Pal vs. US Bank, N.A

TENTATIVE RULINGS

Date: September 3, 2026

# Case Name Tentative

1. 30-2026-01563392 1. Motion to Appear Pro Hac Vice

Everon, LLC vs. The unopposed application of attorney Poston E. Pritchett to appear pro hac vice for Plaintiff Everon, Federal Technology LLC f/k/a ADT Commercial LLC is GRANTED. Solutions, Inc.

2. 30-2021-01231249 1. Case Management Conference 2. Demurrer to Amended Complaint Pal vs. US Bank, N.A Defendant US Bank, N.A. (“Defendant”) demurs to all causes of action alleged in the operative Second Amended Complaint (“SAC”). The SAC contains the following causes of action: (1) breach of contract, (2) implied breach of contract, (3) negligent misrepresentation, (4) fraudulent misrepresentation, (5) constructive fraud, (6) trespass, (7) wrongful repossession, (8) conversion of personal property, (9) declaratory relief, (10) injunctive relief under Business and Professions Code, (11) abuse of process – fraud upon the court, (12) violation of Consumers’ Legal Remedies Act, and (13) violation of the GLB Act.

Plaintiff Aloke Pal, proceeding in pro per (“Plaintiff”) opposes the motion.

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ (Code Civ. Proc., § 425.10, subd. (a)(1)) and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

“[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) “However, ‘ “[t]he fact that a party has alleged more than is required to justify his right does not obligate him to prove more than is essential, and the unnecessary allegations will be treated as surplusage unless the opposing party would be prejudiced.”” (Ibid.)

In determining the merits of a demurrer, “we accept as true all the material facts properly pleaded and we do not go beyond the four corners of the complaint, except as to matters which may be judicially noticed.” (Thorburn v. Department of Corrections (1998) 66 Cal.App.4th 1284, 1287–1288 [emphasis added].) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.

“No error or defect in a pleading is to be regarded unless it affects substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “The primary function of a pleading is to give the

other party notice so that it may prepare its case [Citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Ibid.)

As an initial note, the Court will not consider Exhibits 1 and 2 attached to the Declaration of Dustin Reesman because the Court will not consider facts or evidence beyond the four corners of the complaint and the exhibits are not judicially noticeable.

1. FIRST CAUSE OF ACTION: BREACH OF CONTRACT

Plaintiff’s first cause of action is for breach of contract.

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “[T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–459.) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Ibid.)

Express and implied “contract[s] are identical in that they require a meeting of minds or an agreement [citation].” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230; Allied Anesthesia Medical Group, Inc. v. Inland Empire Health Plan (2022) 80 Cal.App.5th 794, 808 [“the vital elements of a cause of action based on contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration.”].) “Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established.” (Ibid.; Allied Anesthesia Medical Group, Inc. v.

Inland Empire Health Plan (2022) 80 Cal.App.5th 794, 808 [“both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established.”].)

Here, Plaintiff alleges that he entered into a written contract with Defendant. The written contract is attached to the Second Amended Complaint as Exhibit A. Plaintiff alleges that “Plaintiff and Defendant entered into a contract for items (a) through (c), vessel, trailer, and the outboard motor, as set forth in Paragraph 2, referred to as ‘boat’.” (SAC, ¶ 5.) Plaintiff further alleges that he “did everything the contract required, duly paid payments on time.” (SAC, ¶ 82.) Plaintiff further alleges that he was excused from performing under the contract because Defendant breached the contract.

Plaintiff alleges that Defendant breached this contract by failing to provide the Lien Title. (SAC, ¶ 83.) Specifically, Plaintiff alleges:

“Defendant’s failure to provide the Lien Title is a material breach of the loan agreement, which is the first kind of condition precedent; an act that must be performed by Defendant before Plaintiff is required to perform. Therefore, Plaintiff was excused from performing some or all of the contractual conditions. The issue of whether a breach of contract by one party material is sufficient to excuse the other party’s performance is normally a question of fact. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277.)” (SAC, ¶ 83.)

The terms of the Contract attached as Exhibit A of the Second Amended Complaint do not have terms that state that Defendant is required to provide the Lien Title.” In fact, the Lien Title and Defendant’s

obligations related thereto are not discussed in any of the terms in the Contract attached as Exhibit A. Defendant cannot be bound to terms that it did not agree to in the contract.

