Tayyar v. E&N Financial Services & Development, Inc. CA2/5 ( 2021 )

Filed 2/18/21 Tayyar v. E&N Financial Services & Development, Inc. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MASSOUD TAYYAR et al., B301732
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No. EC066669)
v.
E&N FINANCIAL
SERVICES &
DEVELOPMENT, INC.,
Defendant and
Appellant.
APPEAL from an order and judgment of the Superior
Court of Los Angeles County, Benny Osorio and John J.
Kralik, Judges. Dismissed, in part, and affirmed, in part.
Law Offices of Stephen M. Feldman and Stephen M.
Feldman, for Defendant and Appellant.
Law Offices of Frank H. Whitehead III and Frank H.
Whitehead III, for Plaintiffs and Respondents.
__________________________
INTRODUCTION
This case involves a dispute arising from a $250,000
revolving line of credit secured by real property. Mark
Goodfriend is a lawyer who connected plaintiff and
respondent Massoud Tayyar, the borrower, with Ahron
Zilberstein—principal of the lender, defendant and appellant
E&N Financial Services and Development, Inc. (En
Financial). Goodfriend drafted a contract (the Loan
Agreement) under which En Financial made available to
Tayyar a $250,000 revolving line of credit (the Loan).
Zilberstein, for En Financial, and Tayyar signed the Loan
Agreement in November 2015. Although the parties
anticipated the Loan commencing in December 2015 and
continuing for one year, the Loan did not fund until
February 2016. When escrow closed on February 22, 2016,
En Financial received a loan origination fee of $26,500.
As part of a new escrow opened in the spring of 2017 to
carry out a larger refinance transaction, Zilberstein made a
payoff demand for En Financial that included not just the
Loan principal and remaining interest, but also a second
$26,500 fee (the Finance Fee). Before escrow closed, Tayyar
sent an e-mail to Zilberstein, disputing the Finance Fee and
stating Tayyar would pay such amount, but under protest
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and duress reserving all of his rights. The escrow closed
May 31, 2017, with Zilberstein receiving the full payoff
amount, including the Finance Fee. Tayyar later demanded
that En Financial refund the Finance Fee and then filed the
current lawsuit.
At a bench trial, Tayyar and plaintiff and respondent
838-840 N. El Molino LLC (El Molino), an entity Tayyar set
up in connection with the larger refinance transaction,
prevailed on their cause of action for restitution and
recovered 75 percent of the Finance Fee, plus interest. In
this appeal, En Financial asks this court to reverse the
restitution award in favor of Tayyar and El Molino
(collectively, Respondents). En Financial contends the
award is not supported by evidence or law. Alternatively, En
Financial contends that the award should be reduced, and
that it was error to award judgment in favor of Tayyar as an
individual.
Respondents contend that the restitution award is
supported by substantial evidence. In addition, because En
Financial has not shown error in either the award
calculation or entry of judgment in favor of both Tayyar and
El Molino, no amendment of the judgment is warranted.
Finding substantial evidence to support the restitution
award in favor of Respondents, we affirm.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. Loan Agreement between Tayyar and En Financial
Tayyar and his wife owned real property located on El
Molino Avenue in Pasadena (the “El Molino property”).
Tayyar filed for individual Chapter 11 bankruptcy in
November 2013. Goodfriend represented Tayyar in his
bankruptcy, and Tayyar needed access to funding as part of
his reorganization plan. Goodfriend, who was Zilberstein’s
family friend and had been his attorney for 17 years, asked
Zilberstein to provide funding for the Loan. Goodfriend
represented both En Financial and Tayyar in the Loan
transaction, and communications between the two went
through Goodfriend; there were no direct conversations
between Zilberstein and Tayyar.
Goodfriend drafted the Loan Agreement between
Tayyar and En Financial, which the parties signed on
November 18, 2015. Under the terms of the Loan
Agreement, all sums advanced would bear a 12 percent
annual interest rate, and En Financial would receive an
origination fee of $26,500. The term provision stated:
“Subject to approval of the Bankruptcy Court if required,
[and] confirmation of Borrower’s pending Fifth Amended
Plan of Reorganization, . . . the term of this Agreement shall
commence on December 31, 2015 and shall terminate on
December 31, 2016 (the ‘Maturity Date’).” The Loan funding
4
was secured by a deed of trust in third position on the El
Molino property.
