Bobadilla v. Loan Factory, Inc.

LINE # CASE # CASE TITLE RULING LINE 1 25CV460058 Phillip Clarin vs Proper Hospitality, LLC See Line 1 for tentative ruling. (Class Action) LINE 2 22CV394907 Steer v. Town of Los Gatos, et al. See Line 2 for tentative ruling. (CEQA) LINE 3 23CV424955 Khatanbaatar v. Infogain Technologies, See Line 3 for tentative ruling. Inc., et al. (Class Action) LINE 4 24CV432129 Bobadilla v. Loan Factory, Inc. (Class See Line 4 for tentative ruling. Action) LINE 5 24CV432129 Bobadilla v. Loan Factory, Inc. (Class See Line 4 for tentative ruling. Action) LINE 6 25CV464775 Anthony Turiello vs Piping Systems See Line 6 for tentative ruling. Engineering Inc. LINE 7 25CV464775 Anthony Turiello vs Piping Systems See Line 7 for tentative ruling. Engineering Inc. LINE 8 25CV464775 Anthony Turiello vs Piping Systems See Line 8 for tentative ruling. Engineering Inc. LINE 9 LINE 10 LINE 11 LINE 12 LINE 13

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Case Name: Bobadilla v. Loan Factory, Inc. Case No.: 24CV432129

This is a certified class action for misappropriation of likeness. Defendant Loan Factory, Inc. (“Loan Factory” or “Defendant”) displayed the names, photographs, and NMLS numbers of thousands of unaffiliated California loan officers on a “Find a Loan Officer” subpage of its website for a period of weeks in 2023.

On behalf of the certified class, Plaintiff Derek Bobadilla asserts four causes of action: statutory misappropriation under Civil Code section 3344; common-law misappropriation; violation of the Unfair Competition Law (“UCL”); and unjust enrichment.

Before the Court are the following: (1) Defendant’s motion for summary judgment, or alternatively, summary adjudication; and (2) Defendant’s motion to stay the mailing of the class notice.

For the reasons discussed below, the Court DENIES Defendant’s summary judgment/adjudication motion in its entirety and GRANTS IN PART Defendant’s motion to stay the mailing of the class notice.

I.

Background

While the parties largely do not dispute the material facts, they do dispute their legal significance.

For a period of weeks between late May and mid-July 2023, Loan Factory’s website included a searchable directory that could display a loan officer’s name, photograph, and NMLS identification number, drawn from public sources and gathered by “scraping.” (Defendant’s Separate Statement of Undisputed Material Facts (“D’s UMF”) 1–15.)

Loan Factory did not obtain consent from, or pay, the unaffiliated officers. (Plaintiff’s Separate Statement of Additional Material Facts (“P’s AMF”) 25, 36.)

It removed outside officers from the webpage by mid-July 2023. (D’s UMF 7.)

The Court certified the class on June 11, 2026, and Defendant has since petitioned the Court of Appeal for a writ of mandate directed at that order.

The parties dispute the character and effect of Defendant’s “Find a Loan Officer” webpage.

Plaintiff casts it as a deliberate search-engine-optimization and lead-generation device that used competitors’ identities to drive traffic, displayed Loan Factory’s branding and loan-application links throughout, and omitted any disclaimer of non-affiliation. (P’s AMF 17– 24, 43–56, 72–90.)

Loan Factory casts it as a short-lived, truthful directory that identified each officer’s own brokerage and caused no measurable harm. (D’s UMF 7–19.)

The jury decides which of these characterizations and related inferences to accept.

II. Legal Standard on Summary Judgment

Summary judgment is proper only where the papers show no triable issue of material fact such that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

A defendant carries its initial burden by showing that an element of each cause of action cannot be established, whether by affirmative evidence or by pointing to the plaintiff’s factually devoid discovery after adequate opportunity. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–855.)

The burden then shifts to the plaintiff, who need not prove its case but only produce admissible evidence raising a triable issue.

The Court neither weighs the evidence nor judges credibility.

It construes the opposition liberally, scrutinizes the moving papers strictly, and resolves every reasonable inference and every doubt in the opposing party’s favor. (Id. at pp. 843, 856–857.)

