Tentative Rulings

The Tentative Rulings for Tuesday, March 24, 2026, are:

Re:                 In the Matter of Mcafee, Kenneth Scott

Case No.:   VPR050536

Date:            March 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Petitioner Virginia Adams Counsel’s Motion to Be Relieved as Counsel

Tentative Ruling: To grant the motion

Facts

On February 6, 2026, Petitioner’s Counsel Matthew Bixler filed a motion to be relieved as counsel as to Petitioner Virginia Adams. Petitioner’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Petitioner’s Counsel indicates, by declaration, service of these documents by mail.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, as well as a supplemental declaration attached to the Notice, and uses general terms without compromising confidentiality and indicates that counsel has attempted to obtain a substitution by stipulation, but that Defendant has refused due to the lack of responsive communication with counsel.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail on at the last known address of Petitioner.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Petitioner’s Counsel has complied with this requirement.

Therefore, the Court grants Petitioner’s Counsel’s Motion to Withdraw as to Petitioner. If no one requests oral argument, the Court is prepared to sign the order entitled “Order Granting Attorney’s Motion to be Relieved as Counsel - Civil” that the moving party lodged with the Court. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                In the Matter of McAfee Family Revocable Trust Established October 22,2008

Case No.:   VPR053329

Date:           March 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Petitioner Virginia Adams Counsel’s Motion to Be Relieved as Counsel

Tentative Ruling: To grant the motion

Facts

On February 6, 2026, Petitioner’s Counsel Matthew Bixler filed a motion to be relieved as counsel as to Petitioner Virginia Adams. Petitioner’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Petitioner’s Counsel indicates, by declaration, service of these documents by mail.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, as well as a supplemental declaration attached to the Notice, and uses general terms without compromising confidentiality and indicates that counsel has attempted to obtain a substitution by stipulation, but that Defendant has refused due to the lack of responsive communication with counsel.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail on at the last known address of Petitioner.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Petitioner’s Counsel has complied with this requirement.

Therefore, the Court grants Petitioner’s Counsel’s Motion to Withdraw as to Petitioner. If no one requests oral argument, the Court is prepared to sign the order entitled “Order Granting Attorney’s Motion to be Relieved as Counsel - Civil” that the moving party lodged with the Court. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Rodriguez, Moses vs. Courshina, LLC

Case No.:   VCU324354

Date:            March 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Quash/Modify Deposition Subpoena

Tentative Ruling: To modify the subpoena as to the time period; to deny the remainder of the motion.

Facts

In this matter, Plaintiff alleges a number of habitability issues arising from a rental unit locate at 4944 W. Westgate Court, Visalia, CA 93277. Plaintiff entered into the rental agreement in 2014.  

Plaintiff has sued Defendants Courshina, LLC (“Courshina”) and D.E. Equity Group, Inc. (“D.E. Equity” seeking recovery of actual and special damages, including emotional distress, discomfort and annoyance, bodily injury, pain and suffering, loss of personal property, overpayment of rent, and out-of-pocket expenses. (Complaint ¶60.) Additionally, Plaintiff seeks treble damages in the amount of $756,900.00 pursuant to California Civil Code section 3345 on the grounds that Plaintiff is a “disabled person” as that term is defined by California Civil Code section 1761(g) in that PLAINTIFF has a physical or mental impairment that substantially limits one or more major life activities. (Prayer ¶9.)

Further, Plaintiff alleges suffering “bodily injury and/or physical sickness including but not limited to exacerbation of his HIV+ due to exposure to mold, thickening of the outer heart without accompanying fluid, most likely due to scarring from an infection caused by the mold, asthma, a constant cough, phlegm, watery eyes when home, GERD issues, swollen lymph nodes in the abdomen, fatigue, irritability, brain fog, and lack of motivation.” (Complaint ¶37.)

On or about January 5, 2026, Defendant D.E. Equity served a subpoena for production of records held by Visalia Medical Clinic, Advanced Rheumatology And Arthritis Center, and Kaweah Health Medical Center, seeking:

“Any and all documents, records, and itemized statement of charges, pertaining to the care, treatment and examination of the individual named herein including but not limited to all office, emergency room, inpatient and outpatient charts and records, correspondence records, patient questionnaires, photographs, and sign-in/sign-out sheets. All physical therapy including descriptions of exercises prescribed and documentation of the date and time of patient's appointments. Also, any and all medical bills, medical billing records, liens, explanation of benefits, correspondence relating to billing, records showing write-offs of amounts billed, records of payment(s) and payment transactions by insurance carriers, governmental entities, and/or other person or entity from any and all sources from January 1, 2016 to present.”

Plaintiff seeks to modify the subpoena to medical records which relate to treatment of Plaintiff between the dates the injuries arose: January 1, 2021 through April 15, 2025 and to limit the scope of the subpoena to treatment related to issues arising out of the tenancy: exacerbation of positive HIV-positive status, cardiac findings; Asthma and/or chronic or intermittent cough and phlegm; Watery eyes; Gastroesophageal reflux disease (GERD) symptoms; Swollen abdominal lymph nodes; Fatigue, irritability, brain fog, and lack of motivation.

In opposition, Defendant argues Plaintiff has placed his physical health at issue via the claims asserted in this case, including that the habitability issues caused or exacerbated various medical conditions and therefore the subpoena properly seeks records throughout the tenancy.

Authority and Analysis

The Court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. 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." (Code Civ. Proc § 1987.1.) The court, upon motion reasonably made by the party, may rule upon motions for quashing, modifying or compelling compliance with subpoenas. (Lee v. Swansboro County Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.) There is no meet and confer requirement in bringing a motion to quash. (Code Civ. Proc. § 1987.1.)

