Judge Randolph M. Hammock, Case 22STCV15140 2023-01-20 Tentative Ruling

Plaintiff Fernando Valle Guerrero, who was 92 years old at the time of the Second Amended Complaint’s filing, resides with his daughter, Gina Cabrera. Plaintiff Guerrero owns multiple pieces of real property within the Los Angeles and San Bernardino counties.

Plaintiffs allege that after gaining Guerrero’s trust and friendship, Defendant Mariano Alameda Solinap began to represent Guerrero in various real estate purchase and sale transactions. Solinap then introduced Plaintiff Guerrero to the other Defendants. On or about January 8, 2021, Defendants allegedly convinced Guerrero to loan Defendant GMJ Ventures Five Hundred Thousand Dollars ($500,000.00) for a purported hotel development project in the Republic of the Philippines. Defendants returned only $400,000.00. Then, in March or April of 2021, Defendants solicited a $21,000.00 loan from Plaintiff for the purported development of a pharmacy in the Philippines.

Defendants also sold Plaintiff a “JUJUVI Trust” for $45,000, and then helped Plaintiff place the Trust on title to Plaintiff’s bank accounts. This prompted an investigation by the Los Angeles County Sheriff into financial elder abuse. Defendants eventually refunded a portion of the trust payment. Thereafter, Defendants again mislead Plaintiff to pay another $45,000 to reinstate the JUJUVI Trust.

In total, Plaintiffs allege Defendants have retained at least Forty-Five Thousand Dollars ($45,000.00) from the sale of the JUJUVI TRUST and solicited and received loans from Guerrero totaling at least One Hundred and Seventy-Five Thousand Dollars ($175,000.00) without repayment. Accordingly, Plaintiffs bring causes of action for (1) Financial Elder Abuse, (2) Breach of Written Note, (3) Breach of Oral Agreement, (4) Conversion, (5) Promissory Fraud, (6) Breach of Fiduciary Duty, (7) Unfair Business Practices, (8) Unjust Enrichment, (9) Intentional Infliction of Emotional Distress, and (10) Negligent Infliction of Emotional Distress.

Defendant’s Demurrer to the Tenth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Plaintiff Guerrero alleges that Defendants took advantage of him, a 92-year-old with “rapidly deteriorating physical and mental conditions.” (SAC ¶ 23.) Plaintiff Guerrero met Defendant Mariano [FN 1], who “won Mr. Guerrero’s trust and friendship. (Id. ¶ 27.) Defendant began to represent Plaintiff in various real estate purchase and sale transactions. In relevant part, the SAC alleges as follows:

Defendant GMJ Ventures is a suspended California corporation. According GMJ’s bylaws, “[t]he business affairs of the corporation shall be managed by its Board of Directors.” (Id. ¶ 32.) GMJ’s “shareholders, officers and/or directors” include Defendants MARIANO, PENDER, GRACE, ERBEN and RALPH. (Id. ¶ 16.) “[T]herefore, Plaintiffs allege that each of the Directors were jointly and severally obligated to manage GMJ and its officers, agents and employees as part of managing the corporation’s affairs including, but not limited to, the solicitation and failure to perform on each of the transactions alleged herein.” (Id. ¶ 33.)

“On or about January 8, 2021, Defendants and each of them, convinced Mr. Guerrero to loan [GMJ] Five Hundred Thousand Dollars ($500,000.00) for a purported real estate development project of a hotel in the Republic of the Philippines.” (Id. ¶ 29.) Defendants returned $400,000.00 of that loan a few days later. (Id. ¶ 30.) On or about January 22, 2021, Defendants “convinced” Mr. Guerrero to “continue loaning Defendant GMJ One Hundred Thousand Dollars ($100,000.00)” for the same purported project in the Philippines. (Id.) Defendants have repaid Plaintiff only $3,000.00 of that loan, “but have never repaid Mr. Guerrero the principal sum of One Hundred Thousand Dollars ($100,000.00) or any other fees or interest under the Note.” (Id. ¶ 34.)

