Tillerson v. Nature Works Global CA4/1

Filed 10/21/26 Tillerson v. Nature Works Global CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA WILLIAM E. TILLERSON, JR., D084332 Plaintiff and Appellant, v. (Super. Ct. No. 37-2021- 00032844-CU-FR-CTL) NATURE WORKS GLOBAL, INC. et al., Defendants and Appellants. APPEALS from a judgment of the Superior Court of San Diego County, Marcella O. McLaughlin, Judge. Cross-appeal dismissed in part; judgment reversed and remanded with directions. Halimi Law Firm and Daniel I. Halimi for Plaintiff and Appellant. Klinedinst and Robert M. Shaughnessy for Defendants and Appellants. Over a period of ten years, William E. Tillerson, Jr.—an investor in Nature Works Global, Inc. (Global)—contends he loaned that entity; its principals, Nancy Moran and Valerie Salatino; and Moran and Salatino’s other company, Nature Works Sculpture, Inc. (Sculpture) (collectively, Defendants), $160,000. After sending a demand letter and receiving no repayment, Tillerson sued Defendants in the superior court. Following a bench trial, the court issued a statement of decision concluding Tillerson prevailed on his cause of action for negligent misrepresentation as to some of the loans but did not prevail on his causes of action for fraud—false promises, intentional misrepresentation, and financial elder abuse. Both sides appealed. We conclude we have jurisdiction over Tillerson’s appeal as to Salatino, which was timely, but that we lack jurisdiction to hear his appeal as to the remaining Defendants, as to whom his notice of appeal was untimely. Tillerson’s deadline to appeal as to Salatino was extended by an automatic bankruptcy stay and 11 United States Code section 108(c)(2). But that stay did not extend to the other Defendants, so section 108(c)(2) did not extend Tillerson’s deadline to appeal as to them. Defendants argue the trial court erred as a matter of law in deciding in Tillerson’s favor on his negligent misrepresentation cause of action because none of the statements on which Tillerson allegedly relied were actionable. We agree. Most of the purported misrepresentations concern promises or intentions to do something in the future rather than misstatements of a past or existing material fact. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) Others are nonactionable omissions (Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 596), opinions (Neu- Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308), or misstatements of the law (Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 202). We thus reverse the judgment in Tillerson’s favor on his negligent misrepresentation cause of action. Tillerson contends the trial court erred by excluding as a settlement communication under Evidence Code section 1152 a letter written by Defendants in response to his demand letter, which he intended to introduce 2 to show Defendants’ fraudulent intent. We agree the letter was not made in the context of settlement negotiations and therefore was not made inadmissible on this ground. Nonetheless, the letter’s exclusion was harmless given its characterization of Tillerson’s loans as philanthropy was elicited through other sources at trial, making the letter cumulative. Tillerson further claims the trial court erred in concluding that Defendants lacked fraudulent intent, contending they never intended to repay him or, to the extent they did, that they only intended to conditionally repay if they succeeded in obtaining their attorney fees in another action, a condition never conveyed to Tillerson. We conclude, however, that substantial evidence supports the court’s finding that Defendants did not act with an intent to defraud. Finally, as to his financial abuse of an elder claim, Tillerson maintains the trial court erred in failing to determine whether he proved Defendants took his money for a wrongful purpose. But Tillerson forfeited this argument by failing to raise this alternate theory for Defendants’ liability in the trial court. Accordingly, we dismiss Tillerson’s cross-appeal as to Moran, Sculpture, and Global; reverse the judgment as to the negligent misrepresentation claim; and remand with directions to enter judgment in favor of Defendants. I. Tillerson is a Navy veteran and retired commercial airline pilot. Salatino is the Chief Financial Officer of both Sculpture and Global. Moran is the Chief Executive Officer of both Sculpture and Global. 3  According to Salatino, Sculpture, also known as Nature Works, Inc., is a “design build focused small business” that “specialize[s] in replicating nature sculpture.” Salatino and Moran are the only owners. Salatino describes Global as “geared toward the lawn and garden industry, [and] based on the creation of tools [that have] never been invented before.” A. In 2010, a neighbor introduced Tillerson to Salatino and Moran. Tillerson invested $25,000 to obtain 10,000 shares in Global. Over the next 10 years, Tillerson made 16 loans totaling $160,000 to Defendants. 