“[A]ny 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.” (Code Civ. Proc., § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement …’ (citation).” These rules are applied liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

Here, Plaintiff seeks to quash the subpoena entirely or limit the scope to specific areas of her body which she claimed were injured in the incident.

To start, the Court recognizes that the constitutional right of privacy extends to a party’s medical records.  (John B. v. Superior Court (Bridget B.) 38 Cal.4^th 1177, 1198.) “[A] individual’s right of privacy encompasses not only the state of his mind, but also his viscera…” (Board of Medical Quality Assurance v. Gheradini (1979) 93 Cal.App.3d 669, 679.)

However, the law recognizes an implicit waiver of a plaintiff’s constitutional rights to privacy for medical records directly relevant to a plaintiff’s claim: “In determining whether one has waived the right of privacy by bringing suit, our Supreme Court has noted that although there may be an implicit partial waiver,  the scope of such waiver must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by fear of exposure of private activities.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.)

The court in Davis continued:

“An implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit. [citation omitted.] There must be a compelling and opposing state interest justifying the discovery. [citation omitted.] Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a careful balancing of the compelling public need for discovery against the fundamental right of privacy. [citation omitted.] The scope of any disclosure must be narrowly circumscribed, drawn with narrow specificity, and must proceed by the least intrusive manner. [citation omitted.]” (Id.)

“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery. (Id. at 1017.) Whenever possible, judges should consider the possibility of a protective order limiting the intrusion or disclosure, for assuaging privacy concerns. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1432.)

To start, the Court agrees to modify the relevant time period for the subpoena to January 1, 2021 through April 15, 2025 as requested. Though the Court recognizes the tenancy began July 1, 2014 and although the complaint alleges there were numerous habitability issues throughout the tenancy, the specific allegations as to identifiable habitability breaches start in 2021.

However, as to limiting the scope of the records, the Court has no evidentiary basis before it to do so. The complaint alleges, as indicated above, Plaintiff seeks damages for “emotional distress, discomfort and annoyance, bodily injury, pain and suffering…” and treble damages due to Plaintiff’s status as having a physical or mental impairment. Additionally, the allegations in paragraph 37, while expressly listing a number of injuries, include the phrase “…including but not limited to…”  Plaintiff’s attempt to limit the scope of the subpoena, therefore, lacks a showing that Plaintiff has limited the areas of recovery.

As such, the Court is inclined to modify the subpoena as to January 1, 2021 through April 15, 2025 and make no other modifications thereto.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Estes, Jeremy Lee vs. Cheema Transport, Inc.

Case No.:   VCU289306

Date:           March 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Final Compliance re: Distribution of Settlement

Tentative Ruling: No documents appear filed in connection with this motion. The Court requires a declaration from the settlement administrator as to distribution of the settlement fund. Therefore, the Court continues this motion to April 28, 2026, 8:30 am., Dept. 2.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Zuniga, Nora vs. Ruiz Foods Exports, Inc.

Case No.:   VCU311139

Date:           March 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion to Compel Further Responses to Form Interrogatories (General), Set One, Form Interrogatories (Employment), Set One, and Requests For Production of Documents, Set One; and for sanctions.

Tentative Ruling: To find the motion to compel further responses moot via Defendant’s agreement to provide further supplemental responses; To sanction Defendant Ruiz and counsel of record, jointly and severally, in the amount of $2,800 due no later than thirty (30) days from the date of this hearing.

Facts

Plaintiff sues for discrimination, harassment, and retaliation against Defendants Ruiz Foods and Odon Gonzalez.

On January 27, 2025, Plaintiff served Defendant Ruiz with Form Interrogatories, Special Interrogatories, Request for Admissions and Request for Production of Documents.

On February 28, 2025, Defendant served its responses.

The parties met and conferred and agreed to extensions to provide amended responses and file, if necessary, motions to compel further responses.

On October 16, 2025, Defendant Ruiz served supplemental responses and a document production identified as Bates Nos. RUIZ000001–RUIZ000228. These supplemental responses were not verified.

Plaintiff argues that these supplemental responses were deficient as follows:

• Interrogatory responses consisting of objections only, improper objections, and lacking any substantive information;
• Requests for Production Responses asserting objections without providing substantive information, and without confirming whether responsive documents were withheld;
• Assertions of privilege without a corresponding privilege log;

The parties again met and conferred, with Defendant Ruiz agreeing to provide supplemental responses by December 29, 2025. No such responses, however, were received.

On January 22, 2026, Plaintiff’s counsel notified Defendant that absent compliant supplemental responses by January 27, 2026. Thereafter, on February 26, 2026, Plaintiff filed this motion to compel further responses to Form Interrogatories (General), Set One, Form Interrogatories (Employment), Set One, and Requests For Production of Documents. Further, Plaintiff requests $25,050 in sanctions.

In opposition, Defendant indicates that counsel lost contact with the representative of Defendant who was assisting with these responses because that person retired and that Defendant has agreed to provide supplemental responses.

Given Defendant’s agreement to provide supplemental responses, the Court finds the motion to compel further responses moot.

Sanctions

The Court notes that the sanctions issue is not moot, as California Rule of Court, rule 3.1348(a) states, in part, the following:

“…The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though…the requested discovery was provided to the moving party after the motion was filed.”

Therefore, the Court examines the sanctions issue.

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as:  making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.  (Code Civ. Proc. § 2023.010.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., §§2030.300(d), 2031.300(c).)

Here, Defendant’s counsel indicates a loss of contact with Defendant’s representative as to responding to discovery and providing supplemental responses. However, this discovery has been pending for over a year. The Court, therefore, will award sanctions.

However, as an initial matter, both the hourly rates and number of hours are excessive. The hourly rates proposed are $450 per hour, $1050 per hour and $1,200 per hour. The Court will set the hourly rate at $350 per hour as an appropriate hourly rate for similar business litigation in Tulare County.