III. Plaintiff’s Request for Summary Judgment

Plaintiff asks the Court to judicially notice legislative-history materials concerning Civil Code section 3344 (Exhibit 77) and a historical edition of Black’s Law Dictionary defining “actual” and “nominal” damages (Exhibit 78).

Legislative history is a proper subject of judicial notice under Evidence Code section 452, subdivisions (b) and (c), and a dictionary’s contents may be noticed as a source of reasonably indisputable accuracy under subdivision (h).

The Court GRANTS the request as to the existence and content of these materials.

On the other hand, the Court DENIES the request to the extent that Plaintiff would have the Court notice any disputed fact, or adopt any contested legal proposition, as true merely because it appears in these sources.

In other words, the Court notices what the documents say but does not accept them as proof of what the parties dispute.

IV. Evidentiary Objections

Both sides have lodged objections.

On a summary-judgment motion, the Court need rule only on those objections it deems material to its disposition. (Code Civ. Proc., § 437c, subd. (q).)

Objections directed at evidence the Court has not relied upon are overruled as moot, and the Court declines to rule on them individually.

The Court makes the following specific rulings.

First, Defendant objects on hearsay grounds to posts from a loan-officer social-media group offered to show that officers reacted with anger to the directory.

To the extent those posts are offered to prove the officers’ then-existing state of mind, they are not hearsay, or they fall within the state-of-mind exception. (Evid. Code, §§ 1250, 1200.)

While Defendant’s objection is OVERRULED for that limited purpose, the posts are not received for the truth of any other matter asserted.

In any event, the deposition testimony of Bobadilla and Eidinger (i.e., that they were “furious” at the unconsented use of their names and images) is their own testimony and is admissible.

Next, as to Defendant’s challenges to the opinions of Plaintiff’s expert Herzberg, the Court declines to rule under section 437c(q), because those opinions are not material to the disposition.

The Court reaches its conclusion on the summary-judgment motion without relying on Herzberg’s regulatory-risk speculation, and it expresses no view here on the pending motion to strike or on the admissibility of his opinions at trial.

Finally, Plaintiff’s objections to Loan Factory’s evidence are OVERRULED to the extent the Court has not relied on that evidence and are otherwise deemed immaterial.

V. Motion for Summary Judgment or Summary Adjudication

A. Injury and the Statutory Minimum

Defendant’s motion focuses on its contentions that Plaintiff has no evidence of injury and injury is an essential element of every claim. (MSJ, pp. 5–8, 12–14; Reply, pp. 3–5.)

While the first proposition overstates the record, in the Court’s view, the second proposition states a genuine and unsettled question of law that largely controls here.

The California appellate courts have not yet squarely decided whether a plaintiff seeking only the section 3344 statutory minimum of $750 must prove the fact of injury, or whether that minimum operates as a floor once knowing use, commercial advantage, and lack of consent are shown.

Loan Factory reads the statute’s references to the “injured party” as a universal predicate to recovery, and it invokes Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 807, together with federal decisions such as Cohen v. Facebook, Inc. (MSJ, pp. 5, 12–13; Reply, pp. 4–5.)

Plaintiff reads Miller v. Collectors Universe, Inc. (2007) 159 Cal.App.4th 988, and Fraley v. Facebook, Inc. (N.D.Cal. 2011) 830 F.Supp.2d 785, to mean that the statutory minimum exists precisely to supply a remedy where a non-celebrity’s harm is real but difficult to quantify. (Opp., pp. 8–11.)

While each side presents valid arguments, neither has a controlling California case directly on point.

Notably, Loan Factory itself describes the minimum as a “floor for damages when injury exists but is difficult to measure in economic terms.” (MSJ, p. 14.)

The Court has already confronted this question once.

In certifying the class, it held that “if Loan Factory is liable under section 3344, every class member is entitled to at least $750 without individualized proof of actual harm,” and that “the statutory minimum exists to fill the gap for noncelebrity plaintiffs whose names lack established market value and whose harm is difficult to quantify.” (Class Cert. Order 11:2–7, quoted at Opp., pp. 8 and Joint Status Report/Trial Plan, p. 3.)

