McMillen vs. Bank of America, National Association

Plaintiffs shall file a supplemental brief that sets forth admissible evidence to establish specific jurisdiction over the Moving Defendant. Plaintiffs’ supplemental brief is due per code.

Moving Defendant shall file a supplemental opposition that responds to Plaintiffs’ evidence with admissible evidence. Defendant’s supplemental brief is due per code.

Any further legal authority cited in supplemental briefs should focus on specific jurisdiction over a foreign defendant who is alleged to be a transferee of a fraudulent transfer.

The hearing on the motion to quash is continued to December 17, 2026 at 01:30 PM.

Case Management Conference is continued to December 17, 2026 at 01:30 PM.

Moving Defendant to give notice. 2 McMillen The Motion for Summary Judgment or Summary Adjudication brought by Defendant Bank vs. Bank of of America, National Association, is DENIED, in whole. America, National Plaintiff’s Request for Judicial Notice is DENIED, as the request relates to an unpublished Association opinion which cannot be considered by this Court, pursuant to California Rules of Court rule 8.1115. Plaintiff attempts to avoid the above, by invocation of the exception articulated in California Rules of Court rule 8.1115(b), which permits consideration of unpublished opinions under the doctrine of collateral estoppel; however, Plaintiff has not demonstrated that collateral estoppel applies.

For collateral estoppel to apply, “the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.” (Williams v. Doctors Medical Center of Modesto, Inc. (2024) 100 Cal.App.5th 1117, 1131.) “The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.’” (Ibid.)

Plaintiff relies on Saribekyan v. Bank of America, N.A. (2020) 2020 WL 38676, to establish a Safe Deposit Box Rental Agreement is unconscionable. (See Opposition: 12:9-16 and 13:14- 15.) However, “unconscionability is a fact-specific defense....” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 124.)

The facts in Saribekyan, upon which the Court relied in finding substantive unconscionability, differ from those alleged herein, such that the actions do not involve “identical issues.” (See Saribekyan v. Bank of America, N.A. (2020) 2020 WL 38676, at p. 11 [cited only for purposes of evaluating collateral estoppel].)

Moreover, “[w]here there is doubt about the application of issue preclusion, it should not apply.” (Williams v. Doctors Medical Center of Modesto, Inc. (2024) 100 Cal.App.5th 1117, 1132.)

Defendant’s Request for Judicial Notice is DENIED as judicial notice of citable authority is unnecessary and, consequently, irrelevant. (See Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 842, fn. 15 and Quelimane Co. v. Stewart Title Guaranty 5

Co. (1998) 19 Cal.4th 26, 45, fn. 9; See also Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18 [allowing consideration of unpublished federal decisions].)

Defendant’s Objections Nos. 1 through 9 are OVERRULED.

While Defendant correctly notes that “[a] party cannot create an issue of fact by a declaration which contradicts his prior [discovery responses]” and “the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and selfserving affidavits of the party” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860), Defendant failed to identify or provide clearly contradictory deposition testimony. (Objection Nos. 1, 2, and 8.)

Further, the Court finds the declaratory statements made by Plaintiff, regarding his conduct and the documents or information provided to him are sufficiently relevant, not barred by the “best evidence” rule, nor lacking in foundation. (Objections Nos. 3-7.)

Finally, Counsel John Taylor properly authenticates the attached deposition. (Objection No. 9.)

Moving to the merits, the Court interprets Defendant’s Motion as seeking adjudication only of the Twentieth and Twenty First Affirmative Defenses, as well as the claims for Negligence and Conversion. The remaining requests fall outside Code of Civil Procedure section 437c, subdivision (f), which permits adjudication only 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,” where adjudication completely disposes of the same. (Code Civ. Proc., § 437c, subd. (f).)

The primary basis upon which Defendant requests adjudication in its favor, is the assertion Plaintiff’s claims are barred by contractual limitations on liability.

