On 11/08/2017 KAYVAN SETAREH filed a Contract - Other Contract lawsuit against MONTEREY BAY VIEW ESTATES LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER, YOLANDA OROZCO, DAVID J. COWAN, KEVIN C. BRAZILE and JAMES C. CHALFANT. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
SAMANTHA P. JESSNER
DAVID J. COWAN
KEVIN C. BRAZILE
JAMES C. CHALFANT
MONTEREY BAY VIEW ESTATES LLC
SOUTH BAY CONTRACTORS INC.
DOES 25 THRU 35
DOES 1 THROUGH 25
MONTEREY BAY VIEW ESTATES LLC
SOUTH BAY CONTRACTORS INC.
LAW OFFICES OF NICHOLAS A. SICILIANO
SICILIANO NICHOLAS A.
SICILIANO NICHOLAS ARTHUR
SICILIANO NICHOLAS A
D'ATTARAY ESQ. MAINAK
DARNELL DAVID J.
ZOHAR DANIEL Y.
DAVERT DOUGLASS S. ESQ.
PLAZAK DOUGLAS A. ESQ.
PLAZAK DOUGLAS ALLEN ESQ.
DAVERT DOUGLASS STANDISH ESQ.
D'ATTARAY MAINAK ESQ.
DOSS BRYAN S.
DAVERT DOUGLASS S. ESQ.
PLAZAK DOUGLAS A. ESQ.
SICILIANO NICHOLAS ARTHUR
SICILIANO NICHOLAS A
D'ATTARAY ESQ. MAINAK
DARNELL DAVID J.
ZOHAR DANIEL Y.
1/28/2021: Proof of Service - No Service - PROOF OF SERVICE - NO SERVICE PROOF OF ELECTRONIC SERVICE
11/12/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION OF THE PARTIES TO PERMIT PLAINTIFFS OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION TO EXCEED THE STATUTORY PAGE LIMIT OF
11/17/2020: Opposition - OPPOSITION DEFENDANT MONTEREY BAY VIEW ESTATES, LLCS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION
11/17/2020: Separate Statement
11/17/2020: Proof of Service (not Summons and Complaint)
11/17/2020: Opposition - OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION
11/24/2020: Response - RESPONSE PLAINTIFF'S RESPONSE TO DEFENDANT MONTEREY BAY VIEW ESTATES, LLC'S ADDITIONAL FACTS IN DISPUTE IN SUPPORT OF ITS OPPOSITION TO PLAINTIFF'S MSA
1/29/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 01/29/2020
10/15/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE HEARING DATE FOR DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT DATE AND TRIAL DATE BY DEFENDANT SOUTH BAY CONTRACTORS, INC.'S AN
9/6/2019: Opposition - OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL COMPLETION OF DEPOSITION OF DEFENDANT HASSID INDIVIDUALLY AND AS PERSON MOST QUALIFIED FOR DEFENDANT MONTEREY BAY VIEW ESTATES LLC
5/9/2019: Ex Parte Application - EX PARTE APPLICATION DEFENDANTS SOUTH BAY CONTRACTORS, INC.'S AND MIKE AMIDNAMIN'S EX PARTE APPLICATION TO CONTINUE THE HEARING DATE FOR DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
5/14/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE HEARING DATE FOR ...)
2/6/2019: Exhibit List
9/25/2018: Minute Order -
4/20/2018: NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR FRAUD; ETC
5/16/2018: REQUEST FOR DISMISSAL -
5/23/2018: CIVIL DEPOSIT -
11/8/2017: SUMMONS -
Hearing08/16/2021 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing08/12/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by Louanne Masry (Attorney)Read MoreRead Less
Docketat 09:30 AM in Department 20, Kevin C. Brazile, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
DocketStipulation and Order (Proposed Amended Order); Filed by South Bay Contractors, Inc. (Defendant)Read MoreRead Less
DocketProof of Service - No Service (proof of electronic service); Filed by South Bay Contractors, Inc. (Defendant)Read MoreRead Less
DocketOrder (on pliantiff's ex parte application for TPO); Filed by Kayvan Setareh (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Ex Parte Application (FOR A TEMPORARY PROTECTIVE ORDER PENDING PLAINTIFF?S MOTION FOR ISSUANCE OF A WRIT OF ATTACHMENT CONCERNING DEFENDANT SOUTH BAY CONTRACTORS, INC.) - HeldRead MoreRead Less
Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Post-Mediation Status Conference - Not Held - Vacated by CourtRead MoreRead Less
DocketFIRST AMENDED COMPLAINTRead MoreRead Less
DocketCase Management Statement; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketORDER TO SHOW CAUSE HEARINGRead MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by nullRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINTRead MoreRead Less
Case Number: BC682799 Hearing Date: December 01, 2020 Dept: 20
Judge David J. Cowan
Date: Tuesday, December 1, 2020
Case Name: Kayvan Setareh v. Monterey Bay View Estates LLC et al.
