On 06/28/2013 ONEUNITED BANK filed a Contract - Debt Collection lawsuit against MASSOUD G TAYYAR. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ and DONNA FIELDS GOLDSTEIN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. MATZ
DONNA FIELDS GOLDSTEIN
EFFECTIVE MORTGAGE COMPANY
SALINAS CYNTHIA M.
STEVE FAIR DOE 1 11 61 AND 71
TAYYAR MASSOUD G.
STEVE FAIR DOE AND 71
EPPORT RICHMAN & ROBBINS LLP
EPPORT & RICHMAN LAW OFFICES OF
GOODFRIEND MARK E.
LAW OFFICES OF MARK E. GOODFRIEND
Court documents are not available for this case.
Notice (OF SETTING TRIAL DATE ) Filed by Attorney for PlaintiffRead MoreRead Less
Notice (OF ENTRY OF ORDER IN BANKRUPTCY CASE ) Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Notice (OF LODGEMNT OF ORDER IN BANKRUPTCY CASE RE; MOTION FOR RELIEF FROM STAY ) Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Notice (OF FURHTER CONTINUED STATUS CONFERENCE RE BANKCRUPTCH ) Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Notice (OF CONTINUED STATUS CONFERENCE ) Filed by Attorney for PlaintiffRead MoreRead Less
Notice-Related Cases Filed by Attorney for PlaintiffRead MoreRead Less
Notice of Ruling Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Declaration (OF TYLER R. WOSALL ) Filed by Attorney for PlaintiffRead MoreRead Less
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Notice of Ruling (OF TRIAL SETTING CONFERENCE. ) Filed by Atty for Plaintiff and Cross-DeftRead MoreRead Less
Declaration (OF MALCOLM BENNETT IN SUPPORT OF MOTION FOR APPOINTMENT OF RECEIVER ) Filed by Attorney for PlaintiffRead MoreRead Less
Miscellaneous-Other (NOMINATION OF MALCOLM BENNETT AS RECEIVER ) Filed by Attorney for PlaintiffRead MoreRead Less
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Case Number: EC060889 Hearing Date: August 07, 2020 Dept: E
MOTION FOR SUMMARY ADJUDICATION
[CCP § 437c; CRC 3.1350 et seq.]
Date: 8/7/20 (3:30 PM)
Case: OneUnited Bank v. Massoud G. Tayyar, et al. (EC060889)
Plaintiff and Cross-defendant OneUnited Bank’s Motion for Summary Adjudication is DENIED.
OneUnited Bank (“Bank”) and defendants and cross-complainants Massoud Tayyar and Cynthia Salinas’ (collectively, “Borrowers”) UNOPPOSED requests for judicial notice are GRANTED, pursuant to Evidence Code § 452(d).
The Bank’s evidentiary objections are OVERRULED.
As a preliminary matter, both Bank and Borrowers violated paragraph 6(d) of the Court’s First Amended General Order filed on May 3, 2019 regarding electronic filing, because the exhibits to requests for judicial notice and/or declarations were not bookmarked, thereby rendering review of the electronically filed exhibits unduly burdensome to review. Future failures to bookmark may result in a continuance of the motion.
Issue No. 1: Cross-Complainants’ second cause of action for breach of contract fails because, even assuming the letter dated April 5, 2013 constituted an offer, Cross-Complainants failed to accept the terms of the letter within the time limit provided and thus no contract was formed. (UMF 1-15)
The Bank contends that there was no Forbearance Agreement because Tayyar accepted Farrington’s conditions after 4:00 p.m. on April 8, 2013. (UMF 14, 15 and evidence cited.)
On April 3, 2015, Tayyar emailed the Bank’s Asset Manager Roxine Farrington to propose a payment plan to resolve the default on their two loans. (Tayyar Decl. ¶ 4 & Ex. A.) In response, Farrington responded in an April 5, 2013 letter with a counteroffer for repayment. (Tayyar Decl. ¶ 5 & Ex. 2.) Farrington imposed a time and date by which to respond: “Please let me know if you are agreeable to the proposed repayment plan by 4:00 pm on Monday, April 8, 2013.” (Tayyar Decl. ¶ 5 & Ex. 2.)
