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

July 13, 2026 LAW AND MOTION CALENDAR PAGE 6 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 21-CIV-04741 MICHAEL D. LIBERTY VS. BANK OF THE WEST, ET AL. LINE 3

MICHAEL D. LIBERTY PRO PER RONALD O'CONNELL EDWARD S. ZUSMAN

DEFENDANT: SARAH HILLHOUSES MOTION FOR SUMMARY JUDGMENT (continued from 07/06/26)

TENTATIVE RULING:

The Motion for Summary Judgment or, in the alternative, Summary Adjudication, by Defendant Sarah Hillhouse (“Defendant” or “Sarah”) to the Fourth Amended Complaint (“4AC”) of Plaintiff Michael D. Liberty (“Plaintiff”) is DENIED in part and GRANTED in part..

Background

According to the operative Fourth Amended Complaint, Plaintiff is an attorney who employed Defendant (his onetime girlfriend) as an independent contractor, a bookkeeper.(4AC, ¶ 5.) Defendant had control over Plaintiff’s finances, books, records, credit cards and accounting documents. (Ibid.) Plaintiff alleges that Defendant embezzled approximately $800,000 from Plaintiff’s retirement account, or “defined benefit plan,” using secret bank transfers, and also embezzled from Plaintiff’s business checking account, as well as illegally incurred charges on Plaintiff’s credit cards and other accounts. (4AC, ¶ 14-16.)

Defendant seeks summary judgment or alternatively, summary adjudication to the Ninth through Fourteenth Causes of Action in the 4AC.

Legal Standard

The pleadings play a key role in a summary judgment motion by framing the outer measure of materiality in a summary judgment proceeding. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) Thus, a defendant moving for summary judgment is only required to negate a plaintiff’s theories of liability as alleged in the complaint. (Id.) Thus, the first step in analyzing a summary judgment motion is identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. (Id.) Next, the moving party must establish facts that negate the claim and justify a judgment in the moving party’s favor. (Id., at 493-494.) If the moving party meets this burden, then the court must determine whether the opposition demonstrates a triable issue of material fact. (Id. at 494.)

For purposes of a summary judgment or summary adjudication motion, the defendant has met the initial burden of showing that a cause of action has no merit if the party has shown that one or more elements cannot be established, or there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met this 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. (Id.)

For a defendant to meet the initial burden, it may present affirmative evidence negating as a matter of law an essential element of plaintiff’s claim. (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 334.) Another way for a defendant to meet its initial burden is to show that an essential element of plaintiff’s claim cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) To rely on an absence of evidence, the defendant must show that plaintiff does not possess and cannot reasonably

July 13, 2026 LAW AND MOTION CALENDAR PAGE 7 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ obtain needed evidence. (Id.) Such evidence usually consists of admissions by plaintiff following sufficient discovery to show plaintiff has discovered nothing to support an essential element of the cause of action. (Id. at p. 855.) The defendant cannot just point out through argument that plaintiff does not possess and cannot reasonably obtain needed evidence, but must indeed present evidence. (Id.)

Discussion

Ninth Cause of Action for Conversion The elements of a conversion cause of action are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant converted the property by a wrongful act or disposition of property rights; and (3) the plaintiff suffered damages as a result. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

The 4AC alleges that Plaintiff and Defendant agreed that Defendant would primarily have control over Plaintiff’s finances. (4AC, ¶ 41.) Plaintiff claims that Defendant converted the funds from his law practice by using Plaintiff’s bank accounts and credit cards for Defendant’s own personal use and embezzling money from Plaintiff’s defined benefit plan. (4AC, ¶¶ 45-54.)

Defendant contends that Plaintiff is collaterally estopped from bringing this claim against her because these issues were already decided in a prior family law action between Defendant and his ex-wife.

Collateral estoppel, or issue preclusion, prohibits relitigating issues argued and decided in a previous case, even if the second suit raises different causes of action. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) For collateral estoppel to apply, the following threshold requirements must be fulfilled: (1) the issue sought to be precluded from relitigation must be identical to that in the former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) the issue must have been necessarily decided in the former proceeding; (4) the decision must be final and on the merits in the former proceeding; and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Lucido v.

