Baker v. Pacific Oaks Education Corp. ( 2024 )

Filed 2/21/24 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MATEO BAKER, a Minor, etc., et al., B320814
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. GC050404)
v.
PACIFIC OAKS EDUCATION ORDER MODIFYING OPINION
CORPORATION, AND DENYING PETITION FOR
REHEARING
Defendant and Appellant. [No change in judgment]
The Court:
Plaintiffs’ petition for rehearing, filed February 9, 2024, is
hereby denied.
It is further ordered that the opinion filed herein on
January 25, 2024, is modified as follows:
On page 30 of the opinion, first full paragraph, delete the first
sentence:
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts II, III, IV, V, and VI of the Discussion section.
On appeal, plaintiffs do not challenge the trial court’s conclusion
that the services Pacific Oaks provided in the infant/toddler
program fall outside the regulatory definition of care and
supervision.
Replace the deleted portion with the following:
Plaintiffs contend a program description in Pacific Oaks’s
handbook and testimony from McComas and Rosenberg showed
Pacific Oaks offered “care and supervision” to children in the
infant/toddler program. The evidence does not support this
conclusion. Neither the language in the handbook regarding the
program’s attention to “child/child interactions,” nor the
administrators’ testimony about children playing with their
parents onsite or staff members enrolling their children in Pacific
Oaks programs, undermined the trial court’s conclusion that the
infant/toddler program did not provide “care and supervision” as
the regulation defined the term.
On page 30 of the opinion, first full paragraph, the word
“Instead” and the following comma are deleted and a new
paragraph break is inserted. “Plaintiffs” is capitalized and the
word “also” is inserted between the words “Plaintiffs” and
“argue.”
On page 42, at the end of first full paragraph, a footnote is
inserted with the following language:
On appeal, Plaintiffs contend the handwritten portions of the
sign-in sheets were admissible because Rosenberg admitted the
truth of the hearsay statements when she testified that school
personnel “could refer to the sign-in sheets” to conduct a head
count. However, plaintiffs did not assert this argument in the
trial court. They are precluded from arguing a new theory of
2
admissibility for the first time on appeal. (Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 282–283.)
All subsequent footnotes are renumbered accordingly.
There is no change in judgment.
LAVIN, Acting P. J. EGERTON, J. ADAMS, J.
3
Filed 1/25/24 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MATTEO BAKER, a Minor, etc., B320814
et al.,
(Los Angeles County
Plaintiffs and Appellants,
Super. Ct. No. GC050404)
v.
PACIFIC OAKS EDUCATION
CORPORATION,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Maren E. Nelson, Judge. Affirmed.
Shenoi Koes, Allan A. Shenoi, Daniel J. Koes, and
Benjamin Caryan, for Plaintiffs and Appellants.
Alston & Bird, Terance A. Gonsalves and Jesse Steinbach,
for Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts II, III, IV, V, and VI of the Discussion section.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiffs, as individuals and on behalf of a class of parents,
sued Defendant Pacific Oaks Children’s School (Pacific Oaks or
the school), alleging the school failed to comply with child care
facility licensing requirements.1 Pacific Oaks’s license set a
capacity limit of 77 children in the school’s preschool programs.
Plaintiffs allege Pacific Oaks enrolled more children than the
license allowed, violating section 101161, subdivision (a) of
title 22 of the California Code of Regulations.2 Although
plaintiffs asserted class claims under the False Advertising Law
(Bus. & Prof. Code, § 17500 et seq.), multiple prongs of the Unfair
Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), and
for common law fraud, a bench trial proceeded only on the class
UCL claim based on alleged unlawful conduct.
The trial court rejected plaintiffs’ argument that
enrollment numbers exceeding the capacity limit in the license
established a violation of section 101161, subdivision (a).
Instead, the court concluded plaintiffs could prove a violation
only by showing more than 77 children were in attendance at the
school at any one time during the class period. Plaintiffs
challenge this ruling on appeal, as well as several pre-trial
rulings, orders regarding class certification, evidentiary rulings
1 The named plaintiffs are Matteo Baker, a minor child, by
and through his guardian ad litem Mark Baker; Leo Valadez, a
minor child, by and through his guardian ad litem Sharal
Churchill; Mark Baker; Yesika Baker; the Estate of Sharal
Churchill; and Karen Keen (collectively plaintiffs).
2 All further undesignated regulatory references are to title
22 of the California Code of Regulations.
2
during trial, and the court’s other substantive rulings on
questions of law.
In the published portion of this opinion, we conclude that
under the circumstances of this case, attendance, not enrollment,
was the correct measure of “capacity.” In the remainder of the
opinion, we affirm the trial court’s challenged orders regarding
the class definition, discovery, standing, and the court’s
evidentiary rulings.
FACTUAL AND PROCEDURAL BACKGROUND
Pacific Oaks provides early childhood education to children
and families at a campus in Pasadena. The school’s programs
include “part-time classes in the morning or afternoon as well as
full day childcare programs for families working outside their
home.” Part-time programs take place during morning or
afternoon intervals in different yards on school grounds.
DSS License and Plaintiffs’ Original Complaint
In March 1996, the Department of Social Services (DSS)
issued a license to “Pacific Oaks College & Children’s Programs
to operate and maintain a Day Care Center” (the DSS license).3
The license provided: “Licensee prefers to serve children 2-5, M-F
8:00 – 6:00 p.m. Limitations in capacity per fire clearance are as
follows: Boat Class– 16, Bamboo Class– 15, La Loma– 26,
3 Health and Safety Code section 1596.81, subdivision (a)
authorizes the DSS to issue rules or regulations necessary to
carry out the California Child Day Care Facilities Act. (Health &
Saf. Code, § 1596.70 et seq.) The DSS, through its Community
Care Licensing Division (CCLD), is also responsible for issuing
licenses to day care and other child care facilities, monitoring
compliance, and administering corrective action for violations of
licensing laws and regulations. (See Health & Saf. Code,
§ 1596.816.)
3
Peppers– 23.” The license set a “total capacity” of 77. DSS also
issued a license permitting “Pacific Oaks College & Children’s
Programs to operate and maintain a school-age [day care]
center,” with a total capacity of 24. At some point, Pacific Oaks
requested that DSS cancel the license for the school-age day care
program, stating that the program had “not been in use for 10
years plus.” It is not clear from the record if DSS canceled the
license.
In October 2012, Matteo Baker sued Pacific Oaks; the then
Executive Director, Jane Rosenberg; and an individual teacher.
The complaint alleged that due to the defendants’ negligence and
failure to properly supervise Matteo, he wandered alone into a
playground and suffered a “near-death” incident that left him
with severe and ongoing psychological injuries. The complaint
asserted causes of action for negligence and statutory and
regulatory violations.
In July 2013, Pacific Oaks applied to increase the preschool
programs’ capacity under the DSS license to 140. DSS denied the
application, indicating Pacific Oaks failed “to provide satisfactory
evidence that [it could] meet or conform to licensing
requirements.”4 DSS stated Pacific Oaks had “demonstrated the
inability to comply with statutes and/or regulations, as evidenced
on visits dated 08/2/11, 8/18/11, 5/23/13, and 6/7/13” and listed
4 DSS cited the following regulations in its letter:
section 101229, subdivision (a)(1); section 101223,
subdivision (a)(2); section 101212, subdivision (a)(1)(B); and
section 101206, subdivision (a)(1)(e). The first two provisions
concern supervision and “personal rights,” and do not mention
capacity. Neither the current Code of Regulations, nor the code
in effect in 2013, appears to include a section 101212, subdivision
(a)(1)(B) or section 101206, subdivision (a)(1)(e).
4
“some of the regulatory issues and statutes which were not
complied with” as “conduct inimical,” “reporting requirements,”
“neglect lack of care and supervision,” and “personal rights.” The
denial letter concluded Pacific Oaks could “only operate with the
capacity of 77 preschool age children that [was] noted on [its]
current license.”
In August 2013, Pacific Oaks’s then Executive Director,
Jayanti Tambe, wrote an e-mail informing parents that in May
2013, “the Children’s School administration was notified by the
Department of Social Services Community Care Licensing
Division (CCLD) that our license did not reflect the actual
number of students on campus. An application to request an
increase in the license to accommodate our total planned student
population was submitted for review.” The message further
notified parents that because DSS had denied Pacific Oaks’s
application, the school would “not be able to provide a space for
[their] child(ren)” for the 2013–2014 school year. The record does
not indicate which families received the e-mail.
In October 2013, Pacific Oaks again applied to increase the
preschool programs’ license capacity to 140. DSS granted the
application in April 2014.
The Class Action Claims
In August 2014, plaintiffs filed the operative second
amended complaint, adding two causes of action that were
asserted on behalf of a putative class. Plaintiffs alleged Pacific
Oaks was, among other things, “not properly licensed for the
number of children it had accepted or would accept, but . . . was
operating at overcapacity and in violation of its existing license,”
and the school had knowingly concealed this information from
plaintiffs and class members. Plaintiffs also claimed Pacific Oaks
5
falsely advertised that it had “ ‘state-of-the-art’ ” play yards and
facilities.
The first cause of action asserted a common law fraud
claim, alleging that had class members known Pacific Oaks was
operating in violation of the DSS license, with facilities that were
not truly “state-of-the-art,” they would not have selected Pacific
Oaks or paid tuition. The second cause of action asserted claims
of unfair competition and false advertising under Business and
Professions Code sections 17200 and 17500. The complaint
alleged that “[b]ut for the unfair competition and false
advertising alleged . . . Plaintiffs and the members of the Class
would not have paid tuition to Pacific Oaks because there were
numerous comparable, alternative, tuition-free child care centers
or public schools that were actually operating within capacity of
their licenses, and providing students with a safe environment
that were available” at the time plaintiffs’ and class members’
children attended Pacific Oaks. Plaintiffs requested class
certification, damages, and restitution. In November 2014, the
trial court stayed the individual negligence claims.
In June 2018, the trial court certified a “class consisting of
parents and guardians of students who attended Pacific Oaks
School and paid tuition during the period January 1, 2007
through August 31, 2013, to proceed as to the UCL and [false
advertising law] claims premised on illegal or fraudulent conduct
only.” The court denied certification of plaintiffs’ common law
fraud class claim, finding each class member’s actual reliance
would require an individualized inquiry and individualized proof.
