IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ASSOCIATION FOR B350110
LOS ANGELES DEPUTY
SHERIFFS et al., (Los Angeles County
Super. Ct. No. 19STCP05186)
Petitioners,

v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

Respondent;

COUNTY OF LOS ANGELES et al.,

Real Parties in Interest.

ORIGINAL PROCEEDING; petition for writ of mandate,
Stephen I. Goorvitch and Alison M. Mackenzie, Judges. Petition
denied.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski
and Richard A. Levine for Petitioners.
 No appearance for Respondent.
Miller Barondess, Mira Hashmall, Eleanor S. Ruth and
Lauren M. Brody for Real Parties in Interest.
____________________________
Petitioners David Jouzi, Benjamin Alvarado, and Dellanira
Aragon are former deputies of the Los Angeles County Sheriff’s
Department (department) who were discharged for alleged
misconduct. They appealed their discharges to the Los Angeles
County Civil Service Commission (commission). While their
appeals were pending, the former deputies executed settlements
with department chiefs that purported to reinstate them to
employment. Real party in interest the County of Los Angeles
(county) refused to comply with these settlement agreements.
Jouzi, Alvarado, Aragon, and a recognized employee
organization (petitioner Association for Los Angeles Deputy
Sheriffs or ALADS) 1 sued the county, seeking enforcement of the
settlements through mandamus, breach of contract, and
promissory estoppel claims, along with a declaration that the
county must comply with settlements executed by the
department during the pendency of commission appeals.
Initially, the trial court sustained the county’s demurrers to
petitioners’ pleading without leave to amend. On appeal, we
reversed and instructed the trial court to grant petitioners leave
to file an amended pleading identifying the legal basis (if any) for
the department’s alleged long-standing view that the Los Angeles
County Sheriff (sheriff) and his subordinates are authorized to

1 We refer to Jouzi, Alvarado, and Aragon collectively as
“deputy petitioners,” and we refer to the deputy petitioners and
ALADS collectively as “petitioners.”

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settle appeals before the commission without approval of other
county officials. (Association for Los Angeles Deputy Sheriffs v.
County of Los Angeles (2023) 94 Cal.App.5th 764, 771–772, 801,
812 (ALADS I).)
On remand, petitioners filed several amended pleadings,
and the trial court sustained the county’s demurrers to two of
them. The court sustained the county’s last demurrer without
leave to amend. In particular, the court found petitioners failed
to demonstrate that the chiefs executing the settlements were
“acting under authority of the board [of supervisors] or authority
conferred by law” for the purposes of Government Code
section 23005. Petitioners seek appellate review of the dismissal
of their claims.
As an initial matter, petitioners arguably failed to appeal
timely from the trial court’s order of dismissal by instead
appealing from a subsequent judgment entered by the court.
Assuming arguendo petitioners’ appeal is untimely, we exercise
our discretion to treat the appeal as a writ petition because the
trial court’s order sustaining the county’s demurrer to the
operative pleading directed the parties to meet and confer and
submit a proposed judgment of dismissal, thereby apparently
leading petitioners to believe the dismissal order filed
concurrently with the demurrer order was issued in error or was
otherwise not a final appealable judgment. The trial court’s later
issuance of the judgment of dismissal further indicated it may
not have intended for the dismissal order to be a final appealable
judgment. Accordingly, we conclude under the unique
circumstances of this case that the interests of justice would be
better served by treating this arguably untimely appeal as a writ
petition.

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 On the merits, petitioners have not demonstrated that the
sheriff and his subordinates were authorized to bind the county
to the settlements that are before us.
First, we reject petitioners’ assertion that encompassed
within the sheriff’s authority to appoint, suspend, and discharge
department personnel is the power to rescind or modify discipline
during the pendency of civil service appeals. Petitioners’
expansive interpretation of the sheriff’s power is not consistent
with the purpose and structure of the county’s civil service
system. That system is designed to ensure that (1) only
competent individuals are county employees and (2) favoritism
plays no role in the hiring process. Adopting petitioners’ theory
of implied authority would undermine those objectives by
upsetting the careful balance struck by the civil service system’s
delegation of authority to (1) the sheriff, who hires employees
from an eligible civil service list; (2) the director of personnel,
who maintains that list; and (3) the commission, which reviews
employees’ appeals of discipline.
Second, we reject petitioners’ argument that the county is
bound by a department manual provision they claim confers
authority on division chiefs and division directors to settle
commission appeals without the approval of the Los Angeles
County Board of Supervisors (the board of supervisors or board).
Petitioners’ assertion that department management
representatives and ALADS executed an agreement requiring the
adoption of that manual provision is unavailing because
petitioners have not demonstrated that the county authorized
those management representatives to execute that alleged
agreement.

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 Third, we reject petitioners’ contention the county is bound
by its alleged past practice of permitting chiefs and captains to
settle commission appeals because they have not demonstrated
that practice is subject to the collective bargaining requirements
imposed by the Meyers-Milias-Brown Act (MMBA; Gov. Code,
§ 3500, et seq.). 2
Fourth, we conclude that a prior unpublished appellate
decision upholding the validity of a settlement executed by
ALADS and a department official concerning the department’s
procedures for investigating officer-involved shootings does not
collaterally estop the county from contesting the instant
settlements.
We hold the trial court did not err in sustaining the
demurrer as to the contract and mandamus claims because they
are predicated on the validity of the settlements. Petitioners also
fail to show that despite this defect, they can recover on their
promissory estoppel and declaratory relief causes of action.
Lastly, petitioners do not argue the court erred in denying leave
to amend their pleading. In sum, we construe petitioners’ appeal
as a writ petition and deny it.

2 The MMBA “mutually obligates a public employer and an
employee organization to meet and confer in good faith about a
matter within the ‘scope of representation’ concerning, among
other things, ‘wages, hours, and other terms and conditions of
employment[.]’ [Citation.]” (See Claremont Police Officers Assn.
v. City of Claremont (2006) 39 Cal.4th 623, 628 (Claremont Police
Officers Assn.).)

5
 FACTUAL AND PROCEDURAL BACKGROUND 3
We summarize only those facts pertinent to this review
proceeding.

1. The initial trial court proceedings and ALADS I
On December 5, 2019, petitioners filed their initial verified
petition for writ of mandate and complaint, alleging three causes
of action for writ of mandate, three causes of action for breach of
contract, three causes of action for promissory estoppel, and one
declaratory relief cause of action. (ALADS I, supra,
94 Cal.App.5th at pp. 772–773.) 4 Petitioners sought enforcement
of the settlements through their mandamus, breach of contract,
and promissory estoppel claims. (See ALADS I, supra,
94 Cal.App.5th at p. 771.) Petitioners also sought a declaration
that the county must comply with the department’s settlements
of commission appeals. (See id. at pp. 797–798.)

3 We derive our Factual and Procedural Background in
part from undisputed aspects of the trial court’s rulings,
admissions made by the parties in their filings, and the county’s
assertions that petitioners do not dispute in their reply brief.
(See ALADS I, supra, 94 Cal.App.5th at pp. 772, fn. 2, 773–774
[employing this approach].)
Our Factual and Procedural Background is also based in
part on our prior opinion in ALADS I. (See People v. Czirban
(2022) 77 Cal.App.5th 1050, 1058, fn. 4 [relying in part on the
Court of Appeal’s prior opinion in summarizing the factual and
procedural history of that case].) We, sua sponte, take judicial
notice of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.)
4 For the sake of clarity and consistency, we refer to
petitioners’ initial petition for writ of mandate and complaint and
the amendments thereto as petitions.

6
 The trial court sustained the county’s demurrer, without
leave to amend, as to the writ of mandate causes of action based
on the court’s ruling that mandamus is not an appropriate
remedy to enforce a contractual obligation against a public entity.
(See ALADS I, supra, 94 Cal.App.5th at p. 774.)
The trial court later sustained the county’s demurrer to the
remainder of the initial petition without leave to amend. (See
ALADS I, supra, 94 Cal.App.5th at p. 774.) The court reasoned
that “the settlement agreements are void because county counsel
did not approve them, and section 21” of the Los Angeles County
Charter (county charter) “confers upon county counsel ‘exclusive
charge and control of all civil actions and proceedings in which
the County or any officer thereof, is concerned or is a party.’ ”
(See id. at pp. 771, 774–775.)
On appeal from the judgment of dismissal, we held
section 21 of the county charter “does not confer upon county
counsel exclusive authority to settle appeals of discipline
decisions pending before the commission,” but we also found
petitioners had not shown that “the sheriff and his chiefs were
authorized to execute on the county’s behalf the settlement
agreements at issue here.” (See ALADS I, supra, 94 Cal.App.5th
at pp. 775, 777.) We concluded that there was “a reasonable
possibility that [the petitioners] could [have] amend[ed] their
initial petition[ ] to establish that the sheriff and his
subordinates have that authority,” and that the trial court erred
in denying leave to amend on petitioners’ mandamus causes of
action. (See id. at pp. 778, 806.) We reversed the judgment and
instructed the trial court to grant petitioners leave to amend as
to most of their claims. (See id. at p. 812.)

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2. The first amended petition, the second amended
petition, the trial court’s order sustaining the
county’s demurrer to the second amended petition
with leave to amend, the third amended petition, and
the court’s order striking the third amended petition
On February 1, 2024, petitioners filed their first amended
petition. Pursuant to the parties’ stipulation, petitioners filed a
second amended petition on March 26, 2024. On
November 25, 2024, the trial court sustained the county’s
demurrer to the second amended petition with leave to amend.
On January 10, 2025, petitioners filed their third amended
petition. The trial court later struck the third amended petition
because the pleading did not include the names of the deputy
petitioners.

3. The fourth amended petition
On March 24, 2025, petitioners filed their fourth amended
petition.5 The deputy petitioners are former deputies of the
department. ALADS is “a recognized employee organization as
defined in the [MMBA] . . . representing sworn non-management
peace officers employed by the Department and the County
District Attorney’s Office with regard to all matters concerning
wages, hours and working conditions. It brings this action on
behalf of all of its represented employees.”

5 The remainder of our Factual and Procedural
Background, part 3 summarizes certain material and properly
pleaded allegations from the fourth amended petition, which we
assume to be true for purposes of this review proceeding. (See
Standards of Review, post.) We detail additional averments in
our Discussion, post.

8
 Petitioners name as defendants and respondents the
county, the board of supervisors, the department, the sheriff, the
county counsel, the director of personnel, and the county’s
auditor-controller. Petitioners do not dispute — and thus tacitly
agree with — the county’s assertion we should treat this matter
as “an official-capacity suit and, therefore, as a suit against the
County alone.” (See also ALADS I, supra, 94 Cal.App.5th at
p. 795, fn. 29 [concluding petitioners impliedly made a similar
admission in ALADS I].)
Each of the three deputy petitioners alleges one cause of
action for writ of mandate (the first, fourth, and seventh causes of
action), one cause of action for breach of contract (the second,
fifth, and eighth causes of action), and one cause of action for
promissory estoppel (the third, sixth, and ninth causes of action).
The tenth cause of action for declaratory relief is brought on
behalf of all four petitioners.
It appears that in or about 2017, each deputy petitioner
was served with a letter of intent to be discharged from
employment. They participated in predeprivation hearings held
pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194,
and were subsequently discharged from employment for alleged
misconduct. 6 Each deputy petitioner filed an appeal of his or her
discharge to the commission.

6 “ ‘Skelly [v. State Personnel Bd., supra, 15 Cal.3d 194]
requires that civil service employees be given notice of proposed
disciplinary action, the reasons for the action, a copy of the
charges and the written materials upon which they are based,
and an opportunity to respond either orally or in writing.
[Citation.] A “Skelly hearing” refers to the employee’s
opportunity to respond, and it has been described as an “informal

9
 In 2019, while their respective appeals were pending before
the commission, each deputy petitioner entered into a settlement
agreement with a chief of the department, the terms of which
purport to reduce the discipline already imposed and reinstate
the deputy petitioner’s employment. With regard to each of these
settlements, petitioners aver: “Based on information and belief,
the settlement agreement was entered into pursuant to the
authority granted in [department manual of policy and
procedures or MPP section 3-04/020.80]. All conditions precedent
set forth in MPP section [3-04/020.80] were met, including
consulting with the constitutional policing adviser and receiving
the approval of the Undersheriff.” 7
The county thereafter refused to comply with the terms of
the settlements. Although the fourth amended petition does not
detail the circumstances under which Jouzi became aware that
the county “refused . . . to reinstate [him] to his employment with
the County and to provide him with all emoluments of
employment,” the pleading alleges that shortly after their
settlements were executed, Alvarado and Aragon were “advised”
that “County Counsel and/or . . . [the] Director of Personnel
and/or . . . [the] Board of Supervisors vetoed” their settlements.
In its appellate brief, the county asserts that the settlement
“agreements were not approved by the Board of Supervisors . . . .”

probable-cause-type proceeding.” ’ ” (ALADS I, supra,
94 Cal.App.5th at p. 773, fn. 4.)
7 Although these paragraphs from the fourth amended
petition actually refer to “MPP section 3-04/020.080” rather than
MPP section 3-04/020.80, that appears to be a typographical
error. We describe MPP section 3-04/020.80 in further detail in
our Discussion, part B.2, post.

10
Petitioners tacitly concede this point by failing to dispute it in
their reply. (See fn. 3, ante [noting that a party’s failure to
dispute in its reply an assertion raised in the opposing party’s
appellate brief may be deemed an admission thereto].) 8

4. The trial court’s order sustaining the county’s
demurrer to the fourth amended petition without
leave to amend and the dismissal of the action
On July 7, 2025, the trial court sustained the county’s
demurrer to the fourth amended petition without leave to amend.
The court remarked, “The dispositive issue in this case is
whether the chiefs executing the settlement agreements were
acting under the authority of the Board or authority conferred by
law for purposes of Government Code section 23005.” According
to the court, “Petitioners have still not alleged ‘the legal basis (if
any) for the department’s alleged long-standing apparent belief
that its personnel have authority to settle commission appeals on
their own.’ [Citation.]” (Quoting ALADS I, supra, 94 Cal.App.5th
at p. 772.) The court denied leave to amend because “Petitioners
have . . . had three opportunities to identify this authority, and
they have failed to do so each time,” and “none of the discovery”
petitioners obtained from the county “would permit Petitioners to
amend the Fourth Amended Petition successfully.”

8 In ALADS I, we noted that petitioners had not
“contest[ed the county’s] representation that the deputy
[petitioners’] appeals were still pending before the commission
when they filed their [initial] petition[ in the trial court.]” (See
ALADS I, supra, 94 Cal.App.5th at p. 774.) In their briefing for
the instant review proceeding, petitioners do not address whether
the commission appeals were still pending when they filed the
initial petition.

11
 On July 7, 2025, which is the date of filing of the order
sustaining the demurrer to the fourth amended petition, the
court also filed an order dismissing the action with prejudice.
(See Discussion, part A, post.) On August 11, 2025, the court
filed a judgment purporting to dismiss the action. (See ibid.) On
October 2, 2025, petitioners filed a notice of appeal seeking
review of the dismissal order and the judgment. (See ibid.
[explaining that petitioners’ appeal is arguably untimely, but
exercising this court’s discretion to treat the appeal as a writ
petition].)

STANDARDS OF REVIEW
In ruling on a demurrer, a court determines whether a
party has alleged facts sufficient to state a cause of action.
(ALADS I, supra, 94 Cal.App.5th at p. 776.) We review the trial
court’s ruling de novo and “ ‘ “ ‘treat the demurrer as admitting
all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. [Citation.] . . . .’
[Citation.] . . . . [Citation.]” ’ [Citation.] We also consider
‘matters of which judicial notice can and has been taken.’
[Citation.]” (Ibid.)
We review a trial court’s denial of leave to amend for abuse
of discretion. (Black v. Los Angeles County Metropolitan
Transportation Authority (2025) 116 Cal.App.5th 677, 685.)
Under this standard, the plaintiff has the burden of proving there
exists a reasonable possibility that an amendment would cure the
defect. (Ibid.) If the plaintiff fails to meet that burden, then the
trial court did not abuse its discretion. (Ibid.)
“A judgment or order of a lower court is presumed correct.”
(Hernandez v. Superior Court (1992) 9 Cal.App.4th 1183, 1190.)
To overcome the presumption of correctness, a party must

12
“ ‘ “ ‘ “affirmatively demonstrate error” ’ ” by “ ‘ “supply[ing] the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.” ’ [Citation.]”
[Citations.] . . . ’ [Citation.]” (County of Los Angeles v. Niblett
(2025) 116 Cal.App.5th 454, 462–463 (Niblett).)
Furthermore, an error of state law “ ‘generally does not
warrant reversal unless there is a reasonable probability that in
the absence of the error, a result more favorable to the appealing
party would have been reached.’ [Citation.]” (ALADS I, supra,
94 Cal.App.5th at p. 777.)

DISCUSSION

A. Assuming Arguendo Petitioners’ Appeal Is Untimely,
We Exercise Our Discretion To Treat the Appeal as a
Writ Petition
The county does not contest the timeliness of petitioner’s
appeal. “However, because the timeliness of an appeal poses a
jurisdictional issue, we must raise the point sua sponte and must
consider that question first.” (See Drum v. Superior Court (2006)
139 Cal.App.4th 845, 849 (Drum).) As we explain below,
although petitioners’ appeal is arguably untimely, we exercise
our discretion to reach the merits by treating the appeal as a writ
petition.
“[A] notice of appeal must be filed on or before the earliest
of: [¶] (A) 60 days after the superior court clerk serves on the
party filing the notice of appeal a document entitled ‘Notice of
Entry’ of judgment or a filed-endorsed copy of the judgment,
showing the date either was served; [¶] (B) 60 days after the
party filing the notice of appeal serves or is served by a party
with a document entitled ‘Notice of Entry’ of judgment or a filed-

13
endorsed copy of the judgment, accompanied by proof of service;
or [¶] (C) 180 days after entry of judgment.” (See Cal. Rules of
Court, rule 8.104(a)(1).)
On July 7, 2025, the date on which the trial court had filed
its order sustaining the demurrer to the fourth amended petition
without leave to amend, the court also filed a signed order
dismissing the entire action with prejudice. The record contains
a certificate of mailing indicating that on July 7, 2025, the trial
court clerk served the file-stamped and signed dismissal order on
the parties’ counsel. Yet, in the order sustaining the demurrer,
the court directed “[t]he parties [to] meet-and-confer and lodge a
proposed judgment forthwith.” 9 On August 11, 2025, the trial
court filed a judgment purporting to dismiss the action in its
entirety and designating the county as the prevailing party
“entitled to recover [its] costs from [petitioners] in accordance
with law.” 10 On October 2, 2025, petitioners filed a notice of
appeal seeking review of a “Judgment entered [on]

9 It is unclear whether the trial court filed the dismissal
order before it filed the order sustaining the demurrer to the
fourth amended petition.
10 The judicial officer who signed the judgment was not the
trial judge who sustained the demurrer to the operative pleading
and signed the dismissal order. Additionally, we note that the
following documents are attached to the August 11, 2025
judgment: (1) a July 7, 2025 minute order that (inter alia)
sustained the county’s demurrer without leave to amend and
directed the parties to meet and confer and lodge a proposed
judgment, (2) the signed and file-stamped July 7, 2025 order
sustaining the demurrer, and (3) a certificate of mailing showing
that the trial court clerk served the July 7, 2025 minute order on
counsel for the parties on that date.

14
August 11, 2025 and [an] Order of Dismissal entered [on]
August 11, 2025.” 11
The order dismissing the action with prejudice that was
signed by the trial court and filed on July 7, 2025 appears to
constitute an appealable judgment. (See Roe v. Doe 1 (2023)
98 Cal.App.5th 965, 972 [“An order of dismissal is an appealable
‘judgment’ if it is (i) in writing, (ii) signed by the court, and
(iii) filed in the action.”].) Because the trial court clerk served the
dismissal order on counsel for the parties on July 7, 2025, it
appears petitioners had to file their notice of appeal within
60 days of that date, that is, on or before September 5, 2025. (See
Cal. Rules of Court, rule 8.104(a)(1)(A).) In addition, the trial
court’s filing of the judgment on August 11, 2025 does not seem to
have extended petitioners’ deadline to appeal from the dismissal
order. (See Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842–843
[indicating that a new appeal period starts to run from service or
entry of a revised judgment only if it “ ‘substantial[ly]
modifi[es]’ . . . the [original] judgment”].)
We may treat an untimely appeal as a petition for writ of
mandate “in unusual circumstances” in which “do[ing] otherwise
would be unfair.” (See Drum, supra, 139 Cal.App.4th at pp. 852–
853.) Such is the case here. By (1) filing the dismissal order on
the same date on which the trial court had filed an order
requiring the parties to meet and confer and submit a proposed
judgment and (2) later filing a judgment on August 11, 2025, the
trial court appears to have led petitioners to believe the dismissal
order was issued in error or was otherwise not a final appealable

11 The case register does not indicate that an order of
dismissal was entered on August 11, 2025.

15
judgment. 12 It seems the county had the same belief given that
the trial court signed the proposed judgment submitted by the
county. Accordingly, assuming for argument’s sake petitioners’
appeal is untimely, we exercise our discretion to construe the
appeal as a writ petition. (Cf. Drum, supra, 139 Cal.App.4th at
pp. 847, 851–853 [exercising the reviewing court’s discretion to
excuse a party’s failure to file a timely appeal because that party
relied on an erroneous published decision to the effect that the
orders challenged on appeal were not immediately appealable].)

B. The Contract and Mandamus Claims Fail Because
Petitioners Do Not Demonstrate that the Sheriff and
His Subordinates Were Authorized To Execute the
Settlements
As we explained in our prior opinion, “Government Code
section 23004, subdivision (c) grants the county the power to
‘[m]ake contracts . . . .’ [Citation.] Government Code
section 23005 in turn provides: ‘A county may exercise its powers
only through the board of supervisors or through agents and
officers acting under authority of the board or authority conferred
by law.’ [Citation.] [¶] Thus, the validity of the deputy
[petitioners’] settlement agreements hinges on whether the chiefs
executing them were ‘acting under authority of the board or

12 (See In re The Clergy Cases I (2010) 188 Cal.App.4th
1224, 1233–1234 [“ ‘Generally speaking, only final judgments are
appealable . . . [Citation.]’ [Citation.] . . . [¶] . . . ‘If no issues in
the action remain for further consideration, the decree is final
and appealable. But if further judicial action is required for a
final determination of the rights of the parties, the decree is
interlocutory.’ ”].)

16
authority conferred by law’ for the purposes of Government Code
section 23005.” (ALADS I, supra, 94 Cal.App.5th at p. 794.) We
also noted that petitioners’ contract and mandamus claims fail as
a matter of law unless they can show that “the chiefs were
authorized to enter into the settlements with the deputy
[petitioners] . . . .” (See id. at pp. 795–796.)
Petitioners raise four arguments in support of their
position the chiefs were authorized to execute the settlements:
(1) the sheriff’s power to “settle a disciplinary action that the
Sheriff himself previously imposed on an employee under his
command” is implicit in this county official’s “undisputed
authority . . . to appoint, suspend or discharge his employees,”
and the sheriff may delegate this power to his subordinates;
(2) MPP section 3-04/020.80 “constitutes the lawful delegation by
the Board of Supervisors of authority to the Sheriff [and his
subordinates] for executing binding settlement agreements” of
commission appeals or is a “law” that confers such authority on
department personnel for the purposes of Government Code
section 23005; (3) petitioners have alleged a “binding past
practice of the sheriff’s department of resolving disciplinary
appeals pending civil service commission proceedings” (boldface
& capitalization omitted); and (4) an unpublished Court of Appeal
decision collaterally estops the county from denying the chiefs’
authority to execute the settlements. We address these
contentions seriatim.

17
 1. Petitioners fail to demonstrate the
department’s authority over personnel
decisions includes the power to settle
commission appeals
“ ‘The same rules of statutory interpretation that apply to
statutory provisions also apply to local charter provisions[ ]’
[citation]” (ALADS I, supra, 94 Cal.App.5th at p. 779), Civil
Service Rules (see Head v. Civil Service Com. (1996)
50 Cal.App.4th 240, 243–244), and ordinances (see Zubarau v.
City of Palmdale (2011) 192 Cal.App.4th 289, 305). “ ‘When
construing a statute, “our goal is ‘ “to ascertain the intent of the
enacting legislative body so that we may adopt the construction
that best effectuates the purpose of the law.” ’ ” [Citation.]’
[Citation.] Put differently, our objective is to ‘ “ ‘arriv[e] at the
true [legislative] intent existing at the time the legislation was
enacted.’ [Citation.]” [Citations.]’ [Citations.]” (ALADS I, supra,
at p. 779.) “We do not construe th[e] words [of legislation] in a
vacuum but rather consider them in the context of the statutory
framework as a whole.” (See Hirdman v. Charter
Communications, LLC (2025) 113 Cal.App.5th 376, 384.)
Petitioners cite certain provisions of the Government Code,
county charter, county code, and Civil Service Rules for the
proposition that the “Sheriff and his subordinates [have
authority] to take fundamental personnel actions respecting
employees in the Sheriff’s Department,” to wit, the authority to
“appoint, suspend[,] or discharge [department] employees . . . .”
They assert that implicit within those powers to “render
fundamental personnel decisions” is “the right to rescind or
modify . . . previous disciplinary decision[s] based upon facts
discovered during the course of an administrative appeal . . . .”

18
Before addressing this argument, we describe relevant aspects of
the county’s civil service system.

a. The county’s civil service system is designed to
ensure classified employees are competent and
not corrupt
Our high court recently explained, “[Los Angeles] County’s
charter establishes a civil service system and designates all
employment positions as ‘unclassified’ or ‘classified.’ [Citations.]
Elected officials, heads of County agencies, and other identified
executive positions are ‘unclassified,’ with all remaining positions
being ‘classified.’[ 13] [Citation.] By charter, the County ‘has a
formal civil service system . . . for filling classified positions and
fixing the salary and benefits of classified employees.’ [Citation.]
Civil service rules . . . . are . . . designed to prevent favoritism or
corruption by requiring that all employees are uniformly paid
based on their qualifications, job duties, and performance.”

13 Deputy petitioners do not claim to have had
“unclassified” county positions. Instead, petitioners assert in
their opening brief that the three deputy petitioners were
“permanent employees and members of the civil service system of
the County” (italics added), thereby suggesting they were
classified employees. That deputy petitioners appealed their
discharges to the commission further indicates they were
“classified” employees. (See Factual & Procedural Background,
part 3, ante [noting deputy petitioners appealed to the
commission]; see, e.g., L.A. Cnty. Civil Service Rules,
rule 18.02(B) [authorizing “a permanent employee” who “is
discharged” to “request a hearing before the commission”]; id.,
rule 2.24 [defining “[e]mployee” for the purposes of the Civil
Service Rules as “any person holding a position in the classified
service of the county”].)

19
(Los Angeles County Employees Retirement Assn. v. County of
Los Angeles (2026) 20 Cal.5th 292, 314 (Los Angeles County
Employees Retirement Assn.).)
Indeed, the county charter states the “purpose of [the] civil
service system” is, inter alia, to “provide County government with
a productive, efficient, stable, and representative work force by:
[¶] . . . [r]ecruiting, selecting, and advancing employees on the
basis of their relative ability, knowledge, and skills relevant to
the work to be performed[; and] [¶] . . . [r]etaining employees on
the basis of the adequacy of their performance, correcting
inadequate performance, and separating employees whose
inadequate performance cannot be corrected.” (See L.A. Cnty.
Charter, art. IX, § 30, capitalization omitted from first quotation.)
To that end, section 51 of the charter requires county
officers to appoint classified employees “from the eligible civil
service list . . . .” (See L.A. Cnty. Charter, art. XII, § 51.) The
Civil Service Rules confer upon the director of personnel the
responsibility to “[a]dminister the civil service system in
accordance with th[e] Civil Service Rules” (see L.A. Cnty. Civil
Service Rules, rule 3.01(A)), by, among other things,
promulgating and terminating eligible civil service lists (see id.,
rules 10.01 & 10.05). Civil Service Rules, rule 6.04 permits the
director of personnel to “withhold the name of a person from the
eligible list” on one of several grounds, including that the person
is responsible for “conduct not compatible with the requirements
of the position, whether or not it amounts to a crime.” (See L.A.

20
Cnty. Civil Service Rules, rule 6.04(D).) 14 The director of
personnel is also authorized to consider an appeal from “[a]n
employee who is suspended for up to five days . . . .” (See L.A.
Cnty. Civil Service Rules, rule 18.01(C).)
Additionally, as we noted in our prior opinion, section 34 of
the charter confers upon the commission authority to act as “ ‘an
appellate body . . . as provided in the Civil Service Rules . . . .’ ”
(See ALADS I, supra, 94 Cal.App.5th at p. 789, quoting L.A.
Cnty. Charter, art. IX, § 34.) The Civil Service Rules, inter alia,
authorize the commission to hear permanent employees’ appeals
of discharges and reductions in rank, grade, or compensation.
(See L.A. Cnty. Civil Service Rules, rule 18.02(A)–(C).) The rules
also indicate that the commission may hear an employee’s
challenge to a suspension in excess of five days. (See, e.g., id.,
rules 4.03(A) & 4.05(A)(1).)

b. Petitioners’ implied authority theory is
inconsistent with the purpose and structure of
the county’s civil service system
Petitioners argue that a provision of the County Civil
Service Enabling Law (Gov. Code, § 31100 et seq.) requires a
county that has adopted a civil service system to enact an
ordinance providing that “[a]ny officer or employee in the

14 The version of Civil Service Rules, rule 6.04(D) that was
in effect in 2019 (i.e., when each deputy petitioner’s settlement
was purportedly executed) likewise authorized the director of
personnel to withhold a person’s name from the eligible list if
that person was “guilty of conduct not compatible with county
employment, whether or not it amounts to a crime.” (See L.A.
Cnty. Ord. No. 88-0020 § 1 (part), 1988.)