Sup. Ct. (1990) 51 Cal.3d 335, 341.) The party claiming collateral estoppel has the burden of establishing these requirements. (Id.)

Defendant’s evidence fails to show that the issues raised in this conversion claim are identical to the issues in the family law action, were actually litigated and necessarily decided. The matter before the family court was an OSC re: contempt. (Defendant’s Request for Judicial Notice, Exh. D.) Plaintiff testified in the family action that Defendant fraudulently transferred money out of the retirement depleted his checking account and made unauthorized purchases and embezzled funds. (Defendant’s Undisputed Material Fact (“DUMF”) nos. 3, 7-12.)

The court found Plaintiff’s testimony lacked credibility and was self-serving, and that Plaintiff gave unfettered financial access to accounts and the responsibility of taking on financial information for the divorce to his girlfriend. (DUMF no. 13.) The court also found that Plaintiff violated his fiduciary obligations to his ex-wife with respect to dissipation of the funds from the defined benefit plan. (DUMF no. 14.) Defendant has not shown that in making this ruling, the issue of whether (and the extent to which) Defendant stole from Plaintiff (if at all) was necessarily decided in finding Defendant in contempt in the family law action, i.e., that the Court found that Sarah Hillhouse had not stolen from him and he couldn’t have been held in contempt if the Court found Sarah Hillhouse also stole from him.

Defendant therefore fails to meet her initial burden of showing that collateral estoppel bars this action. The Motion is DENIED as to the Ninth Cause of Action.

Defendant raises for the first time in reply that this conversion claim fails because Plaintiff expressly consented and he was not harmed. (Defendant’s Reply, pp. 4:23-6:4.)

July 13, 2026 LAW AND MOTION CALENDAR PAGE 8 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

Such arguments are not properly before the court because they were not raised in Defendant’s moving papers. (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227-228 [general rule of motion practice is that new evidence or arguments are not permitted with reply papers based on the unfairness to the opponent of not being able to address the new matter raised in a reply].) As such, the court declines to rule on these arguments.

Tenth Cause of Action for Civil Embezzlement The Tenth Cause of Action for Civil Embezzlement alleges that Plaintiff entrusted his money, accounts, credit cards, defined benefit plan and business checking account to Defendant, and she fraudulently converted, appropriated and used Plaintiff’s property for her own benefit or the benefit of her family members. (4AC, ¶¶ 163-166.)

Defendant argues that: (1) no civil right of action exists for embezzlement, (2) collateral estoppel bars this claim, and (3) the funds were given to Defendant by Plaintiff giving her a claim of right to the monies.

First, there is a civil right of action for embezzlement. (See Penal Code, § 496; People v. Kunkin (1973) 9 Cal.3d 245, 250 [“Section 496 is “intended to include property which has been obtained not only by theft by larceny (i.e., stealing) but also by such other forms of theft as embezzlement.”].)

Second, the Court has already explained why collateral estoppel does not entitle Defendant to summary adjudication.

Third, Defendant claims she has a complete defense to any claimed embezzlement because the property was appropriated openly and under a claim of title in good faith. (See Penal Code, § 511.) “California authority in interpreting section 511 has indicated that where an individual honestly believes that he is authorized to appropriate and use property which he is accused of embezzling, the fraudulent intent which is a necessary element of that crime is absent.” (People v. Stewart (1976) 16 Cal.3d 133, 139, citing People v. McManus (1960) 180 Cal.App.2d 19, 40.)

Defendant’s evidence is insufficient to meet her initial burden of showing that this defense bars this cause of action. Defendant acknowledges that the allegations in the 4AC allege that Defendant embezzled money from Plaintiff’s defined benefit plan and business checking account with Bank of the West, Defendant incurred unauthorized credit charges, Defendant forged checks, and Defendant made unauthorized electronic bank transfers and wire transfers. (DUMF nos. 18-21.) Defendant claims Plaintiff gave her an American Express credit card and told her to use it. (DUMF no. 29.)

