MICHAEL D. LIBERTY VS. BANK OF THE WEST, ET AL.

Defendant Pencomp Inc., (“Pencomp”) whose president is Defendant Ronald O’Connell, is a third party administrator responsible for setting up and administering Plaintiff’s defined

JUNE 15, 2026 LAW AND MOTION CALENDAR PAGE 3 JUDGE: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ benefit plan. Defendant Clifton Lurkis (and Defendant Lurkis, Joyce & Bove LLP) was Plaintiff’s divorce attorney.

As to Defendant, Plaintiff further asserts that his friend, Maria Minerva (“Minerva”), was Defendant’s employee who repeatedly assured Plaintiff that his money was safe and secure with Defendant, and that but for his friendship with her, he would not have opened his accounts with Defendant. Further, Plaintiff claims that, if Defendant had not represented that Plaintiff would be notified by email each time a withdrawal was made from his accounts, he would not have been lulled into a false sense of security, and would have fired Defendant Sarah Hillhouse, preventing conversion and embezzlement. Defendant did not that alert the IRS, Defendant Pencomp, nor himself when tax-penalized withdrawals were made from his defined benefit plan. Defendant further failed to detect and report forged checks from Plaintiff’s business checking account.

Defendant’s demurrers and motions to strike the Complaint and the First Amended Complaint (the “FAC”) each were mooted by the filing of an amended Complaint.

This Court sustained with leave to amend Defendant’s general demurrer to the Second Amended Complaint (the “SAC”) as to each of the five causes of action against it, accordingly mooting Defendant’s motion to strike portions of the SAC. Order, filed on January 11, 2024.

This Court sustained without leave to amend Defendant’s general demurrer to the Third Amended Complaint (the “TAC”) as to the first and fourth causes of action against it, because the existence of fiduciary duty, which was prerequisite to both, could not be sufficiently pled. This Court overruled Defendant’s general demurrer to the remaining causes of action against it in the TAC, then the second and third, both of which it found to be based on the same alleged misrepresentations by Minerva as well as Plaintiff’s reasonable reliance thereon. Order on Demurrer, filed on October 2, 2024.

Legal Standard

Cal. Code of Civil Procedure Section 437c(b)(1) provides that a Motion for Summary Judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” Under Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, the party moving for summary judgment has the burden of production to make a prima facie showing that there is no triable issue of any material fact. The burden then shifts to the nonmoving party to make a prima facie showing that there is a triable issue of material fact.

“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party.” Weiss v. People ex rel. Dep’t of Transportation (2020) 9 Cal.5th 840, 864 (citations omitted). Summary judgment “is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.” Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556. Ultimately, if the Court feels any uncertainty as to whether a grant of summary judgment is proper, “any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” Mateel Environmental J. Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 (citations omitted).

Discussion

As an initial matter, the Court could, and probably should, deny the motion in its entirety based solely on the inclusion of facts 16, 17, 18, 38, 39, 40, 56, 57 and 58 in Defendant’s separate statement and its act of identifying them as material because, it is the Court’s view, that Plaintiff has offered evidence, which does (at

JUNE 15, 2026 LAW AND MOTION CALENDAR PAGE 4 JUDGE: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ least for the purposes of summary judgment), place them in dispute. Plaintiff offers evidence that he was told by Minerva that she would monitor his accounts and provide him notifications, which she did not do, in the context of reassuring him that Bank of the West was the right place to put his money. While Defendant has objected to that evidence, it is admissible, at least at this point, either as “effect on the hearer” evidence, an admission, or both. But for the benefit of the parties, the Court will continue its analysis.

Defendant’s first argument is that summary judgment is appropriate because the evidence is insufficient to create a triable issue of material fact on the element of justifiable reliance, a required element of both causes of action that remain against it (Fraud and negligent misrepresentation). Memorandum of Points and Authorities in Support (“MPA in Support”) at 13. In Opposition, Plaintiff argues that he reasonably relied on Minerva’s representations, in part because she was his friend, that his money would be safe and secure and that she would notify Plaintiff of any withdrawals from his defined benefit plan. Memorandum of Points and Authorities in Opposition (“MPA in Opposition) at 8. The parties agree that justifiable reliance is a required element of both causes of action. They simply disagree as to whether the evidence creates a triable issue of fact.

The California Supreme Court in Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 articulated the foundational rule: except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a question of fact. This general rule reflects the deeply fact-intensive nature of the reliance inquiry. But, California courts assess justifiable reliance not against the standard of a hypothetical reasonable person, but in light of the plaintiff's own knowledge and experience Alliance, 10 Cal.4th at 1247.

Despite the general rule favoring jury resolution, California courts have consistently recognized that justifiable reliance may be decided as a matter of law — and summary judgment or summary adjudication granted — if reasonable minds can come to only one conclusion based on the facts Alliance, 10 Cal.4th at 1240; Guido v. Koopman (1991) Cal.App.4th 837, 843. Courts look to several factors in making this determination, including a plaintiff's sophistication and experience—a plaintiff's particular knowledge and experience are relevant factors in determining whether reliance was justified. See, e.g., Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178 (affirming summary adjudication of fraud claims where the plaintiff was a licensed real estate broker since 1994 who had owned multiple businesses and pieces of real property).