21
classified civil service may be dismissed, suspended, or reduced in
rank or compensation by the appointing authority . . . by a
written order, stating specifically the reasons for the action.”
(Gov. Code, § 31108, subd. (a)(1).)
Petitioners contend that county charter sections 12 and 51;
Civil Service Rules, rule 2.03; and county code section 2.02.100 in
turn establish that the sheriff is an “appointing power” and
“appointing officer” with the power to appoint persons to
positions within the department. 15 Petitioners further maintain
that Civil Service Rules, rule 18.01(A) authorizes the “appointing
power” to suspend an employee, and rule 18.02 permits the
“appointing power” to discharge subordinates from county service
or reduce them in grade or compensation.16 They also assert the

15 Section 12 of the county charter identifies the sheriff as
an elective county officer (see L.A. Cnty. Charter, art. IV, § 12),
and section 51 provides that a county officer “shall appoint, from
the eligible civil service list, for either permanent or temporary
service, all . . . deputies . . . and other persons in the office or
department of such officer” (see L.A. Cnty. Charter, art. XII,
§ 51). Civil Service Rules, rule 2.03 defines “ ‘[a]ppointing
power’ ” as “the person, board, or commission having authority to
make appointments to a position” (see L.A. Cnty. Civil Service
Rules, rule 2.03), and county code section 2.02.100 similarly
defines “ ‘[a]ppointing officer’ ” as “the officer, board, commission
or body having power of appointment to any position in the
service of the county” (see L.A. Cnty. Code, § 2.02.100).
16 Civil Service Rules, rule 18.01(A) provides in relevant
part: “Subject to such appeal right as provided in this Rule, an
employee may be suspended by the appointing power for up to
and including 30 days, pending investigation, filing of charges
and hearing on discharge or reduction, or as a disciplinary

22
following ordinance empowers the sheriff to delegate to his
subordinates authority to settle disciplinary appeals pending
before the commission: “An appointing officer as defined in
Section 2.02.100 of this chapter may delegate to subordinates the
exercise of judgment or discretion to impose discipline or take
any other personnel action on behalf of the appointing officer.”
(L.A. Cnty. Code, § 2.04.070.)
Petitioners argue “the ability to settle a disciplinary action
that the Sheriff himself previously imposed on an employee
under his command . . . is . . . necessarily incidental to powers
expressly otherwise granted the Sheriff or his designees under
the above-referenced rules and regulations.” They also contend,
“[T]here is no reasonable basis for the conclusion that the
legislative body of the County has withheld authority from [the]
Sheriff to settle disciplinary cases pending Civil Service
Commission appeal” because absent that authority, the sheriff
could not “rescind or modify his previous disciplinary decision
based upon facts discovered during the course of an appeal from
such decision.”
We acknowledge the facial appeal of petitioners’ position.
At first blush, one would expect that a government official

measure.” (L.A. Cnty. Civil Service Rules, rule 18.01(A).) As
pertinent here, Civil Service Rules, rule 18.02 states, “Before [a]
discharge or reduction [of a permanent employee] shall become
effective, the employee shall receive a written notice from the
appointing power of intent to invoke discharge or reduction, and
specific grounds and particular facts therefor. The employee
shall then be allowed a reasonable time, not to exceed 10 days, to
respond orally or in writing to the appointing power before the
discharge or reduction shall become effective.” (See L.A. Cnty.
Civil Service Rules, rule 18.02(A).)

23
authorized to appoint and discipline employees would likewise
have the discretion to reverse the imposition of discipline and
spare the county the expense and delay of litigating the
employee’s appeal before the commission. We conclude, however,
that petitioners’ assertion that the sheriff and his chiefs are
authorized to settle commission appeals notwithstanding the
absence of an express delegation of such authority is contrary to
the structure and purpose of the county’s civil service system.
As explained above, the county’s civil service system is
designed to ensure that (1) only competent individuals are
classified employees and (2) favoritism and corruption play no
role in the hiring and retention of said employees. (See
Discussion, part B.1.a, ante; see also Los Angeles County
Employees Retirement Assn., supra, 20 Cal.5th at p. 356
[observing that “[t]he overall aim of the civil service laws is ‘to
limit corruption and to promote efficiency and economy’ ”].) The
structure of the civil service system effectuates that purpose by
dividing authority over the system among various county
officials, including the appointing power/officer, the director of
personnel, and the commission, the latter being empowered to
hear appeals of discipline. (See Discussion, part B.1.a, ante.)
Petitioners’ expansive interpretation of the sheriff’s and his
subordinates’ authority would disturb the balance struck by the
laws governing the county’s civil service system. For instance, if
the sheriff and his chiefs could rescind a discharge during the
pendency of a commission appeal without the consent of the
board of supervisors, then sheriff’s personnel could bypass the
limitations barring the department from hiring classified
employees who have engaged in conduct not compatible with
county employment. (See Discussion, part B.1.a, ante [discussing

24
L.A. Cnty. Charter, art. XII, § 51 & L.A. Cnty. Civil Service
Rules, rules 6.04(D), 10.01, & 10.05].)
Additionally, petitioners acknowledged in their opening
brief in ALADS I that in 2020, a trial court granted the county’s
petition for writ of mandate contesting the then-sheriff’s attempt
to reinstate a former deputy.17 According to petitioners’ ALADS
I briefing, the county had averred that (1) “one of the Sheriff’s
first actions after his election was to attempt to rehire [the
former deputy],” and (2) the sheriff had attempted to reinstate
the former deputy via a settlement of a civil proceeding. Given
that the sheriff attempted to reinstate a former deputy who had
been discharged during a prior sheriff’s tenure, this episode
undermines petitioners’ intimation that adopting their position
would simply allow the sheriff to rescind or modify discipline he
“himself previously imposed” upon discovering new facts
showing the discipline was unwarranted or excessive. To the
contrary, embracing petitioners’ expansive interpretation of
department officials’ power would increase the risk of corruption
and favoritism the civil service system was designed to avert.
Additionally, if, during the appeals process, the sheriff or other
department personnel were to discover facts undermining a
previously imposed disciplinary decision, we see no reason why
the sheriff or other department personnel could not bring that
information to the attention of the commission (see, e.g., L.A.
Cnty. Civil Service Rules, rule 4.07 [indicating the appointing
power has the right to be heard at the hearing on the employee’s
civil service appeal]), or to the board of supervisors with a

17 We, sua sponte, take judicial notice of petitioners’
opening brief from ALADS I. (Evid. Code, §§ 452, subd. (d), 459.)

25
recommendation to settle the appeal (see Discussion, part B, ante
[noting that Gov. Code, §§ 23004 & 23005 confer upon the board
authority to make contracts on behalf of the county]).
Furthermore, a ruling that the sheriff and certain of his
subordinates may rescind or modify a discharge without approval
from the board could empower department officials to obligate
the county to pay monetary benefits to the discharged employee.
For instance, petitioners allege in the operative pleading,
“Pursuant to the Jouzi Settlement Agreement, Deputy Jouzi
would not be entitled to back pay until his reinstatement” (italics
added), thereby suggesting the settlement entitled Jouzi to
backpay. Yet, long before the board of supervisors adopted the
Civil Service Rules in 1988,18 the county enacted an ordinance
that restricts county counsel’s authority such that the official can
settle claims or suits without board approval only if “the amount
necessary to be expended” by the county “does not exceed the sum
of $20,000.00 . . . .” 19 Given that board approval is required
before county counsel may settle a claim for more than $20,000,
we cannot conclude that in the course of adopting Civil Service
Rules authorizing the sheriff and his subordinates to impose
discipline, the board intended tacitly to delegate authority to
department personnel to incur financial obligations that could
significantly exceed the $20,000 limitation.

18 (See L.A. Cnty. Civil Service Rules, rule 1.01 [indicating
the board of supervisors adopted the Civil Service Rules in
1988].)
19(See L.A. Cnty. Code, § 2.14.020, subd. (B) [enacted in
1942 and amended in 1974 and 1982].)

26
 In sum, we reject petitioners’ assertion the sheriff and his
subordinates have the implied authority to rescind or modify
discipline during the pendency of commission appeals.

2. Petitioners do not show that MPP section 3-
04/020.80 authorized department personnel to
execute the settlements
In ALADS I, petitioners argued that MPP section 3-
04/020.80 “ ‘plainly provides authority to the Sheriff’s
subordinates to settle matters that are pending before the
Commission.’ ” (See ALADS I, supra, 94 Cal.App.5th at p. 794.)
Section 3-04/020.80 provides in relevant part: “ ‘If discipline has
been imposed and the discipline is being appealed to the Civil
Service Commission and there are discussions about settling the
case, the division chief or division director shall consult with a
constitutional policing advisor and then obtain concurrence from
the Undersheriff prior to entering into a settlement agreement.’ ”
(Ibid., fn. omitted.)20 We rejected petitioners’ reliance on this
MPP provision because, inter alia, “the language [of the
provision] is ambiguous” and petitioners had not “establish[ed]
that (1) the manual is a proper delegation of authority from the
board of supervisors to department personnel to settle appeals of
discipline, or (2) the manual otherwise lawfully authorizes
department personnel to bind the county to those settlements.”
(See ALADS I, supra, at pp. 794–795, fn. omitted.)

20 In ALADS I, “[n]either side identifie[d the constitutional
policing advisor] or describe[d] his or her responsibilities.” (See
ALADS I, supra, 94 Cal.App.5th at p. 794, fn. 26.) The same is
true in the instant review proceeding.

27
 In this proceeding, petitioners contend MPP section 3-
04/020.80 (1) “constitutes the lawful delegation by the Board of
Supervisors of authority to the Sheriff [and his subordinates] for
executing binding settlement agreements of disciplinary cases” or
(2) is a “law” that confers upon department personnel the power
to act on behalf of the county for the purposes of Government
Code section 23005.
Petitioners contend they alleged in the fourth amended
petition that five “ ‘duly authorized representatives of the Sheriff’ ”
negotiated MPP section 3-04/020.80 with representatives of
ALADS pursuant to the MMBA, and that, in July 2018, one or
more of those department representatives executed an agreement
with ALADS to adopt MPP section 3-04/020.80. From that
premise, petitioners argue, “[P]ursuant to [Los Angeles] County
Code section 5.04.030(O), th[at] agreement became binding upon
execution by [the aforementioned] management representatives
and representatives of ALADS,” meaning no board approval was
required for the county to be bound by MPP section 3-04/020.80,
which provision they claim authorizes division chiefs and division
directors to settle commission appeals.
We note petitioners do not argue the MMBA, as such,
granted the sheriff’s department officials executing the alleged
July 2018 agreement authority to bind the county to MPP
section 3-04/020.80. Rather, they rely upon a provision of the
MMBA that states: “ ‘The governing body of a public agency, or
such boards, commissions, administrative officers or other
representatives as may be properly designated by law or by such
governing body, shall meet and confer in good faith regarding
wages, hours, and other terms and conditions of employment with
representatives of such recognized employee organizations, as

28
defined in subdivision (b) of Section 3501, and shall consider fully
such presentations as are made by the employee organization on
behalf of its members prior to arriving at a determination of
policy or course of action.’ ” (Quoting Gov. Code, § 3505, italics
supplied by petitioners.) Thus, whether the representatives of
the sheriff’s department who signed the July 2018 agreement
could bind the county to MPP section 3-04/020.80 turns on
whether the board of supervisors or a law clothed these
department personnel with authority to bind the county to this
manual provision.
As we noted above, petitioners argue county code
section 5.04.030, subdivision O authorized the sheriff’s personnel
to sign the July 2018 agreement on the county’s behalf. That
ordinance provides in relevant part: “Agreements concerning any
matters within the exclusive jurisdiction of the board of
supervisors or concerning any matters not otherwise delegated by
the board shall become binding when executed by the board of
supervisors and affected certified employee organizations.
Agreements concerning matters within the exclusive jurisdiction
of management representatives, or otherwise delegated to them
by the board, shall become binding when executed by said
affected management representatives and affected certified
employee organizations.” (L.A. Cnty. Code, § 5.04.030, subd. O.)
This ordinance did not delegate authority to sheriff’s
representatives to execute on behalf of the county the alleged
July 2018 agreement to adopt MPP section 3-04/020.80. County
code section 5.04.030, subdivision O simply provides that the
agreement would have become binding upon execution if the
matter were within those department representatives’ “exclusive
jurisdiction” or such contractual authority had been “delegated to

29
them by the board . . . .” (See L.A. Cnty. Code, § 5.04.030,
subd. O.) Petitioners do not direct us to (1) any law granting the
department representatives exclusive jurisdiction to determine
whether division chiefs or division directors may settle
disciplinary appeals without board approval, 21 or (2) any
delegation of this authority from the board to these department
officials.
In sum, petitioners fail to demonstrate MPP section 3-
04/020.80 “is a proper delegation of authority from the board of
supervisors to department personnel to settle appeals of
discipline” (see ALADS I, supra, 94 Cal.App.5th at p. 795,
quoting Gov. Code, § 23005), or constitutes the sort of “law” that
for the purposes of Government Code section 23005 could confer

21 Petitioners cite Civil Service Rules, rule 18.01(A) for the
proposition that “[t]he proposed adoption of MPP
section [3-04/020.80] was within the jurisdiction of management
representatives because it concerned matters affecting the
disciplinary process.” (See also L.A. Cnty. Civil Service Rules,
rule 18.01(A) [providing in relevant part that “an employee may
be suspended by the appointing power for up to and including
30 days . . . as a disciplinary measure”].) They do not claim — let
alone offer analysis and citation to authority demonstrating —
that the manual provision was within “the exclusive jurisdiction
of [the] management representatives” who allegedly executed the
July 2018 agreement requiring adoption of MPP
section 3-04/020.80. (See L.A. Cnty. Code, § 5.04.030, subd. O,
italics added; see also Niblett, supra, 116 Cal.App.5th at p. 466
[“ ‘ “[W]e may disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which [a party] reached the conclusions he wants us
to adopt.” ’ ”].)

30
upon the sheriff and his subordinates the power to act on behalf
of the county in executing such settlements. 22

3. Petitioners do not establish the county is bound
by an alleged past practice of allowing
department personnel to settle disciplinary
appeals
Petitioners maintain that in the fourth amended petition,
they alleged, “[S]ince at least 1980,” there has been “a lawful,
consistent practice of resolving . . . disciplinary disputes[ ] by the
means of executing a written settlement agreement between the
Captain or Chief making the disciplinary decision and the
individual ALADS member affected by the disciplinary decision.”
According to petitioners, they also averred, “[D]uring the same
period of time, it has never been necessary or required to obtain
the approval or agreement of the County Counsel, Director of
Personnel or Board of Supervisors in order for the Sheriff’s
Department and an ALADS member to negotiate and execute a
lawfully binding and enforceable settlement . . . [of] a dispute
concerning a disciplinary matter.”
Petitioners argue these allegations establish a binding
“past practice of the Sheriff’s Department entering into
settlement agreements with Deputy Sheriffs regarding
disciplinary appeals pending at the Civil Service Commission”
because this alleged “practice [was] (1) unequivocal; (2) clearly
enunciated and acted upon; and (3) readily ascertainable over a

22 Given this conclusion, we do not address whether
petitioners have allayed our concern from ALADS I that “the
language at issue [from MPP section 3-04/020.80] is ambiguous.”
(See ALADS I, supra, 94 Cal.App.5th at p. 794.)

31
reasonable period of time as a fixed and established practice
accepted by both parties.” (Citing Riverside Sheriff’s Assn. v.
County of Riverside (2003) 106 Cal.App.4th 1285, 1291 (Riverside
Sheriff’s Assn.).) As explained below, petitioners’ argument rests
on the implied and unsupported premise that the MMBA barred
the county from abolishing its supposed past practice of allowing
chiefs and captains to settle pending disciplinary appeals.
As a preliminary matter, the county asserts we held in
ALADS I that “the mere allegation of past practice, standing
alone, does not establish ‘that the chiefs executing [the
settlements] were “acting under authority of the board or
authority conferred by law” for the purposes of Government Code
section 23005.’ [Citation.]” (Citing ALADS I, supra,
94 Cal.App.5th at pp. 794, 801.) The county misinterprets our
prior opinion.
In ALADS I, we rejected petitioners’ argument that MPP
section 3-04/020.80 conferred upon the chiefs authority to execute
the settlement agreements. (See ALADS I, supra, 94 Cal.App.5th
at pp. 794–796.) Petitioners did not argue — and, consequently,
we did not address whether — a past practice could give rise to
authority to contract on behalf of the county under Government
Code section 23005. (See ALADS I, supra, at pp. 794–796.)
Instead, we simply remarked the trial court should have afforded
petitioners an opportunity to amend their initial pleading
because with further discovery, petitioners “may [have] be[en]
able to ascertain the basis (if any) for” the department’s alleged
“long-standing view that the sheriff and his subordinates are
authorized to settle appeals before the commission.” (See id. at
p. 801.)

32
 We note the sole authority on which petitioners rely for
their claim the county is bound by this alleged past practice is
Riverside Sheriff’s Assn., supra, 106 Cal.App.4th 1285. There, a
former sheriff’s deputy and an employee organization (Riverside
Sheriff’s Association or RSA) petitioned for declaratory relief and
a writ of mandate, alleging, inter alia, that Riverside County had
violated the MMBA by failing to meet and confer with RSA before
abrogating a past practice of granting annual step salary
increases for deputies who had been placed on leave due to
certain work-related disabilities under Labor Code section 4850.
(See Riverside Sheriff’s Assn., supra, at pp. 1287–1289, 1292.)
Riverside County placed the former deputy, who had been injured
in the course of duty, on leave for approximately eight months,
and, several months after she returned to work, the county
denied her annual step salary increase “because she had been
absent [during much of the year] and her performance could not
be evaluated . . . .” (See id. at pp. 1287–1288.)
On appeal from the trial court’s judgment denying the
petition for declaratory relief and for writ of mandate, the
reviewing court acknowledged that the MMBA “requires a public
agency’s governing body to ‘give reasonable written notice to each
recognized employee organization affected of any ordinance, rule,
resolution, or regulation directly relating to matters within the
scope of representation proposed to be adopted by the governing
body[,] . . . give such recognized employee organization the
opportunity to meet with the governing body[,]’ ” and “meet and
confer in good faith with the representatives of a recognized
employee organization before determining a policy or course of
action ‘regarding wages, hours, and other terms and conditions of
employment.’ [Citation.]” (See Riverside Sheriff’s Assn., supra,

33
106 Cal.App.4th at pp. 1289–1290, quoting Gov. Code, §§ 3504.5
& 3505, italics added.)
Further, the Court of Appeal adopted the Public Employee
Relations Board’s (PERB’s) three-part test for determining
whether an employer had a past practice, “the alteration of which
requires compliance with the MMBA.” (See Riverside Sheriff’s
Assn., supra, 106 Cal.App.4th at p. 1291.) Under that test, the
practice needs to have been “ ‘(1) unequivocal; (2) clearly
enunciated and acted upon; and (3) readily ascertainable over a
reasonable period of time as a fixed and established practice
accepted by both parties. [Citation.] . . . ’ [Citation.]” (See ibid.)
The Riverside Sheriff’s Assn. court found, “While [there
was] evidence . . . some deputies obtained step increases while on
[Labor Code section] 4850 leave without having worked a
sufficient time to be evaluated, [the evidence did] not establish
that such a practice was unequivocal, regular and consistent,
clearly enunciated or readily ascertainable over a reasonable
period of time.” (See Riverside Sheriff’s Assn., supra,
106 Cal.App.4th at p. 1292.) The reviewing court thus affirmed
on the ground the former deputy and RSA “did not meet their
burden of establishing that a binding past practice to
automatically grant step increases to deputies on [Labor Code
section] 4850 leave existed.” (See id. at pp. 1292–1293.)
Critically, Riverside Sheriff’s Assn. explained, “A public
agency’s action must have a significant effect on wages, hours
and other terms and conditions of employment before it will be
subject to the provisions of the MMBA.” (See Riverside Sheriff’s
Assn., supra, 106 Cal.App.4th at p. 1290.) On its face, the alleged
past practice at issue in Riverside Sheriff’s Assn. would have had
a significant effect on wages for the purposes of the MMBA if the

34
former deputy and RSA had shown the practice satisfied PERB’s
three-part test.
For further guidance regarding the applicability of the
MMBA’s meet-and-confer requirement, we turn to our high
court’s decision in Claremont Police Officers Assn., supra,
39 Cal.4th 623. There, the City of Claremont decided to
implement a study that required its police personnel to fill out a
form with driver information when conducting vehicle stops in an
effort to determine whether officers were engaging in racial
profiling. (See id. at pp. 628–629.) The officers’ recognized
employee organization (Claremont Police Officers Association or
the Association) requested that the City meet and confer
regarding the study “because [the Association] asserted ‘the
implementation of policy and procedures in regard[ ] to this area
falls under California Government Code section 3504.’ ” (See
ibid.) 23 After the City denied that request, the Association filed a
petition to compel the City not to implement the study until it
met and conferred in good faith under the MMBA. (See
Claremont Police Officers Assn., supra, 39 Cal.4th at p. 629.) The
Court of Appeal reversed the trial court’s denial of the petition,
concluding that the City’s implementation of the study was
subject to the MMBA because it “ ‘significantly affect[ed] officers’

23 Government Code section 3504 provides, “The scope of
representation shall include all matters relating to employment
conditions and employer-employee relations, including, but not
limited to, wages, hours, and other terms and conditions of
employment, except, however, that the scope of representation
shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or
executive order.” (Gov. Code, § 3504.)

35
working conditions, particularly their job security and freedom
from disciplinary action, their prospects for promotion, and the
officers’ relations with the public.’ ” (See id. at pp. 629–630.)
On review, our high court articulated “a three-part inquiry”
for determining whether an employer’s action falls within the
“scope of representation” of the recognized employee organization
such that it is subject to the MMBA’s duty to meet and confer in
good faith. (See Claremont Police Officers Assn., supra,
39 Cal.4th at pp. 628, 630, 638.) “First, we ask whether the
management action has ‘a significant effect on the wages, hours,
or working conditions of the bargaining-unit employees.’
[Citation.] If not, there is no duty to meet and confer.
[Citations.] Second, we ask whether the significant and adverse
effect arises from the implementation of a fundamental
managerial or policy decision. If not, then . . . the meet-and-
confer requirement applies. [Citation.] Third, if both factors are
present — if an action taken to implement a fundamental
managerial or policy decision has a significant and adverse effect
on the wages, hours, or working conditions of the employees —
we apply a balancing test. The action ‘is within the scope of
representation only if the employer’s need for unencumbered
decisionmaking in managing its operations is outweighed by the
benefit to employer-employee relations of bargaining about the
action in question.’ [Citation.]” (Id. at p. 638.) 24

24 We acknowledge PERB recently decided that Claremont
Police Officers Assn.’s balancing test (i.e., the third prong) applies
only to a certain subset of management actions, to wit,
“ ‘decisions that directly affect employment, such as eliminating
jobs, . . . [that] involve “a change in the scope and direction of the
enterprise, or . . . the employer’s “retained freedom to manage its

36
 Before applying this three-part test to the case before it,
the Supreme Court explained, “Both parties agree that the City’s
decision to take measures against racial profiling, specifically its
decision to implement the [s]tudy as a necessary first step, is a
fundamental managerial or policy decision” that “is outside the
scope of representation [citation], and is excepted from [the
MMBA’s] meet-and-confer requirement.” (See Claremont Police
Officers Assn., supra, 39 Cal.4th at pp. 628, 632, italics added.)
Conversely, the high court found that “the City’s implementation
of the [s]tudy, requiring officers to fill out the [f]orms in order to
collect data on possible racial profiling,” had to be analyzed to
determine whether the City was obligated to meet and confer
with the Association. (See id. at p. 635, italics added.)
The Supreme Court found the City’s implementation of the
study “did not have a significant and adverse effect on the
officers’ working conditions.” (Claremont Police Officers Assn.,
supra, 39 Cal.4th at p. 638.) The court explained the study
“ ‘require[d] slightly more information to be collected by the
officer than required in completing the citation or arrest report[,]’
” and “officers may complete [the f]orm in about two minutes and
may complete between four and six such [f]orms in a 12-hour

affairs unrelated to employment[.]” ’ . . . [Citation.]” (See
Association for Los Angeles Deputy Sheriffs v. County of Los
Angeles (2024) 106 Cal.App.5th 982, 997–998 & fn. 6, citing, inter
alia, Santa Clara County District Attorney Investigators’
Association v. County of Santa Clara (2021) PERB Dec. No. 2799-
M.) We do not decide whether PERB’s decision is correct because
as explained later in this part, petitioners do not develop their
implicit contention that the MMBA constrained the county’s
decision to abandon its alleged practice of allowing department
personnel to settle commission appeals.

37
shift.” (See id. at pp. 638–639.) Because “the impact on the
officers’ working conditions was de minimis,” the high court
“conclude[d] the City was not required to meet and confer
[citation] with the Association before implementing the [s]tudy.”
(See ibid.) “Because there was no significant and adverse effect,
[the high court did not need to] balance the City’s need for
unencumbered decisionmaking . . . against the benefit to
employer-employee relations from bargaining about the subject.”
(Id. at p. 639.) In arriving at this conclusion, the Claremont
Police Officers Assn. court “emphasize[d] the narrowness of [its]
holding:” “In determining that the City was not required to meet
and confer with the Association before implementing the [s]tudy,
[the high court did] not decide whether such a duty would exist
should issues regarding officer discipline, privacy rights, and
other potential effects [citation], arise after the City implements
the [s]tudy.” (See ibid.)
Conspicuously absent from petitioners’ appellate briefing is
any analysis or citation to legal authority demonstrating that the
county’s purported abrogation of a past practice of permitting
chiefs and captains to settle disciplinary appeals without board
approval satisfies the threshold requirement of MMBA
applicability discussed in Claremont Police Officers Assn. and
Riverside Sheriff’s Assn. More specifically, petitioners do not
argue, let alone demonstrate, that the alleged abrogation of this
purported past practice “significantly and adversely affects a
bargaining unit’s wages, hours, or working conditions” and does
not have a “de minimis” impact on such matters. (See Claremont
Police Officers Assn., supra, 39 Cal.4th at pp. 637–638; see also
Riverside Sheriff’s Assn., supra, 106 Cal.App.4th at p. 1290

38
[acknowledging this requirement].) 25 Petitioners also do not
address whether the supposed rescission of that past practice
constitutes (1) a fundamental managerial or policy decision that
is excepted from the MMBA, (2) the implementation of such a

25 In a footnote in the section of their opening brief in
which they argue MPP section 3-04/020.80 is binding on the
county, petitioners cite two PERB decisions for the sweeping
proposition that “[i]ssues involving discipline are mandatory
subjects of bargaining under the MMBA.” (Citing San
Bernardino Teachers Assn. v. San Bernardino City Unified Sch.
Dist. (1982) PERB Dec. No. 255, p. 11; American Federation of
State, County & Municipal Employees Local 3299 et al. v. Regents
of the Univ. of California (2021) PERB Dec. No. 2783-H, p. 30.)
Petitioners do not argue — let alone offer analysis demonstrating
— these decisions hold that recission of the county’s alleged past
practice of allowing chiefs and captains to settle disciplinary
appeals without board approval is subject to the MMBA’s meet-
and-confer requirement. Furthermore, in the absence of any
discussion of these PERB decisions in petitioners’ appellate
briefing, we fail to discern why petitioners believe they are
relevant to the instant case. (See San Bernardino Teachers
Assn., supra, PERB Dec. No. 255, p. 11 [indicating that PERB
addressed whether “rules of conduct which subject employees to
disciplinary action are subject to negotiation both as to criteria
for discipline and as to procedure to be followed”]; American
Federation of State, County & Municipal Employees Local 3299,
supra, PERB Dec. No. 2783-H, pp. 30–31 [indicating that PERB
addressed whether an employer failed to “meet and confer in good
faith over negotiable effects of [its] decision to mandate influenza
vaccinations”]; see also United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 165, fn. 6 (United Grand Corp.)
[“ ‘[A]n appellant is required to not only cite to valid legal
authority, but also explain how it applies in his case.’ ”].)

39
fundamental managerial or policy decision that is potentially
subject to the MMBA, or (3) neither.
In short, regardless of whether petitioners alleged facts
showing a past county practice that satisfies the three-part PERB
test discussed in Riverside Sheriff’s Assn., they fail to show that
abrogating an alleged past practice of allowing chiefs and
captains to settle commission appeals without board approval is
subject to the MMBA’s meet and confer obligation. Accordingly,
petitioners fail to demonstrate the MMBA prohibited the county
from abrogating unilaterally that alleged past practice. (See
Standards of Review, ante [noting petitioners must affirmatively
demonstrate error with cogent argument and legal analysis to
attain appellate relief].)
In light of our resolution of this issue, we do not address
petitioners’ argument that they sufficiently alleged a past
practice satisfying the three-pronged PERB test described in
Riverside Sheriff’s Assn., including their claim that a
February 2021 report from the Los Angeles County Office of
Inspector General shows that such a past practice existed.

