Filed 6/15/20 Polycomp Trust Co. v. Agbede CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

POLYCOMP TRUST COMPANY, as Custodian, etc., et al.,

Plaintiffs and Respondents,

v.

SONNY AGBEDE et al.,

Defendants and Appellants.

E070613, E071376

(Super.Ct.No. CIVDS1614139)

OPINION

APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed.

William D. Beck and Rahel Goharchin Javaheri, for Defendants and Appellants.

Krishel Law Firm and Daniel L. Krishel for Plaintiffs and Respondents.

In this action for judicial foreclosure, the trial court granted a motion by real property secured lenders for summary judgment. Thus, it entered judgment ordering a foreclosure sale and holding the borrowers personally liable for $381,713.49.

The Borrowers appeal, contending that:

1. The trial court erred by granting summary judgment, because there were triable issue of material fact as to:

a. The amount owed.

b. Whether there was a novation.

c. Whether the Borrowers are entitled to antideficiency protection.

2. The trial court’s award of attorney fees was excessive.

Finding no error, we will affirm.

I

FACTUAL BACKGROUND

A. The Sources of the Facts.

After the Lenders filed a motion for summary judgment, the Borrowers filed a cross-motion for summary judgment. The trial court granted an ex parte application by the Borrowers to consolidate the two motions, and it set them for hearing on the same date. Ultimately, it granted the Lenders’ motion and denied the Borrowers’ cross-motion.

The Lenders object to our consideration of evidence that was offered solely in connection with the Borrowers’ cross-motion. The Borrowers retort that it was the Lenders themselves who included the cross-motion in the appellate record. They also argue that the two motions were “discussed jointly.”

We begin with the fundamental principle that we can consider only the evidence that was offered and admitted when the trial court made the challenged ruling. Ordinarily, that would mean that we can consider only the evidence submitted with the motion at issue on appeal, not some other motion. (See, e.g., Code Civ. Proc., § 437c(c) [“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact . . . . [T]he court shall consider all of the evidence set forth in the papers . . . .”].)

Here, however, the two motions were consolidated. Under the circumstances, the word “consolidate” is ambiguous. Did the trial court mean that the papers in connection with each motion would be deemed filed in connection with the other motion? Or did it mean only that the motions would be heard at the same time? The ex parte application for consolidation might shed light on this, but it has not been included in the record.

When we look to the trial court’s eventual ruling, however, its intention becomes clear. The ruling is divided into separate sections, dealing with the Lenders’ motion for summary judgment and the Borrowers’ motion for summary judgment, respectively. In ruling on the Lenders’ motion, the court cited and discussed only the undisputed facts and evidence in connection with that motion. Likewise, in ruling on the Borrowers’ motion, it cited and discussed only the undisputed facts and evidence in connection with that motion. We therefore conclude that the “consolidation” was simply a matter of the hearing date.

The parties’ own conduct reinforces this conclusion. The Borrowers themselves did not designate their own motion for inclusion in the record. Admittedly, the Lenders designated it, but only in part; they included the motion itself and the separate statement, but they omitted one of the supporting declarations and a supporting request for judicial notice. In any event, given their present objection, clearly they did not believe the motions were literally consolidated.

Accordingly, we consider only the evidence in connection with the Lenders’ motion.

B. The Facts.

1. The transactions.

In 2004, the Borrowers bought a piece of commercial property on Main Street in Barstow (Property). The seller was Trois Investors (Trois).

In connection with the purchase, the Borrowers gave the original lender, Vanguard Funding Corp. (Vanguard), a promissory note for $210,000. They also gave Vanguard a deed of trust.

The Borrowers were to make monthly interest-only payments. The loan was due in full on June 15, 2007. Earlier in 2007, however, the Borrowers refinanced the loan. They gave Vanguard a new promissory note for $235,981.65. They also gave Vanguard a new trust deed. They still had to make monthly interest-only payments.

The new due date was September 1, 2009. Later, however, the due date was extended, by mutual agreement, first to September 1, 2011, and then to September 1, 2012.

Meanwhile, Vanguard assigned the loan — via a series of intermediate assignments between September 2007 and 2016 — to the Lenders.