Likewise, based on the allegations in the SAC, it appears that Plaintiff breach the contract at issue between Plaintiff and Defendant first. Plaintiff alleges that “Plaintiff stopped making payments on the loan in July 2021 to obtain Defendant’s attention.” (SAC, ¶ 13.)

As such, the demurrer to the breach of contract cause of action is SUSTAINED WITH FINAL LEAVE TO AMEND.

2. SECOND CAUSE OF ACTION: IMPLIED BREACH OF CONTRACT

Plaintiff’s second cause of action is uncertain as it is unclear whether Plaintiff is alleging a cause of action for implied breach of contract or breach of the implied covenant of good faith and fair dealing.

For example, the allegation in support of the second cause of action for “implied breach of contract” states the following:

“Pursuant to California Civil Code of Procedure § 1619, a contract may be implied by the conduct of the parties to it.” (SAC, ¶ 87.)

This appears to indicate that Plaintiff is bringing a cause of action for breach of implied contract. The allegations in support of the second cause of action, however, also state:

“Defendant’s conduct violated the duty to act in good faith. “The issue of whether the implied covenant of good faith and fair dealing has been breached is ordinarily “a question of fact unless only one inference [can] be drawn from the evidence.” (Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal. App.5th 280, 292.)” (SAC, ¶ 90.)

These are two different causes of action. The Court will only address a cause of action for breach of implied contact, since that is the cause of action identified in the Second Amended Complaint and Plaintiff appears to confirm in the opposition that Plaintiff’s claims is for breach of an implied contract – Plaintiff does not contend the cause of action is for breach of the covenant of good faith and fair dealing.

First, the elements for a cause of action for breach of implied contract are the same as those for a breach of express contract, which include: “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Express and implied “contract[s] are identical in that they require a meeting of minds or an agreement [citation].” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230; Allied Anesthesia Medical Group, Inc. v. Inland Empire Health Plan (2022) 80 Cal.App.5th 794, 808 [“the vital elements of a cause of action based on contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration.”].) “Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established.” (Ibid.; Allied Anesthesia Medical Group, Inc. v.

Inland Empire Health Plan (2022) 80 Cal.App.5th 794, 808 [“both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established.”].)

“An implied contract is one, the existence and terms of which are manifested by conduct.” (Nissanoff v. UnitedHealthcare Ins. Co. (2024) 108 Cal.App.5th Supp. 1 [citing Civ. Code, § 1621].) “Agreement may be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances.” (Ibid.) “[P]laintiff must allege the substance of its relevant terms.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid.)

Plaintiff must also “allege facts that demonstrate the parties, even if through their conduct and not their words, reached an actual agreement.” (Nissanoff v. UnitedHealthcare Ins. Co. (2024) 108 Cal.App.5th Supp. 1.)

Here, Plaintiff has not identified acts or conduct by Defendant that indicate an implied agreement between Plaintiff and Defendant. Plaintiff also has not indicated what the parties impliedly agreed to and what consideration was exchange between the parties in relation to the agreement.

The Demurrer to the second cause of action for breach of implied contract is SUSTAINED WITH FINAL LEAVE TO AMEND.

3. THIRD CAUSE OF ACTION: NEGLIGENT MISREPRESENTATION

Plaintiff’s third cause of action is for negligent misrepresentation.

“The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

Here, Plaintiff alleges the following in support of his third cause of action for negligent misrepresentation:

“93. Plaintiff hereby incorporates each and every paragraph set forth above as though fully set forth at this place.

94. This is a claim for treble damages, statutory penalties, and forfeitures under the California False Claims Act, Gov. Code §§ 12650-12655.

95. Defendant US BANK NA, directly and indirectly, provided knowing and/or reckless false and misleading information, and failed to meet any fiduciary burden of contractual element.

96. Defendant falsified the boat sale proceeding and reported a fraudulent credit rating to the credit bureaus.

97. Defendant falsely claimed the Long Beach DMV does not work with Electronic Lien Title (ETL).”

These allegations are insufficient to constitute a cause of action for negligent misrepresentation. For example, Defendant does not allege that he justifiably relied on any misrepresentation made by Defendant and that Plaintiff relied on those misrepresentations to his detriment.

The third cause of action for negligent misrepresentation is SUSTAINED WITH FINAL LEAVE TO AMEND.

