Trident Group, Inc. v. OnlyBusiness.com, LLC CA2/4 ( 2022 )

Filed 5/26/22 Trident Group, Inc. v. OnlyBusiness.com, LLC CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TRIDENT GROUP, INC., B311933
Plaintiff and Respondent,
v. (Los Angeles County
Super. Ct. No. SC126936)
ONLYBUSINESS.COM, LLC.,
Defendant,
DANIEL MEYEROV,
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Laura A. Seigle, Judge. Affirmed.
Lurie & Kramer, Barak Lurie, Brent A. Kramer, for Appellant.
Pick & Boydston, Brian D. Boydston, for Plaintiff and Respondent.
No appearance for Defendant.
Plaintiff and respondent Trident Group, Inc. brought an action alleging
breach of a loan agreement against defendant OnlyBusiness.com, LLC (OB).
After OB took no action to defend the lawsuit, appellant Daniel Meyerov, a
former manager of OB, successfully intervened. When Trident moved for
summary judgment, Meyerov opposed, arguing that Trident’s complaint was
barred by the applicable statute of limitations. The trial court granted
summary judgment for Trident, rejecting Meyerov’s statute of limitations
defense based on a written tolling agreement between Trident and OB. The
court also denied Meyerov’s summary judgment motion on the same basis.
Meyerov appeals from both summary judgment orders. He argues
Trident failed to establish that the tolling agreement was enforceable,
because it put forth no evidence that the agreement was accepted by OB or
that any such acceptance was properly transmitted under applicable notice
provisions. We find no error in the trial court’s rejection of these arguments
and therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
I. The Loan Documents
Trident and OB entered into a loan agreement in April 2008, pursuant
to which Trident agreed to loan OB up to $2 million in several installments.
The loan agreement required OB to repay the loan by the “maturity date” of
April 30, 2012 if its cumulative net profits for the preceding three fiscal years
were less than projected in the 2008 and 2009 budgets. The loan agreement
also contained a notice provision, paragraph 9.2, which provided, “All notices,
approvals, consents, requests and demands upon the respective parties
hereto shall be in writing,” and required service by mail, fax, or overnight
delivery.
The loan agreement was signed by Meyerov and Mark Friedman as
members of OB, and by David Friedman1 (Mark’s father) as the president of
Trident. Meyerov subsequently left his position with OB on August 31, 2012.
In May 2008, OB executed a promissory note in favor of Trident.
Under the terms of the promissory note, all interest accrued but unpaid was
payable “at the end of each quarter after the occurrence of an Interest Trigger
1We refer to Mark and David Friedman by their first names to avoid
confusion; no disrespect is intended.
2
Event”; the unpaid principal, “together with all interest and other sums
owed,” was “due and payable . . . upon the Maturity Date” of April 30, 2012.2
II. Pleadings
Trident filed a verified complaint against OB on January 17, 2017,
alleging a single claim for breach of contract. The complaint was verified by
David on behalf of Trident and attached copies of the loan agreement and
promissory note. Trident alleged that pursuant to the loan agreement, it
loaned OB over $1.5 million between 2008 and 2012. OB defaulted on its
obligations under the loan agreement, and Trident therefore claimed
damages in the amount of the loan principal plus accrued interest.
The complaint also alleged that on February 15, 2016, Trident and OB
“entered into a written Tolling and Non-Waiver Agreement, a copy of which is
attached hereto.” The copy attached to the complaint included only the first
two (of three) pages and no signature page.
The tolling agreement stated its “effective date” was February 15, 2016
and recited that at the time, OB was “taking steps to repay” the loan but
“does not currently have sufficient funds available” to do so. The agreement
further stated that the parties were “engaged in negotiations” regarding the
loan repayment, and “in an attempt to avoid and/or defer litigation over the
Unpaid Balance and the Loan Documents, the Parties have agreed to enter
into this Agreement.” Pursuant to the tolling agreement, Trident and OB
agreed not to enter into litigation regarding the loan during the term of the
agreement and to toll all applicable statutes of limitations. Paragraph 2.2 of
the agreement provided that any party could terminate the agreement upon
30 days written notice to the other party. Paragraphs 2.3 and 2.4 of the
agreement set forth notice provisions, including that “All notices required or
permitted to be given to any Party shall be in writing,” and that any written
notice could be given by email, among other methods.
