Niki-Alexander Shetty v. Arvind Doshi, et al.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

 

MOVING PARTY: Defendants Arvind Doshi and Doshi Investments

RESPONDING PARTY(S): Plaintiff Niki-Alexander Shetty

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Niki-Alexander Shetty (Shetty) alleges he borrowed money from Defendant Arvind Doshi and Doshi Investments pursuant to a promissory note secured by a deed of trust on his real property located in Redlands, California. The promissory note provided Shetty would receive a principal sum of $125,000, on which he would pay interest at 12 percent per annum. However, Defendants allegedly only lent him the principal sum of $108,000, rather than the $125,000 indicated on the note itself. When a notice of default was recorded against the property, Shetty tendered the full and correct amount due under the note to avoid default. This offer was rejected by Defendants. Plaintiff claims the interest paid under the note was usurious and that he had never received the full balance of the principal as provided by the note. Plaintiff brings causes of action for (1) usury, (2) common counts, (3) violation of Financial Code section 22750, and (4) unfair competition under Business and Professions Code section 17200.

Defendants now move for summary judgment, or in the alternative, summary adjudication. Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Motion for Summary Judgment is DENIED.

Defendants’ Alternative Motion for Summary Adjudication of the First and Second Causes of Action is DENIED.

Defendants’ Alternative Motion for Summary Adjudication of the Third and Fourth Causes of Action is GRANTED.

Defendants’ Alternative Motion for Summary Adjudication of Punitive Damages is GRANTED.

Moving parties to give notice.

DISCUSSION:

Motion for Summary Judgment or Adjudication

I. Evidentiary Objections

Each party submitted various objections to evidence. Before this matter was reassigned to this department, Judge Teresa A. Beaudet ordered the parties to submit a joint statement addressing the objections to the pending motion for summary judgment. (See July 13, 2023, Minute Order.) On July 21, 2023, the parties filed a “Joint Statement Re: Evidentiary Objections to Motion for Summary Judgment.” At a July 27, 2023, Status Conference regarding the objections, Judge Beaudet indicated the court would rule on the objections in the tentative for the Motion for Summary Judgment. (See July 27, 2023, Minute Order.) On September 29, 2023, the matter was reassigned to Department 49.

Consistent with the previous rulings, this court now rules on the objections contained in the July 13 Joint Statement. Pursuant to CCP § 437c(q), this court rules only on objections material to the disposition of this motion, as follows:

Plaintiff’s objections to the declaration of Defendant Arvind Doshi numbered 1, 2, 3, 4, and 5 are OVERRULED. 

Plaintiff’s objections to the declaration of Rhett Pascual numbered 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 are OVERRULED.

Defendants’ objections to the declaration of Plaintiff Niki-Alexander Shetty numbered 1, 2, 3, 4, and 5 are OVERRULED.

II. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, 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.  Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.  Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. 

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. 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. A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action.  Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.  Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.  § 437c(o)(2). 

III. Analysis

A. First Cause of Action for Usury

1. Allegations and Law

In analyzing motions for summary judgment, 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.)

“A defendant moving for summary judgment has the initial burden of showing, with respect to each cause of action set forth in the complaint, the cause of action is without merit. A defendant meets that burden by showing one or more elements of the cause of action cannot be established, or there is a complete defense thereto.” (Leyva v. Garcia (2018) 20 Cal. App. 5th 1095, 1101.) “A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 851 [emphasis added].) “The prima facie showing by the moving party must be such that it would, if uncontradicted, entitle the moving party to judgment as a matter of law.” (Id. at 851.) That is, “a moving defendant must present evidence which, if uncontradicted, would constitute a preponderance of evidence [i.e., show it is more likely than not] that an essential element of the plaintiff's case cannot be established.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) 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.)

As framed by the First Amended Complaint, Plaintiff alleges that “Plaintiffs and Defendant entered into a loan agreement, pursuant to which Defendants lent to Plaintiff a total sum, together with interest of 12 percent per annum.” (FAC ¶ 23.) Plaintiff alleges the “annual interest rate on the loan is usurious in violation of section 1(2) of Article XV of the California Constitution.” (Id. ¶ 24.) Plaintiff further alleges that “a broker did not make or arrange the subject loan; therefore, the ‘broker’ exception to the usury laws under California Civil Code § 1916.1, and otherwise, does not apply to the subject transaction.” (Id. ¶ 25.) 

Article XV, section 1 of the California Constitution sets the maximum rate lenders can charge on nonpersonal loans at “the higher of 10 percent or 5 percent plus the Federal Reserve Bank of San Francisco's rate on the 25th day of the month preceding the date the agreement was contracted.”  For present purposes, the parties agree that 10 percent is the maximum rate allowed absent an exemption from the usury law. 