On April 8, 2013, Farrington emailed Tayyar at 11:40 a.m. asking for a response to the counteroffer. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004549.) Tayyar responded at 12:14 p.m. saying that he has cashier’s checks ready, but that he needed to think about the counteroffer due to the Bank’s “hardball tactics.” (Tayyar Decl. ¶ 6 & Ex. 3, OUB0004550.) Tayyar responded to Farrington at 3:20 p.m. agreeing to the first three items of the counteroffer as set forth above, but stating he does not “waive his legal rights” as to foreclosure costs set forth in the fourth item. (Tayyar Decl. ¶ 6 & Ex. 3, OUB0004583.) Farrington responded at 3:30 p.m. by stating that the fourth item has nothing to do with Tayyar’s legal rights, but rather conveys an agreement that once the foreclosure action is cancelled, Tayyar would be responsible for the costs, which Farrington estimated at $375.00. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004583.) Tayyar responded at 3:40 p.m. saying that he accepts payment of the foreclosure costs, provided that the cost is limited to $375.00. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004553.) Farrington responded at 4:15 p.m. indicating that the costs are only estimated, not guaranteed, as of the date of the email, April 8, 2013. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004555.) Tayyar responds at 4:37 p.m. that he accepts the estimate. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004557.)
Whether or not the parties “entered into a contract . . . is a question of fact which may not be properly resolved in a summary judgment proceeding, but must be resolved upon a trial of the issue.” (Blaustein v. Burton (1970) 9 Cal.App.3d 161, 184.) “Even where a question of interpretation of contractual provisions is involved on a motion for summary judgment, it is settled that, if the opposing interpretations are both reasonable, a question of fact is raised which precludes summary judgment.” (Ibid.)
A reasonable juror could interpret the above communications and conclude Farrington’s imposition of a 4:00 p.m. deadline was merely a request, as opposed to mandatory. (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 311, quoting Rest. 2d Contracts § 60 [“If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded.”].) In the April 5, 2013 letter, Farrington did not state that Tayyar has until 4:00 p.m. on April 8, 2013 to accept the offer. Rather, a reasonable juror could find that Farrington only asked Tayyar to let her know if he was agreeable to the counteroffer by 4:00 p.m. on April 8, 2013.
Although Tayyar did not accept the estimate of the foreclosure costs until 4:37 p.m., Farrington’s continuation of the discussion regarding the foreclosure costs after 4:15 p.m. could reasonably be interpreted by a trier of fact as an intention to honor the Forbearance Agreement as proposed once Tayyar accepted.
Even if the time and date proposed by Farrington were a mandatory deadline for acceptance, a reasonable juror could find that Farrington waived this condition precedent by: (1) continuing discussing the proposed Forbearance Agreement at 4:15 p.m. after the time and date set forth in the proposal letter (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004555); (2) sending written formal Forbearance Agreements for Tayyar to sign confirming the terms of the April 5, 2013 counteroffer on April 25, 2013 (Tayyar Decl. ¶ 9 & Ex. 7); and (3) accepting Tayyar’s mortgage payments from April 8, 2013 to May 14, 2013 after accepting the Bank’s repayment proposal (Tayyar Decl.¶¶ 6, 11). (Sosin v. Richardson (1962) 210 Cal.App.2d 258, 264 [“A condition [precedent] is waived when a promisor by his words or conduct justifies the promisee in believing that a conditional promise will be performed despite the failure to perform the condition, and the promisee relies upon the promisor's manifestations to his substantial detriment.”].)
The Bank’s Internal Asset Reviews also indicate that the Bank “accepted [Tayyar’s] payments as part of a Forbearance Agreement entered on April 8, 2013.” (Tayyar Decl. ¶ 8 & Ex. 6.) A reasonable juror could find the Bank formed a contract for repayment of its loans to Tayyar based on its subsequent acceptance of Tayyar’s performance. (Civ. Code § 1584 [“Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal.”].)
In reply, for the first time, the Bank argues the payment of past due funds does not constitute sufficient consideration supporting a binding contract. (See Civ. Code § 1605 [no contract formed when promisor receives benefit which promisor is lawfully entitled or which promisee was lawfully bound to provide to promisor]; Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1185 [“In contractual parlance . . . doing or promising to do something one is already legally bound to do cannot constitute the consideration needed to support a binding contract.”].) However, the Bank did not move for summary adjudication on this basis. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief.”].) Accordingly, the Court declines to evaluate the newly asserted issue of lack of consideration.
