1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SELENE FINANCE, LP No. 2:23-cv-01124-DJC-CKD 12 Plaintiff, 13 v. ORDER

14 MALCOLM & CISNEROS,

15 Defendants. 16 17 This case involves Defendant law firm’s representation of Plaintiff in a judicial 18 foreclosure sale. Plaintiff brought claims against Defendant because the property in 19 question sold for $0.01 in the foreclosure sale, despite Plaintiff’s attempt to place a 20 bid. Plaintiff claims Defendant engaged in professional negligence, breach of 21 contract, and breach of their fiduciary duty. Defendant now moves for summary 22 judgment, arguing that Plaintiff’s professional negligence claim is untimely, and that 23 Plaintiff’s expert is not qualified to support their claims. (ECF No. 67.) 24 For the reasons stated below, Defendant’s Motion is denied. 25 BACKGROUND 26 I. Plaintiff’s Allegations 27 The underlying action involved the judicial foreclosure sale of residential 28 property located at 7507 Chula Vista Drive, in Citrus Heights, California. (First 1 Amended Complaint (“FAC”) (ECF No.1, Ex. 2) ¶ 1.) As alleged by Plaintiff, the 2 property was sold on November 20, 2019, in a judicial foreclosure sale. (Id. ¶ 25.) 3 During the judicial foreclosure sale, the property was sold to a third party for $0.01. 4 (Id.) Plaintiff intended to submit a credit bid for the property in the amount of 5 $205,800. (Id. ¶ 20.) Plaintiff alleges the property was sold for $0.01 because 6 Defendant failed to properly submit bidding instructions to the Sacramento County 7 Sheriff’s Office. (Id. ¶ 78.) According to Plaintiff, the bidding instructions submitted by 8 Defendant lacked the specificity needed for the Sheriff to understand Plaintiff was 9 making a credit bid, not requesting a minimum bid. (Id. ¶ 24.) Plaintiff alleges this 10 confusion was caused by Defendant’s negligence (id.), and that this negligence 11 caused the property to be sold for $0.01. (FAC ¶ 80.) 12 II. Undisputed Facts 13 Relevant to this Order, the judicial foreclosure sale at issue occurred on 14 November 20, 2019. (Reply to Separate Statement of Undisputed Facts (“Reply to 15 SSUF”) (ECF No. 72-1) ¶ 8.) On May 6, 2020, Selene filed a motion to set aside the 16 sale. (Id. ¶ 13.) Also on May 6, 2020, Klinedinst Firm filed a notice of association of 17 counsel in the underlying action. (Id. ¶ 12.) The motion to set aside was denied on or 18 about July 16, 2020. (Id. ¶ 14.) On August 20, 2020, Selene filed a notice of appeal 19 challenging the denial of the motion to set aside, which was unsuccessful. (Id. ¶ 15.) 20 Following the denial of Selene’s petition for review by the California Supreme Court, 21 judgment was finalized on March 3, 2023. (Id. ¶ 42.) 22 III. Procedural History 23 Plaintiff filed a verified complaint against the County of Sacramento in relation 24 to the foreclosure sale of the property on November 18, 2020, in Sacramento Superior 25 Court. (See ECF No. 1, Ex. 1.) Selene filed the FAC on April 23, 2023, which added 26 the firm as a defendant in three causes of action: breach of contract, professional 27 negligence, and breach of fiduciary duty. (FAC.) County Defendants removed the 28 matter to federal court on June 12, 2023. (Not. of Removal (ECF No. 1).) County 1 Defendants were dismissed from the action on July 9, 2024. (ECF No. 52.) Defendant 2 Malcolm & Cisneros filed the instant Motion for Summary Judgment on May 23, 2025. 3 (ECF No. 67), and briefing is complete. (Mot. (ECF No. 67-1); Opp’n (ECF No. 72-1); 4 Reply (ECF No. 73).) On July 10, 2025, the Court held oral argument on the Motion. 5 (ECF No. 78.) Shawn Krogh and Ryan Fillmore appeared for Plaintiff, with John 6 Sullivan appearing for Defendant. (Id.) The matter was taken under submission. (Id.) 7 EVIDENTARY OBJECTIONS 8 In ruling on summary judgment, the Court must only consider admissible 9 evidence and resolve evidentiary objections that are material to its ruling. Orr v. Bank 10 of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2010); Norse v. City of Santa Cruz, 639 11 F.3d 966, 973 (9th Cir. 2010). However, the Court need not consider objections made 12 on the ground that evidence is irrelevant, speculative, argumentative, or constitutes an 13 improper legal conclusion as these are “duplicative of the summary judgment 14 standard itself . . . .” Holt v. Noble House Hotels & Resort, Ltd, 370 F. Supp. 3d 1158, 15 1164 (S.D. Cal. 2019). Additionally, at the summary judgment stage, the Court is not 16 concerned with whether the form of evidence’s presentation is admissible but whether 17 the content is admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). 18 Thus, evidence that is not presented in an admissible form, such as statements that 19 constitute hearsay, may be considered provided the evidence could be provided in an 20 admissible, non-hearsay form at trial. Id. at 1036–37; see Pablo-Dejesus v. County of 21 Multnomah, No. 3:19-cv-01574, 2020 WL 8361919, at *4 (D. Or. Dec. 29, 2020). 