitted this. Comp., ¶¶61-62. These allegations lack detail and appear on their face to refer to the more specific allegations above. Carrington later told Plaintiff that on August 5, 2024, they had sent her a letter stating that they had not received two of the Agreement monthly payments, but she allegedly never received this letter. Comp., ¶34. However, she admits that she missed two payments under the Agreement. Comp., ¶42. On August 21, 2024, Carrington sent Plaintiff another letter, dated the same day, stating that it had not received proof that Taxes and Insurance premiums were current so it advanced another $3,512.76 to pay them for Plaintiff, increasing the Default balance to $15,181.02.

Plaintiff then travelled to the Ukraine to help provide humanitarian aid and was there between August 26, 2024 and October 8, 2024. Comp., ¶¶39-44. While she was away, Carrington sent another letter dated September 3, 2024, stating that she had agreed to make the payments per the Agreement but that its records showed that she had failed to provide payments, leaving the balance more than 60 days past due, so that the Agreement had been “broken” and the full default balance of $15,181.02, and any additional charges, needed to be paid immediately. In late September, a neighbor informed Plaintiff about a notice on her gate so she contacted Defendant Compu-Link Corporation d/b/a Celink (“Celink”), which she identifies simply as Celink, a loan sub-servicer, and learned that the foreclosure Sale had already occurred on September 18, 2024. She states that she did not see any notice of the September 18, 2024 sale date until she returned to the Property in October 2024.

Plaintiff contacted Aldridge Pite LLP (“Aldridge”), which she identifies as the “counsel for the trustee,” on September 25, 2024 and explained her situation, asking what she needed to do to get back into good standing on the Loan and Agreement. Comp., ¶¶45-54. Aldridge replied that the Sale had already been completed so she needed to contact “the bank” which had bought the Property. Aldridge told her that she could “follow up” 15 days after the Sale because the Sale might not be final since “other eligible bidders have an opportunity to submit a bid.” Plaintiff contact CRC on September 30, 2024, but CRC informed her that the Sale was indeed final.

Carrington bought the Property at the Sale and the Trustee’s Deed upon Sale for the Sale was recorded on November 12, 2024. Plaintiff continued to contact Defendants through December 2024, explaining her claim that she thought that she had been current on her payments and seeking information on what she could do to have the Property returned to her. Defendants’ officers simply referred Plaintiff to each other and on January 2, 2025 Aldridge served her with a Notice to Quit. Comp., ¶¶55-56.

Plaintiff asserts 12 causes of action: 1) Violations of Civil Code (“CC”) section 2923.6; 2) Violations of CC section 2923.7; 3) Violations of CC section 2924.11; 4) Wrongful Foreclosure; 5) Breach of Contract; 6) Breach of the Implied Covenant of Good Faith and Fair Dealing; 7) Slander of Title; 8) Elder Abuse; 9) Violations of the Rosenthal Act; 10) Unfair Business Practices; 11) Fraud; and 12) Negligent Misrepresentation.

II. Motion

Defendants Carrington and CRC demur separately to each cause of action in the complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

Plaintiff opposes the demurrer. She argues that the causes of action are valid and objects to Defendants’ request for judicial notice. Defendants reply to the opposition.

III. Demurrer Authority

A demurrer can only challenge a defect appearing on the face of the complaint, exhibits thereto, and judicially noticeable matters. CCP section 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in CCP section 430.10. The grounds include (e) the pleading fails to state facts sufficient to constitute a cause of action. The demurring party must separately state each demurrer ground in a separate paragraph and must expressly state whether each demurrer is to the whole complaint or only part of it. CRC 3.1320(a).

The demurrer grounds must also be distinctly specified or the court may disregard them. CCP section 430.60 states “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.”

Demurrer for failure to state facts sufficient to constitute a cause of action is a general demurrer, which must fail if there is any valid cause of action. CCP section430.10(e); Quelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 Cal.4th 26, 38-39; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4^th 1068, 1078 (“as long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well”).

In pleading, the actual content of the allegations is more important than the express title or identification of causes of action. Accordingly, even a complaint which fails to allege the elements necessary for the cause of action expressly labeled in the complaint is sufficient to state any cause of action which the pleaded facts actually support, as long as “the pleaded facts state a cause of action on any available legal theory.” Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908. For example, therefore, if a party directs a general demurrer against a cause of action labelled “fraud” based on failure to state that cause of action but instead pleads malpractice, the demurrer will fail if the complaint sets forth a valid cause of action for malpractice. Saunders, supra, 224 Cal.App.3d 908.

IV. Request for Judicial Notice

Defendants request judicial notice of several recorded instruments regarding the Property. Plaintiff objects to these. These are official recorded records. The court may judicially notice the existence of these documents, the contents, and the purported legal effect but it may not judicially notice the truth of factual assertions made therein. Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753-755. With this limitation, the court grants the request.

V. Analysis

A. Violations of Civil Code (“CC”) section 2923.6

The Homeowner’s Bill of Rights (“HBOR”) provisions on which Plaintiff relies, CC section 2923.6, 2923.7, and 2924.11, all expressly state that they “shall apply only to mortgages or deeds of trust described in Section 2924.15.” CC section 2924.15 states that these provisions:

“shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. For these purposes, “owner-occupied” means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes.”

CC section 2924.12 governs actions for injunctive relief and also for damages in the event that a trustee’s deed upon sale has been recorded, but makes clear that there is no liability where any violation is cured or remedied prior to the recordation of a trustee’s deed upon sale. It states, in pertinent part,

“(a)(1) 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.

…

(b) 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.”

CC section 2923.6 states that it is the policy for loan services and like “to offer” a “loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority.” CC section 2923.6(c), forbids anyone from carrying through with any foreclosure proceedings, such as recording a notice of default, etc., after a borrower has submitted a complete modification application which is still pending, or after acceptance of such a plan unless the borrower defaults. It states, in full,

“(c) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs:

(1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision

(d) has expired.

(2) The borrower does not accept an offered first lien loan modification within 14 days of the offer.

(3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification.”

Subdivision (h) states, ‘For purposes of this section, an application shall be deemed “complete” when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.’