Paragraph 12 of the Loan Agreement stated: “At the
Maturity Date, if Borrower is not in default, if Borrower
requests a renewal or extension of the Term for an
additional year, provided Lender is reasonably satisfied that
the value of the [El Molino] Property is at least
$4,500,000.00, Lender will enter into a new agreement with
Borrower, upon similar terms (including but not limited to
Borrower paying Lender additional origination fees and
charges in the sum of an additional $26,500.00 at that
time.)”
On February 5, 2016, the bankruptcy court approved
Tayyar’s Fifth Amended Chapter 11 Plan of Reorganization,
which included the Loan. The Loan was funded through an
escrow with Ticor Title on February 22, 2016, and En
Financial was paid the loan origination fee of $26,500.
Beginning in March 2016 and ending April 2017, Tayyar
made 14 monthly loan payments of $2,440. Most of Tayyar’s
monthly payments were made on or around the 22nd of
every month.
Until May 2017, Tayyar never received from En
Financial any demand or request to repay the Loan principal
or to pay the Finance Fee. Goodfriend testified that there
was no written amendment of the Loan Agreement. When
Zilberstein wanted to be paid the Loan principal in
December 2016, Goodfriend told Zilberstein that Tayyar was
working on a refinance that would pay En Financial. When
5
Zilberstein complained in February 2017 that he wanted the
Loan principal repaid, Goodfriend might have said
something to Zilberstein like “you’re getting $2,440 per
month in interest, one percent interest. . . . Can you hold out
a little longer?” Goodfriend also testified that he intended
for the Loan to be for a period of one year from the date of
funding, with the parties having the option to agree to a
second year. Zilberstein testified that he did not agree to
any extension.
B. Refinance and dispute over Finance Fee
On April 24, 2017, Tayyar formed El Molino as a
limited liability company to hold title to the El Molino
property. El Molino was the borrower in a refinance
transaction that would consolidate several loans secured by
the El Molino property, including the En Financial’s Loan to
Tayyar. Tayyar testified that he and his wife had applied for
the new loan, and the lender required them to place the
property in El Molino’s name as a condition to obtaining the
loan. As part of the refinance, a beneficiary demand letter
was prepared for Zilberstein to review and sign, specifying
En Financial’s payoff details. The original demand letter
identified the Loan principal and daily interest amounts, but
did not include any reference to the Finance Fee. Zilberstein
initially refused to sign the demand letter, and contacted
Goodfriend to ask why the Finance Fee was not included in
En Financial’s demand. Zilberstein testified at trial that the
6
parties to the refinance were waiting for him to sign the
reconveyance, and he did not want to sign it unless he had a
complete release from Tayyar. A week later, a notary
brought Zilberstein a revised demand letter that included
the Finance Fee. When Zilberstein asked Goodfriend for a
release of all claims, Goodfriend told him that as long as
Tayyar signed the demand letter, it would be okay. On April
30, 2017, Zilberstein signed both the demand letter and a
document reconveying En Financial’s deed of trust.
Before escrow closed, Tayyar protested the Finance Fee
payment demand. On May 24, 2017, Tayyar sent an e-mail
to Zilberstein attaching a letter. The text of the e-mail and
the attached letter stated “This will confirm that the sum of
$26,500, which you demanded and which is being paid to you
through escrow out of proceeds from the loan paying off your
line of credit, is disputed and is being paid under protest and
duress, and I hereby reserve all of my rights.” Zilberstein
responded by e-mail, stating “No problem I will fill [sic] a
notice of default ASAP.” Tayyar responded “In your fit of
your anger you stated that you will file a notice of default,
however, I am not in default. In fact you have already
represented the amount you claim I owe when you sent
escrow your demand. Escrow will close soon and you will be
paid. Thus there is no default and no basis for you to file a
notice of default now. I simply wrote you saying I dispute
your claim of an additional $26,500 being owed but that I
will pay that to you through escrow even though I do not
think I owe that additional sum to you.”
7
On May 27, 2017, Tayyar signed the beneficiary
demand below the following printed statement: “Approved
to pay at close of escrow.” On the same day, as part of the
refinance transaction, Tayyar and his wife executed a grant
deed transferring the El Molino property to El Molino, and
El Molino (acting through its manager, Tayyar) executed a
deed of trust securing a loan of close to $3 million. The
surplus of the loan proceeds was deposited into a bank
account owned by Tayyar and his wife.