Plaintiff indicates they have expended over 30 hours on this motion. The Court will reduce this to 8 hours based on its review of the pleadings filed.

Therefore, the Court will award $2,800 in sanctions against Defendant Ruiz and counsel of record, jointly and severally, due no later than thirty (30) days from the date of this hearing.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Lopez, Roselia vs. Selene Finance, L.P.

Case No.:   VCU329543 

Date:           March 24, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:     Demurrer

Tentative Ruling:  The court sustains the demurrer, with ten days leave to amend, to the second cause of action, and overrules the demurrer to the first and third causes of action. 

Defendant in this action, Selene Finance, L.P., demurrers to plaintiff Roselia Lopez’s complaint.  Lopez’s complaint effectively frames a single claim based on a violation (plus incidental other violations) of the Homeowner’s Bill of Rights (HBOR), which is iterated in three causes of action.  

Lopez alleges Selene Finance, an alleged mortgage servicer, foreclosed on her home while her submitted application for a loan modification remained pending/under review. 

First Cause of Action: HBOR Violations

Proceeding with foreclosure on a home after the homeowner submits a complete application for a loan modification is a “practice known as ‘dual track foreclosure,’ and is specifically prohibited by Section 2923.6(c) of the HBOR.”  (Bingham v. Ocwen Loan Servicing, Inc. (N.D.Cal. Apr. 16, 2014, No. 13-CV-04040-LHK) 2014 U.S.Dist.LEXIS 53782, at *7 (Bingham).)

While engaging in “dual track foreclosure” expressly violates subdivision (c) of section 2923.6, the practice will, generally, also result in other incidental violations of the HBOR.  For example, when a mortgage servicer, proceeds with foreclosure while a loan modification application remains pending, it necessarily does so without having made a “written determination that the borrower is not eligible for a … loan modification” (§ 2923.6, subd. (c)(1)); without having sent “a written notice to the borrower identifying the reasons for denial” (id., subd. (f)); and without having provided the borrower the requisite 30 days to appeal a denial (id., subd. (e) & (f)). 

Here, Lopez, in her first cause of action, asserts a “dual tracking” violation of section 2923.6, subdivision (c)(1) the HBOR, and further violations of the HBOR based on the above-described related HBOR violations that incidentally result from “dual tracking” practices (i.e., violations of § 2923.6, subds. (c)(1), (d), (e) & (f).)  Lopez also alleges Selene Finance failed to establish a single point of contact during the foreclosure prevention process in violation of section 2923.7 of the HBOR. 

Selene Finance challenges this first cause of action for lack of particularity in Lopez’s supporting allegations.  After correctly identifying the general rule that statutory causes of action must be plead with particularity, however, Selene Finance goes on to provide pincites to what appear to be inapposite authorities. 

Coming closest to stating a relevant point of law, in one of the several cited cases, the cited Court of Appeal criticizes allegations in support of an unfair competition claim under Business and Professions Code section 17200 for not being “clear and precise,” but the court does not otherwise mention or discuss the rule of particularity in pleading statutory causes of action.  (See provided pincite to Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 929 [216 Cal.Rptr. 345, 702 P.2d 503]

None of the other pincites Selene Finance provides appear to involve any statement, citation or discussion of authority even tangentially related to the particularity rule.  (See pincites to Winterbower v. Wells Fargo Bank, N.A. (C.D.Cal. Mar. 27, 2013, No. SA CV 13-0360-DOC-MLGx) 2013 WL 1232997, *3 [providing case background and a general statement of Rule 65 of the Federal Rules of Civil Procedure pertaining to preliminary injunctive relief; Hart v. Bayview Loan Servicing (C.D.Cal. Sep. 19, 2016, No. 2:16-cv-01309-CAS(AFMx)) 2016 WL 5334647, *5 [pincite directs to a portion of a footnote addressing judicial notice]; Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 923 [290 Cal.Rptr.3d 834, 505 P.3d 625] [discussing the economic loss rule as between contracting parties].)

In any event, Selene Finance’s argument is (a) that particularity is required in pleading claims under the HBOR (with inapposite authority provided in support), and (b) a naked assertion that Lopez’s allegations are not, according to Selene Finance, specific enough. 

Selene Finance highlights Lopez’s allegations that she sent her loan modification application “[i]n or around May 2025,” which was confirmed by her prior mortgage servicer, Select Portfolio Servicing, Inc. (SPS, Selene Finance’s alleged “predecessor-in-interest”), and that Lopez does not include allegations specifically confirming Selene Finance’s receipt. 

Lopez alleges, “[i]n or around June 2025, SPS … transferred the servicing rights to Defendant,” and after, “Defendant had an obligation to consider Plaintiff’s application,” and, further, that she “faxed and mailed the completed loan modification to Defendant in an abundance of caution to ensure its possession of the complete application.”  Lopez further alleges, more generally, that she “provided Defendant with a complete application for a first lien loan modification.”

Selene Finance contends Lopez’s omission of an allegation that it “confirmed receipt of a complete loan modification application is critical” because section 2923.6, subdivision (c) “does not state that a determination of completeness by one servicer automatically binds all successor servicers.” 

What section 2923.6, subdivision (c) does state, however, is that “[i]f 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.”

The court reads this statute to support that Lopez’s allegations are sufficient, at the demurrer stage, to support the asserted HBOR violation.  Lopez alleges that she submitted a complete application for a first lien loan modification to her then mortgage servicer, timely provided all documents required for review as of July 2025, and additionally provided these documents directly to Selene Finance, who took over servicing of the mortgage from SPS, and Selene Finance conducted a trustee’s sale while the complete first lien loan modification application was pending.