1. On December 31, 2010, Tillerson loaned Salatino $12,500. In the check’s memo section, Tillerson wrote, “Nature Works Global, NWG.” According to Tillerson, Salatino conveyed that “the money was for her company,” which was experiencing financial difficulties. Salatino subsequently informed Tillerson he “could keep it as a loan or convert it to stock.” Tillerson elected to convert the loan to stock. 2. On April 5, 2011, Tillerson made his second loan. Following a discussion with Moran and Salatino, who were “desperate for more money” and talked about making Tillerson a vice president, Tillerson wrote a $12,500 check to cash. When Tillerson went to the bank, the teller told him a cashier’s check was “just as good,” so he “had a cashier’s check made up” instead to Salatino. The money was supposed to go to the company for “research and development” and “creating tools” for their product. Salatino and Moran never again mentioned making Tillerson a vice president. But 4 Tillerson testified that this representation did not motivate him to make the loan. 3. In December 2015, Tillerson loaned Salatino $2,500. Tillerson made out a check to himself for $7,000. He gave Salatino $2,500 in cash and kept the remainder for himself. 4. Tillerson made his fourth loan on January 9, 2017. He wrote a check for $3,000 made out to Salatino as a personal loan. Tillerson misplaced the document Salatino drew up memorializing this loan as well as loan 3. 5. In July 2018, Tillerson met with Salatino, who requested a loan “to get the commercial product . . . all the way through samples in hand.” In an e-mail several days later, Salatino wrote to Tillerson that she and Moran were “‘motivated to follow through on getting the Hydravine moving. We are almost there. If you can help in any way, we would be interested in making it worth your while in shares or in interest or both or any other ideas you might have.’” On August 5, 2018, Tillerson wrote a check for $12,500 payable to Salatino, with “Nature Works” on the memo line. Tillerson told Salatino he was “giving her extra money to make sure [she] finish[ed] this product.” In a subsequent e-mail, Salatino confirmed that the money was a loan. She indicated that $4,000 of the money went toward “fix[ing] the suspended status” of Sculpture. At trial, Salatino contested that the sole purpose of the loan was to fund the Hydravine project. 5  6. In October 2018, Salatino asked Tillerson “for a loan for attorney fees” in litigation the City of Temecula had brought against Sculpture. In an e- mail, she also indicated that “‘[o]ur shop’s base is in jeopardy’” and “‘[w]e stand to be evicted if we don’t pay $2,800 by the 29th of October.’” On October 29, Tillerson met with Salatino and Moran. Tillerson initially wrote a check for $1,500, but Salatino “looked at it and didn’t take it and said, we need more than $10,000.” Tillerson then made out a check for $12,500 payable to Sculpture. According to Tillerson, the loan was intended for use for attorney fees only, although no limitations on the use of the money were expressly conveyed in writing. Tillerson asked if he was “going to get anything in writing for this,” but Salatino and Moran responded with “total silence.” In November, Salatino e-mailed Tillerson and indicated she and Moran “‘were able to make the payment’” to their landlord thanks to Tillerson’s loan. 7. In March 2019, Salatino e-mailed Tillerson that “‘[o]ur warehouse and our homes are at risk right now’” and that $9,000 “‘would keep the ship steady until settlement’” of the Temecula litigation. Salatino said that once the case settled, she and Moran “‘will promptly pay you back the loans you have helped us with.’” Tillerson e-mailed back that he would give Salatino and Moran the loan because he did not “‘want either of [them] to lose [their] homes.’” On March 21, Tillerson initially made out a $9,000 check to Sculpture. Salatino accompanied him to the bank, where she was told the money would not be available until the next day. She then asked Tillerson to write a personal check to her instead, which he did. 6  A month later, Salatino e-mailed Tillerson, copying Moran, to thank him “‘for all you have done for us. We will prevail and repay you.’” 8. In April 2019, Salatino e-mailed Tillerson asking him to help raise $25,000 to hire an attorney for the Temecula litigation, offering to back the loan with “a promissory note on” her home. Moran also offered to “use the equity on her home as collateral.” Tillerson responded that if he “‘were to provide any funds today, [he] would be hiring an attorney upon [his] return from visiting [his] uncle for the sole purpose of filing a lawsuit against both of [them] by year’s end’” “‘for full repayment of all loans and more.’” He indicated “‘[t]he stipulations for any additional loans include the following. You will pay back all professional loans and personal loans to everyone providing you money by the end of the year. That includes all other investors in Nature Works.’” After a phone call with Moran, Tillerson contacted Salatino and told her he would give her the loan. On May 1, Tillerson wrote a check for $20,000 payable to Sculpture to be used as the retainer fee for its new counsel. It was intended as a loan to be repaid regardless of the outcome of the Temecula litigation. No promissory note was ever provided to Tillerson. 