Case No.: BC682799
Motion: Summary Judgment
Moving Party: Defendant Monterey; Defendant South Bay; Plaintiff Setareh
Responding Party: Plaintiff Setareh; Defendants Monterey and South Bay
Ruling: Plaintiff’s Motion for Summary Adjudication is GRANTED.
Defendants Monterey and Hassid’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action and DENIED IN PART as to the first cause of action.
Defendants South Bay and Amidnamin’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action and DENIED IN PART as to the first cause of action.
Plaintiff to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person.
On November 11, 2017, Plaintiff Kayvan Setareh (as Trustee of Pacific Capital Trust) filed a Complaint against Defendants Monterey Bay View Estates, LLC (“Monterey”), South Bay Contractors, Inc. (“South Bay”), Avraham Hassid, Mike Amidnamin, and Does 1-25, stating claims for breach of contract on a promissory note, breach of contract on a personal guarantee, and common counts of open book account, account stated, and money lent. These claims are predicated upon a promissory note (the “Original Note” or sometimes “the Note”) between Rabi Setareh as the lender and Monterey and South Bay as joint borrowers for a principal of $500,000, executed January 1, 2006 and subsequently modified several times by the lender and borrowers between 2006 and 2008.
On February 7, 2018, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants, stating additional claims for fraud and breach of the implied covenant of good faith and fair dealing.
On December 3, 2018, Defendants Monterey and Avraham Hassid filed a Motion for Summary Judgment or Summary Adjudication on the ground that Plaintiff’s claims are time-barred, including the breach of personal guarantee claim stated against Hassid but not Monterey.
On February 6, 2019, Defendants South Bay and Amidnamin filed a Motion for Summary Judgment or Summary Adjudication and Joinder to Monterey/Hassid’s Motion on the same statute of limitations grounds.
On February 13, 2020, Plaintiff filed a Motion for Summary Adjudication of Monterey and South Bay’s affirmative defenses based on the statute of limitations applicable to his breach of promissory note claim.
On November 17, 2020, Plaintiff filed an “Omnibus Opposition” to both Motions for Summary Judgment by the Defendants. South Bay and Amidnamin filed an Opposition to Plaintiff’s Motion for Summary Adjudication. Monterey and Hassid also filed an Opposition.
On November 24, 2020, Plaintiff filed Replies in support of his Motion for Summary Adjudication to both Oppositions.
On November 25, 2020, South Bay and Amidnamin filed a Reply in support of their own Motion. Monterey and Hassid also filed a Reply in support of their own Motion.
Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.)
Application to Facts
Defendants Monterey and South Bay seek summary judgment on the ground that Plaintiff’s claims are time-barred under CCP sec. 337-338. In turn, Plaintiff seeks summary adjudication of Defendants’ affirmative defenses based on CCP sec. 337-338 as to Plaintiff’s first cause of action; in effect seeking summary adjudication of the same issue. Plaintiff argues the promissory note at issue here is not subject to a four-year statute of limitations but an effective ten-year statute of limitations, arguing that (1) Commercial Code sec. 3104 and 3118 provide for a six-year statute of limitations and (2) CCP sec. 360.5 provides a further four-year extension of that period. The applicability of Comm. Code sec. 3118 depends on whether the Note is a “negotiable instrument” under Comm Code sec. 3104.
Comm. Code sec. 3104(a) defines a negotiable instrument as “an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it . . . (1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder[;] (2) Is payable on demand or at a definite time[; and] (3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.”
Comm. Code sec. 3106 further defines an “unconditional” promise “for the purposes of subdivision (a) of Section 3104.” A promise “is unconditional unless it states (1) an express condition to payment, (2) that the promise or order is subject to or governed by another writing, or (3) that rights or obligations with respect to the promise or order are stated in another writing.” (Comm. Code sec. 3106(a).) However, mere “reference to another writing does not of itself make the promise or order conditional.” (Id.) Therefore, a promise “is not made conditional (1) by a reference to another writing for a statement of rights with respect to collateral, prepayment, or acceleration, or (2) because payment is limited to resort to a particular fund or source.” (Comm. Code sec. 3106(b).)
South Bay’s Arguments
First, South Bay argues the Note is not a negotiable instrument because “other documents must be consulted to determine rights or obligations” thereunder, relying on Growth Equities Corp. v. Freed (1991) 227 Cal.App.3d 506, 509. (Opposition, p. 5-6.) South Bay quotes the portion of the Note in which the “Borrower hereby agrees to pay any and all costs or expenses incurred by Lender by reason of, as a result of, or in connection with the enforcement of this Note, the Deed of Trust or any other documents executed in relation to this Note, including but not limited to, any and all attorney’s fees and related costs when such costs or expenses are paid or incurred whether or not suit is filed.” (Hassid Decl., Ex. 1) South Bay identifies two documents “executed in relation to this Note”: The Hazardous Substances Indemnity Agreement and a Personal Guaranty.