4. The county is not collaterally estopped from
denying the chiefs’ authority to execute the
settlements
“ ‘An earlier ruling “will be given collateral estoppel effect
when (1) the issue is identical to that decided in a former
proceeding; (2) the issue was actually litigated and (3) necessarily
decided; (4) the doctrine is asserted against a party to the former
action or one who was in privity with such a party; and (5) the
former decision is final and was made on the merits.” ’
[Citation.]” (Angel Lynn Realty, Inc. v. George (2025)
114 Cal.App.5th 655, 664.)

40
 Petitioners seem to argue that the unpublished decision in
Assn. for L.A. Deputy Sheriffs v. Baca (Nov. 13, 2013, B238141)
[nonpub. opn.] [2013 WL 6000970] (Baca) collaterally estops the
county from denying that the chiefs were authorized to execute
the settlements. It does not. As explained below, Baca does not
address the issue before us.
In Baca, ALADS entered into a settlement agreement with
the department in 1991 to resolve a civil action and an unfair
labor practice proceeding brought by ALADS. (See Baca, supra,
B238141 [2013 WL 6000970 at p. *1].) In the unfair labor
practice proceeding, ALADS had challenged the department’s
abrogation of its longstanding practice of postponing
administrative investigations of potential criminal conduct
perpetrated by sworn officers until the department’s criminal
investigation, and, if charges were filed, the trial and any
appeals, were completed. (See ibid.) The 1991 settlement, which
was executed by ALADS’s general counsel and the department’s
director of employee relations, “provided the Department would
not require a deputy subject to concurrent criminal and
administrative investigations arising out of the same incident to
submit to an administrative interrogation until it was
determined criminal charges would not be filed, . . . or the deputy
was arraigned on the criminal charge or the deputy requested a
continuance on the criminal charge . . . .” (See id. at pp. *2, *4.)
Between December 2006 and August 2009, the department
informed ALADS that it planned to interview deputies involved
in shootings prior to the district attorney’s determination
regarding whether criminal charges would be filed, and the
department attempted to renegotiate the 1991 settlement with
ALADS. (See Baca, supra, B238141 [2013 WL 6000970 at pp. *1,

41
*3].) ALADS later sued the department and the county, seeking
specific performance of the 1991 settlement agreement and a
declaration of the agreement’s continuing validity. (See id. at
p. *3.) The trial court entered judgment against ALADS after a
bench trial on the grounds the settlement was terminable at will
after a reasonable period of time, and a reasonable period had
elapsed by the time the department provided ALADS with
reasonable notice of termination. (See id. at pp. *1, *4–5.)
On appeal, our colleagues in Division Seven reversed the
judgment and remanded to the trial court with directions to
declare the continuing validity of the 1991 settlement agreement
and order other appropriate relief. (See Baca, supra, B238141
[2013 WL 6000970 at pp. *1, *9].) First, the reviewing court
rejected the trial court’s conclusion that the 1991 settlement was
terminable upon reasonable notice after a reasonable period of
time. (See id. at pp. *1, *5–6.)
The Baca court also rejected the county’s argument that
the 1991 settlement was void and unenforceable because there
was no evidence that the department’s director of employee
relations had attained board approval to execute the agreement
or that he was otherwise authorized to enter into it. (See Baca,
supra, B238141 [2013 WL 6000970 at pp. *7–9], citing, inter alia,
Gov. Code, § 23005.) Instead, the court ruled the director of
employee relations had “actual and ostensible authority to
negotiate and execute the 1991 settlement agreement.” (See
Baca, supra, at p. *8.) The reviewing court explained that the
county had conceded the director of employee relations was
authorized to execute the 1991 settlement so long as the
agreement was interpreted such that it was terminable with
reasonable notice after a reasonable period of time had elapsed.

42
(See id. at pp. *7–8 [discussing the “Department[’s]” concession];
see also id. at p. *3, & fn. 3 [noting that references to the
“Department” in Baca refer also to the county].) The court then
held the doctrine of equitable estoppel barred the county from
contesting the validity of the settlement because “both parties
acted for nearly two decades under the terms of the agreement”
and the court was “not dealing with a public works contract, . . .
no expenditure of public funds [was] involved[, and] . . . applying
estoppel [would not] directly contravene statutory limitations on
the county’s authority.” (See id. at pp. *8–9.)
Petitioners maintain the Baca court “addressed the same
statute involved in the instant matter, namely Government Code
section 23005, as well as the actual and ostensible authority
for a Sheriff’s Department official to negotiate a settlement
agreement . . . .” The Baca court held that the director of
employee relations was authorized to enter into a settlement on
behalf of the county as to ALADS’s unfair labor practice charge
and civil action concerning the department’s administrative
investigations of deputies who could be subject to criminal
investigation. (See Baca, supra, B238141 [2013 WL 6000970 at
pp. *1, *4, *7–9].) The court thus had no occasion to address
whether department chiefs may settle commission appeals
without board approval. Because the Baca court did not decide
the issue presented here, the decision does not collaterally estop
the county from litigating the validity of the settlements before
us.

C. Petitioners Do Not Demonstrate that They Pleaded
Viable Promissory Estoppel Causes of Action
We explained in ALADS I that “ ‘[p]romissory estoppel may
not be invoked against a governmental entity if “ ‘it would

43
operate to defeat the effective operation of a policy adopted to
protect the public.’ [Citation.]” [Citation.]’ [Citation.]”
(ALADS I, supra, 94 Cal.App.5th at pp. 796–797.) We held,
“Promissory estoppel . . . is not available to defeat the public’s
interest in ensuring that only the board of supervisors, its agents
and officers, and other officials acting under authority conferred
by law have the power to incur liability on behalf of the county.”
(Id. at p. 797.) For that reason, we concluded the chiefs’ lack of
authority to execute the settlements was fatal to petitioners’
promissory estoppel causes of action. (See id. at pp. 796–797.)
In the instant review proceeding, petitioners complain that
“the lower court failed to address [their] causes of action for
promissory estoppel in its Order sustaining the Demurrer.” In
advancing this argument, petitioners overlook the general
principle that “[an] appellate court reviews the trial court’s
decision, not its rationale.” (See Fox v. JAMDAT Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1079.) Petitioners’ promissory
estoppel claims fail because the chiefs lacked authority to execute
the settlements. (See ALADS I, supra, 94 Cal.App.5th at
pp. 796–797; see also Discussion, part B, ante [explaining that
petitioners have not shown the chiefs had this authority].)
Because petitioners’ causes of action for promissory estoppel are
defective, we need not determine whether the trial court should
have separately addressed those causes of action in its written
order.

D. Any Error on the Part of the Trial Court In
Sustaining the Demurrer to the Declaratory Relief
Cause of Action Was Harmless
In their tenth cause of action for declaratory relief,
petitioners allege: “An actual controversy has arisen and now

44
exists between ALADS, Jouzi, Alvarado, and Aragon on the one
hand, and [the county], on the other hand, concerning [the
county’s] obligation to comply with the terms of settlement
agreements [the county] enter[s] into, by and through the
Department, during the pendency of administrative discipline
cases such as the Jouzi Settlement Agreement, Alvarado
Settlement Agreement and Aragon Settlement Agreement.
[Petitioners] contend that [the county is] obligated to comply with
the terms of such settlement agreements. [The county]
contend[s] that [it is] not legally obligated to comply with the
terms of such settlement agreements.” 26
According to petitioners, “even if [they] are not entitled to a
judgment in their favor” on their declaratory relief cause of
action, the demurrer to this claim should have been overruled
because they alleged “an actual controversy . . . .” We explained
in ALADS I, however, that this “type of ‘technical’ error is
‘harmless if,’ as is the case here, ‘the substantive claim’
underlying the request for declaratory relief ‘is legally untenable.’
[Citation.]” (See ALADS I, supra, 94 Cal.App.5th at p. 800.)
Thus, any error on the part of the trial court in sustaining the

26 Petitioners also seek injunctive relief in connection with
their tenth cause of action. By failing to address this claim for
injunctive relief in their appellate briefing, petitioners have
abandoned any claim the trial court erred in sustaining the
demurrer to this aspect of their tenth cause of action. (See
ALADS I, supra, 94 Cal.App.5th at p. 798, fn. 33 [ruling
petitioners had likewise abandoned their claim for injunctive
relief by failing to discuss it in their briefing].)

45
demurrer to the tenth cause of action does not warrant
reversal. 27

DISPOSITION
We exercise our discretion to construe this appeal as a
petition for writ of mandate. That writ petition is denied. Real
parties in interest are awarded their costs in this review
proceeding.
CERTIFIED FOR PUBLICATION.

BENDIX, J.

We concur:

ROTHSCHILD, P. J. WEINGART, J.

We thus do not address the county’s argument that
27
ALADS lacks associational standing to seek declaratory relief.
Additionally, petitioners do not claim in this review
proceeding that the trial court abused its discretion in denying
leave to amend. They thus forfeit any such claim of error. (See
United Grand Corp., supra, 36 Cal.App.5th at p. 156 [holding
that if a party fails to support a claim of error with cogent
argument, the reviewing court may deem the claim forfeited].)

46


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B349508

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071779)
v.
ORDER MODIFYING OPINION
JUSTIN ASHLEY FLINT, (NO CHANGE IN JUDGMENT);
ORDER DENYING APPELLANT’S
Defendant and Appellant. PETITION FOR REHEARING

The published opinion in the above-entitled matter filed on
October 2, 2026 is modified as follows:

1. At the bottom of page 17, the words “the Governor” are
replaced with the following words: individual lawmakers.

2. At the bottom of page 17 through page 18, the entire
sentence beginning with the words “We decline to do so” is deleted
and replaced with the following sentence (including a newly inserted
footnote 7):
We decline to do so, as neither letter bears any indicia that its
contents reflect the views of the Legislature as a whole or a
reiteration of legislative discussion.7

3. At the top of page 18, the citation and parenthetical to
Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.
shall be expanded to include the following additional citation (and
corresponding parenthetical):

; Naranjo v. Spectrum Security Services, Inc. (2024) 15 Cal.5th 1056,
1085 [letters reflecting the views of individual lawmakers are “neither
authoritative nor definitive” evidence of legislative intent].)

4. On page 18, the sentence “We likewise reject Flint’s
argument concerning the Legislative Digests for amendments to
the subdivision enacted in 2000 through 2004.” shall be reformatted
as the first sentence of a new paragraph. Additionally, the two
sentences (and citation) following that sentence at the bottom
of page 18 shall be deleted and replaced with the following two
paragraphs (which include the sentence referenced above):

We likewise reject Flint’s argument concerning the Legislative
Digests for amendments to the subdivision enacted in 2000 through
2004. The amendments did not alter the disputed language in
section 830.1, subdivision (c) at issue in this appeal. Instead,
the amendments added new counties to the list in section 830.1,

7 Flint contends that “we know the Senate Committee
on Criminal Procedure considered [the Sheriff ’s] letter because
it is referenced on page 2 of the August 7, 1996 Conference Report
Committee Analysis.” Flint is mistaken. Although the report and
letter address some of the same subject matter, no reference to the
letter appears in the report.

2
subdivision (c) and replaced the phrase “county of the first class”
with “County of Los Angeles.” (See, e.g., Legis. Counsel’s Dig.,
Assem. Bill No. 1254 (2003–2004 Reg. Sess.) 5 Stats. 2003, Summary
Dig., p. 24.) Flint argues the digests for these amendments support
his construction because they refer only to a deputy sheriff ’s
“assignment” and omit the word “employed.” The 2003 digest, for
example, provides in pertinent part: “Existing law . . . provides that
any deputy sheriff of the County of Los Angeles . . . who is assigned
to perform duties exclusively or initially relating to specified
custodial assignments is a peace officer whose authority [is limited
in specified ways].” (Ibid., italics added.) But Flint ignores that—
immediately below the language he cites—the 2003 digest uses the
word “employed” in describing the applicability of section 830.1,
subdivision (c): “This bill would provide that this . . . provision is
also applicable to deputy sheriffs employed by the County of Shasta
who are assigned to perform duties exclusively or initially related to
specified custodial assignments.” (Legis. Counsel’s Dig., Assem. Bill
No. 1254 (2003–2004 Reg. Sess.) 5 Stats. 2003, Summary Dig., p. 24,
italics added.) The 2004 digest contains similar language. (See Legis.
Counsel’s Dig., Assem Bill. No. 1931 (2003–2004 Reg. Sess.) 6 Stats.
2004, Summary Dig., p. 254 [“[t]his bill would add deputy sheriffs of
Butte County and Tuolumne County employed to perform those duties
relating to custodial assignments to th[e] category of peace officers [in
section 830.1, subdivision (c)]”] (italics added).) The digests therefore
do not “leave it unmistakably clear that lawmakers understood that
‘employed to perform duties’ refers to the deputy’s initial assignment,”
as Flint contends.
Nor are we persuaded by Flint’s related argument that the
amendment replacing the phrase “county of the first class” with
“County of Los Angeles” demonstrates that the Legislature views
all deputies initially assigned to work in the jails in Los Angeles as

3
modified deputies. It is equally plausible that the language merely
reflects the Legislature’s understanding that Los Angeles is one of the
counties permitted—but not required—to institute a modified deputy
program.

5. On page 23, the following sentences and citations
are deleted: Flint, however, ignores that the current version of
section 1005 distinguishes between modified deputies employed
pursuant to section 830.1, subdivision (c) and regular deputies
assigned to work in the jails: Subdivision (a)(7) of section 1005
identifies “jail deputies” as those governed by section 830.1,
subdivision (c). (See Cal. Code of Regs., tit. 11, § 1005, subd. (a)(7)
[“[e]very jail deputy (section 830.1, subd. (c)) shall satisfactorily
complete [certain training courses]”].) Section 1005, subdivision
(a)(1), in turn, exempts both (1) “jail deputies” (i.e., modified,
section 830.1, subdivision (c) deputies) and (2) other officers whose
“assignment remains custodial”—such as regular deputies initially
assigned to the jails— from certain field training requirements. (Cal.
Code of Regs., tit. 11, § 1005, subds. (a)(1)(A) & (B).) Each exemption
has independent significance only if we treat modified deputies as a
category of officers distinct from other deputies assigned to the jails.
(See Fischl v. Pacific Life Ins. Co. (2023) 94 Cal.App.5th 108, 121
[“we interpret regulations the same way we interpret statutes”];
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles
(2023) 94 Cal.App.5th 764, 783 [“ ‘ “[s]tatutes must be interpreted, if
possible, to give each word some operative effect” ’ ”].) The regulation
thus implicitly recognizes that not all jail-assigned deputies are
modified, section 830.1, subdivision (c) deputies.

6. On page 24, the words “Flint likewise ignores” shall be
replaced with the words “Flint, however, ignores.”

4
 7. On pages 24 through 25, the following sentence is deleted:
These distinctions in section 1005 support that the Legislature
(1) understands that modified deputies and jail-assigned regular
deputies are separate categories of officers, and (2) intends that a
regular deputy who completes the full POST basic training will wield
plenary peace officer authority, even if that deputy has not yet been
assigned to a patrol position and remains assigned to the jails.

That deleted sentence is replaced with the following sentence:
This distinction in section 1005 supports that the Legislature intends
that a regular deputy who completes the full POST basic training will
wield plenary peace officer authority, even if that deputy has not yet
been assigned to a patrol position and remains assigned to the jails.

8. All subsequent footnotes following the newly inserted
footnote 7 shall be renumbered.

These modifications do not constitute a change in judgment.
Appellant’s petition for rehearing filed on October 6, 2026 is
denied.

_________________________________________________________________
ROTHSCHILD, P. J. BENDIX, J. WEINGART, J.

5
Filed 10/2/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B349508

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071779)
v.

JUSTIN ASHLEY FLINT,

Defendant and Appellant.

Appeal from an order of the Superior Court of Los Angeles
County, Daniel J. Lowenthal, Judge. Affirmed.
David Andreasen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
 In 2006, Justin Ashley Flint acted as a lookout for his
associate, Frank Gonzalez, as Gonzalez attempted to rob Maria
Cecilia Rosa, an off-duty Los Angeles County Sheriff ’s Department
(LASD) Deputy. During the attempt, Gonzalez shot Rosa, killing
her. In 2007, the district attorney charged Gonzalez and Flint with
first degree murder and attempted robbery. The court instructed
Flint’s jury2 on the felony-murder rule. The jury convicted Flint
on both counts.
In 2019, Flint filed a petition pursuant to Penal Code3
section 1172.6 (former § 1170.95)4 challenging his murder
conviction. That section permits defendants convicted under
certain theories of homicide invalidated by Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015)—including certain
felony-murder theories—to file a petition seeking resentencing.
(§ 1172.6, subd. (a).) Section 1172.6, however, does not afford relief
to a defendant convicted under the felony-murder rule “when the
victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably
should have known that the victim was a peace officer engaged
in the performance of the peace officer’s duties.” (§ 189, subd. (f);
see People v. Flint (2022) 75 Cal.App.5th 607, 616–618 (Flint).)
Following an evidentiary hearing, the trial court found that
Gonzalez had killed Rosa in the course of her peace officer duties.
The court therefore denied Flint’s petition.
In this appeal—the third arising out of Flint’s pursuit of
section 1172.6 resentencing—Flint argues we must reverse the
denial of his petition because Rosa lacked peace officer authority
while off duty. His argument hinges on the construction of

2 The district attorney tried Gonzalez separately. Gonzalez received the death penalty,
which the Supreme Court affirmed. (People v. Gonzalez (2021) 12 Cal.5th 367.)
3 Further statutory references are to the Penal Code.
4 For consistency, we refer only to the current statutory designation.

2
section 830.1, subdivision (c), which provides in pertinent part that
“[a] deputy sheriff . . . who is employed to perform duties exclusively
or initially relating to custodial assignments . . . is a peace officer
whose authority extends to any place in the state only while
engaged in the performance of the duties of the officer’s respective
employment.” (§ 830.1, subd. (c).) Flint contends that under
section 830.1, subdivision (c), any deputy initially placed in a
custodial assignment lacks off-duty peace officer authority unless
and until the deputy transitions to a field assignment. He further
contends that, because Rosa remained primarily assigned to the
jails during her career, she lacked peace officer authority at the
time Gonzalez shot her.
The Attorney General counters that section 830.1,
subdivision (c) applies only to a discrete class of so-called “modified”
deputies hired for the specific purpose of serving in a limited
custodial role and provided more limited training commensurate
with that role. The Attorney General further contends that
Rosa was not part of this modified deputy class, and that she
instead enjoyed the off-duty peace officer authority conferred
by section 830.1, subdivision (a). (See § 830.1, subd. (a)(3) [“A . . .
deputy sheriff . . . is a peace officer” whose “authority . . . extends
to any place in the state . . . [¶] . . . [¶] . . . [a]s to a public offense
committed . . . in the peace officer’s presence, and with respect to
which there is immediate danger to person or property, or of the
escape of the perpetrator of the offense”].)
We conclude that—construed in light of the broader statutory
scheme and the pertinent legislative history—section 830.1,
subdivision (c) applies only to deputies (1) hired, trained, and
utilized for the limited purpose of working exclusively in a custodial
assignment, or (2) hired, trained, and utilized for the limited
purpose of working initially in a custodial assignment prior to

3
completing the full training required to transition to employment
as a regular deputy under section 830.1, subdivision (a).
We further conclude that substantial evidence supports that
Rosa was not a modified deputy trained, hired, or utilized for this
limited purpose. As such, she was acting in the course of her peace
officer duties when Gonzalez shot her, and Flint is not entitled to
section 1172.6 relief.5 (See § 189, subd. (f).)
Accordingly, we affirm.

FACTUAL SUMMARY AND PROCEDURAL
HISTORY
We summarize only the facts and procedural history relevant
to our resolution of this appeal.

A. Trial Proceedings
In 2007, a jury convicted Flint of one count of first degree
murder (§ 187, subd. (a)) and one count of attempted robbery
(§§ 211, 664), and found that a principal was armed with a
firearm in the commission of both counts. (See Flint, supra, 75
Cal.App.5th at p. 611.) The prosecution alleged that a felony-
murder special circumstance (§ 190.2, subd. (a)(17)) applied to the
murder, but the jury found this allegation “not true.” (See Flint,
supra, at p. 611.) The trial court sentenced Flint to 29 years to life
in prison. (See ibid.) We affirmed the convictions, but stayed the
sentence on the attempted robbery conviction, reducing Flint’s
sentence to 26 years to life. (See People v. Flint (July 6, 2010,
B205374) [nonpub. opn.].)

5 Flint does not challenge any other elements of his conviction. (Cf. People v. Curiel
(2023) 15 Cal.5th 433, 462 [a section 1172.6 petition “puts at issue all elements of the
[challenged homicide] offense under a valid theory”].)

4
B. Section 1172.6 Proceedings
1. Senate Bill No. 1437’s Changes to the Felony-Murder Rule
A decade later, “[i]n 2018, the Legislature enacted Senate
Bill No. 1437.” (Flint, supra, 75 Cal.App.5th at p. 609.) Among
other changes, the bill “restricted the application of the felony-
murder doctrine. Prior to the enactment of the law, if a defendant
committed one of certain serious felonies in which an accomplice
killed someone, the defendant was liable for first degree murder
even if the killing was inadvertent and unforeseeable. [Citations.]
Under the new law, this is no longer the case. To obtain a
conviction for felony murder, the prosecution must prove the
defendant was the actual killer, acted with the intent to kill in
aiding, abetting, counseling, or soliciting the killing, or was ‘a
major participant in the underlying felony and acted with reckless
indifference to human life.’ ” (Ibid., citing Stats. 2018, ch. 1015,
§ 3, enacting § 189, subd. (e)(3).)
“The statute created a single exception to these requirements,
for cases where ‘the victim is a peace officer who was killed while
in the course of [the peace officer’s] duties, where the defendant
knew or reasonably should have known that the victim was a peace
officer engaged in the performance of [the peace officer’s] duties.’ ”
(Flint, supra, 75 Cal.App.5th at p. 610, citing Stats. 2018, ch. 1015,
§ 3, enacting § 189, subd. (f).) “In such a case, the felony-murder
doctrine applies as it did before the enactment of Senate Bill
No. 1437, with no requirement to show that the defendant was a
major participant in the felony or acted with reckless indifference
to human life.” (Flint, supra, at p. 610.)
Senate Bill No. 1437 “also created a special procedural
mechanism for those convicted under the former law to seek
retroactive relief under the law as amended.” (People v. Strong
(2022) 13 Cal.5th 698, 708.) This mechanism, now codified in

5
section 1172.6, allows “defendants previously convicted of felony
murder who ‘could not be convicted of first or second degree murder
because of changes’ in the law to petition to vacate their convictions
and be resentenced.” (Flint, supra, 75 Cal.App.5th at p. 610.) If the
defendant establishes a prima facie claim for relief, the defendant
is entitled to an evidentiary hearing. (§ 1172.6, subds. (c) & (d)(1);
Strong, supra, at p. 708.) At the hearing, the trial court acts as an
independent fact finder, and the prosecution bears the burden of
proving beyond a reasonable doubt that the defendant is guilty of
murder under the amended law. (See § 1172.6, subd. (d)(3); People
v. Guiffreda (2023) 87 Cal.App.5th 112, 123 (Guiffreda).) “If the
prosecution fails to sustain its burden of proof, the prior conviction,
and any allegations and enhancements attached to the conviction,
shall be vacated and the petitioner shall be resentenced on the
remaining charges.” (§ 1172.6, subd. (d)(3).)

2. Flint’s Section 1172.6 Petition
In January 2019, Flint filed a petition for resentencing under
section 1172.6. (See Flint, supra, 75 Cal.App.5th at p. 611.) The
trial court found that Flint had failed to make a prima facie case
for relief and denied the petition. (Ibid.) Flint appealed. (Ibid.)
We reversed, explaining the trial court had reached its conclusion
by weighing the evidence and exercising discretion, which the court
could not do at the prima facie stage. (Id. at p. 612.) We directed
the court to issue an order to show cause and hold further
proceedings in conformance with our opinion. (Id. at p. 618.)
Following remand, the court issued an order to show cause
and held an evidentiary hearing. (People v. Flint (Oct. 31, 2024,
B333482) [nonpub. opn.].) At the hearing, Flint did not challenge
Rosa’s off-duty authority as a peace officer. (Ibid.) Rather, “Flint
asserted, and the prosecution and the court agreed, that the issue to
be decided was whether, for purposes of section 189, subdivision (f),

6
Flint knew or reasonably should have known that Rosa was a
peace officer engaged in the performance of her duties at the time
Gonzalez shot her.” (People v. Flint, supra, B333482, italics added.)
The court found “ ‘[b]ased on the totality of the evidence’ ” presented
at the hearing—which included the reporter’s transcript from
Flint’s 2007 trial, certain trial exhibits, and live testimony from
sheriff ’s deputies—that “ ‘[the prosecution] ha[d] proven, beyond
a reasonable doubt, that Flint was aware, before the shooting,
that Deputy Rosa was a peace officer who was engaged in the
performance of her duties.’ ” (Ibid.)
Flint again appealed, arguing for the first time that Rosa
“was a deputy described in subdivision (c) of section 830.1, which
created ‘a new lower-tier category of custodial peace officer,’ with
‘limited custodial duties, more limited training than other sheriff ’s
deputies, and limited peace officer powers.’ ” (People v. Flint,
supra, B333482, quoting People v. Orosco (2022) 82 Cal.App.5th
348, 356 (Orosco).) He argued that Rosa therefore had no
peace officer authority while off duty and thus was not killed “in
the course of her duties” for purposes of section 189, subdivision (f).
(People v. Flint, supra, B333482.) Because Flint had failed to raise
this argument before the trial court, we reversed and directed the
court on remand to hold a further evidentiary hearing to determine
whether Rosa was, at the time of her murder, acting “in the course
of [her] duties” as a peace officer. (§ 189, subd. (f); see § 830.1,
subds. (a) & (c); People v. Flint, supra, B333482.)

3. September 2025 Evidentiary Hearing
Following remand, in September 2025, the court held the
further evidentiary hearing on Flint’s resentencing petition. At the
outset of the proceeding, the court summarized its understanding of
the scope of the hearing:

7
 “By way of background, the Sheriff of [Los Angeles]
County went to [the Commission on Peace Officer Standards
and Training (POST)], I think it was [in] 1996, to request that
a new classification of personnel be created to facilitate staffing
shortages. . . . [¶] The Legislature’s intent was not to detract, or
take away, from peace officer powers pursuant to [section] 830.1[,
subdivision] (a), but solely to create a new category of personnel
that would have limited, or modified, peace officer duties. [¶]
[Section] 830.1[, subdivision] (c) states[,] in pertinent part, that
a deputy sheriff who is employed to perform duties exclusively
or initially relating to custodial assignments is not a peace officer
outside of his or her custodial assignment. [¶] The Legislature
clearly meant that a deputy who is hired for the purpose of
working exclusively, or initially, in a custodial facility will have
that limited power; otherwise, construing it to mean that any
deputy who initially works in a custodial facility has limited power,
I think would lead to an absurd result, because then, necessarily,
no current sheriff[’s] deputy would be a full deputy, because
everyone, I think, initially has an assignment in a custodial facility.
[¶] And so I think that the scope of today’s hearing, therefore,
is just to determine whether or not Deputy Rosa was hired as a
full deputy with full [POST] training pursuant to [section] 830.1[,
subdivision] (a).” (Capitalization added.)
Defense counsel disputed the court’s interpretation of
the statutory language, but both parties agreed with the court’s
characterization of the hearing’s scope. In addition, defense counsel
lodged a standing objection “to any witness . . . testifying that a
particular officer satisfies, or meets, the definition of . . . an officer
under [sections] 830.1[, subdivision] (a) or 830.1[, subdivision] (c)”
because “that’s an issue of statutory construction.”