9. Tillerson made his ninth loan on June 19, 2019. About a week earlier, Salatino e-mailed Tillerson asking for $5,000 “to finalize payment to our new lawyer” in the Temecula litigation. Salatino said, “We will be awarded our attorney fees” and “we are going to [pay] you back.” She reiterated in a subsequent e-mail that “we will pay you back when we win this case.” 7  Tillerson wrote a check for $5,000 payable to Nature Works, Inc. with “P.G.” in the memo line—the initials of the lawyer Salatino had indicated Defendants intended to retain. 10. Tillerson’s tenth loan—evidenced by an August 8, 2019 check for $800 made payable to Nature Works, Inc. with the memo “Lawyer”—was for “an additional fee that [the Defendants] were requested to pay to” their attorney. 11. In late August 2019, Salatino “called and left a message . . . that they . . . wanted [Tillerson] to come in and help them out with mortgage payments.” On August 31, 2019, Tillerson wrote a check for $12,000 payable to Nature Works, Inc. In September, Tillerson followed up on the outstanding loans, and Salatino e-mailed back: “We both acknowledge the loan amount and we intend on paying you back.” 12. In October 2019, Salatino e-mailed Tillerson, copying Moran, to ask for yet another loan for attorney fees for the Temecula litigation. On October 22, 2019, Tillerson wrote a check for $7,500 payable to Nature Works, Inc. to provide a retainer fee for a new attorney. 13. When Tillerson handed Salatino the check for loan 12, she asked for another loan to cover her and Moran’s mortgages and living expenses. So, on October 22, 2019, Tillerson wrote a check for $5,500 for that purpose. 14. In December 2019, Salatino again e-mailed Tillerson. She promised to pay Tillerson and “‘others who have helped us’” back but said she and Moran 8 needed “‘one last loan.’” Salatino offered to “‘back the loan with [her] condo,’” but never prepared the paperwork to do so. On December 22, 2019, Tillerson wrote and gave to Salatino a check in the amount of $4,500, payable to Nature Works, Inc., for Salatino and Moran to pay their mortgages. 15. In early January 2020, Salatino called Tillerson to tell him “her home was in trouble” and that she needed a $35,000 loan. He refused to give her the money. A couple weeks later, she informed Tillerson that “her home had gone into foreclosure.” In late January, Salatino called him and “plead[ed] for a loan” because her home was going to be auctioned on February 19. Tillerson said he would provide the loan if an attorney wrote up a loan agreement, it was witnessed, and the agreement offered her home as collateral. On February 11, 2020, Tillerson wrote a check payable to Salatino for $35,000. She provided a promissory note, but it was not written by an attorney, was not witnessed, and did not offer her home as collateral. The promissory note indicated she would pay the loan back within one year. 16. Tillerson made another loan that was omitted from the original complaint but included in the amended complaint as “loan #2.5.” (Capitalization omitted.) In September 2013, he gave Salatino a personal loan of $5,200 in cash to help her “get back on track with [her] home and the agreement that she had with” a bank. The loan was memorialized with a loan agreement. The loan was never repaid. 9  B. After making loan 13, Tillerson decided to seek legal counsel. On November 29, 2019, he wrote demand letters to both Salatino and Moran demanding full and immediate repayment of all loans once the Temecula litigation was finally settled. In early December, he mailed Moran her demand letter and gave Salatino her letter during a meeting. Tillerson decided not to pursue a civil lawsuit against them at this time because of their promises to repay the loans upon the conclusion of the Temecula litigation. Salatino and Moran won the Temecula litigation and assured Tillerson they were going to recover their full attorney fees and court costs. But they only ended up recovering about $8,000. Tillerson had to call the courthouse himself to find this out; Salatino never updated him. About six weeks later, Tillerson requested a promissory note from Salatino and Moran evidencing the loans for which he had received no promissory notes. After about six months of e-mailing back and forth, Salatino “said it would be too stressful to do that.” Afterwards, while making some public records requests regarding Salatino’s property, Tillerson discovered she had nine liens on her home, six of which existed before Tillerson even met her. He also discovered a number of foreclosures and auction dates during the period he made her loans of which he had not previously been aware. C. On August 2, 2021, Tillerson sued Defendants for “fraud—false promises,” intentional misrepresentation, negligent misrepresentation, conversion, breach