22 Defendant’s first objection is to Amanda Harvey’s declaration filed in support of 23 Plaintiff’s Opposition. (ECF No. 76 at 1; see ECF No. 72-3.) Defendant objects that the 24 declaration was provided beyond the discovery timeline, and that the declaration 25 itself is not based on personal knowledge and the facts asserted are only supported 26 by hearsay. (ECF No. 76.) 27 A delay or late disclosure “may qualify as harmless as provided by Rule 37(c)(1) 28 if it does not deprive the opposing party of the opportunity for discovery of what a 1 witness or witnesses may say during trial testimony, or further discovery based on 2 information that comes to light during witness depositions.” Padilla v. Beard, No. 3 2:14-cv-01118-KJM-CKD, 2017 WL 1354565, at *3 (ED Cal. Apr. 12, 2017). When 4 considering if a disclosure is harmless, courts consider whether the disclosure would 5 require the court to amend the scheduling order to accommodate the disclosure. 6 Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008). Ms. 7 Harvey is a Corporate Appearance Representative for Selene Finance. (ECF No. 72-3 8 ¶ 2.) She was deposed in this capacity on January 7, 2025, in relation to this case. 9 (See ECF No. 72-5, Ex. 552). Defendant was not deprived of the opportunity to 10 discover what Ms. Harvey may say in her trial testimony because she was both Selene’s 11 corporate representative and was deposed in that capacity. The Court thus concludes 12 that the late disclosure of Ms. Harvey’s declaration is harmless. 13 As to the hearsay objection, in making her declaration, Ms. Harvey asserts that 14 she relied on both her personal knowledge and a review of Selene’s business records. 15 (ECF No. 72-3 ¶¶ 1, 3.) This review cures any personal knowledge and hearsay 16 objections to her declaration in the context of the summary judgment motion. The 17 objection is overruled. 18 Defendant’s second objection to Exhibit 653 concerns evidence that is not 19 relevant for the Court to consider in ruling on Defendant’s Motion. (ECF No. 76 at 6.) 20 This evidence has not been considered by the Court in reaching the conclusions 21 below, and the Court need not rule on these objections. See Holt, 370 F. Supp. 3d at 22 1164. 23 LEGAL STANDARD 24 Summary judgment may be granted when the evidence shows that there is no 25 genuine issue as to any material fact and the moving party is entitled to a judgment as 26 a matter of law. Fed. R. Civ. P. 56(c). The principal purpose of summary judgment is 27 to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 28 U.S. 317, 325 (1986). Therefore, the “threshold inquiry” is whether there are any 1 factual issues that could reasonably be resolved in favor of either party, or conversely, 2 whether the facts are so one-sided that one party must prevail as a matter of law. 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–52 (1986). However, “[o]nly 4 disputes over facts that might affect the outcome of the suit under the governing law 5 will properly preclude the entry of summary judgment.” Id. at 248. 6 In a summary judgment motion, the moving party must inform the court of the 7 basis for the motion and identify the portion of the record that it believes 8 demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 9 323. If the moving party meets its initial burden, the burden then shifts to the 10 opposing party, which must establish that there is a genuine issue of material fact. 11 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). To meet 12 their burden, parties must either cite to materials in the record supporting their 13 position or show that the materials cited do not establish the absence or presence of a 14 genuine dispute. Fed. R. Civ. P. 56(c)(1). 15 For the opposing party to succeed and avoid summary judgment, they “must 16 do more than simply show that there is some metaphysical doubt as to the material 17 facts.” Matsushita, 475 U.S. at 586. Rather, the opposing party must produce enough 18 evidence such that the specific facts set forth by the nonmoving party, coupled with 19 undisputed background or facts, are such that a reasonable jury might return a verdict 20 in its favor. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th 21 Cir. 1987). In other words, for the moving party to succeed, the court must conclude 22 that no rational trier of fact could find for the opposing party. Matsushita, 475 U.S. at 23 587. However, so as not to usurp the role of the jury, “[c]redibility determinations, the 24 weighing of the evidence, and the drawing of legitimate inferences from the facts are 25 jury functions,” and so the court draws all reasonable inferences and views all 26 evidence in the light most favorable to the opposing party. Liberty Lobby, 477 U.S. at 27 255; Matsushita, 475 U.S. at 587–88. 28 //// 1 DISCUSSION 2 I. Plaintiff’s Professional Negligence Claim under New York and California Law 3 Defendant disputes the timeliness of Plaintiff’s professional negligence claim. 