Judge Teresa A. Beaudet, Case 20STCV08655 2023-01-17 Tentative Ruling

[TENTATIVE AND PROPOSED] STATEMENT OF DECISION BY THE COURT AFTER TRIAL ON THE CROSS-COMPLAINT

This matter came on for trial on July 28-29 and August 2-3, 2022 in Department 50 of the above-entitled Court before the Hon. Teresa A. Beaudet, sitting without a jury. The Court, having considered the evidence and read the arguments of counsel, issues this tentative and proposed Statement of Decision. This tentative and proposed Statement of Decision will become the Statement of Decision unless, within 15 days hereafter, a party serves and files objections to the proposed Statement of Decision.

I. STIPULATION TO BIFURCATE THE TRIAL ON LIABILITY ON THE CROSS-COMPLAINT AS TO THE “PETITE CLAIM” BUT TO TRY BOTH LIABILITY AND DAMAGES ON THE “UNPAID LOAN CLAIM”

Prior to the start of trial, the parties stipulated to bifurcate the trial on liability on the Cross-Complaint with regard to the “Petite Claim” (described below), but to try both liability and damages on the “Unpaid Loan Claim” (also described below). The parties also agreed to forego a jury trial. (See Minute Orders dated 2/28/22 and 3/22/22 and 7-28 Certified Transcript (“CT”) 83:8-13.) Although the Cross-Complaint alleges various causes of action, the parties set forth the scope of the issues at trial in their April 19, 2022 Joint Statement of Relief Requested at First Phase of Birfurcated [sic] Trial of Cross Complaint, a copy of which is attached hereto as Exhibit “A” and incorporated herein by this reference.[1] More specifically, the liability issues tried to the Court were (1) whether “[a]t all times, [Saeid] Aminpour [‘Aminpour’] owned a 50% membership interest in Petite [Note Group, LLC] [‘Petite’] and was entitled to 50% of any distributions or net proceeds” (the “Petite Claim”), and (2) whether [Shahram] Golbari [“Golbari”] is personally liable to Aminpour in the amount of $152,000 for the unpaid portion of a $300,000 loan to Golbari, plus interest from September 27, 2018. Subsequently, Aminpour reduced this claim to $140,000, plus interest (the “Unpaid Loan Claim”). (See Amended Closing Argument, p. 1:27-2:1.)

II. DID AMINPOUR PROVE THAT THAT HE OWNED A 50% MEMBERSHIP INTEREST IN PETITE AND THAT HE WAS ENTITLED TO 50% OF ANY DISTRIBUTIONS OR NET PROCEEDS?

The Court finds that Aminpour did not prove that he owned a 50% membership interest in Petite, and therefore, he was not entitled to any distributions or net proceeds thereof.

In his Amended Closing Argument, Aminpour states that “Aminpour testified that he, [Mike] Verdi [“Verdi”] and Golbari orally agreed in June 2010 that Aminpour would own 50% of Petite and Golbari would own the other 50%.” He cites to “7-28. RT. 37:7 to 41:21; 55:6-19.”[2] However, in that testimony, Aminpour does not establish that there was such an agreement. Instead, when asked “What agreements did you make with Mr. Golbari regarding Petite,” he testified “Supposed to be 50/50 partnership. He promised 50/50 partnership.” (7-28. CT at 37:8-11.) He reiterated his assertion of a partnership at page 40:19-23. He then adds that Golbari “promised me to make me a member of Petite, but he delayed it, delayed it delayed it.” (Id. at 40:24-27.) This testimony does not prove that Aminpour owned a 50% membership interest in Petite. Instead, it shows that a partnership was promised and any purported membership in Petite was “delayed and delayed.”

Aminpour admits that Golbari never did make good on his purported promise to make Aminpour a member of Petite. When asked, “Were you ever told by Mr. Golbari whether or not he had made you a member of Petite Note Group LLC,” he admitted, “He always told me he tried to, he tried to, he tried to.” When asked to clarify what he meant, Aminpour testified, “He said he will do it, he will do it, he will do it. He never did.” (Id. at 54:25-55:4.) When asked if he received “any documentation evidencing any interest in Petite Note Group,” he admitted that he [Golbari] promised me to give it to me, but he never did.” He acknowledged that he has “been asking him for almost ten years” for that documentation. (8-2 CT. 6:6-9, 26-28; 7: 1-2.) He never received a K-1, and Aminpour did not send any email, text message or other written communication asking Golbari for any documents concerning Petite. (Id. at 9:2-5; 10:5-14, 28; 11:1-4, 13.)

