Judge: Teresa A. Beaudet, Case: 20STCV08655, Date: 2023-03-23 Tentative Ruling

Case Number: 20STCV08655    Hearing Date: March 23, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On March 2, 2020, Plaintiff Shahram “Ray” Golbari (“Golbari”) filed this action against Defendant Saeid “Steve” Aminpour (“Aminpour”). The operative Second Amended Complaint was filed on April 30, 2021 and asserts causes of action for (1) equitable indemnity, (2) contribution, (3) apportionment, and (4) to set aside and recover fraudulent conveyances.

On September 14, 2020, Aminpour filed a Cross-Complaint against Golbari, Petite Note Group, LLC, and LA Properties Investment, Inc. (“LA Properties”), asserting causes of action for (1) breaches of fiduciary duties, (2) demand and claim for distribution, (3) conversion, (4) constructive trust, (5) requests and demands for inspection and documents, (6) common count for money loaned, (7) to void and recover voidable transfers, and (8) to void and recover voidable transfers.

On January 30, 2023, the Court issued a [Tentative and Proposed] Statement of Decision by the Court After Trial on the Cross-Complaint. The Court’s January 30, 2023 minute order provides, “[t]he Court hereby issues its tentative Statement of Decision as follows: 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.”

In addition, on January 17, 2023, the Court issued a minute order providing, inter alia, “[t]he Court will submit a revised (tentative and proposed) Statement of Decision by January 31, 2023. Counsel is to file an opening brief Re: Interest Calculations by March 2, 2023. Any objections to the (Tentative and proposed) Statement of Decision by March 2, 2023.”

On March 2, 2023, Aminpour filed an Opening Brief Regarding Calculation of Interest, and Objections to Tentative and Proposed Statement of Decision on the Cross-Complaint. On March 2, 2023, Golbari and LA Properties (jointly, “Cross-Defendants”) filed Objections to the Court’s Tentative Statement of Decision and Golbari submitted a Brief on the Issue of Prejudgment Interest.

Discussion

            In their brief, Cross-Defendants assert that the Court’s Tentative and Proposed Statement of Decision misperceives and misapplies Exhibit 50.

            As an initial matter, Aminpour asserts in his reply that Cross-Defendants are rearguing the case which is not the purpose of objections to a statement of decision. Aminpour cites to Code of Civil Procedure section 634, which provides that “[w]hen a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.” The Court does not find that this statute stands for the proposition that Cross-Defendants may not make substantive arguments pertaining to the Court’s Tentative and Proposed Statement of Decision. 

Cross-Defendants argue that Exhibit 50 should not have been admitted because both sides agreed that the Court “did not follow its usual practice of pre-screening and pre-admitting exhibits at the Final Status Conference.” (Cross-Defendants’ Opening Brief at p. 4:18-20,.) Cross-Defendants further argue that Exhibit 50  “was admitted into evidence with absolutely no evidentiary foundation having been established, through a witness who testified he had never seen it before it was shown to him in trial. (See Trial Transcript from July 28, 2022, at 87:22-23 [‘That’s the first time I saw it about 20 minutes or one hour ago ... .’].)” (Cross-Defendants’ Opening Brief at p. 5:8-11, emphasis omitted.)

Aminpour counters that Exhibit 50 is Golbari’s own exhibit. (See 7-28 CT. 6:1-3, “The Court: Are you Exhibits 50 through 70, approximately? Mr. Vivoli: Yes, Your Honor.”) In addition, Aminpour notes that the Court admitted Exhibit 50 into evidence without objection from Golbari. (7-28 CT. 86:22-27.)

At the trial, this same issue was raised by Cross-Defendants and the Court dealt with it at that time. In the context of a discussion about sealing documents, the Court announced that “all the exhibits have already been dealt with, and so whatever exhibits have been – are going to be proffered are going to come in.  That’s the way I always do my trials.  I explain that to everybody that it’s a prepackaged trial basically… I always do it at the Final Status Conference.  I don’t deem the case ready to be tried until we’ve gone through all the exhibits and determined whether they’re coming in or not.  So we can just go through the trial and we don’t have any other problems.  Rarely, there might be a need for a 402 hearing. I think in my 14 years being on the bench I’ve had one 402 hearing, so they’re not very common.” (7-28 CT. 7:26-8:26)

The Court then asked the parties whether they wanted the Court to see if there was anything in either the Court’s notes or a minute order. Although counsel equivocated as to whether they wanted the Court to review notes and the minute orders, the Court did review the notes and the last minute order, but did not find anything. Consequently, the Court then inquired as to the exhibits that were going to be in contention. (7-28 CT. 8:27-14.) Counsel for Aminpour said he could point to the exhibits and they would be exhibits that Golbari would proffer and his client might be seeing them for the first time on the stand. (7-28 CT. 9:15-25) Counsel for Golbari remained silent.