In December 2019, the trial court partially granted Pacific
Oaks’s motion to decertify the class. The court decertified the
false advertising law claim and the UCL claim based on a fraud
6
by misrepresentation theory. The court allowed the class UCL
claims based on fraud by omission and unlawful conduct to
proceed. However, the court found the class definition was
overbroad because it included parents and guardians of children
who were enrolled in Pacific Oaks programs the DSS license did
not cover, including Pacific Oaks’s Infant/Toddler/Parent
program (infant/toddler program) and the School Age Child Care
program (school age program). The court redefined the class,
limiting it to “ ‘[p]arents and guardians of former Pacific Oaks[ ]
students who paid tuition from January 1, 2007 through August
2013 and whose students were enrolled in any “Pre-School
Program” offered by Pacific Oaks during that time period.’ ”
In February 2020, the parties filed motions for summary
adjudication. Plaintiffs sought summary adjudication of the UCL
class claims for unlawful and fraudulent conduct. They argued
the record established Pacific Oaks violated the DSS license
capacity limit because it was undisputed that the school enrolled
more than 77 students each year during the class period.
The court denied plaintiffs’ motion in September 2020. The
court found the regulations governing child care facilities did not
support plaintiffs’ theory that Pacific Oaks’s aggregate annual
enrollment of more than 77 children violated the DSS license
capacity limit. The court rejected plaintiffs’ argument that the
term “capacity,” as used in the regulations, meant the number of
children enrolled at the facility. The court further concluded
plaintiffs’ proposed definition of capacity was inconsistent with
the plain language of section 101179, subdivision (a), which
defines capacity as “the maximum number of children that can be
cared for at any given time.” The court reasoned that whether
capacity was exceeded “depend[ed] upon the time of
7
measurement,” which was “consistent with Pacific Oaks’
operations,” including “different programs which different
students attend at different times.”
The trial court granted summary adjudication of plaintiffs’
individual and class UCL claims based on fraud by omission and
the false advertising law claims.5 The sole remaining class claim
was the UCL cause of action based on alleged unlawful conduct.
The court bifurcated trial to allow the UCL class claim to proceed
first to a February 2021 bench trial.
Plaintiffs had not indicated during discovery or the
litigation of pre-trial motions that they would seek to offer
evidence of Pacific Oaks’s daily attendance to prove their case.
However, prior to the start of trial, and in light of the trial court’s
ruling that enrollment numbers would not establish a violation of
the DSS license, plaintiffs sought to obtain Pacific Oaks’s records
of daily attendance or “daily enrollment” by serving a notice to
attend trial and bring documents on Pacific Oaks’s custodian of
records. Litigation ensued over the notice to attend and related
motions to compel and quash. Eventually, on the first day of
trial, the trial court ordered Pacific Oaks to produce “current
rosters” and daily attendance records.
5 Plaintiffs filed a petition for writ of mandate in this court
challenging the trial court’s order denying summary adjudication
in their favor. (Baker et al. v. Superior Court of Los Angeles
County et al. (Oct. 15, 2020, B307819).) We denied the petition.
8
Trial of the Class Claim6
At trial, plaintiffs offered the testimony of several
witnesses, including two former Pacific Oaks executive directors.
Jane Rosenberg was Pacific Oaks’s Executive Director from 1999
to 2013. Rosenberg was not involved in the application process
for the DSS license. She testified that DSS did not suspend or
revoke Pacific Oaks’s license for any reason during the class
period. She also testified that it “was never the case” that every
child in the school was in attendance every day. She explained,
“You never have a hundred percent of your students in
attendance on a given day. It just doesn’t happen.” Rosenberg
indicated Pacific Oaks did not have a separate license for the
infant/toddler program “because there was an adult
accompanying every child the entire time the child was in the
program.”
Rosenberg testified that “the only way you would know for
certain on a given day at a given time how many children are
there would be to refer to the sign-in sheets. Parents were
required to sign their children in, when they dropped them off to
school each morning, and sign them out at the end of the day
when they picked them up. [¶] So if you looked at a sign-in sheet
6 The trial was conducted remotely. The court heard witness
testimony over four days in February 2021. After the parties
conditionally rested, the trial court set a schedule for further
briefing on the admissibility of documentary evidence and
submission of the parties’ closing briefs. In April 2021, the trial
court ruled on the admissibility of the challenged documentary
evidence. In August 2021, the court held a further hearing on
evidentiary issues and the parties gave their closing arguments.
In November 2021, the trial court issued a proposed statement of
decision and, in April 2022, a final statement of decision.
9
for a particular day, you would know exactly how many children
were on campus at a given time.” According to Rosenberg, no one
at Pacific Oaks checked the sheets to see how many children were
present at a time “because we handle that by making sure that
the way we scheduled the programs, that they would only have a
certain amount of children, that we could limit the children on
the campus by the way we scheduled the various programs.”
Teachers gave the completed sign-in and sign-out sheets (sign-in
sheets) to Rosenberg’s administrative assistant at the end of
every month. Pacific Oaks “always had attendance records”
available to calculate the number of students on campus.
DSS conducted unannounced site visits at Pacific Oaks to
ensure the facilities were safe for children. Rosenberg testified
DSS made one such visit in May 2013, in response to a complaint.
During the visits, DSS conducted “a census count of how many
children were present on the campus at that time” and wrote the
results in a “facility evaluation report.” Six DSS facility
evaluation reports from visits occurring during the class period
were admitted into evidence. Each report listed a census count
below the licensed capacity of 77. Rosenberg denied that Pacific
Oaks ever provided care to more children than the DSS license
allowed during her tenure.
The testimony of Pat McComas, the Executive Director of
Pacific Oaks from March 2014 to July 2016, was more
contradictory. Plaintiffs offered McComas’s statements from an
earlier deposition and declarations Pacific Oaks submitted in
support of pre-trial motions. When asked at her deposition
whether it was her understanding that when Pacific Oaks
applied to increase its capacity from 77 to 140, it “was aware that
it needed to make that change to have its existing operation
10
comply with DSS requirements,” McComas answered, “I would
assume so, yes.” However, when describing the license capacity
limit at her deposition, McComas testified, “the 77 means at one
time. So that was the facility’s limit. But there could be
additional children there in the afternoon.” When plaintiffs’
counsel asked McComas about aggregate enrollment numbers,
McComas testified the numbers “would include our infant/toddler
program, which is not included in our licensing.” She also
testified some students were “counted twice” in the aggregate
number because “[t]here’s a morning program and there’s also an
afternoon program called [School Age Child Care] . . . for an after-
school care program.” Yet, she appeared to concede that in
August 2013, Pacific Oaks was operating “in excess of its
capacity.”
In a 2016 declaration, McComas attested, “While it is true
the school was (unintentionally) operating in excess of its
capacity, there is no evidence that student safety and well-being
was impacted.” However, in a 2020 declaration, McComas
attested that the statement in her 2016 declaration about
overcapacity was based on plaintiffs’ counsel’s instruction during
her deposition that “overcapacity” meant more students enrolled
than stated on the school’s license and made no distinction
between students enrolled and students in attendance. McComas
testified at trial that she was not sure if she “was referring to
enrollment or attendance” in her 2016 declaration, but that
between her deposition and her 2016 declaration nothing had
changed her own understanding that “capacity” meant “at any
one time.”
At trial, McComas testified that during her deposition, “it
was not at all clear that we ha[d] an agreed-upon definition of
11
what we were using about capacity. [¶] I said what I thought.
You [Plaintiffs’ counsel] said what you thought, but we did not
have a stated, shared, agreed-upon definition. [¶] Sorry. So it
was confusing to me, honestly.” She indicated she did not review
any attendance records before her deposition and had not been
asked to do so. She also reaffirmed statements from her 2020
declaration that plaintiffs’ counsel did not ask her about
attendance on any given day during her deposition.
McComas admitted she did not become Executive Director
until 2014 and therefore had no personal knowledge of what had
occurred at Pacific Oaks between 2007 and 2013. However,
according to McComas, DSS did not require Pacific Oaks to meet
any conditions before it approved the increase in capacity in April
2014.
Plaintiffs asked the court to admit sign-in sheets Pacific
Oaks had located for the 2009–2013 school years. Following
briefing on the admissibility of the documents, the trial court
found “the sign-in sheets admissible as party admissions as to the
number of children expected in each program on the date
specified on the sign in sheets. The signatures and sign in/out
times are not admissible.” The court ordered Pacific Oaks to
produce the records within five days of the order.7
In June 2021, plaintiffs submitted their closing trial brief,
which included a declaration from plaintiffs’ counsel, Allan A.
7 Pacific Oaks gathered the sign-in sheets in response to the
notice to attend trial and bring documents. The custodian of
records testified at trial. However, because the trial was
conducted remotely, plaintiffs did not have physical access to the
documents at trial. Pacific Oaks further argued plaintiffs were
not entitled to a copy of the records until the court admitted them
into evidence.
12
Shenoi (Shenoi Declaration). Shenoi attested that exhibits A and
B to the declaration “offer[ed] a general compilation of [the]
6,510” sign-in sheets Pacific Oaks produced. The compilations
consisted of charts noting the number of students listed on each
sign-in sheet by hour for each Pacific Oaks preschool program.
Pacific Oaks moved to exclude the Shenoi Declaration. In August
2021, the court granted Pacific Oaks’s motion, finding: 1) the
declaration was hearsay without exception, and therefore not
admissible under the secondary evidence rule; 2) Shenoi was
acting as an advocate-witness through the declaration, in
violation of the rules of professional conduct; and 3) the
declaration was untimely offered after the close of evidence.
Statement of Decision
In April 2022, following the issuance of a proposed
statement of decision and submission of the parties’ objections,
the trial court issued its final statement of decision. The court
found plaintiffs failed to prove their UCL class claim.
The court rejected plaintiffs’ objection to the exclusion of
the infant/toddler program and the school age program from the
class and denied plaintiffs’ request for reinstatement of the prior
class definition. The court reasoned that redefining the class
after trial would violate absent class members’ procedural and
substantive due process rights. The court further concluded
neither excluded program was subject to the same licensing
requirements as the preschool programs.
In their closing brief, plaintiffs asked the court to draw a
negative inference against Pacific Oaks based on its failure to
produce rosters kept pursuant to Health and Safety Code
13
section 1596.841.8 The court denied the request. Although
Pacific Oaks had not produced the rosters, the court concluded no
adverse inference was appropriate since, as defined by statute,
the rosters would not contain “the kind of information that would
assist Plaintiffs in establishing their claims.”
The trial court again rejected plaintiffs’ argument that
capacity was synonymous with enrollment. Instead, the court
concluded, as it had in ruling on plaintiffs’ motion for summary
adjudication, that capacity “speaks to the number of children that
may attend at a given time.” The statement of decision then
addressed each aspect of plaintiffs’ evidence and concluded they
failed to establish their “children (or any others) attended a
particular program which was at overcapacity when the children
were in that particular program.”