On May 31, 2017, $273,915.86 was disbursed from
escrow to En Financial. That amount came from the
proceeds of the new refinancing loan and included the Loan
principal, daily interest, and the Finance Fee. Tayyar
testified that if the Finance Fee had not been demanded and
disbursed to En Financial out of escrow, the funds would
have been deposited into a bank account held by Tayyar and
his wife.
Tayyar sent a letter to Zilberstein on June 5, 2017,
raising again his objection to En Financial’s receipt of the
Finance Fee. Tayyar pointed out that he had never
requested a renewal of the Loan as required under
paragraph 12 (Option to Renew). Tayyar demanded a refund
by June 16, 2017, or he would pursue legal remedies.
C. Tayyar sues En Financial to recover fee amount
Tayyar filed a complaint against En Financial on June
20, 2017. The procedural history of the case includes
8
numerous motions and an initial bench trial before Judge
Benny Osorio. That trial ended in a judgment for En
Financial. The court later granted Tayyar’s motion for a
new trial, and a second bench trial took place before Judge
John Kralik over two days in April 2019. The operative
pleading for the second trial was a third amended complaint
with two causes of action: breach of contract and restitution.
D. Trial Court’s Opinion and Judgment
On May 2, 2019, Judge Kralik issued a detailed minute
order titled “Ruling on Submitted Matter,” finding in favor of
En Financial on the breach of contract cause of action and in
favor of Respondents on the restitution cause of action. In
the ruling, Judge Kralik reviewed the Loan Agreement and
the performance of each party. After quoting the portion of
the Loan Agreement concerning renewal, the court stated
that based on the testimony presented, “it became clear to
the Court that the [Loan] was never renewed. Mr. Tayyar
did not request a renewal. [En Financial] did not really
want a renewal as Mr. Zilberstein was uncomfortable with
this line of credit. He testified that he provided it only to
accommodate his old friend, Mr. Goodfriend. A renewed
agreement would have required him to commit to lending for
another full year, which he probably would not have done.”
Despite the lack of a renewal, the parties carried on when
the Loan expired, which was no later than February 2017.
9
Noting the “obvious failures of communications,” the
court observed that the delay in refinancing was the cause of
the current conflict. The following excerpt from the ruling
contains the conclusions that are being challenged on appeal,
and so we quote the matter in full:
“From the point of view of [En Financial,] the revolving
credit line was open for five months after the initially
contemplated maturity date, and fifteen months after the
funds were advanced. Thus, [En Financial] felt justified in
demanding the payment of a second $26,500 fee.
“From these facts, the Court has concluded that [En
Financial’s] retention of the $26,500 did not constitute a
breach of the [Loan.] As that agreement was never renewed,
there was no provision in it for charging or refunding an
additional finance fee in May 2017. Thus, the Court finds
for [En Financial] on the first cause of action.
“[En Financial’s] retention of the funds, however, was
not justified by a default under the [Loan,] or by a renewal of
that agreement. Tayyar did not default under the [Loan,]
and it was never renewed. Thus, [En Financial’s] demand
for the $26,500 was based, at best, on an implied contract for
equitable compensation as the result of its forbearance of
three or five months. As an equitable demand, it was not
equitable enough.”
The court ordered En Financial to return 75 percent of
the Finance Fee, plus 5 percent interest from May 31, 2017.
Explaining its reasoning, the court stated “[En Financial]
did not earn a full renewal fee because it never committed to
10
lend the $250,000 for an additional year. Its retention of the
full [Finance Fee] is, therefor inequitable under the
circumstances. The Court does find that it is equitable for
[En Financial] to retain Three/Twelfths (or 25%) of the fee in
view of the delay in refinancing.”
The court entered judgment in favor of Respondents in
the amount of $19,875—representing three-quarters of the
Finance Fee—with interest at 5 percent from May 31, 2017
(the date En Financial’s loan was paid out of the refinancing
escrow), the amount and interest rate representing the
court’s equitable findings. Neither party requested a
statement of decision or filed a notice of entry of judgment.
On October 22, 2019, En Financial filed a notice of appeal.