Come September 1, 2012, the Borrowers failed to repay the loan. They continued to make monthly payments until March 25, 2013, when they stopped. They also stopped paying insurance and property taxes, forcing the Lenders to pay these amounts. The Borrowers admit that they are in default.

2. Additional facts offered by the Borrowers.

In the 2004 sale, the Borrowers paid only $6,000 down. The total loan was for $210,000. The contract price of the Property was $180,000. About $34,000 in closing costs was taken out of the loan proceeds. Thus, the Borrowers got $2,000 back out of escrow.

The bulk of the closing costs — about $32,000 — was credited to Vanguard. This represented $16,000 for repairs, a $9,450 broker’s fee, a $2,800 hazard insurance fee, and $1,200 in prepaid interest, along with assorted lesser fees.

Out of the $180,000 contract price, Trois paid $20,000 in closing costs; thus, it received $160,000 net out of escrow.

In connection with the 2007 refinance, Vanguard’s appraiser valued the Property at $363,047. This was more than double its price of $180,000 in 2004, despite a downturn in the real estate market.

In the 2007 refinance, the bulk of closing costs were once again credited to Vanguard, for a total of about $12,500, including a $9,000 “[c]ommission.”

Vanguard borrowed the funding for the 2007 loan from one Stephen San Marchi, who was acting as a “warehouse lender.” Just months after the loan closed, Vanguard sold the loan to the Lenders’ predecessors in interest and repaid San Marchi.

Kevin Baker, a private investigator and former FBI agent, was an expert on real estate fraud. In his opinion, the 2007 refinancing was “suspicious” and had “elements consistent with real estate fraud . . . .” Specifically, the 2007 appraisal of the Property was “inflated.” “The inflated appraisal allowed Vanguard to market a seemingly attractive real estate investment based on loan valuation [and] collect fees . . . .”

Alan Sims was an expert real estate appraiser. In his opinion, the 2007 appraisal of the Property was below the applicable standard of care and hence “speculative” and “invalid[].”

In April 2016, the Borrowers offered to deed the Property to the Lenders in lieu of foreclosure. The Lenders did not accept.

On August 4, 2017, there was a fire at the Property. Afterward, the City of Barstow demanded that the Borrowers clean up the Property and demolish the damaged buildings. This would cost at least $55,000.

II

ASSERTED TRIABLE ISSUES OF MATERIAL FACT

A. Standard of Review.

“Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ [Citation.]” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.)

“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

“In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

“Whether the trial court erred by granting [a] motion for summary judgment is a question of law we review de novo. [Citation.]” (Samara v. Matar (2018) 5 Cal.5th 322, 338.)

B. The Amount of the Indebtedness.

The Borrowers contend that there are material issues of fact regarding the amount of the indebtedness.

1. Closing costs.

Aside from issues arising out of the fire (see part II.A.4, post), the Borrowers’ opening brief never clearly specifies what these supposed material issues of fact are. With the help of their reply brief, however, we can tell that they are talking about the difference between the $160,000 that Trois received out of the 2004 escrow and the $235,981.65 face value of the 2007 note.

The record demonstrates that the difference went to closing costs, in 2004 and in 2007. Some of these closing costs, in turn, went to Vanguard as fees for services rendered (such as document and processing fees). Others went to reimburse Vanguard for expenses (such as hazard insurance). And others went to third parties and not to Vanguard at all (such as property taxes).

Thus, this contention reduces to the novel argument that closing costs cannot be added to a loan. We reject this out of hand. There was no evidence that any of the closing costs were excessive. There was no evidence that any of them were not actually incurred. There was no evidence that, under the underlying loan agreement, the Borrowers were not supposed to be liable for any of them out of the proceeds of the loans. The Borrowers must have received the 2004 and 2007 settlement statements, yet there is no evidence that they ever objected to any of the closing costs.

2. Funding of the loan.

The Borrowers also assert, in passing, that the 2007 loan never actually funded. They did not raise this argument in the trial court.

Business records showed that the loan did fund. In arguing that it did not, the Borrowers cite evidence that was offered in connection with their motion for summary judgment, which, as we held in part I.A, ante, we cannot consider.