A loan is exempt from the usury law if the loan is “made or arranged by any person licensed as a real estate broker by the State of California and secured in whole or in part by liens on real property....” (Cal. Const., art. XV, § 1.) As relevant here, Civil Code section 1916.1 implements that exemption by specifying that “a loan ... is arranged by a person licensed as a real estate broker when the broker ... acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another.” Courts have found broker “arranged” loans to be “those in which the broker acts as an intermediary and causes a loan to be obtained or procured as by structuring the loan as the agent for the lender, setting the interest rate and points to be paid, reviewing the loan and forbearance documents, conducting title searches, or drafting the terms of the loan.” (Creative Ventures, LLC v. Jim Ward & Assocs. (2011) 195 Cal. App. 4th 1430, 1442.)

Thus, the primary issue in this motion is whether Rhett Pascual, a licensed real estate broker, “arranged” the loan between Plaintiff and Defendants such that the loan was exempt from the usury provision in the California Constitution. If he did, then the subject loan is exempt from the usury law, and Plaintiff’s cause of action fails. 

2. Defendants’ Burden

The burden begins with Defendants to negate an essential element of the claim, or to establish a defense thereto. (See Scalf, supra, 128 Cal.App.4th at 1520.) The moving Defendants present the following evidence in support of their argument that Pascual arranged the subject loan. 

Rhett Pascual is a licensed California Real Estate Broker. (Pascual Decl. ¶ 2.) Pascual attests that in 2018 and 2019, he arranged three private loans between Plaintiff Niki-Alexander Shetty and Defendant Arvind Doshi for Doshi Investments, one of which was the $125,000 loan at 1390 Church Street. (Id. ¶ 3.) With regards to the Church Street Loan, Pascual attests that Plaintiff Shetty approached him in late October 2018 “looking for a lender to save the Church Street property from an impending foreclosure.” (Id. ¶ 4.) Thus, on or about November 21, 2018, Plaintiff “completed and forwarded to [Pascual] his Loan Application to engage [Pascual’s] services to obtain a loan for the Church Street Property.” (Id. ¶ 5; Exh. A.) The Loan Application identifies the Church Street Property, Plaintiff Shetty as borrower, and Pascual as loan broker. (Pascual Decl. ¶ 6, Exh. A.)

Pascual introduced Plaintiff to Defendant Doshi. (Pascual Decl. ¶ 7.) Pascual ordered an appraisal of the Church Street Property. (Pascual Decl. ¶ 8, Exh. C.) He performed title searches for this loan. (Id. ¶ 10.) 

While Pascual concedes that Plaintiff himself “prepared the note and deed of trust for the loan,” he notes that the documentation identified Pascual as the arranging real estate broker. (Id. ¶ 10.) Moreover, Pascual contends he “reviewed the paperwork” and “helped negotiate the loan terms.” (Id.) He was “also involved with the escrow process through First American Title, and was included in those correspondences.” (Id. ¶ 11.) Pascual “drafted a preapproval letter and gave Mr. Doshi instructions to send it to the foreclosure trustee on the then-pending foreclosure, Select Portfolio Services, to request that the foreclosure be postponed by 10 days.” (Id. ¶ 12.) Pascual prepared a Certificate of Business Purpose of Loan signed by Plaintiff Shetty that identifies Pascual as the broker. (Id. ¶ 13, Exh. E.) 

On November 28, 2018, Pascual prepared an Invoice reflecting the compensation of $10,000.00 that he as the arranging licensed broker was to receive. (Pascual Decl. ¶ 14; Exh. F.) Both Plaintiff and Defendant signed the Invoice. (Id.) Pascual attests that Shetty compensated him for arranging the three different loans, “including specifically for the Church Street Loan.” (Id. ¶ 17.) He concludes that Shetty gave him 1099s for $12,250 in 2018 and $7,150 in 2019 for those payments. (Id. ¶ 17.) 

On December 5, 2018, Plaintiff Shetty emailed escrow officer Marilyn Owens to request that a deed be prepared to transfer title to the Church Street Property from Alpha Glendale Acquisitions to Plaintiff personally. (Pascual Decl. ¶ 9, Exh. D.) Plaintiff “CC’d” Pascual on that email. (Id.) 

Defendant Arvind Doshi also submits a declaration attesting that Pascual “arranged for” the Church Street loan. (Doshi Decl. ¶ 3.) He provides a copy of the Deed of Trust for the Church Street Loan, which identifies Pascual as the broker for the transaction. (Doshi Decl. ¶ 4, Exh. A.)