DISCUSSION
A. Issues on appeal1
En Financial seeks to reverse the trial court’s
judgment in favor of Respondents on their cause of action for
1 In its opening brief, En Financial sought review of the
ruling of Judge Osorio granting Tayyar’s motion for a new
trial after En Financial had prevailed in the first trial. En
Financial concedes in its reply brief, however, that it failed
to timely appeal Judge Osorio’s ruling. (Code Civ. Proc.,
§ 904.1, subd. (a)(4) [order granting new trial is directly
appealable].) Therefore, we do not address the argument
and instead dismiss as untimely that portion of En
Financial’s appeal. (Cal. Rules of Court, rule 8.104(b).)
11
restitution, contending that the restitution award was
“contrary to the law and the facts.” Beyond this broad
assertion, En Financial argues that the evidence at trial
either did not support the specific findings set forth in Judge
Kralik’s ruling, or that the evidence required the trial judge
to reach different conclusions. Specifically, En Financial
asserts that: no competent evidence supports that the term
of the Loan Agreement extended one year from funding;
since Tayyar did not repay by the maturity date in the Loan
Agreement, but continued to pay monthly interest, he must
have been given an extension, requiring payment of the full
Finance Fee; Tayyar’s agreement to the payment of that fee
through escrow demonstrates that he is barred from seeking
it, based estoppel or unclean hands, or as a matter of equity;
and in any event the amount awarded in restitution was too
high. En Financial also argues that the award to Tayyar as
an individual (in addition to El Molino) was error because
Tayyar lacks standing.
En Financial’s arguments essentially ask this court to
draw different inferences from the existing evidence,
something that it is not our role to do. After a discussion of
the standard of review on appeal and the law governing
restitution claims, we summarize the substantial evidence
supporting the court’s restitution award, and show that En
Financial’s specific contentions fail.
12
B. Standard of review
In order to prevail on appeal, En Financial must show
that there is no substantial evidence to support the express
or implied facts supporting the court’s restitution award. As
a reviewing court, we must draw all reasonable inferences
and resolve all evidentiary conflicts in favor of the judgment.
(City of Glendale v. Marcus Cable Associates, LLC (2014) 231
Cal.App.4th 1359, 1385; Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631.)
Absent a statement of decision, a ruling “is presumed
to be correct . . . and all intendments and presumptions are
indulged in favor of its correctness.” (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133.) “A written
statement of reasons prepared by a trial court does not
equate to a statement of decision. [Citations.] Written
reasons ‘may be valuable in illustrating the trial judge’s
theory but they may never be used to impeach the order or
judgment.’ [Citation.]” (Rymel v. Save Mart Supermarkets,
Inc. (2018) 30 Cal.App.5th 853, 862 (Rymel).)
In the absence of a statement of decision, the doctrine
of implied findings applies. (LSREF2 Clover Property 4, LLC
v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067,
1076.) “Under the doctrine of implied findings, the
reviewing court must infer . . . that the trial court impliedly
made every factual finding necessary to support its decision.”
(Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal.App.4th 42, 48 (Fladeboe).) We affirm a judgment if
13
correct on any ground. (Mike Davidov Co. v. Issod (2000) 78
Cal.App.4th 597, 610.)
C. Tayyar’s restitution claim
Restitution law
Whether a claim is labeled restitution or unjust
enrichment, California law recognizes that an individual
who is unjustly enriched at the expense of another may be
held liable for restitution. (Ghirardo v. Antonioli (1996) 14
Cal.4th 39, 51; Durell v. Sharp Healthcare (2010) 183
Cal.App.4th 1350, 1370 (Durell) [“Unjust enrichment is
synonymous with restitution”]; see Rest.3d Restitution and
Unjust Enrichment, § 1.) The elements of the claim are
“‘receipt of a benefit and unjust retention of the benefit at
the expense of another.’ (Lectrodryer v. Seoulbank (2000) 77
Cal.App.4th 723, 726.)” (Professional Tax Appeal v.
Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230,
238.)
“Restitution is not mandated merely because one
person has realized a gain at another’s expense. Rather, the
obligation arises when the enrichment obtained lacks any
adequate legal basis and thus ‘cannot conscientiously be
retained.’ (Rest.3d Restitution and Unjust Enrichment, § 1,
com. b, p. 6.)” (Hartford Casualty Ins. Co. v. J.R. Marketing,
L.L.C. (2015) 61 Cal.4th 988, 998.) “Where the doctrine
applies, the law implies a restitutionary obligation, even if
14
no contract between the parties itself expresses or implies
such a duty. [Citation.] Though this restitutionary
obligation is often described as quasi-contractual, a privity of
relationship between the parties is not necessarily required.”