The court noted McComas’s deposition testimony defined
capacity by the number of children present at the facility “ ‘at one
time.’ ” It also found credible McComas’s trial testimony that she
and plaintiffs’ counsel did not have a common understanding of
the term “capacity” during her deposition. It afforded little
weight to McComas’s statement in her 2016 declaration that the
school was operating over the capacity limit. The court reasoned
McComas had no personal knowledge of events at Pacific Oaks
before she became Executive Director in 2014 and she did not
8 Health and Safety Code section 1596.841 requires a child
day care facility to “maintain a current roster of children who are
provided care in the facility. The roster shall include the name,
address, and daytime telephone number of the child’s parent or
guardian, and the name and telephone number of the child’s
physician.”
14
review any attendance records before attesting the school was
overcapacity.
The trial court also concluded plaintiffs did not establish
that Rosenberg had knowledge of any capacity violation during
her tenure. The court found Tambe’s August 2013 e-mail was
admissible as “an admission by Pacific Oaks as to what parents
were told,” but excluded as inadmissible hearsay the e-mail’s
statement that DSS told “an unidentified member” of the
administration about the licensing issue. The trial court noted
that “[a]lthough Tambe appeared on Plaintiffs’ witness list, she
was not called by Plaintiffs at trial nor was any deposition
testimony from her provided. Likewise, no witness from DSS was
called. Although DSS’s records were subpoenaed there is no
indication that DSS cited Pacific Oaks for a violation of its
capacity license, sought to revoke its license, referred it to either
civil or criminal authorities, or imposed any civil penalty upon it.”
As for the sign-in sheets, the court reiterated that
plaintiffs’ summaries attached to the Shenoi Declaration were
“based on a methodology that is not set forth in the record and
[on] testimony that was excluded.” The court noted the sign-in
sheets for the 2009–2010 school year appeared to indicate that
over 77 children were expected to attend the morning programs
during that year. The court indicated this permitted an inference
that more students may have attended than the license allowed
in the 2009 to 2010 morning preschool programs. Yet, the court
concluded that even if that inference were drawn, the evidence
did not show plaintiffs “had any cognizable injury, as they did not
attend Pacific Oaks in 2009–2010.”
The trial court reasoned that without evidence that
plaintiffs’ children attended Pacific Oaks at a time when the DSS
15
license was violated, plaintiffs could not establish standing under
Business and Professions Code section 17204. Further, as to
absent class members whose children were enrolled in the
morning program in the 2009–2010 school year, there was no
showing as to what those class members would have done had
they known of any capacity violation. The court further noted
plaintiffs had not established the alleged capacity violation
impaired student safety, or that the children received anything
other than the education Pacific Oaks had promised, thus the
requested remedy of a full tuition refund would not be equitable.
The court deferred entry of judgment in favor of Pacific
Oaks until after plaintiffs’ individual claims were tried.
Plaintiffs timely appealed from the court’s order.9
DISCUSSION
I. The Trial Court Correctly Concluded that “Capacity”
Under the DSS License Limited the Number of
Children Permitted to be Present at Any One Time,
Not Aggregate Enrollment
The UCL prohibits “any unlawful, unfair or fraudulent
business act or practice . . . .” (Bus. & Prof. Code, § 17200.) “An
unlawful business practice under section 17200 is ‘ “an act or
practice, committed pursuant to business activity, that is at the
9 The trial court’s findings and order in favor of Pacific Oaks
is a final determination of the merits of plaintiffs’ UCL class
claim for unlawful conduct and it terminated all class action
litigation. (Estate of Lock (1981) 122 Cal.App.3d 892, 896 [a
memorandum of decision is an appealable order when its
“substance or effect” is a final determination on the merits].) The
order is therefore appealable under the death knell exception to
the one final judgment rule. (Cf. Kight v. CashCall, Inc. (2011)
200 Cal.App.4th 1377, 1386, fn. 2.)
16
same time forbidden by law. [Citation.]” ’ [Citation.]”
(Progressive West Ins. Co. v. Superior Court (2005) 135
Cal.App.4th 263, 287.) “By proscribing ‘any unlawful’ business
practice, ‘section 17200 “borrows” violations of other laws and
treats them as unlawful practices’ that the [UCL] makes
independently actionable.” (Cel–Tech Communications, Inc. v.
Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)
Plaintiffs sought to establish that Pacific Oaks engaged in
unlawful conduct by operating in violation of the capacity limit
set forth in the DSS license. They rely on section 101161,
subdivision (a), which provides: “A licensee shall not operate a
child care center beyond the conditions and limitations specified
on the license, including the capacity limitation.”
During the class period, Pacific Oaks’s DSS license capacity
limitation was 77 children. Throughout the litigation, plaintiffs
argued the aggregate enrollment data for the class period
demonstrated that Pacific Oaks enrolled more than 77 children in
each of the years at issue. Plaintiffs contend the term “capacity
limitation” in section 101161, subdivision (a), refers to enrolled
children, irrespective of how many children might be physically
present at the facility at any particular time.
The trial court rejected plaintiffs’ interpretation of the
regulation and the term “capacity.” The court concluded
aggregate enrollment data would not establish that Pacific Oaks
violated the capacity limitation. Instead, the court found
plaintiffs were required to show Pacific Oaks had over 77
children in attendance, not merely enrolled, to prove the school
violated the DSS license.
On appeal, plaintiffs continue to argue that enrollment
numbers exceeding the DSS license capacity limit were sufficient
17
to establish Pacific Oaks operated in violation of the license.
Neither the plain language of the relevant regulations nor any
other legal authorities support their argument.
A. Standard of review
“ ‘ “The interpretation of a regulation, like the
interpretation of a statute, is, of course, a question of law.” ’ ”
(Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1234
(Manriquez).) We review questions of law de novo.
When no reported California decision or administrative
interpretation of a regulation exists, courts “interpret the
regulation in accordance with applicable rules of statutory
construction.” (Manriquez, supra, 105 Cal.App.4th at p. 1235;
Butts v. Board of Trustees of California State University (2014)
225 Cal.App.4th 825, 835 (Butts).) “We give the regulatory
language its plain, commonsense meaning. If possible, we must
accord meaning to every word and phrase in the regulation, and
we must read regulations as a whole so that all of the parts are
given effect.” (Butts, at p. 835.) “When the agency’s intent
cannot be discerned directly from the language of the regulation,
we may look to a variety of extrinsic aids, including the purpose
of the regulation, the legislative history, public policy, and the
regulatory scheme of which the regulation is a part. [Citation.]
Whenever possible, we will interpret the regulation to make it
workable and reasonable.” (Manriquez, at p. 1235.)
B. The meaning of capacity
We begin our analysis with the plain text of the
regulations. As noted above, section 101161, subdivision (a),
prohibits a licensee from operating a child care center beyond the
conditions specified in the license, including the “capacity
limitation.” Section 101152, subdivision (c)(2), defines
18
“ ‘capacity’ ” as “the maximum number of children authorized to
be provided care and supervision at any one time in any licensed
child care center.” Section 101179, subdivision (a) similarly
provides that “[a] license shall be issued for a specific capacity,
which shall be the maximum number of children that can be
cared for at any given time.”
Both section 101152, subdivision (c)(2) and section 101179,
subdivision (a), use phrases indicating “capacity” includes a
temporal element, and both refer to the maximum number of
children a child care center can provide care for at once. A child
care center can only provide care and supervision to children who
are physically present at the center’s facility. The phrase “at any
one time,” in its ordinary usage, means at a given moment in
time, as does “at any given time.” Under the plain language of
the regulation, “capacity” is an upper limit on the number of
children who may be physically present at a child care facility
while under the facility’s care and supervision.
Here, the parties disputed whether determining if Pacific
Oaks exceeded “the maximum number of children that can be
cared for at any given time” was properly measured by the
number of children enrolled at the school, or by the number of
children actually in attendance at any one time. Plaintiffs argue
the only relevant number is the number of children who were
enrolled, irrespective of how many children were actually
attending—physically present—at the school. Yet, at least in this
case, the enrollment numbers did not represent the number of
children simultaneously present, or expected to be present, and
under Pacific Oaks’s care and supervision. Pacific Oaks’s total
“enrollment” therefore does not align with the regulations’
definition of “capacity.” The trial court properly rejected
19
plaintiffs’ argument as inconsistent with the plain language of
the relevant regulations. Plaintiffs’ interpretation is also
inconsistent with other regulatory provisions and with the
legislative purpose and intent of the authorizing statute.
For example, section 101179 instructs DSS to determine
“capacity” by considering several factors, including the fire
clearance; the licensee’s ability to comply with applicable laws
and regulations; the physical features of the center, including
available space; and the number of available staff. (§ 101179,
subd. (b)(1)–(4).) The regulatory focus on the physical features of
a child care facility indicates “capacity” functions as an upper
limit on the number of children the facility can physically
accommodate at a time. When, as in this case, all enrolled
children are not expected to be present at the same time at the
facility, aggregate enrollment numbers do not assist in
determining whether the facility has sufficient physical space, or
whether it can maintain required teacher-student ratios.
Measuring capacity by counting the children in attendance
is also consistent with the statute authorizing the regulations,
the California Child Day Care Facilities Act. (Health & Saf.
Code, § 1596.70 et seq.) The express legislative intent of the
statute includes ensuring “a quality childcare environment” and
the well-being of children of working parents by regulating the
quality of child care facilities. (Health & Saf. Code, § 1596.72,
subds. (b), (e), (f).) The Legislature also found “California has a
tremendous shortage of regulated childcare, and only a small
fraction of families who need childcare have it.” (Id., subd. (f).)
Yet, plaintiffs’ interpretation of the regulations would restrict,
rather than expand, the amount of potentially available child
care. For example, using plaintiffs’ analysis, if a facility with a
20
capacity limitation of 20 provides care to one group of 15 children
in the morning, and another group of 15 children in the
afternoon, with no overlapping times when all 30 children are
present, the facility would still violate its license by having a
total enrollment of 30 children. This interpretation of “capacity”
would be inimical to the statute’s purpose of promoting “the
development and expansion of regulated childcare.” (Health &
Saf. Code, § 1596.73, subd. (f).)
We acknowledge that under some circumstances,
enrollment numbers and attendance numbers might be
functionally the same, or similar enough that enrollment
numbers could provide circumstantial evidence or an inference of
the number of children actually in attendance at any one time.
In this case, however, the evidence established that the
enrollment numbers in question were not a reliable proxy for how
many children were physically present at Pacific Oaks at any
given time. The enrollment numbers plaintiffs sought to rely
upon were aggregate numbers that did not take into account the
timing of different programs. The evidence affirmatively
established that all enrolled children were not on campus at the
same time. Instead, in any given class, some children attended
only in the morning, some only in the afternoon, some all day.