As an initial point, “so far as negotiability is affected, the conditional or unconditional character of the promise or order is to be determined by what is expressed in the instrument itself,” not by reference to external sources. (Growth, supra, at 509; accord Westlake Mercantile Finance Corp. v. Merritt (1928) 204 Cal. 673, 674 (negotiability of instrument “must be determined from the face of the instruments themselves”)) The Court therefore does not reach language in other documents not referenced in the Note in determining whether the Note is negotiable, even if there is extrinsic evidence of connected execution, because the connection between the documents is not “expressed in” or apparent “from the face of the instrument.”
Plaintiff argues these separate documents are irrelevant because the Note does not state it is “subject to” the terms of those instruments and does not “incorporate” them. (Reply, p. 6.) In Williams v. Silverstein (1931) 213 Cal. 269, a case cited by Plaintiff, the Supreme Court found a note did not incorporate a contemporaneously-executed escrow agreement. The Court observed that, while “the agreement [was] written upon the same paper that the note is written on,” it was nonetheless “evident that it was not intended to incorporate the terms of the agreement within the note itself.” (Id. at 275.) Therefore, “the transferability and negotiability of the note [was not] affected by the [escrow] agreement,” which was not actually incorporated. (Id.)
Silverstein is not really instructive or analogous here; certainly, the Hazardous Substances Indemnity Agreement was not “written upon the same paper” as the Note, nor is it even referenced anywhere in the Note. The same goes for the Personal Guarantee. For that reason, the Court finds the Note is not “subject to” the Hazardous Substances Indemnity Agreement or Personal Guaranty and does not incorporate them where it does not even reference these documents. Under Comm. Code sec. 3106, a promise “is unconditional unless it states (1) an express condition to payment, (2) that the promise or order is subject to or governed by another writing, or (3) that rights or obligations with respect to the promise or order are stated in another writing.” (Comm. Code sec. 3106(a).)
The Note does not contain an “express condition to payment.” It does not state that the promise “is subject to” another writing. At most, the foregoing provisions could be construed as stating that rights or obligations relating to costs (including attorney’s fees) also include the extrinsic documents, insofar as the borrower can recover under the Note for costs of enforcement of those agreements, but the extrinsic documents clearly do not state any rights or obligations “with respect to the promise” in the Note. The vague reference to “any other documents executed in relation to this Note” is precisely the sort of “reference to another writing” which “does not of itself make the promise or order conditional” under Comm. Code sec. 3106(a). (Id.) The reference to security by a deed of trust similarly does not render the Note non-negotiable. (Growth, supra, 227 Cal.App.3d at 509.) Therefore, this argument is rejected.
Next, South Bay argues the Note is not a negotiable instrument under Comm. Code sec. 3104(a) because it provides for an “undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money.” Section 3104(a) permits certain further undertakings, including “(i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.” However, none of these exceptions appear applicable here. Instead, South Bay argues the above-referenced provision for fees for enforcement of the Note (and related documents) renders it a non-negotiable instrument. (Opposition, p. 7-8.) This appears erroneous (as shown below) and, moreover, not based on current law insofar as South Bay relies only on cases decided before California’s adoption of the Negotiable Instruments Law in 1917. (Mann v. Leasko (1960) 179 Cal.App.2d 692, 696 (“the Negotiable Instruments Law [was] adopted in California in 1917.”); see First Nat’l Bank v. Falkenhan (1892) 94 Cal. 141 (pre-1917); Findlay v. Pott (1901) 131 Cal. 385 (pre-1917).)
Plaintiff relies heavily on Pugh v. Dawson (1928) 95 Cal.App 505, in which the appellant argued a promissory note was “a non-negotiable instrument for two reasons”: (1) that it provided the “makers, sureties, guarantors and indorsers of this note hereby consent to extensions of time at or after the maturity hereof,” and (2) that it provided “for attorney's fees in case the note was turned over to an attorney for collection by suit or otherwise.” (Id. at 509.) The appellant argued the first provision required the maker, indorsers, or their successors “to consent to the postponement of the payment of the obligation to some future time or times after its maturity renders the time of payment uncertain and undeterminable,” thereby rendering the instrument non-negotiable. (Id.) South Bay does not raise an analogous argument to this one.
However, South Bay does argue a fee provision renders the Note non-negotiable. As to the second provision relating to attorney’s fees for collection, the Court of Appeal noted former Civ. Code sec. 3082, which provided that a negotiable instrument “must contain an unconditional promise or order to pay a sum certain in money, and must be payable on demand, or at a fixed or determinable future time.” (Id. at 513.) Former Civ. Code sec. 3083 provided “that ‘the sum payable is a sum certain within the meaning of this act, although it is to be paid . . . (5) With costs of collection or an attorney's fee, in case payment shall not be made at maturity.’” (Id.) Further, the court observed that, based on subdivision 5 of former Section 3083, “a provision in a promissory note for attorney's fee for the collection or the enforcement by legal proceedings of the payment thereof after dishonor or a default in payment at maturity, as authorized by said provision, does not destroy the negotiability of the note, notwithstanding that such a provision involves a contingent agreement.” (Id.) Therefore, the court concluded the fee provision provided for a sum payable and certain for purposes of former Section 3082.
