Biakanja factors in California

2025(Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 400 ; Biakanja, supra, 49 Cal.2d at p. 650 .) Biakanja’s analysis of the remaining factors rested on the plaintiff’s status as the intended beneficiary and the fact that she did not inherit as intended.

2025(Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 400 ; Biakanja, supra, 49 Cal.2d at p. 650 .) Biakanja’s analysis of the remaining factors rested on the plaintiff’s status as the intended beneficiary and the fact that she did not inherit as intended.

2022(Alvarez, supra, 228 Cal.App.4th at p. 948 [“because defendants allegedly agreed to consider modification of the plaintiffs’ loans, the Biakanja factors clearly weigh in favor of a duty”].) The court, today, does not address what liability might ensue, whether for negligence or some other theory such as negligent misrepresentation or promissory estoppel, if a lender or servicer more than merely 2 SHEEN v. WELLS FARGO BANK, N.A.

2022(Alvarez, supra, 228 Cal.App.4th at p. 948 [“because defendants allegedly agreed to consider modification of the plaintiffs’ loans, the Biakanja factors clearly weigh in favor of a duty”].) The court, today, does not address what liability might ensue, whether for negligence or some other theory such as negligent misrepresentation or promissory estoppel, if a lender or servicer more than merely 2 SHEEN v. WELLS FARGO BANK, N.A.

2022(See, e.g., Jolley, supra, 213 Cal.App.4th at p. 900 [in applying the Biakanja factors, asserting that the borrower’s “ability to protect his own interests in the loan modification process was practically nil”].) Yet, without denying the quandary of borrowers in distress, we see no sound basis for recognizing a tort duty limited to this situation.

2022(See, e.g., Jolley, supra, 213 Cal.App.4th at p. 900 [in applying the Biakanja factors, asserting that the borrower’s “ability to protect his own interests in the loan modification process was practically nil”].) Yet, without denying the quandary of borrowers in distress, we see no sound basis for recognizing a tort duty limited to this situation.

2023(See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 845 [a complaint that states a cause of action for fraud “necessarily sufficiently pleads the elements of . . . negligent misrepresentation”]; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68 [“The law imposes a duty not to make negligent misrepresentations of fact.”]; 29 Groverman have not stated what additional facts they could allege to satisfy the Biakanja factors.

2023(See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 845 [a complaint that states a cause of action for fraud “necessarily sufficiently pleads the elements of . . . negligent misrepresentation”]; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68 [“The law imposes a duty not to make negligent misrepresentations of fact.”]; 29 Groverman have not stated what additional facts they could allege to satisfy the Biakanja factors.

2017In Quelimane, the Supreme Court applied the Biakanja factors and "decline[d] to recognize a duty" in negligence. ( Quelimane, supra, 19 Cal.4th at p. 58 , 77 Cal.Rptr.2d 709 , 960 P.2d 513 .) In Centinela, the Supreme Court examined the Biakanja factors and concluded they "support[ed] imposing this continuing common law duty of care" under a negligence theory. ( Centinela, supra, 1 Cal.5th at p. 1020 , 209 Cal.Rptr.3d 280 , 382 P.3d 1116 .) B.

2017In Quelimane, the Supreme Court applied the Biakanja factors and "decline[d] to recognize a duty" in negligence. ( Quelimane, supra, 19 Cal.4th at p. 58 , 77 Cal.Rptr.2d 709 , 960 P.2d 513 .) In Centinela, the Supreme Court examined the Biakanja factors and concluded they "support[ed] imposing this continuing common law duty of care" under a negligence theory. ( Centinela, supra, 1 Cal.5th at p. 1020 , 209 Cal.Rptr.3d 280 , 382 P.3d 1116 .) B.

2001In Bily , the court emphasized that there were three policy concerns that had to be considered before a duty could be found under the Biakanja factors: (1) liability may in particular cases be out of proportion to fault, (2) parties should be encouraged to rely on their own ability to protect themselves through their own prudence, diligence and contracting power, and (3) the potential adverse impact on the class of defendants upon whom the duty is imposed. ( Bily, at pp. 399-405, 11 Cal.Rptr.2d 51 , 834 P.2d 745 ; see also Thing v. LaChusa, supra, 48 Cal.3d at p. 668 , 257 Cal.Rptr. 865 , 771

2001In Bily , the court emphasized that there were three policy concerns that had to be considered before a duty could be found under the Biakanja factors: (1) liability may in particular cases be out of proportion to fault, (2) parties should be encouraged to rely on their own ability to protect themselves through their own prudence, diligence and contracting power, and (3) the potential adverse impact on the class of defendants upon whom the duty is imposed. ( Bily, at pp. 399-405, 11 Cal.Rptr.2d 51 , 834 P.2d 745 ; see also Thing v. LaChusa, supra, 48 Cal.3d at p. 668 , 257 Cal.Rptr. 865 , 771