The cited evidence falls short in any event. The Borrowers took the deposition of Kathy Dyrness, an employee of the loan servicing company. At that deposition, there was this exchange:

“Q. . . . You brought a stack of papers responsive to today’s deposition notice. [¶] In any of those papers, is three any evidence of any money being lent to [the Borrowers]?

“A. No.”

Counsel for the Lenders objected that the question was “vague and ambiguous.” He added, “[T]here are wire transfer documents, there are checks, so I don’t know what you’re talking about.”

The deposition notice is not in the record. Thus, we do not know what documents Dyrness was supposed to bring to the deposition nor whether they should have shown whether money was lent. Counsel for the Lenders asserted, without contradiction, that it included wire transfer documents and checks. In this context, the bare word “No” is not substantial evidence that no money was actually lent.

3. Property taxes and insurance.

The trial court awarded $70,905.65 for property taxes and insurance advanced by the Lenders. The Borrowers tersely assert that “these amounts were never proven.”

Dyrness testified, however, that the Borrowers failed to pay property taxes and insurance; that the Lenders made these payments in the Borrowers’ stead; and that these payments totaled $70,905.65. Her testimony was supported by business records.

4. Issues arising out of the fire.

The Borrowers argue that their $55,000 in clean-up costs after the fire should be offset against the indebtedness. They have forfeited this argument by failing to support it with any reasoned argument or citation of authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); Carr v. Rosien (2015) 238 Cal.App.4th 845, 856. fn. 6.) Certainly it is not intuitively obvious; normally, the owner, not the lender, bears the risk of property expenses and property damage.

They also argue that the Lenders received fire insurance proceeds, which should be offset against the indebtedness. However, they do not cite any portion of the record showing that the lenders ever in fact received such proceeds. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) We therefore ignore this assertion and the argument that is based on it. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)

C. Novation.

The Borrowers contend that there is a material issue of fact as to whether there was a novation. The terms of the asserted novation are that the lenders would not foreclose, the Borrowers would make monthly payments, and if the Borrowers found themselves unable to do so, the Lenders would accept a deed in lieu of foreclosure.

In their answer, the Borrowers raised novation as an affirmative defense; however, they did not allege the facts constituting the novation. In their opposition to the motion for summary judgment, they likewise did not assert a novation. They asserted it only in their motion for new trial, although once again, they did not explain its factual basis.

At the argument on the motion for new trial, they explained, for the first time, that a novation was shown by the fact that, when they initially defaulted, in September 2012, the Lenders’ predecessors in interest did not foreclose immediately, but rather continued to accept monthly payments, until the Borrowers stopped paying those in March 2013.

The novation issue has been forfeited. “We generally will not consider an argument ‘raised in an appeal from a grant of summary judgment . . . if it was not raised below and requires consideration of new factual questions.” [Citation.]’ [Citations.]” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335.) Here, because the Lenders did not know that the novation defense was genuinely contested, they had no opportunity to introduce any evidence on this issue.

Raising the issue in the new trial motion was too little, too late. A failure to object immediately forfeits an asserted error for purposes of a new trial motion. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747; Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 883.)

Even if not forfeited, the issue lacks merit. The Borrowers were served with an interrogatory asking, “Was any agreement alleged in the pleadings terminated by . . . novation?” They responded, “No.” Admittedly, they added, “Discovery is on-going.” Nevertheless, in the absence of an amended answer (see Code Civ. Proc., § 2030.310), their response is binding on them.

In addition, the Borrowers admitted, as an undisputed fact, that they were “currently in default on” the loan.

Finally, even in the absence of these admissions, there was simply no evidence of a novation. Once the Lenders proved all of the elements of their cause of action, the burden was on the Borrowers to introduce evidence of any defense. (Code Civ. Proc., § 437c, subd. (p)(1).) A “[n]ovation is the substitution of a new obligation for an existing one.” (Civ. Code, § 1530.) “To establish a novation [a party] must show a meeting of the minds . . . .” (California Packing Corp. v. Emirzian (1919) 45 Cal.App. 236, 240.)