The Bank also argues that the April 5, 2013 counteroffer does not constitute a contract because “under the terms of the Deeds of Trust, any modifications of the loan documents had to be in writing signed by all parties.” (Mot. p. 7:24.25; Bank Ex. B [Farrington Decl.] ¶ 4].) However, the subject Deeds of Trust state, “This Instrument may not be amended or modified except by a writing signed by the party against whom enforcement is sought . . . .” (Bank Exs. 2, 6, ¶¶ 37.) As argued by Borrowers in opposition, the “party against whom enforcement is sought” is the Bank. Farrington signed the April 5, 2013 counteroffer on behalf of the Bank. (Tayyar Decl. ¶ 5 & Ex. 2.) Farrington also executed the formal Forbearance Agreements executed by Borrowers on May 23, 2013. (Tayyar Decl. ¶ 16 & Ex. 10.) Thus, Borrowers may seek to enforce the terms of the Forbearance Agreement against the Bank.
The motion as to Issue No. 1 is DENIED.
Issue No. 2: Cross-Complainants’ second cause of action for breach of contract fails because, assuming they contend the Bank breached forbearance agreements, no contract was formed because Cross-Complainants’ rejected the forbearance agreements and testified under oath they later executed them “under duress.” (UMF 16-30)
The Bank moves for summary adjudication on the ground that Borrowers rejected the Forbearance Agreements proposed by the Bank. (UMF 20, 21, 24 and evidence cited.)
On April 25, 2013, after Tayyar had accepted the proposed forbearance agreement on April 8, 2013, Farrington emailed Borrowers asking them to sign the Forbearance Agreements memorializing the agreement they made on April 8, 2013. (Tayyar Decl. ¶ 9 & Ex. 7.) On May 6, 2013, Tayyar emailed Farrington, objecting that the Forbearance Agreements do not state how the $1,000 to be paid by the fifth of each month will be applied to the delinquencies. (Farrington Decl. ¶ 8 & Ex. 6.) The Bank then sent an email on May 6, 2013, addressing Tayyar’s concerns and indicating that “[t]he forbearance agreements as they are written is all the Bank is willing to agree to and it is advantageous to you to execute them and return our office as soon as possible.” (Farrington Decl. ¶ 9 & Ex. 7.) On May 13, 2013, Farrington emailed Tayyar stating, “the Bank will not change the language in either of the forbearance agreements however, continues to agree to the forbearance stipulations as stated in the agreements.” (Farrington Decl. ¶ 10 & Ex. 8.)
On May 17, 2013, the Bank again emailed Tayyar, stating, “Please remit the fully executed forbearance agreement for each loan no later than Friday, 6:00 pm May 24, 2013. If the Bank has not received the executed forbearance agreements by the aforementioned is [sic] time and date, the forbearance agreements will be considered invalid and stipulations void, resulting in immediate adverse action on each loan.” (Tayyar Decl. ¶ 12 & Ex. 8.)
In a response, on May 22, 2013, Tayyar emailed that he had met with his lawyer, who requested that the agreements be updated to reflect recent payments. Tayyar noted, “Since that time you and I have had some e mail exchanges. Howver [sic], you were not able to accommodate any of my comments. So, please update your forbearance documents to reflect the current facts, and so that my lawyer can review the updated forbearance.” (Tayyar Decl. ¶ 12 & Ex. 8.)
On May 22, 2013, at 1:43 p.m., counsel for the Bank sent an email to Tayyar, stating that counsel had been obtained “due to the multiple existing delinquencies on your loan obligations to the Bank and your rejection of the Forbearance [sic] Agreements.” (Tayyar Decl. ¶ 14 & Ex. 9.) Borrowers then executed the Forbearance Agreements on May 23, 2013 at 12:16 p.m. (Tayyar Decl. ¶ 16 & Ex. 10.)
A reasonable juror could interpret the above factual scenario and find that Tayyar’s objections regarding the formal Forbearance Agreements signed on April 25, 2013 did not constitute a rejection of the Forbearance Agreements, but rather an attempt to clarify the terms of the agreements. (See Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1376 [“The interpretation of the purported acceptance or rejection of an offer is a question of fact.”].)