Trident filed a verified first amended complaint (FAC) in April 2017,
again asserting a single breach of contract claim. It attached a copy of the
tolling agreement, which included all three pages of the agreement. The
2 As we discuss further below, the occurrence of an “interest trigger
event” was the subject of dispute before the trial court, but is no longer an
issue for this appeal.
3
third page contained a signature by David on behalf of Trident, but no
signature for OB.
OB did not respond to the FAC and filed a case management statement
conceding liability. In May 2017, the court found the case related to two
pending lawsuits filed by Meyerov against Mark and others. The court
stayed the cases for two years pending preparation of a neutral accountant’s
report.
Meyerov filed a motion to intervene in February 2020, which the court
granted in July 2020. Both OB and Meyerov subsequently filed answers.
Meyerov asserted an affirmative defense based on the statute of limitations.
III. Summary Judgment
A. Motions by Trident and Meyerov
Trident filed a motion for summary judgment in October 2020. 3 With
respect to the timeliness of its lawsuit, Trident argued that the loan
agreement required OB to repay the loan by April 30, 2012. When OB failed
to do so, it breached the agreement and the statute of limitations began to
run. As the April 2016 expiration date for the four year statute of limitations
neared, Trident and OB entered into the tolling agreement in February 2016.
Trident terminated the tolling agreement in December 2016 and filed the
lawsuit a month later.
In support of its motion, Trident included a declaration from David, in
which he stated that the parties agreed to toll the statute of limitations and
entered into the tolling agreement on February 15, 2016. David’s declaration
attached a copy of the tolling agreement, which again included a signature
for Trident, but not for OB.
Trident also submitted a declaration from its counsel, Brian Boydston,
attaching an email he sent to Mark at OB in December 2016, terminating the
tolling agreement. In the email, Boydston noted that Mark “executed the
Tolling Agreement” on behalf of OB on February 15, 2016. Trident also
included as evidence a portion of OB’s verified discovery responses, in which
OB acknowledged that the “written agreements between the parties”
3As this appeal concerns only the statute of limitations defense, we
omit the details of the substantive arguments regarding Trident’s breach of
contract claim.
4
consisted of the loan agreement and accompanying promissory note, as well
as the tolling agreement. In addition, Trident provided a portion of
Meyerov’s verified discovery responses, in which he stated that the statute of
limitations had run in 2014 and that Mark and David belatedly “agreed to a
Tolling Agreement” in February 2016.
Meyerov also filed a motion for summary judgment, seeking judgment
in his favor as defendant-in-intervention. He argued that Trident’s claim
accrued in 2010, when OB was required to pay interest due under the
promissory note. As such, Meyerov argued that Trident’s lawsuit was
untimely because it was filed in 2017, three years after the statute of
limitations ran in March 2014.
Meyerov contended that alternatively, even if the statute of limitations
did not run until 2016, the tolling agreement was invalid because the copies
in the record were never signed by OB, as required under Code of Civil
Procedure section 360.5.4 He pointed to the copies of the tolling agreement
attached to the complaint, the FAC, and David’s declaration in support of
Trident’s motion for summary judgment, none of which contained a signature
by OB. He further argued that Trident had verified that the unsigned
version was a “true and correct” copy of the agreement and could not now
present a signed version as an accurate copy.
Trident filed a motion for sanctions, demanding that Meyerov withdraw
his motion for summary judgment. Trident stated that Meyerov had received
a fully executed copy of the tolling agreement in 2016. Trident attached an
email sent by Mark to Meyerov on February 25, 2016, enclosing a copy of the
tolling agreement signed by both Trident and OB; it also included a March
22, 2016 email from attorney Thomas Fitzgibbon to counsel for Meyerov,
enclosing a copy of the fully signed tolling agreement. 5
4 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
5 Trident’s motion for sanctions is not in the record on appeal. Meyerov
acknowledged the motion in his opposition to Trident’s motion for summary
judgment, as well as the existence of the two 2016 emails sending him copies
of the fully-signed tolling agreement. Fitzgibbon acted as counsel for Trident,
Mark, and OB in the related lawsuit filed by Meyerov.