Plaintiff fails to identify any analogue in the Commercial Code to former Section 3083, subdivision (5), which would render Pugh applicable here. Plaintiff argues Comm. Code sec. 3104(a) impliedly provides for attorney’s fees in requiring a promise to pay “a fixed amount of money, with or without interest or other charges described in the promise or order.” (Reply, p. 7.) Put another way, Plaintiff argues the Note is a negotiable instrument as a promise to pay a fixed amount of money (the principal) with interest and other charges (fees and expenses). This construction is reasonably persuasive, particularly where the Negotiable Instruments Act previously provided explicitly for such fees.
Therefore, South Bay has not presented a basis to find the Note is non-negotiable. However, the Court cannot grant summary adjudication in favor of Plaintiff without addressing Monterey’s related arguments concerning negotiability of the Note. The Court turns next to those arguments, but addresses the factual disputes relating to South Bay’s alleged payments on the Note first, which issues do not relate to negotiability.
South Bay’s position is that, while it made payments after 2009, those payments were not in connection with the Note but on a separate $250,000 promissory note. (Reply, p. 3.) South Bay further argues any alleged payments by Hilltop Holdings, LLC in connection with the Note cannot toll the statute of limitations under CCP sec. 360 because Hilltop Holdings is not a party to the Note. In response, Plaintiff relies on Civ. Code sec. 1479 in arguing he properly assigned Hilltop’s payments, on behalf of Hassid, to the Note. (Omnibus Opposition, p. 19.) Plaintiff relies heavily on a provision of the Note stating that “the records of Lender shall, absent manifest error, be binding and conclusive upon borrower,” contending his own records of payment are dispositive notwithstanding any contrary positions by Defendants. (Omnibus Opposition, p. 18.)
Plainiff’s argument creates a dilemma. If Plaintiff’s position is erroneous and Defendants are entitled to contest his assignment of various payments, then the significant evidentiary disputes over intended purpose of the payments would present triable issues of material fact as to the purpose of post-2009 payments; the existence of which would require denial of South Bay’s Motion. If Plaintiff’s position is correct and Defendants waived the right to dispute Plaintiff’s records, then Plaintiff would have established a payment by South Bay after 2009 which would trigger CCP sec. 360, tolling the statute of limitations. (See, e.g., evidence cited ISO UMF no. 11.) In that case, South Bay’s Motion would again need to be denied. In sum: either there are triable issues of material fact as to the intended purpose of the payments or Plaintiff’s evidence of tolling is unrebutted. Either situation requires denial of this Motion.
Moreover, it appears the four-year extension of CCP sec. 360.5 applies here. The Note contains a written waiver of statute of limitations defenses effective for four years under CCP sec. 360.5, which provides that “[n]o waiver executed prior to the expiration of the time limited for the commencement of the action by this title shall be effective for a period exceeding four years from the date of expiration of the time limited for commencement of the action by this title.” CCP sec. 360.5 therefore appears applicable to extend the statute of limitations on this claim to ten total years. The Note matured in 2009 and the Complaint was filed in November 2017; the claims against South Bay therefore appears to be timely brought, whether or not there is tolling under CCP sec. 360.
South Bay’s Motion is DENIED.
First, Monterey argues the 2006 Note is not an enforceable agreement because the so-called extensions to the Note were in fact novations of the Note. Monterey relies on an integration clause in the January 1, 2009 agreement/extension providing: “This Sixth Extension of Note constitutes the entire agreement of Borrower and Lender with respect to, and supersedes all prior written and oral agreements, understandings and negotiations with respect to the subject matter hereof. In the event of any conflict between this Sixth Extension of Note and the Original Note, First Extended Note, Second Extended Note, Third Extended Note, Fourth Extended Note, and/or Fifth Extended Note, the provisions of this Sixth Extension shall prevail.” (Hassid Decl., Ex. 7, p. 2.)
Novation is “the substitution of a new obligation for an existing one.” (Civ. Code sec. 1530.) While “a modification of a term or a provision of a contract alters only certain portions of the contract, novation wholly extinguishes the earlier contract.” (Fanucchi & Limi Farms v. United Agri Products (9th Cir. 2005) 414 F.3d 1075, 1081.) “The intention of the parties to extinguish the prior obligation and to substitute a new agreement in its place must clearly appear.” (Id.; Hunt v. Smyth (1972) 25 Cal.App.3d 807, 818.) “The burden of proof is on the party asserting that a novation has been consummated.” (Howard v. County of Amador (1990) 220 Cal.App.3d 962, 977.) “In deciding whether an agreement was meant to extinguish the old obligation and to substitute a new one, California courts seek to determine the parties' intent.” (Fanucchi at 1082.) “Determining the parties' intent is a highly fact-specific inquiry”; “[s]uch inquiries are not generally suitable for disposition on summary judgment.” (Id.)