Defendants persuasively argue that Plaintiff fails to allege a valid cause of action for violation of this provision. They correctly note that Plaintiff alleges that she submitted a completed loan modification application, the Agreement, but she fails to allege when she did so, and the allegations indicate that she only did so after CRC recorded the NOS and Defendants sent the default Letter informing her of pending foreclosure actions. Comp., ¶¶28-33. As set forth above, Plaintiff alleges that on May 1, 2024, Defendant CRC recorded the NOS for the Property and Plaintiff subsequently received the Letter from Carrington on May 8, 2024, notifying her of the Default and offering the Agreement to resolve the matter.

Plaintiff alleges that she then entered into the Agreement after that date. Plaintiff in opposition points out that she also alleges, at ¶65 that she “clearly did have such an application pending” at the time of the NOS “as evidenced by the fact that she was provided a foreclosure prevention alternative merely 7 days later.” She also alleges at ¶¶61-62 that she entered into default for nonpayment of Taxes and as a result submitted a modification application. These allegations, however, are all vague, lack dates or details, and rely on, and refer to, the prior allegations which contain specific dates showing that the Agreement application occurred only after recordation of the NOS. Plaintiff therefore fails to allege that any modification application was pending or approved at the time of the NOS. Plaintiff does also allege that the parties entered into the Approved Agreement but her allegations, as set forth above, clearly show that she was in default by the time that Defendants resumed the foreclosure proceedings and conducted the Sale. CC section 2923.6, as stated above, allows recordation of a notice of sale and completion of a foreclosure sale after acceptance of a modification agreement if “The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification.” Plaintiff’s allegations raise issues about her knowledge of the default or causes leading to it, as well as of the Sale, but clearly show that she was in default on the Agreement and no allegation disputes that she had defaulted. She merely claims that she was not aware that she had failed to make the payments. In her opposition, Plaintiff also makes no argument that the Sale was improper because the Agreement was in effect.

The court SUSTAINS the demurrer to this cause of action.

B. Violations of CC section 2923.7

CC section 2923.7 governs “single point of contact” for the borrower. Subdivision (a) states, in full, “When a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact. Subdivision (b) states that this single point of contact “shall be responsible for”

(1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options.

(2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application.

(3) Having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative.

(4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any.

(5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary.

Subdivision (e) defines “single point of contact” and states, in full,
For purposes of this section, “single point of contact” means an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in subdivisions (b) to (d), inclusive. The mortgage servicer shall ensure that each member of the team is knowledgeable about the borrower's situation and current status in the alternatives to foreclosure process.

Defendants also persuasively argue that Plaintiff fails to allege any violation of this provision. She provides vague and conclusory allegations at ¶¶55, 104, 148, 179, and 311 stating that Defendants failed to provide her with a single point of contact. However, the specific allegations show that when she submitted the Agreement, Defendants accepted it and the parties acted on it, with no issue regarding contact, communications, a single point of contact, negotiations, discussions, or the like. Her allegations regarding a single point of contact refer only to her efforts to find out whether she could undo the Sale, after the Sale had already occurred, and, as noted, the allegations clearly admit that Plaintiff had defaulted on the Agreement and that this default led to the Sale. She complains that she did not know of the problems resulting in the Default in time to resolve it and she had trouble obtaining proper communications in order to undo the Sale, following her admitted Default, to which section 2923.7 does not apply. The issues regarding a single point of contact therefore, on the face of the allegations, show no violation of this provision.

The court SUSTAINS the demurrer to this cause of action.

C. Violations of CC section 2924.11

CC section 2924.11 forbids recordation of a notice of default or notice of sale, or conduct of a sale, following approval of a foreclosure prevention alternative as long as the borrower is in compliance with the approved alternative. It states, in pertinent part,

(a) If a foreclosure prevention alternative is approved in writing prior to the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default under either of the following circumstances:

(1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan.

(2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder, and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.

(b) If a foreclosure prevention alternative is approved in writing after the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of sale or conduct a trustee's sale under either of the following circumstances:

(1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan.

(2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder, and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.

Defendants are again persuasive. As explained above, Plaintiff alleges that the parties entered into such a foreclosure prevention alternative, the Agreement, but she admits that she defaulted on it. She alleges that she defaulted by accident because she thought that she had made the payments, but the allegations admit that she had not made the payments. Comp., ¶¶31-35, 125-128. She states that she thought that she had set up auto-payments but “later learned that it was done incorrectly.” Plaintiff admits that she missed two payments under the Agreement. Comp., ¶42. Accordingly, Plaintiff shows no violation of this provision because she shows that was not in compliance with the Agreement terms when Defendants conducted the Sale. She merely claims that her default was due to an innocent mistake of which she was not aware in time.

The court SUSTAINS the demurrer to this cause of action.

D. Wrongful Foreclosure

This cause of action is directly based on the allegations in the first three and on the claim that Defendants violated those provisions. It is therefore entirely derivative of the first three causes of action. Because the complaint shows no violation of those provisions, and the first three causes of action are therefore defective, this cause of action fails as well.

The court SUSTAINS the demurrer to this cause of action.

E. Breach of Contract

This cause of action is directly based on the allegations in the prior three and on the claim that Defendants violated those provisions. It is therefore entirely derivative of the first three causes of action. Because the complaint shows no violation of those provisions, and the first three causes of action are therefore defective, this cause of action fails as well. The court SUSTAINS the demurrer to this cause of action.

F. Breach of the Implied Covenant of Good Faith and Fair Dealing

G. Slander of Title

H. Elder Abuse

I. Violations of the Rosenthal Act

Plaintiff complains that the Rosenthal Act prohibits making potentially misleading statements in collecting a debt, and that Defendants had represented that compliance with the Agreement would allow her to resolve her Default. However, as explained above, she admits that she defaulted, but only asserts that this was by accident and without her knowledge. She fails to show that Defendants made any misleading statements or that there was any violation of this act.

The court SUSTAINS the demurrer to this cause of action.