of contract, “common count: money had and received,” breach of the implied covenant of good faith and fair dealing, and financial 10 elder abuse. Tillerson alleged “that each Defendant was the agent, servant, and employee of each and every other Defendant and, in doing the acts herein alleged, was acting within . . . the scope and pursuant to such agency and employment.” Tillerson “[a]lternatively” alleged “each Defendant ratified, approved[,] or condoned the actions of every other Defendant.” On July 6, 2022, Salatino filed a chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Southern District of California. In September, Tillerson moved for relief from the automatic bankruptcy stay “to permit [him] to proceed against” Salatino in the pending litigation. In November, the bankruptcy court granted the requested relief, ordering that the litigation “may continue against Debtor Valerie Salatino to judgment. To the extent the stay continues following Debtor’s discharge, it shall remain in effect as to the enforcement of any resulting judgment.” A four-day bench trial was held in November 2023. Tillerson, Salatino, and Moran all testified. The parties filed a stipulated first amended complaint and first amended answer midtrial. At the conclusion of the bench trial, counsel for both sides made a general request for a statement of decision. D. In February 2024, the court issued its final statement of decision. Prior to that, both parties had objected to the proposed statement of decision. “The [c]ourt found credibility issues regarding . . . Salatino’s testimony.” In particular, the court noted that “[s]he was not particularly forthcoming with [Tillerson] about the status of her property or the property’s foreclosure history”; “did not disclos[e] her financial struggles with clarity to Mr. Tillerson, nor the history of liens on her property”; and “was evasive . . . during trial testimony about the same.” “The [c]ourt also found defendant 11 Moran’s testimony to lack credibility on several points.” Specifically, Moran “characterized [Tillerson] simply [as] a generous person, feigned ignorance about [the] history of [the] loan transactions when an email she sent to [Tillerson] communicated clear understanding of [the] relationship, and attempted to distance herself from the loan transactions when she is the CFO of both companies and [Salatino]’s business partner.” The court concluded Defendants were equitably estopped from asserting the statute of limitations. It concluded all Defendants were jointly and severally liable for negligent misrepresentations as to loans 5 through 14. As to loan 15, the court found Salatino, Global, and Sculpture jointly and severally liable, also on the basis of negligent misrepresentation. The court concluded Tillerson failed to prove “specific intent to defraud” for purposes of his elder abuse cause of action. The court further concluded Tillerson “[fell] short on his burden” to establish “both fraud and intentional misrepresentation.” Given these conclusions, the court found “it is unnecessary to address the other causes of action,” comprising conversion, breach of contract, money had and received, and breach of the implied covenant of good faith and fair dealing. E. On February 16, 2024, judgment was entered in Tillerson’s favor. Defendants unsuccessfully moved to set aside and vacate the judgment. On May 30, Defendants timely filed and served their notice of appeal from the February 16 judgment. The superior court clerk served notification of the notice of appeal on May 31. On September 18, the bankruptcy court issued an order on pretrial status conference in bankruptcy case number 22-01799-LT7 (Tillerson’s adversary proceeding against Salatino). The order “sua sponte retroactively 12 lift[ed] the automatic stay as to” Salatino “related to her filing of an appeal in the California Fourth Appellate District Division One.” It also “sua sponte approve[d] relief from stay as to” Tillerson so he “may also pursue appeal- related proceedings . . . , including any appeal of his own.” The court indicated that Tillerson’s “time for filing any appeal and/or cross appeal” would “commence upon the signed and entered date of this order.” Tillerson filed his notice of cross-appeal on September 18. II. A. As an initial matter, we address our jurisdiction over Tillerson’s cross- appeal. We requested briefing on this fundamental issue from the parties. We conclude Tillerson’s notice of appeal was timely as to Salatino and that we have jurisdiction over his appeal as to her; however, we conclude his notice of appeal was untimely as to the remaining Defendants, so we dismiss the appeal as to them. “[F]iling a timely notice of appeal is a jurisdictional requirement.” (Bourhis v. Lord (2013) 56 Cal.4th 320, 329.) “In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal”—“even to relieve against mistake, inadvertence, accident, or misfortune.” (Estate of Hanley (1943) 23 Cal.2d 120, 123.) “If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk serves notification