Re: SmartMed, Inc. v. FirstChoice Medical Group, Inc. Case No. 18 CE CG 00374

Hearing Date: March 27th, 2018 (Dept. 501)

Motion: Defendant Vantage Medical Group, Inc.’s Demurrer to Complaint

Defendant FirstChoice Medical Group, Inc.’s Demurrer to Complaint Tentative Ruling:

To sustain the demurrers of Vantage and FirstChoice as to the first, fourth, and fifth causes of action, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To overrule both demurrers to the sixth cause of action. To sustain both demurrers to the eighth ninth, tenth, and eleventh causes of action, without leave to amend, for failure to state facts sufficient to constitute a cause of action. (Ibid.)

Explanation:

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

“Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, internal citation omitted.) Also, “[t]he requirement of specificity in a fraud action against a corporation requires the plaintiff to 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.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157, internal citations omitted.)

Here, plaintiff has failed to allege the required elements of fraud with specificity. Plaintiff never alleges that defendant Vantage made any misrepresentations to it, or to anyone else. In fact, plaintiff appears to rely on the representations made by the doctors and FirstChoice in 2013 when the MSA was formed, years before Vantage
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entered the picture. Thus, plaintiff has failed to allege any facts showing that Vantage can be held liable for fraud.

Plaintiff argues in opposition that it can hold Vantage liable for fraud even if Vantage never made any misrepresentations directly to plaintiff, because Vantage’s purchase of FirstChoice’s assets was designed to injure, and had the effect of injuring, plaintiff. (Mission Oaks Ranch v. Cty. of Santa Barbara (1998) 65 Cal.App.4th 713, 724, disapproved on other grounds by Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106.) However, there is nothing in Mission Oaks that holds that a defendant who makes no misrepresentations to anyone, either the plaintiff or some third party, can then be held liable for fraud based on the fact that the plaintiff was allegedly injured.

Here, plaintiff has not alleged that Vantage made any false statements to plaintiff or anyone else about either the MSA or the asset purchase agreement. In fact, plaintiff clearly alleges that it did not even know that the purchase of FirstChoice’s assets had occurred until after the fact. (Complaint, ¶¶ 20, 21.) Thus, plaintiff has not alleged, and apparently cannot allege truthfully, that Vantage made any misrepresentations to it or any other party that deceived plaintiff or induced any reliance on plaintiff’s part. As a result, the court intends to sustain the demurrer to the first cause of action as to Vantage, without leave to amend.

The first cause of action also fails to state a claim as to FirstChoice and the doctors. First of all, the allegations are extremely vague as to what misrepresentations were made, who made them, when they were made, their authority to speak, to whom they spoke, and how the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Such vague allegations do not adequately state a cause of action for fraud.

Also, to the extent that plaintiff is alleging that the misrepresentations were made in 2013 in connection with the formation of the MSA, it appears that plaintiff’s claim against FirstChoice is barred by the doctrine of res judicata, as plaintiff could and should have litigated its fraud claim in connection with the MSA at the time of the original arbitration.

“The prerequisite elements of res judicata in its claim preclusion form are (1) the claim in the present action must be identical to a claim litigated or that could have been litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. Although res judicata is usually applied to judicial decisions, a prior judgment confirming an arbitration award may also bar a subsequent lawsuit based on the same cause of action.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185-186, internal citations omitted.)

Here, FirstChoice and plaintiff were both parties to the prior arbitration proceeding. The proceeding resulted in a final arbitration award in favor of plaintiff, and the award was later confirmed by the court and entered as a judgment. Also, the issues raised in the prior case are the same as the issues of the present fraud claim, in that both concerned the MSA and the consequences of its breach. While plaintiff
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apparently did not argue in the arbitration proceeding that FirstChoice executed the MSA with the fraudulent intent not to perform under the agreement, plaintiff certainly could have done so. The fact that it chose not to raise a fraud claim against FirstChoice in the prior case does not allow it to do so now in a piecemeal fashion. Therefore, plaintiff’s fraud claim against FirstChoice based on fraud in the inducement of the MSA is barred by res judicata.