4 (Mot. at 14.) Defendant’s alleged negligence took place during the sale of the 5 property in November 2019, and the underlying action was filed on April 23, 2023. 6 (FAC at 20.) Defendant contends that California law applies to the professional 7 negligence claim, and that this claim is untimely under California law, which supplies a 8 one-year statute of limitations. See Cal. Civ. Proc. Code § 340.6(a). Plaintiff contends 9 that New York law applies under the Legal Services Agreement, and that the claim is 10 timely under New York’s three-year statute of limitations. See N.Y. C.P.L.R. § 214(6). 11 The Court must thus determine which state’s law applies to Plaintiff’s professional 12 negligence claim. 13 A. Choice of Law 14 Plaintiff Selene Finance is a Delaware limited partnership whose principal place 15 of business is Texas. (Reply to SSUF ¶ 1.) Defendant Malcolm & Cisneros is a law 16 corporation incorporated in California with a principal place of business in Irvine, 17 California. (Id. ¶ 1.) Both parties entered into a Legal Services Agreement on March 18 31, 2016. (Id. ¶ 5; Legal Services Agreement (ECF No. 67-3, Ex. 10) at 1.) The Legal 19 Services Agreement contains a clause that states “[t]his Agreement shall be deemed 20 to be made in accordance with, and in all respects shall be interpreted, construed and 21 governed by the laws of the State of New York.” (Legal Services Agreement at 19.) 22 A federal court applies the forum state’s choice of law rules. Bridge Fund Cap. 23 Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1002 (9th Cir. 2010). Where there 24 exists a contractual choice of law and the claim falls within the scope of that 25 agreement, California utilizes a three-step choice of law analysis. See Nedlloyd Lines 26 B.V. v. Superior Ct. (Nedlloyd), 3 Cal. 4th 459, 466 (1992). The first step of the 27 Nedlloyd analysis is to determine whether the chosen state has a substantial 28 relationship to the parties or transaction, or if there is any other reasonable basis for 1 the choice of the law. Id. If neither requirement is satisfied, the inquiry ends and the 2 provision is not enforceable. Id. Second, if there is a substantial relationship or 3 reasonable basis, then the court must decide whether the chosen state’s law is 4 contrary to a fundamental policy of California. Id. The party seeking to invalidate the 5 choice of law provision must demonstrate what fundamental policy of California is 6 contravened by the chosen state’s law. See id. at 468. If the chosen state’s law is not 7 contrary to a fundamental policy of California, then the choice of law provision is 8 enforceable. Id. If the chosen state’s law is contrary to a fundamental policy, then the 9 court must determine whether California has a materially greater interest than the 10 chosen state in the determination of the issue. Id. at 466. The party seeking to 11 invalidate the choice of law provision must show that the chosen state’s law 12 contravenes a fundamental policy of California. Id. at 468. 13 As Plaintiff’s professional negligence claim concerns the propriety of 14 Defendant’s actions while acting under the agreement, the claim falls within the scope 15 of the Legal Services Agreement, thus the Court applies the Nedlloyd analysis. 16 1. Substantial Relationship or Reasonable Basis 17 First, the Court must decide whether the chosen state has a substantial 18 relationship to the parties or their transaction, or whether there is any other 19 reasonable basis for the parties’ choice of law. Nedlloyd, 3 Cal. 4th at 466. Here, 20 Selene Finance is incorporated in Delaware and is registered to do business in Texas, 21 New York, and California. (Reply to SSUF ¶ 1.) As a nationwide company, Selene has 22 a reason to choose New York state law to govern its contracts. This choice would 23 ensure uniformity in interpreting its contracts. Thus, Plaintiff has a reasonable basis for 24 selecting New York state law, which satisfies the first step of the Nedlloyd analysis. 25 See Cayanan v. Citi Holdings, Inc., 928 F. Supp. 2d 1182, 1195 (S.D. Cal. 2013) (citing 26 1- 800-Got Junk? LLC v. Superior Ct., 189 Cal. App. 4th 500 (2010)). 27 //// 28 //// 1 2. Contrary to Fundamental Policy – Actual Conflict 2 The second step of the Nedlloyd analysis is to determine whether the chosen 3 state’s law is contrary to a fundamental policy of California. Nedlloyd, 3 Cal. 4th at 4 466. If the foreign state’s law is not contrary to a fundamental policy of California, then 5 the choice of law provision is enforced. Id. If the chosen state’s law is contrary to a 6 fundamental policy of California, then the court must determine whether California 7 has a “‘materially greater interest than the chosen state in the determination of the 8 particular issue . . . .’” Id. (quoting Restatement Second of Conflict of Laws § 187, 9 subd. 2). 