Monterey fails to cite any authority that an integration clause turns a self-described extension of a contract, with express reference to conflicts with the other extensions of that same contract, into a novation extinguishing the original. Such a conclusion would conflict with the plain language of the Sixth Extension. The Sixth Extension explains, as background, that in the First Extension the parties agreed to “extend the maturity date of the Original Note from July 1, 2006 to December 1, 2006.” (Hassid Decl., Ex. 7.) In other words, the First Extension was apparently not intended to create a brand new agreement with a new maturity date, but merely to modify the maturity date of the Original Note. The parties used the exact same procedure for the Second, Third, Fourth, and Fifth Extensions, extending the maturity date of each Extended Note rather than extinguishing it and, significantly, continuing to have each Extended Note be secured by the original deed of trust. (Hassid Decl., Ex. 2-7.) Nothing in the Sixth Extension suggests the parties intended a different result.
In fact, the Sixth Extension specifically confirms that each Extended Note is concurrently secured by the original deed of trust, further evidence that each Note is still effective. (Hassid Decl., Ex. 7, p. 2 (Security and Acceleration)) This is further supported by the reference to conflicts between the Sixth Extension and previous agreements; in that event, the Sixth Extension controls, but as Plaintiff convincingly argues, there is no possibility of conflict if the prior agreements were extinguished. Providing for such conflicts indicates the parties did not intend to extinguish the potentially conflicting agreements, but merely to have the most recent one control. For these reasons, the Court finds Monterey has not carried its burden to show that the “intention of the parties to extinguish the prior obligation and to substitute a new agreement . . . clearly appear[s]” on the evidence presented, and rejects the novation argument.
Next, on the assumption the Original Note is enforceable, Monterey argues Plaintiff needed to provide the related trust deed to prove the Note is a negotiable instrument, relying on Central Savings Bank of Oakland v. Coulter (1925) 72 Cal.App. 78 and the plain language of the Note stating that it is secured by a deed of trust. In turn, Plaintiff argues the securing trust deed does not determine whether the secured instrument is negotiable, relying on Hayward Lumber & Investment Co. v. Naslund (1932) 125 Cal.App. 34 and Witty v. Clinch (1929) 207 Cal. 779. Monterey criticizes these decisions as lacking explicit reasoning, arguing the holdings on the subject of security are dicta. (Opposition, p. 6.)
In Coulter, the appellate court explained that when a note “stat[es] on its face that it is secured by a trust deed,” the negotiability of that instrument depends on whether “that trust deed contains terms and conditions which destroy the negotiability of the note.” (Id. at 83.) Under former Civ. Code sce. 3082, an instrument is negotiable only if it contains “an unconditional promise or order to pay a sum certain in money, with interest at a definite time or by installments; . . . must be payable on demand at a fixed or determinable future time; . . . . [and] an instrument payable on a contingency is not negotiable.” (Id. at 84.) Noting that the trust deed “violate[d] many of the terms of the Uniform Negotiable Instruments Act,” the court found the various conditions for default in the deed of trust made the promise conditional and rendered the time of payment insufficiently specific. (Id.) Under the note and deed, “the entire sum secured becomes due, not alone in one year, nor upon the happening of an event 'which is certain to happen,” but upon the contingent happening of any of various other conditions. (Id.)
But nothing in Coulter places the burden on Plaintiff to affirmatively demonstrate that the securing deed of trust contains no such provisions. Further, it is unclear to the Court why Monterey made no effort to identify objectionable terms of the deed of trust, as Monterey did not argue the deed was unavailable to it. The Court is not persuaded that the deed of trust “violated” any terms of the Negotiable Instruments Act, which simply has not been shown. (See also Mann, supra, 179 Cal.App.2d at 696 (“contemporaneous execution and transfer of a promissory note and a non-negotiable contract securing performance by a lien on real property does not, in and of itself, impair the negotiability of the note”); Growth, supra, 227 Cal.App.3d at 509 (“a note that contains a promise or order that is otherwise unconditional is not rendered conditional because it ‘[s]tates that it is secured, whether by mortgage, reservation of title, or otherwise.’”))
Third, Monterey argues the Note cannot be a negotiable instrument because it lacks a clear payment date, and therefore is not “payable on demand or at a definite time.” Specifically, Monterey refers to the maturity date of the Original Note, arguing the reference to “the first (1st) days of July 2006” does not reference a definite time. (Opposition, p. 7 (arguing that “first days of July” is “ambiguous and does not connote a ‘definite time’ for payment.”)) Comm. Code sec. 3108 provides that a promise is “payable on demand” when it “states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or . . . does not state any time of payment.” In turn, a promise is payable “at a definite time” whenever it is payable “on elapse of a definite period of time after sight or acceptance or at a fixed date or dates or at a time or times readily ascertainable at the time the promise or order is issued, subject to rights of (1) prepayment, (2) acceleration, (3) extension at the option of the holder, or (4) extension to a further definite time at the option of the maker or acceptor or automatically upon or after a specified act or event.” (Comm. Code sec. 3108(b).)