2020For example, writing about J’Aire, our high court in Aas v. Superior Court (2000) 24 Cal.4th 627 , stated: 28 “Applying the Biakanja factors, the court [in J’Aire] held that a ‘special relationship’ [citation] permitting recovery of economic losses (i.e., the relationship defined by the Biakanja test) existed between the contractor and the tenant.” (Id. at p. 644; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 782 [“The necessary ‘special relationship’ required by J’Aire was established by consideration of six criteria first articulated by the Biakanja court”

2020For example, writing about J’Aire, our high court in Aas v. Superior Court (2000) 24 Cal.4th 627 , stated: 28 “Applying the Biakanja factors, the court [in J’Aire] held that a ‘special relationship’ [citation] permitting recovery of economic losses (i.e., the relationship defined by the Biakanja test) existed between the contractor and the tenant.” (Id. at p. 644; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 782 [“The necessary ‘special relationship’ required by J’Aire was established by consideration of six criteria first articulated by the Biakanja court”

2023If, instead, third parties are simply 7 To the extent the parties use the term “Bily factors” to mean the Biakanja factors (or some combination of the Biakanja and Bily factors), we decline to follow suit and instead distinguish between the factors as applicable for our analysis. 16 permitted to recover from the auditor for mistakes in the client’s financial statements, the auditor becomes, in effect, an insurer of not only the financial statements, but of bad loans and investments in general.” (Bily, supra, 3 Cal.4th at p. 403 .) These principles squarely apply to subsequent purchasers of for

2023If, instead, third parties are simply 7 To the extent the parties use the term “Bily factors” to mean the Biakanja factors (or some combination of the Biakanja and Bily factors), we decline to follow suit and instead distinguish between the factors as applicable for our analysis. 16 permitted to recover from the auditor for mistakes in the client’s financial statements, the auditor becomes, in effect, an insurer of not only the financial statements, but of bad loans and investments in general.” (Bily, supra, 3 Cal.4th at p. 403 .) These principles squarely apply to subsequent purchasers of for

2024(Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905 , 937 (Sheen); J’Aire Corp v. Gregory (1979) 24 Cal.3d 799, 804 .) The Biakanja factors are “ ‘[1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to [the plaintiff], [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.’ ” (Centinela Freeman Emergency Medical Associates v. Health

2024(Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905 , 937 (Sheen); J’Aire Corp v. Gregory (1979) 24 Cal.3d 799, 804 .) The Biakanja factors are “ ‘[1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to [the plaintiff], [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.’ ” (Centinela Freeman Emergency Medical Associates v. Health

2009(Id. at pp. 586-587.) Because the defendant in Lucas was an attorney, however, in addition to the Biakanja factors the court held it was necessary to consider “whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession.” (Lucas, supra, 56 Cal.2d at p. 589 .) The court concluded the extension of a drafting attorney’s liability to “beneficiaries injured by a negligently drawn will” did not threaten an undue burden on the legal profession 4 and held the other factors identified *78 in Biakanja supported recognition

2009(Id. at pp. 586-587.) Because the defendant in Lucas was an attorney, however, in addition to the Biakanja factors the court held it was necessary to consider “whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession.” (Lucas, supra, 56 Cal.2d at p. 589 .) The court concluded the extension of a drafting attorney’s liability to “beneficiaries injured by a negligently drawn will” did not threaten an undue burden on the legal profession 4 and held the other factors identified *78 in Biakanja supported recognition

2023The Biakanja factors “are used to determine whether persons must exercise reasonable care to avoid negligently causing economic loss to others with whom they were not in privity (sometimes referred to as third parties).” (Sheen, supra, 12 Cal.5th at pp. 937-938.) The “Rowland factors serve to determine whether an exception to [Civil Code] section 1714’s general duty of reasonable care is warranted.’” (Sheen, at p. 938, quoting Brown, supra, 11 Cal.5th at pp. 217-218.) In other words, the Biakanja factors apply in this type of case, in which the defendant has a special relationship with an inte

2023The Biakanja factors “are used to determine whether persons must exercise reasonable care to avoid negligently causing economic loss to others with whom they were not in privity (sometimes referred to as third parties).” (Sheen, supra, 12 Cal.5th at pp. 937-938.) The “Rowland factors serve to determine whether an exception to [Civil Code] section 1714’s general duty of reasonable care is warranted.’” (Sheen, at p. 938, quoting Brown, supra, 11 Cal.5th at pp. 217-218.) In other words, the Biakanja factors apply in this type of case, in which the defendant has a special relationship with an inte