It is undisputed Plaintiff signed Safe Deposit Box Rental Agreements on December 20, 2005, and on April 5, 2022. (See ¶6-¶7 of Nilay Declaration and Exhibits A and B thereto; See also ¶6-¶8 of Esposito Declaration and Exhibits 5 and 6 thereto, at RFA No. 1, as well as Exhibit 7, at 26:22-27:5, 28:11-18, 29:4-9, and 29:17-30:1.) Plaintiff confirms he signed the above, within his own declaration. (See ¶6-¶7 of McMillen Declaration.)

In response to this motion, Plaintiff asserts the relevant Agreement is unenforceable for multiple reasons.

Firstly, the Court finds that, to rely on the liquidated damages provision included within the agreement, Defendant is required to establish that the provision is valid under Civil Code section 1671.

It is undisputed the agreement provides as follows: “The Bank’s liability for any loss in connection with the Box and its contents, for whatever reason, shall not exceed ten (10) times the annual rent charged for the Box, except as otherwise provided by law.” (¶7 of Nilay Declaration and Exhibit B thereto.)

Similarly, a document titled “Safe Deposit Box Account Rental Agreement Rules and Regulations” states: “Due to the difficulty in verifying the contents of a Box or the value of 6

the contents, it would be impractical and extremely difficult to anticipate or fix actual damages. Therefore the Bank’s liability for any loss in connection with the Box, for whatever reason, shall not exceed ten (10) times the annual rent rate for the Box except as otherwise provided by law.” (¶9 of Nilay Declaration and Exhibit C thereto.)

Where a contract involves the purchase or rental of services “primarily for the party’s personal, family or household purposes,” a liquidating damages provision “is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” (Civ. Code, § 1671, subd. (c) and (d).)

A two-part test applies to determine whether a liquidated damages provision is valid. (Utility Consumers’ Action Network, Inc. v. AT&T Broadband of Southern Cal., Inc. (2006) 135 Cal.App.4th 1023, 1029.) “The first tracks the statutory language: fixing the amount of actual damages ha[s] to be impracticable or extremely difficult.” (Ibid.) “The second is a judiciallycrafted requirement: the amount selected must ‘represent a reasonable endeavor by the parties to estimate fair compensation for the loss sustained.” (Ibid.) “Determining whether a reasonable endeavor was made depends upon both (1) the motivation and purpose in imposing the charges, and (2) their effect.” (Ibid.)

“Because liquidated damages clauses in consumer contracts are presumed void, the burden is on the proponent of the clause to rebut that presumption.” (Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298, 322.)

As explained by the California Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, “how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Id. at p. 851.)

Based on the above, the burden was on Defendant to demonstrate the liquidated damages provision is enforceable pursuant to Civil Code section 1671. Defendant did not meet this burden.

At most, relying largely on the language included within the applicable Rules and Regulations, the evidence indicates an agreement between the parties that actual damages would be difficult to fix. (¶9 of Nilay Declaration and Exhibit C thereto.)

As no evidence has been offered, which demonstrates a “reasonable endeavor” to estimate fair compensation, Defendant failed to rebut the presumption the provision is void. (See Utility Consumers’ Action Network, Inc. v. AT&T Broadband of Southern Cal., Inc. (2006) 135 Cal.App.4th 1023, 1029 and Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298, 322.)

Additionally, while Defendant offered no specific analysis relevant to Civil Code section 1671, Defendant cites Nalbandyan v. CitiBank, N.A. (C.D. Cal. 2022) 2022 WL 2783839, wherein the court found that “a 500-times-annual-rent damage limitation provision is not ‘arbitrarily low in relation of the amount charged for the rental.’” (Id. at p. 10.) The Court notes that Nalbandyan is distinguishable, as the liquidated damages

provision therein provided a calculation 50 times greater than the calculation included within this agreement.

Based on the above, the request to adjudicate the Twentieth Affirmative Defense, which relies on the above liquidated damages provision, is DENIED.

Additionally, after careful analysis of the evidence and arguments offered by the parties, the Court finds the relevant provisions unconscionable.