4. FOURTH CAUSE OF ACTION: FRAUDULENT MISREPRESENTATION

Plaintiff’s fourth cause of action is for fraudulent misrepresentation.

“To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.” (Graham v.

Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606; see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [“The elements of fraud, which give 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.”].)

Fraud causes of action must be pled with specificity. “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.)

Here, Plaintiff alleges the following in support of this fourth cause of action for fraudulent misrepresentation:

“98. Plaintiff hereby incorporates each and every paragraph set forth above as though fully set forth at this place.

99. Defendant committed actionable fraud against Plaintiffs by way of affirmative misrepresentations and the concealment of material facts.

100. Defendant intentionally interfered with the contract. As a proximate result of the fraudulent conduct of Defendant, Plaintiff has been damaged in an amount to be proven at trial.

101. Plaintiff is entitled to damages, and he should be awarded exemplary and punitive damages in an appropriate amount to punish Defendant and to deter similar fraudulent conduct in the future.” (SAC, ¶¶ 98-101.)

As indicated above, Plaintiff again has not alleged any representations that Plaintiff reasonably relied on to his detriment in relation to the alleged fraud committed by Defendant.

The demurrer to the fourth cause of action for fraudulent misrepresentation is SUSTAINED WITH FINAL LEAVE TO AMEND.

5. FIFTH CAUSE OF ACTION: CONSTRUCTIVE FRAUD

Plaintiff’s fifth cause of action is for constructive fraud. Plaintiff brings this cause of action pursuant to Code of Civil Procedure sections 1572 and 1710(1).

Code of Civil Procedure section 1572 states grants authority for the State Controller to bring a cause of action. It does not appear that Plaintiff has standing to assert this cause of action. Likewise, Code of Civil Procedure sections 1572 and 1710(1) was repealed by Stats.1931, c. 281, p. 687, § 1700.

Civil Code section 1573, however, governs constructive fraud. Civil Code section 1573 states:

“Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573.)

A cause of action for constructive fraud requires the following elements: “(1) a fiduciary relationship, (2) nondisclosure, (3) intent to deceive, and (4) reliance and resulting injury.” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249–1250.)

“Constructive fraud is any breach of duty that, without fraudulent intent, gains an advantage to the person at fault by misleading another to his prejudice.” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1250 [citing Civ. Code, § 1573; Stokes v. Henson (1990) 217 Cal.App.3d 187, 197].) “Like an action for fraud, constructive fraud must be pled with specificity.” (Ibid.)

Importantly, however, “[t]he relationship between a lending institution and its borrower-client is not fiduciary in nature.” Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1093, fn. 1 [citing Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 476–478 (overruled on other grounds)]; see also Bank of America Corp. v. Superior Court (2011) 198 Cal.App.4th 862, 871 [“Absent special circumstances, a loan transaction is at arm's length and there is no fiduciary relationship between the borrower and lender.”].) “A commercial lender is entitled to pursue its own economic interests in a loan transaction.” (Id.)

Here, Plaintiff alleges that “Defendant owes fiduciary and quasi-fiduciary duties to Plaintiff, including duties of loyalty, due care, good faith, and fair dealing in connection with their actions under the Policy.” The Complaint does not allege what constitutes the “Policy.” Moreover, the only relationship alleged between Plaintiff and Defendant is a contractual relationship between a lender and a borrow. Such a relationship is not fiduciary in nature.

The demurrer to the fifth cause of action for constructive fraud is SUSTAINED WITHOUT LEAVE TO AMEND.

6. SIXTH CAUSE OF ACTION: TRESPASS

Plaintiff’s sixth cause of action is for trespass. “Trespass is an unlawful interference with possession of property.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261, as modified (Nov. 6, 2017).)

“The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (Id. [citing CACI No. 2000.)

Here, Plaintiff has sufficiently alleged a cause of action for trespass.

Plaintiff alleges the following allegations that support his cause of action for trespass:

“On October 30, 2021, Defendant staged a repossession and took the boat from Plaintiff’s residence. Over the year, it sent multiple intruders onto Plaintiff’s property who took pictures of the boat and the property without permission.” (SAC, ¶ 14.)

“Defendant US Bank NA sent a strange and violent repo person to Plaintiff’s home and took the boat. Plaintiff and family were surprised; Defendant did not notify Plaintiff. The repossession was violent and disturbed the peace; law enforcement was called.” (SAC, ¶ 45.)