5
Meyerov opposed Trident’s motion for summary judgment, again
arguing that the statute of limitations expired in 2014 and that the tolling
agreement was ineffective because the version in the record was not signed
by OB. He acknowledged Trident’s motion for sanctions and did not deny
receiving the emails from Mark and attorney Fitzgibbon in 2016 with copies
of the fully signed tolling agreement. Instead, Meyerov argued that proof
that he received the agreement was irrelevant, as there was no evidence that
OB’s acceptance of the tolling agreement was ever transmitted to Trident in
order to create a binding contract under California law. In his accompanying
declaration, Meyerov stated that he had “never seen nor heard nor received
any evidence that a countersigned Tolling Agreement was ever transmitted
or delivered from OB to Trident so as to make it a fully executed Tolling
Agreement.”
Meyerov also asserted that the tolling agreement was unenforceable for
another reason. He argued that the tolling agreement constituted an
“amendment” to the loan agreement, and therefore OB was required to give
notice of its acceptance pursuant to the notice provisions in the loan
agreement.
Meyerov filed objections to the declaration submitted by David in
support of Trident’s motion for summary judgment. As relevant here, he
objected to David’s statement that OB and Trident entered into the tolling
agreement as “an inadmissible legal conclusion (that is also false).”
Trident filed an opposition to Meyerov’s motion for summary judgment
and a substantively identical reply in support of its own motion. Trident
argued that the statute of limitations for its claim of the principal loan
balance did not run until OB failed to pay that balance in March 2012.
Trident asserted that the tolling agreement was enforceable, as it was signed
by both Trident and OB. Trident’s reply included a declaration from Mark,
attesting that on or about February 25, 2016, “on behalf of OB I executed a
document entitled ‘Tolling and Non-Waiver Agreement’, and attached a copy
of the same to an email I sent to Daniel Meyerov on that date.” In the
attached email to Meyerov, Mark stated that he was attaching a copy of the
tolling agreement “entered into between OnlyBusiness.com LLC and Trident
Group effective as of February 15, 2016.” The copy of the tolling agreement
6
attached to the email contained all three pages and signatures by both Mark
(for OB) and David (for Trident).
Meyerov filed a reply, again asserting that Trident was required to
produce evidence of OB’s acceptance of the tolling agreement, communicated
in writing to Trident, and that Trident had failed to produce any such
evidence.
B. Hearing and Rulings
The court heard argument on both summary judgment motions on
January 12, 2021. Counsel for Trident clarified that although Trident sought
damages for both the loan principal and interest in the FAC, when moving for
summary judgment it elected “to just go after the princip[al] and not go after
the interest.” As for the tolling agreement, Trident’s counsel argued that “the
fact that David Friedman said under oath, yes, it was entered by both sides
and yes, O.B. entered it is sufficient evidence to demonstrate the fact that it
was entered. And it was provided to each side. . . . Because clearly both sides
have acknowledged that they are having a meeting of the minds.”
Following the hearing, the court denied Meyerov’s motion for summary
judgment.6 The court continued the hearing on Trident’s motion and
requested supplemental briefing regarding whether it could “grant summary
judgment on Plaintiff’s breach of contract cause of action and award the
unpaid principal without Plaintiff dismissing its claim for interest as stated
in the FAC.”
Trident filed a supplemental brief, stating that it was “dismissing any
claims for interest” and was seeking summary judgment only for damages in
the amount of the principal loan balance. Meyerov also filed a supplemental
brief, arguing that Trident’s dismissal of its claim for interest did not render
its complaint timely.
The court took the matter under submission upon receipt of the
supplemental briefs, then issued its ruling, granting Trident’s motion for
summary judgment. The court granted both parties’ requests for judicial
notice of various portions of the court file, including the complaint and
Trident’s motion for sanctions. The court also sustained two of Meyerov’s
We granted Meyerov’s request for judicial notice of the court’s
6
January 21, 2021 minute order.