As evidence of the alleged novation, the Borrowers cite the Lenders’ admission that monthly payments were made through March 2013 and the fact that in April 2016, they offered the Lenders a deed in lieu. The mere fact that the Lenders’ predecessors in interest did not foreclose immediately after the September 2012 default falls short of showing a new agreement. The mere fact that the Lenders continued to accept monthly payments after default likewise does not show a new agreement. The Borrowers legitimately owed those amounts, and the Lenders were understandably willing to take what they could get. Finally, after the Borrowers stopped making monthly payments, in March 2013, three and a half years passed before they offered to give the Lenders a deed in lieu. To conclude that the asserted new agreement ever existed would be speculation, at best.

D. Antideficiency Statutes.

The Borrowers contend that there is a material issue of fact as to whether they are protected by antideficiency law — specifically, Code of Civil Procedure section 580b. That section, as relevant here, prohibits a deficiency judgment “[u]nder a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price of that real property . . . .” (Code Civ. Proc., § 580b, subd. (a)(2), emphasis added.)

Here, neither deed of trust was given to the vendor. The vendor was Trois Investors; Vanguard was a third-party lender.

The Borrowers therefore argue “that Vanguard was not a traditional lender,” because the funds that it lent were passed through from warehouse lenders.

We recognize “‘that the term “vendor” in section 580b must be construed liberally . . . .’ [Citation.]” (Sherwood-Trimble Medical Group v. 10001 Venice Blvd. Partnership (1999) 75 Cal.App.4th 872, 876.) Nevertheless, there was no evidence that Vanguard had any relationship with Trois Investors, or that it participated in the purchase and sale, in any way that would make it tantamount to a vendor. (See Costanzo v. Ganguly (1993) 12 Cal.App.4th 1085, 1090-1091 [citing examples].) The involvement of warehouse lenders was irrelevant to this inquiry.

The Borrowers also cite Roseleaf Corp. v. Chierighino (1963) 59 Cal.2d 35, which stated: “Section 580b places the risk of inadequate security on the purchase money mortgagee. A vendor is thus discouraged from overvaluing the security. . . . If inadequacy of the security results, not from overvaluing, but from a decline in property values during a general or local depression, section 580b prevents the aggravation of the downturn that would result if defaulting purchasers were burdened with large personal liability. Section 580b thus serves as a stabilizing factor in land sales.” (Id. at p. 42.)

The Borrowers then argue that, because there was evidence that Vanguard inflated the 2007 appraisal of the Property, applying antideficiency protection here would serve the purposes of Code of Civil Procedure section 580b, as stated in Roseleaf.

When Roseleaf was written, however, Code of Civil Procedure section 580b applied to all purchase-money deeds of trust; it was not limited to deeds of trust given to the vendor. (Roseleaf Corp. v. Chierighino, supra, 59 Cal.2d at p. 41, fn. 4, quoting Code Civ. Proc., former § 580b, Stats. 1949, ch. 1599, § 1, p. 2846.) Later, the legislature decided to narrow the purpose, and hence the scope, of Code of Civil Procedure section 580b. (Code Civ. Proc., former § 580b, Stats. 1963, ch. 2158, § 1, p. 4500.) The statement of purpose in Roseleaf sheds no light on who should be considered a “vendor” under this later legislation.

The trial court therefore correctly concluded that Code of Civil Procedure section 580b did not apply.

E. Arguments Regarding the Proposed Judgment.

1. Additional factual and procedural background.

After the trial court granted the motion for summary judgment, the Lenders submitted a proposed judgment. The Borrowers filed objections to it. After a hearing, the trial court overruled the objections. Thus, it signed and entered the proposed judgment.

2. Discussion.

One of the headings in the Borrowers’ brief states, “An objection to the proposed summary judgment was necessary for among other things violating Cal. Code of Civ. Pro. sec 437c(k).” (Capitalization altered.) The Borrowers fail to support this contention with any argument or analysis. Thus, they have forfeited it.

Under this heading, the Borrowers complain that their objection included an attached copy of the proposed judgment, yet the clerk’s transcript does not include this attachment. Because this point is outside the scope of the heading under which it appears, they have forfeited it. (Cal. Rules of Court, rule 8.204(a)(1(B); Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6.)