The enrollment numbers plaintiffs relied upon did not reflect
these differences in attendance. Those numbers alone were
therefore insufficient to establish a violation of the DSS license
capacity limit.
Plaintiffs’ citations to statutes and regulations defining
“capacity” based on enrollment do not undermine this conclusion.
Plaintiffs contend that if the phrase “at any one time” in
section 101152, subdivision (c)(2) refers to children in attendance,
21
the term “enrollment” in Health and Safety Code
sections 1596.807 and 1596.862 would have to be replaced with
“attendance.” We fail to see the connection between
section 101152, a regulation that uses neither the term
attendance nor the term enrollment, and entirely unrelated
provisions of the Health and Safety Code. Plaintiffs offer no
reasoning to explain their contention.10 Similarly, Health and
Safety Code section 1596.803 lists application fees for the
issuance of a child day care facility license and sets forth a
graduated fee schedule that increases based on the capacity of
the center. Nothing about the provision “anchors capacity to
enrollment,” because otherwise “the annual fee would fluctuate
day to day, and hour to hour,” as plaintiffs claim. The
regulations define capacity as the maximum number of children
allowed at a facility. That an application fee is based on that
maximum allowable number does not indicate “capacity” means
the number of children allowed to enroll in the aggregate, rather
than the number of children allowed to attend at any given time.
Plaintiffs have provided no legal authority that supports
their argument. Their reliance on Scott v. Phoenix Schools, Inc.
10 Health and Safety Code section 1596.807 concerns DSS’s
ability to allow an extended daycare program to serve additional
children at a school site, so long as the additional children are
“currently enrolled in a school,” and the number of additional
children “does not exceed 15 percent of the total enrollment in the
extended daycare program. In no case shall the enrollment of the
extended daycare program exceed the enrollment during the
regular schoolday.” Plaintiffs also refer to Health and Safety
Code section 1596.862, which concerns written requests for
“enrollment or retention of a nonminor student at a schoolage
child care center.”
22
(2009) 175 Cal.App.4th 702 (Scott), is unavailing. In Scott, a
former preschool director sued her employer for wrongful
termination in violation of public policy after she informed the
parents of a prospective student that the school did not have
space for their child. (Id. at p. 705.) The plaintiff “asserted she
was terminated for refusing to violate California Code of
Regulations, title 22, section 101216.3,” which establishes
teacher-child ratios at child care centers.11 (Id. at p. 709.) After
a jury found in the plaintiff’s favor, the school appealed.
The Court of Appeal found substantial evidence supported
the conclusion that enrolling the child would have violated the
regulation. (Scott, supra, 175 Cal.App.4th at p. 709.) In its
analysis, the court summarized data in class rosters that
reflected the number of students “scheduled to attend” the
particular classroom in which the parents sought to enroll their
child. (Id. at p. 710.) The number fluctuated, sometimes
requiring two qualified teachers under the regulation, and
sometimes requiring a teacher and an aide. (Ibid.) The court
noted that if the prospective parents sought to enroll their child
on certain specific days of the week, “the attendance of the . . .
child would have violated the staffing ratios.” (Ibid.) Although
the evidence was inconclusive regarding both the days the
prospective parents wanted their child to attend and the number
of teachers or aides available to staff the classroom in which the
child would be enrolled, the court concluded it was reasonable to
infer enrolling the child would lead to a violation of the
11 Section 101216.3, subdivision (a) requires “a ratio of one
teacher visually observing and supervising no more than 12
children in attendance,” except as otherwise provided in the
regulation.
23
regulation based on witness testimony that “the class was
already operating at times in violation of the staffing ratios, and
that the school was short-staffed . . . .” (Id. at p. 711.)
Thus, the Scott court’s analysis of a potential violation was
not based on enrollment alone, but instead a combination of
enrollment numbers and evidence showing when enrolled
students were “scheduled to attend.” (Scott, supra, 175
Cal.App.4th at p. 710.) That combined evidence indicated that on
some days, enough enrolled children were scheduled to attend
that adding one more child would cause the school to violate the
teacher-child ratios the regulation required. (Ibid.) In this
analysis, the court used attendance as a touchstone, as it was the
attendance of the child, once enrolled, that would have led to a
violation.
Plaintiffs ignore the role of attendance in Scott and instead
focus on the court’s rejection of the employer’s argument that “it
had no notice that enrolling too many children could lead to
liability because the regulation is tied to attendance rather than
enrollment.” (Scott, supra, 175 Cal.App.4th at p. 714.) The court
reasoned the employer “could legitimately assume that if the
[parents] enrolled their daughter, they intended for her to
attend.” (Id. at pp. 714–715.) Therefore, “if the school forced its
employees to enroll more children than the school could
legitimately accept because of staffing requirements, that may be
seen as requiring the employees to violate the regulation.” (Id. at
p. 715.)
Plaintiffs urge us to read this portion of Scott as
establishing a rule that under the child care center licensing
regulations, enrollment is the equivalent of attendance in
determining capacity. As an initial matter, we note that Scott did
24
not concern capacity or sections 101152, subdivision (c)(2);
101161, subdivision (a); or 101179, subdivision (a). The alleged
violation of teacher-child ratios—the basis for the Scott plaintiff’s
wrongful termination claim—is not at issue in this case. That
difference aside, however, the Scott court’s discussion of
enrollment and attendance is inapplicable for more fundamental
reasons. The Scott court considered enrollment on a single
classroom level, and the use of that specific enrollment data as an
indication of attendance. This was reasonable, in part, because
the evidence established that at least on some days, the number
of enrolled children scheduled to attend would require two
teachers, rather than the teacher and aide who were assigned to
the classroom on those days. Given the number of personnel
available, the facility could reliably assume that adding one more
child would prevent it from complying with teacher-child ratios
on those days in particular. Further, on some days, all enrolled
children were scheduled to attend.
In contrast, here plaintiffs argued only that the aggregate
annual enrollment numbers established a capacity violation,
irrespective of actual anticipated attendance, which varied based
on the classroom, the time of day, and the day of the week. There
was no evidence that all enrolled children were ever expected to
be under Pacific Oaks’s care and supervision at the campus at the
same time. Rather than offering admissible evidence of
enrollment numbers that could reasonably approximate the
relevant attendance of children as in Scott, plaintiffs merely
argued capacity under the license and enrollment were one and
25
the same.12 The Scott court’s reasoning using enrollment as a
measure of expected attendance is therefore not applicable in this
case.
Los Angeles International Charter High School v. Los
Angeles Unified School District (2012) 209 Cal.App.4th 1348(Charter), which plaintiffs also cite, is even less relevant. Charter
concerned a school district’s compliance with regulations in title 5
of the California Code of Regulations governing charter schools.
The court found the enrollment data for one campus was
sufficient to show the district properly considered “capacity”
under a regulation requiring it to determine whether public
school facilities could accommodate charter students. (Id. at
p. 1359.) Whether enrollment or attendance was the appropriate
measure of capacity was not at issue, nor is there any reasoning
or analysis to suggest any holding in the case would be
persuasive in analyzing compliance with a child care center
license. Cases are not authority for propositions not considered.
(People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
We thus reject plaintiffs’ strained and unsupported
interpretation of section 101161, subdivision (a). Section 101179,
subdivision (a) and section 101152, subdivision (c)(2) offer an
unambiguous definition of capacity that can only be reasonably
understood as setting an upper limit on the number of children
who may physically be present at a center’s premises at one time,
and therefore under the facility’s care and supervision. That
number is reflected in attendance. While in some cases the same
12 To the extent plaintiffs eventually pivoted and argued a
narrower set of enrollment numbers would establish a violation,
they failed to provide admissible evidence to support their claim,
as discussed more fully below.
26
number may be equivalent to enrollment, that was not the case
here. The enrollment data plaintiffs relied upon did not reflect
attendance, or, in other words, did not reflect the number of
children physically present at Pacific Oaks at any given time.
Plaintiffs never proffered admissible evidence of enrollment
similar to the evidence at issue in Scott. The trial court properly
concluded plaintiffs could not prove a violation of section 101161,
subdivision (a) using Pacific Oaks’s annual aggregate enrollment
data alone.
[[Begin nonpublished portion.]]
II. The Trial Court Did Not Abuse Its Discretion in
Defining the Class
In the remainder of their arguments on appeal, plaintiffs
contend the trial court’s rulings improperly limited their claims
and prevented them from establishing that, even using
attendance to measure capacity, Pacific Oaks violated the DSS
license. We find no error in the trial court’s rulings.13
Plaintiffs contend the trial court erred by redefining the
class in December 2019. They also ask this court to restore the
original class definition, which included parents and guardians
whose children attended the infant/toddler program and the
school age program.
Trial courts may redefine a class “to reduce or eliminate” a
manageability problem “created by a potentially overbroad class
definition.” (Sarun v. Dignity Health (2019) 41 Cal.App.5th 1119,
13 Because we affirm the trial court order, we need not
address Pacific Oaks’s cross-appeal. We deny Pacific Oaks’s
motion to augment the record as moot.
27
1137–1138 & fn. 18.) “The trial court’s rulings regarding . . . the
necessity of modifying an existing class certification are reviewed
on appeal for abuse of discretion.” (Cristler v. Express Messenger
Systems, Inc. (2009) 171 Cal.App.4th 72, 80.)
A. Infant/toddler and school age programs
1. Background
In addition to programs for preschool age children, Pacific
Oaks at times operated a program for infants and toddlers and
their parents, and a program for school age children. A Pacific
Oaks handbook described the infant/toddler program as an
opportunity for the adult parent, guardian, or caregiver to attend
“two hours of play and developmental learning” with their child.
The program allowed parents and caregivers to “begin the
process of separation” while remaining “close at hand” and
“readily available to their children” during the program.
The school age program offered morning and afternoon care
to children enrolled at Pacific Oaks, or other private or public
schools in the area, and provided full day child care on school
holidays and throughout summer. Pacific Oaks had a separate
license for school age children that contained its own capacity
limitation. However, Tambe’s undated letter informed DSS that
the school age program had “not been in use for 10 years plus.”14
When asked about the letter at her deposition, McComas testified
that “the school did not have school age children as stated.”
In December 2019, the court redefined the class to “Parents
and guardians of former Pacific Oaks’ students who paid tuition
from January 1, 2007 through August 2013 and whose students
14 Although there was no date on the letter, it was signed by
Tambe as Executive Director, a post she held from June 2013 to
March 2014.
