Cheryl Kelmar vs EdFinancial Services LLC

Case Number

24CV04095

Case Type

Hearing Date / Time

Mon, 02/23/2026 - 10:00

Nature of Proceedings

Demurrer; Motion: Amend For Leave to Amend; Motion: Reconsideration re: Application to Vacate Prefiling

Tentative Ruling

Cheryl Kelmar v. EdFinancial Services LLC                        

Case No. 24CV04095

           

Hearing Date: February 23, 2026                                          

HEARING:              (1) Plaintiff Cheryl Kelmar’s Motion to Reconsider Application to Vacate Prefiling Order and Remove Plaintiff from Judicial Council Vexatious Litigant List

                                    (2) Defendant EdFinancial Services LLC’s Demurrer to Plaintiff’s Complaint

                                    (3) Plaintiff Cheryl Kelmar’s Motion for Leave to File Amended Compliant

ATTORNEYS:        For Plaintiff Cheryl Kelmar: Self Represented

                             For Defendant EdFinancial Services, LLC: Mollie F. Benedict, Tucker Ellis LLP

TENTATIVE RULING:

1. Plaintiff Cheryl Kelmar’s motion to reconsider application to vacate prefiling order and remove plaintiff from Judicial Council vexatious litigant list is denied.
2. Defendant EdFinancial Services LLC’s demurrer to plaintiff’s complaint is sustained with leave to amend.
   1. Plaintiff shall separately file and serve her first amended complaint no later than March 9, 2026. The first amended complaint is not to be the proposed amended complaint that was submitted with plaintiff’s motion for leave to file amended complaint.
3. Plaintiff Cheryl Kelmar’s motion for leave to file amended complaint is denied.

Background:

On July 17, 2024, plaintiff Cheryl Kelmar (Kelmar), who has been declared a vexatious litigant, filed with the court’s approval a complaint against defendant EdFinancial Services, LLC (EFS), alleging two causes of action: (1) breach of contract; and (2) common counts. The complaint is prepared on a form approved for use by the Judicial Council of California. As alleged or effectively alleged in the complaint:

Before the court are:

1. Kelmar’s motion to reconsider application to vacate prefiling order and remove plaintiff from Judicial Council vexatious litigant list.
2. EFS’ demurrer to Kelmar’s complaint.
3. Kelmar’s motion for leave to file amended complaint.

Analysis:

            Self-Representation

Kelmar is self-represented. As is relevant to the pending motions and demurrer:

“[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

            Motion to Reconsider Application to Vacate Prefiling Order

Kelmar moves for reconsideration of the denial of her application to vacate prefiling order and remove her from the Judicial Council vexatious litigant list, arguing that Code of Civil Procedure section 391 et seq. is unconstitutional.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

“The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

Here, the order denying plaintiff’s original application was made on May 29, 2025. The present motion was not filed until December 2, 2025, making the motion late by almost six months. Further, the motion is not accompanied by the required affidavit stating what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. Even if one were to read the motion itself as an affidavit, there are no new or different facts, circumstances, or law claimed. For those reasons the motion will be denied.

Alternatively, the motion will be denied on the substantive grounds that Code of Civil Procedure section 391 et seq. is not unconstitutional as Kelmar claims.

“Vexatious litigant statutes were created “ ‘to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues.’ ” [Citation.] These “ ‘persistent and obsessive’ ” litigants would often file groundless actions against judges and other court officers who made adverse decisions against them. [Citation.] “ ‘Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.’ ” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221.)

“Section 391.7 does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs. [Citation.] Vexatious litigant statutes are constitutional and do not deprive a litigant of due process of law.” (Bravo v. Isamaj, supra, 99 Cal.App.4th at pp. 221-222.)

            Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

As noted above, EFS filed its demurrer to plaintiff’s complaint on October 24, 2025. Thereafter, the following relevant documents were filed:

December 2, 2025, Kelmar filed her opposition to the demurrer.

February 6, 2026, Kelmar filed her “second opposition” to the demurrer. There is no proof of service showing that EFS was served with the second opposition.

February 11, 2026, EFS filed its reply to plaintiff’s opposition to the demurrer.

February 17, 2026, Kelmar filed a third opposition, captioned “Plaintiff’s Opposition to Defendant’s Demurrer and Request to Cancellation of Alleged Student Loan.”

The hearing date for the demurrer is February 23, 2026. All opposition papers must be filed and served nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b). February 12, 2026, and February 16, 2026, were court holidays. Nine court days prior to February 23, 2026 is February 6, 2026. As the court has no proof that the February 6, 2026, “second opposition” was served on EFS, it will be disregarded. As the February 17, 2026, third opposition was not timely filed it will be disregarded.

