Case Name: Mary Ann Roberts, et al. v. Jacob Peters, et al.
Case No.: 16CV299932

This is an action primarily alleging fraud in collections and bail bond services. The current motion before the Court is a motion by Defendants Bankers Insurance Company and Brian Kesneck (collectively “Defendants”) for summary judgment or summary adjudication in the alternative of the sixth and ninth causes of action as asserted against both of them by Plaintiff Richard Moore. The current motion is almost identical to Defendants’ prior motion directed at the sixth, eighth and ninth causes of action as asserted against both of them by Plaintiff Mary Ann Roberts, which was denied by the Court in its August 1, 2018 Order.

I. Background

Plaintiffs Richard Moore (“Moore”) and his mother Mary Ann Roberts (“Roberts”) (collectively, “Plaintiffs”) allege they were the victims of unlawful collections practices after they obtained a bail bond to secure Moore’s release from jail.

In January 2007, shortly after Moore’s arrest, Plaintiffs obtained a bond from defendant Jake’s Bail Bonds, Inc. (“JBB”), operated by defendant Jacob Peters (“Peters”), to secure Moore’s release on $250,000 bail. (First Amended Complaint (“FAC”), ¶¶ 10-11.) Plaintiffs paid a $17,500 premium for the bail bond with $10,000 due immediately and $7,500 payable in monthly installments of $416.66. (FAC, ¶ 11.) Defendant Bankers Insurance Company served as the bond’s surety and required that the bond be secured by six different parcels of real property. (FAC, ¶ 11.)

Plaintiffs made their monthly premium payments until January 2008, at which time the remaining balance of the premium was $2,499.30. (FAC, ¶ 12.) At that time, Moore surrendered himself into custody. (FAC, ¶ 14.) Peters promised Plaintiffs that he would not charge them for renewal of the bail bond despite the surrender occurring a few days after the renewal date. (FAC, ¶ 13.) But after Moore’s surrender, Peters broke his promise and recorded a notice of default in connection with a property in Oakland, California reflecting a renewal premium and related charges in the amount of $34,315.62 were due. (FAC, ¶ 15.)

Plaintiffs tried to work with Peters to reverse the charges. (FAC, ¶¶ 16-18.) Plaintiffs provided Peters with an order exonerating the bond nunc pro tunc as he requested, but he refused to reverse the renewal charges and threatened to hire an attorney to vacate the exoneration order. (FAC, ¶¶ 17-18.) Consequently, Plaintiffs filed a complaint with the California Department of Insurance, which thereafter determined that the renewal premium and related charges were unlawful. (FAC, ¶ 19.) Both the California Department of Insurance and Plaintiffs informed Bankers Insurance Company and its Senior Vice President, Defendant Brian Kesneck, about the unlawful charges and Peters’ conduct. (FAC, ¶¶ 18-20.) Plaintiffs also reaffirmed that they would pay the balance of the premium and asked that the deeds of trust for their properties be reconveyed. (FAC, ¶¶ 20-21.) Although Bankers Insurance Company and Kesneck stated they would ensure Peters complied with these requests, Peters thereafter recorded a new notice of default seeking even more money on top of the unlawful premium charges. (FAC, ¶¶ 22-23.) The Oakland property was foreclosed upon, and Bankers Insurance Company obtained title to the property by making a credit bid at the trustee’s sale. (FAC, ¶ 27.) Peters continued to try to collect money from Plaintiffs and eventually sold their purported debt in the amount of $250,000 to defendant Bridgeport Financial, Inc. (“Bridgeport”), who thereafter carried on with collection efforts. (FAC, ¶¶ 31-35.) In February 2016, Bankers Insurance Company reconveyed the deeds for two of the properties used to secure the bond. (FAC, ¶¶ 37-38.)

Plaintiffs assert the following causes of action in their FAC: (1) breach of contract (against Peters and JBB); (2) breach of fiduciary duty (against Peters and JBB); (3) fraud (against Peters and JBB); (4) negligent misrepresentation (against Peters and JBB); (5) negligence per se (against Peters and JBB); (6) fraud based on conspiracy and aiding and abetting theories (against Bankers Insurance Company, Kesneck, and Bridgeport); (7) extortion (against Peters, JBB, and Bridgeport); (8) elder abuse (against Peters, JBB, Bankers Insurance Company, and Kesneck); (9) intentional infliction of emotional distress (against Peters, JBB, Bankers Insurance Company, and Kesneck); and (10) declaratory relief (against Peters, JBB, and Bridgeport).