of the first appeal.” (Cal. Rules of Court, rule 8.108(g)(1).) The parties appear to agree that the clerk served the relevant notification on May 31, 2024. Accordingly, Tillerson’s deadline to appeal was 20 days later, on June 20. (Cal. Rules of Court, rule 8.108(g)(1).) He did not 13 file until nearly three months after that, on September 18. Absent any basis for extending the deadline, his notice of appeal was therefore untimely. Tillerson argues a combination of the automatic bankruptcy stay and a statutory extension save his cross-appeal from untimeliness. We agree as to Salatino but disagree as to the remaining Defendants, none of whom were debtors to whom the automatic stay extended. In general, the filing of a bankruptcy petition “operates as a stay” of “the commencement or continuation . . . of a judicial . . . action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy] case.” (11 U.S.C. § 362(a)(1).) “The automatic stay is an injunction issuing from the authority of the bankruptcy court, and bankruptcy court orders are not subject to collateral attack in other courts.” (In re Gruntz (9th Cir. 2000) 202 F.3d 1074, 1082.) Accordingly, “[a]ny state court modification of the automatic stay would constitute an unauthorized infringement upon the bankruptcy court’s jurisdiction to enforce the stay” (ibid., italics added), although this does not mean “that states lack jurisdiction to determine the applicability of . . . the stay” (In re Lenke (Bankr. D.Ariz. 2000) 249 B.R. 1, 8, italics added). In short, we examine whether the stay affects our jurisdiction, but in doing so we defer to the bankruptcy court’s interpretation of its own stay order. Here, the bankruptcy court lifted the automatic stay in 2022 to permit the matter in the superior court to “continue against Debtor Valerie Salatino to judgment.” During a hearing in the bankruptcy adversary proceeding in August 2024, the bankruptcy court noted an “ambiguity” in the order lifting the stay, noting it “arguably[] stops stay relief at the end of the jury trial or the trial by Judge McLaughlin.” Accordingly, the bankruptcy court decided “to clarify it for everybody.” 14  In its tentative ruling the day of the hearing, the bankruptcy court indicated that “[t]he automatic stay does not protect third parties in virtually all circumstances” and that it “does not believe that the stay bars pursuit of claims against third parties here.” In its subsequent September 18 order, the bankruptcy court retroactively lifted the stay as to Salatino to make her notice of appeal timely. The bankruptcy court noted it was granting relief from the stay “so that William Tillerson may file a timely appeal and/or cross appeal from the final judgment entered in” the superior court matter. The bankruptcy court specified “[t]he time for filing any appeal and/or cross appeal by Plaintiff William Tillerson shall commence upon the signed and entered date of this order lifting the stay”—i.e., September 18. We interpret the bankruptcy court’s order as concluding that the automatic stay went back into effect after the superior court entered judgment in this matter, and we consider ourselves bound by that ruling. Accordingly, Tillerson could not appeal as to Salatino without violating the stay until the bankruptcy court granted relief from the stay. Under 11 United States Code section 108(c)(2), accordingly, Tillerson’s appeal as to Salatino is timely. That provision provides that, “if applicable nonbankruptcy law . . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the [bankruptcy] petition, then such period does not expire until the later of” “30 days after notice of the termination or expiration of the stay.” We agree with other courts that have concluded that the filing of a notice of appeal constitutes “continuing a civil action” under this provision. (§ 108(c); see, e.g., In re Hoffinger Industries, Inc. (8th Cir. 2003) 329 F.3d 948, 953; Vitamins Online, Inc. v. Heartwise, Inc. (10th Cir. 2023) 71 F.4th 1222, 1235.) 15 Because section 108(c)(2) extended the deadline for Tillerson to file his notice of appeal as to Salatino until thirty days after notice of the stay’s termination, and because the bankruptcy court granted relief from the stay on September 18, Tillerson’s September 18 notice of appeal is timely as to Salatino. The analysis is different, however, as to the non-debtor Defendants. In the Ninth Circuit, the “‘general rule’” is “‘that the automatic stay does not apply to actions against non-debtors.’” (International Petroleum Products and Additives Company, Inc. v. Black Gold S.A.R.L. (9th Cir. 2024) 115 F.4th 1202, 1216.) Tillerson argues the bankruptcy court “intended” to extend the stay to the remaining Defendants pursuant to A.H. Robins Co. v. Piccinin (4th Cir. 1986) 788 F.2d 994, 999, which holds that “‘unusual circumstances’” may merit extending the stay to non-debtor codefendants. But the bankruptcy court’s minute order issued the day of the hearing, stating that it “does not believe that the stay bars pursuit of claims against third