As noted above, Kelmer’s first cause of action against EFS is breach of contract.

EFS makes an initial argument that it cannot be sued for breach of contract because it is merely a loan servicer and has no contractual relationship or privity with Kelmar as a borrower. However, EFS’ role is not something that can be ascertained from the face of the complaint. As such, that argument fails.

“(a) A complaint or cross-complaint shall contain both of the following:

“(1) A statement of the facts constituting the cause of action, in ordinary and concise language.

“(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.” (Code Civ. Proc., § 425.10, subd. (a).)

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

“ ‘A written contract may be pleaded either by its terms-set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference-or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘ “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” ’ [Citation.]’ ” [Citation.]” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)

Here, the complaint alleges a written contract between the parties. (Compl., ¶ BC-1.) The complaint does not state a date that the contract was entered into or, even generally, the terms of the contract. Plaintiff alleges that on or about “2008 to present” EFS breached the agreement by: ‘EdFinancial alleges that they can charge me 20% gross of my income for a monthly student loan payment for a degree I cannot use thank[s] to the court of Santa Barbara, California.” (Compl., ¶ BC-2.) As claimed damages, Kelmar alleges: “Since I cannot afford a payment of $600 where I am not allowed a more affordable option – the minimum payment is $300, the interest has soared making my initial $10,000 student loan debt now over $50,000.” (Compl., BC-4.)

The allegations are inadequate to state a claim for breach of contract for the following reasons: (1) The terms of the alleged contract are so vague as to make the existence of a contract questionable; and (2) The described breach of the contract does not actually describe a breach of contract.

Kelmar’s opposition does nothing to address the deficiencies in the complaint. Rather, by way of the opposition, Kelmar argues the merits of her case. In ruling on a demurrer, the court is not concerned with what may eventually be proven. It is only concerned with the adequacy of the complaint.

Because the complaint fails to state facts sufficient to constitute a cause of action for breach of contract, the demurrer to that cause of action will be sustained. As there may be some possibility of Kelmar being able to amend her complaint to state a viable cause of action against EFS, under another legal theory, she will be given leave to amend.

Kelmar’s second cause of action is for common counts.

“A common count for reasonable value has the following elements: (1) plaintiff performed certain services for the defendant; (2) the reasonable value of those services; (3) the services were rendered at the request of the defendant; and (4) the services were unpaid.” (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449.)

“A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . ..” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Ibid.)

“[A] complaint is not good as a common count unless it either expressly alleges a promise by the defendant to pay or alleges facts from which such a promise is implied by law. No such facts appear here. If it were alleged that plaintiff’s services were rendered to and received by the defendant, the complaint would be good, under the authorities just cited, because from this fact a promise to pay would be implied. But here the allegation is that the services were rendered to another, and in the absence of a request by respondent therefor, no promise to pay can be implied and the complaint cannot be upheld as a common count, unless some liability to pay for these services is otherwise cast upon respondent by law.” (Smith v. Bentsom (1932) 127 Cal.App.Supp.789, 794.)

Kelmar’s cause of action for common counts merely states that EFS became indebted to her. It does not even say by what means EFS became indebted to her or when.

Because the common counts cause of action appears to be based on the same allegations as the breach of contract cause of action, and because plaintiff alleges none of the elements of a cause of action for common counts, the complaint does not state facts sufficient to constitute a cause of action. The demurrer will be sustained, with leave to amend.

            Motion for Leave to File First Amended Complaint

Kelmar seeks to file a first amended complaint. The proposed complaint is attached to Kelmar’s motion.

Pursuant to Code of Civil procedure section 473(a)(1), the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading. The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

“Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [Citation.]” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

Motion Requirements:

“(a) Contents of motion

A motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

“(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

“(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

“(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

“(1) The effect of the amendment;

“(2) Why the amendment is necessary and proper;

“(3) When the facts giving rise to the amended allegations were discovered; and

“(4) The reasons why the request for amendment was not made earlier.

“(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

“(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.” (Cal. Rules of Court, rule 3.1324.)

Here, the only requirement that Kelmar met, for her motion, was to include a copy of the proposed amended pleading. She did not comply with any of the other motion requirements. Further, the proposed complaint would fail for the same reasons that the demurrer to the original complaint will be sustained. As such, Kelmar’s motion for leave to file the amended complaint will be denied. This denial of Kelmar’s motion does not preclude Kelmar from filing a different first amended complaint in response to the demurrer to the original complaint being sustained with leave to amend.