Woodforest National Bank vs. Nissani

making costs an element of the statutory recovery. Code of Civil Procedure § 1033.5(c)(5)(A) further provides that where a statute refers to the award of costs and attorney’s fees, attorney’s fees are an item and component of the costs to be awarded.

Rules of Court, Rule 3.1700(a)(1) provides that a prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.

The cost memorandum procedure under Rule 3.1700 applies only to cost items to which a party is entitled as a matter of right, because the rule requires the clerk to immediately enter the costs on the judgment if the opposing party does not move to strike or tax costs. (Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 558.) By contrast, costs that require a court determination – such as the attorney’s fees sought above – may not be immediately entered by the clerk and therefore do not need to be included in a memo. of costs. (Ibid.)

Because Penal Code § 496(c) awards costs of suit as a matter of right to an injured party who prevails, those costs fall squarely within the scope of Rule 3.1700. A party seeking to recover ordinary costs of suit under § 496(c) must therefore file a memorandum of costs in compliance with Rule 3.1700.

Here, no Memorandum of Costs was filed. Thus, Plaintiffs are not entitled to recover the requested costs and the motion is denied as to costs.

Conclusion

The motion is granted as to attorney’s fees of $167,492.08; and prejudgment interest of $29,868.30.

The request for costs is denied.

6. 2023-1334704 Plaintiff Woodforest National Bank’s motion for summary judgment Woodforest against each of defendants Hooman Nissani (“Nissani”), Sean Leoni National Bank (“Leoni”), Jalil Rashti (“Rashti”), Babak Sarraf (“Sarraf”), and vs. Nissani H.S.K. Investments, LLC (“HSK Investments”) is granted as to Defendants Nissani and HSK Investments; it is denied as to Defendants Leoni, Rashti, and Sarraf. [ROA #120.]

The court did not consider Plaintiff’s new evidence submitted on reply. Code Civ. Proc. §437c(b)(4).

Facts Plaintiff has filed a single cause of action complaint for breach of guaranty against many defendants. [ROA #2.]

In 2017, Plaintiff loaned PVR Group, Inc. $5,850,000. [Aderhold Decl. (ROA #121), ¶¶ 3-4 and Exs. 1-5.] This involved a written agreement with numerous amendments. [Id.]

As part of the original transaction, the following guaranteed repayment of the loan: Nissani, Leoni, Rashti, Sarraf, NBA Automotive, Inc., RHC Automotive, Inc., R&H Automotive Group, Inc., RHH Automotive, Inc., RHN, Inc. and HSK Investments. [Aderhold Decl., ¶¶ 5-14 and Exs. 6-15.]

On or about 6/19/20, Plaintiff, the borrower, and the identified guarantors executed a Forbearance Agreement (the “2020 Forbearance Agreement”). [Aderhold Decl., ¶16 and Ex. 16.] Then, on or about 9/121, Plaintiff, the borrower and the identified guarantors executed an Extension and Forbearance Agreement (the “2021 Forbearance Agreement”). [Id. ¶17 and Ex. 17.]

When the borrower started missing payments in April 2022, Plaintiff sent demand letters to the borrower and the guarantors – including an acceleration letter. [Aderhold Decl., ¶¶ 19-22 and Exs. 18-20.]

The amount due as of 7/9/25 was:

Principal: $2,047,500.00 Interest: $804,676.61 Late Fees: $149,311 Legal Fees and Costs: $203,413.57 Total: $3,204,901.37

Additional interest continues to accrue after July 9 at a rate of $753.59 per day. Legal fees and costs also continued to accrue. [Aderhold Decl., ¶¶ 23-24 and Ex. 21.]

Each of Defendants Leoni, Rashti, and Sarraf (the “Responding Defendants”) declares that he did not sign the guarantee attributed to him or either forbearance agreement. [Leoni Decl. (ROA #297), ¶¶ 2-13 and Exs. F, G, H, I (see COE (ROA #305) for exhibits); Rashti Decl. (ROA #295), ¶¶ 2-17 and Exs. H, I, J, K, L, M, N and O; Sarraf Decl. (ROA #291), ¶¶ 2-10 and Ex. P.] They further present expert testimony that the signatures on the documents are not

theirs. [Stewart Decl. (ROA #299), ¶¶ 2-14 and Ex. B.] Finally, counsel for these Responding Defendants declares that during discovery Plaintiff was unable to provide information or documents showing who Plaintiff dealt with when obtaining the information and signatures for the loan. [Campaign Decl. (ROA #303), ¶¶ and Exs. 3-5 and Exs. A-B.] According to Plaintiff’s discovery responses, all such documents had previously been destroyed. [Id., Ex. A.]

Defendants Nissani and HSK Investments have not responded to Plaintiff’s motion for summary judgment.