Plaintiffs further allege Defendant “RALPH lent his real estate broker’s license to entities and sales agents, including but not limited to, GMJ, MARIANO and ERBEN, to carry out real estate ventures such as obtaining real estate lending from Mr. Guerrero, but RALPH intentionally or recklessly or negligently fail to supervise or manage the activities of said entities and real estate sales agents, including but not limited to GMJ, MARIANO or ERBEN thereby leading to the solicitation, non-payment, and financial elder abuse suffered by Mr. Guerrero.” (Id. ¶ 35.)

Then, in or about April, 2021, Defendant Andy “sold Mr. Guerrero a ‘Commercial, Qualified, Irrevocable, Non-Grantor, Complex, Discretionary Trust with Spendthrift provisions’ commonly referred to as ‘JUJUVI Spendthrift Trust’ for the sum of Forty-Five Thousand Dollars ($45,000.00) paid to Defendant UBEROSA preying on Mr. Guerrero’s age, his wife’s death on February 28, 2020, Mr. Guerrero’s fear of litigation and purported need for asset protection because Mr. Guerrero had recently been in an car collision.” (Id. ¶ 36.)

Plaintiffs allege that this Trust “serves no legitimate or legal purpose and therefore was sold under false pretenses to Mr. Guerrero under the guise it would provide asset protection which preyed upon Mr. Guerrero’s unsubstantiated fears due to a car accident he had been in recently and otherwise simply unjustly enriched Defendants, and each of them.” (Id. ¶ 41.) “In addition, the creation and recording and use of the JUJUVI TRUST interferes with the family trust that Mr. Guerrero and his late wife prepared and since Mr. Guerrero is suffering health issues and is now 92 years of age, it could create harm, including financial damages, with administration of his estate should he pass.” (Id. ¶ 42.)

“Shortly after the creation of the JUJUVI Trust, MARIANO and/or ANDY went with Mr. Guerrero to several banking institutions where JUJUVI Trust was placed on title to Mr. Guerrero’s bank accounts. MARIANO and/or ANDY created a script for Mr. Guerrero to parrot to banking institutions in order to change title of his and his family trust’s existing personal banking accounts to be held by the JUJUVI Trust. Mr. Guerrero followed this script.” (Id. ¶ 37.) “[T]he odd banking activity caused at least one banking institution to be concerned about financial elder abuse and that bank then contacted Adult Protective Services. As a result, the City of La Canada was contacted who referred the matter to the LA County Sheriff,” prompting an investigation. (Id. ¶ 38.) Five Thousand Dollars ($5,000.00) remains unreturned. (Id. ¶ 40.) Defendants Andy and Mariano later convinced Plaintiff to reinstate the Trust “for ‘a discounted’ price of $45,000.00.” (Id. 43.)

In October 2021, Defendants orally solicited another $3,000 from Mr. Guerrero for a funeral loan of ANDY’s brother in the Republic of the Philippines. (Id. ¶ 48.) To date, no principal or interest has been repaid. (Id.)

“Combined, in 2021, Defendants and each of them, have retained at least Forty-Five Thousand Dollars ($45,000.00) from the sale of the JUJUVI TRUST and solicited and received loans from Mr. Guerrero totaling at least One Hundred and Seventy-Five Thousand Dollars ($175,000.00) without repayment.” (Id. ¶ 49.) Plaintiff further alleges he “has suffered non-economic harm and damages resulting from the financial abuse caused by Defendants, and each of them, including, but not limited to, physical effects and feelings of distress, shame, worry, humiliation, anxiety, distrust, loss of ability to cope, frustration, and confusion affecting the Plaintiff’s functioning in social and family activities.” (Id. ¶ 53.) This action followed.

First, Defendant Hartounian argues the SAC fails to allege sufficient facts against him. “In the SAC,” Defendant argues, “nowhere is it alleged how [Defendant Hartounian] is claimed to have been involved in the actions of which Plaintiffs complain.” (Dem. 1: 23-25.) He also argues that he cannot be liable as an officer of GMJ because he had no personal involvement in the claims.

In opposition, Plaintiffs argue that Defendant was a corporate director of Defendant GMJ Ventures at the time of the alleged wrongful conduct, and at the same time, was a licensed real estate broker. (Opp. 2: 9-10.) “By cloaking himself with the roles of both a corporate director and real estate broker, Hartounian took on fiduciary duties to Plaintiffs which were breached through the actions of his codefendants who are alleged to be his agents, who are directors and officers with him of GMJ, and who worked as real estate sales agents.” (Id. 2: 12-15.)