2024(See Summit Financial, supra, 27 Cal.4th at pp. 715–716 [under Biakanja test, no duty of care owed to assignee of note-holder paid off from escrow in refinancing]; Alereza v. Chicago Title Co. (2016) 6 Cal.App.5th 551 , 553–554 (Alereza) [under Biakanja test, escrow agent “did not owe a duty of care to [the plaintiff] because he was not a party to the escrow, not mentioned in the escrow instructions as a third party beneficiary, and did not sustain his losses as a direct result of the escrow company’s negligence”].) We reach the same result.

2023(Id. at p. 650.) In Summit, supra, 27 Cal.4th 705 the Supreme Court applied the Biakanja factors to an escrow transaction.

2021(Id. at pp. 649-650.) It stated: “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing futur

2021(Id. at pp. 649-650.) It stated: “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing futur

2025(Southern California Gas Leak Cases, supra, 7 Cal.5th at p. 400 ; Biakanja, supra, 49 Cal.2d at p. 650 .) Biakanja’s analysis of the remaining factors rested on the plaintiff’s status as the intended beneficiary and the fact that she did not inherit as intended.

2024(Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905 , 937 (Sheen); J’Aire Corp v. Gregory (1979) 24 Cal.3d 799, 804 .) The Biakanja factors are “ ‘[1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to [the plaintiff], [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.’ ” (Centinela Freeman Emergency Medical Associates v. Health

2022(Ibid.) We proceeded to apply the Biakanja factors and concluded from this exercise that Great Western owed a duty to the home buyers “to exercise reasonable care to protect them from damages caused by major structural defects.” (Connor, supra, 69 Cal.2d at p. 866 .) “The fact that Great Western was not in privity of contract with any of the plaintiffs except as a lender,” we said, “does not absolve it of liability for its own negligence in creating an unreasonable risk of harm to them.” (Id. at p. 865.) Seizing on the language within Connor, supra, 69 Cal.2d 850 acknowledging that Great Weste

2022(Ibid.) We proceeded to apply the Biakanja factors and concluded from this exercise that Great Western owed a duty to the home buyers “to exercise reasonable care to protect them from damages caused by major structural defects.” (Connor, supra, 69 Cal.2d at p. 866 .) “The fact that Great Western was not in privity of contract with any of the plaintiffs except as a lender,” we said, “does not absolve it of liability for its own negligence in creating an unreasonable risk of harm to them.” (Id. at p. 865.) Seizing on the language within Connor, supra, 69 Cal.2d 850 acknowledging that Great Weste

2022(Aas, at pp. 646, 645.) Thus, in addressing and ultimately rejecting the plaintiffs’ negligence theory, Aas did consider, in a belt-and-suspenders fashion, how the Biakanja factors applied to the facts before it. ( Aas, supra, 24 Cal.4th at pp. 646–649; see also Brown, supra, 11 Cal.5th at p. 219 [explaining that although a case from this court may have considered a set of factors in a “belt-and- suspenders fashion” to “ ‘explain further why we should not impose a duty,’ ” this does not mean that those factors constitute the sole mode of analysis to determine whether a duty exists].) But Aas n

2022(Aas, at pp. 646, 645.) Thus, in addressing and ultimately rejecting the plaintiffs’ negligence theory, Aas did consider, in a belt-and-suspenders fashion, how the Biakanja factors applied to the facts before it. ( Aas, supra, 24 Cal.4th at pp. 646–649; see also Brown, supra, 11 Cal.5th at p. 219 [explaining that although a case from this court may have considered a set of factors in a “belt-and- suspenders fashion” to “ ‘explain further why we should not impose a duty,’ ” this does not mean that those factors constitute the sole mode of analysis to determine whether a duty exists].) But Aas n

2025Co. (2001) 90 Cal.App.4th 352, 363 (Adelman).) For example, in Bily, the court applied the Biakanja factors and concluded that an accountant owed no duty of care to nonclients who read and relied on an audit report.

2025Co. (2001) 90 Cal.App.4th 352, 363 (Adelman).) For example, in Bily, the court applied the Biakanja factors and concluded that an accountant owed no duty of care to nonclients who read and relied on an audit report.