“The repossession was traumatic, disturbing, and constituted harassment. Plaintiff called the local law enforcement. The boat was taken from Plaintiff’s property in the presence of the Deputy.” (SAC, ¶ 46.)

“Defendant intruded into Plaintiff’s property on October 30, 2021. Defendant had no business on Plaintiff’s property, let alone staging a repossession. The so-called repossession is a hit, theft, and concealment.” (SAC, ¶ 52.)

“Defendant wrongfully entered Plaintiff’s property and trespassed, substantially interfered with, knowing and intentionally. Defendant had no business removing items to which Defendant had no right; this is commonly referred to as theft and concealment. Plaintiff did not consent, Plaintiff is harmed, and Defendant’s conduct is the sole factor in causing harm and injury.” (SAC, ¶ 115.)

Plaintiff further alleges that Defendant unlawfully took the following during the trespass: “a. Vessel: 2018 ROBALO R226, VIN: ROBN0166J718 b. Trailer: 2018 COYOTE Trailer, VIN: 5001B2624JN374376 c. Outboard Engine: 200 HP YAMAHA d. Navigation system e. Steering system f. Fishing equipment and system g. Anchoring systems h. Personal stuff.” (SAC, ¶¶ 4 and 51.)

As indicated above, Plaintiff also alleges emotional damages from the alleged trespass.

Defendant argues that Commercial Code section 9606 bars this cause of action because Defendant had a security interest in the boat and was therefore permitted to after default, take possession of collateral “without judicial process, if it proceeds without breach of the peace.” Cal. Com. Code § 9609(a)(1), (b)(2). The contract at issue between Plaintiff and Defendant regarding the loan for the boat states that Plaintiff gave Defendant “a security interest in the Collateral being purchased with the loan proceeds.” (See SAC, Ex. A.) However, while Plaintiff appears to allege that he defaulted on the loan when he stopped payment, he also alleges that the repossession was “violent and disturbed the peace” and “traumatic, disturbing, and constituted harassment.” (SAC, ¶¶ 45-46.) Thus, at this stage of the litigation, the Court cannot determine that this claim is barred by section 9609.

The Demurrer is OVERRULED as to Plaintiff’s sixth cause of action for trespass.

7. SEVENTH CAUSE OF ACTION: WRONGFUL REPOSSESSION

Plaintiff’s seventh cause of action is for wrongful repossession. The Second Amended Complaint cites to Civ. Code, § 2983.3(a)(1) in support of this cause of action.

Civil Code section 2983.3(a)(1) states:

“In the absence of default in the performance of any of the buyer's obligations under the contract, the seller or holder may not accelerate the maturity of any part or all of the amount due thereunder or repossess the motor vehicle.” (Civ. Code, § 2983.3, subd. (a)(1).)

Here, Plaintiff alleges that he stopped payment on the loan. Thus, Plaintiff has not alleged an absent of default in performance of the buyer’s obligations under the contract. Plaintiff alleges “Plaintiff stopped making payment on the loan in July 2021 to obtain Defendant’s attention.” (SAC, ¶ 13.)

The Demurrer to the seventh cause of action is SUSTAINED WITH FINAL LEAVE TO AMEND.

8. EIGHTH CAUSE OF ACTION: CONVERSION OF PERSONAL PROPERTY

Plaintiff’s eighth cause of action is for conversion of personal property.

The tort of conversion “comprises three elements: (a) plaintiff's ownership or right to possession of personal property, (b) defendant's disposition of property in a manner inconsistent with plaintiff's property rights, and (c) resulting damages.” (Voris v. Lampert (2019) 7 Cal.5th 1141, 1150 [internal citations omitted].)

Here, Plaintiff alleges that Defendant unlawfully took possession the following:

“a. Vessel: 2018 ROBALO R226, VIN: ROBN0166J718 b. Trailer: 2018 COYOTE Trailer, VIN: 5001B2624JN374376 c. Outboard Engine: 200 HP YAMAHA d. Navigation system e. Steering system f. Fishing equipment and system g. Anchoring systems h. Personal stuff.” (SAC, ¶¶ 4 and 51.)

Plaintiff further alleges:

“Plaintiff made all payments, obtained insurance, and received temporary registration of the boat from the DMV. Plaintiff is the lawful owner of the “Boat,” which included the following: boat, trailer, engine, upgraded navigation and steering, fishing equipment and system, anchoring systems, and personal stuff.” (SAC, ¶ 125.)