10 For the chosen state’s law to be contrary to a fundamental policy of California, 11 there must be an actual conflict between the two states’ laws. See Gen. Signal Corp. v. 12 MCI Telecomm. Corp., 66 F.3d 1500, 1506 (9th Cir. 1995). The fact that the two states’ 13 laws differ does not necessarily signify that the application of foreign state law would 14 contravene California public policy. Id. (citing Sarlot–Kantarjian v. First Pa. Mortg. Tr., 15 599 F.2d 915, 918 (9th Cir. 1979); Gamer v. duPont Glore Forgan, Inc., 65 Cal. App. 3d 16 280 (1976)). Here, for New York and California law to be in conflict on the issue of 17 timeliness, the professional negligence claim would have to be timely under one 18 state’s law and untimely under the other state’s law. See id. To move to the third step 19 of Nedlloyd, New York’s statute of limitations must also be contrary to a fundamental 20 policy of California. Nedlloyd, 3 Cal.4th at 462. 21 i. Continuous Representation 22 The continuous representation exception tolls the statute of limitations for 23 professional negligence claims in California. See Cal. Civ. Proc. Code § 340.6(a)(2). If 24 the exception is satisfied, then Plaintiff’s professional negligence claim is timely under 25 California law. Because the alleged negligence took place in 2019, and the claim was 26 filed in 2023, the professional negligence claim would be untimely if the exception is 27 not met. (See FAC.) 28 The test for whether an attorney continued to represent a client on the same 1 specific subject matter is an objective one. Lockton v. O’Rourke 184 Cal. App 4th 2 1051, 1063 (2010). An attorney’s representation is generally not completed until “the 3 agreed tasks or events have occurred, the client consents to termination or a court 4 grants an application by counsel for withdrawal.” Worthington v. Rusconi, 29 Cal. App. 5 4th 1488, 1497 (1994) (internal citation omitted). The continuity of representation 6 depends “not on the client's subjective beliefs, but rather on evidence of an ongoing 7 mutual relationship and of activities in furtherance of the relationship.” Id. at 1498. 8 California courts have held “so long as there are unsettled matters tangential to a 9 case, and the attorney assists the client with these matters, he is acting as his 10 representative” for the purposes of the continuous representation exception. 11 Gurkewitz v. Haberman, 137 Cal. App. 3d 328, 333 (1982). 12 Failing to formally withdraw as counsel is not sufficient on its own to satisfy the 13 continuous representation exception. Rubinstein v. Barnes, 195 Cal. App. 3d 276, 283 14 (1987). Similarly, a substitution of counsel alone is not conclusive of terminating the 15 representation. Nielson v. Beck, 157 Cal. App. 4th 1041, 1052 (2007). A client’s 16 awareness of the alleged negligence and hiring a malpractice attorney also does not 17 necessarily terminate the representation for purposes of the exception. See O’Neill v. 18 Tichy, 19 Cal. App. 4th 114, 120 (1993). 19 There is a genuine dispute of fact as to whether the continuous representation 20 exception is met. In his deposition, Charles Nunley, who works for Malcolm & 21 Cisneros, testified that he began working on the underlying matter in November 22 2019. (Nunley Dep. (ECF No. 72-5, Ex. 551) 62:22–25.) On April 27, 2020, Ian 23 Rambarran, who works for Klinedinst PC, the firm that filed the motion to set aside the 24 sale for Plaintiff, called Mr. Nunley to discuss the motion to set aside before it was 25 filed. (Rambarran Dep. (ECF No. 72-5, Ex. 555) 25:10–20.) Mr. Rambarran testified 26 that he believed Mr. Nunley was involved in the decision to file the motion to set 27 aside. (Id. at 26:2–5.) Mr. Rambarran stated that one of the declarations in support of 28 the motion to set aside relied on facts supplied by Mr. Nunley. (Id. at 32:7–11.) Mr. 1 Rambarran also recalled Mr. Nunley “editing something” related to the motion to set 2 aside. (Id. at 31:23–32:5.) On May 6, 2020, Klinedinst filed an association of counsel 3 and the motion to set aside the sale in Sacramento Superior Court. (Reply to SSUF 4 ¶¶ 12, 16.) Mr. Nunley attended the motion hearing, though he did not speak. 5 (Rambarran Dep. at 60:19-24.) 6 On August 20, 2020, a notice of appeal for the denial of the motion to set aside 7 was filed. (Reply to SSUF ¶ 15.) Mr. Nunley testified that he had reviewed the notice 8 of appeal. (Nunley Dep. at 85:10.) Mr. Rambarran similarly recalled Mr. Nunley 9 reviewing the opening brief for the appeal. (Rambarran Dep. at 68:8-10.) Mr. Nunley 10 stated that he consulted on “everything in the appeal”, including the reply brief. 11 (Nunley Dep. at 85:5-23.) Mr. Nunley indicated he provided some caselaw to Mr. 12 Rambarran to support their brief for the appeal (id. at 94:2-4), which is supported by 13 an email from October 31, 2020, that Mr. Nunley testified about during his deposition. 14 (Nunley Dep. at 103:25-104:25.) 15 On June 17, 2021, Selene’s opening brief was filed. (ECF 72-5, Ex. 426 at 205). 