8
 The prosecution then introduced 14 exhibits, including
the sheriff ’s deputy job bulletin in effect when Rosa applied to
the LASD, records reflecting Rosa’s training as a deputy sheriff,
and Rosa’s performance evaluations. The prosecution also called
two witnesses: Investigator Brian Steinwand and Commander
Bryan Aguilera. The defense did not call any witnesses, but it
introduced four exhibits—consisting of more of Rosa’s performance
evaluations and documents describing the duties of patrol-assigned
and custody-assigned deputies—that it used to cross-examine the
prosecution’s witnesses.
Investigator Steinwand, a retired sergeant with LASD,
testified that Rosa worked with his homicide task force in
2004 and 2005. Rosa’s role “was to assist homicide investigators
with their investigations in several ways, but . . . her main
role was to monitor wire intercepts that were coming in related
to homicide[ ] investigations, or other cases that were being
investigated via wiretap.” He further testified that this work
was not within the “custodial division” of LASD; rather, “[it was]
within . . . the detective bureau of [LASD].” Finally, Investigator
Steinwand testified that he “could not accept the [section 830.1,
subdivision] (c) classification [deputies] to . . . help with [these
types of] investigations.”
Commander Aguilera, an “almost 23-year veteran” of LASD
then serving in the custody division, testified that he previously
served as captain of the personnel admission bureau, “which is
essentially the human resources arm of [LASD]” and is “responsible
for hiring and all department records.” He explained that the
POST training for a full sheriff ’s deputy—training identified
as “academy basic” in LASD personnel files—is approximately
720 hours. In contrast, modified deputies hired pursuant to
section 830.1, subdivision (c) received a “maximum of 297 hours

9
of academy training.” And the full and modified deputy training
academies “were completely bifurcated.” In addition, Commander
Aguilera testified that LASD hired and trained modified deputies
only between 1997 and 1999, and that “[t]he start date of the last
academy that included modified deputies was on February 23rd,
1999.” When the prosecutor asked whether “any deputies that
were hired on or after August 1st, 1999 . . . [were] hired, appointed,
or employed to perform duties exclusively . . . or initially relating
to custodial assignments,” Commander Aguilera responded, “No.”
Finally, Commander Aguilera opined that Rosa could not
have been hired or trained as a modified deputy because her
personnel records reflect that she was hired in July 2000 and
completed the “academy basic” training required of full deputies.
He further opined that other materials and entries in Rosa’s
personnel file were inconsistent with the possibility that she
was employed as a section 830.1, subdivision (c) deputy: Rosa’s
performance evaluations reflected that she had assisted the major
crimes bureau with prostitution sweeps “in the field, [i.e.,] not
in custody,” had been “loan[ed] to the homicide task force,” and
had served as a member of the “noncompliance team,” arresting
absconding inmates out in the field. Commander Aguilera added
that “[it] is a very common practice for [LASD] to take individuals
and temporarily assign them somewhere else without permanently
moving them, because of the way that the county and [LASD] has
to deal with items and the movement of personnel.”
At the close of evidence, defense counsel reiterated his
argument that Rosa was not acting as a peace officer within the
meaning of section 189, subdivision (f) when Gonzalez shot her
because she qualified as a modified deputy subject to section 830.1,
subdivision (c).

10
 The court rejected defense counsel’s argument and denied
Flint’s petition. In doing so, the court elected not to rely on the
witnesses’ opinion testimony concerning Rosa’s classification for
purposes of section 830.1. Instead, the court relied exclusively on
the prosecution’s exhibits in finding “beyond all doubt” that Rosa
was employed as a full sheriff ’s deputy pursuant to section 830.1,
subdivision (a). As a result, the court found, Rosa “was a full peace
officer conferred with the authority to effectuate an arrest outside
of a custodial setting” when Gonzalez shot her, and Flint was not
entitled to section 1172.6 relief.
Flint timely appealed.

DISCUSSION
A. Overview of the Statutory Scheme Governing
the “Peace Officer” Designation
“ ‘Prior to 1968, the designation of peace officers and the
description of their powers were dispersed throughout the codes.’
[Citation.] . . . [Citation.] By adopting chapter 4.5 [of the Penal
Code], the Legislature brought those scattered statutes together
in one place and exclusively ‘define[d] peace officers, the extent
of their jurisdiction, and the nature and scope of their authority,
powers and duties.’ [Citation.]” (People v. Pennington (2017) 3
Cal.5th 786, 792 (Pennington).)
“Chapter 4.5 [of the Penal Code] contains over 100 sections
and subdivisions authorizing public agencies to confer the status
and powers of a peace officer on the members of a host of state and
local personnel categories, subject to an intricate array of conditions
and limitations. [Citations.] In this statutory scheme, only the
Attorney General and special agents and investigators of the
Department of Justice are defined as peace officers categorically,

11
simply by reference to their office or job title and without further
conditions. [Citation.] Most deputy sheriffs and municipal police
officers are peace officers so long as they are formally appointed
to and actually employed in that capacity. [Citations.] In contrast,
the Legislature has defined the vast majority of peace officers by
reference to their ‘primary duties’ or ‘primary function,’ and has
also imposed geographic, temporal, and other limitations on these
officers’ authority.” (Pennington, supra, 3 Cal.5th at pp. 792–793.)
As relevant here, section 830.1, subdivision (a) provides
in relevant part that “[a] sheriff, undersheriff, or deputy sheriff,
employed in that capacity, of a county, . . . is a peace officer. The
authority of these peace officers extends to any place in the state,
as follows: [¶] . . . [¶] (3) As to a public offense committed or for
which there is probable cause to believe has been committed in
the peace officer’s presence, and with respect to which there is
immediate danger to person or property, or of the escape of the
perpetrator of the offense.” (§ 830.1, subd. (a)(3).) Section 832.3,
in turn, requires “any sheriff, undersheriff, or deputy sheriff . . .
who is first employed after January 1, 1975,” to “complete a course
of training prescribed by [POST] before exercising the powers of a
peace officer,” subject to certain exceptions. (See § 832, subd. (a).)
In 1996, via Assembly Bill No. 574 (1995-1996 Reg. Sess.)
(Assembly Bill No. 574), the Legislature enacted subdivision (c)
of section 830.1 “to create a new, lower-tier category of custodial
peace officer specifically for the [LASD].” (Orosco, supra, 82
Cal.App.5th at p. 356.) “The Legislature has since expanded the
statute to many other counties.” (Id. at p. 357.) Subdivision (c)
provides, in pertinent part:

12
 “A[6] deputy sheriff of the County of Los Angeles . . . who
is employed to perform duties exclusively or initially relating to
custodial assignments with responsibilities for maintaining the
operations of county custodial facilities, including the custody, care,
supervision, security, movement, and transportation of inmates,
is a peace officer whose authority extends to any place in the state
only while engaged in the performance of the duties of the officer’s
respective employment and for the purpose of carrying out the
primary function of employment relating to the officer’s custodial
assignments, or when performing other law enforcement duties
directed by the officer’s employing agency during a local state of
emergency.” (§ 830.1, subd. (c).)
“When it enacted subdivision (c) of section 830.1, the
Legislature also amended section 832.3 to exempt this new category
of custodial peace officer from the full course of training required
for regular sheriff ’s deputies by [POST], and it substituted more
limited training requirements.” (Orosco, supra, 82 Cal.App.5th at
p. 357, citing § 832.3, subd. (e).) “The Legislature also enacted a
new provision stating that custodial deputy sheriffs described in
section 830.1, subdivision (c) ‘shall complete’ the full POST training
‘prior to being reassigned from custodial assignments to duties
with responsibility for the prevention and detection of crime
and the general enforcement of the criminal laws of this state.’ ”
(Orosco, supra, 82 Cal.App.5th at p. 357, quoting § 832.3,
subd. (e)(3).)

6 When originally enacted, section 830.1, subdivision (c) referred to “any deputy sheriff,”

rather than “a deputy sheriff.” (Assem. Bill No. 574 (1995–1996 Reg. Sess.),
capitalization omitted.) Neither party contends this change is material in construing
the statute’s meaning.

13
B. Section 830.1, Subdivision (c) Applies Only to Deputies
Hired, Trained, and Utilized for the Limited Purpose of Working
Exclusively or Initially in a Custodial Assignment
Flint contends we must reverse the denial of his resentencing
petition because the plain language and legislative history of
section 830.1, subdivision (c) compel the conclusion that Rosa
was a modified deputy without off-duty peace officer authority.
Interpreting the statute independently, we disagree. (See People v.
Lopez (2026) 19 Cal.5th 639, 657 [“ ‘[t]he proper interpretation of a
statute is a question of law we review de novo’ ”].)
“ ‘ “Our fundamental task in construing” ’ ” section 830.1,
subdivision (c), “as with any statute, ‘ “is to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute.” . . .
We begin as always with the statute’s actual words, the “most
reliable indicator” of legislative intent, “assigning them their
usual and ordinary meanings, and construing them in context.” ’
[Citation.] If the words appear susceptible of more than one
reasonable construction, we look to other indicia of legislative
intent, bearing in mind the admonition that ‘[t]he meaning of
a statute may not be determined from a single word or sentence’
[citation] and that apparent ‘ambiguities often may be resolved
by examining the context in which the language appears and
adopting the construction which best serves to harmonize the
statute internally and with related statutes[.]’ [Citations.]”
(Pennington, supra, 3 Cal.5th at p. 795; see Poole v. Orange
County Fire Authority (2015) 61 Cal.4th 1378, 1393 (conc. opn.
of Cuéllar, J.) [“understanding whether [a statute’s] meaning is
plain is not a project well served by reading statutory provisions
as isolated fragments”].)
The crux of the parties’ dispute concerns the meaning of
the phrase “deputy sheriff . . . who is employed to perform duties

14
exclusively or initially relating to custodial assignments.” (§ 830.1,
subd. (c), italics added.) Flint contends the language means that
any sheriff ’s deputy whose first assignment is to the jails qualifies
as a modified deputy who lacks off-duty peace officer authority
“until she is reassigned to a role that involves the performance of
general law enforcement duties.” The Attorney General contends
that the language means that only deputies hired, trained, and
utilized for the limited purpose of working in the jails—whether
exclusively or initially—qualify as modified deputies subject to
section 830.1, subdivision (c). Because the usual and ordinary
meaning of “employed” can encompass both (1) the hiring and
training process and (2) an employee’s ultimate assignment or
duties, we find each construction reasonable on its face. (See,
e.g., “employ,” Black’s Law Dict. (12th ed. 2024) [defining “employ”
as: “1. To make use of. [¶] 2. To hire. [¶] 3. To use as an agent
or substitute in transacting business. [¶] 4. To commission and
entrust with the performance of certain acts or functions or with the
management of one’s affairs”].) We therefore turn to other indicia
of legislative intent to construe section 830.1, subdivision (c).
We conclude that—viewed in the context of the broader
statutory scheme and the pertinent legislative history7—the
Attorney General’s construction best harmonizes the statute
internally and with related statutes. (See Pennington, supra,

7 The Attorney General argues that Flint forfeited any arguments concerning Assembly

Bill No. 574 by failing to present them (and related legislative history materials) to the
trial court. But as set forth, ante, Flint argued his proposed construction of section
830.1, subdivision (c) at the evidentiary hearing. Further,“[t]he interpretation of a
statute . . . is a question of law, and we are not bound by evidence presented . . . in the
trial court.” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28
Cal.3d 692, 699.) We therefore take judicial notice of the legislative history materials
cited in this opinion. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19
Cal.4th 26, 45, fn. 9 [“The court will take judicial notice of the legislative history of
a statute in order to ascertain the purpose of and meaning of an ambiguous statute.
[Citation.] This includes reports of Senate and Assembly committees”].)

15
3 Cal.5th at p. 795.) “The Legislature enacted subdivision (c)
of section 830.1 in 1996 against the backdrop of subdivision (a),
which already conferred peace officer status on all deputy
sheriffs employed in that capacity. The Legislature did not
amend subdivision (a) when it added subdivision (c).” (Orosco,
supra, 82 Cal.App.5th at p. 356.) And nothing in the legislative
history supports that the Legislature intended to strip fully trained
sheriff ’s deputies then-assigned to the jails of their off-duty peace
officer authority.
Rather, the legislative history supports that “[t]he original
purpose of [section 830.1,] subdivision (c)” was to hire an entirely
new category of modified deputies who would receive more limited
training tailored specifically to a limited custodial assignment.
(Orosco, supra, 82 Cal.App.5th at p. 356.) The August 7, 1996
Conference Committee Report Analysis for Assembly Bill No. 574,
for example, provides in pertinent part:
“The Los Angeles County Sheriff indicates that deputy
sheriff[s] initially hired are currently being assigned to custodial
duties for 4–6 years.” (Sen. Com. on Crim. Proc., Conf. Rep.
Com. Analysis, Rep. on Assem. Bill No. 574 (1995–1996 Reg. Sess.)
Aug 7, 1996, italics added.) “[This bill would] allow the county to
provide part of the regular peace officer training—plus training
for custodial personnel—to deputy sheriff[s] exclusively or initially
assigned to custodial duties in the county. . . . Those sheriff ’s
deputies would then be required to complete the remainder of the
basic peace officer training prior to being reassigned to regular
peace officer patrol duties. . . . [¶] This conference report would
specifically include those . . . deputies assigned to custodial duties
and trained pursuant to this bill as peace officers with powers
extending anywhere in this state when performing his or her
primary duties or when directed by the county to perform other

16
peace officer duties during a local state[ ]of[ ]emergency.” (Ibid.,
italics added & underscoring omitted.)
In addition, the Legislature’s contemporaneous amendment
of section 832.3 to exempt this new category of modified deputies
from the full POST basic training required of regular deputies
supports the Attorney General’s construction. (See § 832.3,
subd. (e)(1).) We therefore conclude that the Legislature intended
section 830.1, subdivision (c) to apply only to deputies hired and
utilized for the express purpose of serving as modified deputies
and who, as a result, received the more limited training created
for modified deputies. (See § 832.3, subd. (e)(1).)
None of Flint’s arguments persuades us to adopt his
competing construction. First, Flint asks us to consider two 1996
letters to the Governor (one from Assembly Bill No. 574’s author
and one from the then-Sheriff of Los Angeles County) that he
contends support his interpretation of section 830.1, subdivision (c).
We decline to do so, as neither letter bears any indicia that its
contents reflect the views of the Legislature as a whole. (See
Kaufman & Broad Communities, Inc. v. Performance Plastering,
Inc. (2005) 133 Cal.App.4th 26, 30 [“ ‘the statements of an
individual legislator, including the author of a bill, are generally not
considered in construing a statute, as the court’s task is to ascertain
the intent of the Legislature as a whole in adopting a piece of
legislation’ ”].)
Second, Flint contends that the 1996 Legislative Counsel’s
Digest for Assembly Bill No. 574 supports his construction because
it uses the phrase “any deputy” and the word “assignments” in
describing the effect of the bill: “This bill would provide that
any deputy sheriff of a county of the first class who is employed
to perform duties exclusively or initially relating to custodial
assignments . . . is a peace officer whose authority extends to any

17
place in the state only while engaged in the performance of the
duties of his or her respective employment.” (Legis. Counsel’s
Dig., Assem. Bill No. 574 (1995–1996 Reg. Sess.) 6 Stats. 1996,
Summary Dig., p. 391.) This description, however, merely repeats
the ambiguous language of the statute, and we therefore reject
Flint’s argument that the 1996 digest sheds any light on the
proper construction of section 830.1, subdivision (c). We likewise
reject Flint’s argument concerning the Legislative Digests for
amendments to the subdivision enacted in 2000 through 2004.
He argues that the digests support his construction because they
refer only to a deputy sheriff ’s “assignment” and omit the word
“employed.” (See, e.g., Legis. Counsel’s Dig., Assem. Bill No. 1931
(2003–2004 Reg. Sess.) 6 Stats. 2004, Summary Dig., p. 254.)
But because the Legislature enacted these amendments for the
limited purpose of adding new counties to the list in section 830.1,
subdivision (c), we are not persuaded that the 2000 through 2004
digests illuminate the 1996 Legislature’s intent in originally
enacting the subdivision.
Third, Flint argues that the Attorney General’s construction
renders the word “initially” superfluous. But under the Attorney
General’s reading, the word “initially” retains independent
significance: It refers to deputies originally hired and trained
as modified deputies who may eventually be permitted to complete
the full POST basic training required to become regular deputies.
(See 85 Ops.Cal.Atty.Gen. 130, 133, fn. 3 (2002) [“[the] legislative
history . . . explains the phrase ‘or initially relating to’ in
subdivision (c) of section 830.1 as referring to officers who would not
be expected to perform custodial assignments on a permanent basis
but rather would be expected to transfer into regular peace officer
assignments after a period of, for example, five or six years”].)
Flint’s surplusage argument thus fails.

18
 Fourth, Flint contends that a July 2002 Attorney General
opinion supports that the Legislature intended for a deputy’s
assignment—and not the deputy’s level of training—to dictate
whether the restrictions in section 830.1, subdivision (c) apply
to that deputy. The Attorney General opinion, however, supports
that level of training is a critical distinguishing factor between
regular and modified deputies: “The Legislature was advised at
the time [it considered Assembly Bill No. 574] that these [modified]
officers would receive only part of the usual training given to peace
officers and ‘would then be required to complete the remainder of
the basic peace officer training prior to being reassigned to regular
peace officer patrol duties.’ [Citation.] Hence, it is apparent that
the Legislature’s limitations placed upon the exercise of peace officer
powers in section 830.1, subdivision (c), were in recognition of the
fact that these deputies would not be receiving full peace officer
training until reassigned to other duties.” (85 Ops.Cal.Atty.Gen.,
supra, 130, 132–133, italics added.)
Fifth, and finally, Flint contends that the Attorney General’s
construction of section 830.1, subdivision (c) is at odds with the
Legislature’s purpose in enacting Assembly Bill No. 574. Flint
argues that “[t]he issue that led the Legislature to pass [the bill] is
that, after completing the [full POST basic] course in the academy,
LASD deputies would then spend the first four[ ]to[ ]six years
of their careers ‘assigned to custodial duties,’ ” and “the skills
they needed for . . . patrol assignments were no longer ‘fresh’
when it came time for them to transfer [to patrol].” Flint further
argues that certain statutes and regulations governing deputies’
training—namely, section 832.3, subdivision (e), section 13510,
subdivision (d), and section 1005, subdivisions (a)(1) and (d) of
title 11 of the California Code of Regulations—underscore that the
Legislature enacted section 830.1, subdivision (c) for the purpose of

19
ensuring that jail-assigned deputies receive fresh training prior to
transitioning to a patrol assignment.
We are not persuaded. We reiterate that nothing in the
legislative history supports that the Legislature believed that fully
trained, regular deputies working in the jails should be stripped of
their off-duty peace officer status. Rather, the legislative history
reflects that the cost savings section 830.1, subdivision (c) was
expected to generate were of equal (if not greater) concern to
the Legislature. (See Sen. Com. on Crim. Proc., Conf. Rep. Com.
Analysis, Rep. on Assem. Bill No. 574 (1995–1996 Reg. Sess.)
Aug. 7, 1996 [“These . . . amendments are expected to initially
save approximately $6 million in training costs and to also ensure
that when deputies are assigned to patrol duties, the relevant
training will be ‘fresh’ for that type of assignment” (italics added)];
Governor’s Off. of Planning and Research, Enrolled Bill Rep. on
Assem. Bill No. 574 (1995–1996 Reg. Sess.) (Sept. 9, 1996) p. 3
[“Los Angeles County, facing a significant fiscal cris[is], has
recently sought innovative ways to cut its budget. The sponsor
[of the bill] stated that the bifurcation of POST training would save
the County approximately $6 million in costs”]; see also Elsner v.
Uveges (2004) 34 Cal.4th 915, 934, fn. 19 [an enrolled bill report
may be “instructive on matters of legislative intent”].)
Indeed, the initial draft of Assembly Bill No. 574 did not
include any provisions concerning sheriff’s deputies or their
training. (See Assem. Bill No. 574 (1995–1996 Reg. Sess.) as
introduced Feb. 17, 1995.) The original bill merely proposed
(1) including Los Angeles County safety police officers and park
rangers within the category of peace officers required to complete
certain POST training requirements, and (2) allocating funds to
facilitate that training. (See ibid.) The California State Sheriff ’s
Association opposed this initial version of the bill (see Assem.

20
Com. on Public Safety, Analysis of Assem. Bill No. 574 (1995–1996
Reg. Sess.) Apr. 4, 1995), but transitioned to a “ ‘soft’ oppos[ition]”
stance in response to the final version of the bill that included
section 830.1, subdivision (c)’s cost-saving measures (see Governor’s
Off. of Planning and Research, Enrolled Bill Rep. on Assem. Bill
No. 574 (1995–1996 Reg. Sess.) (Sept. 9, 1996) p. 4).
The statutes and regulations on which Flint relies likewise
fail to support his argument that the Legislature enacted
section 830.1, subdivision (c) “to address problems stemming
from” jail-assigned deputies’ purportedly “obsolete” training.
Section 832.3, subdivision (e)(3) provides in pertinent part that “[a]
deputy sheriff who has completed the [full POST basic training]
and has been hired as a deputy sheriff described in subdivision (c)
of Section 830.1 shall be eligible to be reassigned from custodial
assignments to duties with the responsibility for the prevention
and detection of crime and the general enforcement of the criminal
laws of this state within three years of completing the training.”
(§ 832.3, subd. (e)(3).) And section 13510, subdivision (d)
permits local agencies to establish training requirements that
exceed POST ’s minimum standards. (See § 13510, subd. (d).)
Flint contends that, read together, these subdivisions reflect the
Legislature’s understanding that some modified deputies will
receive the full POST basic training, and that we therefore should
not look to a deputy’s level of training in determining whether
an officer is a modified deputy. Flint further contends that
section 832.3, subdivision (e)(3)’s requirement that modified
deputies transition to a field assignment within three years
of completing the full POST basic training—a requirement first
added to the subdivision in 2016 (see Stats. 2015, ch. 207 (Assem.
Bill No. 1168) (2015–2016 Reg. Sess.))—demonstrates that the

21
Legislature was and remains uniquely concerned with preventing
jail-assigned deputies’ patrol-related training from growing stale.
Flint’s first argument fails because the Legislature’s
expectation that some modified deputies eventually will go on to
complete the full POST basic training is entirely consistent with
the Attorney General’s construction of section 830.1, subdivision (c)
as applying only to deputies hired, trained, and utilized for the
limited purpose of working exclusively or initially in a custodial
assignment. Indeed, as set forth, ante, this appears to have been
the Legislature’s purpose in including the word “initially” in the
subdivision.
Flint’s second argument fails because all deputies are subject
to certain laws that appear intended to prevent their training from
growing stale. (See, e.g., § 832, subd. (a) [“[e]very person described
in this chapter as a peace officer shall satisfactorily complete
an introductory training course prescribed by [POST]”]; § 832,
subd. (e)(1) [“[a] person completing the training described in
subdivision (a) who does not become employed as a peace officer
within three years from the date of passing the examination
described in subdivision (a), or who has a three-year or longer break
in service as a peace officer, shall pass the examination described
in subdivision (a) prior to the exercise of the powers of a peace
officer”]; Cal. Code Regs., tit. 11, § 1008 [imposing certain training-
related time restrictions on any officer seeking requalification for
employment as a peace officer].) Thus, although we agree that
the statutory scheme as a whole reflects a legislative concern with
ensuring that deputies’ training remains fresh, Flint identifies
nothing in the scheme supporting that this concern is unique to
jail-assigned deputies, or that the Legislature enacted section 830.1,
subdivision (c) in response to such a concern.

22
 We reach a similar conclusion with respect to
subdivisions (a)(1) and (d) of section 1005 of title 11 of the
California Code of Regulations. Flint contends that the current
and 2006 versions of these provisions—which exempt deputies
assigned to the jail from certain continuing training requirements
related to field work—demonstrate that the Legislature did not
intend even fully trained deputies assigned to the jails to wield
off-duty peace officer authority. Flint further contends that Rosa’s
failure to complete the continuing training required of patrol-
assigned deputies demonstrates that she qualified as a modified
deputy under section 830.1, subdivision (c). Flint, however,
ignores that the current version of section 1005 distinguishes
between modified deputies employed pursuant to section 830.1,
subdivision (c) and regular deputies assigned to work in the jails:
Subdivision (a)(7) of section 1005 identifies “jail deputies” as those
governed by section 830.1, subdivision (c). (See Cal. Code of Regs.,
tit. 11, § 1005, subd. (a)(7) [“[e]very jail deputy (section 830.1,
subd. (c)) shall satisfactorily complete [certain training courses]”].)
Section 1005, subdivision (a)(1), in turn, exempts both (1) “jail
deputies” (i.e., modified, section 830.1, subdivision (c) deputies) and
(2) other officers whose “assignment remains custodial”—such as
regular deputies initially assigned to the jails— from certain field
training requirements. (Cal. Code of Regs., tit. 11, § 1005, subds.
(a)(1)(A) & (B).) Each exemption has independent significance only
if we treat modified deputies as a category of officers distinct from
other deputies assigned to the jails. (See Fischl v. Pacific Life
Ins. Co. (2023) 94 Cal.App.5th 108, 121 [“we interpret regulations
the same way we interpret statutes”]; Association for Los Angeles
Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th
764, 783 [“ ‘ “[s]tatutes must be interpreted, if possible, to give
each word some operative effect” ’ ”].) The regulation thus

23
implicitly recognizes that not all jail-assigned deputies are
modified, section 830.1, subdivision (c) deputies.
Flint likewise ignores that both the current and 2006 versions
of section 1005 of title 11 of the California Code of Regulations
draw a distinction between the training a deputy requires to wield
plenary peace officer authority and the training a deputy requires
to serve in a patrol assignment. Subdivision (a)(1) provides, in
pertinent part: “Every peace officer . . . shall complete the regular
basic course [i.e., the full POST basic training] before being assigned
duties which include the exercise of peace officer powers. . . . [¶]
(A) Field Training Program Requirement [¶] Every peace
officer, . . . following completion of the regular basic course and
before being assigned to perform general law enforcement uniformed
patrol duties without direct and immediate supervision, shall
complete a POST-approved field training program.” (Cal. Code
of Regs., tit. 11, § 1005, subds. (a)(1) & (a)(1)(A), capitalization
omitted & italics added.) These distinctions in section 1005 support
that the Legislature (1) understands that modified deputies and
jail-assigned regular deputies are separate categories of officers,
and (2) intends that a regular deputy who completes the full POST
basic training will wield plenary peace officer authority, even if that
deputy has not yet been assigned to a patrol position and remains
assigned to the jails.
Accordingly, we conclude that section 830.1, subdivision (c)
applies only to modified deputies—i.e., those deputies expressly
hired, trained, and utilized for the limited purpose of working in
a custodial assignment.

24
C. Substantial Evidence Supports the Court’s Finding that
Section 830.1, Subdivision (c) Did Not Apply to Rosa
Having construed section 830.1, subdivision (c), we now
turn to determining whether substantial evidence supports the
court’s finding that Rosa did not fall within the subdivision. (See
Guiffreda, supra, 87 Cal.App.5th at p. 125 [an appellate court
reviews a trial court’s factual findings following a section 1172.6
evidentiary hearing for substantial evidence].) “ ‘Our job on review
is different from the trial judge’s job in deciding the petition. While
the trial judge must review all the relevant evidence, evaluate and
resolve contradictions, and make determinations as to credibility,
all under the reasonable doubt standard, our job is to determine
whether there is any substantial evidence, contradicted or
uncontradicted, to support a rational fact finder’s findings beyond
a reasonable doubt.’ [Citation.]” (Guiffreda, supra, 87 Cal.App.5th
at p. 125.)
Substantial evidence supports the court’s finding here that
Rosa was not a modified deputy hired, trained, and utilized for the
limited purpose of working in a custodial assignment: Commander
Aguilera testified that LASD terminated the limited training
program for modified deputies before Rosa even applied to the
department. The LASD job bulletin in effect when Rosa applied
to the department provided that deputy sheriff appointees would
“be required to serve two . . . mandatory assignments—the first
assignment will be in the custody division; the second, in field
operations (patrol).” (Capitalization omitted & italics added.)
Rosa’s personnel file reflects that she completed the full POST
basic training required of regular sheriff ’s deputies. And Rosa’s

25
performance evaluations reflect that she completed several field
assignment rotations, including prostitution sweeps.8
Flint contends that Rosa’s participation in field work is
not dispositive because the July 2002 Attorney General opinion
supports that modified deputies can “perform[ ] non-custody
related functions” without changing their modified status. (See
85 Ops.Cal.Atty.Gen., supra, 130.) Flint further contends that
other evidence—namely, Rosa’s purported failure to complete
certain continuing training requirements for patrol deputies—
supports that she qualified as a modified deputy under
section 830.1, subdivision (c). But the non-custody related
functions the Attorney General opinion addresses—which include
participation in community outreach events—are not analogous
to the field work Rosa performed. (See 85 Ops.Cal.Atty.Gen.,
supra, 130.) And in reviewing for substantial evidence, “ ‘[w]e
cannot reweigh the evidence.’ ” (People v. Player (2026) 119
Cal.App.5th 931, 963, review granted on unrelated issue July 8,
2026, S296683.)
We therefore conclude substantial evidence supports that
Rosa was not a modified section 830.1, subdivision (c) deputy, but
rather a regular section 830.1, subdivision (a) deputy vested with
off-duty peace officer authority. As such, Rosa was “killed while in
the course of [her] peace officer’s duties,” and Flint is ineligible for
section 1172.6 relief. (See § 189, subd. (f).) Accordingly, we affirm
the denial of his resentencing petition.

DISPOSITION
The order denying Flint’s section 1172.6 petition is affirmed.

8 Because we do not rely on the opinions offered by Investigator Steinwand or

Commander Aguilera that Rosa qualified as a section 830.1, subdivision (a) deputy, we
need not address Flint’s argument that such opinions were improper.

26
 CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

BENDIX, J.

WEINGART, J.

27


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

TORIN O’BRIEN, B342575

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23SMCV02168)
v.