The court finds the dispute concerning whether Lopez properly submitted her loan application, notwithstanding the allegations of her complaint, is a factual matter not properly resolved at the demurrer stage.  Nothing in Selene Finance’s briefing suggests that Lopez’s allegations, as a matter of law, fail to establish that she submitted her loan application as required to establish a violation of section 2923.6, subdivision (c).

As to the remainder of Selene Finance’s arguments, the court will not guess what the rule of particularity requires in the HBOR context, or, rather, construct arguments for the defendant as to what that rule requires, in the face of what appears to be an entirely deficient discussion of relevant authority. 

The court observes that the rule that statutory causes of action must be pleaded with particularity has been recognized by our higher courts in the government tort liability context, where liability must be based on a statute (see, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [221 Cal.Rptr. 840, 710 P.2d 907] (Lopez); City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 138 [276 Cal.Rptr.3d 332] (City of Los Angeles)), and the rule has been observed to apply to claims under the Elder Abuse Act (see e.g., Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [11 Cal.Rptr.3d 222, 86 P.3d 290]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407 [129 Cal.Rptr.3d 895]), as well as to claims under California’s Unfair Competition Law (see e.g., Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261 [248 Cal.Rptr.3d 61]; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615 [17 Cal.Rptr.2d 708]).

And, though no authority is provided for applicability of the rule in the HBOR context, the court is inclined to find the particularity rule applies to HBOR claims—such claims being statutory claims.  It is hard pressed, however, to derive that the rule requires anything more than particularly alleging, such as in the governmental liability context, the facts material to the existence of statutory liability.  (Lopez, supra, 40 Cal.3d at p. 795; City of Los Angeles, supra, 62 Cal.App.5th at p. 138.)

It is not self-evident that Lopez fails in that regard here.  She alleges she provided a complete application for a first lien loan modification and timely provided all documents required for review as of July 2025, and Selene Finance conducted a trustee’s sale while the complete first lien loan modification application was pending. 

Also, though essentially inferable from the above allegation, Lopez alleges Selene Finance did not provide her “required notifications in violation of Civil Code §2923.6(c)(1)” [mortgage servicer “shall not record a notice of default or notice of sale or conduct a trustee’s sale until … [t]he 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) [providing a 30 day period for appeals] has expired”]; did not provide her “the statutory wait time pursuant to Civil Code §§2923.6(d) and (e)” [subdivision (d) provides a 30 day appeal period; subdivision (e) provides that, “[i]f the borrower’s application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee’s sale until the later of: [¶] (1) Thirty-one days after the borrower is notified in writing of the denial. [¶] (2) [Or, the appeal process has been exhausted].”]; and “did not provide any written notices compliant with Civil Code §§2923.6(d) and (f) [see, supra, re: subd. (d) appeal period; subdivision (f) provides that, following denial of the borrower’s application, “the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial …”]. 

Additionally, as noted, Lopez alleges Selene Finance “failed to establish a single point of contact who fulfilled its duties pursuant to Civ. Code §2923.7(b)(1)-(5).”

None of these allegations are, in any obvious respect, insufficiently particular.  They both frame the specific statutory violations at issue and set forth the material propositions of fact in a manner testable through discovery and, later, at trial. 

Accordingly, the demurrer is overruled as to the first cause of action. 

Second Cause of Action:  Wrongful Foreclosure

Lopez’s complaint, beyond the HBOR cause of action, additionally includes what preliminarily appears to be an entirely duplicative wrongful foreclosure cause of action. 

Defendant’s first argument against the HBOR cause of action is that the second cause of action “rises or falls with the HBOR theory, which fails for the reasons stated above.”  This argument fails for the reasons stated above here. 

Defendant additionally argues, though, that the HBOR cause of action necessarily fails because plaintiff was required, but failed, to “allege tender.” 

Here, the question of whether the wrongful foreclosure claim is the same claim as the HBOR claim, and, if not, the respect in which it is distinct, becomes significant. 

To begin, the wrongful foreclosure claim appears duplicative of the HBOR claim in that, as pled, Lopez seeks vindication of the same alleged primary right violation—the “dual tracking” and related HBOR violations alleged in the first cause of action—which, accordingly, tends to support that Lopez only states a single cause of action.  (See Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 335 [226 Cal.Rptr.3d 267] (Choi).)

What appears to be at work, here, however, is an attempt by Lopez to subtly frame a claim for emotional distress damages, which are not available in her first cause of action for violations of the HBOR.  (See Cornejo v. Ocwen Loan Servicing, LLC, No. 1:15-cv-00993-JLT, 2016 U.S. Dist. LEXIS 158199, at *4-10 (E.D. Cal. Nov. 15, 2016 (Cornejo).)  While, under the heading of Lopez’s second cause of action, she asserts only that “Defendant is liable to Plaintiff for damages in an amount to be determined at trial,” in her general allegations she alleges “[a]s a result of the wrongful foreclosure, Plaintiff suffered emotional distress,” in addition to “the loss of Plaintiff’s Home.”

Notably, in Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394 [186 Cal.Rptr.3d 625], a case cited in Lopez’s opposition brief, the Fourth District observed wrongful foreclosure as a tort, the measure of damages of which includes all proximately caused damages, which may include, amongst other potential categories of damages, “emotional distress.”  (Id., at p. 409.)

Also notable, here, though, Miles expressly remarked in a footnote that “[a]fter the events giving rise to this lawsuit, the Legislature enacted a statutory cause of action to recover damages against a lender or loan servicer that forecloses on a home where there has been a loan modification and there is no default on the loan modification [i.e., the HBOR],” and “[t]he applicability of this section ha[d] not been raised in the appeal, and [the court of appeal] offer[ed] no opinion on how it would impact, if at all, a common law tort action for wrongful foreclosure.”  (Id., at p. 410, fn. 6.)