That reasoning was necessary to the Court’s finding of predominance.

The Court sees no reason to reject it now, and several reasons to follow it.

The statute’s text accommodates the reading.

Miller’s account of the legislative purpose supports it.

And the alternative (i.e., that a class the Court has certified on the premise of a class-wide statutory remedy could be dismissed wholesale for want of individualized injury proof) would not conform with the order that defines this case.

The Court adheres to its prior construction.

For the section 3344 claim seeking the statutory minimum, Plaintiff need not tender individualized proof of actual harm.

That conclusion does not end the analysis because the Court recognizes the question is close and is now before the Court of Appeal.

As discussed below, the Court independently finds that even if some quantum of injury must be shown, the record raises triable issues.

B. First Cause of Action – Civil Code section 3344

For the statutory minimum, injury is presumed, as explained above.

Independent of that, triable issues of injury still exist.

Bobadilla and Eidinger each testified they were furious at the nonconsensual commercial use of their identities. (Opp., pp. 18–19; P’s SS UMF 66–67, 74.)

That testimony, taken in the light most favorable to Plaintiff, is evidence of emotional distress and injury to peace of mind, which is the very form of harm that Miller and Fairfield v. American Photocopy (1955) 138 Cal.App.2d 82 identify as the object of the statutory remedy. (See MSJ, pp. 6–7, 19.)

Loan Factory’s response, that anger is not “mental anguish” and that no class-member declarations were submitted, is an argument about the weight and sufficiency of the proof. (Reply, pp. 9–10.)

This is a jury argument that does not negate the existence of a triable issue.

In addition, it is undisputed that Loan Factory gathered these identities deliberately, instructing its engineers to “capture everything[,] ESPECIALLY THE IMAGE,” and that it valued a loan officer’s personal brand as a “superpower.” (P’s SS UMF 33, 34, 84; Opp., pp. 3– 4.)

A trier of fact could reasonably infer from Loan Factory’s own conduct that the appropriated identities had value, and that their uncompensated use caused an injury.

Whether that inference should be drawn is not for the Court to decide on this motion, but for the ultimate trier of fact.

Accordingly, summary adjudication is DENIED as to the First Cause of Action.

C. Second Cause of Action – Common-Law Misappropriation

The common-law claim shares the injury element with the statutory claim, without the benefit of the statutory-minimum presumption. (See MSJ, pp. 12–14.)

But the emotional-injury evidence and the loss-of-control theory carry the claim past summary judgment on their own.

The right of publicity protects a person’s ability to control the commercial use of his identity.

The deprivation of that control – here, by a direct competitor, without consent – is itself a recognized injury. (Abdul-Jabbar v. General Motors Corp. (9th Cir. 1996) 85 F.3d 407, 416; Opp., pp. 15–16.)

The claim proceeds.

Accordingly, summary adjudication is DENIED as to the Second Cause of Action.

D. Third Cause of Action – Unfair Competition Law

This is the closest question, and the Court has carefully considered it.

To pursue a UCL claim a private plaintiff must have lost money or property. (MSJ, p. 12; Reply, pp. 8.)

That requirement is real, and no statutory-minimum presumption supplies it.

Loan Factory’s evidence shows, persuasively, that plaintiff has no proof of quantified economic loss — no diverted customers, no lost revenue, no valuation. (MSJ, 15–18; UMF 22–36, 57–61; Reply, pp. 6–9.)

Were the UCL’s standing requirement limited to lost money, the Court might well grant the motion as to this claim.

But the requirement is stated in the disjunctive: money or property.

Under California law the right of publicity is a form of property. (See Opp., pp. 13, 15–16.)

Loan Factory bore the burden, as the moving party, to negate the property prong; its showing negates lost money, but it does not conclusively negate a loss of the property interest in controlling and licensing one’s own identity, which the undisputed nonconsensual commercial use implicates.

On this record, and drawing inferences in Plaintiff’s favor, a triable issue remains as to whether class members lost “property” within the meaning of the UCL, and as to whether restitution of the value of the unauthorized use is available. (Id. at pp. 13–15.)

Accordingly, summary adjudication is DENIED as to the Third Cause of Action.