J. Unfair Business Practices

This cause of action is directly based on the allegations in the prior causes of action and on the claim that Defendants violated those provisions. It is therefore entirely derivative of those causes of action. Because the complaint shows no violation of those provisions, and the first three causes of action are therefore defective, this cause of action fails as well. The court SUSTAINS the demurrer to this cause of action.

K. Fraud

This cause of action is directly based on the allegations in the prior causes of action and on the claim that Defendants violated those provisions. It specifically claims that the Letter and communications regarding the effects of the Agreement were fraudulent but the allegations show no fraud because they show that the Agreement did resolve the Default, as Defendants promised or represented, but that the Sale later occurred because Plaintiff had subsequently defaulted on the Agreement. She therefore shows no misrepresentations or false promises. The court SUSTAINS the demurrer to this cause of action.

L. Negligent Misrepresentation

This cause of action is directly based on the allegations in the prior causes of action and on the claim that Defendants violated those provisions. It specifically claims that the Letter and communications regarding the effects of the Agreement contained negligent misrepresentations. However, the allegations show no misrepresentations because they show that the Agreement did resolve the Default, as Defendants promised or represented, but that the Sale later occurred because Plaintiff had subsequently defaulted on the Agreement. She therefore shows no misrepresentations or false promises. The court SUSTAINS the demurrer to this cause of action.

VI. Conclusion

The court SUSTAINS the demurrers in full. Because this is Plaintiff’s original complaint and there is a possibility that Plaintiff may be able to cure the defects, the court grants Plaintiff leave to amend. Plaintiff has ten (10) from the date of the signed order to file the amended complaint.

The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five (5) days of the date set for argument of this matter. Opposing party shall inform the preparing party of objections as to form, if any, or whether the form of order is approved, within five (5) days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.

5. 25CV01624, Amaya v. Patriot Growth Insurance Services, LLC.
Plaintiff Adan Amaya (“Plaintiff”) filed the complaint (“Complaint”) in this action against defendants Patriot Growth Insurance Services, LLC (“Patriot”), Alicia Cordova (“Cordova” together “Defendants”), and Does 1-50, for alleged violations of labor laws in an employment relationship. This matter is on calendar for Plaintiff’s motion to quash twelve subpoena duces tecum issued by Defendants under Code of Civil Procedure (“CCP”) § 1987.2. Plaintiff’s motion to quash is GRANTED in part.

I. Governing Law

A. Discovery Generally

The scope of discovery is one of reason, logic and common sense. Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612. The right to discovery is generally liberally construed. Williams v. Superior Court (2017) 3 Cal.5th 531, 540. “California law provides parties with expansive discovery rights.” Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 590-591. Specifically, the Code provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010; see also, Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8. (“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…”) See Lopez, supra, 246 Cal.App.4th at 590-591, citing Garamendi, supra, 116 Cal.App.4th at 712, fn. 8. “Admissibility is not the test and information[,] unless privileged, is discoverable if it might reasonably lead to admissible evidence.” Id. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” Id. When a party serves response after a motion to compel is filed, the court maintains jurisdiction within its discretion to determine whether the requested sanctions are appropriate. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411.

“California law provides parties with expansive discovery rights.” Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 590-591. Specifically, the Code provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010; see also, Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8. “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…” See Lopez, supra, 246 Cal.App.4th at 590-591, citing Garamendi, supra, 116 Cal.App.4th at 712, fn. 8. “Admissibility is not the test and information[,] unless privileged, is discoverable if it might reasonably lead to admissible evidence.” Id. “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” Id. The scope of discovery is one of reason, logic and common sense. Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612. The right to discovery is generally liberally construed. Williams v. Superior Court (2017) 3 Cal.5th 531, 540.

Compelling need is not always the test to apply in determining whether discovery is permissible, as “Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies”. Williams v. Superior Court (2017) 3 Cal.5th 531, 557. Good cause should be shown on requests for production from non-parties as well as parties. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223–224, as modified (Mar. 7, 1997)(“Calcor Space Facility”). Good cause can be met through showing specific facts of the case and the relevance of the requested information. Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 586–587. “(T)he good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary. There is no requirement, or necessity, for a further showing.” Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355, 388. As the right to discovery is liberally construed, so too is good cause. Id at 377-378. “(A) party seeking to compel production of records from a nonparty must articulate specific facts justifying the discovery sought; it may not rely on mere generalities. (citation). In assessing the party's proffered justification, courts must keep in mind the more limited scope of discovery available from nonparties.” Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011, 1039, reh'g denied (Feb. 3, 2021), review denied (Apr. 21, 2021); citing Calcor Space Facility at 567; see also Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366.

Additionally, the right of privacy is an “inalienable right” secured by article I, section 1 of the California Constitution. Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656. The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and “extends to one’s confidential financial affairs as well as to the details of one’s personal life.” Ibid. “Personal financial information comes within the zone of privacy protected by article I, section 1 of the California Constitution.” Harris v. Superior Court (1992) 3 Cal.App.4th 661, 664; see also, SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754–755 (The right to privacy extends to personal financial information.). However, even the constitutional right of privacy does not provide absolute protection “but may yield in the furtherance of compelling state interests.” Ibid, quoting, People v. Wharton (1991) 53 Cal.3d 522, 563. Thus, “when the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satisfy the section 2017[.010] standard [and] the party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853–1854. A discovery proponent may demonstrate compelling need by establishing the discovery sought is directly relevant and essential to the fair resolution of the underlying lawsuit. Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 367; see also, Britt v. Superior Court (1978) 20 Cal.3d 844, 859-862; Williams v. Superior Court (2017) 3 Cal.5th 531, 552-555; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1071.

The court must “carefully balance” the interests involved - i.e. the right of privacy versus the public interest in obtaining just results in litigation. Schnabel v. Superior Court (1993) 5 Cal.4th 704, 714; see also, Valley Bank of Nevada, supra, 15 Cal.3d at 657; Pioneer Electronics (USA), Inc., supra, 40 Cal.4th at 371. In balancing these interests, “[t]he court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information.” SCC Acquisitions, Inc., supra, 243 Cal.App.4th at 754–755. “[T]he more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.” Ibid.