“Plaintiff alleges that Defendant’s agent, who repossessed the boat, also took Plaintiff’s personal belongings without his knowledge and presumably without his consent. This constitutes conversion.” (SAC, ¶ 126.)

The demurrer to the eighth cause of action for conversion of personal property is OVERRULED.

9. NINTH CAUSE OF ACTION: DECLARATORY RELIEF

Plaintiff’s ninth cause of action is for declaratory relief.

“Declaratory relief is available to a party ‘who desires a declaration of his or her rights or duties with respect to another ....’” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Code Civ. Proc., § 1060].)

“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties and requests that the rights and duties of the parties be adjudged by the court.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022).)

“If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish the plaintiff is entitled to favorable declaration. (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606].)

“Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022).) “Thus the remedy is to be used to advance preventative justice, to declare rather than execute rights. [Citation.]” (Id. [citing Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59, 122 Cal.Rptr.3d 480].)

“In essence, declaratory relief operates to declare future rights, not to address past wrongs.” ((Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497].)

“A party seeking declaratory relief must show a very significant possibility of future harm.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 17].)

“In assessing whether declaratory relief is available, a court determines whether ‘a probable future dispute over legal rights between parties is sufficiently ripe to represent an ‘actual controversy’ within the meaning of the statute authorizing declaratory relief (Code Civ. Proc., § 1060), as opposed to purely hypothetical concerns ....”’ (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Steinberg v. Chiang (2014) 223 Cal.App.4th 338, 343].)

“An ‘actual controversy’ under the declaratory relief statute is ‘one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.’ [Citation.]” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Gilb v. Chiang (2010) 186 Cal.App.4th 444, 459].)

“Declaratory relief is an equitable remedy and need not be awarded if the circumstances do not warrant.” (Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 930.)

Here, the Court finds that Plaintiff has sufficiently alleged a cause of action for declaratory relief. In particular, Plaintiff alleges a controversy regarding Plaintiff’s right to the boat that was repossessed and his personal items therein. Plaintiff also seeks a judicial declaration regarding Defendant’s obligations pursuant to the contract between the parties.

The demurrer to the ninth cause of action for declaratory relief is OVERRULED.

10. TENTH CAUSE OF ACTION: INJUNCTIVE RELIEF UNDER BUSINESS AND PROFESSIONS CODE

Plaintiff’s tenth cause of action is for injunctive relief under Business and Professions Code.

“As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200.)

“California courts have consistently interpreted the language of section 17200 broadly.” (Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 891.) “It is not necessary to show that the defendant intended to injure anyone.” (Ibid.) “The UCL covers a wide range of conduct.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1247.) “It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Ibid.)

“A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) “The determination whether a business practice is unfair involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer.” (Ibid.) “In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim.” (Ibid.)

“To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising.” (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970.) “Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Ibid.)

“Only equitable remedies can be obtained; damages cannot be recovered.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1248.)

“Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1247.) “The UCL covers a wide range of conduct.” (Ibid.) “It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Ibid.)

“An act can be alleged to violate any or all of the three prongs of the UCL—unlawful, unfair, or fraudulent.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1248.)

“However, the remedies available for violation of the UCL are limited.” (Ibid.) “Only equitable remedies can be obtained; damages cannot be recovered.” (Ibid.)

Here, Plaintiff has alleged unlawful and unfair conduct (trespass and conversion) such that his tenth cause of action for injunctive relief under the Business and Professions Code is OVERRULED.

11. ELEVENTH CAUSE OF ACTION: ABUSE OF PROCESS – FRAUD UPON THE COURT

Plaintiff’s eleventh cause of action is for abuse of process – fraud upon the court. “The tort of abuse of process arises when one uses the court's process for a purpose other than that for which the process was designed.” (Brown v. Kennard (2001) 94 Cal.App.4th 40, 44.) “[T]he essence of the tort [is] ... misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.” (Ibid.) “To succeed in an action for abuse of process, a litigant must establish two elements: that the defendant (1) contemplated an ulterior motive in using the process; and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Ibid.) “In other words, abuse of process requires an act outside the purpose of the process.” (Brown v. Kennard (2001) 94 Cal.App.4th 40, 44.)