(Ibid.) “A claim for restitution is permitted even if the party
inconsistently pleads a breach of contract claim that alleges
the existence of an enforceable agreement.” (Rutherford
Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221,
231.)
“‘There are several potential bases for a cause of action
seeking restitution. For example, restitution may be
awarded in lieu of breach of contract damages when the
parties had an express contract, but it was procured by fraud
or is unenforceable or ineffective for some reason.
[Citations.] Alternatively, restitution may be awarded
where the defendant obtained a benefit from the plaintiff by
fraud, duress, conversion, or similar conduct. In such cases,
the plaintiff may choose not to sue in tort, but instead to
seek restitution on a quasi-contract theory . . . . [Citations.]
In such cases, where appropriate, the law will imply a
contract (or rather, a quasi-contract), without regard to the
parties’ intent, in order to avoid unjust enrichment.’
[Citation.]” (Durell, supra, 183 Cal.App.4th at p. 1370.)
According to section 35 of the Restatement Third of
Restitution and Unjust Enrichment, “If one party to a
contract demands from the other a performance that is not
in fact due by the terms of their agreement, under
circumstances making it reasonable to accede to the demand
15
rather than to insist on an immediate test of the disputed
obligation, the party on whom the demand is made may
render such performance under protest or with reservation
of rights, preserving a claim in restitution to recover the
value of the benefit conferred in excess of the recipient’s
contractual entitlement.” The California Supreme Court has
stated a similar rule, holding that when the facts establish
that “a reasonably prudent man” must make a monetary
payment “in order to preserve his property or protect his
business interests” “which he does not owe and which in
equity and good conscience the receiver should not retain,”
the payment may be recovered. (Young v. Hoagland (1931)
212 Cal. 426, 430–432 [restitution affirmed where company’s
outgoing board levied an invalid assessment and plaintiff
shareholder paid under protest to avoid a sale of the
shares].)
Substantial evidence in support of the restitution
award
Based on its factual determination that the parties had
no agreement to renew the Loan, the court found in favor of
Respondents on their restitution claim. The record contains
substantial evidence to support the court’s decision. The
court expressly found that the Loan was never renewed, and
impliedly found no Loan extension triggering an obligation
to pay the full Finance Fee. (Fladeboe, supra, 150
Cal.App.4th at p. 48 [reviewing court infers that the trial
16
court impliedly found all facts necessary for the decision].)
Based on those findings, the court concluded that En
Financial was unjustly enriched when it received the benefit
of the full Finance Fee payment, and Respondents were
entitled to have 75 percent of the payment returned.
It is undisputed that En Financial received the benefit
of the Finance Fee payment. The question on appeal is
whether there is substantial evidence to support the trial
court’s determination that permitting En Financial to retain
that benefit at the expense of Respondents would be unjust
enrichment.
Under the trial court’s reasoning, because the parties
never reached an agreement to renew the Loan, the Finance
Fee payment unjustly enriched En Financial. (Rest.3d
Restitution & Unjust Enrichment, § 35; Young v. Hoagland,
supra, 212 Cal. at pp. 430–432.) This conclusion was
supported by substantial evidence. First, the Loan
Agreement required Tayyar to request a renewal or
extension,2 and the testimony supported an inference that no
such request was ever made. Second, Zilberstein testified he
2 Paragraph 12 of the Loan stated: “At the Maturity
Date, if Borrower is not in default, if Borrower requests a
renewal or extension of the Term for an additional year,
provided Lender is reasonably satisfied that the value of the
[El Molino] Property is at least $4,500,000.00, Lender will
enter into a new agreement with Borrower, upon similar
terms (including but not limited to Borrower paying Lender
additional origination fees and charges in the sum of an
additional $26,500.00 at that time).”