B. Protective Orders

Code of Civil Procedure Section 1987.1 states in relevant part that “[w]hen a subpoena requires the…production of books, documents or other things ... the court, upon motion reasonably made…may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders...” CCP §1987.1; see also, Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287-1288. “In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Ibid.

Although Code of Civil Procedure section 1985(b) states in part that “an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena,” Code of Civil Procedure section specifically states that “[a] deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it.” See CCP §§1985(b) and 2020.410(c); see also, City of Woodlake v. Tulare County Grand Jury (2011) 197 Cal.App.4th 1293, 1301 [“good cause affidavits are not always required…[f]or example, under the statutes providing for pretrial discovery in civil proceedings, a party may seek the production of business records for copying…” and “[a] deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it.”], quoting Code Civ. Proc. §2020.410(c); Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-6, §8:547.5 [“A subpoena for the production of business records need not be accompanied by an affidavit or declaration showing good cause for production of the records.”].

A party seeking a protective order must show good cause for issuance of the order by a preponderance of evidence. Stadish v. Sup. Ct. (1999) 71 Cal.App.4th 1130, 1145 (protective order directed at a document demand). “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in … [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Emerson Elec. Co. v. Sup. Ct. (1997) 16 Cal.4th 1101, 1110 (protective order in connection with deposition).

II. Analysis

Defendants have issued 12 subpoenas duces tecum to various entities, two of which are Plaintiff’s former employers, and ten of which provide medical or mental health services to Plaintiff. All subpoenas cover a 5-year period. Plaintiff moves to quash the subpoenas under various theories.

A. Quash Medical Records

The burden is on Plaintiff as the party moving to quash to show the propriety of the objections. Plaintiff argues that the subpoenas are overbroad. Plaintiff also asserts privacy protections, which requires Plaintiff to establish the extent of the privacy invasion, and the Court must balance that intrusion against the necessity of the discovery.

Plaintiff asserts without any basis that third party privacy rights are implicated by the categories of documents requested. Plaintiff provides no analysis or example of how the subpoenaed documents, which all request information specific to Plaintiff, would somehow implicate documents infringing on the privacy of a third party. In the absence of any further specificity as to third party infringements, this argument fails.

Plaintiff’s contention of psychotherapist privilege is not drawn with any clearly articulated limitation. Plaintiff appears to seek exclusion of all mental health records. However, Plaintiff places portions of his mental health at issue, those matters are discoverable in spite of Evidence Code § 1014. Patterson v. Superior Court (1983) 147 Cal.App.3d 927, 930. The privilege is waived “with respect to those mental conditions the patient-litigant has disclose(d) by bringing an action in which they are in issue” In re Lifschutz (1970) 2 Cal.3d 415, 435 (internal quotations omitted). In this instance, Plaintiff through the ambiguity of his verified complaint has created the problem he now complains of. As is discussed further below, Plaintiff has not provided Defendants with any specificity such that these subpoenas may be drawn more narrowly, and given that the only articulated malady by Plaintiff relates to “stress” and “anxiety”, he has broadly asserted his mental harm. Discovery into that harm must proceed accordingly.

Contentions of overbreadth and privacy come to the same result from similar analysis. To overbreadth, Plaintiff contends that the request for all records from the last five years is unduly extensive and overbroad. As to time, Defendants show that Plaintiff’s assertions of medical issues started in 2019, and accordingly the request for 2020 and afterward appears sufficiently salient that it is not overbroad. As an initial step, privacy requires the Court to determine the level of intrusion into medical records. Medical records are subject to California constitutional privacy protections. The extent of the intrusion is clear, and analysis turns to the necessity of the discovery.

When a party “places (their) own mental state in controversy by alleging mental and emotional distress”, such matters are relevant. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. Defendants assert that the third-party discovery is necessary because Plaintiff has stymied attempts to obtain discovery by other avenues. Plaintiff vaguely asserts that he provided substantive responses in his interrogatories, citing his Exhibit 16 on Reply. Plaintiff provides no citation to a particular interrogatory response in this 183 page exhibit. The most illustrative interrogatory provided in the Exhibit appears to be Form Interrogatory § 204.1, which asks plaintiff to “Name and describe each disability alleged in the PLEADINGS.” See Declaration of Nathan Searcy in Reply, Ex. 16, pg. 49. Plaintiff provides a 19 page response to the interrogatory, in which he does not name a disability, but copies and pastes substantial portions of the complaint which provide no more specific a disability than “stress” or “physical disabilities”. This response is entirely non-responsive and fails to provide any described physical or mental conditions sufficient that Defendants could derive anything useful from it. Plaintiff argues on reply that he has not placed all his medical conditions at issue. Notwithstanding, he has pled medical conditions without specificity and continues to refuse to provide substantive responses in discovery. Had Plaintiff provided substantive interrogatory responses, the overbreadth of Defendants’ request would be clear, and the necessity of such discovery lessened. As it stands, Plaintiff’s boilerplate and unresponsive answers to the interrogatories has rendered such third-party discovery necessary. Defendants could not tailor their requests to be less broad, because Plaintiff refused to provide sufficient information for them to do so. The Court expects that Plaintiff will argue that the remedy for such deficient responses is for Defendants to have moved the Court to compel further responses. However, the Court is not aware of any authority that constrains this to be the only remedy for such discovery abuse. Defendants may have moved to compel Plaintiff to make such disclosures himself, but instead electing to discover such information from a third party appears equally meritorious. As such, the discovery appears entirely necessary to the case, and outweighs Plaintiff’s privacy protections.

Plaintiff also argues that he should be allowed to review any discovery beforehand to filter out irrelevant or overly personal documents. Plaintiff goes on to argue that such privilege log would sufficiently protect his private information while ensuring that Defendants received such documents as Plaintiff found appropriate. Plaintiff fails to address the full purpose of a privilege log, which is to withhold the document itself but still “provide sufficient factual information for other parties to evaluate the merits of that claim”. CCP § 2031.240. Plaintiff makes no effort to describe what information they would withhold or redact (or what they would allow), and Plaintiff’s discovery conduct thus far gives the Court little confidence that they would do so in good faith.

The motion to quash is DENIED as to the medical subpoenas.