28
were enrolled in any ‘Pre-School Program’ offered by Pacific Oaks
during that time period.” This removed from the class parents
and guardians whose children were enrolled in Pacific Oaks’s
infant/toddler and school age programs. The court concluded the
day care licensing regulations did not apply to the infant/toddler
program since parents and guardians attended with their
children. The court further determined the school age program
was covered by a different license and, in any event, was exempt
from day care licensing requirements under Health and Safety
Code section 1596.792, subdivision (h).
2. Discussion
Plaintiffs contend the trial court’s ruling was incorrect
because the DSS license limiting capacity to 77 applied to all of
Pacific Oaks’s child care programs without exception. We
disagree.
Regarding the infant/toddler program, section 101152,
subdivision (c)(7) defines “Child Care Center” or “Day Care
Center” as any child care facility in which non-medical care and
supervision are provided to children in a group setting. The
regulations define “care and supervision” as any one of several
activities “provided by a person or child care center to meet the
needs of children in care.”15 (§ 101152, subd. (c)(3).) The
15 These activities include: “(A) Assistance in diapering,
toileting, dressing, grooming, bathing, and other personal
hygiene. [¶] (B) Assistance with taking medications as specified
in Sections 101226(e)(3) and (e)(4). [¶] (C) Storing and/or
distribution of medications as specified in Section 101226(e). [¶]
(D) Arrangement of and assistance with medical and dental care.
[¶] (E) Maintenance of rules for the protection of children. [¶]
(F) Supervision of children’s schedules and activities for the
29
evidence before the court indicated parents participated in the
infant/toddler program with their children and were present at
all times. This supported the trial court’s conclusion that the
children in the infant/toddler program were not under Pacific
Oaks’s “care and supervision.”
On appeal, plaintiffs do not challenge the trial court’s
conclusion that the services Pacific Oaks provided in the
infant/toddler program fall outside the regulatory definition of
care and supervision. Instead, plaintiffs argue that since Health
and Safety Code section 1596.750 defines “[c]hild day care
facility” as a facility providing care to “children under 18 years of
age,” Pacific Oaks’s DSS license had to cover all children on the
Pacific Oaks campus, regardless of the program.
Plaintiffs’ reliance on this provision is misplaced. Health
and Safety Code section 1596.750 merely defines the term “[c]hild
day care facility” as “a facility that provides nonmedical care to
children under 18 years of age in need of personal services,
supervision, or assistance essential for sustaining the activities of
daily living or for the protection of the individual on a less than a
24-hour basis.” This definition supports, rather than
undermines, the trial court’s conclusion that the infant/toddler
program was not providing the kind of “care” that necessitated a
child day care facility license. The trial court could reasonably
conclude based on the evidence before it that children in the
infant/toddler program were not “in need of personal services,
supervision, or assistance essential for sustaining the activities of
protection of children. [¶] (G) Monitoring food intake or special
diets. [¶] (H) Providing basic services as defined in
Section 101152.b.(1).” (§ 101152, subd. (c)(3).)
30
daily living” or “protection,” because they attended only with
their parents or caregivers, who remained present at all times.
Further, Health and Safety Code section 1596.750 does not
refer to licenses, let alone establish the scope of licenses, that
DSS issues to child day care facilities. Plaintiffs fail to address
the more detailed licensing regulations defining child care
centers, which the Health and Safety Code expressly authorizes
DSS to promulgate. (Health and Saf. Code, § 1596.81 [DSS “shall
adopt, amend, or repeal . . . any rules or regulations which may
be necessary to carry out this act”].) Plaintiffs do not explain or
support with authority their implicit contention that Health and
Safety Code section 1596.750 displaces these more specific
definitions. In addition, the evidence in this case indicated DSS
issued separate licenses for different programs. There was no
basis for the trial court to conclude the DSS license, which
specifically referred to preschool age children, nonetheless
covered all children at Pacific Oaks, for any reason, or of any age.
With respect to the school age program, it is undisputed
that Pacific Oaks had a separate license for school age children
that contained its own capacity limitation. Plaintiffs argue the
program was covered by the day care center license after Tambe
requested that DSS cancel the school age program’s license. The
evidence, in plaintiffs’ view, shows the school age program’s
license was not in use during the class period. However, the
evidence plaintiffs cite does not support their argument. The
extent of any school age program during the class period was
unclear. For example, Tambe’s undated letter informed DSS that
the “school age program”—not the school age license, as plaintiffs
state in their brief—had “not been in use for 10 years plus.”
When asked about the letter at her deposition, McComas testified
31
“the school did not have school age children as stated.” Even
assuming Pacific Oaks operated a school age program during
some portion of the class period, there is no evidence establishing
DSS in fact cancelled the license during the class period in
response to Tambe’s request. As stated above, plaintiffs did not
call Tambe or a DSS official to testify at trial.
The trial court also found the school age program did not
need a child care facility license pursuant to Health and Safety
Code section 1596.792, subdivision (h), which exempts
“[e]xtended daycare programs operated by public or private
schools” from licensing requirements. Plaintiffs contend this
provision does not apply because the license identified the
licensee as “Pacific Oaks College and Children’s Programs,” even
though the licensed facility was identified as “Pacific Oaks
Children’s School.” They offer no other argument to explain their
contention that Pacific Oaks is not a private school under the
statute.
Plaintiffs fail to provide any discussion of the extended day
care exception under Health and Safety Code section 1596.792.
They further provide no support for the proposition that the
name of the licensee on the license determines whether the
exemption applies, irrespective of the nature of the facility.
“When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we
treat the point as waived.” (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784–785.)
Plaintiffs fail to show that the trial court’s redefinition of
the class was unsupported by substantial evidence, relied on
improper criteria, or rested on erroneous legal assumptions.
(Moen v. Regents of University of California (2018) 25
32
Cal.App.5th 845, 853.) We cannot find the trial court abused its
discretion in narrowing the class definition to apply only to
parents and guardians whose children were enrolled in a Pacific
Oaks preschool program during the relevant class period.16
III. The Trial Court’s Discovery Rulings Were Proper
A. December 2019 discovery order
1. Background
During pre-trial discovery, plaintiffs did not attempt to
procure documents or information reflecting Pacific Oaks’s daily
or hourly anticipated attendance numbers. After the close of
discovery, Pacific Oaks argued in its motion for decertification
that “a trier of fact would need to delve into which children
attended which program on which days and whether the total
attendance for that given day exceeded the school capacity.” At
the hearing on the decertification motion, plaintiffs maintained
that under their theory of liability, “it [was] irrelevant, as a
matter of law, that some portion of Defendant’s children’s school
may, at some periods of time . . . or on some particular time or
date, may have had attendance within the licensed capacity.”
Nonetheless, plaintiffs subsequently served additional
discovery requesting Pacific Oaks’s daily attendance records. The
trial court found the requests were untimely as they were served
after the discovery cut-off. Plaintiffs then filed a motion for leave
to serve additional discovery seeking, in part, “all records, if any,
maintained by Pacific Oaks of daily capacity of students during
the Class Period.” Plaintiffs asserted the request was justified
16 We need not address plaintiffs’ additional argument that
the trial court erred in finding the school age program was also
exempt under Health and Safety Code section 1596.792,
subdivision (k).
33
because Pacific Oaks changed its position about whether it
violated the license during the class period and was now claiming
that “on some days it did not violate the 77 capacity-license.”
Plaintiffs, however, continued to maintain that enrollment
numbers alone determined whether Pacific Oaks had violated the
DSS license. At the December 2019 hearing on the motion for
leave to serve additional discovery, the court observed plaintiffs’
request for records of Pacific Oaks’s daily capacity “seems to be
made only because Pacific Oaks argued in support of the
decertification that the data was relevant to damages questions.”
The trial court gave a tentative ruling that if Pacific Oaks
intended “at trial to introduce evidence of the days in which it
contends it didn’t exceed its license capacity, including any
summaries, it seems to me that data sufficient to verify the
accuracy of the summary should be produced so as to expedite the
trial proceedings.”
Pacific Oaks’s counsel stated it did not “intend to rely on
any additional records beyond what’s already in evidence right
now at trial, which is the DSS records that indicate on certain
days the school was already within its capacity.” Pacific Oaks’s
counsel further confirmed those records had already been
produced. Despite lengthy discussions between the court and
counsel about other aspects of the court’s tentative ruling,
plaintiffs did not object to or comment on the tentative discovery
order. After the hearing, the trial court issued a written order
consistent with the tentative ruling that required Pacific Oaks to
produce any responsive data at least 30 days before trial.
2. Discussion
Plaintiffs now contend the trial court’s December 2019
discovery order “violated established law that discovery is broad”
34
and “misapplied the burden of proof.”17 We find no error.
A trial court has “broad discretion in controlling the course
of discovery and in making the various decisions necessitated by
discovery proceedings.” (Obregon v. Superior Court (1998) 67
Cal.App.4th 424, 431.) “The trial judge’s application of discretion
in discovery matters is presumed correct, and the complaining
party must show how and why the court’s action constitutes an
abuse of discretion in light of the particular circumstances
involved.” (Id. at p. 432.)
Throughout the litigation, plaintiffs elected to advance only
one theory of liability for their UCL claim: Pacific Oaks violated
child care licensing regulations by enrolling students in excess of
its licensed capacity. At the time of the trial court’s December
2019 order, plaintiffs continued to argue that theory only,
asserting attendance was “irrelevant” to their theory of the case.
They did not disagree with the trial court’s assessment that the
discovery was necessary only to respond to or evaluate arguments
Pacific Oaks might make at trial. Indeed, even after the court’s
December 2019 ruling, plaintiffs continued to maintain
attendance was not relevant to their theory of liability. (Seahaus
La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th
754, 767 [the “proper purpose[ ] of discovery” is to obtain relevant
information].) The trial court did not abuse its discretion in
limiting the December 2019 order to information sufficient to
17 Plaintiffs vaguely refer to the trial court’s misapplication of
an unidentified “criminal law standard,” without citation to
authority, in their reply brief. To the extent plaintiffs are raising
a different argument for the first time in their reply brief,
without citation to legal authority, the argument is forfeited.
35
verify the accuracy of any arguments or evidence Pacific Oaks
intended to offer at trial.
B. Enrollment records, attendance records, and
current rosters
Plaintiffs also challenge the trial court’s February 2021
order denying their motion to compel Pacific Oaks to produce
enrollment records in response to their notice to the custodian of
records to attend trial and bring documents. The court found the
request for enrollment records was improper because it was “in
the nature of a discovery device, [did] not specify a specific
document and [was] not a proper use of a notice to appear at
trial.” Plaintiffs do not identify any alleged trial court error with
respect to that finding, except to assert that the trial court
“misapplied the law in construing enrollment as irrelevant.” This
assertion ignores the trial court’s actual ruling.