On the other hand, the fraud claim against the individual doctors is not barred by res judicata, as the doctors were not parties to the prior proceeding. Therefore, the court will not sustain the demurrer to their fraud claim based on res judicata. Also, to the extent that plaintiff alleges that FirstChoice somehow committed fraud when it entered into the asset purchase transaction with Vantage, that claim is not barred by res judicata as it does not appear to have been fully litigated and resolved in the prior case. Nevertheless, the fraud claim is still insufficiently alleged, and thus the court intends to sustain the demurrer as to FirstChoice’s and the doctors’ claim for failure to allege facts sufficient to state a claim. Also, it does not appear that there is any reasonable possibility that plaintiff could cure the defect by amendment, since plaintiff has already alleged that it was not even aware of the existence of the asset purchase agreement until it had already been executed, and thus it does not appear that the doctors or FirstChoice made any representations to plaintiff or induced any reliance related to the agreement.

Fourth Cause of Action: Plaintiff attempts to state a claim against the defendants for intentional interference with contractual relationship based on the defendants’ execution of the asset purchase agreement selling FirstChoice’s assets and liabilities to Vantage, which plaintiff alleges induced FirstChoice not to perform under the terms of the MSA and disrupted the contractual relationship between FirstChoice and plaintiff. (Complaint, ¶¶ 64-69.) However, plaintiff’s own complaint previously alleged that FirstChoice had already breached the terms of the MSA in 2013, which led to the parties attending arbitration. (Id. at ¶ 19.) Thus, there was no longer a valid contractual relationship between the parties at the time that the asset purchase agreement was executed in 2016.

In order to state a claim for intentional interference with contractual relationship, there must be a valid contract between plaintiff and a third party. (Popescu v. Apple, Inc. (2016) 1 Cal.App.5th 39, 51.) Here, the plaintiff’s complaint clearly alleges that the contractual relationship between it and FirstChoice had already terminated long before Vantage purchased FirstChoice’s assets. In fact, the parties had been litigating over the breach of the MSA for years before purchase. Thus, plaintiff has not and cannot allege any facts showing that it had a valid contract with FirstChoice at the time of the alleged interference.

While plaintiff argues in opposition that it still had the right to receive payments from FirstChoice under the MSA, and that Vantage and the doctors interfered with this right by executing the asset purchase agreement, at the time of the arbitration plaintiff did not have any ongoing contractual relationship with FirstChoice. At most, plaintiff had the right to recover damages against FirstChoice for breach of contract assuming it prevailed in arbitration. Since there was no valid, ongoing contract between plaintiff
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and FirstChoice at the time the asset purchase agreement was executed, defendants cannot be held liable for interfering with the MSA. As a result, the court intends to sustain the demurrer to the fourth cause of action as to all defendants, without leave to amend.

Fifth Cause of Action: First, as defendants point out, “[T]here is no cause of action in California for unjust enrichment.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Instead, “unjust enrichment” is simply a way of seeking equitable restitution. (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314.)

“There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory…. [Citations.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.)

However, “[a]s a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370, internal citation omitted, holding that the plaintiff could not state an unjust enrichment cause of action where the parties allegedly entered into express contracts.)

Plaintiff contends that courts have recognized that “unjust enrichment” is a separate cause of action, noting that some courts have discussed the elements of such a cause of action. For example, in Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, the court stated, “The elements for a claim of unjust enrichment are ‘receipt of a benefit and unjust retention of the benefit at the expense of another.’” (Id. at p. 1132.) However, the court went on to say that, “It is not, strictly speaking, a theory of recovery, ‘but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.’ [Citation.] … It is synonymous with restitution.’” (Ibid, internal citations omitted.) Thus, even the case cited by plaintiff agrees that unjust enrichment is not itself a cause of action, but rather another way of alleging an equitable claim for restitution.