Defendant also claims Plaintiff instructed her to make withdrawals. (DUMF no. 33.) In support, Defendant cites to page 111 of her deposition testimony. (Diemer Decl., Exh. D, p.111.) Defendant testified that she did not make any charges on the defined benefit plan and wrote checks on the defined benefit plan at Plaintiff’s instruction. (Id.) However, none of Defendant’s undisputed material facts address this claim of right to the monies defense with respect to any alleged actions taken by her as to Plaintiff’s business checking account at Bank of the West.

As discussed above, the pleadings define the issues on a summary judgment motion. (Hutton, 213 Cal.App.4th at p. 493.) Defendant therefore fails to show that this defense operates as a complete bar to Plaintiff’s cause of action since she fails to address all the allegations in support of this claim.

The Motion as to the Tenth Cause of Action is therefore DENIED.

July 13, 2026 LAW AND MOTION CALENDAR PAGE 9 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Eleventh Cause of Action for Breach of Fiduciary Duty A cause of action for breach of fiduciary duty has three elements: (1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) The issue of whether a fiduciary duty exists is generally a question of law. (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 629.)

Plaintiff alleges that Defendant was “Plaintiff’s independent contractor bookkeeper and one time girlfriend. Sarah Hillhouse had authority and control over Plaintiffs finances, books, records, credit cards and accounting documents.” (4AC, ¶ 5.)

Defendant argues that no fiduciary relationship exists to support this claim based on her role as a paralegal, a bookkeeper or Plaintiff’s girlfriend. (See Wolf v. Sup. Ct. (2003) 106 Cal.App.4th 25, 29 (Wolf).)

Plaintiff responds that a fiduciary relationship existed based on the relationship between the parties here, citing CACI 4100.

A fiduciary relationship exists between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party. (Wolf, 106 Cal.App.4th at p. 29.) Such a relationship is synonymous with confidential relation, and is “founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed.” (Id., at p. 30.)

In Wolf, an author filed an action against a film and television production company, Disney, alleging breach of fiduciary duty and breach of contract after the defendant agreed to provide plaintiff with a percentage of future merchandising revenue and audit rights in exchange for the rights to cartoon characters developed by plaintiff. (Id. at p. 28.) The court found no fiduciary relationship existed based on a contingent entitlement to future compensation, profit-sharing aspect of an agreement alone, and the contractual right to an accounting. (Id. at pp. 30-35.)

Thus, Wolf supports finding that a fiduciary duty did not exist between Plaintiff and Defendant.

Plaintiff’s reliance on CACI 4100 also does not show a fiduciary duty existed. CACI 4100 states:

4100 “Fiduciary Duty” Explained

[A/An] [agent/stockbroker/real estate agent/real estate broker/corporate officer/partner/[insert other fiduciary relationship]] owes what is known as a fiduciary duty to [his/her/nonbinary pronoun/its] [principal/client/corporation/partner/[insert other fiduciary relationship]]. A fiduciary duty imposes on [a/an] [agent/stockbroker/real estate agent/real estate broker/corporate officer/partner/[insert other fiduciary relationship]] a duty to act with the utmost good faith in the best interests of [his/her/nonbinary pronoun/its] [principal/client/corporation/partner/[insert other fiduciary relationship]].

(Judicial Council Of California Civil Jury Instruction 4100.) Plaintiff fails to show that the relationship between Plaintiff and Defendant falls within any of these specific categories or some other type of fiduciary relationship.

Based on the authorities cited by the parties, the Motion is GRANTED as to the Eleventh Cause of Action on the ground that no fiduciary duty existed between Plaintiff and Defendant.

Twelfth Cause of Action for Fraud, including Concealment

July 13, 2026 LAW AND MOTION CALENDAR PAGE 10 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ The elements of a cause of action for fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Sup. Court (1996) 12 Cal.4th 631, 638.)

