Filed 8/17/21 BBR Investments v. Dividesfahani CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BBR INVESTMENTS, LLC, B305907
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC659218)
v.
SHAHRIAR DAVIDESFAHANI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Affirmed.
Verus Law Group and Holly Walker for Plaintiff and
Respondent.
Rodriguez Law Group and Patricia Rodriguez for
Defendant and Appellant.
___________________________________
INTRODUCTION
Shahriar Davidesfahani appeals from the amended
judgment entered after the trial court granted a motion by BBR
Investments, LLC for summary judgment in BBR’s action against
Davidesfahani for breach of his guaranty of a line of credit for his
business, Mah-Zad Corporation. Davidesfahani argues he
“lacked thorough consideration of his obligations by the fault of”
BBR, “which made it impossible for [him] to perform.”
Davidesfahani also challenges the order awarding BBR $4,491.43
in attorneys’ fees and $2,209.43 in costs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2013 Mah-Zad borrowed $225,000 from US
Bank in the form of a revocable line of credit evidenced by a
promissory note and secured by Mah-Zad’s assets, inventory, and
equipment. Davidesfahani, Mah-Zad’s president, signed the
Demand Line of Credit Agreement. Mah-Zad agreed that, if it
drew on the line of credit, it would make monthly interest
payments at the rate of prime plus 2.5 percent and that all
amounts due were payable on demand. Mah-Zad also agreed it
would pay the bank’s attorneys’ fees and costs in the event of
litigation. Davidesfahani signed a continuing guaranty, which
guaranteed Mah-Zad’s obligations under the line of credit,
including Mah-Zad’s obligation to pay the bank’s attorneys’ fees
and costs.
Mah-Zad failed to make timely payments and began to
incur late fees and interest. On June 2, 2015 US Bank sent
demand letters to Mah-Zad and Davidesfahani, stating the bank
2
had elected to accelerate the principal amount due under the line
of credit. The bank demanded immediate payment in full of the
balance, which at that time was $228,073.48. Mah-Zad did not
make any payments.
US Bank assigned all of its rights and interest in the line of
credit to BBR Investments. On February 22, 2017 BBR, through
its loan servicer, sent demand letters to Mah-Zad and
Davidesfahani. The letters stated that the total amount due,
including principal, late fees, and interest, was $252,025.77.
Neither Mah-Zad nor Davidesfahani made any payments or
responded to the letter.
On April 26, 2017 BBR filed this action. BBR alleged that
Mah-Zad and Davidesfahani were in default and materially
breached the terms of the credit agreement and guaranty,
respectively. BBR argued that under the terms of the two
documents it was entitled to the principal amount of the loan,
late fees, interest, and reasonable attorneys’ fees and costs. Mah-
Zad and Davidesfahani answered BBR’s complaint, denying
BBR’s allegations and asserting various affirmative defenses.
BBR filed a motion for summary judgment, arguing
Davidesfahani breached the guaranty. Davidesfahani filed a
memorandum of points and authorities in opposition to BBR’s
motion, arguing there was a mutual mistake of fact because the
“purported interest rate at the time was not thoroughly
considered by Defendant and or disclosed.” Davidesfahani did
not submit any evidence in opposition to the motion.
On November 14, 2019 the trial court granted BBR’s
motion for summary judgment, ruling there were no triable
issues of material fact on BBR’s breach of contract cause of action
against Davidesfahani. The court ruled that BBR had shown
3
“there are no genuine issues of material fact as to the existence of
the contracts that it seeks to enforce” and that Davidesfahani
“defaulted on the payments after April 6, 2015.” The court stated
that, although Davidesfahani argued “the agreement is
rescindable under the federal Truth In Lending Act,” that law
does not apply to credit transactions for business or commercial
purposes. The court entered judgment for BBR in the amount of
$223,623.50, plus $27,162.09 in interest and $929.60 in late fees
as of February 22, 2017, and prejudgment interest.
On January 6, 2020 the trial court granted BBR’s motion
for attorneys’ fees and awarded BBR $4,491.43 in fees and
$2,209.43 in costs. On February 21, 2020 the trial court entered
an amended judgment awarding BBR $258,416.05.
Davidesfahani timely appealed from the amended judgment.
DISCUSSION
A. Standard of Review
“Summary judgment is appropriate only ‘where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.’” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618; see Usher
v. White (2021) 64 Cal.App.5th 883, 892.) A plaintiff moving for
summary judgment meets its “burden of showing that there is no
defense to a cause of action if that party has proved each element
of the cause of action entitling the party to judgment on the cause
of action. Once the plaintiff . . . has met that burden, 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 or a defense
4
thereto.” (Code Civ. Proc., § 437c, subd. (p)(1); see Thompson v.
Ioane (2017) 11 Cal.App.5th 1180, 1195.)
We review a trial court’s ruling on a motion for summary
judgment de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.)
We consider “‘“‘“all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.”’ [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see
Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014)
59 Cal.4th 277, 286; Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1179.)
B. Davidesfahani Did Not Demonstrate a Triable Issue
of Material Fact
The trial court ruled BBR met its initial burden on
summary judgment of showing Davidesfahani breached the
guaranty. Davidesfahani does not challenge that ruling.