16 Mr. Nunley was listed on the certificate of service for that brief as an attorney for 17 Selene. (Id. at 253). On November 17, 2022, Mr. Rambarran sent the opinion from 18 the Court of Appeals in this case to Mr. Nunley. (Rambarran Dep. at 73:13-20.) A 19 remittitur was issued on March 3, 2023, which formally ended the appeal on the 20 motion to set aside the sale. (Reply to SSUF ¶ 42.) 21 Viewing the facts in the light most favorable to the non-moving party, there is 22 evidence that Mr. Nunley provided factual and legal input on the motion to set aside. 23 The evidence also supports the contention that he provided input on the appeal for 24 the motion. These facts create a genuine dispute over when Mr. Nunley’s final 25 involvement ended, and a reasonable jury could conclude that the continuous 26 representation exception applies. See Gurkewitz, 137 Cal. App. 3d at 333. 27 This conclusion is consistent with O’Neill v. Tichy, in which the court found there 28 was enough evidence for a triable issue regarding continuous representation even 1 though the plaintiff was aware of the malpractice and retained counsel to investigate 2 the matter. O’Neill, 19 Cal. App. 4th at 120-21. Despite retaining counsel, plaintiff 3 O’Neill continued to use Tichy to provide background information to the new lawyers 4 tasked with handling the underlying matter. Id. at 118. Providing facts and case input, 5 coupled with a dispute over Tichy’s role and when their formal involvement ended, 6 was sufficient for the court for find a triable issue on continuous representation. Id. at 7 121. 8 In their moving papers, Defendant relies on Foxborough v. Van Atta, 26 Cal. 9 App. 4th 217 (1994), in asserting that continuous representation does not apply. (See 10 Mot. at 20–21.) That decision is distinguishable in important ways. In Foxborough, 11 defendant Van Atta was hired as an attorney to deal with the underlying sale of a 12 property. Foxborough, 26 Cal. App. 4th at 223. For four years there was no contact 13 between the two parties. Id. In 1985, Van Atta wrote two letters attempting to secure 14 Foxborough’s annexation rights. Id. Also in 1985, Foxborough hired another attorney 15 to handle the litigation to secure the annexation rights. Id. From 1985 to 1987, there 16 was again no contact between Foxborough and Van Atta. Id. at 223, 229. In 1987, 17 Van Atta was retained as an expert witness by Foxborough’s new lawyers, id. at 223, 18 and his role had changed from a representative in the negotiations to an expert 19 witness. Id. at 229. The court held that the prolonged period of no contact and the 20 significant change in Van Atta’s role and responsibilities demonstrated that he did not 21 continue to represent Van Atta after August 1985. Id. 22 By contrast, here there is no indication that Mr. Nunley’s role substantially 23 changed during his work on behalf of Selene Finance. Rather, a reasonable jury could 24 conclude that Mr. Nunley acted as an attorney during all relevant periods. This is 25 distinguishable from the change in Van Atta’s role from an attorney to an expert 26 witness. The disputed facts indicate that Mr. Nunley had some role with regard to the 27 motion and the appeal, such that there is a genuine dispute over when this 28 representation ended. Foxborough is thus distinguishable. 1 Defendant further relies on the fact that Malcolm & Cisneros stopped billing 2 Selene for work on August 31, 2020, and that the parties entered into a one-year 3 tolling agreement on November 18, 2020, to support the lack of continuous 4 representation. (ECF 67-5, Ex. 24 at 54; ECF 67-5, Ex. 22 at 14 and Ex. 23 at 16.) 5 While certainly a relevant fact that a jury could consider, the existence of the tolling 6 agreement is not conclusive of whether Defendant’s representation was terminated. 7 The test for continuous representation is objective and relies on all the actions by the 8 Defendants regarding the underlying matter. See Lockton, 184 Cal. App 4th at 1063; 9 Worthington, 29 Cal. App. 4th at 1497. California courts have determined that 10 formally substituting counsel and hiring malpractice attorneys are not enough on their 11 own to conclusively defeat the continuous representation exception. See Nielson v. 12 Beck, 157 Cal. App. 4th 1041, 1052 (2007); O’Neill, 19 Cal. App. 4th at 120. For there 13 to be no triable issue to exist as to whether there was continuous representation, the 14 Defendant must show that the undisputed facts establish that Defendant did not 15 provide any advice or services related to the underlying matter. See Truong v. 16 Glasser, 181 Cal. App. 4th 102, 117 (2009). Here, the disputed facts do indicate Mr. 17 Nunley worked on the motion to set aside and the subsequent appeal. Notably, Mr. 18 Nunley’s involvement included work on the appeal after the tolling agreement was 19 signed. This is sufficient to establish a triable issue whether the continuous 20 representation exception is met. 21 ii. Contrary to a Fundamental Policy 22 Even if the claim is timely under New York law but not California law such that 23 there is a conflict, the Defendants would still have to show that such a conflict is 24 contrary to a fundamental policy of California. Nedlloyd, 3 Cal.4th at 466. In order to 25 resolve which law applies to these issues at trial, the Court proceeds to determine 26 whether a conflict would be contrary to California’s fundamental public policy, and 27 concludes it is not, and that New York law governs the statute of limitations for the 28 claim of professional negligence. 