There was no credible testimony about how any agreement to make Aminpour a member of Petite (or even any partnership agreement) was formed. Golbari testified that “Three of us decided, Mr. Verdi and I be 50 percent ownership and 50 belong to Mr. Golbari.” (7-28 CT. 41: 6-8). But there was no testimony as to what Golbari said to Aminpour and what Aminpour said to Golbari about any agreement. What were the terms of the purported agreement? Where were Golbari and Aminpour when this purported agreement was made? Why was there an agreement in the first place? Aminpour testified that Verdi was supposed to give $231,000[3] to Golbari to create a 50 percent interest in Petite (7-28 CT. 49:20-27), but there was no credible evidence that Golbari was aware of any such arrangement and no evidence as to when such money purportedly was delivered to Golbari. There was no check produced from either Aminpour or Verdi to support the contention that $231,000 was given to Golbari in exchange for an interest in Petite.

The testimony regarding the ledger entry of $231,500 on Exhibit 4 did not establish any agreement by Golbari to make Aminpour a member of Petite. Moreover, Aminpour’s testimony regarding a purported $231,500 payment to Golbari for a membership interest was not credible. First, in response to his own counsel’s question as to whether he ever wrote “a check for any part of that $231,500,” he very clearly testified “Yes, I did. I give it to Mike Verdi. Mr. Verdi give it to Mr. Golbari.” (7-28 CT. 54:6-9.) However, the next day, he reversed himself and said he didn’t write a check, but instead he gave a credit. (7-29 CT. 64:25-65:1.) Here again, there was no testimony that Golbari had any part in accepting a check or a credit in exchange for a membership interest in Petite.

When asked by his counsel whether Aminpour and Golbari had “an agreement about how [he] would get paid from Petite,” all Aminpour could say was that Golbari was “supposed to pay us,” followed by the nonsequitur, “In 2020, 2022, 2010, we bought it.” (7-28 CT. 56:8-16.) His subsequent testimony regarding payments to Aminpour by Petite was vague and inconsistent: First he answered “Yes, I did,” when asked if he ever received any payments from Petite and he indicated that the payments were in 2011. (Id. at 60:12-16.) However, shortly thereafter, he clarified that Golbari (not Petite) paid him on two separate occasions “like 10,000 or 8,000 . . . cash.” (Id. at 60:26-28.) There was no explanation or details as to any discussion with Golbari as to the nature or purpose of those payments. There were no details as to any discussion with Golbari as to whether they were on behalf of Petite or himself personally or in connection with other transactions involving Aminpour and Golbari. As noted at pages 3:22 – 4:4 of Aminpour’s Amended Closing Argument, Golbari admitted in his Complaint to having “engaged [with Aminpour] in an oral partnership or joint venture in the purchase and sale of . . . notes for years.”[4]

With regard to the Petite documents that Aminpour received in 2019, the Court finds that evidence inconclusive. Golbari was impeached as to his assertion that Aminpour did not visit his office in 2019, but that fact did not establish an agreement by Golbari to make Aminpour a member of Petite. Aminpour did testify that based on the information Golbari gave him, “he’s supposed to give me seven to $800,000 profit on Petite.” (7-28 CT. 2-3, 11-13.) When pressed further, he testified, “That’s what he said. The profit left over, my share of 50 percent of share, was seven to $800,000.” (Id. at 80:24-27.) However, here again, there are no details as to when Golbari purportedly made this statement and the basis for making the statement. As noted below, Golbari did offer to resolve matters between him and Aminpour by “honoring Aminpour’s claim to profits,” so it is unclear whether this testimony by Aminpour pertained to that offer or some other conversation. Because it included a specific number as to the profits, it clearly was not a conversation that reflected the alleged original agreement between Aminpour, Golbari and Verdi.

The testimony by Verdi did not support Aminpour’s claim to a membership interest in Petite. He denied having an equity interest in Petite and testified that he made a loan to Petite in the amount of $110,000 as evidenced by Ex. 65. (7-29 CT. 28:7-12, 17-18; 87:12-88:7.) Mr. Joseph’s testimony regarding his conversation with Verdi did not evidence any discussion with Verdi as to the specifics regarding the formation of the purported agreement with Golbari (i.e., the who, what, when where, etc.).