In any event, whether we call it “unjust enrichment” or “equitable restitution”, in order to state any kind of viable claim, the plaintiff needs to allege that there was no express, enforceable written contract between the parties, and that the defendant received a benefit and unjustly retained it at the expense of plaintiff. (Durell v. Sharp Healthcare, supra, 183 Cal.App.4th at p. 1370.)

Here, plaintiff alleges that it had an express, enforceable written management services contract with FirstChoice, so it cannot state an unjust enrichment or restitution claim against FirstChoice. On the other hand, there was no express contract between
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plaintiff and Vantage or the doctors, so plaintiff might be able to state a claim for restitution against them based on the claim that they unjustly retained money or assets that plaintiff would have received if FirstChoice had not sold its assets to Vantage. Indeed, plaintiff has alleged that Vantage and the doctors received a benefit and unjustly retained it at the expense of plaintiff. (Complaint, ¶ 71.) More specifically, plaintiff alleges that defendants unjustly received a benefit when FirstChoice sold its assets and liabilities to Vantage, with the exception of its liability to plaintiff, thus making FirstChoice judgment proof and allowing Vantage and the doctors to retain the income from FirstChoice without taking on its primary liability. (Id. at ¶¶ 20-23.)

However, “The object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149.) In Korea Supply, the Supreme Court held that the plaintiff could not seek restitution under the UCL for money it would have earned through commissions under a contract with the defendant, because it had no vested property interest in the expectancy of receiving the commissions. (Id. at pp. 1149-1150.) “Such an attenuated expectancy cannot, as KSC contends, be likened to ‘property’ converted by Lockheed Martin that can now be the subject of a constructive trust.” (Id. at p. 1150.) “‘Compensation for a lost business opportunity is a measure of damages and not restitution to the alleged victims.’” (Id. at pp. 1150–1151, internal citations omitted.)

Likewise, here plaintiff appears to be alleging that, by executing the asset transfer agreement with FirstChoice, defendants unjustly obtained the right to receive payments that would have gone to plaintiff under the MSA, and that could have been used to satisfy the judgment. However, plaintiff had no vested property interest in the payments that it would have received under the MSA at the time of the asset purchase agreement, because the MSA had already been breached when Vantage bought FirstChoice’s assets. Nor did plaintiff have an arbitration award or judgment against FirstChoice when the asset purchase agreement was executed. Thus, plaintiff had nothing more than an expectation that it might obtain a judgment against FirstChoice, and it owned no property or money of FirstChoice that could be the subject of a restitution order. Consequently, plaintiff has not, and apparently cannot, state a claim for restitution against any of the defendants.

Sixth Cause of Action: “The general rule is where one corporation sells or transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the former unless (1) the purchaser expressly or impliedly agrees to such assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is merely a continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape liability for debts.” (Ortiz v. South Bend Lathe (1975) 46 Cal.App.3d 842, 846, internal citations omitted, disapproved on other grounds in Ray v. Alad Corp. (1977) 19 Cal.3d 22, 34.)

Here, plaintiff appears to rely on the second and third theories for imposing FirstChoice’s liabilities on the successor corporation, Vantage. “Although these two theories [de facto merger and continuation] have been traditionally considered as separate bases for imposing liability on an [sic] successor corporation, we perceive the
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second to be merely a subset of the first. The crucial factor in determining whether a corporate acquisition constitutes either a de facto merger or a mere continuation is the same: whether adequate cash consideration was paid for the predecessor corporation’s assets.” (Franklin v. USX Corp. (2001) 87 Cal.App.4th 615, 625.)

Vantage argues that plaintiff has admitted that FirstChoice is still an ongoing corporation, and therefore it cannot truthfully allege that FirstChoice and Vantage merged together. However, plaintiff appears to be alleging that FirstChoice only exists now as an empty shell, and that all of its assets and liabilities, with the exception of the liability to plaintiff, have been transferred over to Vantage. (Complaint, ¶ 76.) Thus, although FirstChoice still exists in a technical sense, it is no longer a going concern, as it has no assets or income. Consequently, the fact that FirstChoice did not completely cease to exist does not necessarily mean that plaintiff cannot state a claim for de facto merger or continuation.