The Note is “payable at a definite time” under the foregoing definition. The Sixth Extension, which modifies controls the payment date of the Original Note, provides:
“Borrower promises to pay to Lender . . . the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) together with interest from January 1, 2009 on the outstanding principal balance of $500,000.00 at the rate of nine percent (9%) per annum (“Note Rate”), with payment of interest only in installments of Three Thousand Seven Hundred Fifty ($3,750.00) and 00/100 Dollars on the first (1st) day of each and every month, beginning on the first (1st) day of January 1, 2009 and continuing until the first (1st) day of July, 2009 (“Extended Maturity Date”) at which time the entire unpaid balance of $500,000.00 together with all accrued and unpaid interest due thereon shall become due and payable in accordance with the terms, conditions and provisions as set forth in this Sixth Extension of Note. No prepayment, partial or otherwise, on principal may be made hereunder at any time prior to the Extended Maturity Date unless agreed to by Lender in advance. On the Extended Maturity Date, the entire unpaid principal balance of this Sixth Extension of Note, and all interest thereon, shall be due and payable without demand or notice. In the event that Borrower does not pay all outstanding principal balances and interest due under this Sixth Extension of Note in full on the Extended Maturity Date then, as of the Extended Maturity Date and thereafter until paid in full, the interest accruing on the outstanding principal balance hereunder shall be computed, calculated and accrued on a daily basis at the Default Rate, as defined below.”
(Hassid Decl., Ex. 7.) The promise under the Sixth Extension to pay “the entire unpaid balance . . . and all interest thereon” is payable at a definite time, i.e., the Extended Maturity Date. The Extended Maturity Date is defined as July 1st, 2009. The promise is therefore payable “at a fixed date” under the Sixth Extension.
Even if this analysis were conducted as to the Original Note, it would still satisfy Section 3104—the Original Note provides for interest payments “beginning on the first (1st) day of February, 2006” monthly, “until the first (1st) days of July 2006 (“Maturity Date”) at which time the entire unpaid principal balance together with any accrued and unpaid interest due thereon shall become due and payable.” (Hassid Decl., Ex. 1.) Assuming the reference to plural days is not a typographical error, which inference is not urged by Plaintiff, the unpaid principal and unpaid interest are due “on elapse of a definite period of time after sight or acceptance”—namely, on elapse of the interest-payment period from February 2006 to July 2006.
Fourth, Monterey argues the Note did not provide for payment of a “fixed amount of money, with or without interest or other charges” for purposes of Civ. Code sec. 3104(a) because “depending on the date of the breach and the applicable agreement, the amounts due are different.” (Opposition, p. 7.) Monterey notes the Original Note has an interest rate of 9% per annum through the Maturity Date and a “default rate” equal to “the lesser of five percent (5%) over the [interest] Rate, or the highest rate allowed by applicable law.” Under the Original Note, Monterey argues the principal and any accrued but unpaid interest “shall bear interest at the Default Rate.” Due to the various alterations to the Maturity Date of the Note, as embodied in the First through Sixth Extensions, Monterey contends the dates that trigger the interest rate and the default rate are not sufficiently clear, and that this makes the amount of money due under the Note ambiguous. (Opposition, p. 8.)
Plaintiff glosses over this argument, dismissing it as Monterey “contend[ing] that it is unclear if the amount due is $500,000.” (Reply, p. 10.) Plaintiff claims “a more definite time for a more definite payment is unimaginable.” (Id.) But this is not Monterey’s argument, and the total amount due on the Maturity Date is decidedly not definite. The amount due at the Maturity Date is “the entire unpaid principal balance of $500,000.00 together with all accrued and unpaid interest due thereon.” As Monterey accurately observes, the Note contains more than one interest rate, and the applicability of each rate appears to depend on the elapsing of certain dates under each Extension. This facially renders the amount due ambiguous. However, Monterey’s argument still fails because the interest due on the Note need not be definite. Comm. Code sec. 3104(a) requires an “unconditional promise or order to pay a fixed amount of money,” here $500,000, “with or without interest.” That the interest due is not clear on the face of the Note, especially where modified multiple times, is simply irrelevant under Section 3104.
Next, Monterey argues CCP sec. 360 is inapplicable because Monterey did not make any payments on the Note. (Reply, p. 1.) CCP sec. 360 provides that “[n]o acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby, provided that any payment on account of principal or interest due on a promissory note made by the party to be charged shall be deemed a sufficient acknowledgment or promise of a continuing contract to stop, from time to time as any such payment is made, the running of the time within which an action may be commenced upon the principal sum or upon any installment of principal or interest due on such note, and to start the running of a new period of time.” In other words, when “the limitations period is waived [in writing,] the waiver may extend the statute an additional four years.” (Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 514 fn. 8.)
Monterey’s argument focuses on the requirement of a payment “made by the party to be charged” in Section 360, arguing that it did not make any payments on the Note. Under CCP sec. 360, a payment “by the party to be charged” on a promissory note will “stop . . . the running of the time within which an action may be commenced” on the note.While Monterey does not dispute that South Bay made payments under the Note (though South Bay disputes this), it argues it cannot be held accountable for those payments anyway despite being a joint borrower with South Bay. On this point, there is significant factual dispute, including dozens of evidentiary objections by each of the parties. The disputes primarily center on whether payments concededly made by Hassid, Amidnamin, and South Bay were intended for the Note rather than other contracts.
