Robert Messano vs. William Kayl

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 04/09/2026 Hearing on Motion for Order to Substitute in Successor in Interest in Department 53

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

****NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT WILL MOVE TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE.*****

TENTATIVE RULING: Plaintiff Robert Messano’s motion to substitute in as the successor in interest to crosscomplainant William Kayl is granted.

In this action, Plaintiff alleges fraud-based causes of action against Defendants William and Jaylene Kayl based on allegations that Defendants failed to make certain disclosures in a real estate purchase agreement regarding the subject property’s roof, dry rot and unpermitted work. On October 9, 2024, William Kayl (“Kayl”) filed a first amended cross-complaint against Judson Enterprises, Inc. (“Judson”) for equitable and implied indemnity, fraud, negligence, and violation of Business and Professions Code §§ 7110 and 17200. Kayl alleged that Judson failed to disclose that it performed work at the subject property without the requisite permits and that any damages Plaintiff obtains against Kayl were the result of Judson’s conduct.

On February 10, 2026, Kayl executed a written assignment of claims transferring all claims in the FACC to Plaintiff. Plaintiff now seeks an order substituting himself in the place of Kayl in the FACC pursuant to CCP § 368.5. Judson opposes the motion.

“An action or proceeding does not abate by the transfer of an interest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding.” (CCP § 368.5.)

Judson first opposes the motion on the grounds that Kayl’s fraud-based causes of action are not assignable. However, the authority cited by Judson has no application to the instant matter. Generally, “[a] thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.” (Civ. Code § 954.) “The exception is confined to purely personal torts--those involving wrongs done to the person, reputation or feelings of the injured party are not assignable.” (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 04/09/2026 Hearing on Motion for Order to Substitute in Successor in Interest in Department 53

App. 4th 1132, 1146.) “[C]auses of action for personal injuries arising out of a tort are not assignable nor are those founded upon wrongs of a purely personal nature such as to the reputation or the feelings of the one injured. Assignable are choses in action arising out of an obligation or breach of contract as are those arising out of the violation of a right of property (§ 954, Civ. Code) or a wrong involving injury to personal or real property.” (Goodley v. Wank & Wank (1976) 62 Cal. App. 3d 389, 393-394.)

The fraud-based causes of action in the FACC do not involve personal injuries or wrongs of a purely personal nature. Indeed, the very authorities cited by Judson indicates that claims of a personal nature relate to the reputation or feelings of the party injured. Here, the fraud claims in the FACC are premised on allegations that Judson performed work at the subject property without the required permits. “The policy in California is to permit parties to assign choses in action for wrongs done to property.” (Fleck v.

Bollinger Home Corp. (1997) 54 Cal. App. 4th 926, 932.) The fraud-based causes of action are assignable.

Judson also argues that Kayl is simply assigning a bare right to complain of fraud which is prohibited. However, the very cases cited by Judson dispel that argument. As seen from the cited authorities, the California Supreme Court refused to recognize a “naked right of action for fraud and deceit as a marketable commodity, holding that assignment of a bare right to complain of fraud is contrary to public policy.” (Goodley, supra, 62 Cal.App.3d at 394 [citing Whitney v. Kelley (1892) 94 Cal.146, 148.) “Thus, a ‘naked’ cause of action for fraud, ‘unconnected with any property or thing which had itself a legal existence and value independent of the right to sue for fraud’ is not assignable.” (McLaughlin, supra, 23 Cal.

App. 4th at 1147.) That scenario, however, involves an assignment of a right to complain of fraud sometime in the future when no fraud has yet to occur at the time of the assignment. This is not the case here. Kayl was not simply assigning a right to sue for fraud but instead assigning an existing cause of action for fraud upon which he has already sued. Indeed, the fraud causes of action are connected to the subject property upon which Judson allegedly performed work. Again, the fraud causes of action are assignable.

With respect to the Business and Professions Code § 17200 cause of action, Judson argues that because it is premised on the fraudulent prong of the statute it is not assignable for the same reasons the fraud causes of action are not. However, that argument has already been rejected.

Judson argues that the negligence cause of action is not assignable because it is purely personal to Kayl. Once again, that argument has been rejected.

Judson asserts that there is no private right of action for violation of Business & Professions Code § 7110 and thus Plaintiff would have no standing to bring such a claim. However, that has no bearing on whether that cause of action was assignable to Plaintiff and instead is an attack on the merits. That argument is not appropriate on this motion which simply seeks to substitute Plaintiff in place of Kayl for purposes of the FACC. Judson is free to challenge the merits of the cause of action by way of an appropriate motion. The same holds true with respect to Judson’s

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2019-00262301-CU-FR-GDS: Robert Messano vs. William Kayl 04/09/2026 Hearing on Motion for Order to Substitute in Successor in Interest in Department 53

argument that the indemnity-based claims lack merit. Indeed, case law has recognized that crosscomplaints for indemnity are assignable. “[T]here is no reason why an improver of property which has a latent defect caused by a former tortfeasor may not assign its cross-complaint for indemnity before it may be found liable for damages.” (Fleck, supra, 54 Cal.App.4th at 932.) Contrary to Judson’s argument, while Fleck briefly mentioned the statute of limitations in CCP § 337.5(c), that statute was not germane to its finding that the assignment was proper.

The motion is granted.

The Court will sign the proposed order.