MIDWAY RENT-A-CAR, INC.,

Defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, H. Jay Ford III, Judge. Affirmed.
M.R. Parker Law, Michael R. Parker, Kenneth R. Shy,
Carla Green, Billy R. Paredes, and Erika M. Prager for Plaintiff
and Appellant.
The Molino Firm, Richard Scott, and Jessica V. Lauro for
Defendant and Respondent.
__________________________________
 Vehicle Code section 17150 (Section 17150) imposes
vicarious liability on a motor vehicle’s owner for a negligent or
wrongful act or omission in the operation of the motor vehicle on
the part of any person operating the vehicle with the owner’s
permission. This appeal answers two questions: (1) Does the
federal statute known as the Graves Amendment preempt
Section 17150 when applied to rental car companies?1 (2) Can a
rental car company be liable for negligent entrustment solely
because it did not verify that the renter of a vehicle had
automobile insurance?
Respondent Midway Rent-a-Car Inc. (Midway or MRC)
leased a car to defendant Eddie Loza, who is not a party to this
appeal. Three days later, Loza and appellant Torin O’Brien were
involved in a car accident. O’Brien sued both Midway and Loza.
Both parties agree O’Brien is pursuing two theories of liability
against Midway: (1) vicarious liability under Section 17150 and
Vehicle Code section 17151 (Section 17151), and (2) negligent
entrustment because Midway leased a car to Loza without
verifying he had automobile insurance.
Midway moved for summary judgment on the grounds that
any vicarious liability was foreclosed by the Graves Amendment,

1 The Graves Amendment is “a federal tort reform statute

which purports to shield rental car companies from certain
vicarious liability suits.” (Garcia v. Vanguard Car Rental USA,
Inc. (11th Cir. 2008) 540 F.3d 1242, 1244 (Garcia).) The Graves
Amendment was enacted in 2005. (See, e.g., Windmill Distrib.
Co. LP v. Hartford Fire Ins. Co. (2d Cir. 2012) 449 Fed.Appx. 81,
82 [“On August 10, 2005, President Bush signed into law the
Graves Amendment, which banned the imposition of vicarious
liability on lessors and renters of motor vehicles for harm
resulting from the operation of the vehicles”].)

2
and that it had no duty to check whether Loza had automobile
insurance. The trial court granted summary judgment. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. O’Brien Files a Complaint
In May 2023, O’Brien filed a complaint against Midway and
Loza. Although neither party includes the complaint in the
appellate record, both parties agree it alleged two causes of
action: Motor Vehicle Negligence and General Negligence.
Midway answered the complaint, interposing several
affirmative defenses, including “No Liability/Vicarious Liability,”
whereby it alleged: “Pursuant to 49 USC Section 30106, there is
no vicarious liability for an owner of a motor vehicle who is
engaged in the trade or business of renting or leasing motor
vehicles.”

B. The Court Grants Summary Judgment
In December 2023, Midway moved for summary judgment.
Contending its liability to O’Brien was “predicated on,
essentially: ownership of the VEHICLE . . . and negligently
operating the VEHICLE,” Midway argued in part, that the
Graves Amendment “removes vicarious liability for MRC in this
case by its mere ownership of the VEHICLE.” It also argued that
“[s]tatutory law in California is clear that no cause of a[]ction can
be brought against a car rental company for ‘Negligent
Entrustment’ if the renter presents a facially valid driver’s
license.” O’Brien opposed the motion.
In April 2024, the court granted the motion, finding that
the Graves Amendment shielded Midway from vicarious liability

3
for any negligence Loza committed, and that Midway did not
negligently entrust the vehicle to Loza as he had a driver’s
license, matched the picture on that license, and did not seem
unfit to drive.
In June 2024, the court entered judgment in favor of
Midway and against O’Brien. O’Brien timely appealed.

DISCUSSION
“We review a grant of summary judgment de novo.” (Nieto
v. Blue Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60, 71 (Nieto).) “The general rule is that summary
judgment is appropriate where ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. . . .’ ”
(Ibid.) “A defendant moving for summary judgment meets this
burden by presenting evidence demonstrating that one or more
elements of the cause of action cannot be established or that
there is a complete defense to the action.” (Ibid.) “Once the
defendant makes this showing, the burden shifts to the plaintiff
to show the existence of a triable issue of material fact as to that
cause of action or defense.” (Ibid.) “To determine whether the
parties have met their respective burdens, we consider ‘ “all of
the evidence set forth in the [supporting and opposition] papers,
except that to which objections have been made and sustained by
the court, and all [uncontradicted] inferences reasonably
deducible from the evidence.” ’ ” (Ibid.) “ ‘A trial court’s stated
reasons for granting summary judgment do not bind us; we
review the court’s ruling, not its rationale.’ ” (Severin Mobile
Towing, Inc. v. JPMorgan Chase Bank, N.A. (2021) 65
Cal.App.5th 292, 302.)

4
 “It is well established that the pleadings determine the
scope of relevant issues on a summary judgment motion.” (Nieto,
supra, 181 Cal.App.4th at p. 74.) Although the complaint is not
in the appellate record, O’Brien asserted his “case is proceeding
against MRC pursuant to the ownership liability provided by
Vehicle Code sections 17150 and 17151 and under a negligent
entrustment cause of action.” Because these are the issues the
parties address in their appellate briefs, and because the
material facts of this case are undisputed, we analyze:
(a) whether the Graves Amendment precludes any liability from
Midway to O’Brien under Sections 17150 and 17151; and
(b) whether Midway can be liable for negligent entrustment for
renting a car to Loza without checking if he had automobile
insurance.

A. Midway Is Not Vicariously Liable Based on
Ownership of the Vehicle
Section 17150 renders the owner of a vehicle liable “for
death or injury to person or property resulting from a negligent
or wrongful act or omission in the operation of the motor
vehicle . . . by any person using or operating the same with the
permission, express or implied, of the owner.” (Veh. Code,
§ 17150.2) When the car is driven by someone who is not an
agent of the owner and only one person is injured, Section 17151
limits this liability to $15,000 for the death or injury. (Id.,
§ 17151, subd. (a) [“[t]he liability of an owner . . . imposed by this

2 Vehicle Code “Section 402, enacted in 1935, is the

predecessor of section 17150, which was passed in 1959.” (Galvis
v. Petito (1993) 13 Cal.App.4th 551, 558.) Section 17151 also
appears to have been enacted in 1959.

5
chapter and not arising through the relationship of principal and
agent or master and servant is limited to the amount of fifteen
thousand dollars ($15,000) for the death of or injury to one person
in any one accident and, subject to the limit as to one person, is
limited to the amount of thirty thousand dollars ($30,000) for the
death of or injury to more than one person in any one accident”].)
As previously noted, the Graves Amendment is “a federal
tort reform statute which purports to shield rental car companies
from certain vicarious liability suits.” (Garcia, supra, 540 F.3d at
p. 1244.) Specifically, 49 United States Code section 30106(a)
provides that “[a]n owner of a motor vehicle that rents or leases
the vehicle to a person . . . shall not be liable under the law of any
State . . . , by reason of being the owner of the vehicle (or an
affiliate of the owner), for harm to persons or property that
results or arises out of the use, operation, or possession of the
vehicle during the period of the rental or lease, if— [¶] (1) the
owner . . . is engaged in the trade or business of renting or leasing
motor vehicles; and [¶] (2) there is no negligence or criminal
wrongdoing on the part of the owner . . . .” Subdivision (a) is
known as the “preemption clause” of the Graves Amendment.
(Garcia, at p. 1246.)
Both parties agree the preemption clause would excuse
Midway from liability under Section 17150 if it applied. O’Brien
argues it does not apply because the “savings clause” of the
Graves Amendment—contained in subdivision (b)—exempts
statutes like Sections 17150 and 17151. Specifically, 49 United
States Code section 30106(b) provides that “[n]othing in this
section supersedes the law of any State . . . [¶] (1) imposing
financial responsibility or insurance standards on the owner of a
motor vehicle for the privilege of registering and operating a

6
motor vehicle; or [¶] (2) imposing liability on business entities
engaged in the trade or business of renting or leasing motor
vehicles for failure to meet the financial responsibility or liability
insurance requirements under State law.”
By its terms, Section 17151 assigns no liability to any
party, it only limits the amount of any liability “imposed by this
chapter.” (Veh. Code, § 17151, subd. (a).) If the Graves
Amendment preempts Section 17150 when applied to Midway,
then the limits imposed in Section 17151 are irrelevant.3
Therefore, the question before us is whether the savings clause of
the Graves Amendment “saves” Section 17150.

1. The Savings Clause Does Not “Save”
Section 17150
In Tavares v. Zipcar, Inc., the appellate court agreed with
the respondent who “argue[d] that liability predicated solely on
its ownership of the vehicle is precluded by the Graves
Amendment, which shields owners engaged in the trade or
business of renting or leasing motor vehicles from vicarious
liability for the negligence of their drivers.” (Tavares v. Zipcar,
Inc. (2026) 118 Cal.App.5th 219, 236 (Tavares).) The Court of
Appeal concisely explained that “[t]he Graves Amendment
preempts state laws, such as Vehicle Code section 17150, which
impose vicarious liability on the owners of leased or rented
vehicles based solely on their ownership. (Garcia v. Vanguard
Car Rental USA, Inc. (11th Cir. 2008) 540 F.3d 1242, 1246;
Carton v. GMAC (8th Cir. 2010) 611 F.3d 451, 456–457.)

3 To the extent O’Brien is arguing Section 17151 required

Midway to carry certain amounts of insurance, such a contention
is simply unsupported by the text of the statute.

7
Although the Graves Amendment contains an exception for
‘financial responsibility’ laws (49 U.S.C. § 30106(b)(1)), Vehicle
Code section 17150 is not a financial responsibility law.
(Goodson v. Perfect Fit Enterprises, Inc. (1998) 67 Cal.App.4th
508, 514 [79 Cal.Rptr.2d 102]; Garcia, supra, at pp. 1247–1249;
Subrogation Div. Inc. v. Brown (D.S.D. 2020) 446 F. Supp. 3d
542, 551–552; Vargas v. Enterprise Leasing Co. (Fla. 2011) 60
So.3d 1037, 1042–1043; Veh. Code, § 16020.) Rather, it is
precisely the type of law the Graves Amendment was designed to
preempt.” (Tavares, at pp. 236–237.) Although we agree with
O’Brien that we are not bound by Tavares, we do agree with the
Tavares court’s conclusion that the Graves Amendment preempts
Section 17150 and we take this opportunity to contribute to the
jurisprudence.
The Graves Amendment “does not define the term
‘financial responsibility.’ ” (Garcia, supra, 540 F.3d at p. 1246.)
In Garcia, the Eleventh Circuit concluded that “Congress used
the term ‘financial responsibility law’ to denote state laws which
impose insurance-like requirements on owners or operators of
motor vehicles, but permit them to carry, in lieu of liability
insurance per se, its financial equivalent, such as a bond or self-
insurance.” (Id. at p. 1247; see also Black’s Law Dictionary (12th
ed. 2024) [defining “Financial Responsibility Act” as a “state
statute conditioning license and registration of motor vehicles on
proof of insurance or other financial accountability”].) Citing
Garcia, O’Brien agrees that “ ‘financial responsibility law’ . . .
denote[s] ‘insurance-like’ financial responsibility laws.”
We agree that Congress used the term “financial
responsibility law” to refer to laws that require owners or
operators of motor vehicles to show financial responsibility for

8
negligent or wrongful acts or omissions committed in the
operation of the motor vehicle, whether through carrying
insurance, posting a bond, or some other method such as being
self-insured. Thus, a law “imposing financial responsibility or
insurance standards on the owner of a motor vehicle for the
privilege of registering and operating a motor vehicle” (49 U.S.C.
§ 30106(b)(1)) is a law that conditions the ability of a car owner to
register and operate that car on providing proof of insurance or
other means of financial accountability such as a bond or self-
insurance. Similarly, a law “imposing liability on business
entities engaged in the trade or business of renting or leasing
motor vehicles for failure to meet the financial responsibility or
liability insurance requirements under State law” (id.,
§ 30106(b)(2)) is a law that imposes liability on a rental car
company that fails to carry the requisite amount of insurance or
show other means of financial accountability.
Under this interpretation, the savings clause self-evidently
does not include Section 17150. Section 17150 has nothing to do
with requiring a car owner to show proof of insurance or other
financial responsibility in order to register or operate that car, or
with imposing liability on a rental car company for failing to
carry insurance or its equivalent. Rather, Section 17150
“impose[s] vicarious liability on the owners of leased or rented
vehicles based solely on their ownership.” (Tavares, supra, 118
Cal.App.5th at pp. 236–237.)
If the savings clause does not include Section 17150, then
the preemption clause applies, and Midway is not liable to
O’Brien under Section 17150.

9
 2. O’Brien’s Arguments to the Contrary Are
Unpersuasive
O’Brien makes three arguments about why we should
interpret the savings clause to include Section 17150: (a) Section
17150 is part of California’s financial responsibility law;
(b) Congress enacted the savings clause “to ensure financial
responsibility” (initial capitalization removed); and
(c) interpreting the savings clause as we do precludes injured
motorists from recovering under their own uninsured motorists’
coverage. In his reply brief, O’Brien also cites cases from the
Supreme Courts of Nevada, Minnesota, and Connecticut,
contending they support his arguments here. We address each
contention in turn.

(a) Whether Section 17150 Is Part of
California’s Financial Responsibility
Law
Citing Wildman v. Government Employees’ Ins. Co. (1957)
48 Cal.2d 31 (Wildman), O’Brien argues that “Vehicle Code
sections 17150 and 17151 are part of the financial responsibility
laws for owners of motor vehicles in California,” and thus the
savings clause of the Graves Amendment exempts them from the
preemption clause.4

4 Although these sections are located in the Division of the

Vehicle Code entitled “Civil Liability” (and not in the Division
entitled “Financial Responsibility Laws”), O’Brien points out that
Vehicle Code section 7 states: “Division, chapter, and article
headings do not in any manner affect the scope, meaning, or
intent of the provisions of this code.”

10
 First, our task is not to determine whether California
considers Section 17150 part of its financial responsibility law.
Rather, we decide whether Congress intended to exempt laws like
Section 17150 from the preemption clause of the Graves
Amendment. (In re Marriage of Vaughn (2018) 29 Cal.App.5th
451, 456 [in interpreting federal statute, “[o]ur goal is to give
effect to Congress’s intent”].) On this question, Wildman
provides no guidance.
Second, even if Section 17150 were part of California’s
financial responsibility law, as discussed above, it would not be
“saved” because it is not a law “imposing financial responsibility
or insurance standards on the owner of a motor vehicle for the
privilege of registering and operating a motor vehicle” (49 U.S.C.
§ 30106(b)(1), italics added) or “imposing liability on business
entities engaged in the trade or business of renting or leasing
motor vehicles for failure to meet the financial responsibility or
liability insurance requirements under State law” (id.,
§ 30106(b)(2), italics added). Section 17150 imposes vicarious
liability on vehicle owners solely because they own the vehicle.
In any case, Wildman does not hold that Sections 17150 or
17151 are part of California’s financial responsibility law. In
Wildman, our Supreme Court analyzed an insurance policy
provided by the defendant, which contained a provision that
“[s]uch insurance as is afforded by this policy for bodily injury
liability or property damage liability shall comply with the
provisions of the motor vehicle financial responsibility law of any
state or province which shall be applicable . . . .” (Wildman,
supra, 48 Cal.2d at p. 38.) Our high court then discussed former
Vehicle Code section 415—entitled “Requisites of Motor Vehicle
Liability Policy”—and quoted a lower court’s statement that

11
“ ‘Section 415 is a part of the Financial Responsibility Law.’ ” (Id.
at pp. 37, 38.)
The Supreme Court also discussed former Vehicle Code
section 402, which, similar to the present section 17150, provided:
“ ‘Every owner of a motor vehicle is liable and responsible for the
death of or injury to person or property resulting from negligence
in the operation of such motor vehicle, in the business of such
owner or otherwise, by any person using or operating the same
with the permission, express or implied, of such owner, and the
negligence of such person shall be imputed to the owner for all
purposes of civil damages.’ ” (Wildman, supra, 48 Cal.2d at p.
39.) The court concluded that “for an insurer to issue a policy of
insurance which does not cover an accident which occurs when a
person, other than the insured, is driving with the permission
and consent of the insured is a violation of the public policy of
this state as set forth in sections 402 and 415 of the Vehicle
Code.” (Ibid.) “Inasmuch as sections 402 and 415 of the Vehicle
Code set forth the public policy of this state such laws must be
considered a part of every policy of liability insurance even
though the policy itself does not specifically make such laws a
part thereof.” (Id. at p. 40.) But although Wildman quoted with
approval an appellate court case that stated former Vehicle Code
section 415 was part of the “Financial Responsibility Law,” no
such statement was made about section 402.
Moreover, O’Brien misses the mark with his arguments
that “[w]hen Vehicle Code section 402 was changed to Vehicle
Code section 17150, the public policy regarding ownership
liability did not change, as evidenced by the nearly identical
language in the new code provision” and that Section 17150 must
be part of California’s financial responsibility law because the

12
Legislature “did not enact financial responsibility laws for the
empty purpose of establishing an ability to pay for damages that
could never be accessed.” The question before us is not whether
California’s public policy endorses vicarious ownership liability,
or whether, decades before the Graves Amendment, the
Legislature enacted a scheme for compensating car accident
victims that includes Section 17150. The question is whether
Congress preempted that purported public policy or scheme by
enacting the Graves Amendment.

(b) Congress’s Intent
O’Brien argues that when Congress exempted laws
“imposing liability on business entities engaged in the trade or
business of renting or leasing motor vehicles for failure to meet
the financial responsibility or liability insurance requirements
under State law,” “it is significant that Congress used the term
‘liability’ rather than a term like ‘a fine’ or ‘a penalty,’ . . . as it
connotes accountability to the victim of a tort rather than merely
to the State.”
O’Brien does not explain what this significance is. To the
extent he contends the Graves Amendment exempts laws
imposing liability on rental car companies that fail to meet their
state’s insurance requirements, Section 17150 is not such a law.
It imposes liability due to the status of ownership, not because
the owner failed to carry sufficient insurance or its equivalent.
O’Brien also argues that if Section 17150 is not covered by
the savings clause then “the saving clause in the Graves
Amendment has little meaning.” He asks rhetorically that “[i]f
Congress did not intend to exempt a law like California’s Vehicle
Code sections 17150 and 17151 from the Graves Amendment,
what did it have in mind? Surely Congress did not intend to

13
impose a bare requirement to maintain insurance or self-
insurance that would never be available.”
As to what laws Congress had in mind when it enacted the
savings clause, the Eleventh Circuit gave two examples: “States
may require insurance or its equivalent as a condition of
licensing or registration, or may impose such a requirement after
an accident or unpaid judgment. 49 U.S.C. § 30106(b)(1). They
may suspend the license and registration of, or otherwise
penalize, a car owner who fails to meet the requirement, or who
fails to pay a judgment resulting from a collision. 49 U.S.C.
§ 30106(b)(2). They simply may not impose such judgments
against rental car companies based on the negligence of their
lessees. 49 U.S.C. § 30106(a).” (Garcia, supra, 540 F.3d at p.
1249.)
Nor is there any merit to O’Brien’s contention that our
interpretation of the savings clause would create a situation in
which Midway would be required to obtain insurance (or self-
insure) but then would never have reason to use this insurance.
The preemption clause of the Graves Amendment preempts only
laws when “there is no negligence or criminal wrongdoing on the
part of the owner.” (49 U.S.C. § 30106(a)(2).) In other words, if
Midway were negligent in its actions (either because it was
Midway’s employee who negligently caused an accident or
because Midway negligently entrusted the vehicle to a renter),
the Graves Amendment would be inapplicable. In such
situations, Midway’s insurance (or self-insurance) would
presumably be available.

(c) Uninsured Motorists’ Coverage
Finally, O’Brien argues that if we interpret the Graves
Amendment as Midway urges, “individuals injured in auto

14
accidents involving rented vehicles would be unable to recover
under their own uninsured motorist policies” because “rental car
companies [would] never have to pay their policies, thus barring
uninsured motorist coverage.” O’Brien forfeits this argument for
failing to cite any legal authority or provide any reasoned
argument supporting it. (WFG National Title Ins. Co. v. Wells
Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority”]; Mansell v. Board of Administration
(1994) 30 Cal.App.4th 539, 545 [“ ‘an appellate brief “should
contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the court
may treat it as waived, and pass it without consideration” ’ ”];
Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We
are not required to examine undeveloped claims or to supply
arguments for the litigants”].)
“The theory behind uninsured motorist coverage is to place
the injured insured motorist in approximately the same position
as he or she would have been, had the tortfeasor complied with
the law and had carried, at least, the minimum statutorily
required insurance coverage.” (Weston Reid, LLC v. American
Ins. Group, Inc. (2009) 174 Cal.App.4th 940, 949.) Thus, if a
rental car company leases a car to an uninsured driver who is
then negligently involved in an accident that injures someone,
O’Brien does not explain why the injured party’s uninsured
motorist coverage would not apply given that the tortfeasor—the
negligent driver—was uninsured.

(d) O’Brien’s Reply Citations
In his reply brief, O’Brien cites Malco Enterprises of
Nevada, Inc. v. Woldeyohannes (2024) 559 P.3d 875 (Malco),

15
Meyer v. Nwokedi (2010) 777 N.W.2d 218 (Meyer), and Rodriguez
v. Testa (2010) 993 A.2d 955 (Rodriguez) in support of his
arguments. All are inapposite or support our analysis.

(i)
Malco Enterprises of
Nevada, Inc. v.
Woldeyohannes
Nevada Revised Statutes section 482.295 provides that a
car intended to be leased to a short-term renter cannot be
registered until the owner of the car demonstrates the financial
ability to “respond to damages” by providing evidence of
insurance.5 Nevada Revised Statutes section 482.305 in turn
provides that a rental car company who permits a renter to drive
on the highways and has not shown it has obtained insurance to
cover the renter arising out of the renter’s negligence “is jointly
and severally liable” with the car renter for damages caused by
the latter’s negligence in driving the vehicle.6

5 (Nev. Rev. Stat. § 482.295 [“The Department or a

registered dealer shall not register a vehicle intended to be leased
by a short-term lessor until the owner demonstrates to the
Department the owner’s financial ability to respond to damages
by providing evidence of insurance as that term is defined in NRS
485.034”].) Nevada Revised Statutes section 485.034 defines
“Evidence of Insurance” to mean either the information provided
by an insurer in an approved form, or a certificate of self-
insurance issued by the state.
6 (Nev. Rev. Stat. § 482.305 [“[t]he short-term lessor of a

motor vehicle who permits the short-term lessee to operate the
vehicle upon the highways, and who has not complied with NRS
482.295 insuring or otherwise covering the short-term lessee
against liability arising out of his or her negligence in the
(Fn. is continued on the next page.)

16
 In Malco, the Nevada Supreme Court analyzed whether the
Graves Amendment preempted Nevada Revised Statutes section
482.305 and concluded it did not. (Malco, supra, 559 P.3d at p.
876.) Citing a previous decision, the Nevada Supreme Court
explained that “NRS 482.295 requires short-term lessors to
provide evidence of minimum coverage on rental vehicles as a
condition of DMV registration. In turn, NRS 482.305 requires
that the independent minimum coverage provided under NRS
482.295 must also cover short-term lessees in order for the lessor
to avoid joint and several liability to the injured third-party
claimant for damages caused by the lessee.” (Id. at p. 880.)
Additionally, “the lessor’s coverage under NRS 482.305 only
serves to ‘step in’ and compensate the victim when damages
‘exceed the lessee’s personal insurance limits,’ ” and therefore
“NRS 482.305 does not impose strict vicarious liability upon
lessors ‘based on the negligence of their lessees.’ ” (Id. at p. 881.)
Thus, the Nevada Supreme Court concluded that Nevada Revised
Statutes 482.305 was a law “ ‘imposing liability [on lessors] . . .
for failure to meet the financial responsibility or liability

operation of the rented vehicle in limits of not less than $25,000
for any one person injured or killed and $50,000 for any number
more than one, injured or killed in any one crash, and against
liability of the short-term lessee for property damage in the limit
of not less than $20,000 for one crash, is jointly and severally
liable with the short-term lessee for any damages caused by the
negligence of the latter in operating the vehicle and for any
damages caused by the negligence of any person operating the
vehicle by or with the permission of the short-term lessee, except
that the foregoing provisions do not confer any right of action
upon any passenger in the rented vehicle against the short-term
lessor”].)

17
insurance requirements under State law’ pursuant to 49 U.S.C.
§ 30106(b)(2).” (Malco, at p. 881.)
Here, unlike Nevada Revised Statutes section 482.305,
Section 17150 imposes no liability on Midway for failing to meet
the insurance requirements for registering a car with the
Department of Motor Vehicles. Nor does coverage under Section
17150 only “step in” when a renter’s insurance is insufficient.
Section 17150 simply makes a car owner vicariously liable
(subject to the limits established in Section 17151) in a way
preempted by the Graves Amendment.

(ii) Meyer v. Nwokedi and
Rodriguez v. Testa
In Meyer, the Minnesota Supreme Court analyzed
Minnesota Statutes section 169.09, subdivision 5a, which
provides: “Whenever any motor vehicle shall be operated within
this state, by any person other than the owner, with the consent
of the owner, express or implied, the operator thereof shall in
case of accident, be deemed the agent of the owner of such motor
vehicle in the operation thereof.” (Meyer, supra, 777 N.W.2d at p.
227.) The court noted that “[t]his statute has consistently been
interpreted as creating vicarious liability as to vehicle owners
when none existed at common law” and thus “is not a financial
responsibility law that limits, or conditions liability of the rental-
vehicle owner for failure to meet insurance-like requirements or
liability insurance requirements within the meaning of the (b)(2)
savings clause” of the Graves Amendment, and thus was
preempted by the Graves Amendment. (Id. at pp. 227–228.)
Similarly, in Rodriguez, the Connecticut Supreme Court
determined whether General Statutes section 14–154a was
preempted by the Graves Amendment. (Rodriguez, supra, 993

18
A.2d at p. 957.) Subdivision (a) of that statute provides in
relevant part: “ ‘Any person renting or leasing to another any
motor vehicle owned by him shall be liable for any damage to any
person or property caused by the operation of such motor vehicle
while so rented or leased, to the same extent as the operator
would have been liable if he had also been the owner.’ ”
(Rodriguez, at p. 964.) The Connecticut Supreme Court found the
Graves Amendment preempted this statute. (Ibid.)
Here, Section 17150 also creates vicarious liability as to
vehicle owners and “is not a financial responsibility law that
limits, or conditions liability of the rental-vehicle owner for
failure to meet insurance-like requirements or liability insurance
requirements within the meaning of the (b)(2) savings clause.”
(Meyer, supra, 777 N.W.2d at pp. 227–228.) It is similarly
preempted by the Graves Amendment.
The savings clause of the Graves Amendment does not
“save” Sections 17150 or 17151 when those statutes are used to
impose vicarious liability on rental car companies. Therefore, as
a matter of law, O’Brien cannot prevail against Midway on a
theory of vicarious liability.

B. Midway Is Not Liable to O’Brien for Negligent
Entrustment
“ ‘ “ ‘Liability for the negligence of the incompetent driver to
whom an automobile is entrusted does not arise out of the
relationship of the parties, but from the act of entrustment of the
motor vehicle, with permission to operate the same, to one whose
incompetency, inexperience, or recklessness is known or should
have been known by the owner.’ ” ’ ” (McKenna v. Beesley (2021)
67 Cal.App.5th 552, 565; see also CACI No. 724 (2026 ed.)
(“Negligent Entrustment of Motor Vehicle”) [element of cause of

19
action includes that defendant knew or should have known driver
“was incompetent or unfit to drive the vehicle”].)
O’Brien points to no evidence that Loza displayed any
incompetency, inexperience, or recklessness that was either
known or should have been known to Midway. Instead, he
argues that if Midway “knew that its self-insurance did not cover
the uninsured driver of its vehicle, then it had a duty to
determine whether the driver had insurance.” This is because
“[i[t is foreseeable that some of [Midway’s] renters will cause
motor vehicle accidents” and if Midway’s self-insurance does not
cover renters of the vehicle, and Midway fails to obtain proof that
its renters are insured, “then it is foreseeable that it will rent to
uninsured motorists that cause accidents.” “To allow rental car
companies to make money by renting a vehicle they own to
uninsured motorists, while being immune from liability as an
owner, goes against public policy of this state.”
O’Brien cites no authority to support his assertion that
Midway owes the public a duty to check whether its renters have
automobile insurance. To the extent he asks us to interpret
“incompetency” to include the state of lacking automobile
insurance, or to otherwise create a previously unrecognized duty
for rental car companies to check the insurance status of its
renters, this question “should be addressed to the Legislature.”
(Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 711, fn. 5; see
also Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th
1055, 1069 [“because the Legislature is better suited to ‘weigh the
competing consumer, business, and public safety considerations
that present themselves in the rental car context’ [citation], any
expansion of the duty of investigation imposed on rental car
agencies is a matter for legislative, not judicial, action”].)