B. Employment Subpoenas

Plaintiff also moves to quash discovery of employment records from his former employers who predate his employment with Patriot. Again, Plaintiff makes an assertion of third party privacy without elucidating any application thereon which would appear to be relevant. It is not persuasive. Similarly, Plaintiff argues that the requests are overbroad.

Defendants argue here that such matters are discoverable. What appears most salient is that Defendants ask for records from Plaintiff’s former employers, but Plaintiff worked at Patriot from 2019 onward until his termination at the end of 2024. Plaintiff asserts that these records are private. However, in California, employment records are discoverable material. Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 986 (where plaintiff seeks discovery of sexual harasser’s employment file, that file is discoverable), disapproved of on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644. Plaintiff’s cited authority, Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 526 disapproved on other grounds of by Williams v. Superior Court (2017) 3 Cal.5th 531, is entirely inapposite, relating to an employee seeking their own file post termination, and portions of that file being privileged due to third party privacy. This provides no guidance on whether Plaintiff’s prior employment records are discoverable.

Where the motion to quash finds traction is the lack of relevance. Defendants make no persuasive argument that a former employer’s records are relevant for mitigation. Defendants repeatedly provide citations to cases arguing that former employer’s records are relevant, but all the jurisprudence provided are unpublished federal cases, which themselves rely on further federal jurisprudence. Neither party provides the time period where Plaintiff worked at the former employers. While the burden is on Plaintiff to show why quashing is the appropriate course, the very fact that these records are more than six years old limits or eliminates any articulable expression of how they are relevant. Defendants argue that it can be relevant for the purposes of mitigation, but again, they have provided no California jurisprudence on the subject. Defendants elucidate no logic on how Plaintiff’s conduct for whatever reason might be relevant to his disability discrimination claims more than half a decade later, or to mitigation efforts. Subsequent employers are relevant to show mitigation under California law. Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502-1503. The Court could locate any jurisprudence displaying the relevance of previous employers. Defendants fail to express other reasons why the information would otherwise be discoverable. The Court fails to find basic relevance in this request, and so granting the motion to quash appears proper.

C. Sanctions

Plaintiff misstates the sanctions statute for motions to quash. Such sanctions are discretionary, not mandatory. See CCP § 1987.2 (“[T]he court may in its discretion award the amount of the reasonable expenses uncured in making or opposing the motion including reasonable attorneys’ fees, if the court finds the motion was made or opposed in bad faith or without substantial justification, or that one or more of the requirements of the subpoena were oppressive”). Given the various contentions Plaintiff makes without merit or support, the limited grant of the motion to quash does not justify granting Plaintiff sanctions. The most egregious discovery abuse at issue comes from Plaintiff. Plaintiff’s request for $1,400 in sanctions is DENIED.

III. Conclusion

Plaintiff’s motion to quash is GRANTED as to employment records from Acisure of California, LLC and Epic Insurance Brokers and Consultants. The motion is DENIED as to medical records. Plaintiff’s request for sanctions is DENIED.

Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

6. SCV-269230, Fidelity National Title Company v. Darling
Plaintiff Fidelity National Title Company (“Fidelity” or “Plaintiff”) initiated this action on August 6, 2021 filing the interpleader action for disbursement of escrow funds against defendants Heidi Darling (“Darling”), Debbie Darlene Shimon (“Shimon”), William McCarty, Jr. (“McCarty, Jr.” or “Cross-Complainant”) and Does 1-10, related to McCarty, Jr.’s objection to the sale of the property located at 6881 Day Road, Windsor, California (the “Property”). McCarty, Jr. has in turn filed the currently operative first amended cross-complaint (the “FAXC”) against Fidelity, Anthony Haberthur (“Haberthur”), Shimon, Sherri Cooper Johnston (“Cooper”), Darling (all together “Cross-Defendants”) Richard Carnation (now dismissed), and Does 1-20 alleging causes of action arising out of the sale of the Property.

This matter is on calendar for the motion by Cooper for summary judgment, or in the alternative adjudication of the FAXC under Cal. Code Civ. Proc. (“CCP”) § 437c. On September 30, 205, McCarty and Cooper provided a signed notice of settlement and a request to vacate the

October 8, 2025, MSJ hearing. At the parties’ request the hearing on Cooper’s MSJ is now VACATED.

7. SCV-273878, Parks v. Ensign
Plaintiff Michael Parks (“Plaintiff”), as successor-in-interest to decedent Robert Parks (“Decedent”), filed the presently operative first amended complaint (the “FAC”) against defendants Ensign Montgomery, LLC (“Montgomery”), Flagstone Healthcare North, Inc. (“Flagstone”), The Ensign Group (“TEG”), Luke Ensign (“Individual Defendant”), Ensign Services, Inc. (“ESI”, together with other named defendants “Defendants”), and Does 1-50, arising out of Defendants’ care of Decedent. The FAC contains causes of action for: 1) elder neglect/abuse; 2) negligence; 3 Violations of the Patient’s Bill of Rights; 4) Violations of California’s Unfair Competition Law under Business and Professions Code § 17200 et seq. (the “UCL”); 5) fraud; and 6) wrongful death.

This matter is on calendar for Defendants’ motion for judgment on the pleadings to the FAC pursuant to Cal. Code Civ. Proc. (“CCP”) § 438(c)(1)(B) for failure to state facts sufficient to constitute a cause of action as to the fifth cause of action. The motion is GRANTED with leave to amend.

I. Governing Law

A. Judgment on the Pleadings

A motion for judgment on the pleadings may only be made on the grounds specified in the statute. CCP § 438(c)(1). If the moving party is a defendant, the motion may be made on the grounds that the complaint does not state facts sufficient to constitute a cause or causes of action against the defendant. CCP § 438(c)(1)(B). A motion for judgment on the pleadings may be targeted to the entire complaint, or to any of the causes of action therein. CCP § 438 (c)(2)(A). “The fundamental question for the reviewing court is whether any cause of action is framed by the facts alleged in the complaint.” Surina v. Lucey (1985) 168 Cal.App.3d 539, 541, emphasis added; cited by Guild Mortgage Co. v. Heller (1987) 193 Cal.App.3d 1505, 1508 (“Our primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory.”). As with a demurrer, the challenged pleading must be “liberally construed, with a view to substantial justice between the parties” and the court should give the pleading “a reasonable interpretation, reading it as a whole and its parts in their context.” Code Civ. Proc. §452; see also, Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 (where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant.”).