Finally, Defendants submit the declaration of Maria B. Lee, whom Plaintiff asserts was the individual who actually arranged the loan. Lee refutes this, attesting that she “does not do loans.” (Lee Decl. ¶ 2.) She attests that Pascual “is the originator of the Loan and that he did process the loan.” (Id.) She attests that she “was not part of processing” the Church Street loan, and “only forwarded required documents to Rhett Pascual from” Plaintiff. (Id.) She says Plaintiff was “fully aware” that she was “not a loan broker and that [she] had to refer [Plaintiff’s] loan requirements to Rhett Pascual.” (Id.) 

Considering this evidence, Defendants have established that Rhett Pascual, a licensed real estate broker, arranged the Church Street Loan. If unrebutted, this establishes that the Church Street loan falls under the exception to the usury laws. 

3. Plaintiff’s Burden

This shifts the burden to Plaintiff to establish a triable issue of fact. In opposition, Plaintiff disputes that Pascual brokered the loan. He instead contends that all of the broker’s tasks were performed by himself, Arvind Doshi, and/or Maria Lee. 

Plaintiff attests in his declaration that Maria Lee, and not Pascual, introduced him to Defendant Arvind Dosh. (Shetty Decl. ¶ 2.) Plaintiff contends that “[e]ach and every term of the Note was directly negotiated between Arvind Doshi and [Plaintiff].” (Id. ¶ 3.) In addition to drafting the Note and Deed of Trust himself, Plaintiff also “presented the Doshi[s] with title search results, comp search results, estimated equity value in the property, and the loan to value ratio, as part of the negotiations determining the interest rate using Corelogic database.” (Id. ¶¶ 4, 10.) 

Plaintiff asserts that Lee “helped navigate documents between Arvind Doshi and [Plaintiff], escrow, and title companies.” (Id. ¶ 5.) Plaintiff paid Lee $2,070 for her services. (Id. ¶ 6.) He states flatly that “Pascual was not involved in this loan transaction in any way.” (Id. ¶ 9.) He states he “did not pay Pascual, or any other broker, directly or indirectly, any broker fees concerning the underlying Doshi-Shetty loan secured by the Church property.” (Id. ¶ 18.) 

Plaintiff also disputes Defendants’ documentary evidence. Plaintiff contends the Uniform Residential Loan Application,” attached to the Pascual declaration as Exhibit A, and the Invoice attached to Pascual’s declaration as Exhibit F, are forgeries. (Id. ¶¶ 13, 18.) Plaintiff disputes that he ever signed these documents. Likewise, Plaintiff contends that Pascual’s Exhibit E, the “Certificate of Business Purpose of Loan,” is also a forgery. Although Plaintiff concedes the signature on the document is his, he asserts that someone altered the property address line to reflect the Church Street property after he signed it. (Id. ¶ 17.) 

As to Exhibits B, C, and D referenced and attached to the Pascual Declaration, Plaintiff asserts they are related to a different transaction than the one at issue here. Plaintiff attests that Pascual helped him solicit a loan from lender Capital Benefit, although the loan never materialized. (Id. ¶ 12.) Thus, Plaintiff instead obtained the loan through Doshi without Pascual’s assistance. (Id.) 

Here, the undisputed evidence shows that Plaintiff, and not broker Pascual, prepared the notes and deeds of trust for the loan from the Doshis. Beyond that, Pascual’s involvement in the negotiations between Plaintiff and Defendants is plainly disputed.

Generally, Plaintiff’s bare assertions that the documents listing Pascual as broker are forged is given little weight, if any. A party seeking to avoid summary judgment “must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits…” (Sangster v. Paetkau (1998) 68 Cal.App. 4th 151, 163 [bare assertion that moving party “fabricated” evidence is insufficient to avoid summary judgment])(emphasis added). Even setting this aside, Plaintiff has still established a triable issue.

Defendants have provided no authority suggesting that documents merely listing Pascual as a broker on the transaction are conclusive evidence to invoke the broker exception. Rather, the case law imparts a fact-intensive inquiry, considering factors like whether the proposed broker set the interest rate and points to be paid, reviewed the loan and forbearance documents, conducted title searches, or drafted the terms of the loan. (Creative Ventures, LLC v. Jim Ward & Assocs. (2011) 195 Cal. App. 4th 1430, 1442.)

It is notable that Defendant’s Exhibits B and C list the lender as Capital Benefit rather than Doshi. On one hand, this supports Defendant’s contention that Pascual had generally acted as a broker for Plaintiff on the Church Street loan. On the other, that they reflect a different lender than Defendants supports Plaintiff’s contention that Pascual did not assist in the particular negotiations between Plaintiff and Defendant. 