1 California courts have held that there is no bright line rule for determining what 2 constitutes a fundamental policy of California. See Discover Bank v. Superior Ct., 134 3 Cal. App. 4th 886, 893 (2005). However, other federal courts, when deciding whether 4 a particular law constitutes a fundamental policy of California, look to California 5 judicial decisions to determine whether a particular law or statute has historically been 6 viewed as constituting a fundamental policy of the state. See e.g., Tri-Union Seafoods, 7 LLC v. Starr Surplus Lines Ins. Co., 88 F. Supp. 3d 1156, 1168–70 (S.D. Cal. 2015) 8 (examining the long history of the California Supreme Court recognizing the state’s 9 interest in protecting the unique relationship between the insured and insurance 10 companies and concluding that New York’s law that does not allow for liability for 11 breach of good faith is contrary to a fundamental policy of California). 12 California courts have allowed contracting parties to both lengthen or shorten 13 the applicable statute of limitations. See Hambrecht & Quist Venture Partners v. Am. 14 Med. Int’l, Inc., 38 Cal. App. 4th 1532, 1547 (1995). Significantly, California courts 15 have found that parties agreeing to a foreign state’s longer statute of limitations does 16 not violate the state’s public policy. See Hatfield v. Halifax PLC, 564 F.3d 1177, 1183 17 (9th Cir. 2009); Lehman Bros. Holdings, Inc. v. First Priority Fin., Inc., No. 12-cv-02500- 18 JAM-KJN, 2013 WL 753495, at *3 (E.D. Cal. 2013). Courts have even found that the 19 foreign state’s statute of limitations is not contrary to fundamental policy when it is four 20 years longer than California’s statute. See J.P. Morgan Chase Bank, N.A. v. Shea 21 Mortg., Inc., No. 13-cv-09128-PSG-JCGX, 2014 WL 12696354, at *4 (C.D. Cal. 2014).1 22 The cases cited by Defendant do not apply the relevant Nedlloyd analysis and 23 are thus inapposite. Defendant first relies on Rustico v. Intuitive Surgical, Inc., 993 F.3d 24 1 Pre-Nedlloyd, one California court did find that a foreign state’s statute of limitations that was 11 years 25 longer than California’s statute did not apply. See Ashland Chem. Co. v. Provence, 129 Cal. App. 3d 790, 794 (1982). However, the court did not address whether it was contrary to a fundamental policy of 26 California because it was decided before Nedlloyd. Id. Instead, the court in Ashland was focused on whether the other state had a “substantial relationship” to the case. Id. Finding it did not, the court did 27 not reach whether the longer statute of limitations violated California policy. Id. Here, of course, the Court has concluded that the parties had a reasonable basis to choose New York law, and the 28 difference between the statutes of limitations is only at most two years. 1 1085 (9th Cir. 2021). (Mot. At 18.) In Rustico, rather than apply the Nedlloyd test that 2 governs this case, the court applied the government interest approach because there 3 was no contract with a choice of law provision. Rustico, 993 F.3d at 1091. In contrast 4 to the Nedlloyd approach, the governmental interest approach used in Rustico looks 5 at comparative impairment of the states’ interests, not if the foreign state’s law is 6 contrary to a fundamental policy of California. Id. Rustico is thus not applicable to this 7 case. Defendant also cites to Deutsch v. Turner Corp., which similarly did not address 8 a choice of law provision in a contract. See Deutsch, 324 F.3d 692 (9th 2003). 9 Defendant has failed to meet their burden to show that New York’s law is 10 contrary to a fundamental policy of California. New York’s statute of limitations is two 11 years longer than California’s statute of limitations for legal malpractice claims. See 12 Cal. Civ. Proc. Code § 340.6(a); N.Y. C.P.L.R. § 214(6). As detailed above, California’s 13 statute also contains a tolling provision that allows for a longer statute in certain 14 circumstances. Cal. Civ. Proc. Code § 340.6(a)(2). The cases cited above indicate that 15 a two-year discrepancy between statutes of limitation — and possibly less where 16 California’s continuous representation exception applies — does not sufficiently 17 establish that the foreign state’s law is contrary to a fundamental policy of California. 