Similarly, in a single sentence, plaintiffs challenge the trial
court’s denial of plaintiffs’ request for an adverse inference
because Pacific Oaks produced only incomplete attendance
records. Plaintiffs offer no factual or legal support for this
argument. “We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about which
issues counsel intend to raise.” (Opdyk v. California Horse
Racing Bd. (1995) 34 Cal.App.4th 1826, 1831, fn. 4; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We
are not bound to develop appellants’ arguments for them”].) We
deem the argument forfeited.
Plaintiffs further argue the trial court was compelled to
draw an adverse inference against Pacific Oaks because it failed
to produce “current rosters.” They rely on Scott, supra, 175
Cal.App.4th 702, for the proposition that rosters would reveal
36
enrollment information relevant to the licensing regulations.
Plaintiffs’ argument incorrectly equates the rosters in Scott with
plaintiffs’ specific request, which was for rosters under Health
and Safety Code section 1596.841. Health and Safety Code
section 1596.841 does not require that rosters show which
programs children are enrolled in or the hours of the day they
attend. (Health & Saf. Code, § 1596.841 [roster shall include “the
name, address, and daytime telephone number of the child’s
parent or guardian, and the name and telephone number of the
child’s physician”].) The trial court therefore reasonably declined
to infer that the rosters would have established Pacific Oaks
violated the DSS license. The court explained it “cannot infer
that the rosters would contain information that the statute does
not require.” We find no abuse of discretion.
IV. The Trial Court’s Evidentiary Rulings and
Determinations Were Proper
Plaintiffs contend the trial court erroneously excluded
evidence and incorrectly discounted evidence they claim
established Pacific Oaks violated the DSS license. We find no
error.
A. Sign-in sheets
The trial court admitted the printed portions of the sign-in
sheets as party admissions “as to the number of children expected
in each program on the date specified on the sign in sheets.”
However, the court ruled plaintiffs did not establish the
signatures or handwritten times were subject to a hearsay
exception, such that they could be offered to show “which children
were dropped off and picked up on each day and at what time.”
Plaintiffs argue on appeal that the signatures and handwritten
37
times were admissible under the business records exception to
the hearsay rule.
“[A] trial court has broad discretion to determine whether a
party has established the foundational requirements for a
hearsay exception [citation] and ‘[a] ruling on the admissibility of
evidence implies whatever finding of fact is prerequisite thereto.’
(Evid. Code, § 402, subd. (c).) We review the trial court’s
conclusions regarding foundational facts for substantial evidence.
[Citation.] We review the trial court’s ultimate ruling for an
abuse of discretion [citations], reversing only if ‘ “the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.” ’ [Citation.]” (People v. DeHoyos (2013) 57 Cal.4th 79,
132; People ex rel. Owen v. Media One Direct, LLC (2013) 213
Cal.App.4th 1480, 1483–1484.)
The sign-in sheets contained multiple hearsay statements.
To introduce the sign-in sheets for the truth of the matter
asserted—the specific times and specific days children were
signed in and signed out of Pacific Oaks—plaintiffs were required
to show that the sheets themselves, and the sign-in and sign-out
times and signatures written by parents and caregivers, were
each subject to a hearsay exception. (Caliber Paving Co., Inc. v.
Rexford Industrial Realty & Management, Inc. (2020) 54
Cal.App.5th 175, 189 [double hearsay statement admissible only
if each level of hearsay comes within an exception to hearsay
rule].) Plaintiffs contend the handwritten portions of the sign-in
sheets were admissible under the business records exception. We
disagree.
Evidence Code section 1271 exempts writings from the
hearsay rule if, among other things, “[t]he writing was made in
38
the regular course of a business” and “[t]he sources of information
and method and time of preparation were such to indicate its
trustworthiness.” (Id., subds. (a), (d).) “ ‘The chief foundation of
the special reliability of business records is the requirement that
they must be based upon the first-hand observation of someone
whose job it is to know the facts recorded. . . . But if the evidence
in the particular case discloses that the record was not based
upon the report of an informant having the business duty to
observe and report, then the record is not admissible under this
exception, to show the truth of the matter reported to the
recorder.’ ” (MacLean v. City & County of San Francisco (1957)
151 Cal.App.2d 133, 143, quoting McCormick on Evidence, p. 602,
§ 286.)
“ ‘Applying this standard, the cases have rejected a variety
of business records on the ground that they were not based on the
personal knowledge of the recorder or of someone with a business
duty to report to the recorder.’ ” (Zanone v. City of Whittier
(2008) 162 Cal.App.4th 174, 191 (Zanone), quoting Cal. Law
Revision Com. com., 29B pt. 4, West’s Ann. Evid. Code (1995 ed.)
foll. § 1271.) “To qualify as a business . . . record, a document
must be created by an employee of the business . . . .” (People v.
Campos (1995) 32 Cal.App.4th 304, 309.)
Here, parents or caregivers of each child signed the sheets
and identified the times their children were signed into and out
of Pacific Oaks’s care. There was no evidence the parents and
caregivers were acting in the course of Pacific Oaks’s business, or
their own, and they had no business duty to accurately observe
and report their children’s arrival and departure times to Pacific
Oaks. (People v. McDaniel (2019) 38 Cal.App.5th 986, 1002;
Zanone, supra, 162 Cal.App.4th at pp. 191–192.) The times noted
39
on the records were not based on the observations of people
“whose job it [was] to know the facts recorded.” (Taylor v.
Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126.) The trial court
did not abuse its discretion by finding the handwritten portions of
the sign-in sheets did not qualify under the business records
exception to the hearsay rule.
B. Shenoi Declaration and summaries
Plaintiffs also contend the trial court erred in excluding the
exhibits attached to the declaration of plaintiffs’ counsel (the
Shenoi Declaration) that plaintiffs submitted with their closing
brief. In his declaration, Shenoi explained that plaintiffs had
compiled Pacific Oaks’s 6,510 sign-in sheets into summaries. The
summaries are two sets of charts attached as exhibits to the
declaration. The charts in exhibit A tally the number of students
enrolled in each program on days during the class period for
which attendance records were provided. The count is based on
the printed names on each sign-in sheet. The charts in exhibit B
tally the number of students in actual attendance “based on drop-
off signatures on each sign-in sheet.”
Shenoi declared that he “oversaw the preparation” of the
summaries. He explained that, first, “[d]ata entry was
performed” on the sign-in sheets. Sign-in sheets were excluded if
they were duplicative, contained data for programs for which
plaintiffs were not seeking restitution, or were incomplete. The
remaining 3,580 sign-in sheets related to programs held on 353
days during the class period. Shenoi declared enrollment
exceeded Pacific Oaks’s capacity license on 352 of 353 days,
excluding the infant/toddler and school age programs. Further,
Shenoi averred that attendance exceeded the capacity license on
343 of 353 days. He indicated plaintiffs’ analysis showed
40
enrollment and attendance exceeded capacity on five days when
the “census counts” in DSS Facility Evaluation Reports were
below the capacity limit.
Pacific Oaks moved to exclude the declaration and
summaries, including on the ground that both were inadmissible
hearsay. The court granted the motion, finding the Shenoi
Declaration was “post-trial evidence on which Pacific Oaks did
not have an opportunity to cross-examine,” hearsay without
exception, and a violation of the advocate-witness rule because it
“place[d] counsel in the role of a witness on a disputed issue of
fact.” The court also found exhibit B inadmissible because it was
based on signatures the court had excluded as inadmissible
hearsay. We review the trial court’s ruling for abuse of
discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170
Cal.App.4th 1103, 1111.)
Plaintiffs challenge only the trial court’s exclusion of the
summaries. We note, however, that plaintiffs offered the
summaries only as exhibits to the Shenoi Declaration, which the
trial court also excluded. On appeal, plaintiffs do not challenge
the trial court’s ruling that the declaration was hearsay not
subject to an exception. (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1354 [“It is well established . . . that declarations
constitute hearsay and are inadmissible at trial . . . unless the
parties stipulate to the admission of the declarations or fail to
enter a hearsay objection”].) Because plaintiffs have failed to
affirmatively demonstrate error with respect to the ruling
excluding the declaration, we presume the trial court’s decision
was correct. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Moreover, plaintiffs’ arguments as to the summaries
themselves lack merit. As explained above, the trial court
41
admitted portions of the sign-in sheets and excluded others.
Exhibit B contained summaries of the sign-in sheets based on the
handwritten notations the trial court found inadmissible. We
have concluded the trial court did not abuse its discretion in
excluding those notations and a summary of inadmissible
evidence is itself inadmissible. Plaintiffs’ reliance on the
secondary evidence rule for a contrary result is misplaced.
Evidence Code section 1521 “ ‘permits the introduction of
“otherwise admissible secondary evidence” to prove the contents
of a writing. It does not excuse the proponent from complying
with other rules of evidence, most notably, the hearsay rule.’ ”
(Chambers v. Crown Asset Management, LLC (2021) 71
Cal.App.5th 583, 594.) The trial court did not abuse its discretion
in excluding summaries that were based on inadmissible
evidence.
The trial court also did not abuse its discretion in excluding
exhibit A. Under Evidence Code section 1521, the content of a
writing may be proved by otherwise admissible evidence, but the
court must exclude secondary evidence if the court determines
either “[a] genuine dispute exists concerning material terms of
the writing and justice requires the exclusion,” or “[a]dmission of
the secondary evidence would be unfair.” (Id., subds. (a), (b).)
The trial court could reasonably conclude both circumstances
were present in this case.
Exhibit A was not simply a summary of previously
admitted documents. Instead, according to the Shenoi
Declaration, counsel “performed” data entry on the documents,
made decisions about which documents would be excluded from
the summaries “[c]onsistent with plaintiffs’ [litigation] position,”
analyzed the records in connection with other documents to
42
decide what to include in the summaries, and made analytical
decisions about which records were “useable.” Counsel
determined the methodology and described it only in a
declaration, not in testimony subject to cross-examination.
Pacific Oaks had access to the underlying documents but had no
means to test or challenge the process by which plaintiffs
prepared the summaries, or the accuracy or validity of the
numerous decisions plaintiffs’ counsel made in preparing the
summaries. The trial court could reasonably conclude that under
these circumstances, Evidence Code section 1521 required the
exclusion of the summaries.
Plaintiffs argue that a summary of voluminous business
records may be admissible. However, plaintiffs fail to
acknowledge the full extent of the rule they indirectly reference,
Evidence Code section 1523, which provides: “(a) Except as
otherwise provided by statute, oral testimony is not admissible to
prove the content of a writing. [¶] . . . [¶] (d) Oral testimony of
the content of a writing is not made inadmissible by
subdivision (a) if the writing consists of numerous accounts or
other writings that cannot be examined in court without great
loss of time, and the evidence sought from them is only the
general result of the whole.”