There is a dispute as to whether Pascual introduced Plaintiff to Mr. Doshi. There is also a dispute as to whether Pascual received compensation for his work. Moreover, Defendants fail to provide conclusive documentary evidence demonstrating actual acts taken by Pascual on the Church Street deal, at least as it pertains to negotiations involving the Doshis and not some other lender. Defendants’ strongest evidence is the Pascual declaration, where he himself states he brokered the deal between Plaintiff and Doshi, as corroborated by the declaration of Maria Lee. But Plaintiff’s declaration firmly disputes that Pascual was involved in negotiations with the Doshis. 

Considering this evidence, a reasonable trier of fact could find that Pascual played little or no role in the negotiations between Plaintiff and Defendants. Courts must “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.) Doing so here, this court concludes Plaintiff has met his burden to establish a triable issue of material fact as to whether a broker “arranged” the loan between Plaintiff and Defendants such that the loan is exempt from the usury provision in the California Constitution.

Accordingly, Defendants’ Motion for Summary Adjudication of the First Cause of Action is DENIED.

B. Second Cause of Action for Common Counts

In support of his second cause of action, Plaintiff alleges that “Defendants had only lent Plaintiff an approximate amount of $108,000,” but made the pay-off demand based on the incorrect amount of $125,000. (FAC ¶ 36.) Plaintiff then made the pay-off demand in the full amount of $153,808. (Id. ¶ 20.) Thus, Plaintiff alleges “Defendants became indebted to Plaintiff for monies received from Plaintiff which were paid to Defendants due the incorrect pay off demand, as well as illegal demand of payment of principle, interest, and other charges.” (Id. ¶ 38.) 

First, to the extent Defendants argue this cause of action fails because the interest rate was not usurious, Plaintiff has established a triable issue of fact on that issue, as discussed in Paragraph A, above.

Second, Defendants argue that the undisputed evidence shows that Defendants funded the full $125,000.00 for the loan. While is does appear that Defendants wired the full $125,000 into escrow (Doshi Decl., Exh. B), once various fees were subtracted, Plaintiff received only approximately $108,000. One such fee was an “Origination Fee to Tejas A. Doshi” in the amount of $6,300. (Shetty Decl., Exhs. 5 & 6.) The issue becomes whether Plaintiff agreed that such funds would be taken out of the $125,000.

Defendants contend that Plaintiff agreed to pay for broker’s fees and escrow charges. However, Defendants’ motion fails to identify any provision of any agreement where Plaintiff agreed to an origination fee to Tejas Doshi. 

Finally, Defendants argue that Plaintiff has not produced evidence of an account stated. “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600, internal citations omitted.) “The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor.” (Id.) 

Here, Defendants argue that elements 2 and 3 are missing because there is no agreement between the parties and no promise by Defendants to pay the amount allegedly owed. “Plaintiff has produced no records or evidence whatsoever that reflect an agreement between Plaintiff and Defendants whereby Defendants acknowledged and agreed that they owed a sum of money to Plaintiff Niki-Alexander Shetty and that they promised to pay that sum to Niki-Alexander Shetty.” (Mtn. 7: 1-2.) 

Although Plaintiff titles the cause of action as common count for an “account stated,” it perhaps more closely resembles a common count for money had and received. (See Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [noting “our policy of emphasizing substance over form in characterizing pleadings”].)“A cause of action for money had and received is stated if it is alleged [that] the defendant ‘is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.’ ‘ . . .’ The claim is viable‘ “wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454, internal citations omitted.) “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned. . . . The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’” (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586, internal citations omitted.) 

Here, whether construed as a cause of action for account stated or money had and received, Plaintiff presents evidence that he did not receive the full value of the loan as agreed. Defendants then demanded a payoff in the full value of the loan, which Plaintiff paid. Therefore, there is a triable issue as to whether Defendants received money which belongs to Plaintiff, “and which in equity and good conscience should be paid over to the latter.” (Avidor, supra, 212 Cal.App.4th at 1454.) 

Accordingly, Defendants’ Motion for Summary Judgment of the Second Cause of Action is DENIED.

C. Third Cause of Action for Violation of Finance Code Section 22750

In support of the Third Cause of Action, Plaintiff alleges that Defendants “are unlicensed lenders, operating in violation of California lending and finance laws, including Finance Code Section 22750.” (FAC ¶ 40.) Plaintiff alleges “[t]he interest and fees charged and received by Defendants were in violation of Finance Code Section 22750,” and “[a]s such, the Note was void, and Defendants did not have any right to collect any principle, interest, or other charges from Plaintiff.” (Id. ¶¶ 41, 42.) 