20
 This is especially so because the Legislature has already
imposed various requirements relating to car rentals without
requiring the lessor to verify the lessee has the requisite
insurance. For example, Vehicle Code section 14608 prohibits a
lessor from renting a vehicle to someone unless the person has a
license and the lessor has inspected the license to ensure it is the
lessee’s.7 Vehicle Code section 14609 specifies the records a
lessor is required to keep.8
Additionally, Division 3, Part 4, Title 5, Chapter 1.5 of the
Civil Code (i.e., sections 1939.01 through 1939.39) is entitled
“Rental Passenger Vehicle Transactions” and sets forth various
rules and regulations governing car rentals, some having to do
with insurance. For example, Civil Code section 1939.13 provides
that “[a] rental company shall not require the purchase of a
damage waiver, optional insurance, or another optional good or

7 (Veh. Code, § 14608, subd. (a) [“A person shall not rent a

motor vehicle to another person unless both of the following
requirements have been met: [¶] (1) The person to whom the
vehicle is rented is licensed under this code or is a nonresident
who is licensed under the laws of the state or country of his or her
residence. [¶] (2) The person renting to another person has
inspected the driver’s license of the person to whom the vehicle is
to be rented and compared either the signature thereon with that
of the person to whom the vehicle is to be rented or the
photograph thereon with the person to whom the vehicle is to be
rented”].)
8 (Veh. Code, § 14609, subd. (a) [“Every person renting a

motor vehicle to another person shall keep a record of the
registration number of the motor vehicle rented, the name and
address of the person to whom the vehicle is rented, his or her
driver’s license number, the jurisdiction that issued the driver’s
license, and the expiration date of the driver’s license”].)

21
service” and “shall not engage in any unfair, deceptive, or
coercive conduct to induce a renter to purchase the damage
waiver, optional insurance, or another optional good or service.”
(Id., subds. (a) & (b).) However, we have found no section that
requires a rental car company to check whether a renter has
automobile insurance.
As the law currently stands, O’Brien has failed to
demonstrate Midway owed him a duty to check Loza’s automobile
insurance status, and therefore O’Brien cannot prevail against
Midway on a theory of negligent entrustment. Because, as a
matter of law, O’Brien cannot recover against Midway on the
theories of liability he asserts, the trial court did not err in
granting summary judgment in favor of Midway.

DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
CERTIFIED FOR PUBLICATION

M. KIM, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.

22


CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

HANNA CARROLL RESTAURANT
GROUP LLC,
G065313
Plaintiff and Appellant,
(Super. Ct. No. 30-2022-
v. 01283759)

JOHN S. HAGESTAD, OPINION

Defendant and Appellant.

Appeal from orders of the Superior Court of Orange County, Nick
A. Dourbetas, Judge. Affirmed.
Price Caspino, Michael W. Caspino and Michael J. Weiler for
Plaintiff and Appellant.
Scheppach Bauer and Brian R. Bauer; Shantar Law, and
Nicholas S. Shantar for Defendant and Appellant.

* * *
 Plaintiff Hanna Carroll Restaurant Group LLC (the Hanna Group)
provided several days of catering services for defendant John Hagestad’s
family at the Masters golf tournament in Georgia (the Masters). Before the
Masters, the parties agreed on a menu for seven days of meals but never
signed a contract or discussed pricing. After the Masters, the Hanna Group
sent Hagestad an invoice for $74,960. Hagestad believed he had been
overcharged and refused to pay. The Hanna Group then sued him for breach
of contract. During discovery, Hagestad denied a request for admission that
“YOU contracted with Plaintiff for food and catering services for the entire
seven days of [the Masters], in April of 2022” (the request). The Hanna Group
later prevailed on its breach of contract claim at trial.
After trial, the Hanna Group moved for $81,875 in cost-of-proof
fees (the fee motion) under Code of Civil Procedure section 2033.420,
subdivision (a).1 Generally, this statute “allows a party to request fees where
it serves requests for admission and the responding party unreasonably fails
to admit a request that the serving party later proves true.” (Gamo v. Merrell
(2025) 113 Cal.App.5th 656, 660.) The Hanna Group also sought costs under
section 1033.5, subdivision (a), including $25,741.20 in court reporting costs.
Hagestad opposed the fee motion and also filed a motion to strike or tax the
Hanna Group’s claimed court reporter costs (the motion to tax costs).
The trial court partially granted the fee motion, awarding the
Hanna Group only $1,950 in cost-of-proof fees. The court also granted the
motion to tax costs, striking the Hanna Group’s $25,741.20 request for court
reporter costs. Both parties appeal the court’s order granting the fee motion

1 Undesignated statutory references are to the Code of Civil Procedure.

2
(the fee order), and the Hanna Group also appeals the order granting the
motion to tax costs (the costs order).
As to the fee order, Hagestad contends the trial court erred by
awarding the Hanna Group any fees. He claims that the request sought
admission of multiple facts, not all of which were proved true at trial. Even if
this were true, though, the Hanna Group was still entitled to cost-of-proof
fees. We publish this case to remind litigants of their duties in responding to
requests for admission. Here, Hagestad had a duty to admit the parts of the
request that were true. (§ 2033.220, subd. (b)(1).) He did not fulfill this duty.
He denied the entire request, and the Hanna Group later proved at least part
of the request true: Hagestad contracted with the Hanna Group for food and
services at the Masters. Thus, the Hanna Group was entitled to the fees it
incurred in proving this fact. Hagestad has also failed to persuade us that
any exception to section 2033.420, subdivision (a), applies here.
The Hanna Group argues that the trial court abused its
discretion by awarding only $1,950 in cost-of-proof fees without explaining
the substantial reduction. We disagree. The court explained this amount was
warranted because the Hanna Group had not identified the specific fees it
incurred proving contract formation. Further, because the focus of the trial
was on the value of the Hanna Group’s services, the court concluded that the
Hanna Group had incurred few fees proving contract formation. The Hanna
Group has not shown that either the court’s explanation or the amount the
court awarded was unreasonable. We also publish this case to encourage
precision when moving for cost-of-proof fees. A moving party must identify
the fees it incurred proving the specific issues that the responding party
denied. It cannot outsource this duty to the court.

3
 As to the costs order, the Hanna Group has failed to show that
the trial court erred by striking its request for $25,741.20 in court reporter
costs.
The fee order and the costs order are affirmed.
FACTS AND PROCEDURAL HISTORY
I.
THE PARTIES’ DISPUTE

The Hanna Group operates a high-end restaurant in Orange
County. Hagestad and his wife (collectively, the Hagestads) were apparently
so impressed with their dining experience there in March 2022, that they
contacted the Hanna Group’s chief operating officer, Dave Hanna, after their
meal. They told Dave Hanna that their son would be competing at the
Masters the next month in Augusta, Georgia. They asked the Hanna Group
to provide meals for their family and friends for the entire week of the
Masters.
The Hagestads and Dave Hanna corresponded as the Masters
approached. The Hagestads expected between 20 to 30 people for each meal.
Dave Hanna sent them a proposed menu that included breakfast and dinner
for seven days, which the Hagestads approved. The parties did not sign a
written contract. Nor did they ever discuss the price of the requested food and
services.
At the Masters, the Hanna Group provided the Hagestads with
breakfast, dinner, and a full bar for five days, serving an average of 25 guests
per meal.2 The Hagestads praised the Hanna Group’s food and service. They
sent Dave Hanna a text message after the Masters saying, “We just want to

2 While the proposed menu included meals for seven days, the record

indicates that the Hagestads unexpectedly left the Masters two days early.

4
thank you for everything this week. The staff, the food, everything was
perfect.”
Then the bill came.
The Hanna Group sent Hagestad an invoice for $74,960, which
included a $5,000 discount. Hagestad balked at the amount. He sent Dave
Hanna a letter disputing the bill. His letter closed by stating, “[h]ad I known
that this was the costs [sic] and/or the arrangement that we would wind up
with, I would have gone in a totally different direction . . . . If you want to sit
down and talk about my issues, I’m willing to try to resolve our differences.”
Dave Hanna responded by rescinding the $5,000 discount and adding another
$5,000 for “the time, burden, and delay in seeking payment[,]” bringing the
total bill to $84,960. Hagestad did not pay the invoice.
II.
THE LAWSUIT
A. The Complaint, Discovery, and Trial
The Hanna Group filed this lawsuit against Hagestad for breach
of contract.3 It then served Hagestad with several requests for admission.
Request Number 10 asked Hagestad to “Admit, that YOU contracted with
Plaintiff for food and catering services for the entire seven days of the
Master’s [sic] Golf Tournament, in April of 2022” (defined above as the
request). “YOU” was a defined term, which we will discuss later.

3 The Hanna Group’s complaint also alleged a claim for common counts,

which sought “[t]he reasonable value of the goods and services” provided. It
dismissed this claim prior to trial.

5
 Hagestad objected to the request on grounds it was vague,
ambiguous, and compound. But subject to those objections, Hagestad denied
the entire request.4
The case proceeded to a jury trial. At the outset of trial, Hagestad
acknowledged that the Hanna Group provided food and services at the
Masters, but he claimed their reasonable value was less than the $79,960 he
was initially billed. Thus, trial primarily focused on the value of the catering
services the Hanna Group provided. The jury found in favor of the Hanna
Group but only awarded it $60,391.
B. Postjudgment Requests
1. Memorandum of costs
After the verdict, the Hanna Group filed a memorandum of costs
seeking $40,351.04 in total costs, including $25,741.20 in court reporter costs.
Hagestad filed the motion to tax costs, seeking to strike or reduce the claimed
court reporter costs. He argued that the Hanna Group’s evidence showed that
it sought recovery of costs specifically disallowed under section 1033.5,
subdivision (b), such as trial transcripts that had not been ordered by the
court. Further, because the Hanna Group failed to produce the court
reporter’s invoices, Hagestad asserted that the amount of allowable court

4 Hagestad’s full response to the request was as follows: “[Hagestad]

incorporates by reference his Preliminary Statement and each of his General
Objections, above, as though set forth in full in this response. [Hagestad]
further objects that the Request (1) is vague and ambiguous; and (2) is
compound. [¶] Subject to and without waiving the foregoing objections,
Defendant responds as follows: Deny.”

6
reporter costs could not be determined and the entire amount should be
stricken.
2. Cost-of-proof fees
The Hanna Group also filed the fee motion, which requested
$81,875 in cost-of-proof fees under section 2033.420, subdivision (a). The fee
motion was based entirely on Hagestad’s denial of the request.
Hagestad argued that cost-of-proof fees were not warranted
because the Hanna Group “never proved the [truth of the] multiple matters
asserted in Request for Admission No. 10.” He also maintained that various
exceptions to section 2033.420, subdivision (a), applied.
C. The Fee and Costs Orders
The fee order awarded the Hanna Group $1,950 of the $81,875 in
cost-of-proof fees it had requested. The court found that the Hanna Group
had proved the truth of the request and that Hagestad had not established
any applicable exception. But it explained that the Hanna Group had “failed
to identify the specific costs and/or fees incurred in proving the truth of [the
request] at trial.” Instead, it sought to recover all the fees it had incurred
from the date that Hagestad denied the request through trial. The court also
observed that the primary issue at trial was the value of the Hanna Group’s
catering services. “Whether a contract had been formed . . . did not involve
expenditure of as much time and resources as [the Hanna Group] suggest[ed]
in [its] motion.”
The costs order granted Hagestad’s motion to tax costs and
struck the entire $25,741.20 claimed for court reporter costs. The court
explained that the Hanna Group “failed to demonstrate that the claimed
costs of the trial transcripts were for transcripts ordered by the court and . . .

7
failed to demonstrate that these costs are otherwise ‘expressly authorized by
law.’”
Both parties appeal the fee order. Hagestad argues the trial court
erred by granting the Hanna Group any cost-of-proof fees, while the Hanna
Group contends the court abused its discretion by awarding it only $1,950.
The Hanna Group also appeals the costs order, arguing the court abused its
discretion by striking its request for $25,741.20 in court reporter costs.
DISCUSSION
The most fundamental principle of appellate review is that the
lower court’s order is presumed correct. We make all presumptions in favor of
the order, and the appellant has the burden of showing error. (Universal
Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 125–126.)
I.
AWARD OF COST-OF-PROOF FEES
We begin with Hagestad’s argument that the trial court erred by
awarding the Hanna Group any cost-of-proof fees.
A. Applicable Law
“If a party fails to admit . . . the truth of any matter when
requested to do so under this chapter, and if the party requesting that
admission thereafter proves . . . the truth of that matter, the party requesting
the admission may move the court for an order requiring the party to whom
the request was directed to pay the reasonable expenses incurred in making
that proof, including reasonable attorney’s fees.” (§ 2033.420, subd. (a).) “The
court shall make this order unless it finds” that an exception applies.
(§ 2033.420, subd. (b).) We will discuss the relevant exceptions later.
Cost-of-proof fees are intended to encourage the parties to admit
facts during discovery to streamline trial. “‘The primary purpose of requests

8
for admissions is to set at rest triable issues so that they will not have to be
tried; they are aimed at expediting trial. [Citation.] The basis for imposing
[cost-of-proof fees] is directly related to that purpose. Unlike other discovery
sanctions, an award of expenses pursuant to [the statute] is not a penalty.
Instead, it is designed to reimburse reasonable expenses incurred by a party
in proving the truth of a requested admission where the admission sought
was “of substantial importance” [citations] such that trial would have been
expedited or shortened if the request had been admitted.’” (Orange County
Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115.)
We review an award of cost-of-proof fees for abuse of discretion.
(Spahn v. Richards (2021) 72 Cal.App.5th 208, 217.) “An abuse of discretion
is only demonstrated when no reasonable judge could have made the
challenged order.” (In re Marriage of Barth (2012) 210 Cal.App.4th 363, 374.)
B. Matters Proved at Trial
Hagestad claims that no cost-of-proof fees should have been
awarded because the Hanna Group did not actually prove the entirety of the
request. We find no error.
The request asked Hagestad to “Admit, that YOU contracted with
Plaintiff for food and catering services for the entire seven days of the
Master’s [sic] Golf Tournament, in April of 2022.” (Italics added.) “YOU”
included “JOHN S. HAGESTAD and his agents, attorneys, employees,
representatives, accountants, and all other natural persons or entities
representing and/or acting on his behalf, or purporting to represent and/or
act on his behalf.”
Hagestad asserts that the request sought admission of five facts:
(1) Hagestad and all his representatives included in the definition of “YOU,”
(2) contracted with the Hanna Group for food and services, (3) for seven days,

9
(4) for the entirety of each day, i.e., breakfast, lunch, and dinner, and (5) that
this contract was entered into in April 2022. Hagestad claims that the Hanna
Group did not prove all of these facts at trial. At most, it showed the parties
formed a contract for food and services for some portion of the Masters.
We agree that the request was unfocused. While it primarily
sought an admission from Hagestad that the parties formed a contract for
catering services at the Masters, it sought admission of multiple ancillary
facts. Nor does it appear that the Hanna Group proved all of these ancillary
facts at trial. As to the contract formation issue, the jury only had to find that
(1) “the contract terms were clear enough that the parties could understand
what each was required to do;” (2) “the parties agreed to give each other
something of value;” and (3) “the parties agreed to the terms of the contract.”
The jury was not asked in either the jury instructions or the verdict form to
decide whether the contract covered seven days of meals, what meals it
included, or whether persons other than Hagestad were parties to the
contract.5
However, even if the Hanna Group failed to prove every ancillary
fact set forth in the request, Hagestad had a duty to provide “a response
. . . as complete and straightforward as the information reasonably available
to” him permitted. (§ 2033.220, subd. (a).) Each response to a request for
admission must “[a]dmit so much of the matter involved in the request as is
true, either as expressed in the request itself or as reasonably and clearly
qualified by the responding party.” (§ 2033.220, subd. (b)(1).) The response
must also “[d]eny so much of the matter involved in the request as is untrue.”

5 In the verdict form, the jury found “in favor of [the Hanna Group] and

against [Hagestad] and award[ed] damages to [the Hanna Group] in the
amount of $60,391.”

10
(§ 2033.220, subd. (b)(2).) Thus, “[i]f any portion of the [request for admission]
is true, the party to whom it is directed must admit that portion.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2026) ¶ 8:1322.)
Though the request contained multiple parts, Hagestad had a
duty to admit the portions of the request that were true. (§ 2033.220, subd.
(b)(1).) For example, he could have admitted that he alone contracted with
the Hanna Group to provide some food and services during the Masters and
then denied the facts he disputed or provided some other qualification as to
the ancillary matters. He did not. He denied the entire request. Due to this
blanket denial, the Hanna Group had to prove at trial that the parties formed
a contract for catering services at the Masters, which it did. Thus, it was
entitled to the fees it incurred in proving this fact. (§ 2033.420, subd. (a).)
C. Statutory Exceptions
When the requirements of section 2033.420, subdivision (a), have
been met, a trial court is required to award cost-of-proof fees unless “it finds
any of the following: [¶] (1) An objection to the request was sustained or a
response to it was waived under Section 2033.290. [¶] (2) The admission
sought was of no substantial importance. [¶] (3) The party failing to make the
admission had reasonable ground to believe that that party would prevail on
the matter. [¶] (4) There was other good reason for the failure to admit.” (§
2033.420, subds. (b)(1)–(4).) Hagestad argues that the first, third, and fourth
exceptions apply here. Again, we find no error.

1. Sustained objection
Hagestad contends the first exception applies because he objected
that the request was vague, ambiguous, and compound, making it “unclear
what [the request] even asked [him] to admit.”

11
 We agree with the trial court that this exception is inapplicable
because none of Hagestad’s objections to the request were sustained. Though
Hagestad objected, he unequivocally denied the entire request. In doing so,
he left “no aspect of [the request] unresolved and nothing to be addressed by
the trial court in a motion to compel further responses.” (American
Federation of State, County & Municipal Employees v. Metropolitan Water
Dist. (2005) 126 Cal.App.4th 247, 268.) The Hanna Group properly construed
his response as an “unequivocal denial[] and expended time and effort
proving the truth of the matters to the trial court.”6 (Ibid.)
In response, Hagestad argues that the trial court failed to
consider whether any of his objections should have been sustained when
ruling on the fee motion. Specifically, he asserts that the exception in section
2033.420, subdivision (b)(1), “is broad enough to allow a trial court to decide
whether an objection is (or was) valid in the first instance when evaluating a
Section 2033.420 fee request.” Hagestad cites no authority to support his
argument. Nor does he analyze the relevant statute to support his
interpretation. As such, we will not address this argument. (Hernandez v.
First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [courts may “‘disregard
conclusory arguments’”].)
2. Reasonable grounds or good reason for denial
Hagestad also contends that he had a reasonable ground to
believe he would prevail on the issues set forth in the request and that he
had good reason to deny it. He argues both exceptions apply because the

6 We note that if Hagestad found the request so vague or ambiguous

that he could not understand it, or believed it was improperly compound, he
could have met and conferred with the Hanna Group. If the parties could not
resolve these issues, he could have stood on his objections rather than provide
an unequivocal denial.

12
Hanna Group failed to prove the five facts set forth in the request. As set
forth above, though, Hagestad had a duty to admit the portions of the request
that were true and deny any portions that were untrue. (§ 2033.220, subd.
(b)(1).) He did not fulfill this duty.
Hagestad also argues that “even if Request No. 10 were somehow
rewritten to simply seek an admission that Hagestad and [the Hanna Group]
had entered into some kind of (unspecified) contract, that contract was so
amorphous and vague that Hagestad still had reasonable grounds to deny the
request at the time he answered it.”
This argument is unpersuasive. The record contains e-mails
showing the parties agreed that the Hanna Group would provide food and
services at the Masters. These e-mails include a menu that the Hagestads
approved, which contained specific meal plans for seven days (Monday
through Sunday). Thus, the parties knew the Hanna Group would be
providing meals and services to the Hagestads for seven days of the Masters,
including the specific food it was bringing. These terms were sufficiently
definite to create an enforceable contract. (See Bustamante v. Intuit, Inc.
(2006) 141 Cal.App.4th 199, 209 [“‘a contract will be enforced if it is
sufficiently definite’”].) While the parties did not agree upon a price, “it is
well settled that a contract need not specify price if it can be objectively
determined.” (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474,
482.)
Due to the substantial evidence that the parties contracted for
the provision of food and services at the Masters, it was not reasonable for
Hagestad to deny the existence of a contract in the request. (See, e.g., Grace
v. Mansourian (2015) 240 Cal.App.4th 523, 530 [unreasonable for defendant
to deny that he ran a red light given the substantial evidence that he did].)

13
 II.
AMOUNT OF FEES
The Hanna Group asserts that the trial court abused its
discretion by failing to provide an adequate explanation for only awarding
$1,950 of the $81,875 in cost-of-proof fees it requested. It has not shown any
error.
Section 2033.420, subdivision (a), only allows recovery of
expenses incurred in “proving the matters denied by the opposing party.”
(Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736–737.) The moving party
must show that the claimed fees were incurred to prove issues the responding
party denied. (Grace v. Mansourian, supra, 240 Cal.App.4th at p. 529.) “The
requested amounts must be segregated from costs and fees expended to prove
other issues.” (Ibid.) “It is the obligation of the party (and attorney) seeking
the fee award ‘to prune the fee request to comply with the law,’ and the party
(and attorney) cannot ‘transfer that responsibility onto the trial court.’”
(Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 280.)
The Hanna Group did not meet its burden. As the trial court
noted, it “failed to identify the specific costs and/or fees incurred in proving
the truth of [the request] at trial.” Rather, the Hanna Group sought to
recover all the attorney fees it incurred from the date of Hagestad’s denial of
the request through trial. But not all of these fees were related to the issues
set forth in the request. While the request focused entirely on contract
formation, the trial’s primary focus was the value of the Hanna Group’s food
and services. Thus, the court could reasonably find that not all of the Hanna
Group’s fees incurred from the denial of the request through trial were
recoverable under section 2033.420, subdivision (a).

14
 The Hanna Group also claims that the trial court “did not explain
what work was excessive, duplicative or unnecessary and what work was
compensable” to justify “a 97 percent cut” of its requested fees. This
argument ignores that it was the Hanna Group’s burden to segregate the fees
it incurred proving contract formation. (Mountjoy v. Bank of America, N.A.,
supra, 245 Cal.App.4th at p. 280; Grace v. Mansourian, supra, 240
Cal.App.4th at p. 529.) It made no attempt to meet this burden. It simply
submitted a request for all the fees it incurred after the relevant denial
without attempting to identify which fees were related to proving contract
formation. It was not the trial court’s initial duty to comb through these
invoices and identify the recoverable fees for the Hanna Group.
Because the Hanna Group failed to segregate the fees it incurred
proving contract formation, the trial court could have denied the fee motion.
(See Grace v. Mansourian, supra, 240 Cal.App.4th at p. 529.) It did not.
Rather, it awarded the Hanna Group $1,950 in cost-of-proof fees. Given the
court’s assessment that contract formation was a necessary but minor issue
in this case, this result was not unreasonable.
We also reject Hagestad’s argument that the Hanna Group’s
failure to segregate fees should have led to a denial of the fee motion. The
trial court recognized that the Hanna Group incurred some fees proving
contract formation after Hagestad’s denial of the request. It was not
unreasonable to award the Hanna Group a portion of its requested fees for
proving this element of its breach of contract claim at trial.

15
 III.
THE COSTS ORDER
The Hanna Group contends the trial court abused its discretion
by striking the $25,741.20 it requested in court reporting costs. We find no
error.
Allowable costs generally include “[c]ourt reporter fees as
established by statute.” (§ 1033.5, subd. (a)(11).) But “[t]ranscripts of court
proceedings not ordered by the court” are not recoverable except when
authorized by law. (§ 1033.5, subd. (b)(5).) The trial court struck the Hanna
Group’s entire claim for court reporter costs because it “failed to demonstrate
that the claimed costs of the trial transcripts were for transcripts ordered by
the court and has failed to demonstrate that these costs are otherwise
‘expressly authorized by law.’”
The Hanna Group’s argument appears to arise from a purported
concession by Hagestad. Hagestad’s reply brief in support of the motion to tax
costs concluded by arguing “that at a minimum, the [trial court] should tax
the costs allegedly incurred for court reporter costs in the amount of at least
$2,931.00, for a total [costs] award of, at most, $37,420.04.” The Hanna Group
seizes on this statement and contends that despite Hagestad’s “concessions
and proposed reduction, [the trial court] without any explanation struck all of
[the Hanna Group’s] court reporting fees in the amount of $25,741.20.” (Fn.
omitted.)
Hagestad never conceded that the lower court could only strike
$2,931 in court reporter costs. He argued that the court should strike that
amount “at a minimum.” Indeed, the motion to tax costs expressly argued
that “because Hanna failed to produce the underlying invoices for the court
reporter, the costs claimed for court reporter fees cannot be segregated, and

16
the whole item should be stricken.” (Italics added.) The notice for the motion
to tax costs likewise specified that Hagestad sought to strike the entire
amount of claimed court reporter costs: “Hagestad seeks to strike or tax the
following costs claim by Hanna: [¶] 1. $25,741.20 in ‘Court reporter fees as
established by statute.’”
Further, the trial court explained that it was striking the entire
claim for court reporter costs because the Hanna Group failed to show that
they were for court-ordered transcripts or were otherwise authorized by law.
The Hanna Group has not demonstrated on appeal that it provided the lower
court with evidence showing the total amount of allowable court reporter
costs it incurred under section 1033.5, subdivision (a)(11). Thus, it has not
shown that it met its burden of proof, and the court could reasonably strike
its entire claim for $25,741.20 in court reporting costs. (See Wagner Farms,
Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773–774
[following a proper objection, party claiming costs has burden of proving
them].)

17
 DISPOSITION
The fee order and the costs order are both affirmed. Each party shall bear its own costs incurred in

this appeal.

MOORE, J.

WE CONCUR:

MOTOIKE, P. J.

GOODING, J.

18


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ADAM DEVONE et al., B339219

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV14477)
v.

MORGAN STANLEY & CO.
LLC et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin C. Brazile, Judge. Reversed in part,
affirmed in part, and remanded with directions.
Reif Law Group, Brandon S. Reif and Marc S. Ehrlich, for
Plaintiffs and Appellants.
Venable and John S. Worden, for Defendants and
Respondents.
_________________________

1
 Maurice Voce was a barber by trade and a self-taught
investor. From the 1980s until his death in 2012 at the age of 93,
he traded stock options with Morgan Stanley & Co., LLC,
primarily through John R. Privitelli, and built a $19 million
fortune. Maurice left that fortune to his three children—Mario
Voce, Julia Voce, and Stella Voce—through a series of trust
instruments.1 Stella served as sole trustee of the Trusts from
approximately October 2007 until Mario, Julia, and Adam
DeVone—Maurice’s nephew—were added as co-trustees in March
2012. Beginning around 2010, Maurice’s children and other
family members grew concerned about his declining cognitive
health, even as some of the options trading, and the commissions
it generated, continued.
DeVone, Mario, and Julia, as co-trustees of the Trusts, and
DeVone, as personal representative of Maurice’s estate, sued
Morgan Stanley and Privitelli for breach of fiduciary duty and
financial elder abuse arising from Maurice’s decades-long
relationship trading options with Privitelli. After the close of
plaintiffs’ evidence, the trial court granted defendants’ motion for
nonsuit and entered judgment on both causes of action. Plaintiffs
appeal from the judgment.
Plaintiffs challenge three rulings underlying the judgment.
First, they argue the trial court misapplied the statute of
limitations. Although the court found plaintiffs’ claims timely
under the discovery rule, with months of the limitations period
still unexpired, plaintiffs contend the court erroneously treated

1 To avoid confusion we refer to Maurice and the Voce
children by their first names. The trusts are the Voce Family
Trust, the Voce Residuary Trust, and the Restated Voce Marital
Trust. We refer to them collectively as the “Trusts.”

2
the limitations period as an eroding damages window, projecting
the unexpired balance backward from the date of accrual and
excluding, as a matter of law, any conduct predating that
window. Second, they contend the trial court erred in granting
nonsuit on their financial elder abuse claim. They argue the
evidence was sufficient to support a finding that defendants knew
or should have known that continuing to facilitate Maurice’s
options trading was likely to harm him given his age and
declining cognitive health, regardless of whether his accounts
ultimately increased in value. Third, plaintiffs contend the trial
court erred in granting nonsuit on their breach of fiduciary duty
claim. They principally argue the order rested on the court’s
erroneous determination that defendants’ fiduciary duty did not
extend to tax and estate-planning advice that Privitelli allegedly
gave Maurice, because defendants were neither hired nor paid to
give such advice.
We agree the trial court misapplied the statute of
limitations, and that plaintiffs’ evidence was sufficient to survive
nonsuit on the elder abuse claim and breach of fiduciary duty
claim to the extent the latter was based on the court’s
determination of the scope of defendants’ fiduciary duty.
However, we conclude the court properly granted nonsuit as to
the distinct theory that defendants breached their fiduciary duty
through excessive trading of Maurice’s accounts, as plaintiffs
failed to offer expert evidence sufficient to support that theory.
Accordingly, we affirm the judgment in part, reverse it in part,
and remand for further proceedings consistent with this opinion.