parties here,” suggests otherwise. Because the stay did not apply to the remaining non-debtor Defendants, section 108(c)(2) cannot extend the time in which Tillerson was required to file a notice of appeal as to them. His appeal as to them was therefore untimely. We are mindful of comity, but that the bankruptcy court stated that Tillerson’s “time for filing any appeal and/or cross appeal . . . shall commence upon the signed and entered date of this order” does not affect this determination. While the bankruptcy court can indirectly extend the deadline to file a notice of appeal as a result of its rulings concerning the scope of its stay, we conclude a federal bankruptcy court is just as powerless to directly extend our appellate deadline as a state court is. (Estate of Hanley, 23 Cal.2d at p. 123.) Thus, absent a ruling that the stay extended to 16 the non-debtor Defendants, the bankruptcy court could not declare Tillerson’s time to commence his appeal as to the remaining Defendants began at some later time. Because the notice of appeal was untimely as to the remaining Defendants, we dismiss this appeal as to them. (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454.) B. “In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) “We apply a substantial evidence standard of review to the trial court’s findings of fact.” (Ibid.) “[F]indings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings.” (Ibid.) C. Defendants argue Tillerson’s negligent misrepresentation cause of action fails as a matter of law and the court accordingly erred in granting judgment in Tillerson’s favor on this cause of action because, among other alleged defects, the purported misrepresentations were opinions or forward- looking statements that are unactionable as negligent misrepresentations. We agree. The elements of a claim of negligent misrepresentation are “(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) 17  For purposes of element one, the alleged misrepresentation cannot be “a promise to perform at some future time.” (Tarmann, 2 Cal.App.4th at p. 158.) Neither are omissions actionable as negligent misrepresentations: an affirmative statement is required. (Lopez, 201 Cal.App.4th at p. 596.) “The law is quite clear that expressions of opinion are not generally treated as representations of fact, and thus are not grounds for a misrepresentation cause of action.” (Neu-Visions, 86 Cal.App.4th at p. 308.) “Under certain circumstances, expressions of professional opinion are treated as representations of fact.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 408, italics added.) But generally, “‘[p]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’” (Tarmann, at p. 158.) Tillerson fails to point to specific statements for some loans, and the statements he identifies cannot ground a negligent misrepresentation claim. Tillerson argues Defendants’ representations “that prevailing at trial results in the other side paying attorneys’ fees, when that is simply not true in California,” “misrepresent an underlying existing fact.” But “[a] misrepresentation of law is ordinarily not actionable in the absence of a confidential relationship or other special circumstance.” (Cicone, 183 Cal.App.3d at p. 202.) “The theory is either that everyone is bound to know the law, or that a statement regarding the law is a mere opinion on which one may not rely.” (Ibid.) The record evidence does not establish any confidential relationship existed between Tillerson and Defendants, nor does the evidence disclose any special circumstances that might otherwise make this statement actionable. The statement is therefore not actionable as a negligent misrepresentation. 18  As to many of the loans—including loans 7, 9, 11, 14, and 15—Tillerson claims Defendants promised he would be repaid but failed to follow through. These representations are similar to the statements Tarmann found nonactionable: promises made by the defendant insurance company’s agents to pay the plaintiff for her automobile repairs “‘immediately upon completion of those repairs.’” (Tarmann, 2 Cal.App.4th at pp. 156-157, 158.) These statements are “promise[s] to perform at some future time” rather than a statement of past or existing material fact. (Id. at p. 158.) Accordingly, to the extent Tillerson relies on promises to repay the loans as negligent misrepresentations, those statements are not actionable on a negligent misrepresentation theory. (Ibid.) As to loan 5, Salatino requested funds “to get the commercial product . . . all the way through samples in hand.” Defendants, however, used a portion of the money to fix Sculpture’s suspended corporate status. This was a statement about the intended future use of the loan proceeds rather than a statement of past or existing fact. Even Tillerson, in his respondent’s brief, acknowledges as much. Accordingly, it is not an actionable negligent misrepresentation, either. As to loan 6, Salatino requested “a loan for attorney fees” in the Temecula litigation, although she also indicated to Tillerson that