While Plaintiff’s evidence of justifiable reliance is arguably weak and a jury may very well conclude that he behaved unreasonably in completely failing to monitor his account for years based on a purported promise by his friend Minerva to notify him of transactions (presuming a jury believes the promise was even made), the Court cannot conclude that this is one of the very rare cases where justifiable reliance can be decided on summary judgment. The Court notes that while the Defendant appears to rely on Michael Liberty’s experience as an attorney, it does not address that experience in its separate statement.

Similarly, while Defendant also appears to rely on the Deposit Account Agreement, it does not address it in its Separate Statement either, except in passing in items 18, 40 and 58. If that evidence was more directly addressed in the separate statement, this motion might have been resolved differently. And it is possible that this issue could be resolved by the Court at trial if sufficient evidence is presented.

Next, Defendant argues that Plaintiff has failed to offer evidence of Minerva’s attempt to deceive. Again, accepting as true Plaintiff’s evidence, the Court must reasonably infer from Plaintiff’s evidence that the reason why Minerva purportedly promised to monitor for, and notify Plaintiff, was to induce him to open accounts with Bank of the West.

Next Defendant asserts that Plaintiff has failed to offer evidence that would support a finding that Minerva’s purported promises were the proximate cause of his injuries and cites Kiernan v. Union Bank (1976) 55 Cal.

JUNE 15, 2026 LAW AND MOTION CALENDAR PAGE 5 JUDGE: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ App. 3d. 111. Kiernan does not address the issue of proximate cause or deal with a misrepresentation by a bank. Like the issue justifiable reliance, proximate cause is almost always an issue for a jury. Pac. Sunwear of California, Inc. v. Olaes Enters., Inc. (2008) 167 Cal. App. 4th 466, 484.

Finally, Defendant argues that the negligent misrepresentation cause of action is barred by the “special benefit” doctrine. It appears that Defendant is arguing that, to the extent Plaintiff benefitted from the embezzlement, those benefits would mitigate his damages from the purported negligent misrepresentation. But even assuming that is true, the Defendant does not explain why that would support granting summary adjudication of the cause of action and no reason is apparent. The Heckert case cited by Defendants is not a summary judgment/adjudication case. Heckert v. MacDonald (1989) 208 Cal. App. 3d 832.

Objections

Defendant placed objections in its responses to Plaintiff’s separate statement in Opposition, in violation of the California Rules of Court. Cal. Rules of Court 3.1352(1), 3.1354(b) (“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion”), 3.1354(c) (“party submitting written objections to evidence must submit with the objections a proposed order”). Accordingly, the Court declines to rule on those Objections. Hodjat v.

State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 (affirming trial court’s refusal to rule on objections made in separate statements and to provide second chance to file objections). However, they appear to be redundant to the separate objections made by Defendant, which the Court does address below. The Plaintiff also does not provide a proposed Order, but again the Court addresses his objections, to the extent necessary.

Plaintiff’s Objections in Opposition

The Court here rules upon certain selected Objections that pertain to the evidence that must be considered for disposition of the Motion as follows:

Objections Nos. 3, 25, and 43 (which are identical): OVERRULED. Objectoion Nos. 16, 38, and 56 (which are identical): OVERRULED.

The remaining Objections are preserved. (Code Civ. Proc., § 437c, subd. (q).)

Defendant’s Objections in Reply

All Defendant’s Objections are OVERRULED, except (as otherwise provided in this paragraph) that all of the prior out-of-court statements of Mr. Liberty included in his declaration are inadmissible hearsay to the extent they are offered for the truth, which the Court does not believe to be the case. See Objections 4-6, 7, 10, 11, 22- 23, 24, 25-26, Further, as to objection 8, the Court does not interpret Mr. Liberty’s opinion and as a legal conclusion. As to objection 9, the Court agrees that Mr. Liberty has not provided foundation to the extent he is asserting how Ms. Minerva understood their relationship, but that is irrelevant for the purposes of this Motion. Objection 21 is SUSTAINED at to “Bank of the West did not...accounts.”

Finally, Defendant argues that Plaintiff’s allegations have evolved from his interaction with unnamed personnel in the Complaint to his interaction with Ms. Minerva as a bank teller and friend, to her being one with authority to bind Defendant, now to her being its Vice President, so that it can assert the doctrine of judicial admission to eliminate triable issues of material fact. However, as the Court noted in ruling on Defendant’s motion to strike the TAC:

JUNE 15, 2026 LAW AND MOTION CALENDAR PAGE 6 JUDGE: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Minerva’s status as a teller does not necessarily prohibit her from serving as a managing agent, director or officer as well, and to hold otherwise on demurrer would require this Court to disregard Plaintiff’s claim and challenge the factual truthfulness of the allegations of Plaintiff’s complaint. Order Denying Motion to Strike, filed on October 2, 2024, 3:28-4:3.

While here, the Court rules not on demurrer, it remains correct that Plaintiff’s earlier allegations, while arguably not fully consistent and perhaps raising questions, do not directly contradict the allegations of the 4AC. Moreover, it is possible for Plaintiff to have learned more about Ms. Minerva’s status, or to have found it necessary to plead additional facts, with each amendment. The absence of clear contradiction here, as noted by this Court, defeats Defendant’s argument.

Any party who contests a tentative ruling must email Dept.11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the Court.