Even if not forfeited, it lacks merit. On this record, we cannot tell whether the proposed judgment was, in fact, originally attached.

In any event, the Borrowers have not shown any prejudice. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) The judgment that the trial court signed is clearly the same as the proposed judgment, as it includes the Lenders’ proof of service; the trial court merely struck out the word “proposed” from the caption.

Under the same heading, the Borrowers also complain, “It is . . . peculiar that the clerk’s proof of service of the [ruling on the motions for summary judgment] omitted Appellants’ counsel.” Once again, this is outside the scope of the heading. And, once again, the Borrowers have not shown prejudice. One way or the other, they found out soon enough that the trial court had ruled against them.

F. Motion to File a Cross-Complaint.

While the motions for summary judgment were pending, the Borrowers filed a motion for leave to file a cross-complaint. When the trial court ruled on the motions for summary judgment, it also denied this motion. The Borrowers repeatedly refer to the denial of this motion. However, we do not understand them to be arguing that its denial was error. We therefore do not reach this issue.

III

ATTORNEY FEES

The Borrowers contend that the amount of attorney fees that the trial court awarded was excessive.

As the prevailing parties, the Lenders were “entitled to reasonable attorney’s fees . . . .” (Civ. Code, § 1717, subd. (a).)

“The trial court is in the best position to determine the value of services rendered during the trial over which it presided and, accordingly, we will not disturb the court’s decision regarding the appropriate amount of reasonable attorney fees absent a clear abuse of discretion. [Citation.]” (Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1101.)

“‘ . . . By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.’ [Citation.]” (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 104.)

The Borrowers assert that the fees awarded were unreasonable in four specific respects.

First, the Borrowers argue that the trial court should not have awarded fees for travel time to and from depositions — what they call “sitting in traffic.” They have forfeited this claim by failing to cite to the record to show that the trial court actually did so.

In any event, they do not explain how counsel is supposed to take or defend a deposition without being there, nor do they explain how counsel is supposed to avoid traffic on the way. “[A]ttorney’s fees for travel hours may be awarded if the court determines they were reasonably incurred [citations].” (Roe v. Halbig (2018) 29 Cal.App.5th 286, 312-313.) The Borrowers have not shown that the travel hours here were unreasonable.

The Borrowers also argue that the trial court should not have awarded fees for opposing their motion “to correct . . . [the] judgment.” Again, they have forfeited this claim by failing to cite to the record. There was no motion to correct the judgment; we assume they are referring to their objection to the proposed judgment. That so-called “objection” asked the trial court to reconsider its ruling granting the motion for summary judgment. Of course, the Lenders’ counsel had to oppose it, and they did so successfully.

Next, the Borrowers argue that the trial court should not have awarded fees for settling with their codefendants, the City of Barstow and the County of San Bernardino. Once again, and again because they fail to cite the record, they have forfeited this argument. It lacks merit in any event. The city and county were named as defendants because they were claiming liens on the Property. Their claims had to be resolved as part of the overall judicial foreclosure action.

Finally, the Borrowers argue that the trial court erred by relying on the billing rates of “transactional” attorneys. At the hearing on the motion, the trial court did say, “[T]he $300 an hour charged by counsel for the plaintiff[s] is fair compensation, especially for the transactional attorneys in the Inland Empire. That is, in fact, the going rate based on this Court’s prior rulings on motions for attorney’s fees.” Counsel for the Borrowers did not object.

Obviously, the trial court simply misspoke. It went on to say it had awarded $300 an hour on previous motions for attorney fees; clearly it was referring to litigators.

In any event, the Borrowers have not shown prejudice. If they had raised the present issue below, the trial court undoubtedly would have found that $300 an hour was also reasonable for litigators. This is apparent from its comments; moreover, in our experience, this is a reasonable rate.

In sum, the Borrowers have not shown any error.

IV

DISPOSITION

The judgment is affirmed. The order awarding attorney fees is affirmed. The Lenders are awarded costs on appeal, including attorney fees, against the Borrowers.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.