After the April 5, 2013 counteroffer was received, Tayyar disputed liability for the Bank’s foreclosure costs. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004583.) Tayyar and the Bank then agreed that Tayyar would be liable for foreclosure costs and that such costs were estimated at $375.00. (Tayyar Decl. ¶ 6 & Ex. 3, OUB 0004557.) The Forbearance Agreement mentions nothing about these foreclosure costs. (Tayyar Decl. ¶ 9 & Ex. 7.) Tayyar’s email sent on May 22, 2013, one day before the Bank’s counsel emailed Tayyar about his purported rejection of the Forbearance Agreements, did not mention the word “rejection.” Further, Farrington’s email to Tayyar gave him until Friday, May 24, 2013 at 6:00 p.m. to return the executed Forbearance Agreements. (Tayyar Decl. ¶ 12 & Ex. 8.) Although the Bank contends that Tayyar’s proposal of changes amounts to a rejection of the proposed Forbearance Agreements (CACI No. 311), a reasonable juror could find that Tayyar was attempting to clarify the terms of the Forbearance Agreements, as opposed to rejecting them.
The Bank also argues that Tayyar testified during his deposition that he and Salinas signed the Forbearance Agreements under duress and therefore cannot seek to enforce the agreements. (UMF 26, citing Bank Ex. C, pp. 106:19-107:5, 107:17-22.) A contract may be rescinded on the ground that a party’s consent was not free, but rather obtained through duress. (Civ. Code §§ 1565, 1566, 1567; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644 [“The doctrine of ‘economic duress’ can apply when one party has done a wrongful act which is sufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, to agree to an unfavorable contract. [Citation.] The party subjected to the coercive act, and having no reasonable alternative, can then plead ‘economic duress’ to avoid the contract.”].)
Although Tayyar testified that he and his wife signed the Forbearance Agreements under duress, Tayyar also testified that he “intended to be bound” by the agreements. A reasonable juror could conclude Tayyar freely consented to the Forbearance Agreements, particularly when he made payments pursuant to the prior counteroffer Tayyar accepted on April 8, 2013. (PAF 47, citing Tayyar Decl. ¶¶ 7, 11 & Ex. 4.) Accordingly, Borrowers may proceed on their claim that the repayment agreements entered into on April 8, 2013 and executed on May 23, 2013 are enforceable.
In the reply, the Bank argues that, even if Borrowers did not reject the Forbearance Agreements, they failed to fulfill their obligations under the agreements by failing to maintain the properties and failing to timely provide rent rolls to the Bank from May to November 2013. (UMF 27-29 and evidence cited; CACI 303 [element of breach of contract claim is that plaintiff performed under the contract].) An obligation to maintain the properties is not set forth in the Forbearance Agreements, but an obligation to provide a monthly rent roll is. (Tayyar Decl. ¶ 9 & Ex. 7, ¶¶ 5(e), 8.) To begin with, this argument was not made in the motion and therefore is not considered. Even if the Court were to consider Borrowers’ performance under the Forbearance Agreements, Borrowers dispute these contentions by stating that they performed renovations on the property and that Tayyar provided rent rolls for April 2012, October 2012, and February 2013. (Tayyar Decl. ¶¶ 17-22.) Regardless, the issue of whether their purported breaches are material is a question of fact to be decided at trial. (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277 [”Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact.”].)
The motion as to Issue No. 2 is DENIED.
Issue No. 3: Plaintiffs/Cross-Complainants’ request for attorney fees is barred because no contract or statute provides for such a recovery. (UMF 31-37)
This issue is not amenable to summary adjudication. CCP § 437c(f)(1) “does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.” (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 422.) Here, Borrowers claim damages flowing from the Bank’s purported wrongful actions (including institution of foreclosure proceedings) that allegedly forced Borrowers into bankruptcy. Such damages include more than attorney fees, and accordingly, summary adjudication on the issue of whether Borrowers may recover attorney’s fees (a portion of compensatory damages claimed) is not available.
In any event, if the Court were to reach them, the Bank’s contentions are without merit. Indeed, there is a complete disconnect between the Bank’s invocation of CCP § 1021 and the damages Borrowers seek. To be sure, Borrowers seek damages that happen to be monies they claim they were forced to pay for another party’s attorney’s fees, but that hardly means CCP § 1021 applies just because the damages happen to be for attorney’s fees.
