Judge Lynne M. Hobbs, Case Number: 19STCV24054, Date: 2024-08-06 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 19STCV24054, Date: 2024-08-06 Tentative Ruling

Case Number: 19STCV24054 Hearing Date: August 6, 2024 Dept: 61

CEDRIC L PRICE vs JARRELL D DAVIS

TENTATIVE

Defendant Precision Dental Inc.’s Motion for Summary Judgment or Adjudication is GRANTED as to the fourth cause of action for invasion of privacy, and DENIED as to the third cause of action for negligence and the sixth cause of action for financial elder abuse.

Moving party to provide notice.

DISCUSSION

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant Precision Dental, Inc. (Defendant) moves for summary judgment on the claims in Plaintiff Cedric Price’s Second Amended Complaint (SAC) for negligence, invasion of privacy, and elder abuse. Precision argues that the negligence claim fails because it owed no duty of care as a lender to Plaintiff. (Motion at pp. 13–17.) Defendant argues that the invasion of privacy claim fails because Precision merely made a loan, and did not disclose or intrude upon any private details of Plaintiff’s life. (Motion at pp. 17–18.) And Defendant finally argues that the elder abuse claim fails because it did not take any of Plaintiff’s property for wrongful use. (Motion at pp. 18–20.)

Plaintiff in opposition contends the motion is untimely, because it is set for hearing less than 81 days from the date of filing. (Opposition at p. 6.) This argument fails, because there is no 81-day requirement for filing a motion for summary judgment. Code of Civil Procedure § 437c requires the motion to be “served on all other parties to the action at least 75 days before the time appointed for hearing.” (Code Civ. Proc. § 437c, subd. (a)(2).) Plaintiff cites this provision, but replaces the “75” number with an “81.”

Nor is there any merit to the argument that a motion for summary disposition cannot be brought after a first phase of trial is concluded. Motions for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” The motion is scheduled to be heard on August 6, 2024, more than 30 days before the second phase of trial on legal issues is set to begin on September 10, 2024.. The motion is therefore timely. “[T]he 30–day time limit on summary judgment hearings should be calculated based on the trial date in existence when the motion is noticed regardless of whether that date is the original trial date or not.” (Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609.) When the motion was filed here, the trial date was September 10, 2024, and thus the motion was timely in relation to the applicable “date of trial.” Plaintiff presents no authority for the proposition that an earlier bench trial on a different issue forever precludes any motions for summary adjudication brought thereafter, on issues yet to be tried. There are good reasons to avoid such an interpretation, as it would promote the waste of judicial resources by requiring courts to try baseless claims for which no triable issues of fact exist.

Plaintiff also argues that discovery is closed. (Opposition at pp. 5–6.) But this is not a “motion[] concerning discovery” to which the cutoff applies. (Code Civ. Proc. § 2024.020, subd. (a).) Nor does Plaintiff contend that he lacks discovery necessary to oppose the motion. This argument therefore furnishes no basis to deny the motion.

1. Negligence

The first element of negligence is the existence of a duty of care. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) Defendant argues that a lender “owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” (Motion at pp. 13–14, quoting Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) Defendant also argues that it owed no duty because the factors set out in Biakanja v. Irving (1958) 49 Cal.2d 647. (Motion at pp. 13–17.)

This court has already rejected Defendant’s argument. In granting Defendant’s prior motion for judgment on the pleadings with leave to amend, the court ruled that Defendant had a duty to investigate “red flags” that indicate a third party involved in the transaction may be victimized by fraud. (See 12/5/2023 Order.) “As a general rule, courts have recognized that a person or entity—whether it be a bank or a merchant—engaged in a financial transaction with a person has a duty (1) not to ignore ‘red flags’ or ‘suspicious’ ‘circumstances’ that may indicate that a third party involved in that transaction is being defrauded, and, in that instance, (2) not to proceed with the transaction without first doing some investigation to dispel those suspicions.” (QDOS, Inc. v. Signature Financial, LLC (2017) 17 Cal.App.5th 990, 999–1000, italics omitted.) The court granted Defendant’s motion with leave to amend, as no red flags or suspicious circumstances were alleged in the pleading. Defendant here does not contend that such circumstances are not alleged, or that no such circumstances existed when Defendant made the loan.