Plaintiffs did not offer “oral testimony” as a substitute for
the voluminous records, and instead attempted to proffer a
summary authenticated only by a hearsay declaration. (Cf.
Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972)
24 Cal.App.3d. 410, 418–419 [plaintiffs’ summary of voluminous
invoices admissible where plaintiffs’ controller prepared the
summary, defendant deposed plaintiffs’ secretary-treasurer about
the preparation of the summary, and underlying records were
43
admissible].) Further, the summary of the records was not “the
general result of the whole” (Evid. Code § 1523, subd. (d)), but
rather excerpts curated solely by plaintiffs’ counsel. We find no
abuse of discretion in the trial court’s exclusion of either the
Shenoi Declaration or the attached summaries.18
C. DSS statement in Tambe’s 2013 e-mail
As described above, in August 2013, then Executive
Director Tambe informed parents by e-mail that Pacific Oaks was
notified in May 2013 “by the Department of Social Services
Community Care Licensing Division (CCLD) that [Pacific Oaks’s]
license did not reflect the actual number of students on campus.”
At trial, the court admitted the statement only “as an admission
by Pacific Oaks as to what parents were told.” The court declined
to admit the statement for its truth—that DSS said “the license
did not reflect the actual number of children on campus”—finding
it was inadmissible hearsay.
Plaintiffs contend the trial court erred in admitting the
statement for a limited purpose and in rejecting their argument
that the statement was admissible as an adoptive admission by
Pacific Oaks that it violated its license. Plaintiffs have forfeited
this contention by failing to support it with any reasoned
argument. Aside from alleging the trial court erred and citing
the Evidence Code regarding adoptive admissions, plaintiffs have
provided no analysis. This is insufficient. “[T]o demonstrate
error, an appellant must supply the reviewing court with some
cogent argument supported by legal analysis and citation to the
18 In light of this conclusion, we need not address plaintiffs’
other arguments regarding the trial court’s exclusion of the
summaries.
44
record.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th
266, 286–287.)
Even were we to consider plaintiffs’ argument, we would
find it fails on the merits. Under Evidence Code section 1221, a
statement offered against a party is not inadmissible hearsay if
the party, “by words or other conduct,” manifested his “adoption
or his belief in [the statement’s] truth.” “The theory of adoptive
admissions expressed in section 1221 ‘ “is that the hearsay
declaration is in effect repeated by the party; his conduct is
intended by him to express the same proposition as that stated by
the declarant.” ’ [Citations.]” (Jazayeri v. Mao (2009) 174
Cal.App.4th 301, 326.)
Plaintiffs identify no evidence showing Pacific Oaks’s
administrators, officers, or agents conceded the accuracy of DSS’s
statement that Pacific Oaks’s license did not reflect the number
of students on campus. To the extent any of McComas’s
testimony could be understood to have referred to the DSS
statement in Tambe’s e-mail, the court rejected the testimony
because McComas lacked personal knowledge. Nor did Tambe’s
recitation of DSS’s purported notification manifest Pacific Oaks’s
belief in the truth of DSS’s conclusion. “ ‘[T]he mere recital or
description of another’s statement does not necessarily constitute
an adoption of it: “[A] statement describing another’s declaration
is normally not regarded as an admission of the fact asserted by
the other. One does not admit everything he recounts or
describes merely by reason of the relating of it.” [Citation.]’
Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1258.)
Further, while Tambe’s 2013 e-mail indicated the school
would not be able to accommodate some children in the 2013–
2014 school year because DSS denied its application to increase
45
capacity, there was no evidence the existing or planned student
population was actually reduced, or that any admissions offers
were rescinded. Indeed, McComas testified that DSS did not
require Pacific Oaks to meet any conditions before it approved
the increase in capacity in April 2014. Plaintiffs’ counsel claimed
in his closing argument that DSS required Pacific Oaks to expel
“30 or more families” before increasing the capacity limit, but he
conceded there was no evidence of this in the record. The trial
court did not abuse its discretion in rejecting plaintiffs’ argument
that the DSS statement in Tambe’s e-mail was admissible for its
truth as an adoptive admission.
D. Challenges to the trial court’s resolution of
contradictions in the evidence
1. The trial court did not abuse its discretion
when weighing documentary evidence
Plaintiffs assert the trial court improperly discredited a
report from the Pasadena Fire Department and improperly
credited DSS reports. We find no error.
During McComas’s testimony, plaintiffs sought to admit a
report from the Pasadena Fire Department. The report included
a section for the fire department to note “item(s) which must be
corrected in order to meet minimum fire and life safety
requirements.” In this section, the inspector noted, “177
students,” with no further explanation or context. The trial court
admitted the report but refused to “conclude from the document
that anyone has counted 177 students on this date.” The court
noted plaintiffs did not call a witness from the fire department to
testify as to how the document was prepared and declined to
“deduce from the document on its face [that] 177 students were at
the location in the particular programs that are at issue.”
46
Plaintiffs do not argue this specific ruling was erroneous,
but instead assert the fire department record was the “only count
of actual attendance on [Pacific Oaks’s] premises during the
Class Period.”19 They contend, without further explanation, that
the trial court erred in not accepting their interpretation of the
report and in failing to rely on it. This contention does not state
a cognizable legal argument on appeal as it ignores both the trial
court’s evidentiary ruling and its role as the trier of fact.
The challenged DSS records were Facility Evaluation
Reports from six different days during the class period. The
reports contain narratives that reflect they were completed by an
official from DSS’s Community Care Licensing Division after
visits to Pacific Oaks’s facility. Each report includes a “census”
number. The trial court admitted these records under the public
records exception to the hearsay rule and noted that as public
records, they were “presumed to be accurate when prepared as
part of [a public employee’s] official duties.” The court did not
find the reports “definitively establish[ed] compliance” but
considered them in concluding plaintiffs did not establish a
violation of the DSS license.
On appeal, plaintiffs argue their summaries of the sign-in
sheets established the DSS records did not count “peak
attendance” on five of the six reported days. However, the trial
court excluded the summaries. We have concluded that ruling
19 Plaintiffs’ additional assertions about the fire department
report rely on misleading and inaccurate characterizations of the
reporter’s transcript. Neither Rosenberg nor McComas testified
that the fire department counted children to determine
compliance with the DSS license, or attested to the accuracy of
the fire department report as a record of the number of children
present in the preschool programs.
47
was not an abuse of discretion. Plaintiffs may not challenge the
trial court’s factual findings with evidence not admitted.
Moreover, it is within the province of the trial court to
resolve conflicts in the evidence. “[T]he trial court is the sole
arbiter of all conflicts in the evidence . . . and, in the exercise of
sound legal discretion, [the trial court] may draw or may refuse to
draw inferences reasonably deducible from the evidence.”
(California Teachers Assn. v. Governing Board (1983) 144
Cal.App.3d 27, 37.) Plaintiffs’ disagreement with the trial court’s
resolution of conflicting evidence is not a basis for reversal.
2. The trial court did not err in weighing
McComas’s testimony
Plaintiffs argue the trial court erred by declining to accept
as true McComas’s deposition testimony and her 2016 declaration
admission appearing to concede that Pacific Oaks violated the
DSS license capacity limit. We find no error.
It is the sole province of the trial court to weigh evidence
and testimony, including the credibility of statements made in
declarations. (DiRaffael v. California Army National Guard
(2019) 35 Cal.App.5th 692, 718; Schmidt v. Superior Court (2020)
44 Cal.App.5th 570, 582.) When, as here, “witnesses give
conflicting factual accounts and the fact finder makes credibility
assessments to resolve these conflicts, we defer to the fact finder’s
determinations.” (RMR Equipment Rental, Inc. v. Residential
Fund 1347, LLC (2021) 65 Cal.App.5th 383, 392 (RMR).)
McComas gave sworn statements about Pacific Oaks’s
compliance with the DSS license in her deposition, in two
subsequent declarations, and at trial. In its role as the trier of
fact, the trial court assigned weight to McComas’s various
statements. The trial court reasonably credited parts of
48
McComas’s testimony and gave little weight to others. We will
not disturb the trial court’s determinations of McComas’s
credibility on appeal. (RMR, supra, 65 Cal.App.5th at p. 392.)
Plaintiffs argue McComas’s testimony admitting Pacific
Oaks’s noncompliance with the DSS license constituted a binding
admission on Pacific Oaks because McComas was its
administrator and agent; she testified as the person most
knowledgeable; and her statements qualified as party
admissions. However, this argument conflates the admissibility
of evidence with determinations of its weight. The code sections
plaintiffs cite in their opening brief merely describe when certain
party testimony is admissible; they do not establish the degree to
which a factfinder must find the testimony probative or establish
that the testimony must be accepted as true. (Code of Civ. Proc.,
§ 2025.620, subd. (b) [a party’s deposition testimony at trial is
admissible when offered by an adverse party regardless of
availability]; Evid. Code, §§ 1220, 1221 [party admissions and
adoptive admissions are “not made inadmissible by the hearsay
rule,” italics added].) The trial court did not find McComas’s
testimony inadmissible. It assigned weight to her testimony
based on its assessment of the facts in the record. Plaintiffs’
arguments are therefore inapposite.
The case law plaintiffs cite does not aid their argument. In
Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, the court
affirmed the summary adjudication of a defamation claim
because the plaintiff conceded in a deposition and in opposition
papers that the defendant’s allegedly defamatory statement was
true. (Id. at pp. 552–553, citing D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1 (D’Amico).) D’Amico held a
plaintiff’s statements in a declaration do not create a triable issue
49
of fact if they contradict “ ‘a clear and unequivocal admission by
the plaintiff’ ” in a deposition. (D’Amico, at p. 21.) The instant
case is easily distinguishable. The trial court was not tasked
with determining whether there was a triable issue of fact.
Instead, the court was the trier of fact who was required to assess
credibility, resolve evidentiary conflicts, and make factual
findings. Further, McComas’s statements were not “clear and
unequivocal” such that they compelled the trial court to accept
them as irrefutable admissions.
Indeed, the record does not support plaintiffs’ claim that
there was only one reasonable interpretation of McComas’s
testimony. Even in the select excerpts plaintiffs cite, McComas
did not testify that the statements in her 2016 declaration were
based on a specific definition of “capacity.” We find no basis to
disturb the court’s resolution of McComas’s contradictory
testimony.20
V. The Trial Court Correctly Found Plaintiffs Lacked
Standing as to Their UCL Unlawful Conduct Claim
Plaintiffs contend the trial court erred by finding that even
if the inference could be drawn from the sign-in sheets that
Pacific Oaks had more children in attendance than the license
20 Plaintiffs also contend the trial court disregarded
undisputed evidence that Pacific Oaks administrators used
“enrollment” interchangeably with “capacity.” Rosenberg’s
testimony, which plaintiffs cite in support of this claim, does not
reflect that she used the terms synonymously. Further, even if
testimony demonstrated Pacific Oaks administrators used the
term “enrollment” when discussing capacity limits, the proper
interpretation of section 101161 and related regulations is a
question of law. Lay witness testimony on that issue was not
determinative.