Defendant Hartounian was allegedly a director of GMJ at the time of the alleged wrongdoings. (SAC ¶ 15.) After the filing of this lawsuit, GMJ filed an updated Statement of Information with the Secretary of State, purporting to remove Defendant Hartounian as a director or officer of GMJ. (Id. ¶ 18.) Plaintiffs allege Defendant Hartounian “was the agent, employee, alter ego, and/or co-conspirator of each of the other Defendants, and in doing the things alleged to have been done in the Complaint, acted within the scope of such agency or employment, or ratified the acts of the other.” (Id. ¶ 21.) “At all times herein mentioned, Defendants, and each of them, ratified the acts of each of the other Defendants.” (Id. ¶ 20.) Thus, Plaintiffs allege that Defendant Hartounian, among the other Defendant directors, “were jointly and severally obligated to manage GMJ and its officers, agents and employees as part of managing the corporation’s affairs including, but not limited to, the solicitation and failure to perform on each of the transactions alleged herein.” (Id. ¶ 33.)

“Corporate director or officer status neither immunizes a person from personal liability for tortious conduct nor subjects him or her to vicarious liability for such acts.” (PMC, Inc. v. Kadisha (2000) 78 Cal. App. 4th 1368, 1379.) “[A]n officer or director will not be liable for torts in which he does not personally participate, of which he has no knowledge, or to which he has not consented.... While the corporation itself may be liable for such acts, the individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.” (Id.) “A corporate director or officer's participation in tortious conduct may be shown not solely by direct action but also by knowing consent to or approval of unlawful acts.” (Id. at 1380.)

Contrary to Defendant’s contention, he is not named as a Defendant solely due to his association with GMJ. Plaintiffs also allege that Defendant Hartounian is a licensed real estate broker, and “lent his real estate broker’s license to entities and sales agents, including but not limited to, GMJ, MARIANO and ERBEN, to carry out real estate ventures such as obtaining real estate lending from Mr. Guerrero.” (Id. ¶ 35.) In doing so, he “intentionally or recklessly or negligently fail[ed] to supervise or manage the activities of said entities and real estate sales agents,…thereby leading to the solicitation, non-payment, and financial elder abuse suffered by Mr. Guerrero as alleged herein.” (Id. ¶ 35.) Thus, Plaintiff has alleged that Defendant personally participated in the alleged wrongdoings.

Plaintiffs also allege that liability attaches based on alter-ego and agency theories. (SAC ¶ 21.) “Alter ego allegations may be pled generally, and the principal factors for piercing the corporate veil—individual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injustice—may be alleged in conclusory terms. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-916.) Moreover, “[o]ne who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency…When his acts are wrongful in their nature.” (PMC, Inc., supra, 78 Cal. App. 4th at 1381 [citing Civil Code § 2343].) This rule applies to officers and directors such as Defendant Hartounian. (Id.) Thus, Plaintiff has allegedly liability based on the acts of the other Defendants, even assuming Defendant was not personally involved.

In Reply, Defendant provides a “Certificate of Non-Involvement” provided to Defendant Ralph Hartounian by Defendant Mariano Solinap dated June 25, 2022. (Lowe Decl., Exh. A.) In that Certificate—and in direct contradiction of the SAC—Solinap attempts to explain that Hartounian had no involvement in GMJ Ventures.

First, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Second, and more importantly, a demurrer tests the pleadings alone, as well as those matters judicially noticed—but not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Thus, Defendant’s resort to extrinsic evidence is improper here.

First, for reasons similar to those made above, Defendant contends Plaintiffs have not stated a claim for financial elder abuse. He argues that “a director of a corporation cannot be held individually liable unless they have personal involvement in the claims.” (Dem. 7: 19-20.)

Financial elder abuse “occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative.” (Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156, 174 [citing Welf. & Inst.Code, § 15610.30].)

Next, Defendant argues the Second Cause of Action for Breach of Written Note and Third Cause of Action for Breach of Oral Agreement fail because Plaintiffs do not allege the existence of any contracts between them and Hartounian.