17
would not have agreed to extend the Loan for an additional
year, and did not do so. Third, the evidence showed that
Tayyar continued making monthly payments—which En
Financial accepted—on the Loan for several months after
the designated maturity date in December 2016, and past
February 2017, the one-year marker after the Loan funds
were disbursed. During that time (and until April 2017 in
the context of the refinance) En Financial never
communicated with Tayyar about repayment or an
agreement to renew or extend the Loan, along with a
Finance Fee payment. In fact, before Tayyar’s May 24, 2017
e-mail to Zilberstein stating that he was paying the Finance
Fee under protest, there was no evidence that Zilberstein
and Tayyar had any direct communication about the Finance
Fee. Goodfriend testified that when Zilberstein expressed a
desire to have the principal repaid, Goodfriend told
Zilberstein to wait for the refinance to occur. Goodfriend
had no recollection of any discussions with Tayyar about
default, extension or a new agreement. In addition, there is
evidence that Zilberstein was concerned about potential
liability, as he asked Goodfriend to obtain a release of all
claims from Tayyar. That Zilberstein relied on Goodfriend’s
advice that a release was not necessary does not preclude a
court from finding in favor of Tayyar on his restitution claim
based on the absence of any agreement to renew or extend
the Loan and pay the Finance Fee.
18
En Financial’s specific contentions
As discussed above, there is substantial evidence to
support the trial court’s conclusion that En Financial
received a benefit, and would be unjustly enriched if allowed
to retain it. None of En Financial’s arguments demonstrate
otherwise.
En Financial starts its argument by asking this court
to find that the Loan term ended December 2016, not
February 2017 as the trial court concluded. There was
substantial evidence that the parties understood the Loan
term would run for one year after funding, and that the Loan
funded in February 2016. Therefore, the court’s factual
finding that the Loan term ended in February 2017 is
supported by substantial evidence.
Attempting to sidestep the trial court’s express finding
that there was no agreement to renew the Loan, En
Financial next argues that the parties’ actions constituted an
extension, triggering an obligation to pay the Finance Fee.
In its reply brief, En Financial adjusts its “extension”
argument slightly, pointing to the court’s own factual finding
that “Despite the lack of a renewal, the parties simply
carried on when the term of the [Loan] expired, no later than
late February 2017.” En Financial argues that that Tayyar’s
failure to repay the Loan principal on the maturity date—
instead just making monthly payments—was an extension of
the Loan, entitling En Financial to payment of the Finance
Fee. However, this argument does not overcome the
19
substantial evidence supporting the trial court’s
determination that it would be inequitable to allow En
Financial to retain the full Finance Fee. Statements or
comments made in a written order “may be valuable in
illustrating the trial judge’s theory but they may never be
used to impeach the order or judgment.” (Burbank-
Glendale-Pasadena Airport Authority v. Hensler (1991) 233
Cal.App.3d 577, 591; Rymel, supra, 30 Cal.App.5th at
p. 862.)
En Financial also contends that even if the conditions
of renewal or extension were not met, there was a valid
agreement to pay the Finance Fee, based on Tayyar’s
signature approving payment of the amounts described in
the April 30, 2017 Beneficiary Demand and his signature on
Estimated Settlement Statement. This argument ignores
the relevant standard of review, asking this court to draw
inferences from the evidence and reach a different conclusion
than the trial court reached. While the evidence that Tayyar
signed both the beneficiary demand and the estimated
closing settlement statement might arguably support a
decision to deny Tayyar’s restitution claim, it does not
negate the substantial evidence supporting the opposite
conclusion, that Tayyar was entitled to restitution. En
Financial has not demonstrated on appeal that the trial
court’s inferences were unreasonable. (Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 913 [“when
conflicting inferences may be drawn from undisputed facts,
20
the reviewing court must accept the inference drawn by the
trier of fact so long as it is reasonable”].)
Finally, En Financial contends that the restitution
award was precluded by the equitable doctrines of estoppel3
and unclean hands.4 The trial court’s restitution award
3 “‘The doctrine of equitable estoppel is founded on
concepts of equity and fair dealing. It provides that a person
may not deny the existence of a state of facts if he
intentionally led another to believe a particular
circumstance to be true and to rely upon such belief to his
detriment. The elements of the doctrine 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. [Citations.]’” (City of Goleta v.
Superior Court (2006) 40 Cal.4th 270, 279; accord, Estill v.
County of Shasta (2018) 25 Cal.App.5th 702, 710–711;
Attard v. Board of Supervisors of Contra Costa County (2017)
14 Cal.App.5th 1066, 1079.)
4 Under the doctrine of unclean hands, “one who comes
to court seeking equity must come with clean hands.” (Jay
Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th
437, 445.) “The doctrine demands that a plaintiff act fairly
in the matter for which he seeks a remedy. He must come
into court with clean hands, and keep them clean, or he will
be denied relief, regardless of the merits of his claim.”
