On 10/18/2017 JOHN BANAFSHEHA filed a Contract - Other Contract lawsuit against DJAMSHID YOUNESSI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ELIZABETH ALLEN WHITE
DOES 1 THROUGH 20
YOUNESSI DJAMSHI AS TRUSTEE OF THE
YOUNESSI DJAMSHID AKA "JIMMY" YOUNESSI INDIVIDUALLY AND AS TRUSTEE OF THE YOUNESSI LIVING TRUST
LEWIN RODNEY T. ESQ.
GOODFRIEND MARK E. ESQ.
GOODFRIEND MARK E.
6/20/2018: NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION PURSUANT TO CCP ? 430.41
8/17/2018: PLAINTIFF'S EVIDENTIARY OBJECTIONS TO CERTAIN EXHIBITS CONTAINED IN DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT'S DEMURRER TO FIRST AMENDED COMPLAINT
8/24/2018: CIVIL DEPOSIT
8/30/2018: Minute Order
8/30/2018: CASE MANAGEMENT ORDER
5/3/2019: Separate Statement
5/6/2019: Ex Parte Application
1/5/2018: DECLARATION PURSUANT TO CCP 430.41
11/7/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
11/13/2017: PROOF OF SERVICE OF SUMMONS, COMPLAINT, NOTICE OF CASE ASSIGNMENT, ADR INFORMATION PACKAGE, AND ETC
11/14/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
Hearingat 09:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketAssociation of Attorney; Filed by Djamshid Younessi (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Summary Judgment - Held - Motion DeniedRead MoreRead Less
DocketOrder (- Ruling: Motion for Summary Judgment); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Hearing on Defendant Djamshid Younessi's Motion for Summary J...)); Filed by ClerkRead MoreRead Less
DocketNotice of Ruling; Filed by Djamshid Younessi (Defendant)Read MoreRead Less
DocketReply (Memorandum of Points and Authorities in Support of Summary Judgment); Filed by Djamshid Younessi (Defendant)Read MoreRead Less
DocketDeclaration (of Kevin McShane in Reply in Support of Motion for Summary Judgment); Filed by Djamshid Younessi (Defendant)Read MoreRead Less
DocketObjection (Evidentiary Objections to the Declaration of John Banafsheha); Filed by Djamshid Younessi (Defendant)Read MoreRead Less
DocketReceipt; Filed by Djamshid Younessi (Defendant)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by John Banafsheha (Plaintiff)Read MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by John Banafsheha (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONS, COMPLAINT, NOTICE OF CASE ASSIGNMENT, ADR INFORMATION PACKAGE, AND ETCRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by John Banafsheha (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR: 1. USURY; ETCRead MoreRead Less
Case Number: BC680152 Hearing Date: August 26, 2020 Dept: 48
[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On May 8, 2018, Plaintiff John Banafsheha (“Plaintiff”) filed his first amended complaint (“FAC”) against Djamshid Younessi, individually and as Trustee of the Younessi Living Trust dated February 19, 1997 (“Defendant”) alleging (1) usury, (2) fraud, and (3) money had and lent. On August 30, 2018, the Court sustained Defendant’s demurrer to the first and third causes of action without leave to amend.
On May 15, 2019, the Court denied Defendant’s first motion for summary judgment. On April 17, 2020, Defendant filed a second motion for summary judgment.
Plaintiff’s Objection Nos. 1-5 to Defendant’s Request for Judicial Notice are overruled.
Plaintiff’s Objection to Defendant’s declaration are overruled as the Court does not rely on the evidence.
REQUEST FOR JUDICIAL NOTICE
Defendant requests that the Court take judicial notice of 13 documents:
1. Grant Deed of property located at 11800 Olympic Boulevard, Los Angeles, CA 90064 (“11800 Olympic Property”) from 11800 Olympic, LLC to Wildwood School, Inc., recorded July 1, 2013 as Instrument No. 20130970815;
2. First Deed of Trust against 11800 Olympic Property, recorded July 1, 2013 as Instrument No. 20130970816;
3. Second Deed of Trust against 11800 Olympic Property, recorded July 1, 2013 as Instrument No. 20130970818;
4. Subordination Agreement recorded July 1, 2013 as Instrument No. 20130970819;
5. First Deed of Trust, against property located at 804 N. Bedford Drive, Beverly Hills, CA 90210 (“Bedford”), securing $2,500,000 loan, recorded March 5, 2004 as Instrument No. 04-0525350;
6. Notice of Default re Bedford First Deed of Trust, recorded September 19, 2013, as Instrument No. 20131366083;
7. Second Deed of Trust against Bedford, securing $1,500,000 loan, recorded December 7, 2012, as Instrument No. 20121888398;
8. Notice of Default re Bedford Second Deed of Trust, recorded November 5, 2013, as Instrument No. 20131570924;
9. Certificate of Dissolution of Zakaryah, Inc., filed February 23, 2015, in the Office of the California Secretary of State, as Document No. 01282071;
10. Plaintiff’s FAC, filed May 8, 2018;
11. Declaration of Djamshid Younessi, filed May 3, 2019 with Defendant’s first motion for summary judgment;
12. Declaration of Kevin McShane, filed May 3, 2019 with Defendant’s first motion for summary judgment; and
13. Declaration of Mark Goodfriend, filed May 3, 2019 with Defendant’s first motion for summary judgment.
Defendant’s request is granted.