As noted above, Defendants seek summary judgment/adjudication of the FAC’s sixth and ninth causes of action as alleged against them by Roberts.

II. Requests for Judicial Notice

Defendants have submitted two requests for judicial notice in support of the motion. Judicial notice is a substitute for formal proof. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563-64.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

With their initial moving papers Defendants have submitted a request for the Court to take judicial notice of six documents, exhibits A-F to the request. Several of these documents were also submitted for notice with the prior motion. Notice of Plaintiff’s original complaint (exh. B to the request), Defendants’ demurrer to that no longer operative complaint (exh. C), and the Court’s February 24, 2017 Order on that demurrer (Exh. D) is DENIED as these documents are irrelevant to the material issue before the Court. Notice of the FAC and Defendants’ answer to the FAC (exhs. E and F to the request) is also DENIED as both documents are already considered as part of the Court’s analysis of the motion and court records other than order of the court can only be judicially noticed as to their existence and filing dates, which are not relevant to any material issue before the Court. Notice of Exh. A, a copy of a notice of the rescission of a declaration of default recorded in 2008 in connection with one of the properties in Oakland, California, is GRANTED pursuant to Evidence Code § 452(c) only, as it can be considered tangentially relevant to the statute of limitations argument. That said, the Court notes that, as was the case with the prior motion, this notice is not directly cited or discussed anywhere in the current motion; it is simply cited as support for a handful of facts in the Separate Statement.

The second request for judicial notice of three additional documents (exhibits A-C) submitted with Defendants’ Reply is DENIED. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

III. Standard of Review on Summary Judgment and Adjudication

A. Summary Judgment

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subds. (b)(2), (p)(2).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

B. Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“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).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); See also McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)

On either summary judgment or summary adjudication the moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The court must liberally construe evidence in support of the party opposing summary judgment (or adjudication) and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

IV. Merits of the Motion

Defendants assert that the sixth cause of action for fraud and ninth cause of action for intentional infliction of emotional distress as alleged against them by Plaintiff Moore both fail based on three arguments: 1) that both claims are barred by the applicable statute of limitations; 2) that based on discovery responses Moore has no evidence to support the claims, and; 3) that both claims are “barred” by the doctrine of laches. The second and third arguments are repeated from Defendants’ unsuccessful prior motion directed at the sixth, eighth, and ninth causes of action as alleged by Plaintiff Roberts and will be addressed first.

The motion is DENIED, as follows.

A. Lack of Evidence
This argument is repeated from the prion motion with little material change. (Compare Defendants’ Notice of Motion and Motion filed April 2, 2018 at pp. 19:27-22:15 with Defendants’ Notice of Motion and Motion filed July 9, 2018 at pp. 13:15-14:28 and 20:16-2.)

When moving for summary judgment, a “defendant may. . . conclusively negate an element of the plaintiff’s cause of action [or] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence — as through admissions by the plaintiff following extensive discovery to the effect that he [or she] has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55.) A Defendant must support such a motion with discovery admissions or other admissible evidence showing that “plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, at 854.) It is not enough to meet the initial burden for a defendant to show merely that plaintiff “has no evidence” on a key element of plaintiff’s claim. A Defendant must also produce evidence showing plaintiff cannot reasonably obtain evidence to support that claim. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.)

A party moving for summary judgment does not satisfy its burden of proof by producing discovery responses that do not exclude the possibility that opposing parties may possesses or may reasonably obtain evidence sufficient to establish their claim. (See Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal App 4th 64, 80-81; Gulf Ins. Co. v. Berger, Kahn, Shaffton, Moss, Figler, Simon & Gladstone (2000) 79 Cal App 4th 114, 134-136; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442 (“A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.”) If a plaintiff simply objects to a discovery request, it is not reasonable to infer he or she lacks and cannot obtain evidence. (Weber, supra, at pp. 1439-40.) An objection, even if improper, is “not the equivalent of a factually devoid response, and therefore cannot be used to shift the burden from the moving defendant to the plaintiff under Code of Civil Procedure section 437c, subdivision (p)(2).” (Gaggero, supra, 108 Cal.App.4th at pp. 892-93.)