Further notable is that at least one court subsequently questioned whether, following the enactment of the HBOR, Lopez can properly seek emotional distress damages on a wrongful foreclosure action that is predicated solely on HBOR violations.  (See Craig v. Capital One, N.A. (C.D.Cal. Apr. 10, 2018, No. CV 17-3788-DMG (AJWx)) 2018 U.S.Dist.LEXIS 227653, at *21, fn. 5.)

Returning to Selene Finance’s tender argument, it cites Alicea v. GE Money Bank (N.D.Cal. July 15, 2009, No. C 09-00091 SBA) 2009 WL 2136969 and Montoya v. Countrywide Bank, F.S.B. (N.D.Cal. June 25, 2009, No. C 09-00641 JW) 2009 WL 1813973, both of which expressly hold that a debtor must allege credible tender as a precondition to maintaining an action for wrongful foreclosure.  (See Alicea, at pp. at *7-8; Montoya, at p. *31.)

Both these cases though, and a California cases cited by both, Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112 [92 Cal.Rptr. 851], appear to principally support that the requirement of tender applies in the context of an action seeking to cancel a foreclosure sale, or to quiet title to the subject property after a foreclosure sale, and to leave open at least a possibility that the tender rule may not apply, as here, where the plaintiff seeks only damages.  (See Alicea, at p. at *8; Montoya, at p. *32; Karlsen, at p. 117.)

Lopez attempts to seize on this uncertainty by asserting that her wrongful foreclosure claim is not subject to the tender rule because she seeks only damages. 

Even so, where, also as here, plaintiff predicates a common law claim for wrongful foreclosure solely on alleged HBOR violations and, as part of that claim, seeks remedies that would otherwise not be permitted under the HBOR, the court finds that the plaintiff must properly be subject to the tender rule to establish a claim for those otherwise impermissible remedies. 

It is untenable, in the court’s view, to permit a party to seek a category of damages for HBOR violations—here, damages for emotional distress—that are “explicitly excised … as a component of damages” under the HBOR (Cornejo, supra, at p. *5), merely because the party captions the claim as one for “wrongful foreclosure.”

Moreover, to the extent Lopez purports to state some kind of distinct claim for “wrongful foreclosure,” she presents no credible argument for excusing the ordinary application of the tender rule under the circumstances of this case. 

Lopez cites Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 [134 Cal.Rptr.3d 622], which, as she notes, discusses various exceptions to the tender requirement for wrongful foreclosure claims, but none of them provide an exception for a wrongful foreclosure claim that seeks only damages.  (Id., at pp. 112-115.) 

Lopez also asserts that that “[d]efendant’s tender argument was rejected and put to rest a decade ago in Valbuena v. Ocwen Loan Servicing, LLC, 237 Cal.App.4th 1267 (2015),” but the cited case merely held that the tender rule is not properly applied to a cause of action for damages based on violation of HBOR.  (Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1273-1274 [188 Cal.Rptr.3d 668] (Valbuena).)  The plaintiffs in Valbuena had specifically omitted, in the version of the complaint at issue before the court of appeal, a cause of action for wrongful foreclosure.  (Id., at p. 1271 [wrongful foreclosure cause of action from first amended complaint omitted in subject second amended complaint].)

In the court’s view, Lopez’s claim for wrongful foreclosure is either a mere duplicate of her first cause of action, in which case it is nothing but a restatement of the first cause of action, for which emotional distress damages are not available; or it is an attempt to state a discernably distinct wrongful foreclosure claim, for which emotional distress damages are available, but which is also, then, subject to the ordinary pleading and proof requirements applicable to that claim, including the tender rule. 

Arguably, if the wrongful foreclosure claim is viewed as merely duplicative, the allegations suggesting entitlement to emotional distress damages could simply be stricken from the complaint, but then what purpose would the second cause of action serve but to sow uncertainty as what claims Selene Finance is to respond to and meet at trial?  Viewed this way, there could be no question that the complaint states but one cause of action (Choi, supra, 18 Cal.App.5th at p. 335), and the statement of the same claim as two causes of action would only create uncertainty.  And, as already discussed, if the claim purports to be a distinct claim for wrongful foreclosure, and its attendant separately available remedies, then the claim must be viewed as subject to the tender rule, and, accordingly, deficient in the respect that Lopez fails to allege tender. 

In light of all this, the court finds that the demurrer should be sustained as to the second cause of action.  Lopez’s opposition in no way indicates that she can allege tender as necessary to support an independent, distinct claim for wrongful foreclosure.  Unless Plaintiff can, in fact, allege tender or has persuasive authority not yet cited proving it is unnecessary, the court doubts that this cause of action can be salvaged. That said, a demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4th 1219, 1226.) The court will grant ten days leave to amend.

Third Cause of Action – Elder Abuse

Lopez’s third cause of action, seeking enhanced remedies under the Elder Abuse Act, including treble damages, punitive damages and attorney fees and costs, adds nothing to Lopez’s fundamental operative allegations of HBOR violations. 

Lopez merely “repeats, realleges, and incorporates by reference all of the foregoing paragraphs,” and then conclusorily asserts that “Defendants violated the Elder Abuse Act, Welf. and Inst. Code §15610.30 by taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or assisting in those activities for a wrongful use or with intent to defraud, or both the property of an elder for a wrongful use.” 

Selene Finance challenges these allegations as insufficiently particular, but it is not clear to the court, however, that more is required. 

Firstly, there is the question of what a cause of action for elder abuse is.  The Elder Abuse Act itself defines, in one article of the Act, “ ‘[f]inancial abuse’ of an elder’ ” (Welf. & Inst. Code, § 15610.30), and, separately in another article, at Welfare and Institutions Code section 15657.5, sets out various enhanced remedies that are available when different matters of proof related to financial abuse of an elder are proven. 