7
objections to the evidence, but overruled the rest, including overruling the
objections related to the tolling agreement.
The court found that Trident had met its initial burden on summary
judgment to provide evidence establishing that the parties had entered into
the loan agreement, that OB breached that agreement by failing to repay the
loan, and that Trident suffered damages as a result. The court also found
that Trident had “submitted evidence that Plaintiff and Defendant entered
into a Tolling Agreement on February 15, 2016.” As such, the burden shifted
to Meyerov to show the existence of a triable issue of material fact.
Turning to Meyerov’s arguments on the statute of limitations, the court
found his argument that OB breached the contract as of March 2010 did not
“withstand scrutiny.” The court found that under the terms of the loan, the
principal was not due until the undisputed maturity date of April 30, 2012.
Thus, “the statute of limitations for a cause of action based on the failure to
pay the principal did not start until that date.”
Next, the court found that “both parties signed the Tolling Agreement.”
The court cited the statement in the verified FAC that the parties entered
into the tolling agreement on February 15, 2016, as confirmed by the
declarations of David and Mark, and by the copy of the fully executed
agreement attached to Mark’s declaration. Thus, “both signatories to the
Tolling Agreement agree that Plaintiff and Defendant entered into the
agreement. David Friedman does not contend the agreement was not
effective because it was never delivered to him.”
The court also rejected Meyerov’s arguments regarding adherence to
the notice provisions of the tolling and loan agreements. First, the court
disagreed that section 2.3 of the tolling agreement required written notice for
the agreement to take effect, noting that the agreement contained an
effective date not tied to written notice of OB’s acceptance. Thus, the court
reasoned, “according to Meyerov’s interpretation of the notice provision, even
if both parties signed the Tolling Agreement together in person, the
agreement would not be effective until they mailed or emailed copies of it to
each other, which is nonsensical.” Second, the court rejected Meyerov’s
argument that the “Loan Agreement’s notice provision governs the procedure
for the parties to enter into other agreements years later.”
8
The court entered judgment in favor of Trident on February 24, 2021.
Meyerov timely appealed.
DISCUSSION
I. Standard of Review
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been
made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.) We thus apply “‘the same three-step process required of
the trial court. [Citation.]’” (Bostrom v. County of San Bernardino (1995) 35
Cal.App.4th 1654, 1662.) First, “we identify the issues framed by the
pleadings”; second, “we determine whether the moving party’s showing has
established facts which negate the opponent’s claim and justify a judgment in
movant’s favor”; and third, if the moving party has established a prima facie
case, we determine whether the opposing party has raised a triable issue of
fact. (Ibid.) Once the plaintiff makes an adequate initial showing, the
burden shifts to the defendant to show a triable issue of fact “as to that cause
of action or a defense thereto.” (§ 437c, subd. (p)(1).)
We review the trial court’s rulings on evidentiary objections for abuse
of discretion. (See Walker v. Countrywide Home Loans, Inc. (2002) 98
Cal.App.4th 1158, 1169, citing People ex rel. Lockyer v. Sun Pacific Farming
Co. (2000) 77 Cal.App.4th 619, 639–640.)
II. Analysis
Meyerov argues that the trial court erred in granting Trident’s motion
for summary judgment by finding that Trident and OB validly entered into a
tolling agreement before the statute of limitations expired. He contends the
court erred in denying his summary judgment motion for the same reason.
We find no error.
For the purposes of this appeal, Meyerov does not dispute that
Trident’s breach of contract claim accrued on April 30, 2012, the maturity
date under the loan agreement.7 The parties also agree that the applicable
7 Meyerov argued below that the claim accrued in March 2010, because
at that point an “interest trigger event” had occurred but OB had failed to
9
statute of limitations is four years for breach of a written contract under Civil
Code section 337. Thus, absent a valid tolling agreement, Trident’s claim
expired on April 30, 2016 and its complaint filed in January 2017 would be
barred.
Meyerov contends that OB did not sign the tolling agreement in
February 2016 and that Trident “magically produced” a fully signed
agreement only in 2020 when the issue was raised on summary judgment.