Significantly, however, Plaintiff does not allege a single payment by Monterey. (Omnibus Opposition, p. 6-8.) CCP sec. 360 is, therefore, obviously inapplicable to Monterey; there was no payment “by the party to be charged.” Section 360 therefore does not toll the statute of limitations. As discussed in connection with South Bay above, Civ. Code sec. 1479 cannot save Plaintiff’s claim against Monterey where no payments were ever made by Monterey.
Finally, upon review of Monterey’s briefing, no colorable argument has been raised that CCP sec. 360.5 is inapplicable here; the Note undisputedly contains a waiver of statute of limitations defenses, Hassid Decl. at Ex. 7, which is effective for four years under CCP sec. 360.5. That section provides that “[n]o waiver executed prior to the expiration of the time limited for the commencement of the action by this title shall be effective for a period exceeding four years from the date of expiration of the time limited for commencement of the action by this title and no waiver executed after the expiration of such time shall be effective for a period exceeding four years from the date thereof, but any such waiver may be renewed for a further period of not exceeding four years from the expiration of the immediately preceding waiver.” CCP sec. 360.5 can further extend the statute of limitations in Comm. Code sec. 3118(a). (Cadle, supra, 144 Cal.App.4th at 514 fn. 8.)
CCP sec. 360.5 therefore appears applicable to extend the statute of limitations on this claim to ten total years. The Note matured in 2009; the Complaint was filed in November 2017. The claims therefore appear to be timely brought. This conclusion is based entirely on the plain language of the Note and its Extensions in finding the Note is a negotiable instrument (subject to Comm. Code sec. 3118(a)) containing a written waiver of time-bar defenses (triggering CCP sec. 360.5), and there are no triable issues of fact as to the contents of the Note and Extensions. Therefore, Monterey’s Motion is DENIED.
Hassid and Amidnamin’s Arguments
Hassid and Amidnamin argue the statute of limitations for negotiable instruments is inapplicable because guaranties are not negotiable instruments. Further, Hassid and Amidnamin argue the four-year CCP sec. 360.5 extension does not apply to personal guarantees. The Court agrees on both counts.
First, guaranties are not negotiable instruments under Comm. Code sec. 3104 because they are by definition conditional promises. (See, e.g., American Security Bank v. Clarno (1984) 151 Cal.App.3d 874, 881 (“unconditional guarantees . . . do not qualify as instruments”); Radisson Hotels International, Inc. v. Majesty Towers, Inc. (C.D. Cal. 2007) 488 F.Supp.2d 953, 964 fn. 12.) Logically speaking, the obligation to pay under a guaranty is inherently conditioned upon default by the guaranteed party, and therefore not an “unconditional” promise to pay. No case has applied Comm. Code sec. 3118 to a claim for breach of a guaranty. While the guaranties state that they are unconditional, they are by definition conditional; the actual legal effect of a contract clearly controls over erroneous statements of legal effect therein. Therefore, the Court concludes the guaranty claims are subject to the four-year statute of limitations in CCP sec. 337.
Second, Martindell v. Bodrero (1967) 256 Cal.App.2d 56 instructs us that the statute of limitations in CCP sec. 337 is not tolled by payments by the principal. A “payment by a principal debtor will not operate to toll the statute of limitations as to a guarantor,” at least absent some “provision in the guaranty that a part payment by [the principal] would toll the limitations period as to [the guarantor].” (Id. at 62.) Plaintiff does not claim the guaranties at issue here contain such provisions providing specifically for tolling based on principal payments.
The Court is unpersuaded by Plaintiff’s reliance on the trial court’s reasoning in Bodrero, which is directly contradictory to the above analysis by the appellate court. (See Omnibus Opposition, p. 17 (quoting Bodrero, the “trial court found upon ample evidence that the note was the individual obligation of each of the appellants; and that the payment of$200 was made by the corporation with the knowledge, authorization, participation and consent of appellants and therefore tolled the statute of limitations as to all the makers.”)) Ultimately, this inconsistency was not cause for reversal in Bodrero because “although there [was] a finding on the subject of guaranty, there [was] no separate judgment against Bodrero as a guarantor.” (Id. at 62.) The trial court’s conclusions on that point were irrelevant and did not need to be reversed absent a judgment against Bodrero.
Plaintiff argues, based on Bloom v. Bender (1957) 48 Cal.2d 793, that his claims on the guaranties are enforceable as long as the underlying obligation of the principal exists, even if claims on that obligation are time-barred. Assuming for sake of argument that Plaintiff’s interpretation of Bender is correct, that a claim against a guarantor can be stated even if it can no longer be stated against the principal debtor, this does not save Plaintiff’s claims against the guarantors, which are independently time-barred. The Bender Court found the four-year statute of limitations of CCP sec. 337 applied to the claim for breach of guarantee (id. at 798), but it was not disputed “that the running of the statute was tolled during a thirteen-month period when defendant was found to have been absent from the state.” (Id.) As a result, “plaintiff's action against defendant [was] not barred unless it accrued prior to May 11, 1949.” It was unclear whether the claims were time-barred in Bender because some of the products at issue had been purchased before May 11, 1949 and some after that date. (Id. at 799.)