18 Therefore, even if the claim is timely under New York law and not timely under 19 California law, the choice of law provision is enforceable because New York law does 20 not contravene a fundamental policy of California.2 21 2 Defendant does not address whether New York substantive legal malpractice law is in conflict with 22 California legal malpractice law. Historically, California courts have found that two states’ laws are in conflict if one state allow for liability while the other state’s law would not permit liability. See Bernhard 23 v. Harrah's Club, 16 Cal. 3d 313 (1976). If the states’ laws are identical then there is no conflict. See Wash. Mutual Bank, FA v. Superior Ct., 24 Cal. 4th 906, 920 (2001). Under both California and New 24 York law, to prove a claim of legal malpractice, the plaintiff must show breach of the attorney’s duty of care, the breach was the proximate cause of the harm, and loss or damages from the negligence. See 25 Carlton v. Quint, 77 Cal. App. 4th 690, 699 (2000); Cummings v. Donovan 36 A.D.3d 648, 648 (2007). This Court does not rule on whether the substantive law is in conflict, because the Defendant failed to 26 raise that argument. Nedlloyd requires that the conflicts analysis be applied to each claim. See Zinser v. Accufix Rsch. Inst., Inc., 253 F.2d 1180, 1188 (9th Cir. 2001). Since other conflicts of law were not 27 raised, the Court does not decide choice of law for the other claims, and nothing in this Order or this footnote specifically should be construed as the Court taking a position on the matter. Parties can raise 28 those issues if applicable in preparation for trial. 1 II. Plaintiff’s Use of Lawrence H. Jacobson as an Expert Witness. 2 Defendant contends that Plaintiff’s expert witness is not qualified to give expert 3 testimony in this matter. (Mot. at 24.) In the first amended complaint, Plaintiff alleges 4 both a breach of contract claim and a professional negligence claim against 5 Defendant. (FAC ¶ 23, 19.) Defendant contends Plaintiff’s expert is not qualified to 6 give expert testimony for either claim. (Mot. at 24.) The breach of contract claim does 7 not require expert testimony. See Klamath Water Users Protective Ass'n v. Patterson, 8 204 F.3d 1206, 1210 (9th Cir. 1999). Furthermore, Plaintiff’s expert is qualified to give 9 expert testimony on the applicable duty of care. 10 A. Breach of Contract Claim 11 Defendant contends that Plaintiff’s breach of contract claim requires qualified 12 expert testimony. As discussed below, the Court finds that Mr. Jacobson is qualified 13 to give expert testimony in regard to the professional negligence claim. Regardless, 14 expert testimony is not required for a breach of contract claim. See Klamath Water 15 Users Protective Ass'n, 204 F.3d at 1210 (“Contract terms are to be given their 16 ordinary meaning, and when the terms of a contract are clear, the intent of the parties 17 must be ascertained from the contract itself.”). As such, Plaintiffs may proceed on their 18 breach of contract claims regardless of their ability to present qualified expert 19 testimony. 20 With that said, Plaintiff cannot rely on new, previously unidentified provisions of 21 the contract as a theory of liability. See Fox v. Good Samaritan L.P., 801 F. Supp. 2d 22 883, 896 (2010). In opposing Defendant’s Motion for Summary Judgment, Plaintiff 23 identified a new provision of the Legal Services Agreement, article 2, section 2.2, that 24 they allege Defendant breached. (Opp’n at 22.) This is not a section of the contract 25 that was previously identified. (See FAC ¶ 72.) In an opposition to a Motion for 26 Summary Judgment, Plaintiff cannot assert new or different grounds for liability 27 beyond those enumerated in the pleading. See Patmot Motor Werks, Inc. v. Gateway 28 Marine, Inc., No. 96-cv-02703-TEH, 1997 WL 811770, at *5 (N.D. Cal. Dec. 18, 1997). 1 In Patmont Motor Werks, Inc., the plaintiff asserted that the defendant had breached 2 the contract by failing to properly behave himself. Id. In the complaint, the plaintiff 3 did not raise that allegation but instead alleged that the defendant breached the 4 contract by improperly using a mark in his email address. Id. The court held that the 5 plaintiff could not rely on this new theory to survive the motion for summary judgment. 6 Id. The same is true here. Plaintiff cannot rely on an alleged breach of article 2, 7 paragraph 2.2 to survive the Motion for Summary Judgment. However, for the 8 reasons stated above, Plaintiff’s breach of contract claim, as alleged in the FAC, is still 9 viable. 