Vantage also contends that plaintiff has failed to allege that FirstChoice and Vantage share the same officers, directors, or stockholders, so plaintiff has not stated a claim for de facto merger. However, it is not essential to allege that the two companies share the same officers, directors or shareholders in order to state a de facto merger claim.

“[T]he court in Ray v. Alad stated that liability has been imposed on a successor corporation ‘only upon a showing of one or both of the following factual elements: (1) no adequate consideration was given for the predecessor corporation’s assets and made available for meeting the claims of its unsecured creditors; (2) one or more persons were officers, directors, or stockholders of both corporations. [Citations.]’” (Franklin, supra, at p. 626, internal citation omitted, emphasis in original.) “Thus, although other factors are relevant to both the de facto merger and mere continuation exceptions, the common denominator, which must be present in order to avoid the general rule of successor nonliability, is the payment of inadequate consideration.” (Id. at p. 627.)

Therefore, while the courts may look to shared officers, directors and shareholders as an important factor to consider in determining whether a de facto merger occurred, the key issue is whether or not there was adequate consideration for the transfer. The lack of allegations regarding shared officers, directors, or shareholders is thus not fatal to the cause of action, and the court intends to overrule the demurrer to the sixth cause of action.

Eighth Cause of Action: First, there is no cause of action for conspiracy in and of itself. (Agnew v. Parks (1959)172 Cal.App.2d 756, 765.) “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511, internal citation omitted.)
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“We have summarized the elements and significance of a civil conspiracy: ‘ “The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design… In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.”’” (Ibid, internal citations omitted.)

Here, plaintiff has not alleged any facts showing that defendants engaged in any fraud or other tort that would create joint liability for them under a conspiracy theory. To the extent that plaintiff is attempting to base the conspiracy claim on the allegation that defendants committed fraud, the fraud cause of action is insufficiently alleged and fails to state a claim, as discussed in detail in the demurrer to the first cause of action.

Also, to the extent that plaintiff is alleging that defendants conspired to fraudulently transfer the assets of FirstChoice to Vantage, and thus defeat plaintiff’s ability to collect on any judgment that it might obtain in the arbitration, the conspiracy claim is duplicative of the existing second and third causes of action, which already state claims under the Uniform Voidable Transactions Act. Thus, the conspiracy “cause of action” is merely redundant of the plaintiff’s other causes of action, and as a result the court intends to sustain the demurrer to the eighth cause of action without leave to amend.

Ninth Cause of Action: Plaintiff alleges that defendants violated section 17200 and engaged in unfair, deceptive or fraudulent business practices when they conspired to transfer the assets of FirstChoice to Vantage and thus defeat plaintiff’s ability to collect on any arbitration award it might obtain. (Complaint, ¶¶ 97-99.) However, plaintiff’s claim improperly seeks money damages, including treble damages, for the alleged violation of section 17200. (Id. at ¶ 99.) The only relief permitted under section 17200 is injunctive relief and restitution. (Shersher v. Superior Court (2007) 154 Cal.App.4th 1491, 1496.)

Plaintiff does request restitution of the money it would have been paid pursuant to the MSA, arbitration award, and final judgment, as well as its attorney’s fees and outof-pocket costs. (Complaint, ¶ 99.) However, it does not appear that plaintiff can seek “restitution” of such monies, as it had no vested property interest in payments under the MSA or the arbitration award and judgment at the time that Vantage purchased FirstChoice’s assets.

In order to obtain restitution under section 17200, “[t]he offending party must have obtained something to which it was not entitled and the victim must have given up something which he or she was entitled to keep.” (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 340, emphasis in original.)

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“[W]hen we refer to orders for restitution, we mean orders compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 126–127, superseded by statute on other grounds, as stated in Arias v. Superior Court (2009) 46 Cal.4th 969, 977.) “The object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149.) “‘Compensation for a lost business opportunity is a measure of damages and not restitution to the alleged victims.’” (Id. at pp. 1150–1151, internal citations omitted.)