“Despite the numerous factual issues that may bear on the question, unconscionability is ultimately a question of law for the court.” (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1349.)

“Both procedural and substantive unconscionability must be present for a court to refuse to enforce a contract provision under the doctrine of unconscionability.” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1570.) However, “they need not be present in the same degree.” (Ibid.) Instead, “a sliding scale is invoked” so that “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the terms is unenforceable, and vice versa.” (Ibid.)

“The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, ‘which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.)

With respect to procedural unconscionability “there is no dispute that the limitation of liability provision is a nonnegotiable term presented in a form agreement that Plaintiff was required to accept...” (Motion: 7:7-10.) As such, it is undisputed the agreement was adhesive and some degree of procedural unconscionability exists.

A slight additional amount of procedural unconscionability exists, with respect to the standard of care limitation articulated within the Rules and Regulations. (¶9 of Nilay Declaration and Exhibit C thereto.)

“‘[P]rocedural surprise focuses on whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation of the weaker party.’” (Sanchez v. Superior Court (2025) 108 Cal.App.5th 615, 626.)

While Plaintiff disputes receiving a copy of the Rules and Regulations prior to February 26, 2024 (See ¶6-¶9 of McMillen Declaration), the Safe Deposit Box Account Rental Agreement which was signed by Plaintiff expressly acknowledges receipt of this document: “The Renter(s) acknowledges receipt of a copy of the Safe Deposit Box Account Rental Agreement and the Safe Deposit Box Account Rental Agreement Rules and Regulations (‘Agreement’).” (¶10 of Nilay Declaration and Exhibit B thereto.)

“The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto....” (Evid. Code, § 622.)

Nonetheless, authority cited by Defendant has attributed additional procedural unconscionability where material terms are incorporated in a separate document and not 8

highlighted: The Central District Court in Nalbandyan v. CitiBank, N.A. (C.D. Cal. 2022) 2022 WL 2783839, found “a high degree of procedural unconscionability,” in part on the basis “the damage limitation provisions in the Rental Agreements were not adequately highlighted.” (Id. at p. 9.) Similarly, in Ong v. Bank of America, N.A. (C.D. Cal. 2023) 2023 WL 2530869 (cited by Defendant), the Court found “a modicum of surprise, as the provision is found within the incorporated Rules rather than the Agreements themselves.” (Id. at p. 5.)

The Court finds these opinions persuasive as to this point, and applicable herein. (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 316, fn. 8 [unpublished federal decisions may be persuasive].)

Consequently, procedural unconscionability has been established.

“A provision is substantively unconscionable if it involves contract terms that are so onesided as to shock the conscience, or that impose harsh or oppressive terms.” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1573 [internal quotations omitted.])

The Court finds the liquidated damages provision, in addition to being presumptively void pursuant to Civil Code section 1671, is also substantively unconscionable.

The language which limits Plaintiff’s damages, incurred under any circumstances and involving any lost property to only $600.00, is both one-sided and sufficiently low to “shock the conscience.” (See ¶7 of Nilay Declaration and Exhibit B thereto; See also ¶9 of Nilay Declaration and Exhibit C thereto.)

In addition to the above, Defendant seeks to enforce the following standard of care limitation: “The Bank shall in no event be liable for the loss of money, cash, coin, jewelry, bullion, or any other article for which the tracing or identification would be more difficult than that of bonds or stock certificates.” (¶9 of Nilay Declaration and Exhibit C thereto.)

The identified provision is one-sided as it seeks to wholly immunize Defendant from the loss of money or cash – items which were – at that time - not prohibited to be stored in the safe deposit box. (¶9 of Nilay Declaration and Exhibit C thereto [See “Prohibited Uses”].) Additionally, the wholesale disclaimer of liability, as to the loss of permitted items, would be unexpected by the average consumer.