10 B. Professional Negligence Claim 11 Defendant contends that Plaintiff’s expert witness is not qualified to opine on 12 the applicable standard of care for Plaintiff’s professional negligence claim. (See Mot. 13 at 24.) Defendant asserts that Plaintiff’s expert, Lawrence Jacobson, does not have 14 sufficient specialized knowledge on judicial foreclosure sales to be a valid expert 15 witness in this case. (See id.) The Court finds, however, that testimony of an expert 16 with knowledge of judicial foreclosure sales specifically is unnecessary for Plaintiff to 17 state a claim for professional negligence. Based on the record before the Court, Mr. 18 Jacobson is qualified to give expert testimony on the applicable standard of care. 19 Federal Rule of Evidence 702 requires that expert witnesses have scientific, 20 technical, or other specialized knowledge that will help determine a fact at issue. See 21 Fed. R. Evid. 702. Trial courts must decide whether an expert has sufficient 22 specialized knowledge to assist jurors. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 23 156 (1999). In legal malpractice cases, expert testimony is required to establish 24 applicable the standard of care. See Vaxiion Therapeutics Inc. v. Foley & Lardner LLP, 25 593 F. Supp. 2d 1153, 1165 (S.D. Cal. 2008) (citing Lipscomb v. Krause, 87 Cal. App. 26 3d 970, 975 (1978)). 27 When a lawyer holds himself out as a specialist in an area of law, then he his 28 bound by the skill and diligence other specialists would exercise. Wright v. Williams, 1 47 Cal. App. 3d 802, 810 (1975). If a malpractice action is brought against such a 2 specialist and the claim is related to his expertise, “then only a person knowledgeable 3 in the specialty can define the applicable duty of care and opine whether it was met.” 4 Id. at 810–11. For example, if a lawyer holds himself out as a maritime law expert, and 5 an action is brought alleging a reasonably prudent maritime specialist would have 6 informed their client of certain repercussions, then an expert in maritime law is 7 required to opine on the applicable standard of care. See generally id. Furthermore, 8 if a malpractice claim alleges unethical behavior, then the expert witness must have 9 some training in legal ethics to opine on the applicable standard of care. See Vaxiion 10 Therapeutics Inc., 593 F. Supp. 2d at 1163. 11 Mr. Jacobson has been an attorney in California for 57 years. (ECF No. 72-6, Ex. 12 651 at 3.) He has provided expert testimony in about 192 cases. (Jacobson Dep. (ECF 13 No. 72-5, Ex. 558) 44:6–8.) Approximately a third of those cases have concerned legal 14 malpractice issues. (Id. at 45:23–46:3.) Mr. Jacobson states he is familiar with the 15 mechanics of judicial foreclosure sales but would not consider himself an expert in 16 that field. (Id. at 72:20-73:3.) In his expert report, Mr. Jacobson opines that 17 Defendant’s services fell below the standard of care because they failed to educate 18 themselves on judicial foreclosure procedures, failed to properly supervise a law clerk, 19 and failed to do their due diligence in preparing and following through on the 20 bidding instructions. (ECF No. 72-6, Ex. 651 at 5–6). Mr. Jacobson is qualified to give 21 these opinions based on his legal training and experience. He is thus qualified to give 22 expert testimony on the applicable standard of care for Plaintiff’s professional 23 negligence claim. 24 Plaintiff did not bring a malpractice action based on Defendant’s failure to 25 adhere to the standard of care specific to judicial foreclosure actions. (See FAC ¶ 76.) 26 Rather, Plaintiff generally alleges Defendant failed to exercise reasonable care and 27 skill in performing legal services for Selene. (Id.) Specifically, in their complaint, 28 Plaintiff points to Defendant’s failure to inform Plaintiff about the repercussions of the 1 | underlying sale. (Id. 91.79.) This alleged malpractice includes conduct around the 2 | judicial foreclosure sale, but is not necessarily limited to the mechanics of the judicial 3 | foreclosure sale. The alleged negligence concerns Defendant's failure to educate 4 | themselves on judicial foreclosure procedures, failure to properly supervise a law 5 | clerk, and failure to do their due diligence in preparing and following through on the 6 || bidding instructions. (ECF No. 72-6, Ex. 651 at 5-6.) This alleged negligence is not 7 || tied to the mechanics of a judicial foreclosure, but instead is limited to general issues 8 | of negligence. This is distinguishable from the claim made in Wright, which required 9 || aspecialist in maritime law to opine on the applicable duty of care. See Wright, 47 10 | Cal. App. 3d at 810. 11 Since Mr. Jacobson is qualified to give expert testimony on the applicable 12 | standard of care, Plaintiff has presented evidence from which they can establish a 13 | claim for professional negligence. That said, nothing in this Order forecloses the 14 | possibility of future motions in limine to limit the scope of Mr. Jacobson’s testimony. 15 | For the purposes of this Motion, however, is he qualified to provide expert testimony 16 | sufficient to support Plaintiff's claims. 17 CONCLUSION 18 For the reasons stated above, IT |S HEREBY ORDERED that Defendant's Motion 19 | for Summary Judgment (ECF No. 67) is DENIED. 20

IT IS SO ORDERED.

22 | Dated: _August 18, 2025 Donel J Cob tto— Hon. Daniel alabretta 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 18