With respect to the “bankruptcy orders awarding $1,158,000 of attorney fees and costs to various creditors, including $464,193 to the Bank” (Mot. at 6), those are simply damages the Borrowers claim they suffered as a result of the Bank’s purportedly wrongful conduct that forced them into bankruptcy. Thus, those amounts are simply damages which have nothing to do with an award of attorney’s fees that requires a statute or agreement in order to be recovered in accordance with CCP § 1021. (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [rejecting application of section 1021 to a claim for damages including monies spent to pay attorneys because “we are not dealing with the measure and mode of compensation of attorneys but with damages wrongfully caused by defendant’s improper actions”].) Likewise, the monies Borrowers paid the Bank in order to refinance are alleged damages flowing from the Bank’s purported breach of its agreement(s) not to foreclose on Borrowers. The fact that those damages happen to be the Bank’s claimed attorney’s fees expended in foreclosure does not subject the Borrowers’ claim for such damages to the requirements of CCP § 1021. (Brandt, 37 Cal.3d at 817.)
To the extent CCP § 1021 has any relevance to Borrowers’ claim for attorney’s fees, it would be if and/or when Borrowers prevail in this action and seek imposition of attorney’s fees in connection with this litigation (and arguably related litigation necessary to the prosecution of this action). At that time, the Court would determine whether Borrowers are entitled to attorney’s fees in connection with any claims or cross-claims in this action and if there is a statutory provision or agreement for such, including, as Borrowers argue, whether Civil Code § 1717(a)’s mutuality of remedy would so provide in light of the attorney’s fee provisions of section 7 of the Notes and sections 12(a), 12(b), and 43 of the Deeds of Trust. But at this juncture and in connection with the instant motion, CCP § 1021 has no bearing.
Accordingly, the motion as to Issue No. 3 is DENIED.
Issue No. 4: Plaintiffs/Cross-Complainants’ request for attorney fees and costs arising out of bankruptcy proceedings as damages fails because the doctrine of res judicata bars recovery of attorney fees and costs already adjudicated in bankruptcy proceedings. (UMF 38-40)
The Bank argues that Borrowers seek to overturn at least 12 bankruptcy orders awarding $1,158,000 in attorney fees and costs to creditors, including $464,193 to the Bank. (UMF 40 and evidence cited.) The Bank argues that these orders are subject to res judicata. (11 U.S.C. §1327(a) [“The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.”]; Prudence Realization Corp. v. Ferris (1945) 323 U.S. 650, 654–55 [“The order confirming the plan of reorganization is res judicata.”].)
Borrowers present the declaration of expert Kathleen March, who cites portions of various filings and transcripts from the bankruptcy proceeding. (March Decl. ¶ 4.) The portions of the transcripts indicate that Bankruptcy Judge Julia Brand deferred to this Court to determine whether the Bank wrongfully caused Tayyar to file for bankruptcy and, if so, the extent to which Borrowers can recover on their cross-complaint. (March Decl. ¶ 4.) On August 4, 2016, during the hearing on a motion construing the order confirming the Chapter 11 plan Judge Brand allowed for the possibility that the Bank’s claim in bankruptcy would be adjusted upward or downward based on whether Tayyar prevails on the claims in the Cross-Complaint. (Tayyar Ex. 9, pp. 13:18-16:17. March opines that based on her review of the documents from the bankruptcy proceeding, Judge Brand did not determine whether wrongful conduct of the Bank caused Tayyar to file for bankruptcy and that fees that Tayyar incurred in the bankruptcy proceeding could be damages recoverable by Tayyar in this action. (March Decl. ¶¶ 5A, 5E-5J.) Accordingly, the bankruptcy orders are not subject to res judicata.
The motion as to Issue No. 4 is DENIED.
Issue No. 5: Plaintiffs/Cross-Complainants’ request for attorney fees and costs which they paid to the Bank when they paid off their mortgage balances through refinancing fails because the voluntary payment doctrine bars recovery. (UMF 41-44)
The Bank contends that Borrowers voluntarily paid off both mortgage notes in full, including late fees and attorney fees. (UMF 42 and evidence cited.) Under the voluntary payment doctrine, if a party makes a payment voluntarily, with knowledge of the facts, the payment cannot later be recovered. (Steinman v. Malamed (2010) 185 Cal.App.4th 1550, 1557-58.) “Whether the plaintiff, through its agents or representatives, acted as a reasonably prudent person [to find that the payment was made involuntarily], depends upon the facts and circumstances and is a question for the trial court's determination.” (Id. at 1558.)