3
 BACKGROUND
A. Maurice’s History Trading Options with Morgan
Stanley and Privitelli
Maurice began investing in the 1960s and trading options
in the 1970s.2 In the 1980s he worked with Joseph Privitelli, a
financial advisor then with Dean Witter Reynolds, which later
merged with Morgan Stanley. When Joseph died in 1993, his
son, John Privitelli, took over Maurice’s investment accounts.
Maurice was 74 years old at the time. Privitelli worked with
Maurice continuously until June 2012, when Morgan Stanley
began the process of terminating its business with the Trusts due
to a dispute among the co-trustees. Maurice died in August 2012,

2 An option is a contract giving its holder the right, but not
the obligation, to buy (a “call”) or sell (a “put”) a security at a
specified price (the “strike price”) within a specified period.
Options contracts can either be “covered” or “uncovered.” For
example, in a “covered call,” the option seller already owns the
underlying stock and sells a call against it—if the stock rises
above the strike price, the seller is obligated to sell the shares at
that price, but because the seller holds the shares, the loss (if
any) associated with the transaction is limited to the difference
between the original purchase price of the shares and the strike
price for the covered call. An “uncovered” or “naked” option, by
contrast, is sold without any offsetting position in the underlying
security. A seller of a naked put, for example, profits so long as
the underlying security does not decline sharply, but if it does,
the seller may be obligated to purchase the stock at the strike
price notwithstanding a substantial decline in the stock’s actual
value—a loss bounded only by the fact that the underlying
security’s price cannot fall below zero. Because a naked option
seller holds no offsetting position, this risk is not limited in the
way the risk on a covered position is.

4
at the age of 93, leaving an estate that included Morgan Stanley
accounts then worth approximately $18 million.
Maurice and the Trusts had two primary accounts with
Morgan Stanley: an account containing municipal bonds and
other income-focused investments (the “649 Account”), and a
trading account in which Privitelli deployed a strategy of buying
and selling stock options, including covered calls and uncovered
puts (the “850 Account”). (See fn. 2, ante.)
B. The FINRA Arbitration
On June 15, 2014, plaintiffs filed a statement of claim
against Morgan Stanley with the Financial Industry Regulatory
Authority (“FINRA”), invoking a binding arbitration agreement
and alleging breach of fiduciary duty and financial elder abuse.
They amended the claim in January 2017, adding four additional
counts of fraud. Plaintiffs alleged Morgan Stanley constructed
“highly unsuitable portfolios for Maurice” during “the final phase
of his life,” including an options trading strategy that, “in
addition to being too risky and clearly unsuitable for the 90+ year
old Maurice and his trust,” at times involved “repurchasing
options contracts previously sold as covered calls for 20 times, 30
times, even 40 times the premium received at the time of the
opening transaction.” (Italics omitted.) Maurice allegedly
“suffered from dementia” during this period, which “intensified
his reliance on” Morgan Stanley, and although Maurice’s children
had reminded Privitelli of their father’s condition, Privitelli
dismissed their concerns about the appropriateness of the trading
strategy. Apart from options trading, plaintiffs alleged that
Morgan Stanley and Privitelli provided negligent tax advice in
2007 regarding Maurice’s resignation as a trustee, necessitating
a 2011 retitling of trust assets and, because of concerns the delay

5
would draw IRS scrutiny given Maurice’s declining health, a split
dollar life insurance contract at costs exceeding $700,000.
The parties litigated the arbitration for approximately four
years. On January 28, 2019, a three-member FINRA panel
unanimously granted Morgan Stanley’s motion to dismiss,
finding, among other things, that “[t]he records show that
Maurice Voce was actively managing his own accounts and was
aware of the values of the stocks and highly speculative options
he was engaged in trading between 1993 and 1998,” and that
Maurice “knew the values and amounts of each trade as well as
the commissions charged by Respondent.” The dismissal was not
on the merits and was without prejudice to plaintiffs pursuing
their claims in court.
C. The Complaint
On April 25, 2019, Mario, Julia, and DeVone, as co-trustees
of the Trusts, filed this lawsuit against Morgan Stanley and
Privitelli. They filed the operative first amended complaint in
July 2019, joined by DeVone in his capacity as personal
representative of Maurice’s estate. The pleading asserts two
causes of action for breach of fiduciary duty (by the Trusts), and
financial elder abuse under Welfare and Institutions Code section
15610.30 (on Maurice’s behalf by DeVone as his personal
representative).3
With respect to both claims, the pleading’s allegations
largely tracked those plaintiffs asserted in the FINRA

3 Unless otherwise designated, statutory references are to
the Welfare and Institutions Code. Section 15610.30 is part of
the Elder Abuse and Dependent Adult Civil Protection Act (the
Elder Abuse Act, § 15600 et seq.).

6
arbitration. With respect to both claims, plaintiffs alleged
defendants breached their fiduciary duty and committed financial
elder abuse by, among other things, engaging in “high frequency
options trading” and failing to “reduce Maurice’s risk/cost
exposure,” “despite [his] age and mental-cognitive impairments.”
D. Trial and the Statute of Limitations Ruling
Trial began with motions in limine on February 29, 2024,
and testimony commenced on March 4, 2024.
On March 19, 2024, the trial court held a hearing on the
statute of limitations—an issue raised in one of defendants’ in
limine motions. In a written ruling, the court found plaintiffs’
claims for breach of fiduciary duty and financial elder abuse were
governed by a four-year limitations period, and that plaintiffs
had timely filed suit. However, based on its application of the
limitations statutes, the court also held plaintiffs were barred
from seeking damages for conduct that occurred on or before
September 11, 2010—representing the outer limit of the
“remaining 21 months of the unexpired statute of limitations
period.”
As explained in its written ruling, the trial court applied
the delayed discovery rule, finding plaintiffs “knew or should
have discovered” the facts supporting their claims at the “latest”
on June 11, 2012, when Morgan Stanley notified plaintiffs it was
terminating services on Maurice’s accounts, and at the “earliest”
on April 10, 2012, when a tax and estate planning attorney
advised plaintiffs “to consult litigation counsel concerning the
management of [Maurice’s] trust accounts by Morgan Stanley.”
The court also determined the limitations period was tolled
during the pendency of plaintiffs’ FINRA arbitration—from its

7
filing on June 15, 2014 to its conclusion on January 29, 2019—
and that the complaint, filed April 25, 2019, was therefore timely.
Having determined the action was timely filed, the trial
court then went on to calculate how much of the four-year
limitations period had “expired,” net of the tolled interval, as of
the filing date. It found that approximately 24 months of the
limitations period had “expired” between the June 11, 2012
accrual date and the commencement of the FINRA arbitration on
June 15, 2014, and that a further 86 days “expired” between the
conclusion of the arbitration on January 29, 2019 and the filing of
the complaint on April 25, 2019—together consuming
approximately 27 months of the four-year period and leaving
approximately 21 months unexpired. Instead of treating those 21
months as a measure of how much time remained for plaintiffs to
have filed suit, the court held this “unexpired” period set the
outer limit of what conduct could give rise to compensable
damages—that is, the court projected the 21-month figure
backward from the June 11, 2012 accrual date, arriving at a
cutoff of “approximately September 11, 2010.” Based on this
application of the limitations statute, the court ruled “[a]ny
alleged wrongful acts or omissions occurring before September
11, [2010], are not compensable and cannot be the basis for any
liability or damages in this action.”
Applying this same reasoning to the breach of fiduciary
duty claim, the court separately ruled that plaintiffs could not
recover damages stemming from the split dollar life insurance
policy or other non-trading related conduct, holding those
categories of damages were barred on two independent grounds:
first, because any related claims “accrued on or before September
11, 2010”; and second, because “Morgan Stanley and John

8
Privitelli were not hired by Maurice Voce nor Trustee Stella Voce
for tax advice, estate planning or the payment of or amount of
gift taxes,” and Maurice “never paid” defendants for any such
advice. (Fn. omitted.)
E. Defendants’ Motion for Nonsuit
At the close of plaintiffs’ case-in-chief, defendants moved
for nonsuit. Their written motion first asked the trial court to
adopt and incorporate its earlier statute of limitations ruling—
narrowing the relevant evidence of liability and damages to the
2010–2012 period and excluding evidence related to the split
dollar policy and non-trading breach of fiduciary duty allegations
on the ground that defendants were “not hired for tax advice or
estate planning.”
With respect to the financial elder abuse claim, defendants
argued plaintiffs had failed to present evidence of a “taking,”
“wrongful use,” or “harm” as required under section 15610.30,
because the 850 account had made substantial capital gains
during the compensable 2010–2012 period such that no
cognizable harm had been proven. Defendants also argued a
Trading Authorization agreement that the Trusts had provided to
Morgan Stanley in 2007—granting Maurice authority to direct
trades in the accounts “just as if he were the trustee”—estopped
plaintiffs from challenging any trades made in reliance on it.
As for the breach of fiduciary duty claim, defendants
argued plaintiffs’ theory sounded in “churning” and plaintiffs had
failed to offer the sort of expert testimony required to submit an
excessive-trading theory to a jury. In support of this ground,
defendants pointed to the testimony of plaintiffs’ securities
expert, Charles Hartman, who “offered no opinion about the

9
turnover in the account” and, at his deposition, admitted he had
“no opinion on ‘churning.’ ”
F. The Nonsuit Ruling
The trial court granted nonsuit on the financial elder abuse
claim in an oral ruling from the bench, concluding plaintiffs had
failed to present evidence of a taking, wrongful use, intent to
defraud, undue influence, or harm. The court found there was
“no evidence that Morgan Stanley or Mr. Privitelli took, hid,
appropriated, obtained, or retained . . . any of the decedent’s
property,” emphasizing that “the account only grew in value.”
As for the breach of fiduciary duty claim, the court received
supplemental briefing on whether the commissions were
“excessive,” before issuing a written ruling granting nonsuit. The
court determined plaintiffs offered insufficient evidence of an
industry benchmark, standard, or methodology to establish the
excessiveness of defendants’ commissions, emphasizing plaintiffs’
expert had disclaimed any opinion on damages or “churning.” In
the absence of such testimony, the court concluded a jury would
be forced to speculate as to whether the commissions charged
were excessive. The court also reasoned that the relevant trading
costs were incurred in connection with a “substantial gain” to the
account and were “in the best interest of Maurice Voce’s
investment objectives.” Because “the trust accounts increased in
value from 2010 [through] 2012,” the court concluded there was
no breach of fiduciary duty, as a matter of law.
The court entered judgment, and this timely appeal
followed.

10
 DISCUSSION
A. Standard of Review
A motion for nonsuit tests the sufficiency of the plaintiff’s
evidence before the defendant is put to its own case. Because
granting the motion removes the case from the jury, “courts grant
motions for nonsuit only under very limited circumstances.”
(Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838
(Carson), citing Campbell v. General Motors Corp. (1982) 32
Cal.3d 112, 117.) A trial court must not grant the motion if the
evidence presented by the plaintiff would support a jury verdict
in the plaintiff’s favor. (Carson, at p. 838.)
In determining whether the plaintiff’s evidence is
sufficient, “ ‘the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to
plaintiff must be accepted as true and conflicting evidence must
be disregarded. The court must give “to the [plaintiff’s] evidence
all the value to which it is legally entitled, . . . indulging every
legitimate inference which may be drawn from the evidence in
[plaintiff’s] favor.” ’ ” (Carson, supra, 36 Cal.3d at pp. 838–839.)
On appeal from a judgment of nonsuit, we are “guided by
the same rule requiring evaluation of the evidence in the light
most favorable to the plaintiff.” (Carson, supra, 36 Cal.3d at
p. 839.) The judgment “ ‘cannot be sustained unless interpreting
the evidence most favorably to plaintiff’s case and most strongly
against the defendant and resolving all presumptions, inferences
and doubts in favor of the plaintiff a judgment for the defendant
is required as a matter of law.’ ” (Ibid.) “Although a judgment of
nonsuit must not be reversed if plaintiff’s proof raises nothing
more than speculation, suspicion, or conjecture, reversal is

11
warranted if there is ‘some substance to plaintiff’s evidence upon
which reasonable minds could differ.’ ” (Ibid.)
In reviewing a judgment of nonsuit, we may consider
“[o]nly the grounds specified by the moving party in support of its
motion.” (Carson, supra, 36 Cal.3d at p. 839.) Thus, we confine
our review of the nonsuit rulings to the grounds defendants
asserted below, and do not consider grounds defendants might
have but did not raise.
B. The Statute of Limitations Ruling Was Erroneous
1. Governing Law
Statutes of limitations “exist[ ] to promote the diligent
assertion of claims, ensure defendants the opportunity to collect
evidence while still fresh, and provide repose and protection from
dilatory suits once excess time has passed.” (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh).)
“The duration of the limitations period marks the legislatively
selected point at which, for a given claim, these considerations
surmount the otherwise compelling interest in adjudicating [valid
claims] on their merits.” (Ibid.)
“The limitations period, the period in which a plaintiff must
bring suit or be barred, runs from the moment a claim accrues.”
(Aryeh, supra, 55 Cal.4th at p. 1191; see Code Civ. Proc., § 312
[an action must “be commenced within the periods prescribed in
this title, after the cause of action shall have accrued”].)
“Traditionally at common law, a ‘cause of action accrues “when
[it] is complete with all of its elements”—those elements being
wrongdoing, harm, and causation.’ [Citations.] This is the ‘last
element’ accrual rule: ordinarily, the statute of limitations runs

12
from ‘the occurrence of the last element essential to the cause of
action.’ ” (Aryeh, at p. 1191.)
“To align the actual application of the limitations defense
more closely with the policy goals animating it, the courts and
the Legislature have over time developed a handful of equitable
exceptions to and modifications of the usual rules governing
limitations periods. These doctrines may alter the rules
governing either the initial accrual of a claim, the subsequent
running of the limitations period, or both.” (Aryeh, supra, 55
Cal.4th at p. 1192.) “The ‘ “most important” ’ of these doctrines,
the discovery rule, where applicable, ‘postpones accrual of a cause
of action until the plaintiff discovers, or has reason to discover,
the cause of action.’ ” (Ibid., quoting Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397; accord, Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 807 (Fox).) “A plaintiff has reason to
discover a cause of action when he or she ‘has reason at least to
suspect a factual basis for its elements.’ ” (Fox, at p. 807.) Once a
plaintiff has that suspicion, she is “required to conduct a
reasonable investigation,” and is charged with knowledge of
whatever information such an investigation would have revealed.
(Id. at p. 808.)
“Equitable tolling, in turn, may suspend or extend the
statute of limitations when a plaintiff has reasonably and in good
faith chosen to pursue one among several remedies and the
statute of limitations’ notice function has been served.” (Aryeh,
supra, 55 Cal.4th at p. 1192, citing McDonald v. Antelope Valley
Community College Dist. (2008) 45 Cal.4th 88, 99–100.) The
doctrine applies to arbitrations on the same terms as court
proceedings. (Rodriguez v. Southern Cal. Dist. Council of

13
Laborers (1984) 160 Cal.App.3d 956, 961; Marcario v. County of
Orange (2007) 155 Cal.App.4th 397, 408.)
2. The Trial Court Misapplied the Statute of
Limitations as an Eroding Damages Window
Plaintiffs contend the court erred by treating the statute of
limitations not as a threshold test of whether their suit was
timely filed, but as a mechanism for shrinking the universe of
conduct for which plaintiffs could recover damages. As plaintiffs
put it, despite finding their claims timely under the discovery
rule, the trial court applied the statute of limitations as an
“eroding” damages window that placed an “outside limit” on the
period for which plaintiffs could offer evidence to prove their
claims. We agree the court misapplied the governing law.
In its written ruling, the trial court expressly found that
plaintiffs “either knew or should have known (discovered) the
basis for their claims,” at the latest, on June 11, 2012, when
Morgan Stanley notified them it was terminating services on
Maurice’s accounts. The court further found the limitations
period was tolled during the pendency of the FINRA arbitration,
from June 15, 2014 to January 29, 2019, and that the complaint,
filed April 25, 2019, was therefore timely. Under the principles
set out above, these findings should have resolved the statute of
limitations question in its entirety. A cause of action either
accrues, is timely filed, and may proceed—with the plaintiff
entitled to seek recovery for the full course of the wrongful
conduct underlying that cause of action—or it does not. The
statute of limitations defines only the period within which an
action must be commenced after accrual; it does not, once the
condition for timeliness is satisfied, operate to constrain the scope
of actionable conduct. (See Code Civ. Proc., § 312 [an action “can

14
only be commenced within the periods prescribed in this title,
after the cause of action shall have accrued” (italics added)]; Fox,
supra, 35 Cal.4th at pp. 807–815 [discussing the delayed
discovery rule and the timeliness of an action when accrual is
postponed].)
Asaro v. Maniscalco (2024) 103 Cal.App.5th 717 (Asaro) is
instructive. Maniscalco—a former trustee and beneficiary—was
found liable for breach of fiduciary duty based on his
misappropriation of trust assets, including $430,000 in
certificates of deposit that he cashed out in January and
February 2010, and real property that he conveyed to his own
company in September 2010. (Id. at pp. 722–724.) Antoinette—
the beneficiary whose community property interest was
principally at stake—died in late November 2010, and her
nephew—another trust beneficiary—did not file his probate
petition against Maniscalco until 2018. (Id. at pp. 724–725.)
Maniscalco argued the claims were untimely because his co-
trustee knew of the misappropriations when they occurred. (Id.
at p. 728.) The Asaro court disagreed, affirming the judgment for
the beneficiary in full, including reimbursement of $547,370 to
the trust and a statutory penalty of $1,094,740. (Id. at pp. 724–
725, 739, 744.)
With respect to the breach of fiduciary duty claim— subject
to a three-year limitations period running from when “the
beneficiary discovered, or reasonably should have discovered, the
subject of the claim” (Prob. Code, § 16460, subd. (a)(2))—the
Asaro court concluded the claim was timely because the
beneficiary “did not have reason to know of his claim more than
three years before filing suit.” (Asaro, supra, 103 Cal.App.5th at
p. 729.) As for the elder abuse claim—subject to a four-year

15
limitations period running from when the plaintiff “discover[ed]
or, through the exercise of reasonable diligence, should have
discovered, the facts constituting the financial abuse”
(§ 15657.7)—the reviewing court held the claim timely on two
independent grounds: the limitations period was tolled during
the beneficiary-victim’s lifetime because she lacked the legal
capacity to make decisions (Code Civ. Proc., § 352, subd. (a)), and,
separately, the nephew who ultimately sued had “no reason to
know of a potential cause of action for elder abuse” given
Maniscalco’s concealment. (Asaro, at pp. 731–732.)
Critically, having determined accrual was postponed and
the claims were timely, the Asaro court did not limit recovery to
conduct within three or four years of the date suit was filed. (See
Asaro, supra, 103 Cal.App.5th at pp. 729–732.) Rather, it
affirmed recovery for misconduct occurring seven or eight years
before the claims were filed, because the claims themselves were
timely. Had the statute of limitations instead operated as the
trial court applied it here—as a backward-measured boundary on
compensable conduct—the misappropriation in Asaro would have
fallen outside any such boundary and gone uncompensated. That
was not the result in Asaro, and nothing in the discovery rule, the
law of tolling, or the law governing accrual generally supports
treating a single, timely-accrued claim as subject to a second,
independent temporal limit on what portions of the underlying
conduct may be considered for establishing liability and damages.
The trial court, however, imposed such a limit here.
Having calculated that approximately 21 months of the four-year
limitations period remained unexpired as of the date of filing, the
court did not treat that figure as confirmation of timeliness and
stop there. Instead, it projected the 21-month figure backward

16
from the June 11, 2012 accrual date, and ruled that “[a]ny
alleged wrongful acts or omissions occurring before September
11, [2010], are not compensable and cannot be the basis for any
liability or damages in this action.” This was error.
3. The Continuous Accrual Doctrine Does Not Save
the Trial Court’s Ruling
Defendants do not defend the trial court’s stated reasoning.
Instead, they offer a different justification for the September
2010 cutoff—namely, that it reflects a proper application of the
“continuous accrual doctrine,” under which each options trade in
Maurice’s account gave rise to a discrete, separately accruing
claim, such that injuries for conduct occurring more than four
years before the April 2019 filing date, net of the tolled period for
the FINRA arbitration, were time-barred. The record does not
support the contention.
Separate and distinct from the discovery rule, the
continuous accrual doctrine “posits that a cause of action
challenging a recurring wrong may accrue not once but each time
a new wrong is committed.” (Aryeh, supra, 55 Cal.4th at p. 1189.)
“Generally speaking, continuous accrual applies whenever there
is a continuing or recurring obligation: ‘When an obligation or
liability arises on a recurring basis, a cause of action accrues each
time a wrongful act occurs, triggering a new limitations period.’ ”
(Id. at p. 1199.) Unlike the continuing violation doctrine, which
renders an entire course of conduct actionable once any part of it
falls within the limitations period, continuous accrual “supports
recovery only for damages arising from those breaches falling
within the limitations period.” (Ibid.)
Defendants’ attempt to recast the trial court’s ruling as a
proper application of the continuous accrual doctrine fails

17
because its necessary premise is that plaintiffs knew or should
have known of their claims more than four years before they filed
this action. As our high court explained in Aryeh, the continuous
accrual doctrine exists to prevent “the inequities that would arise
if the expiration of the limitations period following a first breach
of duty or instance of misconduct were treated as sufficient to bar
suit for any subsequent breach or misconduct.” (Aryeh, supra, 55
Cal.4th at p. 1198, italics added.) In other words, the doctrine
presupposes a threshold finding that the limitations period would
have expired as to the claim considered as a whole, and its
purpose is to rescue a plaintiff from that consequence where the
underlying “ ‘obligation or liability arises on a recurring basis.’ ”
(Id. at p. 1199.)
Contrary to defendants’ premise, the trial court expressly
found that “the earliest date that plaintiffs either knew or should
have known (discovered) the basis for their claims . . . was at the
trustee’s meeting held on April 10, 2012,” when plaintiffs’ tax and
estate planning attorney “advised the trustees to consult
litigation counsel concerning the management of Maurice Voce’s
trust accounts by Morgan Stanley.” And, when credited with the
four-and-a-half-year tolling period during the FINRA arbitration,
the court found plaintiffs timely filed their claims. That finding
categorically undermines the necessary premise of defendants’
argument.
It is also worth recognizing that continuous accrual is—by
design—a doctrine that operates in a plaintiff’s favor. It operates
not only as a vehicle for preserving a plaintiff’s ability to recover
for recent wrongs notwithstanding the staleness of earlier ones,
but it also exists to ensure that a defendant engaged in “long-
standing misfeasance” does not “obtain immunity in perpetuity

18
from suit even for recent and ongoing misfeasance.” (Aryeh,
supra, 55 Cal.4th at p. 1198.) Defendants’ attempt to invoke the
doctrine to confine, rather than expand, the conduct for which
plaintiffs may recover inverts its purpose.
Having said this, we must also be clear about the limits of
what we decide at this stage. Before any determination can be
made about whether the continuous accrual doctrine applies, the
trier of fact must first determine whether plaintiffs are entitled
to the benefit of delayed accrual under the discovery rule and, if
so, when they knew or should have known of the facts giving rise
to their claims. As we explain below, the trial court improperly
took that question from the jury, despite conflicting evidence on
this disputed question of fact. If the jury finds plaintiffs filed
their lawsuit more than four years after they should have
discovered their claims, plaintiffs may nonetheless seek to prove
that defendants’ alleged liability arose on a recurring basis, such
that new causes of action accrued each time a wrongful act
occurred, triggering a new limitations period under the
continuous accrual doctrine. (See Aryeh, supra, 55 Cal.4th at
p. 1199.) Because application of the delayed discovery rule and
the continuous accrual doctrine depend on the resolution of
disputed factual issues, these are matters for a jury—not the
court—to decide. (Fox, supra, 35 Cal.4th at pp. 806–807; CACI
Nos. 454 & 455.)
4. The Trial Court Improperly Decided Accrual as
a Matter of Law Despite Conflicting Evidence
Independent of its misapplication of the statute of
limitations, the trial court’s accrual finding was itself erroneous
because it resolved disputed factual questions that should have
been submitted to the jury.

19
 The statute of limitations is an affirmative defense, the
resolution of which is “normally a question of fact.” (Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly); Aryeh, supra, 55
Cal.4th at p. 1191; see CACI No. 454.) It becomes a question of
law only “where the uncontradicted facts . . . are susceptible of
only one legitimate inference.” (Jolly, at p. 1112; Aryeh, at p.
1191.) The same rule governs application of the discovery rule:
whether a plaintiff knew or should have known the facts
supporting her claim is a question for the trier of fact where the
evidence is disputed or subject to conflicting inferences; it may be
decided by the court only when reasonable minds could reach but
one conclusion. (See Fox, supra, 35 Cal.4th at pp. 806–807; CACI
No. 455.)
Critically, what matters under the discovery rule is not
simply whether a plaintiff knew of the transactions later alleged
to be wrongful, but whether the plaintiff had “ ‘reason at least to
suspect a factual basis for [the] elements’ ” of the claim—that is,
reason to suspect wrongdoing, not merely reason to be aware of
the underlying facts. (Fox, supra, 35 Cal.4th at p. 807.)
Knowledge that a transaction occurred and knowledge that it was
wrongful are related but distinct inquiries, and evidence bearing
on the former does not necessarily resolve the latter as a matter
of law.
In making their case for application of the continuous
accrual doctrine—which, as discussed, requires a threshold
determination that plaintiffs’ claims were untimely—defendants
catalogue substantial evidence that would support an earlier
accrual-date finding than the one the trial court made. For
example, defendants point to evidence that Maurice was “fully in
control of his options trading, was aware of the costs and the

20
performance, and had no memory lapses or other cognitive
issues” before 2010; that he received trade confirmations
reflecting the commissions on each transaction; that he kept his
own detailed trading log; and that he wrote a letter in 1992
(when he was over 70 years old) confirming his understanding of
the risks and costs of options trading generally. Defendants also
point to evidence that Stella and, later, the trustees had access to
Maurice’s account statements and trade confirmations, as well as
the power to terminate his Trading Authorization or stop the
trading altogether, but never did so. And, defendants cite
evidence that a principal with a different brokerage firm (who
worked with DeVone) had advised Maurice in 2007 that Morgan
Stanley’s commissions were excessive and that Maurice’s options
trading was risky.
A jury could find this evidence sufficient to place Maurice
and the Trusts on inquiry notice of the wrongdoing plaintiffs
later alleged, well before the date the trial court identified for its
discovery and accrual finding. A jury could equally find that
Maurice’s acceptance of ordinary market risk, and his own
tracking of trade-by-trade costs, reflected an engaged investor’s
comfort with a strategy he had chosen, without any reason to
suspect his fiduciary was acting wrongfully in administering it.
Both are permissible inferences, and because the evidence would
support both later and earlier accrual findings under the delayed
discovery rule, the question should have gone to the jury rather
than being resolved by the court before the close of plaintiffs’
case. The trial court erred in deciding the accrual question as a
matter of law. (See Fox, supra, 35 Cal.4th at pp. 806–807; CACI
Nos. 454 & 455.)