In defense of the provision, Defendant relies on Ong v. Bank of America, N.A., (C.D. Cal. 2023) 2023 WL 2530869, wherein the federal court found an identical provision was not substantively unconscionable, on the following grounds: “In California, the law recognizes liability limitation clauses as valid and that they are ‘particularly important where the beneficiary of the clause is involved in a ‘high-risk, low-compensation service.’” (Id. at p. 5.) “The rental of safe deposit boxes is one such ‘high-risk, low-compensation service,’ as renters may store items of significant value in exchange for relatively low rates.” (Ibid.) “Given that corresponding risk – a product of the probability of a loss and its dollar amount –may be quite large, a damage limitations clause is not substantively inappropriate...[T]he party with superior knowledge about the value of what will be placed in the safe deposit box...can best assess the precise risks of loss.” (Ibid.)

Based on the above, the federal court found “that the allocation of risk is not arbitrary, unfair, or unexpected to the Plaintiffs.” (Ibid.)

Initially, the opinion of lower federal courts are not binding, “particularly on issues of California law.” (Sheridan v. Touchstone Television Productions, LLC (2015) 241 Cal.App.4th 508, 516, fn. 7.) Additionally, the Court does not find the reasoning in Ong to be persuasive.

In reaching the above conclusion, Ong relied on language within Markborough California, Inc. v. Superior Court (1991) 227 Cal.App.3d 705, which stated that “it has been recognized that limitation of liability provisions is particularly important where the beneficiary of the clause is involved in a ‘high-risk, low-compensation service.’” (Id. at 714.) In Markborough, the Court analyzed the proper interpretation of Civil Code section 2782.5, applicable to limitations of liability between “a party to a construction contract and the owner or other party for whose account the construction contract is being performed...” (Civ. Code, § 2782.5.)

The Court in Markborough proceeded to explain that a limitation valid under Civil Code section 2782.5 “may be declared unenforceable if the provision is unconscionable or otherwise contrary to public policy.” (Markborough California, Inc. v. Superior Court (1991) 227 Cal.App.3d 705, 715.) “[A] contract provision may be unconscionable if there is an ‘inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’” (Ibid. [internal quotations cleaned up].)

Importantly, the cited language from Markborough was not made in the context of unconscionability analysis. Instead, the Markborough Court acknowledged that unequal bargaining, despite a “high-risk, low-compensation service,” may still render an agreement unenforceable.

The Court in Markborough proceeded to hold that limitations of liability made pursuant to Civil Code section 2782.5 are valid, where an agreement “was reached between parties wherein each party had an opportunity to accept, reject, or modify such a provision.” (Id. at p. 715.)

Given the above context, Ong’s interpretation of Markborough is not persuasive.

Here, as indicated above, it is undisputed the agreement was adhesive and Plaintiff could not modify or negotiate its terms.

Additionally relevant to this analysis, Defendant briefly notes that “a contract can provide a ‘margin of safety’ that provides the party with superior bargaining strength a type of extra protection for which it has a legitimate commercial need without being unconscionable.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 912 [internal quotations cleaned up].)

No evidence of a “legitimate commercial need” has been offered by Defendant, beyond the language in the agreement itself, which states that the identified items would be “more difficult than bonds or stock certificates” to trace. (¶9 of Nilay Declaration and Exhibit C thereto.)

Additionally, while Defendant generally notes that it has no means of determining the value of the items held within a safe deposit box, this argument is unpersuasive. As noted by the California Supreme Court in Cussen v. Southern California Sav. Bank (1901) 133 Cal. 534, in finding Civil Code section 1840 did not bar a similar claim: “[T]he very manner of conducting this somewhat peculiar line of business contemplates that the bailee shall not know the value of the thing deposited. In substance, he closes his eye to the value and character of the deposit; and this fact seems to be one of the controlling features in the transaction of this character of business.” (Id. at p. 538.)

Absent more, the Court cannot find that a provision which totally absolves Defendant of liability for the loss of money or cash, provides a reasonable “margin of safety” based on commercial need.