As with the prior motion directed at Plaintiff Roberts, the portion of the current motion by Defendants making this argument relies heavily on objection-only responses from Plaintiff Moore. Defendants do not address, let alone establish through factually devoid discovery responses, that Plaintiff Roberts does not have and cannot reasonably obtain evidence to support the sixth or the ninth causes of action as alleged by him. Defendants have therefore not met their initial burden on this ground, and the burden never passes to Plaintiff Moore.

B. Laches
This argument is also repeated from the prior motion with little if any meaningful change. (Compare Defendants’ April 2, 2018 Motion at pp. 18:4-19:3 with Defendants’ July 9, 2018 Motion at 16:25-17:23 and 22:3-23:2.)

“Laches is based on the principle that those who neglect their rights may be barred, in equity, from obtaining relief.” (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 248.) To establish laches, a defendant must first show the plaintiff unreasonably delayed in pursuing his or her claims. (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381.) Additionally, a defendant must show it will suffer prejudice as a result or that the plaintiff acquiesced in the conduct he or she complains of. (Ibid.) As in the prior motion Defendants simply assert without support that there has been an unreasonable delay. They do not establish that Plaintiff Moore acquiesced or that they will suffer prejudice. They simply assert (as they did previously) that “[m]emories have naturally faded,” focusing on Plaintiff Roberts’ deposition testimony rather than Plaintiff Moore and argue that “[o]ne important document is no longer available . . . the CDI’s June 23, 2008 letter with its explanation and analysis of Moore’s complaint.” (See current Motion at pp. 16:24-17:23 and pp. 22:3-23:2.)

Finally, as pointed out in the prior order, “it is well-established, both in California and generally, that laches applies to equitable actions, not actions at law.” (Connolly v. Trabue (2012) 204 Cal.App.4th 1154, 1164.) “[T]he laches defense is unavailable in an action at law for damages. . . .” (Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 439.) Both Plaintiffs seek damages in connection with their claims, not equitable relief, so the defense of laches is inapplicable.

C. Statute of Limitations
This is the only new argument presented in the motion. Defendants assert that both the three-year statute of limitations for fraud (Code Civ. Proc. § 338) and the two-year statute of limitations for intentional infliction of emotional distress (Code Civ. Proc. § 335.1) began running by no later than May 2008 because this, they insist, was the last time Plaintiff Moore had any contact with either of them. (See current Motion at p. 13:7-13 and p. 18:13-18.)

Even if it is assumed without deciding that Defendants have met their initial burden on this argument, when the burden shifts Plaintiff Moore is able to demonstrate through admissible evidence (Plaintiff Moore’s declaration, the deposition testimony of Defendants’ designated person-most-knowledgeable Lisa Thompson [Plaintiff’s Exh. 9], the deposition testimony of Defendant Brian Kesneck and documents discussed at that deposition [Plaintiff’s exhs. 10-12]), that triable issues of material fact exist as to whether Defendants’ direct involvement with Plaintiff continued beyond 2008 until possibly 2016 (based on the claimed failure to provide deeds of reconveyance until February 2016 – see Moore declaration at para. 32) and/or as to whether Defendant Jacob Peters was an actual or ostensible agent of Defendants throughout the relevant time period, such that Defendants are liable for his alleged actions continuing into 2016. Civ. Code §2298 states that “[a]n agency is either actual or ostensible.” “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300. Court’s emphasis.) “A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.” (Civ. Code, § 2334.)

Defendants’ request in their Reply that “[a]t a minimum,” summary judgment should be separately granted to Defendant Kesneck, cannot be considered. No such request was included in the Notice of Motion.

Both sides have submitted objections to evidence in their Opposition and Reply, respectively. The Court declines to rule on these objections, under Code of Civil Procedure §437c(q) and California Rules of Court, rule 3.1354.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc. §437c(q).) Any evidentiary objections submitted by either side which do not fully comply with Cal. Rule of Court 3.1354 will not be ruled on by the Court. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)