The Court then asked twice “What exhibits does anybody have any objections to?” (7-28 CT. 10:6-7, 16-18.) Counsel for Aminpour then said “50 and 51.” The Court then said “Who has the objection?” Counsel for Golbari said “I do not.” Counsel for Aminpour said “I do not.”  The Court then said “Okay. Sounds like they’re coming in. Okay? So I think we can get started.” (7-28 CT. 10:19-24.) It is clear that Exhibit 50 was properly admitted without objection. Golbari’s Objections to the Tentative and Proposed Statement of Decision on the Cross-Complaint are overruled.

            Cross-Defendants also assert that Exhibit 50 is not a “writing, signed by the party to be charged thereby” for purposes of Code of Civil Procedure section 360, which provides as follows:

“No 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 principle 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, but no such payment of itself shall revive a cause of action once barred.” (Code Civ. Proc., § 360.) 

            Cross Defendants assert that Exhibit 50 is not signed by Golbari, and that “[t]he most that can be said from the exhibit is that he hand-wrote on the face of a document printed by his office three calculations from the numbers above and what they represented.” (Cross-Defendants’ Opening Brief at p. 6:6-8.)

            Cross-Defendants cite to Clunin v. First Federal Trust Co. (1922) 189 Cal. 248, 249, which was an “action…upon a promissory note for $3,000, executed by Jeremiah Lynch to the plaintiff, on April 20, 1909, payable on demand.” The Clunin Court noted that “Section 360 of the Code of Civil Procedure provides that ‘No 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.’ On behalf of the plaintiff it is claimed that the case is taken out of the operation of the statute of limitations by certain writings executed by Jeremiah Lynch and proven at the trial. These writings consist of checks signed by Jeremiah Lynch, payable to the order of plaintiff, together with the memoranda made by Lynch on the stubs to which said checks were attached at the time they were made, showing the amount of the check and the purposes for which it was executed.” (Clunin v. First Federal Trust Co., supra, at pp. 249-250.) The Clunin Court found that “[s]o far as the stubs are concerned, it is well established in this state that they do not constitute an acknowledgment or a promise sufficient to take the case out of the statute of limitations, since they were never communicated to the creditor, Mrs. Clunin.” (Id. at pp. 250-251.)  

            Cross-Defendants indicate that Aminpour testified in response to a question regarding Exhibit 50, “[t]hat’s the first time I saw it about 20 minutes or one hour ago…” (7-28 CT. 87:22-23.) Cross Defendants argue that “[a]s such, and even assuming Mr. Golbari signed Exhibit ‘50’ (which he didn’t), it still does not satisfy Section 360 because it was admittedly never sent to  Mr. Aminpour, and was first seen at trial in 2022...” (Cross-Defendants’ Opening Brief at p. 7:1-5.)

            Aminpour counters that in Searles v. Gonzalez (1923) 191 Cal. 426, 430, the California Supreme Court noted 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.” (Emphasis added.) Aminpour asserts that Golbari (the “writer”) treated the indebtedness as subsisting and “payable” on his company ledger.

            In addition, Cross-Defendants note that in Clunin, the Court noted that “[in] McCormick v. Brown, 36 Cal. 185 [95 Am. Dec. 170], where the court was considering the effect of a letter as an acknowledgment of a debt, it was said: ‘The acknowledgment referred to in the statute is not such as may be deduced by inference from a promise or an offer to pay a part of the debt, or to pay the whole debt in a particular manner, or at a specified time, or upon specified conditions. The acknowledgment, say the cases, must be a direct, distinct, unqualified, and unconditional admission of the debt which the party is liable and willing to pay.’” (Clunin v. First Federal Trust Co., supra, 189 Cal. at pp. 251-252.) Cross-Defendants note that with respect to the $45,000 number, Golbari testified, “I think it’s not owed. That’s between him and Verdi.” (8-3 CT. 60:12-13.) Cross-Defendants assert that Exhibit 50 thus cannot be construed as a “direct, distinct, unqualified and unconditional admission of the debt which the party is liable and willing to pay.” (Cross-Defendants’ Opening Brief at p. 7:21-22.)

            However, the Court is still persuaded that Exhibit 50 satisfies the requirements of Code of Civil Procedure section 360. As noted in the Court’s Tentative and Proposed Statement of Decision, Exhibit 50 is a ledger showing that the “Total Loan Payable” as of December 22, 2021 was “$45,000.00,” and Golbari himself wrote on the ledger that “Elat paid $160,000,” “Mike paid $95,000,” and “Mike paid Natasha $25,000.” Aminpour notes that Golbari admitted at trial that this is his handwriting. (8-3 CT. 90:28-91:13.) The Court finds that the writings on Exhibit 50 by Golbari are sufficient acknowledgement that a promise regarding a continuing contract has been made, so as to comply with Code of Civil Procedure section 360.