Instead, he argues that the trial court erred in granting BBR’s
motion for summary judgment because there was a triable issue
of fact regarding Davidesfahani’s obligations under the guaranty.
He asserts that there was “some kind of mutual mistake of fact or
lack of disclosed consideration regarding the interest payments
he allegedly agreed to” and that “[s]uch interest rate at the time
was not thoroughly considered by [him] or disclosed” by the bank.
To the extent these assertions are comprehensible,
Davidesfahani does not support them with any citations to the
record. Davidesfahani does not cite any evidence he was
unaware of or unable to perform his obligations under the
5
guaranty and, as stated, he did not submit any evidence in
opposition to the motion for summary judgment. Nor does he
even identify which contractual obligations he was purportedly
not aware of or how or why he could not perform them. Thus, he
has not met his burden to show there was a triable issue of
material fact that precluded summary judgment. (See Gabrielle
A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289 [“‘[I]t is
not enough in opposing summary judgment to surmise reasons or
make unfounded allegations: “a party ‘cannot avoid summary
judgment by asserting facts based on mere speculation and
conjecture, but instead must produce admissible evidence raising
a triable issue of fact . . . .’”’”]; Hodjat v. State Farm Mutual
Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10 [“[i]t is an
appellant’s duty to direct the court to evidence that supports his
arguments”].)
Davidesfahani argues he had the right to rescind the
guaranty under the Truth in Lending Act, 15 U.S.C. § 1601
et seq. (TILA). As the trial court correctly ruled, however,
although TILA “applies to ‘consumer credit transaction[s],’” it
does not apply to “‘[c]redit transactions involving extensions of
credit primarily for business, commercial, or agricultural
purposes.’” (See 15 U.S.C. §§ 1603(1), 1635(a).) Under TILA a
consumer credit transaction is “one in which the party to whom
credit is offered or extended is a natural person, and the money,
property, or services which are the subject of the transaction are
primarily for personal, family, or household purposes.”
(15 U.S.C. § 1602(i).) Mah-Zad is a corporation, and the line of
credit was for business purposes. Davidesfahani does not address
this aspect of the trial court’s ruling or present any argument
why TILA applies to him or his guaranty. (See City of Santa
6
Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“[w]e may
disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt”].) The trial court did not err in granting BBR’s motion for
summary judgment.
C. The Trial Court Did Not Abuse Its Discretion in
Awarding BBR $4,491.43 in Attorneys’ Fees and
$2,209.43 in Costs
Davidesfahani argues the trial court erred in awarding
BBR its attorneys’ fees and costs because, although Civil Code
section 1717, subdivision (a), requires that “a contract must
specifically provide for attorney’s fees which are incurred to
ENFORCE that contract,” the attorneys’ fees provision here was
not “transparent.” The attorneys’ fees provision in the line of
credit provides that Mah-Zad had to reimburse the bank “for all
attorneys’ fees and all other costs, fees and out-of-pocket
disbursements incurred by [US Bank] in connection with the
preparation, execution, delivery, administration, defense and
enforcement of this Agreement or any of the other Loan
Documents, including attorneys’ fees and all other costs and fees
. . . incurred before or after commencement of litigation or at
trial, on appeal or in any other proceeding.” The guaranty
provides that Davidesfahani guaranteed “prompt payment” of
Mah-Zad’s obligations to the bank, including “all costs, expenses
and reasonable attorneys’ fees . . . paid or incurred by the Bank
at any time before or after judgment in attempting to collect”
from Mah-Zad. This language is pretty transparent.
7
Davidesfahani does not explain why it was not sufficient to put
him on notice that, in the event of litigation, he would be liable
for the bank’s attorneys’ fees and costs.
BBR asked for $4,491.43 in attorneys’ fees and $2,209.43 in
costs. Davidesfahani did not file an opposition to the motion or
argue these amounts were unreasonable. The trial court
reviewed BBR’s “attorney timekeeping entries,” found they were
“reasonable,” and granted the motion. Davidesfahani twice
forfeited any argument the relatively modest amounts the court
awarded were unreasonable, first by failing to raise the issue in
the trial court, and then on appeal by failing to identify and
challenge any particular hours he contends were unreasonable.
(See Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013 [“‘“‘“a
reviewing court will ordinarily not consider claims made for the
first time on appeal which could have been but were not
presented to the trial court,”’”’” and “‘“‘“we ignore arguments,
authority, and facts not presented and litigated in the trial
court”’”’”]; Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th
459, 488 [“Because plaintiff did not point to the specific items
challenged, with a sufficient argument and citations to the
evidence, in support of its contention that the amount of awarded
attorney fees was excessive, plaintiff forfeited this claim on
appeal.”]; Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564
[“General arguments that fees claimed are excessive, duplicative,
or unrelated do not suffice. Failure to raise specific challenges in
the trial court forfeits the claim on appeal.”].)1
1 Davidesfahani does argue “$45,250.00 is not reasonable
fees to be treated as costs.” But that is not what the trial court
8
DISPOSITION
The judgment is affirmed. BBR’s motion for sanctions for
filing a frivolous appeal is denied.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
ordered. The court ordered Davidesfahani to pay $4,491.43 in
attorneys’ fees and $2,209.43 in costs, which is much less than
the $45,250 he asserts is unreasonable.
9