2009(Id. at pp. 586-587.) Because the defendant in Lucas was an attorney, however, in addition to the Biakanja factors the court held it was necessary to consider “whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession.” (Lucas, supra, 56 Cal.2d at p. 589 .) The court concluded the extension of a drafting attorney’s liability to “beneficiaries injured by a negligently drawn will” did not threaten an undue burden on the legal profession 4 and held the other factors identified *78 in Biakanja supported recognition

2009(Id. at pp. 586-587.) Because the defendant in Lucas was an attorney, however, in addition to the Biakanja factors the court held it was necessary to consider “whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession.” (Lucas, supra, 56 Cal.2d at p. 589 .) The court concluded the extension of a drafting attorney’s liability to “beneficiaries injured by a negligently drawn will” did not threaten an undue burden on the legal profession 4 and held the other factors identified *78 in Biakanja supported recognition

2024(See Summit Financial, supra, 27 Cal.4th at pp. 715–716 [under Biakanja test, no duty of care owed to assignee of note-holder paid off from escrow in refinancing]; Alereza v. Chicago Title Co. (2016) 6 Cal.App.5th 551 , 553–554 (Alereza) [under Biakanja test, escrow agent “did not owe a duty of care to [the plaintiff] because he was not a party to the escrow, not mentioned in the escrow instructions as a third party beneficiary, and did not sustain his losses as a direct result of the escrow company’s negligence”].) We reach the same result.

2023(Id. at pp. 715-716.) Similarly, in Alereza v. Chicago Title Co. (2016) 6 Cal.App.5th 551 (Alereza) the court held an escrow company did not owe a third party a duty of care under the Biakanja factors.

2022(Id. at pp. 948-949.) Similarly, in Daniels, supra, 246 Cal.App.4th 1150 the court found, “a lender may owe a duty of care to a borrower based on the Biakanja factors, despite the fact that the lender was acting as a conventional lender.” (Id. at p. 1181.) Applying the factors in Biakanja, the court in Daniels, concluded that the factors weighed in favor of the plaintiff based on the lender advising him to stop making payments so he could seek a loan modification and taking years to decide on the loan modification.

2022(Id. at pp. 948-949.) Similarly, in Daniels, supra, 246 Cal.App.4th 1150 the court found, “a lender may owe a duty of care to a borrower based on the Biakanja factors, despite the fact that the lender was acting as a conventional lender.” (Id. at p. 1181.) Applying the factors in Biakanja, the court in Daniels, concluded that the factors weighed in favor of the plaintiff based on the lender advising him to stop making payments so he could seek a loan modification and taking years to decide on the loan modification.

2020For example, writing about J’Aire, our high court in Aas v. Superior Court (2000) 24 Cal.4th 627 , stated: 28 “Applying the Biakanja factors, the court [in J’Aire] held that a ‘special relationship’ [citation] permitting recovery of economic losses (i.e., the relationship defined by the Biakanja test) existed between the contractor and the tenant.” (Id. at p. 644; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 782 [“The necessary ‘special relationship’ required by J’Aire was established by consideration of six criteria first articulated by the Biakanja court”

2020For example, writing about J’Aire, our high court in Aas v. Superior Court (2000) 24 Cal.4th 627 , stated: 28 “Applying the Biakanja factors, the court [in J’Aire] held that a ‘special relationship’ [citation] permitting recovery of economic losses (i.e., the relationship defined by the Biakanja test) existed between the contractor and the tenant.” (Id. at p. 644; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 782 [“The necessary ‘special relationship’ required by J’Aire was established by consideration of six criteria first articulated by the Biakanja court”

2017A public policy analysis considering the Biakanja factors does not support the conclusion that defendant established the absence of a duty of care as a matter of law. ( Burch v. Superior Court (2014) 223 Cal.App.4th 1411 , 1419-1422, 168 Cal.Rptr.3d 81 [writ issued after trial court granted the defendant's motion for summary adjudication of issues on negligence theory]; Mintz, supra, 172 Cal.App.4th at pp. 1610-1613, 92 Cal.Rptr.3d 422 [reversed judgment on negligence theories after demurrer sustained without leave to amend, holding the defendant owed a duty of care].) C.

2017A public policy analysis considering the Biakanja factors does not support the conclusion that defendant established the absence of a duty of care as a matter of law. ( Burch v. Superior Court (2014) 223 Cal.App.4th 1411 , 1419-1422, 168 Cal.Rptr.3d 81 [writ issued after trial court granted the defendant's motion for summary adjudication of issues on negligence theory]; Mintz, supra, 172 Cal.App.4th at pp. 1610-1613, 92 Cal.Rptr.3d 422 [reversed judgment on negligence theories after demurrer sustained without leave to amend, holding the defendant owed a duty of care].) C.