Likewise, here plaintiff had no vested property interest in receiving payments under the MSA when Vantage purchased FirstChoice’s assets, since the MSA had already been terminated and the parties were in litigation over its breach. At most, plaintiff had an expectancy that it might obtain an arbitration award and judgment against FirstChoice, although even that expectation was uncertain at the time that Vantage purchased FirstChoice’s assets. Therefore, plaintiff cannot claim to have any right to restitution of payments owed to it under the MSA or the award and judgment. Plaintiff’s claim for “restitution” more closely resembles a claim for damages for lost payments under the MSA, which cannot be recovered under the UCL.

Nor does it appear that plaintiff can truthfully allege any new facts to cure the defect, since plaintiff has admitted that the MSA had already been breached when the asset purchase transaction occurred, and that the award and judgment had not yet been issued. Therefore, the court intends to sustain the demurrer to the ninth cause of action, without leave to amend.

Tenth Cause of Action: The elements of a claim for intentional interference with prospective economic advantage are: “ ‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’ [Citations.]” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522; Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1153.)

Here, the complaint’s allegations show that there was no existing economic relationship between plaintiff and FirstChoice. Plaintiff admits that FirstChoice had already breached the MSA and that the parties were in litigation over the breach at the time that Vantage purchased FirstChoice’s assets. (Complaint, ¶ 101.) While plaintiff also alleges that it still had an economic relationship with FirstChoice and that it had a right to receive payments under the MSA, the other allegations of the complaint belie this allegation. It is clear from the complaint that FirstChoice had breached the MSA by refusing to pay plaintiff and attempting to terminate the MSA. (Id. at ¶ 19.) Thus, there was no ongoing economic relationship between plaintiff and FirstChoice, and plaintiff could not have had any expectation of receiving further payments under
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the MSA. At most, plaintiff had an expectation that it would prevail at the arbitration and receive an award and judgment for damages in its favor. However, this was not the type of economic relationship needed to support an interference claim.

Consequently, the plaintiff has failed to state facts sufficient to support its interference with prospective economic advantage claim, and the court intends to sustain the demurrer to the tenth cause of action. Furthermore, the court intends to deny leave to amend, as it does not appear that plaintiff can truthfully allege any facts showing that an economic relationship existed between itself and FirstChoice when Vantage purchased FirstChoice’s assets.

Eleventh Cause of Action: “The elements of a conversion cause of action are (1) plaintiffs’ ownership or right to possession of the property at the time of the conversion; (2) defendants’ conversion by a wrongful act or disposition of plaintiffs’ property rights; and (3) damages.” (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410, internal citation omitted.)

Here, plaintiff alleges that, as an unpaid creditor under the MSA, it had an ownership right to possession of the property of FirstChoice, and that Vantage and FirstChoice wrongfully converted plaintiff’s property when they agreed to sell FirstChoice’s assets to Vantage. (Complaint, ¶¶ 106-107.) However, it appears that the only “property” of plaintiff’s that plaintiff claims was converted was the right to receive payments under the MSA, and the right to collect on the expected judgment against FirstChoice. Plaintiff points to no other specific property that defendants converted other than plaintiff’s right to receive payment of unspecified sums of money.

Yet a plaintiff cannot base a conversion cause of action on a generalized claim that the plaintiff lost money, unless the plaintiff can identify specific sums that defendant took from it. (Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 235.) Here, plaintiff does not allege any specific or identifiable sum of money that defendants converted, and it appears from the allegations that plaintiff did not have a vested ownership right to any specific sum of money when the asset purchase agreement was executed. At most, plaintiff had an expectation that it might prevail against FirstChoice in arbitration and obtain an award of some then-undetermined amount. However, defendants did not convert a specific sum of money from plaintiff when they entered into the asset purchase agreement. Therefore, plaintiff has not, and apparently cannot, state a claim for conversion here. As a result, the court intends to sustain the demurrer to the eleventh cause of action, without leave to amend.

Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling Issued By: MWS on 03/23/18 (Judge’s initials) (Date)