The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice, and not upon other extrinsic evidence. CCP § 438 (d). Where the motion is based on matters the court may judicially notice (under Evidence Code §§ 452, 453), such matters must be specified in the notice of motion or supporting points and authorities. CCP § 438(d); compare Saltarelli & Steponovich v. Douglas (1995) 40 Cal. App. 4th 1, 5.

In examining the sufficiency of pleadings, all facts properly pleaded are treated as admitted, but contentions, deductions and conclusions of fact or law are disregarded. Serrano v. Priest (1971) 5 Cal.3d 584, 591. Similarly, opinions, speculation, or allegations contrary to law or facts which are judicially noticed are also disregarded. Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 702. Generally, the pleadings “must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.” Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1390; FPI Develop., Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 384. Each evidentiary fact that might eventually form part of a party’s proof does not need to be alleged. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal. 4th 861, 872.

If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (CCP § 438(h)(1).) In ruling on the motion, the trial court should, ordinarily, permit the party whose pleadings are attacked to amend if it so desires. Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 841–842. Leave to amend should generally be granted liberally where there is some reasonable possibility that a party may cure the defect through amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. However, “(i)f there is no liability as a matter of law, leave to amend should not be granted.” Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.

B. Fraud and Negligent Misrepresentation

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.

Fraud may also be accomplished though suppression of a fact by one who is bound to disclose it. Civ. Code § 1710 (3). “(T)he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612–613. “A failure to disclose a fact can constitute actionable fraud or deceit in four circumstances: (1) when the defendant is the plaintiff's fiduciary; (2) when the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.” Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255.

To establish reliance on fraud, reliance upon the truth of the fraudulent misrepresentation does not have to be a predominant factor, but it must be a substantial factor in the plaintiff’s subsequent conduct. OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864. Plaintiffs in fraud by concealment claims must show that if the information had not been omitted, plaintiff would have been aware of it and therefore would have behaved differently. Id. The pleading must be adequately specific to show actual reliance on the omission, and that the damages causally resulted therefrom. Id. California law “requires a plaintiff to allege specific facts not only showing he or she actually and justifiably relied on the defendant's misrepresentations, but also how the actions he or she took in reliance on the defendant's misrepresentations caused the alleged damages.” Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1499. Reasonable reliance may, where the facts are clear, be determined as a matter of law. Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 22. “Reliance on an alleged misrepresentation is not reasonable when plaintiff could have ascertained the truth through the exercise of reasonable diligence.” Rowland v. PaineWebber Inc. (1992) 4 Cal.App.4th 279, 286 (disapproved on other grounds by Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415).

“(T)o be actionable, a misrepresentation must be of an existing fact, not an opinion or prediction of future events.” Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769. The exceptions to this rule are “(1) where a party holds himself out to be specially qualified and the other party is so situated that he may reasonably rely upon the former's superior knowledge; (2) where the opinion is by a fiduciary or other trusted person; (3) where a party states his opinion as an existing fact or as implying facts which justify a belief in the truth of the opinion.” Borba v. Thomas (1977) 70 Cal.App.3d 144, 152. “(A) statement that is quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery.” Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311, quoting Newcal Industries, Inc. v. Ikon Office Solution (9th Cir.2008) 513 F.3d 1038, 1053.

“‘[I]n California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] “Thus ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.’[Citation.] [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993; see Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166-1167 [“ ‘the plaintiff must allege the names of the persons who made the representations, ... to whom they spoke, what they said or wrote, and when the representation was made’ ”]; see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. “However, the 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.” Daniels, at p. 1167, internal quotations and citations omitted; see Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158. In pleading fraud claims, “(e)very element of the cause of action must be alleged in full, factually and specifically.” Id. at 1249. In general, as with showing fraud, oppression, or malice sufficient to support punitive damages, while plaintiffs must plead facts, with respect to intent and the like, a “general allegation of intent is sufficient.” Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 632; see Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 (in pleading promissory fraud, a general allegation that the promise was made without intent to perform was sufficient); see also Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 608 (pleading that a hospital intentionally withheld that a health practitioner was operating without a medical license was sufficient to meet the pleading requirements for intent).

“The elements of a negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’” Borman v. Brown (2020) 59 Cal.App.5th 1048, 1060; Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1252; see also, Hasso v. Hapke (2014) 227 Cal.App.4th 107, 127; Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196. A cause of action for negligent misrepresentation sounds in fraud and therefore, “each element must be pleaded with specificity.” Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166; see also, Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14 [the elements of negligent misrepresentation “must be pled with particularity…”]. This means “a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant…the names of the persons who made the representations [and] their authority to speak on behalf of the corporation...” West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793; see also, Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Thus, “general and conclusory allegations do not suffice,” and “the policy of liberal construction of the pleadings...will not ordinarily be invoked to sustain a pleading defective in any material respect.” Lazar, supra, 12 Cal.4th at 645.

C. Constructive Fraud

Similar to fraud by concealment, constructive fraud derives from any breach of duty which, without any fraudulent intent, results in advantage to the person in fault by misleading another to that person’s prejudice. Civil Code § 1573. California’s jury instructions provide the elements of constructive fraud as: 1) a fiduciary relationship; 2) defendant acted on plaintiff’s behalf; 3) defendant knew or should have known the withheld information, or disclosed information which was misleading; 4) defendant mislead the plaintiff; 5) plaintiff suffered harm; and 6) defendant’s conduct was a substantial factor in plaintiff’s harm. Judicial Council of California Civil Jury Instruction (“CACI”) 4111, Constructive Fraud. As defined in caselaw, “(t)he elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn. 14. Whether statements constitute constructive or actual fraud depends on the facts and circumstances of the case. Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415. “Like an action for fraud, constructive fraud must be pled with specificity.” Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1250. In pleading fraud claims, “(e)very element of the cause of action must be alleged in full, factually and specifically.” Id. at 1249. However, as to the how, when where or by what means a disclosure never happened, these are not specified elements of a constructive fraud claim.

“Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client [citation], whereas a ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. [Citations.] The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.” Hudson v. Foster (2021) 68 Cal.App.5th 640, 663 (internal quotations omitted). A confidential relationship is defined by four essential elements: “1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272, quoting Langford v. Roman Catholic Diocese of Brooklyn (1998) 177 Misc.2d 897, 900, 677 N.Y.S.2d 436. “Before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another or must enter into a relationship which imposes that undertaking as a matter of law.” City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386 (internal quotations omitted). “a confidential relationship ‘is not created simply by the receipt of confidential information.’” Dino v. Pelayo (2006) 145 Cal.App.4th 347, 356. “Instead, its creation generally hinges on ‘an unequal relationship between parties in which one surrenders to the other some degree of control because of the trust and confidence which he reposes in the other.’” Ibid, quoting Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272, fn.6.

II. Request for Judicial Notice

Defendants have filed an unopposed request for judicial notice of documents within this case. It is GRANTED.

III. Analysis

A. Timeliness of the Motion

Plaintiff asserts that the motion is untimely. CCP § 438 says that a motion cannot be brought “30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” CCP., § 438 (e). However, this statute alone is hardly conclusive as to the issue. The statute only bars the motion “unless the court otherwise permits.” Ibid. “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877; Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. This Court has granted two continuances of trial. The first order noted that “all deadlines relating to the matter, including discovery and all other issues, will be governed by and calendared from the new trial date as if the new trial date were the first trial date.” Court’s 8/12/2024 Order, pg. 2:9-11. The second order was equally clear, ruling that “(a)ll discovery and pre-trial deadlines are now pegged to the new trial date.” Court’s 8/22/2025 Order, pg. 6:7-8. The Court’s orders clearly move the date for any pre-trial deadline, of which the time requirements of CCP § 438(e) would appear to be included. Plaintiff provides no authority to the contrary. The motion is timely.

B. Affirmative Misrepresentations

Defendants demur to the fifth cause of action for fraud under each of the fraud theories that Plaintiff has incorporated into their cause of action. The Court first addresses the various allegations of affirmative misrepresentations which Defendant regards as insufficient to support a fraud cause of action. Plaintiffs rely on several alleged misrepresentations to constitute separate alleged frauds under a single cause of action. The Court examines each in turn for sufficiency.

Defendants argue on two bases that Plaintiff’s allegations regarding misrepresentations to administrative agencies is not sufficient to state a fraud claim. First, Defendant contends that the natures of the misrepresentations to the state agencies which otherwise would have prevented Defendants from being licensed are not actionable. Plaintiff, citing to Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1081 and McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 425, avers that the nature of Defendants’ allegedly false statements to licensing agencies that they would correct statutory violations are themselves actionable by Plaintiff as fraud. Neither of these cases provides such a specific articulation.

Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1077 provides an extension of black letter law, derived from injury to a plaintiff from representations to a third party. In accordance with that, “plaintiff need only allege that her injury resulted from action that the recipient of defendants' misrepresentations took in reliance on them.” Id. at 1085. However, in that case, the failure to make the disclosure was subject to a direct statutory violation. More relevant, the facts were clear, the resultant omission specific and expressed in a manner capable of causal relation. The defendants had made effusive representations as to an individual’s redtails and character in letters of recommendation. Id. at 1082. The letters “offered general and unreserved praise for Gadams's character and personality (e.g., ‘dependable [and] reliable,’ ‘pleasant personality,’ ‘high standards,’ ‘relates well to the students’).” Ibid. Our high court concluded that defendants also “were obliged to disclose all other facts which ‘materially qualify’ the limited facts disclosed.” Ibid. Nothing about Randi W. avers to be so specific as Plaintiff claims that affirmative misrepresentations to an administrative agency is sufficient to describe a fraud claim. Rather, it is a cause of action derived from classical tort principles of harm to a plaintiff by misrepresentations to third parties as described by Restatement Second of Torts section 310 or 311. Ibid. This is a general legal principle, and nothing purports to extend this specifically to misrepresentations to administrative agencies regarding licensing requirements.

Contrary to Plaintiff’s argument, McCall does not dispositively show that a Randi W. cause of action is viable here. That court, in a scant three sentence paragraph, makes mention of Randi W. in the specific context of determining whether the allegations at issue in the case required plaintiff to exhaust Medicare’s exclusive review process. McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415 and 425-426. The sufficiency of the allegations is not examined in detail. The court merely noted that plaintiff’s allegations regarding “misrepresentations regarding the nature or extent of the services it intends to provide, either in its application for HMO licensure to the California Department of Corporations or in its marketing materials disseminated to potential enrollees” with foreseeable injury to enrollees were alleged, and that such claims “may be stated” as fraud or a Randi W. cause of action. Id. at 425. Given the other issues with the cause of action, the Court need not (and perhaps cannot) determine the sufficiency of allegations of liability due to misrepresentations to third parties.

As to the second contention, Defendants argue that these statements were “future promises”, which are not capable of being proven through Defendants’ mere nonperformance. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481. Plaintiff argues in turn that the statements were enforceable if Defendants did not intend to perform the actions necessary to bring themselves into compliance. See CACI 1902; Civil Code § 1710 Here, the defect lies, as this contention is made without any factual specificity which would allow the Court to determine the factual nature of the assertions. This matter comes before the Court having been set for trial, and with significant discovery having been performed (with more to be adjudicated by the Court). The very nature of the issues arising from an administrative agency supports the idea that Plaintiff can state the necessary specificity that both the Defendants and the Court can determine the specific alleged misrepresentations. The vague execution of the allegation means that the Court cannot determine whether the statement was sufficient to be a future promise to perform.