Welfare and Institutions Code section 15657.30, subdivision (a) states: “ ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does [amongst other things]: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.”

Then, a separate section states that where financial abuse is proven by a preponderance of the evidence, attorneys’ fees and costs are available (§ 15657.5, subd. (a)); and, where financial abuse is proven by a preponderance of the evidence and “where it is proven by clear and convincing evidence that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse, in addition to reasonable attorney’s fees and costs set forth in subdivision (a), compensatory damages, and all other remedies otherwise provided by law, the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply” (id., subd. (b).) 

Separate from all of this, Civil Code section 3345, subdivision (b) permits, in an action brought “by, on behalf of, or for the benefit of,” amongst others, “senior citizens,” that “[w]henever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider the factors set forth in paragraphs (1) to (3), inclusive, in addition to other appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose,” and “[w]henever the trier of fact makes an affirmative finding in regard to one or more of the factors set forth in paragraphs (1) to (3), inclusive, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding.”

Questions have arisen in the higher courts over whether the Elder Abuse Act creates an independent cause of action for elder abuse, and, specifically with regard to financial elder abuse, higher courts have observed a continuing division “over whether [section 15657.5] and related provisions create independent causes of actions or merely enhance the remedies available under preexisting causes of action.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 743 [112 Cal.Rptr.3d 439].)

As one court explains it, “in 2004, [the Legislature] created a new class of claims for ‘financial abuse,’ enacting a private enforcement provision—section 15657.5—tailored to these claims in particular. Section 15657.5 sets forth a scheme of heightened remedies closely paralleling those available under section 15657 [for physical abuse, neglect and abandonment], but with some key differences … .”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 859 [222 Cal.Rptr.3d 360].)

In the court’s view, the underlying cause of action for financial elder abuse is based on the definition of financial elder abuse in Welfare and Institutions Code section 15610.30, and pleading facts to establish financial abuse of an elder as described in that section is necessary, but not sufficient, to establish entitlement to enhanced remedies under the Act described in section 15657.5, or in Civil Code section 3345. 

Before the court on demurrer, here, though, solely is the question of whether Lopez pleads facts sufficient to establish the predicate cause of action of elder abuse. 

The court finds that the allegations are sufficient in that regard. 

Selene Finance significantly relies on Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 744-746 [112 Cal.Rptr.3d 439]) for the proposition, as it phrases it, that “[t]he enforcement of contractual or statutory rights does not constitute elder financial abuse absent additional wrongful conduct.” 

This is not what Das, however, states.  Das involved a plaintiff’s claim that Bank of America failed to report financial abuse involving her father, and engaged in other misconduct regarding him, and the court found the complaint failed to include allegations that the bank directly engaged in any alleged financial abuse, and that nothing in the complaint suggested that “in issuing a loan to [plaintiff’s father] and transferring his funds at his request, [the bank] obtained his property for an improper use, or acted in bad faith or with a fraudulent intent.”  (Id., at p. 744.)

Here, Lopez does allege direct involvement in wrongful conduct.  While “ ‘[i]t is simply not tortious for a commercial lender to lend money, take collateral, or to foreclose on collateral when a debt is not paid [because a] commercial lender is privileged to pursue its own economic interests and may properly assert its contractual rights,’ ” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 528 [134 Cal. Rptr. 3d 604]), Lopez’s allegations are not that Selene Finance was merely asserting its contractual rights, but that it proceeded with foreclosure against her home in derogation of her rights under the HBOR. 

In other words, Lopez alleges that Selene Finance caused Lopez to be deprived of her home “for a wrongful use” in that it caused Lopez to be deprived of her home in derogation of its obligations not to proceed with foreclosure while her loan modification application was pending, as expressly proscribed by the HBOR. 

Whether, though, such allegations establish any entitlement to heightened remedies under the Elder Abuse Act is a different question.  Whether Lopez can establish entitlement to “attorneys’ fees and costs” is not properly resolved on demurrer, since this is a matter of proof (§ 15657.5, subd. (a) [where financial abuse is proven by a preponderance of the evidence, attorneys’ fees and costs are available].

Similarly, Lopez’s entitlement to heightened remedies under subdivision (b) of section 15657.5 is also a matter of proof, but, in this instance, Lopez must establish that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of the abuse.”  It is clear that Lopez’s allegations in her complaint do not establish this, but the matter of whether she properly includes a prayer for relief based on section 15657.5(b) is not a question of whether she states a cause of action, and, thus, not properly addressed on demurrer.  So too it is the case with Lopez’s prayer for treble damages, evidently under Civil Code section 3345. 

Accordingly, the court overrules the demurrer to the third cause of action. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 BARRERA, VALERIA et al vs. BUCKEYE TREE LODGE & CABINS et al

Case No.:   PCU312521

Date:           March 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      (1) Demurrer and (2) Motion to Strike Amended Complaint

Tentative Ruling: (1) To sustain the demurrer without leave to amend as to the first, third, fourth and fifth causes of action; to sustain the demurrer to the sixth cause of action with leave to amend; to overrule the demurrer to the seventh cause of action (2) To grant the motion to strike without leave to amend.

Facts Common to (1) and (2)

In this matter, Plaintiffs bring causes of action against Defendants Shannon Lewis, Paul Lewis, and BTL & SVI, LLC dba Buckeye Tree Lodge & Cabins (“Defendants”) for (1) Battery (2) Negligence (3) Intentional Infliction of Emotional Distress (4) Fraudulent Concealment (5) Private Nuisance (6) Public Nuisance and (7) Breach of Contract with respect to bedbug bites allegedly occurring during Plaintiffs’ stay at a hotel owned and operated by Defendants.