The 4AC alleges that Defendant made several oral representations to Plaintiff, including that Defendant graduated from McGeorge School of Law, that Plaintiff was an expert in Quicken and bookkeeping from previously serving as a breach manager at Wells Fargo Bank, and regarding making only authorized charges on credit cards and the checking account. (4AC, ¶ 179(a)-(h).)

Defendant argues that Plaintiff cannot establish reasonable reliance on any statements regarding McGeorge School of Law because Plaintiff had an obligation to verify the truth of this representation at the time of hiring, citing Cal. Rules of Professional Conduct 5.3(a)-(b).)

California Rules of Professional Conduct Rule 5.3 does not support Defendant’s argument. Rule 5.3 states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a lawyer who individually or together with other lawyers possesses managerial authority in a law firm,1 shall make reasonable* efforts to ensure that the firm* has in effect measures giving reasonable* assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer, whether or not an employee of the same law firm,* shall make reasonable* efforts to ensure that the person's* conduct is compatible with the professional obligations of the lawyer; ...

(Cal. Rules of Prof. Conduct, Rule 5.3(a)-(b).) Defendant has not provided any authority supporting that this rule means an attorney must verify a law school or conduct a background check to satisfy this rule.

The Court therefore cannot grant the Motion on a reasonable reliance theory and need not address Defendant’s remaining argument with respect to the remaining representations.

Defendant also claims that this fraud claim fails because no fiduciary duty exists between Plaintiff and Defendant to support concealment. This cause of action is labeled “FRAUD, INCLUDING CONCEALMENT.” While this claim alleges fraud based on concealment, it also alleges oral misrepresentations. (4AC, ¶¶ 179-180.) Accordingly, Defendant’s argument fails.

Lastly, Defendant raises collateral estoppel but the Court has already explained why collateral estoppel does not entitle Defendant to summary adjudication.

The Motion is therefore DENIED as to this cause of action.

Thirteenth Cause of Action for Constructive Fraud The elements of a cause of action for fraudulent concealment are: “(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would have acted differently if the concealed or suppressed fact was known; and (5) plaintiff sustained damage as a result of the concealment or suppression of the material fact.” (Rattagan v. Uber

July 13, 2026 LAW AND MOTION CALENDAR PAGE 11 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Technologies, Inc. (2024) 17 Cal.5th 1, 40.) A duty to disclose a material fact can arise if the defendant is acting as plaintiff's fiduciary or is in some other confidential relationship with plaintiff that imposes a disclosure duty under the circumstances. (Id.)

Plaintiff acknowledges in opposition that the analysis for this cause of action is identical to the breach of fiduciary duty claim. (Plaintiff’s Opposition, p. 10:21.) For the reasons addressed in the breach of fiduciary duty claim, the court finds that no fiduciary duty existed between Plaintiff and Defendant to support a duty to disclose. The Motion is GRANTED as to this cause of action.

Fourteenth Cause of Action for Accounting Defendant contends that an accounting is not available between an employer and an employee, and therefore this cause of action fails unless Plaintiff demonstrates a relationship between them that requires an accounting, citing Brea v. McGlashan (1934) 3 Cal.App.2d 454, 460.) The court rejects this argument.

In Brea, supra, 3 Cal.App.2d at p. 460, the court found that while ordinarily no accounting is necessary between an employer and an employee, an accounting cause of action could be stated where an accounting would be the only method of arriving at the amount due. A cause of action for accounting only needs to state facts showing the existence of the relationship requiring an accounting and the statement that some balance is due to the plaintiff. (Id.) “An accounting is an equitable proceeding which is proper where there is an unliquidated and unascertained amount owing that cannot be determined without an examination of the debits and credits on the books to determine what is due and owing.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1136–1137.)

The 4AC alleges that there currently exists unsettled accounts, including moneys misappropriated and/or concealed by Defendant, which can only be determined by an accounting. (4AC, ¶ 203.) Defendant is alleged to be in possession of the financial information relating to these moneys, and Plaintiff claims he is unable to ascertain the true status of his law firm’s books and records. (4AC, ¶ 205.) These allegations are sufficient to support an accounting.