Nevertheless, the Court cautions that Plaintiff will bear the burden at trial of proving a qualifying loss, and that the theories of diversion and lost market share find no support in the present record. (MSJ, pp. 15–18; Reply, pp. 6–9.)

E. Fourth Cause of Action – Unjust Enrichment

Loan Factory moved against this claim on a single theory: that it is “merely derivative” of the misappropriation claims and fails with them. (MSJ, p. 12; Reply, pp. 7–8.)

The misappropriation claims do not fail.

The derivative argument therefore fails with them.

The Court expresses no view on whether unjust enrichment is independently cognizable as a standalone cause of action under California law, because Loan Factory did not move on that ground and the point is not before the Court.

Accordingly, summary adjudication is DENIED as to the Fourth Cause of Action.

F. Trial Management

The Court’s denial of summary judgment does not approve every theory Plaintiff has mentioned.

The record contains no evidence of customer diversion, no evidence of lost market share, and no quantified computation of economic damages; Plaintiff’s own witnesses and experts disclaimed each. (MSJ, pp. 15–18; UMF 22–36, 57–61, 75–100; Reply, pp. 6–9.)

Those theories will not reach the jury absent a foundation which has not yet been laid.

The claims proceed to trial on the statutory-minimum remedy, on the loss-of-control theory, on the unjust-enrichment measure of Loan Factory’s benefit, and on the disputed question of emotional injury.

The parties should frame their trial plan, jury instructions, and verdict form accordingly, mindful of the individualized-issue concerns Loan Factory has raised under section 3344, subdivision (e). (Joint Status Report/Trial Plan, pp. 5–6.)

VI. Motion to Stay Class Notice

Loan Factory separately moves, under Code of Civil Procedure section 187 and the Court’s inherent authority, to stay the mailing of class notice pending the Court of Appeal’s disposition of its writ. (Mot. to Stay, pp. 3, 5.)

The Court’s power to grant such relief is clear and is not seriously disputed.

The exercise of that power is a matter of judicial discretion and judgment, and it requires the Court to weigh the efficiency the stay would serve against the prejudice it would impose. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; Mot. to Stay, p. 5.)

Here, that balance favors a limited stay.

Class notice is expensive to send and difficult to retract.

To mail it now, while the certification order is under active appellate review, would risk a wasted or confusing notice and a corrective re-mailing should the Court of Appeal act. (Mot. to Stay, pp. 3, 5–6.)

Against that risk, the prejudice of a brief deferral is slight, because the stay reaches only the notice mailing and halts nothing else.

The parties’ own joint plan, moreover, already contemplates that notice will issue after the Court’s summary-judgment ruling and after approval of a notice plan, and no later than thirty days before trial.

A narrow stay does little more than confirm the sequence the parties have themselves proposed.

On the other hand, the equities do not support an open-ended stay.

Accordingly, the motion to stay is GRANTED IN PART.

The mailing of class notice is stayed until the earliest of: (1) the Court of Appeal’s disposition of the writ petition, including the dissolution or expiration of any interim appellate stay; (2) this Court’s approval of a classnotice plan following today’s ruling, after which notice may proceed on the parties’ proposed schedule; or (3) further order of the Court.

The parties shall promptly report any appellate ruling.

In view of this temporary stay of notice, with the imminence of the current trial date next month and the even more imminent transfer of this case to Department 5 for all purposes, the Court finds good cause at this time to VACATE the September 14 trial date and ALL related pretrial hearing dates.

The Court will discuss at Case Management Conference with counsel all pretrial and trial dates, and intends to set a further Case Management Conference/Trial Setting Conference within 30-45 days.

VII.

Conclusion

For the reasons stated, the Court orders as follows:

1. Defendant’s motion for summary judgment is DENIED.

2. Defendant’s alternative motion for summary adjudication is DENIED as to the first, second, third, and fourth causes of action.

3. Defendant’s motion to stay class notice is GRANTED IN PART, on the limited terms stated in Part VI.

4. The Court will discuss with counsel new trial and pretrial dates, as set forth above.

The prevailing party shall prepare the order in accordance with California Rules of Court, rule 3.1312.

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