To support the Second Cause of Action, Plaintiffs allege “[o]n or about January 22, 2021, Mr. Guerrero entered into the Note with Defendants, and each of them,” by which “Mr. Guerrero agreed to loan Defendants, and each of them, the sum of $100,000.00 and Defendants, and each of them, agreed to repay Mr. Guerrero $100,000.00 plus interest within 30 days or by February 22, 2021 (SAC ¶¶ 65, 66.)

To support the Third Cause of Action, Plaintiffs allege “[i]n or about January 2021, March 2021 and October 2021, Mr. Guerrero entered into the three (3) aforementioned oral loan agreements with Defendants, and each of them, with due dates for repayment of principal and interest.” (Id. ¶ 72.)

Defendant argues the Fourth Cause of Action fails because “there is no substantive allegation that HARTOUNIAN ever had possession or control of Guerrero’s money or that Guerrero ever ask[ed] him for its return.” (Dem. 8: 12-13.)

However, Plaintiffs allege that “Defendants, and each of them, refused to return the sum of at least $175,000.00 in or after February 22, 2021, substantially interfering with Mr. Guerrero’s ownership and possession of said monies.” (SAC ¶ 69.) Plaintiff has also again stated this cause of action against Defendant Hartounian by virtue of his standing within GMJ and his agency or alter ego relationships with the other Defendants.

Plaintiffs allege that “Defendants, and each of them, were acting within the course and scope of being licensed real estate agents and brokers and/or agents of one another, when Defendants, and each of them, solicited Mr. Guerrero for three (3) loans in excess of $130,000.00.” (SAC ¶ 81.) “As a result of being licensed real estate sales agents and/or real estate brokers and/or Directors of GMJ, Defendants, and each of them owed fiduciary duties of good faith and loyalty to Mr. Guerrero.” (Id. ¶ 82.) Defendants allegedly breached these duties by “inducing the loans and by failing to repay said loans.” (Id. ¶ 83.)

This court must accept as true that Defendant Hartounian was “acting within the course and scope of being” a licensed real estate broker during the relevant transactions and used that license to “solicit” three loans from Plaintiff. (SAC ¶ 81.) Thus, for pleadings purposes, Plaintiff has alleged breach of fiduciary duty. (William L. Lyon & Assocs., Inc. v. Superior Ct. (2012) 204 Cal. App. 4th 1294, 1312 [recognizing fiduciary duty owed by broker to client, the breach of which “may constitute negligence or actual or constructive fraud, depending on the facts and circumstances of each case.”].)

Despite its broad applicability, “[i]njunctive relief and restitution are the only remedies available under the UCL.” (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.) Thus, “[a] UCL claim must be based on the existence of harm supporting injunctive relief or restitution.” (Id.)

Plaintiffs allege that Guerrero “has suffered injury in fact and has lost money or property amounting to at least $175,000.00 as a result of Defendants’ unfair business practices, and Defendants have been unjustly enriched, reaped unfair benefits and illegal profits at Mr. Guerrero’s expense.” Thus, he is “is entitled to immediate restitution and possession of all amounts owed,” and/or “injunctive relief including, but not limited to, orders that Defendants account for and restore to Mr. Guerrero his promised payments in satisfaction of each of the loans.” (SAC ¶¶ 92-93.)

Seeing as Defendants have not addressed why restitution or injunctive relief are unavailable, the cause of action is sufficiently pled. Moreover, whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation]. (Id.)

Finally, Defendant Demurrers to the Tenth cause of action for negligent infliction of emotional distress. The cause of action is asserted by Plaintiff Gina Cabrera against all Defendants. Defendant argues the cause of action fails because Plaintiff is bringing the cause of action as a bystander, yet “[t]he complaint does not assert the presence of Gina Guerrero at any of the events that form the basis of the complaint.” (Dem. 10: 7-8.)

Plaintiff Cabrera alleges she is the daughter of Plaintiff Guerrero. (SAC ¶ 107.) Due to Guerrero’s age and ill health, “he has begun to reside with her,” and “she holds power of attorney for her father and thus, she is in a close relationship to her father.” (Id.) She further alleges that “she has suffered serious emotional distress as a result of contemporaneously becoming aware of the aforementioned alleged series of acts constituting financial abuse and other theories of wrongful conduct of Defendants,” and “[a]s a result of her close relationship with her father and the financial and emotional harm he has suffered…she has and continues to suffer emotional distress beyond that which would be anticipated by a disinterested witness.” (Id. ¶ 108.)