Tayyar avers that he and Salinas paid off the notes, late fees, and attorney fees claimed by the Bank because the due date on a second mortgage secured by one of the subject properties was imminent and Tayyar could not obtain funds unless the Bank refinance of its loans. (Tayyar Decl. ¶ 31 & Ex. 13.) The Bank would not refinance the loans without payment of late fees and attorney fees, which Tayyar consistently disputed in bankruptcy. (March Decl. ¶ 4.) Tayyar also wanted to obtain funds from the refinancing to provide assistance for his brother who was suffering from cancer. (Tayyar Decl. ¶ 32.)
Here, a reasonable juror could find that Tayyar should not have been forced into bankruptcy in the first place based on the Forbearance Agreements in place, thereby rendering the Bank’s refusal to refinance the loans until the late fees and attorney fees were paid economically coercive. (Steinman, 185 Cal.App.4th at 1559 [economic duress requires that “the party insisting on payment must act wrongfully, with the knowledge that the claim asserted is false.”].)
The motion as to Issue No. 5 is DENIED.
Case Number: EC060889 Hearing Date: February 28, 2020 Dept: E
MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT
Case: OneUnited Bank v. Massoud G. Tayyar, et al. (EC 060889)
Cross-Complainants Massoud Tayyar’s and Cynthia Salinas’s Motion for Leave to File First Amended Cross-Complaint (“FAXC”) is DENIED. Cross-Complainants seek to add a claim for punitive damages in connection with the second cause of action for Wrongful Foreclosure. (FAXC ¶ 13 & Prayer for Relief at ¶ 3.) Cross-Complainants also seek to delete previously dismissed causes of action.
In the FAXC, cross-complainants do not allege any facts supporting their allegation that Cross Defendant OneUnited Bank’s conduct during foreclosure proceedings rose to the level of fraud, oppression, or malice. (See Civ. Code § 3294(a); Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [pleading conclusion of law does not fulfill requirement to state facts constituting cause of action].) Cross-complainants merely allege in conclusory fashion that the “acts and conduct of [OneUnited Bank] were despicable [and] constituted fraud, oppression and malice,” without stating the nature of that conduct or alleging an factual basis for such conclusions. (Id. at pp. 6-7 [“[p]leading in the language of the [punitive damages] statute is not objectionable when sufficient facts are alleged to support the allegation].) Where, as here, the amendment is futile on its face, leave to amend may be denied. (Long v. Century Indem. Co. (2008) 163 Cal.App.4th 1460, 1468.)
Furthermore, even if cross-complainants could specifically allege conduct during the foreclosure proceedings that might entitled them to punitive damages, prejudice would result if a claim for punitive damages were added to the Cross-Complaint at this stage of the proceedings. As asserted by cross-complainants on the first page of the motion, the five-year deadline now expires on August 7, 2020. The addition of a punitive damages claim would not permit enough time to perfect the pleading, conduct discovery and bring a motion for summary judgment. By permitting the FAXC, One United Bank would be prejudiced in its defense against the cross-claims. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Moreover, the Court notes the original Cross-Complaint was filed on July 23, 2013. Notwithstanding cross-complainants’ assertion that their focus was on stopping the foreclosure proceedings at the time of the original filing, cross-complainants had six years to assert a claim for punitive damages. Such lack of diligence by cross-complainants also warrants denial of the request for leave to amend. (Ibid.)
Case Number: EC060889 Hearing Date: December 27, 2019 Dept: E
(1) TAYYAR/SALINAS MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT;
(2) ONE UNITED BANK’S MOTION FOR JUDGMENT ON THE PLEADINGS
Case: OneUnited Bank v. Massoud G. Tayyar, et al. (EC 060889)
I. MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT
Defendants and Cross-Complainants Massoud Tayyar’s and Cynthia Salinas’s Motion for Leave of Court to File First Amended and Supplemental Cross-Complaint is DENIED.