Defendants were facing eviction from their workspace. While Tillerson intended the loan to only be used for attorney fees, he did not testify that he conveyed any such limitation on the use of the money to Salatino or Moran, whose request, once more, concerned a future use of the funds. Accordingly, this, too, is not an actionable negligent misrepresentation. As to loan 8, Tillerson provided a loan of $20,000 for a retainer fee for the Temecula litigation. Before he made the loan, both Salatino and Moran 19 offered to repay the loans and use their homes as collateral, but they did not provide Tillerson a promissory note. They also represented he would be repaid “when” they prevailed in the Temecula litigation. These representations are, respectively, a promise to perform some act at a future time and a prediction of future events rather than a misrepresentation of past or existing material fact; thus, neither is actionable as a negligent misrepresentation. As to loan 9, to the extent Tillerson claims the misrepresentation was Salatino’s representation to Tillerson that Defendants would be awarded their attorney fees in the Temecula litigation and he would be repaid from those funds, this is a prediction of future events, which cannot ground a negligent misrepresentation claim. As to loans 10, 12, and 13, it is unclear what negligent misrepresentation Defendants allegedly made. Tillerson identifies none in his respondent’s brief’s loan-by-loan analysis, but from the background section it appears he may be relying generally on Salatino’s repeated statements that Defendants would repay the loans. As promises of future action rather than statements of existing or past material fact, however, these statements are not actionable as negligent misrepresentations. As to loan 11, to the extent Tillerson relies on Salatino’s failure to disclose that she was delinquent on her homeowners’ association fees and her mortgage, a negligent misrepresentation claim cannot be premised on an omission. (Lopez, 201 Cal.App.4th at p. 596.) As to loan 14, Salatino represented that she would “‘back the loan with [her] condo’” but failed to provide the relevant paperwork. Salatino also indicated she and Moran “‘will be paying [him] back.’” As with many of the loans already addressed, these are promises to perform some act at a future 20 time rather than misrepresentations of past or existing material facts. These statements thus cannot form the basis of a negligent misrepresentation claim. Finally, as to loan 15, Tillerson asked that Salatino have an attorney write up a loan agreement, have the loan agreement witnessed, and offer her home as collateral. There is no indication she ever represented she would comply with these specific requirements, however, and she ended up not doing so. Salatino instead provided Tillerson with a promissory note in which she agreed to pay him back within one year, offering no collateral. That is, as Defendants argue, “clearly a forward-looking promise.” We accordingly fail to perceive the basis for a negligent misrepresentation for this loan. Because we conclude that, under any standard of review, none of the statements were actionable as negligent misrepresentations as a matter of law, we must reverse the judgment partly in Tillerson’s favor on this cause of action. Given this result, we do not address the other purported errors Defendants identify as to this cause of action. D. We now turn to Tillerson’s arguments. 1. Tillerson contends the trial court erred “by excluding admissible evidence of Salatino and Moran’s fraudulent intent[] when it sustained [Defendants’] objection to the introduction of their written letter responding to an attorney’s demand letter[] on the grounds that it was a ‘settlement communication’ under Evidence Code section 1152.” We agree this was error but conclude it was harmless. 21  Section 1152(a) provides: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money . . . to another who has sustained or will sustain or claims [to have] sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove [that person’s] liability for the loss or damage or any part of it.” “[W]hen the issue involves evaluating particular facts and applying established law to those facts,” a “trial court’s ruling excluding evidence under section[] 1152 . . . is properly reviewed for an abuse of discretion.” (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) But where “the trial court’s decision depends on the proper construction of section[] 1152 . . . , as here, the issue is a question of law, which we review de novo.” (Ibid.) We conclude section 1152 cannot reasonably be interpreted to extend to Defendants’ response to Tillerson’s demand letter. The letter was not sent as a compromise or even as part of a negotiation to try to settle the dispute. Rather, the letter flatly denies any liability at all, claiming the money Tillerson gave Defendants was “philanthropy.” Such a letter is not in any way related to settlement negotiations and therefore is not excludable under section 1152.