Legal Standard

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388.

This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. LLP Mortg. v. Bizar (2005) 126 Cal. App. 4th 773, 776. At that point, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” Code Civ. Proc. § 437c(p)(1).

The moving party’s affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal.App.4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.

Discussion

Under California law, “[a] surety or guarantor is one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor.” Civ. Code § 2787. “A lender is entitled to judgment on a breach of guaranty claim based upon undisputed evidence that [1] there is a valid guaranty, [2] the borrower has defaulted, and [3] the guarantor failed to perform under the guaranty.” Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486.

With the Aderhold Declaration, Plaintiff has presented a prima facie showing that Defendants are in breach of their guarantees.

It has presented evidence of the guarantees. [Aderhold Decl., ¶¶ 5- 14, 16-17 and Exs. 6-17.]

It has presented evidence of the borrowers’ default. [Aderhold Decl., ¶¶19, 20, 23, 24 and Ex. 21.] And Plaintiff has, implicitly, presented evidence of Defendant guarantors’ failure to perform under their guarantees. [Id., ¶¶23, 24 and Ex. 21.]

In the absence of any response from Nissani and HSK Investments, these Defendants have not shown a triable issue of fact. Accordingly, Plaintiff’s motion for summary judgment is granted as to Defendants Nissani and HSK Investments.

Responding Defendants, however, have shown a triable issue of fact with their evidence that they did not sign the guarantees and forbearance agreements at issue. [Leoni Decl. (ROA #297), ¶¶ 2-13 and Exs. F, G, H, I (see COE (ROA #305) for exhibits); Rashti Decl. (ROA #295), ¶¶ 2-17 and Exs. H, I, J, K, L, M, N and O; Sarraf Decl. (ROA #291), ¶¶ 2-10 and Ex. P; Stewart Decl. (ROA #299), ¶¶ 2-14 and Ex. B; Campaign Decl. (ROA #303), ¶¶ and Exs. 3-5 and Exs. A- B.]

On reply, Plaintiff argues that Responding are estopped by their silence in the face of demand letters from denying their signatures on (or obligations under) the guarantees, citing Civil Code section 1589, Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, Newhall v. Joseph Levy Bag Co. (1912) 19 Cal.App. 9, and Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884.

First, Plaintiff presents no evidence that Responding Defendants received the demand letters. Second, these notices were after the loan was made and after the borrower’ breach. Plaintiff does not explain how it relied on Responding Defendants’ silence.

The elements of the doctrine of equitable estoppel are that “ ‘(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.’ “Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 271- 272, disapproved of on another ground by Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744; accord, Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)

Further, Plaintiff does not present evidence (or describe how) Responding Defendants received any benefit from Plaintiff’s loan to the borrower – or that they were aware of, and did not disavow, an agent providing signatures to Plaintiff purportedly on behalf of the Responding Defendants. See Civ. Code §1589, Newhall v. Joseph Levy Bag Co. (1912) 19 Cal.App. 9, 27; Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1386; Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 890–891.

On the current record, the court cannot find as a matter of law that Responding Defendants are estopped from denying they signed the guarantees and forbearance agreements.

Accordingly, the motion for summary judgment is denied as to as to each of the Responding Defendants Leoni, Rashti, and Sarraf.

8. 2023-1363467 Before the Court is Plaintiffs Azadeh Manoussi and Kaveh Manoussi vs. Vakilzadeh’s Motion to allow them to withdraw from arbitration Sterling pursuant to CCP § 1281.97(b)(l) and for monetary sanctions. Infosystems, Inc. At the outset, The Court admonishes Plaintiffs’ counsel for citing an unpublished Court of Appeal opinion in violation of California Rules of Court, rule 8.1115(a). (Reply, ROA 145, p. 3, lines 24–26.)

Plaintiffs Azadeh Manoussi and Kaveh Vakilzadeh move under Code of Civil Procedure section 1281.97 to withdraw their claims from arbitration, lift the stay, and recover $5,910 in monetary sanctions from defendant A Place for Rover, Inc. (Rover).

The motion is granted. The Court finds Rover’s failure to pay the JAMS initiation fee was grossly negligent, constituted a material breach of the arbitration agreement, and permits Plaintiffs to withdraw from arbitration and proceed in this Court. The stay is lifted. Monetary sanctions of $5,910 are imposed against Rover under section 1281.99, payable to Plaintiffs through their counsel within 30 days after service of notice of this ruling.

Request for Judicial Notice Rover’s request for judicial notice of the Court’s September 30, 2024, minute order granting the motion to compel arbitration is granted. (Evid. Code, § 452, subd. (d).) The Court notices the existence and contents of the order, but not the truth of any disputed factual assertion contained in the court record.

Background