21
C. The Trial Court Erred in Granting Nonsuit of the
Elder Abuse Claim
Defendants contend the statute of limitations ruling was at
most harmless error because plaintiffs’ evidence was insufficient
to establish a wrongful taking under the Elder Abuse Act,
regardless of the period considered. As they argued in their
motion for nonsuit, defendants maintain Maurice was not
harmed by the commissions charged on his options trades, or by
the trades themselves, because his accounts increased in value
over the relevant period and, in any event, plaintiffs ratified the
trading activity by keeping the Trading Authorization in place,
even after Maurice’s evident cognitive decline. In granting
nonsuit, the trial court reached the same conclusion on the
former point, finding Maurice “was not harmed, and, in fact, the
account only grew in value.” This was error, and it rendered the
statute of limitations ruling prejudicial. As we will explain, proof
of a wrongful taking under the Elder Abuse Act does not require
evidence of a net financial loss, and the evidence plaintiffs
presented—including evidence excluded under the statute of
limitations ruling—was sufficient to reject the ratification
defense and to support a jury finding of liability.
The Elder Abuse Act is a remedial statute, reflecting the
Legislature’s findings that elders are “a class of persons who are
particularly vulnerable to abuse” and that the state “ ‘has a
responsibility to protect’ ” them. (Mahan v. Charles W. Chan Ins.
Agency, Inc. (2017) 14 Cal.App.5th 841, 858 (Mahan), quoting
§ 15600, subd. (a).) Since 1991, the Act has been structured
around encouraging private civil enforcement of laws against
elder abuse—a purpose the Legislature pursued by attaching
heightened remedies, including mandatory attorney’s fees and

22
costs, “designed to provide incentives for ‘interested persons to
engage attorneys to take up the cause of abused elderly
persons.’ ” (Mahan, at p. 858, quoting § 15600, subd. (j).) Courts
accordingly construe the Act’s financial abuse provisions
liberally, resolving close questions “in favor of” the class of elders
the statute is designed to protect. (Mahan, at pp. 860–861.)
An elder is any person residing in this state, who is 65
years of age or older. (§ 15610.27.) Financial elder abuse occurs
when a person or entity “[t]akes, secretes, appropriates, obtains,
or retains real or personal property of an elder . . . for a wrongful
use or with intent to defraud, or both.” (§ 15610.30, subd. (a)(1).)
The statute defines “[t]akes, secretes, appropriates, obtains, or
retains” broadly: an elder is deprived of property, and thus the
property has been taken within the meaning of the statute,
whenever the elder “is deprived of any property right, including
by means of an agreement, donative transfer, or testamentary
bequest, regardless of whether the property is held directly or by
a representative of an elder.” (Id., subd. (c).) Commissions
generated by a wrongful transaction constitute a taking
regardless of whether they are paid directly by the elder or by a
trust or account administered on the elder’s behalf. (See Mahan,
supra, 14 Cal.App.5th at p. 865, citing Wood v. Jamison (2008)
167 Cal.App.4th 156, 164–165 [finder’s fee paid by lender
sufficient].)
A taking is deemed to be “for a wrongful use” if the person
or entity charged with the taking “knew or should have known
that [the] conduct [was] likely to be harmful to the elder.”
(§ 15610.30, subd. (b).) This was not always the governing
standard. Before 2008, subdivision (b) required a showing that
the defendant acted in “ ‘bad faith.’ ” (Mahan, supra, 14

23
Cal.App.5th at p. 860.) The Legislature amended the statute,
replacing that subjective standard with the objective,
foreseeability-based standard now in place—asking not whether
the defendant intended harm, but whether the defendant “ ‘knew
or should have known’ ” that the conduct in question was
“ ‘likely’ ” to cause it. (Id. at pp. 859–860, fn. 18, citing Stats.
2008, ch. 475, § 1.) This objective foreseeability standard is
inherently forward-looking—it asks what a defendant knew or
should have known at the time the challenged conduct occurred
and is not necessarily concerned with what result the conduct
ultimately produced.
Contrary to the Elder Abuse Act’s foreseeability standard,
defendants’ and the trial court’s focus on the capital gains earned
in Maurice’s trading account rests on a backward-looking
assessment of what result the challenged conduct produced.
Defendants argue plaintiffs “failed to prove a taking, a wrongful
use, or intent to defraud and harm” because the account was
“profitable,” emphasizing “Maurice’s total gains from 2010 to
2012 were approximately $4,204,744 (net of commissions).” But
this contention speaks to how the trading performed in
hindsight—not to what defendants “knew or should have known”
when they engaged Maurice in options trades and charged
commissions for them. (§ 15610.30, subd. (b).) Under the Elder
Abuse Act, a defendant who exposes an elder to a foreseeable risk
of harm does not escape liability merely because the risk did not
materialize. This follows from the Act’s remedial design. In
amending the “ ‘wrongful use’ ” standard, the Legislature not
only aimed to encourage private enforcement but also to deter
wrongful conduct by making a defendant answerable for what it
“ ‘knew or should have known’ ” about the likelihood of harm

24
before any taking occurred. (Mahan, supra, 14 Cal.App.5th at
p. 860 & fn. 18.) A rule that measured wrongfulness only by
outcome would render the statute’s foreseeability standard
hollow and undermine its deterrent function.
Mahan is not to the contrary. There, an elderly couple sued
an insurance agent for financial elder abuse, alleging the agent
induced them to surrender an existing life insurance policy in
favor of a costlier, more limited replacement policy, generating
commissions for the agent and forcing the couple to feed
additional cash into their trust to sustain it. (Mahan, supra, 14
Cal.App.5th at pp. 846–847, 849–853.) Defendants emphasize
that the scheme in Mahan resulted in the loss of the original
policy’s accumulated cash value and years of increased premium
costs to sustain the costlier replacement—the sort of net financial
harm that defendants argue is absent here. (See Mahan, at pp.
853–854.) But the Mahan court’s holding did not rest on an
allegation that the couple ended up in a worse financial position,
even though their pleading alleged that they did. Rather, the
reviewing court held the agent’s commissions could themselves
constitute a taking or deprivation under the Elder Abuse Act
because the agent allegedly knew or should have known the
scheme was likely to result in harm—specifically, the agent’s
statement that the couple “ ‘could just borrow against [their] real
estate’ ” showed the agent’s awareness that the couple would
need to tap other assets to cover the dramatically increased costs
the scheme would impose, and the agent had allegedly failed to
mention a pricing option that would have made the surrender
unnecessary altogether while pursuing his own $100,000
commission. (Id. at pp. 865–866.) Those allegations concerned

25
what the agent knew and represented at the time—not the
couple’s resulting financial position. (See id. at pp. 866–867.)
Arace v. Medico Investments, LLC (2020) 48 Cal.App.5th
977 (Arace) is also instructive. A jury found the defendant in
Arace liable for financial elder abuse but awarded no economic or
noneconomic damages for the claim. (Id. at pp. 982–983.) The
defendant challenged the award of attorney fees, arguing the
plaintiff could not be deemed the prevailing party on the elder
abuse claim because she had “recover[ed] no damages” for the
abuse. (Id. at p. 983.) The reviewing court rejected the
contention, concluding an award of attorney’s fees and costs
under section 15657.5 was nonetheless mandatory: “Under the
plain language of the statute, an award of attorney fees is a
mandatory form of relief regardless of whether the plaintiff is
awarded any other form of relief.” (Arace, at p. 983, italics added,
citing § 15657.5 [“Where it is proven by a preponderance of the
evidence that a defendant is liable for financial abuse, as defined
in Section 15610.30, in addition to compensatory damages and all
other remedies otherwise provided by law, the court shall award
to the plaintiff reasonable attorney’s fees and costs.”].)4 Arace

4 Although section 15610.30 does not specify that a financial
elder abuse claim requires a showing of harm, the Arace court
noted that the standard jury instruction for the claim (see CACI
No. 3100) includes a requirement that the plaintiff prove he was
“harmed” in order to establish liability. (Arace, supra, 48
Cal.App.5th at p. 983, fn. 4.) The reviewing court nonetheless
rejected the defendant’s argument that the jury could not have
found the plaintiff established her claim for financial elder abuse
without awarding damages for the claim. Because the jury had
also been instructed that “ ‘each item of damages may be
awarded only once, regardless of the number of legal theories

26
confirms that liability for financial elder abuse, including the
“wrongfulness” element of the claim, is not defeated by the
absence of a net monetary recovery when liability is otherwise
established.
Measured against the governing wrongfulness standard, we
conclude plaintiff’s evidence—including evidence the trial court
excluded under its erroneous statute of limitations ruling—was
sufficient to permit a jury to find that defendants knew or should
have known that taking commissions based on an uncovered
options trading strategy was likely to be harmful to Maurice.
The trading strategy placed Maurice at significant risk of
sustaining large losses and, according to plaintiffs’ evidence, it
was therefore inappropriate for someone of his advanced age, yet
he was responsible for paying commissions to defendants
regardless of how the account ultimately performed.
The record shows Morgan Stanley itself recognized—more
than a decade before the conduct primarily at issue—that
Maurice’s age warranted restricting the very trading strategy
later challenged in this action. In 1998, Morgan Stanley sent a
letter to Maurice memorializing restrictions that would limit his
trading account to a conservative, covered-call strategy and cap
his uncovered options positions. Privitelli agreed that Maurice’s
age—79 years old at the time—likely was a motivating factor for
that restriction. Indeed, the evidence showed that in September
1999, Morgan Stanley generated an internal communication
stating that “because of [Maurice’s] age,” the firm “ ‘thought it
would be prudent to reign in exotic stuff’ ”—a reference to

alleged,’ ” the Arace court found it was “equally arguable that the
jury did not believe it could award . . . damages under both the
financial abuse and the neglect causes of action.” (Ibid.)

27
uncovered options. But despite recognizing the risk, the same
internal communication shows the firm carved out a special
exception for Privitelli’s branch. A jury crediting this evidence
could reasonably infer that Morgan Stanley’s own compliance
division recognized a connection between Maurice’s advanced age
and the risk of the strategy Privitelli continued to pursue in
Maurice’s account for another decade.
The nature of that risk was not merely theoretical, and the
record shows it materialized over the course of Privitelli’s
relationship with Maurice in ways that, a reasonable jury could
find, should have put defendants on notice that the strategy was
not suitable for someone of Maurice’s advanced age. As Privitelli
himself explained, selling an uncovered put obligates the seller to
buy the underlying stock if its price falls below the strike price,
and Maurice’s typical trades of 10 to 20 options at a time
obligated him to purchase 1,000 to 2,000 shares when this
occurred. (See fn. 2, ante.) When Maurice could not fund that
obligation in cash, he carried the shortfall on margin. Privitelli
acknowledged that positions held on margin were “more at risk”
to market fluctuations. In fact, the record shows that in
February 2009—after Maurice’s account had fallen by nearly half
its value over the preceding year—Morgan Stanley issued a
margin call demanding Maurice put additional money into the
account to cover the shortfall on his borrowed positions. The
margin debt was ultimately paid off through a $900,000 loan that
the Trusts were forced to obtain. Privitelli agreed that the
roughly $900,000 in margin debt that Maurice’s account carried
in 2009—approximately eight percent of its total value—“could
have very well” been created by the options trading strategy.

28
 The record also contains evidence that Privitelli continued
to collect commissions from Maurice in connection with the
options strategy after receiving notice of Maurice’s cognitive
decline. In December 2010, Privitelli received an email from
plaintiffs describing Maurice’s memory lapses, disorientation,
and declining health. And, Privitelli testified that, as of January
and February 2011, and again in March and April of that year, he
was “on notice” of Maurice’s cognitive impairment, yet still
executed specific trades on Maurice’s instructions “while
[Maurice] was cognitively impaired.”
The record also shows that notice of Maurice’s cognitive
impairment triggered a recognized institutional obligation on
defendants’ part. Plaintiffs’ securities expert testified that firms
like Morgan Stanley customarily have escalation protocols in
place that require their financial advisors to “ ‘elevate’ ” reports of
a client’s diminished capacity to management, and the advisors
have “no discretion” to withhold the information. Brian Krueger,
a Market Executive with Morgan Stanley, agreed that “as a
fiduciary in the security space,” a financial advisor like Privitelli
would have been “trained to identify and escalate concerns about
diminished capacity,” and that Morgan Stanley was subject to
securities-industry notices requiring it to “train [its] financial
advisors to spot and escalate” such concerns. Privitelli agreed the
obligation applied to him. Asked directly whether the reports of
Maurice’s cognitive impairment “had to be escalated to risk
management or some supervisor,” he answered, “Sure. It should
have been.”5 Viewing all this evidence in the light most favorable

5 Although he testified at trial that he believed he had
spoken to a manager about Maurice’s “situation,” Privitelli was
impeached with his earlier deposition testimony indicating he did

29
to plaintiffs, a reasonable jury could find defendants knew or
should have known the continued options trading and related
taking of commissions by defendants were likely to harm
Maurice, given his advanced age and cognitive impairments.
Finally, there was evidence from which a reasonable jury
could infer defendants had a financial incentive to continue the
options trading strategy notwithstanding the risks they knew or
should have known it posed to Maurice. Plaintiffs’ expert
testified that options positions—unlike an ordinary equity
purchase—are inherently short-lived and must be periodically
replaced. He explained that “unlike a common stock that you
usually buy, pay one commission, and then you hold onto it for a
while,” an options position “expires,” is “generally replaced,” and
“every time it’s replaced,” the customer gets “a new commission
charge.” In other words, plaintiffs’ expert testified, “it’s the
cumulative effect of the transactions that drives up a new
commission over and over and over again.” By contrast, a more
conservative buy-and-hold or covered-call strategy—the very
strategy Morgan Stanley itself had once imposed on Maurice’s
account because of his age—would not have required the same
volume of transactions, and accordingly would have generated
fewer commissions than the uncovered options strategy that
Privitelli continued to pursue.
Notwithstanding this evidence, defendants argue the
nonsuit ruling is supported by a different ground that they
presented in their motion. As an independent ground for nonsuit,
defendants argued the Trading Authorization that Stella
executed in 2007, and that plaintiffs never revoked when they

not forward plaintiffs’ email about Maurice’s cognitive
impairments to risk management.

30
became co-trustees, estopped plaintiffs from challenging any
trades defendants made in reliance on it.6 They contend charging
Maurice commissions on option trades he authorized and the
trustees ratified could not constitute a wrongful taking of any
property under the Elder Abuse Act.
Ratification does not support nonsuit on this record,
because the evidence raised disputed issues of fact regarding
defendants’ reliance on the Trading Authorization. By its terms,
the Trading Authorization would “remain in full force and effect
until revoked either by me/us [the trustees] or by Morgan
Stanley.” (Italics added.) On cross-examination, Krueger agreed
this reciprocal revocation provision gave Morgan Stanley “the
right to revoke the Trading Authorization if it deemed it in the
client’s best interest not to take trading decisions from” an
impaired customer. He later agreed, without qualification, that
“Morgan Stanley had the right to revoke the Trading Agent
Authorization [at] any time for any reason or no reason at all.” A
jury could reasonably find plaintiffs’ failure to revoke the Trading
Authorization is no more probative of ratification than Morgan
Stanley’s own failure to exercise the identical right, and that the
latter was evidence of defendants’ wrongful conduct once they
were on notice of Maurice’s decline.
To be clear, none of this evidence compels a finding of
liability. Defendants presented substantial contrary evidence,
including evidence that the family authorized and even
encouraged continued trading, as well as Privitelli’s testimony
that Maurice continued to understand and direct his trades

6 Although the trial court did not rely on this ground in
granting nonsuit, it was properly raised in the motion, and we
accordingly consider it. (Carson, supra, 36 Cal.3d at p. 839.)

31
throughout the relevant period. But the nonsuit standard does
not ask whether defendants’ evidence was sufficient or even more
persuasive. It asks whether plaintiffs’ evidence, credited and
viewed in the light most favorable to plaintiffs, would have been
sufficient to support a jury verdict in their favor. (See Carson,
supra, 36 Cal.3d at pp. 838–839.) On this record, we conclude
plaintiffs’ evidence was sufficient to support their financial elder
abuse claim. The trial court erred in granting nonsuit.
D. The Court Erred in Part in Granting Nonsuit on the
Breach of Fiduciary Duty Claim
Plaintiffs’ breach of fiduciary duty claim rested on two
distinct theories. The first, addressed to the options trading, was
that defendants engaged Maurice in “excessive trading” or
“churning” to generate commissions beyond what a properly
managed account would have incurred. The second theory was
that defendants’ fiduciary obligations extended beyond the trades
themselves to encompass tax and estate-planning matters,
including gift-tax advice that Privitelli allegedly gave Maurice
regarding gifts to his children, resulting in $640,000 of interest
and penalties; and the procurement of a split dollar life insurance
policy, which, together with related professional fees, generated
alleged damages exceeding $700,000. The trial court’s written
nonsuit ruling addressed only the first theory, as the court had
already foreclosed the second in its earlier statute of limitations
ruling, which barred these categories of damages both because
any related claims purportedly “accrued on or before September
11, 2010” and because defendants “were not hired . . . for tax
advice, estate planning or the payment of or amount of gift

32
taxes.” (Fn. omitted.)7 We conclude the court correctly granted
nonsuit as to the excessive trading theory, but erred in excluding
evidence and granting nonsuit as to the other breach of fiduciary
duty theories.
1. The Trial Court Properly Granted Nonsuit as to
the Excessive Trading Claim
To establish a breach of fiduciary duty, “the plaintiff must
show the existence of a fiduciary relationship, its breach, and
damage proximately caused by that breach; the absence of any
one of these elements is fatal to the cause of action.” (LaMonte v.
Sanwa Bank California (1996) 45 Cal.App.4th 509, 517
(LaMonte).) Unlike financial elder abuse, which can be
established by proof of a wrongful taking regardless of net
financial loss (see Part C, ante), a breach of fiduciary duty claim
requires proof of actual damage proximately caused by the
breach. (Id., at p. 517.) We agree with the trial court that
plaintiffs failed to prove damages caused by defendants’
purported excessive trading of Maurice’s account.
Plaintiffs argue the court’s nonsuit ruling erroneously
“presumed the gravamen of Plaintiffs’ breach of fiduciary duty
claim is excessive trading, i.e., ‘churning.’ ” But plaintiffs’ own
submissions below confirm this “presumption” was accurate. In
their supplemental brief addressing damages for breach of
fiduciary duty “arising from a stockbroker’s excessive trading,”
plaintiffs relied principally on Nesbit v. McNeil (9th Cir. 1990)

7 As discussed, in their motion for nonsuit, defendants
requested the court adopt its statute of limitations ruling,
including its finding with respect to the scope of defendants’
fiduciary duty.

33
896 F.2d 380 (Nesbit) for the proposition that “excessive
commissions on the churned securities [are] independently
compensable, despite the increase in value of the account.”
(Italics and boldface omitted.) (See id. at pp. 385–386.) That is
obviously a churning theory, and it is the theory plaintiffs alleged
in their complaint and pursued at trial with respect to their
breach of fiduciary duty claim. As the trial court correctly
recognized, this theory required proof that the volume of trading
was excessive in light of Maurice’s investment objectives—proof
that ordinarily can be presented only through expert testimony.
(See Shad v. Dean Witter Reynolds, Inc. (9th Cir. 1986) 799 F.2d
525, 530 [churning can be identified only by analyzing the
entirety of a broker’s management of an account, and, without
expert testimony placing statistical measures of trading activity
in context, a jury cannot meaningfully evaluate the
transactions].) Plaintiffs’ securities expert, however, disclaimed
any opinion on churning, both at deposition and at trial, and
plaintiffs offered no other expert testimony establishing that the
commissions charged were excessive relative to any industry
benchmark, standard, or methodology. Absent such testimony,
the jury would have had no basis beyond speculation to conclude
the trading was excessive. (Ibid.; Carson, supra, 36 Cal.3d at
p. 839 [“if plaintiff’s proof raises nothing more than speculation,
suspicion, or conjecture,” nonsuit must be affirmed].)
Alternatively, plaintiffs argue proof of churning was
unnecessary to establish a breach of fiduciary duty for the period
after defendants were on notice of Maurice’s cognitive decline,
because, as they put it, “any and all trading allowed in that time
period was improper and a breach of fiduciary duty” without
regard to whether the commissions charged were excessive.

34
(Italics and boldface omitted.) The argument overlooks the
requirement that plaintiffs prove concrete damage to establish
their breach of fiduciary duty claim. Unlike the Elder Abuse Act,
under which the commissions themselves may constitute a
wrongful taking regardless of the account’s net performance,
breach of fiduciary duty requires proof of a net loss. (See
LaMonte, supra, 45 Cal.App.4th at p. 517.) Proof that trading
occurred after notice of Maurice’s decline may have established a
breach, but it does not, without more, establish that the
commissions generated by that trading caused harm, given the
undisputed evidence that the trades during this period resulted
in net capital gains for Maurice’s account. Rather, to establish
harm independent of the gains, plaintiffs needed to show the
commissions were excessive relative to an industry benchmark,
standard, or methodology—that is, they need to prove churning.
(See Nesbit, supra, 896 F.2d at pp. 385–386.) They failed to do so.
The trial court did not err in granting nonsuit as to this theory.
(See Code Civ. Proc., § 581c, subd. (b) [“If it appears that the
evidence presented, or to be presented, supports the granting of
the motion [for nonsuit] as to some but not all of the issues
involved in the action, the court shall grant the motion as to
those issues and the action shall proceed as to the issues
remaining.”].)
2. The Court Erred in Granting Nonsuit as to
Plaintiffs’ Other Theories Based on Its
Erroneous Scope of Fiduciary Duty and Statute
of Limitations Rulings
Although not expressly stated in the nonsuit ruling, the
parties agree the trial court dismissed plaintiffs’ other breach of
fiduciary duty theories based on the court’s earlier ruling that

35
defendants’ fiduciary duty did not extend to the tax and estate-
planning conduct and that the challenged conduct fell outside the
compensable 2010 to 2012 period identified in the statute of
limitations ruling. In explaining its rationale for limiting the
scope of defendants’ fiduciary duty, the court stated defendants
“were not hired . . . nor paid” for tax advice or estate planning
and, therefore, they could not be charged with a fiduciary duty.
We conclude the court erred in resolving this issue as a matter of
law. Whether a professional’s fiduciary obligations extend
beyond the terms of a formal retention depends on the facts of the
relationship as a whole—including the parties’ course of dealing,
the extent to which the client was induced to rely on the
professional beyond the formal scope of the engagement, and
instances in which the professional actually rendered the broader
advice at issue—not solely on whether the professional was
formally engaged and compensated for the specific conduct. (See
Rosenthal v. Great Western Fin. Securities Corp. (1996) 14
Cal.4th 394, 425 (Rosenthal); Duffy v. Cavalier (1989) 215
Cal.App.3d 1517, 1535 (Duffy); Brown v. Wells Fargo Bank, N.A.
(2008) 168 Cal.App.4th 938, 960–962 (Brown).)
“ ‘Fiduciary’ and ‘confidential’ relationships are
relationships existing between parties to a transaction wherein
one party is duty bound to act with the utmost good faith for the
benefit of the other. Such a relationship ordinarily arises when
one party reposes a confidence in the integrity of the other, and
the other voluntarily accepts that confidence.” (Brown, supra,
168 Cal.App.4th at pp. 959–960.) “ ‘[B]efore a person can be
charged with a fiduciary obligation, he must either knowingly
undertake to act on behalf and for the benefit of another, or must
enter into a relationship which imposes that undertaking as a

36
matter of law.’ ” (City of Hope National Medical Center v.
Genentech, Inc. (2008) 43 Cal.4th 375, 386.) “An agent is a
fiduciary as a matter of law. [Citation.] A stockbroker is a
fiduciary, as well.” (Brown, at p. 960; Duffy, supra, 215
Cal.App.3d at p. 1531; Twomey v. Mitchum, Jones & Templeton,
Inc. (1968) 262 Cal.App.2d 690, 709 (Twomey).) “ ‘ “The essence
of a fiduciary or confidential relationship is that the parties do
not deal on equal terms, because the person in whom trust and
confidence is reposed and who accepts that trust and confidence
is in a superior position to exert unique influence over the
dependent party.” ’ ” (Brown, at p. 960.) Fiduciary obligations
“generally come into play when one party’s vulnerability is so
substantial as to give rise to equitable concerns underlying the
protection afforded by the law governing fiduciaries.” (City of
Hope, at p. 389.) “While it is impossible to identify a single set of
factors giving rise to a fiduciary relationship [citation], some
reasons generally used to demonstrate that a party to such a
relationship is vulnerable include advanced age, youth, lack of
education, ill health, and mental weakness.” (Brown, at p. 960.)
Here, the “question is not whether there is a fiduciary duty,
which there is in every broker-customer relationship; rather, it is
the scope or extent of the fiduciary obligation, which depends on
the facts of the case.” (Duffy, supra, 215 Cal.App.3d at p. 1535;
accord Rosenthal, supra, 14 Cal.4th at p. 425 [“Granting the
existence of a fiduciary relationship between securities brokers
and their customers, the scope of the duty varies with the facts of
the relationship.”].) Courts assessing that question look to the
facts of the parties’ course of dealing as a whole—not to any
single formal document. Relevant considerations include the
duration and regularity of the professional’s contact with the

37
client; the degree of control the professional exercised, or was
permitted to exercise, over the client’s affairs; whether the
professional was aware of circumstances—such as advanced age,
declining health, or diminished capacity—that made the client
particularly likely to rely on the professional’s guidance; whether
the professional had access to the client’s broader financial
information, beyond what the formal engagement required; and
whether the professional actually rendered advice, or performed
services, extending beyond the formal scope of the engagement.
(See Brown, supra, 168 Cal.App.4th at pp. 960–962; Duffy, at pp.
1534–1535; Twomey, supra, 262 Cal.App.2d at pp. 713–714, 717.)
No single factor is dispositive, and a professional’s formal
retention for a narrower purpose does not foreclose a finding that
the professional’s own conduct expanded the relationship beyond
it. (See, e.g., Twomey, at p. 717.) Where the underlying facts
bearing on the scope of a fiduciary duty are disputed or subject to
conflicting inferences, the issue is one for the trier of fact to
resolve. (See In re Marriage of Kamgar (2017) 18 Cal.App.5th
136, 144 [existence and scope of a fiduciary duty is reviewed de
novo as a question of law, but “to the extent the [trial] court’s
decision . . . ‘turned on the resolution of conflicts in the evidence
or on factual inferences to be drawn from the evidence,’ ” the
underlying factual determinations are reviewed for substantial
evidence].)
Brown is instructive. The Browns argued a bank
representative’s fiduciary duty extended beyond her formal role
to require her to explain an arbitration clause before they signed
a new account agreement. (Brown, supra, 168 Cal.App.4th at pp.
941–943.) The bank maintained no such duty could exist because
a broker’s fiduciary obligations do not arise until after an

38
agreement is executed, and do not require disclosures at the time
of execution. (Id. at p. 960.) The Brown court rejected that
argument because it “overlook[ed] the unique factual
circumstances of [the] case.” (Ibid.) As the reviewing court
recounted, the representative had been the Browns’ relationship
manager for six months before the transaction at issue; she knew
of the husband’s declining health and limited vision; she worked
biweekly at the Browns’ home; she had access to all of their
financial information and managed their financial paperwork;
she had introduced them to an estate attorney and an
accountant; she gave them investment advice; and she had urged
them to retain a particular broker to handle their portfolio. (Id.
at pp. 960–961.) None of this course of dealing was reflected in,
or required by, any formal engagement or fee arrangement.
Nevertheless, the Brown court found it sufficient to support a
finding that the representative “knowingly induced” a vulnerable,
elderly couple “to rely on [her] to handle their financial affairs,”
creating a fiduciary relationship. (Ibid.) Separately, the court
concluded the same evidence, together with proof the
representative had assisted with “even rudimentary financial
tasks” and sought to make the Browns comfortable at the
signing, was sufficient to support a finding that the scope of the
relationship embraced a duty to explain the contract’s material
terms. (Id. at pp. 961–962; see also Twomey, supra, 262
Cal.App.2d at p. 717 [rejecting argument that fiduciary
relationship could not encompass “duties owing to a discretionary
account because there was no written authorization for such an
account,” explaining the trier of fact “was entitled to look at the
substance and not the form of the transaction in determining the

39
duty owed by defendants to plaintiff with respect to the frequency
of the transactions in her account”].)
Plaintiffs contend “the nature and duration of [d]efendants’
fiduciary relationship with Maurice presented a prima facie case
that the scope of that fiduciary duty extended beyond mere
options trading” and embraced matters including allegedly
erroneous tax advice that Privitelli gave Maurice about gifts
made to his children and the retitling of trust assets that
required plaintiffs hastily to procure a split dollar life insurance
policy to mitigate estate taxes at significant additional expense.
Viewing the evidence in the light most favorable to plaintiffs, we
agree the trial court erred in determining the scope of the
fiduciary duty based solely on the formal terms of defendants’
hiring and compensation.
The evidence showed Privitelli communicated with Maurice
“pretty much daily” over their decades-long relationship, Maurice
was a “big client” of Privitelli’s, and Privitelli was Maurice’s
primary financial advisor “as far as his account value.” Privitelli
held a Certified Financial Planner certification throughout his
relationship with Maurice, and his training covered some estate-
planning matters, including training specific to marital and
residual trusts. Privitelli acknowledged that, under the CFP
designation, he owed a fiduciary duty independent of his role as
Maurice’s stockbroker, and he regularly identified himself by the
designation in written communications with Maurice, never
disclaiming that the designation applied to their relationship.
Privitelli also testified that he was allowed to give at least some
tax and estate planning advice to his clients at Morgan Stanley,
and he was the only professional advising Maurice who had a
CFP certification. Critically, in a conversation with the Trusts’

40
estate planning attorney, Privitelli admitted that he had in fact
given Maurice tax advice—counseling Maurice that there was no
need to file tax returns for gifts purchased for his children with
trust assets because the children were trust beneficiaries.
As with the evidence discussed in connection with the
financial elder abuse claim, we do not hold this evidence compels
a finding extending the scope of defendants’ fiduciary duty to tax
and estate planning matters. Rather, we hold only that it was
sufficient, when viewed in the light most favorable to plaintiffs,
to preclude resolving the question against them as a matter of
law. (See Carson, supra, 36 Cal.3d at p. 839.) The trial court
erred in resolving the scope question solely by reference to the
absence of a formal retention or payment for tax and estate-
planning services, without regard to evidence of the course of
dealing between Maurice and Privitelli. (See Brown, supra, 168
Cal.App.4th at pp. 960–962.)
The trial court also erred to the extent it excluded evidence
of these alleged breaches based on its erroneous statute of
limitations ruling. For the reasons already discussed, the
question of whether the statute of limitations bars plaintiffs’
breach of fiduciary duty claim based on this non-trading conduct
and, if so, whether plaintiffs are entitled to the benefit of delayed
accrual under the discovery rule, is a matter that must be
submitted to the jury. (See Fox, supra, 35 Cal.4th at pp. 806–
807; CACI Nos. 454 & 455.)

41
 DISPOSITION
The portion of the judgment dismissing the breach of
fiduciary duty claim based on alleged excessive trading is
affirmed. The judgment is reversed in all other respects, and the
matter is remanded to the trial court for further proceedings
consistent with this opinion. Plaintiffs Adam DeVone, Julia
Voce, Mario Frank Voce, and Voce Family Trust are awarded
costs.

HANASONO, J.

We concur:

ADAMS, P. J.

ASHWORTH, J.*

* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

42
Filed 10/29/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ADAM DEVONE et al., B339219

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV14477)
v.
ORDER CERTIFYING
MORGAN STANLEY & CO. OPINION FOR
LLC et al., PUBLICATION

Defendants and Respondents.

THE COURT:

The opinion in the above-entitled matter filed on October 8,
2026, was not certified for publication in the Official Reports.
Upon request by appellants and nonparties to this action, and
good cause appearing, it is ordered that the opinion shall be
published in the Official Reports.

1
 Pursuant to California Rules of Court, rule 8.1105(b), this
opinion is certified for publication.

ADAMS, P. J. HANASONO, J. ASHWORTH, J.*

* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

2