As to the contention that Defendants misstated their star rating with CMS, that contention either fails because Plaintiff admits facts sufficient to show there is no falsity, or the claim lacks adequate specificity to make clear that the statement was false based on Plaintiff’s admitted facts. Plaintiff alleges that Defendants both had a banner at the entrance, and a statement on their website averring that they had received 5 stars from CMS. Plaintiffs subsequent paragraph admits that Defendants do have five stars in one of the three rated categories, for quality. Plaintiff’s allegation does not make clear that the statement from Defendants misstates the five-star rating given that Plaintiff makes an express allegation that one category is rated at five stars. It appears salient to as what is the precise nature of the statement made on the banner or the website, given the fraud pleading standards. The image of the banner cuts against Plaintiff’s argument, showing that the five-star rating advertised is specifically for “quality”, the very category for which Plaintiff concedes Defendants have a five-star rating. FAC ¶ 5-6. This is not an adequately pled incident of misrepresentation of fact.

Plaintiff also alleges that Defendants have posted their own reviews of their facility, falsely inflated their rating and leading to individuals relying on the nature of the reviews. Certainly, the dubious moral nature of this alleged practice is clear. However, Plaintiff provides no legal authority supporting the principle of fraud claims derived from falsified reviews. Reviews commonly may comprise either representations of fact, or opinion. Certainly, the review presented takes the form of opinion. See FAC ¶ 9, (Defendants have “an amazing team of professionals.”). Only facts are actionable for fraud. Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769. While there are exceptions applicable to opinions, Plaintiff presents none of the applicable exceptions as to the misrepresentations contained in the FAC. Otherwise, such statements that do not make claims about specific or absolute characteristics of a product are non-actionable “puffery”. Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311. This conduct might be actionable as pled under alternative theories, but Plaintiff has not presented the allegations in a form where it constitutes fraud. Accordingly, this fails to support Plaintiff’s cause of action.

Therefore, Plaintiff has failed to plead an affirmative misrepresentation sufficient to support a cause of action for either fraud or negligent misrepresentation.

C. Constructive Fraud and Fraudulent Concealment

Defendant also demurs to Plaintiff’s theories that failure to disclose certain facts would constitute actionable fraud.

First to fraud by concealment, Plaintiff has not pled any concealment or suppression that would make such a theory actionable. While Plaintiff makes many allegations regarding what Defendants should have disclosed, there is no allegation about a concealed or suppressed fact. All the factual allegations (posed in a non-conclusory manner) relate to facts that Defendant failed to disclose. FAC ¶ 87-88. These are materially different theories of fraud. Fraud by concealment is inadequately pled.

As to failure to disclose, the issue instead turns to whether Defendants had an obligation to do so. Defendants, in an attempt to illustrate the strict legal scope of fiduciary duties, and how they can be applied to health care providers, cites to Moore v. Regents of University of California (1990) 51 Cal.3d 120. Plaintiff raises that Moore does not directly address the issue of a residential care facility, and whether such care custodians are fiduciaries. Nonetheless, Plaintiff’s cited cases are significantly less applicable. Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1130 relates to a case where there is a clearly defined fiduciary duty between an attorney and their client. Plaintiffs’ citation to Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384, does not correct the issue, as it merely states that the how, to whom, when or where may be pled generally, as pleading the non-existence of an action is unduly difficult to plead with specificity. Plaintiff must still plead the necessary duty to disclose, and the withheld information with specificity.

Moore v. Regents of University of California (1990) 51 Cal.3d 120, 133, in contrast, is clear that the fiduciary duty is not owed directly to a patient from a hospital. Rather, if there is any liability resultant from fiduciary duties, it must flow from theories of respondeat superior from one who has a fiduciary duty, such as a doctor. Ibid. Examining the allegations of the FAC, Plaintiffs do not draw a clear line from a fiduciary to Defendants. Plaintiffs do not allege facts to support a fiduciary relationship not otherwise found in jurisprudence.

General principles of fiduciary duties support Defendants’ construal. Fiduciary relationships must be entered into intentionally, requiring undertaking action on behalf of another, or a relationship which is fiduciary in nature as a matter of law. City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386. While Plaintiff contends that such fiduciary duties exist between “care custodians” and elder patients, they provide no authority extending fiduciary duties to residential care facilities based on the factual circumstances Plaintiff has pled. Based on the facts as pled, the services provided (or improperly omitted) to Decedent by Defendant were medical in nature, and therefore Defendants sit in the same position as a hospital.

Nor does Plaintiff adequately show that the necessary elements of a confidential relationship[1] are pled. First, while not preclusive, it appears telling that a care custodian (which the Court has already found sufficiently pled) is defined by statute (Welfare and Institutions Code § 15610.17), but that there is no case equating a confidential relationship to a care custodian in any published jurisprudence. Cases where both are found have required financial relationships, such as an ombudsman. Estate of Shinkle (2002) 97 Cal.App.4th 990, 993 disapproved of on other grounds by Bernard v. Foley (2006) 39 Cal.4th 794. The FAC does not allege facts sufficient to show that Decedent and Defendants had “an unequal relationship between parties in which one surrenders to the other some degree of control because of the trust and confidence which he reposes in the other.” Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272, fn. 6. No surrender of rights is described sufficient for the Court to find a relationship which exceeds that of a normal care custodian.

The motion for judgment on the pleadings as to the third cause of action is DENIED.

D. Agency

In scant sentences at the end of sections of argument, Defendants raise that Plaintiff fails to allege agency sufficiently to apply to Defendants other than Montgomery. Plaintiff makes allegations of financial interconnection, direction to each other for financial gain, and jointly agreed on policies that allegedly resulted in the tortious conduct. See FAC 24-28. These allegations seem sufficiently factual to plead the issue of agency. The Court denies the motion on this theory.

E. Leave to Amend

Given the sheer breadth of Plaintiff’s fraud cause of action, and that those theories in some part fail due to a lack of specificity, this is something which Plaintiff may be capable of remedying through amendment. The current pleading is only the first amended complaint as to the substance of the allegations. At this juncture, leave to amend is proper.

IV. Conclusion

Based on the foregoing, the motion for judgment on the pleadings is GRANTED WITH LEAVE TO AMEND as to the FIFTH CAUSE OF ACTION. Plaintiff shall file an amended complaint within 30 days of notice of this order. CCP § 438(h)(2).

Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

[1] Plaintiff conflates fiduciary and confidential relationships, and while either may support constructive fraud, they are subject to different elements.

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

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