Defendant argues that the QDOS holding did not address a lender. (Motion at p. 13, n. 2.) Defendant does not explain the materiality of this distinction, especially when the holding of that case was framed as applying to entities, banks, or merchants involved in a financial transaction, as Defendant concededly was here. Nymark’s holding, by contrast, has less application to the present facts, because its analysis applies to the duties owed by lenders to borrowers, while Plaintiff alleges (and the court has found) that he was never a “borrower” of Defendant’s. (Nymark, supra, 221 Cal.App.4th at p. 62.) The analysis here concerns not a lender’s obligations to a party it has contracted with, but to third parties involved in the transaction who are potentially being injured by fraudulent conduct. QDOS is therefore applicable.

The motion is therefore DENIED as to the third cause of action for negligence.

2. Invasion of Privacy

A claim for invasion of privacy requires

(1) a legally protected privacy interest; (2) reasonable expectation of privacy under the circumstances; and (3) a serious invasion of such privacy interest. Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liability. These activities are (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person's name or likeness.

(Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 843, internal quotation marks and citations omitted.)

Defendant argues that none of the above grounds for the tort of invasion of privacy apply here. Defendant argues that it merely made a loan based on the value of the properties secured by it, and did not intrude into any of Plaintiff’s private affairs, make a public disclosure of private matters or provide publicity to Plaintiff, and did not misappropriate his name or likeness. (Motion at pp. 17–18.) Defendant argues that it was Defendant Jarrell Davis who fraudulently used Plaintiff’s personal information to secure the loan. (Ibid.)

Defendant has met its burden to show the absence of triable issues as to whether Defendant committed a serious invasion of Plaintiff’s privacy, by virtue of its only participation in the transaction being the provision of a loan. (Rad Decl. ¶¶ 5–6.) It was Davis, not Defendant, who misappropriated Plaintiff’s personal information. Plaintiff in opposition offers no argument in support of the invasion of privacy claim except to state that Defendant’s “conduct meets the elements of an Invasion of Privacy claim,” without further elaboration. (Opposition at p. 11.)

The motion is GRANTED as to the fourth cause of action for invasion of privacy.

3. Elder Abuse

Financial elder abuse occurs when a person takes or “assists in in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code § 15610.30, subd. (a)(1), (2).) Liability for “assist[ing]” in a wrongful taking is the same as for aiding and abetting the act: “Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 744 .)

“A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, § 15610.30, subd. (b).)

Defendant argues that it cannot be liable on Plaintiff’s elder abuse claim because it was Davis, not Defendant, who took his property, and because Defendant’s encumbering of Plaintiff’s other properties did not constitute a “taking” within the meaning of the elder abuse statute. (Motion at pp. 18–19.)

Defendant’s argument is unpersuasive, as triable issues of fact remain as to Defendant’s negligence in encumbering Plaintiff’s properties. Plaintiff himself declares that he was never involved in any transaction involving the loan, and never had any intention to purchase the property that the loan was to finance. (Price Decl. ¶ 17.) Defendant’s principal, Shawn Rad, testifies that he initially declined to fund the $2.1 million loan presented to him because the property secured by the loan (which the loan was to purchase) was not worth the value of the loan, and only agreed to lend the money after being offered additional security in the form of three of Plaintiff’s other properties, including his residence. (Rad Decl. ¶¶ 4–6.)* As the court noted in its statement of decision following the first phase of trial, Defendant’s focus was exclusively on the value of the properties secured by the loan, without any interest in Plaintiff’s “financials, his credit report, loan application, and in fact never spoke with him, all the while providing him with a $2.1 million dollar loan.” (5/15/24 Order.) Triable issues exist as to Defendant’s negligence, and thus whether he “knew or should have known” that its conduct was “likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code § 15610, subd. (b).)

The motion is therefore GRANTED as to the fourth cause of action for invasion of privacy, and DENIED as to the third cause of action for negligence and the sixth cause of action for financial elder abuse.

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* Plaintiff’s objections to the Rad declaration are OVERRULED, as Rad may testify as to how the loan request was presented to him. Although Plaintiff objects that these out-of-court statements are hearsay, they are non-hearsay because they are not being admitted for the truth of their content, but to show how Defendant understood the character of the loan and the basis therefore. (See Evid. Code § 1200.)