Plaintiff’s claims here are similarly subject to CCP sec. 337, but unlike Bender, there is no tolling here. Plaintiff was required to bring the claims against Hassid and Amidnamin within four years of the claims accruing; Plaintiff did not receive the four-year extension of CCP sec. 360.5, which is not applicable. Bender cannot save these claims from being independently time-barred.
Plaintiff filed his Complaint in November 2017; the claims against Hassid and Amidnamin clearly accrued sometime in 2009, eight years before Plaintiff filed the Complaint. As a result, the claims are time-barred. The assignment of payments is not relevant, because any payments by South Bay or Hilltop would not toll the statute of limitations applicable to the individual guarantors (assuming Hilltop payments would trigger CCP sec. 360.5, which appears unlikely as discussed above).
Therefore, Monterey’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action for breach of personal guaranty against Hassid. This claim is time-barred. South Bay’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action for breach of personal guaranty against Amidnamin, which is similarly time-barred. However, this does not affect the Court’s conclusions regarding Plaintiff’s Motion for Summary Adjudication, which is restricted to the statute of limitations defenses asserted by Monterey and South Bay as to his breach of promissory note claim, not the breach of guaranty claims.
Therefore, for the foregoing reasons, the Court finds the Original Note (as modified by the Extensions) is a negotiable instrument subject to the six-year statute of limitations in Comm. Code sec. 3118. Further, the claims on the Note against Monterey and South Bay are subject to the four-year extension of CCP sec. 360.5 due to the written waiver in the Note. Therefore, Plaintiff’s claims against Monterey and South Bay are subject to a total ten-year statute of limitations. The Note matured on July 1, 2009, and Plaintiff’s Complaint was filed on November 8, 2017, within ten years of the maturation. Moreover, there are triable issues of fact as to whether South Bay’s payments further tolled the statute of limitations under CCP sec. 360 (which does not apply to Monterey, which made no payments thereon).
The Court therefore GRANTS Plaintiff’s Motion for Summary Adjudication of Monterey and South Bay’s statute of limitations affirmative defenses. As the Court’s analysis was based only on undisputed facts—the plain language of the Note and Extensions—there are no triable issues of fact, and Plaintiff has demonstrated that these defenses lack merit.
The Court GRANTS IN PART Monterey and Hassid’s Motion for Summary Judgment as to the second cause of action for breach of personal guaranty against Hassid, which is demonstrably time-barred. The Court DENIES IN PART the Motion as to the first cause of action for breach of promissory note against Monterey, which is within the combined ten-year statute of limitations.
Plaintiff’s Motion for Summary Adjudication is GRANTED.
Defendant Monterey’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action and DENIED IN PART as to the first cause of action.
Defendant South Bay’s Motion for Summary Judgment is GRANTED IN PART as to the second cause of action and DENIED IN PART as to the first cause of action.
Plaintiff to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person.
 South Bay also cites All Lease Co., Inc. v. Bowen (Md. Cir. Ct. 1975) 20 UCC Rep. Serv. 790 addressing Maryland’s UCC analogues to our Civ. Code sec. 3101 et seq.. The Bowen court concluded an instrument is negotiable only if it contains “an unconditional promise to pay, and no other promise, order, obligation or power given by the maker except as defined in § 3-105.” (Id. at 790.) The document at issue was “replete with promises and obligations in addition to the promise to pay.” (Id.) These obligations “include[d] the payment of a late charge for delinquent payments, the requirement that the buyer obtain the written consent of the seller before transferring the buyer's obligation while keeping the seller's interest freely transferrable, the promise to insure the goods sold, and the retention of the right to take possession of the goods sold without judicial process.” (Id.) The court found the instrument was non-negotiable without further explanation, citing Georgia and Ohio appellate decisions. (Id. at 791.)
The Court notes the Maryland Circuit Court is a trial court of general jurisdiction, like this Court, rather than an appellate court. Therefore, even if the Court were in the same jurisdiction as the Maryland Circuit Court, this decision would be at best persuasive, not binding. In any event, the Court does not find this decision significantly persuasive—the Maryland court offered no explanation for its conclusion that a late charge for delinquent payments renders the agreement non-negotiable and merely deferred to Georgia and Ohio decisions. While the Maryland court may be correct on this point, the lack of explicit reasoning makes its analysis unpersuasive for this foreign court.
 In fact, Monterey fails to cite any legal authority on novation, relying exclusively on the integration clause of the Sixth Extension without legal argument. (Opposition, p. 3-5.)
Case Number: BC682799 Hearing Date: June 29, 2020 Dept: 20
The Motion to be Relieved as Counsel is taken off calendar. Moving counsel has filed a substitution of attorney—Mr. Amidnamin and South Bay Contractors, Inc. are now represented by Bryan S. Doss. The motion is therefore moot.
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