Based on the above, the request to adjudicate the Twenty-First Affirmative Defense is DENIED. Similarly, as the Twentieth and the Twenty-First Affirmative Defenses appear to be the sole basis upon which adjudication of the Breach of Contract claim was sought, the Motion for Summary Judgment is DENIED.

Next, the requests to summarily adjudicate Plaintiff’s claims for Negligence and Conversion are DENIED.

The economic loss doctrine “functions to bar claims in negligence for pure economic losses in deference to a contract between the litigating parties.” (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.) “[T]here is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.” (Id. at p. 923.) However, “[n]ot all tort claims for monetary losses between contractual parties are barred by the economic loss rule.” (Ibid.) Such claims are barred “when they arise from – or are not independent of – the parties’ underlying contracts.” (Ibid.)

Stated somewhat differently: “Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.)

As relevant herein, the relationship between a customer who rents a safe deposit box and the bank that provides it is that of bailor and bailee. (Webber v. Bank of Tracy (1924) 66 Cal.App.29, 33.) The relationship described is a “depository for hire” (Civ. Code, § 1851) and “[a] depositary for hire must use at least ordinary care for the preservation of the thing deposited.” (Civ. Code, § 1852.)

Based on the above, a duty of care existed, outside of and apart from the Rental Agreement.

Further, the wholesale loss of Plaintiff’s property as alleged, constitutes a loss “not reasonably contemplated by the parties,” as referenced in Rattagan. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20-21.) This is particularly true considering the unconscionability findings stated above. An identical conclusion was reached in Skaggs v. J.P. Morgan Chase Bank, N.A. (C.D. Cal. 2024) 2024 WL 5469542, which this Court finds persuasive.

While Defendant requests judgment in its favor, on the basis the claims are duplicative, “[p]leading of alternative theories of relief on the same set of facts is, of course, quite proper

and is often done where there is legally recognized basis for recovery in both contract and tort.” (Gebert v. Yank (1985) 172 Cal.App.3d 544, 591.)

Finally, the Court notes that Defendant repeatedly asserts that Plaintiff lacks evidence of negligence; however, Plaintiff clearly declares that there was $50,000 within the safe deposit box on August 26, 2022. (¶11 of McMillen Declaration.) Plaintiff additionally declares that he did not remove anything from the box, authorize anyone else to remove anything from the box, or take any action that would assist anyone in removing anything from the box. (¶12 of McMillen Declaration.) Despite the above, the box was empty when he returned on February 26, 2024. (¶13 of McMillen Declaration.)

The above is sufficient evidence of negligence to avoid summary judgment.

As noted by Plaintiff, “[e]xcept where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)

Additionally, “[a] court generally cannot resolve questions about a declarant’s credibility in a summary judgment proceeding [citations] unless admissions against interest have been made which justify disregard of any dissimulation.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.) No such admissions have been made herein.

Moreover, the above is sufficient to invoke res ipsa loquitur. “Res ipsa loquitur, when translated, means simply ‘the thing, or affair, speaks for itself,’ and, so speaking, authorizes the inference of negligence in the absence of a showing to the contrary.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 440 [internal quotations cleaned up].)

“Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of proper care.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 441.)

This presumption has been applied, wherein a “sum of money” was abstracted from a safe deposit box. (See Cussen v. Southern California Sav. Bank (1901) 133 Cal. 534, 537.)

Based on all the above, the Motion for Summary Judgment or Summary Adjudication brought by Defendant is DENIED. 3 Holcomb Motion for Attorney Fees. vs. Raging Bull Defendants Raging Bull Enterprises, Inc. dba Orange County Singles and Monique Butler Enterprises aka Nikki S. Bianco move for an award of attorney’s fees against Plaintiff Jessica, Inc. Holcomb. For the following reasons, the unopposed motion is GRANTED IN A REDUCED AMOUNT.

Plaintiff shall pay Defendants the amount of $106,745 in attorney’s fees and $1,308.57 in costs.

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