Defendants first argue that the claim must fail because a real estate broker arranged the subject loan. As discussed, however, because there is a triable issue on this question, this argument fails.

Second, Defendants argue the claim fails because the subject loan was an investment loan, not a “consumer loan.” Section 22750 falls under Article 2, titled “Consumer Loan Penalties.” A “consumer loan” is “a loan, whether secured by either real or personal property, or both, or unsecured, the proceeds of which are intended by the borrower for use primarily for personal, family, or household purposes.” (Fin. Code § 22203, emphasis added.)

Defendants present evidence, by Plaintiff’s deposition testimony, that Plaintiff did not live at the Church Street Property. (SSUMF 27; Cohen Decl. Exh. G, Shetty Depo. 59: 18-22.) Plaintiff confirmed “[i]t [was] an investment property.” (Id.) Therefore, Defendants have met their initial burden.

Plaintiff does not address this cause of action in his opposition, nor materially dispute the relevant facts with citation to evidence in his opposing separate statement. Therefore, Plaintiff has failed to create a triable issue as to whether the subject loan was a consumer loan. “[F]ailure to offer reasoned analysis of [an] issue constitutes a waiver.”  (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1009; see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”].) Thus, the undisputed evidence establishes that the loan at issue was not a consumer loan, and therefore section 22750 does not apply. 

Accordingly, Defendants’ Motion for Summary Adjudication of the Third Cause of Action is GRANTED.

D. Fourth Cause of Action for Unfair Competition

Defendants argue the UCL claim fails because Plaintiff seeks only damages, which are not available under the UCL. Despite its broad applicability, “[i]njunctive relief and restitution are the only remedies available under the UCL.”  (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.)  Thus, “[a] UCL claim must be based on the existence of harm supporting injunctive relief or restitution.”  (Id.) 

In the First Amended Complaint’s prayer for relief, Plaintiff seeks treble damages, attorney’s fees, punitive damages, specific damages, and costs of suit. (See FAC Prayer, generally.) He does not seek restitution or injunctive relief. 

Plaintiff purports to dispute this, but does not include citation to any evidence to suggest otherwise. (See SSDMF 35.) Plaintiff also fails to address this cause of action in his memorandum of points and authorities. “[F]ailure to offer reasoned analysis of [an] issue constitutes a waiver.”  (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1009; see also In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”].) Therefore, because Plaintiff is not seeking restitution or injunctive relief, his claim under the UCL fails. 

Accordingly, Defendants’ Motion for Summary Adjudication of the Fourth Cause of Action is GRANTED.

E. Claim for Punitive Damages

Defendants next move to summarily adjudicate Plaintiff’s request for punitive damages. “It is settled…that a claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication.” (Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 92; CCP § 437c(f)(1).)

First, Defendants argue punitive damages are unavailable because the action is based on an obligation arising from contract. Generally, punitive damages may be awarded only in “an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294(a), emphasis added.)

The action is largely based on the written note agreement, i.e., a contract. (See FAC, Exh. 1.) Although there might be some argument to the contrary, Plaintiff’s memorandum in opposition does not address the issue of punitive damages. (Trinity Risk Management, supra, 59 Cal.App.5th at 1009 [“failure to offer reasoned analysis of [an] issue constitutes a waiver]; In re Marriage of Falcone, supra, 164 Cal.App.4th at 830 [“[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”].)

Therefore, Defendants’ Motion for Summary Adjudication of punitive damages is GRANTED.

F. Motion for Summary Adjudication of All Claims Against Individual Defendant Arvind Doshi

Finally, Defendants make the passing argument that all claims must fail against individual Defendant Arvind Doshi because only the entity Defendant Doshi Investments was the lender.

However, Defendant Arvind Doshi is a general partner of Doshi Investments. (Berokim Decl. Exh. 4, Form Interrogatory No. 3.2.) Doshi investments is not registered or formed under the laws of any state. (Id., Form Interrogatory No. 3.7.) “[I]t is clear that tortious acts done in connection with, or in the process of, the business of the partnership will subject the general partners to liability to creditors.” (Kazanjian v. Rancho Ests., Ltd. (1991) 235 Cal. App. 3d 1621, 1626.)

Accordingly, Defendants’ Motion for Summary Adjudication of Claims against Arvind Doshi is DENIED.

Moving parties to give notice.

IT IS SO ORDERED.

Dated:   November 14, 2023 ___________________________________