In contrast to Aminpour, the Court found the testimony of Golbari more straightforward. That testimony did not support the claims made by Aminpour. Golbari testified that the only members of Petite were he and his wife, as evidenced by the Petite Operating Agreement, Ex. 66. (8-3 CT. 72:1-2, 8-12, 26-28.) Neither Verdi nor Aminpour were members or partners in Petite. (Id. at 73:1-13.) Golbari testified that the $231,500 entry on Exhibit 4 did not reflect an equity investment by Verdi and Aminpour; instead, it reflected the $110,000 loan from Verdi and a ”$121,000 something” loan from Mr. Ashoupour. (Id. at 80:25: 81:1-11, 21-27.) The Court did not find that Golbari’s testimony in his interrogatory response that he “did not agree to make Aminpour a formal member in Petite” (emphasis added) evidence that he had in fact made him a member. Golbari explained that he “offered to honor his [Aminpour’s] claim to an interest in the profits earned from it to resolve a number of disputes that [he had] with Aminpour . . . ” (Id. at 54:5-9.)

Because Aminpour did not carry his burden of proof to establish that he owned a 50% interest in Petite or that there was any agreement re same, he failed to establish any liability on the part of Golbari, Petite or LA Properties based upon such alleged ownership interest.

III. DID AMINPOUR PROVE THAT GOLBARI IS PERSONALLY LIABLE TO HIM IN THE AMOUNT OF $140,000, PLUS INTEREST ON THE UNPAID LOAN CLAIM?

The Court finds that Aminpour proved that Golbari owed him $45,000 on the Unpaid Loan Claim and that the Unpaid Loan Claim is not barred by the statute of limitations or C.C.P. § 360.

The evidence at trial established that a loan of $300,000 was made by Aminpour to Golbari on September 22, 2008, and at Golbari’s direction, the check was issued to Golbari’s company Elat Properties (“Elat”). (7-28 CT. 83:25- 84:9.) The loan originally was to be paid back in two months, but Golbari and Aminpour subsequently agreed to a repayment schedule at the rate of $5,800 per month, with the payments by Elat to be made to Aminpour’s company Natasha Property. (Id. at 85:2-13.) Aminpour testified that Golbari paid back $148,000 of the $300,000, loan (Id. at 87:19-24) thereby leaving a balance of $152,000. However, as noted above, Aminpour reduced the Unpaid Loan Claim to $140,000, plus interest. (See Amended Closing Argument, p. 1:27-2:1.)

Golbari claims that he and Verdi borrowed the money from Aminpour when Verdi was a partner in Elat, and he was supposed to pay $150,000 and Verdi was supposed to pay $150,000. However, he does not testify that Aminpour knew about this arrangement when the loan was made. Verdi’s testimony supports the conclusion that the loan originally was made to Golbari and that he and Golbari subsequently made their own agreement to divide the obligation to repay the loan. (7-29 CT. 47:27-28; 48:3-49:18.)

Golbari acknowledged that, after the original loan was made, Aminpour made a deal with him to repay $5,800 per month, but he did not know what deal Aminpour made with Verdi. (8-3 CT. 56:12-28.) He testified that he paid his $150,000 plus $10,000 in interest, and Verdi paid $95,000. (Id. at 57:1-17.) Exhibits 50 and 51 evidence payments to Aminpour by checks from Elat, all signed by Golbari in a total amount of $255,000. The ledger (Exhibit 50) does contain references to Verdi in the memo column regarding checks totaling $95,000, and there are handwritten notes by Golbari regarding the $160,000 paid by Golbari and the $95,000 paid by Verdi. (Id. at 59:3-13.) The balance due per Exhibit 50 is $45,000.[5] When asked if he disputes that balance due, Golbari could only state that he thinks Verdi paid it and its between Aminpour and Verdi. (Id. at 59: 18-19; 60: 9-13.)

The Court did not find credible Aminpour’s assertion that Golbari told him that the payments made by Elat in the amount of $95,000 were in fact repayments of a $500,000 debt of Verdi to Aminpour. (7-29 CT. 115:20-24.) Prior to the trial, Aminpour did not even know that Verdi had any interest in Elat (Id. at 108:23-109:16), and it appears that he only learned of the memo regarding Verdi and certain Elat checks once he saw Exhibit 50.