“The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” [Citation.] Under the bystander theory, the plaintiff seeks to recover damages for serious emotional distress suffered as a result of an injury to a close family member. Recovery is limited as a matter of public policy to those cases where the plaintiff was present at the scene of the injury-producing event and was aware that the event was causing injury to the victim.” (Gu v. BMW of N. Am., LLC (2005) 132 Cal. App. 4th 195, 204.)

Here, Plaintiffs’ SAC and Opposition do not identify the existence of any legal duty Defendants owed Plaintiff Cabrera by virtue of her being Plaintiff Guerrero’s daughter and caretaker. Thus, Defendant must be relying on the “bystander theory,” and not the “direct victim” theory.

Plaintiff therefore argues that she alleges “her stress comes from contemporaneously seeing fraudulent inducement by Defendants of her father and their continuing attempts to communicate with him while in the hospital and while she was attempting to unwind their fraudulent efforts.” (Opp. 10: 4-7.)

However, Plaintiff alleges she “contemporaneously bec[ame] aware of the aforementioned alleged series of acts constituting financial abuse and other theories of wrongful conduct of Defendants,” but not that she witnessed or was present for the acts. (SAC ¶ 108.) Moreover, Plaintiffs cite zero authority to defend the claim, much less any case recognizing a bystander claim in an elder abuse case with any comparable allegations.

Accordingly, Defendant’s Demurrer to the Tenth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Defendant first moves to strike all punitive and/or exemplary damages attributed to Defendant Hartounian, specifically at paragraphs 63, 70, 78, 86, 105, and the prayer for relief. Defendant contends Plaintiff has not stated facts warranting the imposition of punitive damages.

Civil Code section 3294, subdivision (a) permits an award of punitive damages “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” “Malice” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ.Code, § 3294 subd. (c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ.Code, § 3294, subd. (c)(3).)

While punitive damages are not available for causes of action arising from contract, they can be recovered on other tort claims. (See Frazier v. Metro. Life Ins. Co. (1985) 169 Cal. App. 3d 90, 106–07 [stating “[w]hen the action proceeds under alternate tort theories in addition to a contract action, then punitive damages may be awarded under the alternative tort theory].)

In essence, the SAC alleges that Defendants took advantage of Plaintiff Guerrero, a 92-year-old with “rapidly deteriorating physical and mental conditions,” by [winning] Mr. Guerrero’s trust and friendship. (SAC ¶¶ 23, 27.) They used this relationship to solicit multiple loans without repayment, and to set up a trust that “serves no legitimate or legal purpose” other than to enrich Defendants. They did this by “prey[ing] upon Mr. Guerrero’s unsubstantiated fears due to a car accident he had been in recently” that could result in a lawsuit. (Id. ¶ 41.) This new Trust “interferes with the family trust that Mr. Guerrero and his late wife prepared” before it. (Id. ¶ 42.)

Accepting these allegations as true, Plaintiff has sufficiently alleged the potential (indeed, highly likely) recovery of punitive damages. As noted above, by virtue of Defendant Hartounian’s position in the company, or alternatively, through an agency or alter ego relationship with the other Defendants, Plaintiffs have stated a claim for punitive damages against the moving Defendant.

However, Plaintiff seeks attorney’s fees “under Welfare and Institutions Code section 15657.5(a) as there is clear and convincing evidence that the conduct of Defendants, and each of them was reckless, oppressive, malicious and fraudulent.” (SAC ¶¶ 62, 70, 66, 71, 79, 87, 94, 98, 104, 113.) Section 15657.5(a) provides, in relevant part: “Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.”

Thus, at least as to those causes of action based on financial abuse, Plaintiff would be statutorily entitled to attorney’s fees, if successful. Moreover, courts are given “broad discretion” when ruling on a motion to strike. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699). Courts need not strike a prayer for attorney’s fees before a party “has had a full opportunity to determine, through discovery, whether a basis for recovery exists.” (Id.) Thus, the court is not inclined to strike claims for attorney’s fees at this stage.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.