On or about July 1, 2013, the property located at 11800 Olympic Boulevard, Los Angeles, CA (“Property”) was sold by 11800 Olympic, LLC (“LLC”) to Wildwood School, Inc. for $11.5 million. (Undisputed Material Fact “UMF” 1.) Wildwood financed the purchase with a loan secured by a first deed of trust against the Property and a $2 million promissory note payable to the LLC, secured by a second deed of trust against the Property. (UMF 2.) Plaintiff owned a 34.0619% membership interest in the LLC at that time. (UMF 1.) In August 2013, the LLC’s sole or principal asset was the note secured by the second deed of trust against the Property. (UMF 5.)
Between August 11 and 26, 2013, Plaintiff and Defendant discussed what would be known as the LLC Membership Purchase Agreement (“Agreement”). (See UMF 9, 12, 17-21.) Beginning on August 21, 2013, Kevin McShane exclusively represented Defendant, and Rodney Lewin represented Plaintiff. (UMF 13.) Lewin was actively involved in negotiating the Agreement, which was signed and dated August 26, 2013. (UMF 14, 21.) The parties dispute whether the $272,500.00 that Defendant gave Plaintiff pursuant to the Agreement was a loan secured by Plaintiff’s membership interest or a purchase of Plaintiff’s membership interest in the LLC. Plaintiff contends he and Defendant structured the loan, which carried 18% interest, as a sale of Plaintiff’s membership interest in the LLC to avoid usury laws and to protect the membership interest from other collectors.
The Wildwood promissory note was due by July 31, 2017. (UMF 2.) Wildwood paid the full amount to Defendant. Plaintiff contends Defendant kept the money instead of keeping only the amount owed under the alleged loan plus interest.
For each claim in the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)
A party who files a second or subsequent motion for summary judgment based on issues asserted in a prior motion must establish newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. (Code Civ. Proc., § 437c, subd. (f)(2).) Defendant contends that a different set of facts and circumstances now exist because Defendant has since taken the depositions of Plaintiff and Lewin.
In denying Defendant’s first motion for summary judgment, the Court found that triable issues of material fact exist as to whether “Defendant fraudulently induced Plaintiff to accept $272,500 from Defendant as a loan; that, if the loan, including interest, was paid off from the Note proceeds, Plaintiff would receive the excess; and that the Agreement was crafted as a purchase agreement only to provide Defendant ‘more security’ for the Loan.”
According to Defendant, after the decision on the first summary judgment motion, Plaintiff admitted in his deposition that Defendant did not personally make any misrepresentations before the Agreement was signed and McShane made no misrepresentations on Defendant’s behalf. (Motion at p. 8.) Plaintiff testified that when he first asked Defendant for a $300,000 loan, Defendant “[i]nitially . . . said no” and “Mr. Younessi said he doesn’t want to lend me the money.” (Plaintiff Depo. at pp. 33-34, 52.) In a second conversation, Defendant told Plaintiff that 18% was the best he could do and Defendant referred Plaintiff to McShane to discuss it further. McShane told Plaintiff that the loan had to be for 18-percent interest, the amount would be less than $300,000, and the term would be two-years, and Defendant said that was the best he could do. (Id. at pp. 37, 53.) McShane proposed the sale. He told Plaintiff that Defendant would “agree to give the loan only under those conditions.” (Id. at p. 61.) Defendant cites to other parts of Plaintiff’s deposition (such as pages 62-69) but did not include all of those pages.
Lewin’s testimony was also consistent with Defendant wanting to structure a loan as a purchase agreement to avoid problems with the interest rate and other creditors. (Lewin Depo. at pp. 17-18.)
This evidence is consistent with evidence submitted in connection with Defendant’s first motion and does not present materially new facts. Plaintiff’s declaration from the first motion stated that when he asked Defendant for a $300,000 loan, Defendant said that the best he could do was $272,500 with 18-percent interest and was not going to budge. (Azadegan Decl., Ex. 3 [“Plaintiff Decl.”] ¶ 7.) The Court’s decision on the prior motion for summary judgment noted that testimony, as well as Plaintiff’s testimony that McShane said the Agreement needed to be structured to make the loan seem like a purchase agreement to give Defendant protection against other creditors. (Minute Order at p. 3.) The portions of Plaintiff’s deposition submitted with the current motion do not contradict this.
Defendant also contends that Plaintiff conceded in his deposition that he knew he was selling his membership interest in the LLC and had two and a half years, not four, to buy it back. (Motion at p. 9.) Plaintiff testified that although he wanted four years, he understood it was a “[t]wo-year option to buy back [his] share,” and that was the only way that Defendant would do the deal. (Plaintiff Depo. at pp. 79-80.) After the parties entered into the Agreement, Plaintiff asked Defendant for an extension to the time when the Wildwood note would be paid off, and Defendant said he would accommodate Plaintiff. (Id. at pp. 179-181.)
This evidence does not present new facts not before the Court with the first motion. In Plaintiff’s declaration filed with the first motion, Plaintiff stated that he knew that the deal was structured with a two and a half year buy back period when he signed it. (Azadegan Decl., Ex. 3 [“Plaintiff Decl.”] ¶ 9.) The Court noted in ruling on the first motion that Plaintiff stated in his declaration that after entering into the Agreement, Defendant told Plaintiff not to worry about paying by the due date because he would extend the due date to when Wildwood paid the note to the LLC. (Minute Order at p. 4.)
Defendant therefore has not met his burden of showing that there are new facts or circumstances justifying a second motion for summary judgment on issues asserted in the first motion.
Accordingly, the motion for summary judgment is DENIED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.