(Kendall–Jackson Winery, Ltd. v. Superior Court (1999) 76
Cal.App.4th 970, 978.) “The doctrine promotes justice by
21
included an implied finding that Tayyar’s claim was not
barred by either equitable doctrine, and there is substantial
evidence to support that finding. (See, e.g., Fladeboe, supra,
150 Cal.App.4th at p. 48 [reviewing court infers that the
trial court impliedly found all facts necessary for the
decision].) Implicit in the court’s restitution award is a
factual determination that Tayyar’s signatures on the
beneficiary demand and the estimated settlement statement
did not reflect an intent to induce Zilberstein to rely upon
them, nor was such reliance reasonable enough to prevent
Tayyar from denying, under equitable estoppel, liability for
the Finance Fee. Similarly, the court did not view Tayyar as
having acted unfairly, or engaging in any misconduct or
deceptive behavior by approving of the beneficiary demand,
sufficient to qualify as unclean hands. There was
substantial evidence that Tayyar signed the beneficiary
demand as part of a large stack of documents presented to
him as part of the escrow process for refinance transaction
worth almost 3 million dollars, and had to satisfy
Zilberstein’s demand to complete the refinance transaction.
He also alerted Zilberstein before the close of escrow that he
making a plaintiff answer for his own misconduct in the
action. It prevents ‘a wrongdoer from enjoying the fruits of
his transgression.’ [Citations.]” (Ibid.) However, the
doctrine of unclean hands “does not create substantive rights
under the guise of doing equity, that is, it does not confer
rights when the one who invokes it has none.” (Stein v.
Simpson (1951) 37 Cal.2d 79, 83.)
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was paying the Finance Fee under protest. This evidence
supports an implied finding that it was reasonable for
Tayyar to accede to En Financial’s demand, render the
payment under protest, and reserve his rights, rather than
to insist on an immediate test of the disputed obligation. On
these facts, we find substantial evidence to support the
court’s implied finding that Tayyar’s restitution claim was
not barred by equitable estoppel or the doctrine of unclean
hands.
Calculation of the amount of restitution
En Financial next contends that the trial court’s
decision to apportion the restitution award, requiring it to
return 75 percent of the Finance Fee, was error. Without
citing to any law to support its argument, En Financial
argues that the court improperly modified the terms of the
Loan Agreement. According to En Financial, there was
inadequate evidence to support the court’s decision to depart
from language in the Loan Agreement identifying a maturity
date of December 31, 2016, and providing for payment of the
full Finance Fee for any renewal or extension. En Financial
then argues that if the Finance Fee is to be apportioned, the
court erroneously determined that Tayyar had the benefit of
the Loan funds for three months, rather than five.
We are not persuaded, primarily because these
arguments simply repeat the disagreement En Financial has
with the trial court’s factual determinations. There was
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substantial evidence to support the court’s finding that the
Loan term ended on February 22, 2017, one year after the
Loan funds were made available. Based on the Loan payoff
date of May 31, 2017, it was reasonable for the court to
conclude that while it was unjust for En Financial to retain
the entire Finance Fee payment, it would not be unjust to
permit it to retain 25 percent, corresponding to the three
months (March, April, and May) during which Tayyar
continued to use the Loan principal after the Loan term
ended.
Judgment in favor of Tayar
Lastly, En Financial argues that Tayyar lacked
standing to obtain restitution, because he did not personally
pay the benefit that caused En Financial to be unjustly
enriched. To support its argument, En Financial points to a
statement in the trial court’s ruling that “the funds arguably
should have gone to” El Molino, the limited liability company
that held the real property as collateral for the refinance.
Based on record evidence that the balance of the escrow
proceeds were deposited to a bank account held by Tayyar
and his wife, testimony that El Molino was created by
Tayyar to comply with the conditions of the new loan, and
evidence that Tayyar had authority to act on behalf of El
Molino, we conclude that it was not error for the trial court
to make the restitution award payable to both El Molino and
Tayyar as an individual.
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DISPOSITION
The portion of the appeal challenging the August 17,
2018 order granting a motion for new trial is dismissed as
untimely. The judgment is affirmed. Plaintiffs and
respondents Massoud Tayyar and 838-840 N. El Molino,
LLC are awarded their costs on appeal.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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