            As to the issue of interest calculations, Aminpour asserts that Civil Code section 3287, subdivision (a) is applicable here. Section 3287(a) provides that “[a] person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.” (Civ. Code., § 3287, subd. (a).)  

            Golbari asserts that Civil Code section 3287, subdivision (a) is not applicable here. He cites to Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 44, where the Court of Appeal noted that “[d]amages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage. Thus, [t]he test for recovery of prejudgment interest under [Civil Code] section 3287, subdivision (a) is whether defendant actually know[s] the amount owed or from reasonably available information could the defendant have computed that amount. The statute … does not authorize prejudgment interest where the amount of damage, as opposed to the determination of liability, depends upon a judicial determination based upon conflicting evidence and it is not ascertainable from truthful data supplied by the claimant to his debtor. Thus, where the amount of damages cannot be resolved except by verdict or judgment, prejudgment interest is not appropriate.” (Internal quotations reference to [Citation.] and [Citations.], and emphasis omitted; see also Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2020) 50 Cal.App.5th 1009, 1013, [“Civil Code section 3287, subdivision (a) does not permit an award of prejudgment interest where the amount of damage, as opposed to the determination of liability, depends on a judicial determination based on conflicting evidence.”])

            Golbari asserts that here, the amount of damages (as opposed to the determination of liability) depends on a judicial determination based on conflicting evidence, such that the claim does not involve a “liquidated” sum and Civil Code section 3287, subdivision (a) does not apply.

Golbari asserts that “[t]his was not a case where Golbari acknowledged the amount owed to Aminpour under the loan in question and disputed only liability. To the contrary, Golbari testified that he saw to it that Mr. Verdi paid $95,000 of his half through payments to              Mr. Aminpour through Elat Property while Mr. Verdi was a partner in it and the rest - whatever the sum owed – was ‘between him and Verdi.’” (Cross-Defendants’ Opening Brief at p. 9:21-25, emphasis omitted.) 

            The Court finds that Golbari has the better argument, as the “amount of damage” here “depend[ed] on a judicial determination based on conflicting evidence.” (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc., supra, 50 Cal.App.5th at p. 1013.) As noted in the Court’s Tentative and Proposed Statement of Decision:

“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 is $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…When asked if he disputes the balance due, Golbari could only state that the 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.)…The Court finds that $45,000 remains due on the Unpaid Loan Claim.” (Tentative and Proposed Statement of Decision at pp. 8:15-9:8.) 

Golbari asserts that Civil Code section 3287, subdivision (b) thus applies. Pursuant to Section 3287(b), “[e]very person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” (Civ. Code, § 3287, subd. (b).) In his objections, Aminpour asserts that “Section 3287, subd. b is inapplicable because the damages are liquidated. Aminpour objects to a calculation that assumes that the damages are unliquidated.” (Aminpour’s Objections at p. 3:10-11.) As set forth above, the Court finds that Golbari has the better argument that Civil Code section 3287, subdivision (a) is not applicable here. Aminpour’s Objections to the Tentative and Proposed Statement of Decision on the Cross-Complaint are overruled.   

Aminpour’s Cross-Complaint was filed on September 14, 2020. Thus, the Court finds that Aminpour may recover interest from the date of September 14, 2020. (Civ. Code, § 3287, subd. (b).)

Aminpour asserts that the applicable interest rate is 10% simple interest percent per annum. Aminpour cites to Civil Code section 3289, which provides that “(a) Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. (b) If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach…”

            Golbari asserts that the interest rate for an award of prejudgment interest under Civil Code section 3287, subdivision (b) is 7%, not 10%. In support of this assertion, Golbari cites to Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 121, where the California Supreme Court noted that “[t]he state Constitution establishes a default interest rate of 7 percent ‘upon the loan or forbearance of any money, goods, or things in action, or on accounts after demand.’ (Cal. Const., art. XV, § 1.)” Aminpour does not respond to this point in his reply. Accordingly, the Court finds that the interest rate shall not exceed 7% per annum.

            Conclusion

Based on the foregoing, the Court finds that Aminpour may recover interest on the $45,000.00 amount from no earlier than September 14, 2020. The interest rate shall not exceed 7% per annum.  The Court will sign and file the Statement of Decision After Trial on the Cross-Complaint concurrently with this Order.

Aminpour is ordered to file and serve a proposed Judgment in accordance with the previous ruling on the demurrer to the second amended complaint, the Statement of Decision by the Court After Trial on the Cross-Complaint and this Order, along with a Declaration setting forth the calculation of the interest included in the proposed Judgment.  The proposed Judgment must be filed and served within ten days of the date of the Statement of Decision by the Court After Trial on the Cross-Complaint.

Aminpour is ordered to provide notice of this Order.

DATED:  March 23, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court