50
allowed during the 2009–2010 school year, plaintiffs did not
establish standing under the UCL. We again find no error.
In their objections to the statement of decision, plaintiffs
identified one day in the 2009–2010 school year on which they
claimed Pacific Oaks exceeded its capacity in the afternoon.
However, the trial court noted plaintiffs’ children’s names were
not listed on the attendance records for that day. In fact, the
trial court found the evidence established plaintiffs’ children did
not attend Pacific Oaks until the 2010–2011 school year.
Further, at a post-trial hearing, plaintiffs’ counsel conceded
plaintiffs never had proof, “and did not attempt to present” proof
at trial, that plaintiffs’ children attended a particular program
while it was overcapacity. Plaintiffs’ counsel further stated he
had not examined the attendance records to determine whether
more than 77 students attended Pacific Oaks on dates the named
plaintiffs’ children were present because “[t]hat is not the theory
of [plaintiffs’] case.” In its statement of decision, the trial court
found plaintiffs lacked standing because they did not prove “that
Plaintiffs’ children attended at a time when the number of
children in attendance, or expected to be in attendance, exceeded
the capacity license.”
Plaintiffs contend the trial court’s standing determination
was erroneous as a matter of law.21 We review questions of law
21 Plaintiffs do not contend the evidence was insufficient to
support the trial court’s factual findings. Instead, for the first
time on appeal, they cite evidence that a named plaintiff’s child
was present on the morning of November 15, 2011, when the
number of children in attendance exceeded 77 according to
signatures on the sign-in sheets. Not only did plaintiffs fail to
make this argument in the trial court, it is also based on evidence
51
related to standing de novo and find no error. (San Luis Rey
Racing, Inc. v. California Horse Racing Bd. (2017) 15 Cal.App.5th
67, 73.)
Business and Professions Code section 17203 permits a
private plaintiff to pursue “relief on behalf of others” under the
UCL only if the plaintiff “meets the standing requirements of
Section 17204 . . . .” Business and Professions Code section 17204
authorizes “a person who has suffered injury in fact and has lost
money or property as a result of the unfair competition” to
prosecute an action for relief. (See California Medical Assn. v.
Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1082.)
“To satisfy the [UCL] standing requirements[,] . . . [the
plaintiff] must . . . (1) establish a loss or deprivation of money or
property sufficient to qualify as injury in fact, i.e., economic
injury, and (2) show that that economic injury was the result of,
i.e., caused by, the unfair business practice or false advertising
that is the gravamen of the claim.” (Kwikset Corp. v. Superior
Court (2011) 51 Cal.4th 310, 322, italics omitted.) Where
economic injury is concerned, as here, “[t]he relevant inquiry for
standing purposes is whether a defendant’s unlawful conduct
caused the plaintiff to part with money.” (Mayron v. Google LLC
(2020) 54 Cal.App.5th 566, 575 (Mayron).)
the trial court found inadmissible, a ruling we have concluded
was proper. We therefore do not consider the argument. We
similarly disagree that the notation of “177 students” on the
Pasadena Fire Department’s report established standing. We
have found no abuse of discretion in the trial court’s ruling that
the fire department report’s notation did not conclusively reflect
the number of students present at Pacific Oaks in the preschool
programs on the day the report was made.
52
“In order to pursue a UCL claim, the plaintiff must show
that the practices that it characterizes as unlawful caused it to
suffer an actual economic injury.” (Two Jinn, Inc. v. Government
Payment Service, Inc. (2015) 233 Cal.App.4th 1321, 1333.) Thus,
standing for a UCL claim based on alleged unlawful conduct
requires that the plaintiff show the unlawful conduct itself
caused the economic injury plaintiffs claim they suffered.
Plaintiffs cannot make that showing here based on unlawful
conduct that occurred only when their children were not enrolled
at Pacific Oaks. Plaintiffs appear to claim they have standing
because they would not have enrolled their children had they
known Pacific Oaks operated in violation of the DSS license in
the school year before they began attending the school, even if
they cannot establish a license violation in the years they
actually attended. Yet this theory, even if valid, would only
relate to claims in which the unlawful business practice was the
failure to inform parents of the lack of compliance with the
license. This was the allegation underpinning plaintiffs’ fraud-
based claims. It was insufficient as a basis for standing for the
unlawful conduct claim pled and litigated by plaintiffs that
Pacific Oaks only operated unlawfully by exceeding its capacity
license in violation of state regulations. (Medrazo v. Honda of
North Hollywood (2012) 205 Cal.App.4th 1, 11–12 [trial court
erred by “fail[ing] to take into account the different prongs of the
UCL”].)
As we understand plaintiffs’ argument, they further
contend a reference in In re Tobacco II Cases (2009) 46 Cal.4th
298, 322 (Tobacco II), which expressed doubt about the validity of
an appellate court decision in Collins v. Safeway Stores (1986)
187 Cal.App.3d 62 (Collins), affirming the trial court’s denial of
53
class certification, stands for the proposition that plaintiffs may
have standing under the UCL even when it is impossible to
determine whether they actually purchased a defective product.
Even if this reference was binding precedent, we would find it
inapplicable here due to the disparate facts of this case.
In Collins, it was undisputed that contaminated eggs were
sold to some consumers within a certain time period. (Collins,
supra, 187 Cal.App.3d 62 at pp. 66–67.) The unknown was which
particular consumers received contaminated eggs in their
purchase. In contrast, here, the trial court did not find that there
were violations of the DSS license during the entire class period.
Instead, the court indicated there was an inference of a violation
in the 2009–2010 school year, a year in which the trial court
found plaintiffs’ children were not attending. We further note
that Tobacco II’s discussion of standing generally was in the
context of fraud-based UCL claims alone. (Tobacco II, supra, 46
Cal.4th 298 at pp. 311–312 & fn. 7.) Plaintiffs fail to demonstrate
that the trial court’s ruling was incorrect under either Collins or
Tobacco II.
Because plaintiffs did not present any evidence of a causal
link between any underlying regulatory violation and the nature
of their alleged loss, their payment of tuition did not establish
standing under the UCL. (Mayron, supra, 54 Cal.App.5th at
p. 576; Demeter v. Taxi Computer Services, Inc. (2018) 21
Cal.App.5th 903, 915 [plaintiff failed to show standing where he
adduced no evidence that the defendant’s “alleged failure to
provide him with a written contract containing the terms
required by” law caused him to purchase a membership].)
54
VI. Plaintiffs’ Other Arguments
Plaintiffs make myriad arguments, some for the first time
on appeal, that are insufficiently supported by the record and
legal authority. We deem such arguments forfeited and conclude
we need not address others in light of our conclusions above.
A. Other alleged unlawful conduct under UCL
For the first time on appeal, plaintiffs argue Pacific Oaks’s
failure to regularly monitor daily attendance constituted an
unlawful practice under the UCL. Plaintiffs also contend that
under Health and Safety Code section 1596.76, it was unlawful
for Pacific Oaks to exclude children younger than two, or older
than five, when determining whether the school was in
compliance with the DSS license capacity limit.
Plaintiffs did not raise these theories of UCL liability
below. Consequently, the trial court had no opportunity to
consider them, nor did Pacific Oaks have an opportunity to
respond. “ ‘[A]ppealing parties must adhere to the theory (or
theories) on which their cases were tried. This rule is based on
fairness—it would be unfair, both to the trial court and the
opposing litigants, to permit a change of theory on appeal . . . .’
[Citation.]” (Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 997; Brandwein v. Butler (2013) 218
Cal.App.4th 1485, 1519 [“ ‘Bait and switch on appeal not only
subjects the parties to avoidable expense, but also wreaks havoc
on a judicial system too burdened to retry cases on theories that
could have been raised earlier’ ”].) We will not consider on appeal
plaintiffs’ new theories of liability under the UCL.
55
B. UCL claim based on fraud by misrepresentation
and omission theories
The trial court decertified plaintiffs’ UCL claim based on a
fraud by misrepresentation theory. The court also granted
summary adjudication of plaintiffs’ UCL claim based on a fraud
by omission theory. Plaintiffs do not identify any error in the
trial court’s decertification order, or the summary adjudication
order, with respect to these claims. Instead, plaintiffs cursorily
argue the trial court’s ruling should be reversed because parents
“were likely to be deceived by [Pacific Oaks’s] business practices,”
even if not “illegal per se.” Plaintiffs do not identify the trial
court’s purported errors, explain how their claim satisfies class
requirements or how the facts raised a triable issue, or otherwise
support their position with reasoned argument or citation to
authority. We deem these arguments forfeited. (Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1207.)
C. Common law fraud claims
Our conclusion that enrollment numbers alone could not
demonstrate a violation of the DSS license fatally undermines
plaintiffs’ argument that the trial court erred in denying class
certification of the common law fraud claim. Plaintiffs appear to
assert that even if they failed to show Pacific Oaks engaged in
any illegal activity, the school’s undefined “practices
unquestionably impacted the safety of children,” thus
unidentified “material omission[s]” presented common questions
of law and fact as to reliance. We disagree. The trial court
denied class certification on the ground that whether any
omission was material would require individualized inquiries.
After evaluating the evidence and the parties’ arguments, the
court concluded the evidence was insufficient to conclude class-
56
wide reliance could be presumed by the materiality of the alleged
omission. (In re Vioxx Class Cases (2009) 180 Cal.App.4th 116,
133.) The court’s reasoning was proper based on the evidence
before it, and is further bolstered by the subsequent
determination, which we affirm, that plaintiffs have been unable
to show a violation of the DSS license based on enrollment
numbers, and any potential violation could not be characterized
simply as Pacific Oaks enrolled more children than the DSS
license allowed. Plaintiffs have failed to show the trial court
abused its discretion in denying class certification as to the
common law fraud claim.
D. Restitution arguments
Finally, plaintiffs assert the trial court committed
numerous reversible errors in rejecting plaintiffs’ claims for
restitution. We need not address these arguments. Restitution
was not at issue unless plaintiffs established entitlement to
relief. We have affirmed the trial court’s ruling that plaintiffs did
not make that threshold showing.
[[End nonpublished portion.]]
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DISPOSITION
The trial court’s order is affirmed. Pacific Oaks to recover
its costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
ADAMS, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
58