The litigation “privilege applies to publications and communications: (1) made in judicial or quasijudicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Brown v. Kennard (2001) 94 Cal.App.4th 40, 45.) The litigation privilege applies to abuse of process and fraud causes of action.

Here, the wrongful conduct alleged in support of the eleventh cause of action for abuse of process – fraud upon the court all related to communications made by Defendants in judicial proceedings in furtherance of the defense to this case. All allegedly wrongful acts alleges have come connection or logical relation to the action.

For these reasons, the demurrer to the eleventh cause of action for abuse of process – fraud upon the court is SUSTAINED WITHOUT LEAVE TO AMEND.

12. TWELFTH CAUSE OF ACTION: VIOLATION OF CONSUMERS’ LEGAL REMEDIES ACT

Plaintiff’s twelfth cause of action is for violation of Consumers’ Legal Remedies Act pursuant to Civil Code section 1750.

“At least 30 days prior to the commencement of an action for damages under the CLRA, the consumer must provide written notice of the particular alleged violations of Section 1770 and [d]emand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.” (Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 609 [citing Civ. Code, § 1782, subd. (a)] [internal citations omitted].) “Further, no action for damages may be maintained under Section 1780 if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.” (Ibid.)

Here, Plaintiff has not alleged compliance with the 30 day notice requisite to filing this lawsuit. Plaintiff does not address the substance of this argument in his opposition and only states “Defendant’s incoherent, rambling lectures should prompt warnings across law teaching institutions

and bar associations. Defendant’s counsel attempted to explain an error Plaintiff may have made and referenced a non-existent paragraph. (Demur, P.11, ¶ 2), See line number 6, on page 11, reads, ‘Id. at 609.’ Paragraph 609 does not exist.”

The Court will consider Plaintiff’s failure to substantively address this cause of action as a concession to the merits of Defendant’s argument. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566, as modified (Jan. 25, 2000) [“By failing to argue the contrary, plaintiffs concede this issue.”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [holding that “by fail[ing] to address” an issue, the issue is “impliedly concede[d].”]; and Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“Its failure to address the threshold question of intent effectively concedes that issue and renders its remaining arguments moot.”].)

The demurrer to the twelfth cause of action is for violation of Consumers’ Legal Remedies Act pursuant to Civil Code section 1750 is SUSTAINED WITHOUT LEAVE TO AMEND.

13. THIRTEENTH CAUSE OF ACTION VIOLATION OF THE GLB ACT

Plaintiff’s thirteenth cause of action is for violation of the GLB Act. Plaintiff alleges that “Defendant did not sell the boat as a single unit, falsified the sale date, sale price, and reported false delinquency to harass, disturb, and destroy the consumer.” (SAC, ¶ 166.)

The Court is persuaded by Defendant’s citation to Luminate Home Loans, Inc. v. Better Mortg. Co., 2026 U.S. Dist. LEXIS 94634, at *23 (S.D. Cal. Apr. 29, 2026), which holds that “there is no private cause of action under the Gramm Leach Bliley Act.” (Id. [citing Mendelsohn v. Capital Underwriters, Inc., 490 F.Supp. 1069, 1079-80 (N.D.Cal.1979); see also Earle v. Aramark Corp., 2005 U.S. Dist. LEXIS 65409, 2005 WL 473675 at *3 (N.D.Tex. Feb.28, 2005)].)

As such, the Demurrer to the thirteenth cause of action is for violation of the GLB Act is SUSTAINED WITHOUT LEAVE TO AMEND.

***As to the causes of action where a final leave to amend was granted, any amended pleading to be filed and served within 30 days.

Clerk to give notice.

6. 30-2024-01422830 1. Motion for Leave to File Amended Complaint 2. Order to Show Cause Prieto vs. Ocean 3. Order to Show Cause re: Dismissal for Failure to Proceed Investment Group, LLC Motion for Leave to file Second Amended Complaint is DENIED without prejudice.

There is no Answer on file with the Court. As such, leave of court to file an amended complaint does not appear necessary. [Code Civ. Proc., § 472(a).]

Plus, Plaintiff requests leave to file a “Second Amended Complaint”; yet, no First Amended Complaint has been filed herein. [See ROA 9]

Additionally, Plaintiff fails to identify by page, paragraph, and line number any additions to and deletions from the prior pleading. [CRC 3.1324(a)(2), (3)].