Plaintiffs allege on or about September 4, 2022, Plaintiff Valeria Barrera discovered an unidentified insect in the hotel room. (FAC ¶16.) As Plaintiffs went to sleep, Plaintiffs began to feel itchy and on or about September 5, 2022, Plaintiffs awoke with red itchy bed bug bites staggered across their bodies and faces. (FAC ¶17, 18.)  Thereafter, Plaintiffs checked out of the hotel room and on September 7 2022, reported they had been bitten by bed bugs to the hotel’s management. (FAC ¶¶19, 20.)

Plaintiffs further alleged Defendants “deliberately and recklessly” chose not to inspect or ensure Plaintiffs’ room was free bedbugs immediately before Plaintiffs’ stay at the hotel and willfully disregarded knowledge of the prior bedbug infestation known to Defendants. (FAC ¶¶23, 24, 25.) Further that Defendants deliberately chose not to notify, or otherwise failed to notify Plaintiffs, of the presence of bedbugs in the room. (FAC ¶26.)

Further that “In their online reviews and complaints, many guests state that they woke up to bedbug bites. Despite having knowledge of several guest reviews regarding bedbugs found at the Subject Hotel, Defendants, and DOES 1 through 20, inclusive, did nothing to eradicate the bedbug infestation or warn the hotel guests.” (FAC ¶28.) Additionally, that “Front desk personnel, hotel management, and housekeeping employees and staff at the subject hotel were all aware and/or had knowledge of the existence of bedbug infestation in the hotel and, specifically, Plaintiffs’ room.” (FAC ¶30.) Further, that “Front desk personnel intentionally did not disclose the material fact…” of bedbugs during check-in. (FAC ¶32)

Further, that Defendants “exercised substantial independent judgment in their decision making by authorizing and ratifying employees and staff at the hotel to turn a blind eye in respect to the sanitary conditions of their hotel rooms, including failing to regularly change bed sheets, bed skirts, inspecting the bed mattresses and headboards, and failing to specifically inspect and check” for bedbugs prior to Plaintiffs’ arrival. (FAC ¶34.)

Further, that “An officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the fraudulent conduct of the hotel employees by failing to remedy prior bedbug infestations and deliberately concealing the fact of their presence in the hotel” (FAC ¶45.)

Defendants demurrer to the first, third, fourth, fifth, sixth and seventh causes of action and move to strike references to punitive damages and attorneys’ fees.

In opposition, as discussed in detail below, Plaintiffs argue sufficient facts pled as to each cause of action.

(1) Authority and Analysis - Demurrer

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

First Cause of Action – Battery

Defendant BTL & SVI, LLC first demurrer to this cause of action on the basis that a business entity cannot commit a battery. Defendant cites to Cruz v. Homebase (2000) 83 Cal.App.4th 160, 167 for the proposition that a corporation cannot be reckless, wicked or have an intent to injure or deceive and that battery is contact by one person with the person of another under Ashcraft v. King (1991) 228 Cal.App.3d 604, 611. However, no case appears to connect these concepts and the Court notes that the amended complaint pleads, generally, vicarious liability theories. (FAC ¶9.)

"The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. [Citations.]" (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

In order to establish a case of civil battery, the complaint must plead that Defendant acted with wanton, willful or reckless disregard of plaintiffs rights. (Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.) Allegations of intentional wrongdoing must be pled with specificity. (Allen v. Jones (1980) 104 Cal.App.3d 207, 215.)

Plaintiffs’ claim for battery is based on allegations that Defendants was aware of the bedbugs and failed to act to remove the bedbugs or otherwise to warn Plaintiffs of their presence. (FAC ¶50, 52)  Plaintiffs does not allege that Defendants committed an intentional act or affirmatively acted to perpetrate an offensive touching. The addition to the amended complaint that Defendants “acted with actual knowledge of the consequences of their conduct and intended, or acted with substantial certainty” is insufficient as to a battery claim requiring a touching or causing a person to be touched. The battery claim is insufficient absent some intentional release of the bugs into the rooms, in the Court’s opinion.

The Court is not persuaded by the 7^th Circuit opinion Mathias v. Accor Econ. Lodging, Inc., (7th Cir. Ill. 2003) 347 F.3d 672 and notes no specific facts alleged here as to the intensity of the infestation or specific instructions to staff to mislabel the bedbugs. The remainder of Plaintiff’s argument centers on the duty of care of an owner of real property Ornelas v. Randolph (1993) 4 Cal.4th 1095, a case that does not involve a battery cause of action.

The Court, therefore, sustains the demurrer to the first cause of action.

Third Cause of Action – IIED

Like battery, intentional infliction of emotional distress requires an intentional act. "The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.) 

The inability or failure to eradicate bed bugs is not “extreme and outrageous” intentional conduct, but rather sounds in negligence, as pled in the second cause of action. The conclusory phrase that Defendants made a “deliberate choice not to eradicate a bedbug infestation” is insufficient as to intentional, outrageous and extreme conduct.

While the Court notes an IIED claim was permitted McNairy v. C.K. Realty (2007) 150 Cal.App.4th 1500, a landlord tenant action, such conduct targeted specific tenants. The alleged conduct concerns general maintenance failures affecting hotel guests as a whole, which is not specific as to these Plaintiffs.

For the same reason as above as to battery, the Court sustains the demurrer to the third cause of action.

Fourth Cause of Action – Fraudulent Concealment

“[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.)

"Fraud actions are subject to strict requirements of particularity in pleading … [F]raud must be specifically pleaded. The effect of this rule is twofold: (a) General pleading of the legal conclusion of 'fraud' is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of pleadings will not ordinarily be invoked to sustain a pleading defective in any respect." (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)

Less specificity is required when "it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy." (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal. App. 3d 818, 825.) Further, "[a] plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written." (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.) The Court applies the same standard here to the LLC Defendant.