The statute of limitations on an oral agreement is two years. (C.C.P. § 339.) The last payment by Golbari appears to have been made on 8/29/12. (Exhibit 50.) This case was not filed until 3/2/20, more than seven years after the last payment. As a result, Golbari asserts that the two-year statute of limitations bars Aminpour’s Unpaid Loan Claim and any purported oral promise by Golbari to repay the loan is barred by C.C.P. § 360. (Cross-Defendant’s Amended Closing Brief, p. 12:17-13:20.)

In response, Aminpour asserts that the statute of limitations does not bar his Unpaid Loan Claim for two reasons. First, in 2013, Golbari orally promised to repay the loan after the AAA Nissan case was over, and that case did not end until 9/27/18. (7-29 CT. 72:6-15, 23-24; Amended Closing Argument at p. 14: 22-23.) Second, Exhibit 50 constitutes sufficient evidence of that promise so as to comply with the requirements of C.C.P. § 360.[6]

The Court is persuaded that Exhibit 50 satisfies the requirement of C.C.P. § 360. That section 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 [the sections regarding the time for commencing civil actions], unless the same is contained in some writing, signed by the party to be charged thereby . . .” As noted by Aminpour in his Amended Closing Argument at p. 15:8-13, in the case of Searles v Gonzalez (1923) 191 Cal 426, 430, the court emphasized that “[i]t is well established that the code section does not prescribe any form in which an acknowledgment or promise sufficient to lift the ban of the statute of limitations shall be made. It is sufficient if it shows the writer treats the indebtedness as subsisting and one which the debtor is liable and willing to pay. From this acknowledgment the law implies the promise to pay.” Here, Exhibit 50, is a ledger showing that the “”Total Loan Payable” as of “December 22, 2021” (emphasis added) was “$45,000,” and Golbari himself wrote on that ledger that “Elat paid $160,000,” “Mike paid $95,000,” and “Mike paid Natasha $25,000.” Presumably, the purpose of section 360 is to provide assurance that a promise regarding a continuing contract has truly been made. These writings on Exhibit 50 by Golbari are sufficient acknowledgment of such a promise so as to comply with C.C.P. § 360.

The Court finds (a) in favor of Golbari on the Petite Claim, and (b) in favor of Aminpour in the amount of $45,000 plus interest on the Unpaid Loan Claim. Within ten days after this

Statement of Decision becomes final, Aminpour is ordered to file and serve a proposed judgment in accordance herewith.

[1] Although the docket in this case has an entry on April 19, 2022 for “Notice Cross-Complainant Aminpour’s and Cross-Defendant Golbari’s Joint Statement of Relief Requested at First Phase of Birfurcated [sic] Trial of Cross-Complaint,” the document that appears in the docket under that entry is “Cross-Complainant Aminpour’s and Cross-Defendant Golbari’s Joint Identification of Discovery to be Offered as Testimony at First Phase of Birfurcated [sic] Trial of Cross-Complaint.” Because the docket does not appear to include the Joint Statement of Relief that the parties provided to the Court, the Court has attached it to this Statement of Decision.

[2] The cited testimony appears at 7-28 CT 36:22-41:8; 54:25-55:10.)

[3] The testimony regarding the amount of this payment varied as to whether the amount was $231,000 or $231,500.

[4] Although Golbari denied this was true, the Court did not find this denial to be credible. (8-2 CT. 100:5-9; 102:10-13.)

[5] There are additional handwritten notes by Golbari that state “Mike paid Natasha $25,000.” However, Golbari admitted that he had no checks to back up that statement. (8-3 CT. 91:27- 92:1, 14.)

[6] Aminpour also contends that Golbari’s promise to repay the loan results in equitable tolling or estoppel as to the enforcement of the two-year statute of limitations, and as a result, the statute of limitations would not have expired by the time this case was filed on 3/2/20. (Amended Closing Argument, p. 16:12-17:28.) However, none of the cases cited by Aminpour stand for the proposition that an oral promise made years after the statute of limitations had already expired constitutes grounds for equitable tolling or estoppel.

Superior Court of California

County of Los Angeles

Department 50