The Motion is DENIED to this cause of action.

Plaintiff’s Secondary Liability Theories Plaintiff argues that Defendant’s Motion fails to address secondary liability theories of aiding and abetting and conspiracy. (See 4AC, ¶¶ 11-13.) Plaintiff claims in opposition that Defendant may be held liable for aiding and abetting a breach of fiduciary duty. (Plaintiff’s Opposition, pp. 5:22-6:8.) Plaintiff contends that Defendant has not met her initial burden for this reason.

While the General Allegations include generic, boilerplate allegations regarding aiding and abetting and conspiracy as to each of the defendants, the 4AC does not allege any cause of action against Defendant for aiding and abetting and conspiracy.

Nevertheless, even if Plaintiff had properly pleaded a cause of action against Defendant for aiding and abetting a breach of fiduciary duty, any alleged liability for aiding and abetting or conspiracy is premised on the liability of Defendant Kristina Hillhouse. Liability for aiding and abetting or conspiracy theory is derivative. (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 579.) Such liability is imposed on one person for the direct acts of another. (Id.) The court granted Defendant Kristina Hillhouse’s summary judgment motion. (See July 6, 2026 Minute Order.) Therefore, no derivative liability may be imposed on Defendant for any alleged wrongdoing by Defendant Kristina Hillhouse.

July 13, 2026 LAW AND MOTION CALENDAR PAGE 12 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Request for Judicial Notice Plaintiff’s Request for Judicial Notice is GRANTED. Despite Defendant’s objections, assuming judicial notice is even required, the court may take judicial notice of these documents in the court records. (See Evid. Code, § 452, subd. (d).) However, while the court may take judicial notice of court documents, it does not take judicial notice of the truth of hearsay statements in court files, including pleadings, affidavits, testimony, or statements of fact. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn.7.)

Defendant’s Request for Judicial Notice is also GRANTED. (See Evid. Code, § 452, subd. (d).)

Evidentiary Objections Plaintiff filed evidentiary objections to Defendant’s Separate Statement of Facts. “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” (Cal. Rules of Court, rule 3.1354(b).)

Written objections to evidence must also follow one of two formats set forth in rule 3.1354(b). Plaintiff failed to comply with rule 3.1354 as he makes his evidentiary objections to the separate statement of facts rather than specific evidence. Plaintiff also failed to comply with one of the formats required for evidentiary objections. The court therefore declines to rule on these objections. (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court did not abuse its discretion in refusing to rule on evidentiary objections where they did not comply with rule 3.1354].)

While many would be well-taken, the court also need not rule on Defendant’s evidentiary objections to Plaintiff’s Declaration filed with Defendant’s reply. (See Code Civ. Proc., § 437c, subd. (q) [“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.”].)

Conclusion

Defendant’s Motion for Summary Judgment is DENIED. Defendant’s Motion for Summary Adjudication as to the Ninth, Tenth, Twelfth and Fourteenth Causes of Action are DENIED. Defendant’s Motion for Summary Adjudication to the Eleventh and Thirteenth Causes of Action are GRANTED.

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, Counsel for the Defendant 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 efiled only, do not email or mail a hard copy to the Court.

July 13, 2026 LAW AND MOTION CALENDAR PAGE 13 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 23-CIV-04082 SEILER, LLP VS. JASJIT MANGAT LINE 4

SEILER, LLP KATHRYN S. DIEMER JASJIT MANGAT

PLAINTIFF’S COUNSEL: KATHRYN S. DIEMER’S MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING:

The unopposed motion of Kathryn Diemer and Diemer & Wei to be relieved as counsel of record for plaintiff Seiler, LLP is granted. Pursuant to CRC 3.1362(e), the order does not become effective until proof of service of a copy of the signed order on the client has been filed with the court.

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, Kathryn Diemer or her designee 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 efiled only, do not email or mail a hard copy to the Court.