However, the Court notes that, as to fraudulent concealment, "…it is harder to apply [the requirement of specificity] to a case of simple nondisclosure. 'How does one show 'how' and 'by what means' something didn't happen, or 'when' it never happened, or 'where' it never happened?" (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199.)

Additionally, "In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff." (Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)

Here, there is no fiduciary or confidential relationship.

As to the first instance noted above, the Court’s review of the amended complaint reveals no allegations that Defendants made the requisite representations that the rooms were clean or sanitary, leaving out the presence of bed bugs. Rather, the allegations are that Defendants failed to disclose the known presence thereof.

As to the second scenario noted above, the allegations of public disclosure of the presence of bed bugs via online reviews precludes that such facts were known or accessible only to the Defendants.

As to the third example provided, the Court finds no active concealment through the failure to eradicate or failure to clean the rooms or via any such representations about the status of the rooms.

Here, as with the battery and IIED claims, the Court does not find the requirement of active concealment pled. Rather, the allegedly negligent failure to eradicate the bedbugs

Therefore, the Court sustains the demurrer to the fourth cause of action.

Fifth Cause of Action – Private Nuisance

"Although 'any interest sufficient to be dignified as a property right' will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee." (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.) Here, the complaint alleges Plaintiffs were staying at the hotel room temporarily, which does not establish a tenancy right. (Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, 845 [“One who is merely stopping over at a place in a hotel, motel, rooming house, or who is vacationing is not a resident.”].)

Therefore, the Court sustains the demurrer to the fifth cause of action.

Sixth Cause of Action – Public Nuisance

A nuisance is "[a]nything which is injurious to health" and a "public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons" (Civ. Code §§ 3479, 3480). To prevail on a public nuisance claim, Plaintiffs must show "that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right." (People v. ConAgra Grocery Prods. Co. (2017) 17 Cal.App.5th 51, 79.) Further, public nuisances are "substantial and unreasonable" "offenses against, or interferences with, the exercise of rights common to the public." (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) "

Here, the amended complaint pleads only a hypothetical, potential affect on the community, stating:

“This bedbug infestation affects the community at large as this type of infestation is easily spread from (1) one hotel room to another, (2) personal property of those occupying the hotel rooms, including Plaintiffs’ luggage, clothing, shoes, and other tangible personal property that can be transported from the Subject Hotel room to Plaintiffs’ residence thereby creating a risk of bed bug infestation in Plaintiffs’ residence, (3) spread of bed bug infestation from the Subject Hotel room to the public and into their residence which can affect the community at large” (FAC ¶124.)

There is no allegation that the bed bugs actually spread from one hotel room to another, or into Plaintiff’s personal property, or into the community at large.

Therefore, the Court sustains the demurrer to the sixth cause of action.

Seventh Cause of Action – Breach of Contract

"To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff." (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Here, Plaintiffs allege a written contract. (FAC ¶130.)

A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect in order to survive demurrer. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.)

Here, Plaintiffs plead that the “legal effect” of the agreement included:

“Defendants’ contractual obligations to provide Plaintiffs with a room that was clean, safe, sanitary, and habitable; to comply with all applicable health and safety laws governing hotel rooms, including California Health & Safety Code § 17920.3 and Title 25 regulations requiring hotel rooms to be maintained free of vermin and insects; to inspect and maintain guestrooms in a reasonably safe and sanitary condition before Plaintiffs’ arrival; to disclose any known or reasonably discoverable dangerous or uninhabitable conditions, including the presence of bedbugs or signs of infestation; and to refrain from renting rooms that Defendants knew, or reasonably should have known, were infested, unsanitary, or otherwise unfit for human occupancy.”

This is sufficient in the absence of attachment of the agreement or pleading the terms verbatim.

The Court finds sufficient allegations that a room infested with bedbugs is unfit for human occupancy and that by providing such a room, Defendant breached the terms of the contract set forth above.

Therefore, the Court overrules the demurrer to the seventh cause of action.

Leave to Amend - Demurrer

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

The Court will sustain the demurrer to the first, third, fourth, and fifth causes of action without leave to amend. Plaintiffs have failed to plead sufficient allegations via multiple complaints as to these causes of action and demonstrate no reasonable possibility of amendment at this point.

The Court will sustain the demurrer to the sixth cause of action as to public nuisance with leave to amend.

(2) Authority and Analysis – Motion to Strike

A party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)

“[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682–1683.)

Here, Defendant seeks to strike the punitive damages allegations in paragraphs 57 (as to battery), 74 (as to negligence), 86 (as to IIED), 107 (as to concealment), as well as the references in the prayer to punitive damages and attorneys’ fees.

The Court grants the motion without leave to amend as to paragraphs 57 and 86.

As to paragraph 74 and the negligence cause of action, authority nonetheless indicates that "a nonintentional tort can have the characteristics of an intentional tort to the extent of embracing the concept of malice as used in Civil Code section 3294." (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286). "A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. (Citation). Such a tort…is most accurately designated as [w]anton and reckless misconduct." (Id.) Such a claim justifies an award of punitive damages. (Id.) Here, however, the Court does not find sufficient wanton and reckless misconduct as to negligence to support punitive damages. The Court grants the motion without leave to amend as to paragraph 74.

As to concealment and paragraph 107, Civil Code section 3294 requires proof by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, for plaintiff to recover punitive damages. As stated above, the Complaint fails to sufficiently plead fraudulent concealment. Therefore, the Court grants the motion to strike as to Paragraph 107 and the request to strike the prayer without leave to amend.

As to the request to strike attorneys’ fees, the Court finds no basis pled in the complaint which supports the request in the prayer. The Court grants the motion to strike as to attorneys’ fees without leave to amend.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division