As a preliminary matter, One United Bank’s requests for judicial notice as to Exhibits J, K, N, and U are GRANTED insofar as the Court takes notice the existence of the documents, but not the truth of the matters asserted therein. (See Evid. Code § 452(d) [court records]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) In addition, One United Bank’s requests for judicial notice as to Exhibits L, M, O, P, and V are GRANTED, pursuant to Evidence Code § 452(d). One United Bank’s other requests are DENIED, as no provision of Evidence Code § 452 allows the court to take judicial notice of these documents.
Cross-complainants’ request to take judicial notice of the reporter’s transcript of the 10/25/19 proceedings is GRANTED, pursuant to Evidence Code § 452(d).
Cross-Complainants’ reply exceeds 10 pages in violation of the rules. (See Cal. Rule of Court 3.1113(d) [“No reply or closing memorandum may exceed 10 pages”].) The Court disregards page 12-15 of the reply.
On the merits, the Court finds that the first and second causes of action (alleged breaches of the forbearance agreement and wrongful foreclosure in 2013), on the one hand, are entirely separate and distinct from the third and fourth causes of actions (alleged wrongful conduct during refinancing in 2019), on the other hand. These causes of action in the proposed amended cross-complaint concern entirely different conduct separated by over six years and give rise to entirely different claims for damages. In sum, the 2013 and 2019 events giving rise to these causes of action concern separate transactions for which this Court finds the filing of the supplemental cross-complaint inappropriate. (See Flood v. Simpson (1975) 45 Cal.App.3d 644, 647 [“[T]he court properly denied the motion on the basis that the supplement to the complaint sought to introduce new causes of action”].)
Accordingly, the motion for leave to file a First Amended and Supplemental Cross-Complaint is DENIED. On the Court’s own motion, the Proposed First Amended and Supplemental Cross-Complaint, erroneously filed on 12/13/19 without leave of Court, is STRICKEN.
II. MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff and Cross-Defendant One United Bank has moved for judgment on the pleadings as to the second cause of action for breach of contract asserted in Tayyar’s and Salinas’s Cross-Complaint. The basis for the motion is One United Bank’s contention that the cross-complaint is inconsistent with allegations in Tayyar’s and Salinas’s Proposed Amended Cross-Complaint, in that the amended cross-complaint alleges the contract at issue was entered into “under duress,” which means no contract was ever formed for One United Bank to breach. There are several problems with this argument. First, the purported inconsistency is contained in a version of an amended cross-complaint never filed by Tayyar and Salinas. (See One United Mot. at 9 [citing One United’s Request for Judicial Notice Ex. U at ¶ 8].) Second, the amended cross-complaint that was filed has now been stricken and, more to the point, does not contain the “under duress” allegation upon which One United Bank relies. Third, even if One United Bank could overcome these fundamentally problematic facts, it is not at all clear that One United Bank would be entitled to judgment as a matter of law where the Cross-Complaint is reasonably susceptible to the interpretation that other agreements and/or promises outside of and attendant to the forbearance/repayment agreement were purportedly breached by One United Bank. (See Cross Compl. ¶¶ 8, 10-11.)
Accordingly, plaintiff and cross-defendant One United Bank’s Motion for Judgment on the Pleadings, which should have properly been filed as two separate motions that address two separate pleadings (i.e., the Complaint and the Cross-Complaint), is hereby DENIED in its entirety.
Case Number: EC060889 Hearing Date: December 20, 2019 Dept: E
JUDGMENT ON THE PLEADINGS (2)
[CCP § 438]
Case: One United Bank v. Massoud G. Tayyar, et al. (EC 060889)
With respect to Plaintiff and Cross-Defendant One United Bank’s and Defendant and Cross-Complainant Massoud Tayyar’s and Cynthia Salinas’s respective Motions for Judgment on the Pleadings as to the Complaint and Cross-Complaint in this matter, the parties should be prepared to discuss the following issues at the hearing on such motions:
Case Number: EC060889 Hearing Date: October 24, 2019 Dept: E
AMENDED MOTION FOR RELIEF
Case: OneUnited Bank v. Massoud G. Tayyar, et al. (EC 060889)
The Court has reluctantly considered this motion, which was not the motion reserved or scheduled with the Court.
The request for order bifurcating this matter and having the cross-complaint tried first is DENIED. Moving parties have failed to sufficiently establish that bifurcation in this manner would promote the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation.
Request for order for leave to file a First Amended Cross-Complaint is DENIED.
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