This argument is meritless. Trident produced evidence that in February
2016, Meyerov received a copy of the tolling agreement signed by both
parties, shortly after the effective date of the contract. Meyerov did not file a
reply brief on appeal or otherwise dispute this evidence. Thus, the evidence
is uncontroverted that the tolling agreement was executed by both Trident
and OB in February 2016.
Meyerov further argues that even if OB signed the tolling agreement,
the contract was only binding if OB communicated its acceptance to Trident.8
Assuming arguendo that such communication was required, we agree with
the trial court’s conclusion that the record contains evidence that OB
accepted the offer and communicated it to Trident. Both David and Mark
provided declarations in support of summary judgment confirming their
understanding that Trident and OB had entered into the tolling agreement in
February 2016; Mark also attached a copy of the fully executed agreement to
his declaration. Additionally, there is evidence that both parties possessed
copies of the fully signed document in 2016—Mark emailed a copy to Meyerov
in February 2016 and Fitzgibbon (then counsel for Trident, Mark, and OB in
a related lawsuit) did the same a month later. Notably, neither party to the
tolling agreement has challenged its acceptance. Indeed, even Meyerov
pay the interest due under the promissory note. Meyerov discussed this
position in the fact section of his appellate opening brief, but did not assert it
as a basis for error. Instead, he acknowledges that because Trident
dismissed its claim for unpaid interest, the relevant claim accrued in April
2012, when OB failed to pay the principal loan balance by the loan maturity
date.
8 Meyerov cites to Civil Code section 1626, which provides, “A contract
in writing takes effect upon its delivery to the party in whose favor it is made,
or to his agent.”
10
asserted in written discovery responses that Trident and OB had entered into
the tolling agreement in 2016, as support for his argument that the statute of
limitations had expired in 2014. As such, the evidence supports the
conclusion that as of 2016, all relevant parties understood and agreed that
Trident and OB had entered into the tolling agreement.
We are not persuaded otherwise by Meyerov’s contention that the trial
court erred in overruling his objections to Mark and David’s declarations on
this issue. Meyerov argues that Mark and David offered inadmissible legal
conclusions regarding the formation of a contract. He relies on cases
prohibiting expert testimony offering opinions on legal questions. (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 530 [rejecting expert’s legal
conclusion about the “ultimate issues in dispute”]; Towns v. Davidson (2007)
147 Cal.App.4th 461, 472–473 [no abuse of discretion for trial court to exclude
expert testimony on “ultimate legal issues of inherent risk and duty”];
Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179 [discussing
limitations on admissibility of expert opinion].) These cases are inapposite.
David and Mark were percipient witnesses with personal knowledge of
whether they agreed to enter into the tolling agreement, and the date on
which they did so. The trial court did not abuse its discretion in admitting
this evidence in support of its finding that both parties knowingly entered
into the contract. (See Banner Entertainment, Inc. v. Superior Court
(Alchemy Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 358 [evidence of
parties’ mutual intent is relevant to determining contract formation].)
We also reject Meyerov’s contention that David previously provided
“conflicting sworn statements” when he verified the complaint and FAC and
stated that his declaration attached a “true and correct copy” of the tolling
agreement, but then attached a version missing OB’s signature. In each of
these instances, David stated that OB and Trident had entered into the
tolling agreement in February 2016. Those statements were consistent with
the written tolling agreement provided, and with the evidence that both
parties had signed the agreement.
Further, we agree with the trial court’s rejection of Meyerov’s
contention that the tolling agreement was not valid because the parties did
not comply with the notice provisions of the loan agreement. Meyerov fails to
11
cite to any contractual language or other authority explaining why a
provision governing notice under the loan agreement would apply to notice
given under the tolling agreement, an entirely separate contract entered
eight years later. Indeed, the tolling agreement expressly contains its own
notice provisions, which differ from those in the loan agreement. 9 We thus
conclude that Meyerov has failed to demonstrate any error in the trial court’s
orders granting summary judgment in favor of Trident and denying his
corresponding motion.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
9Before the trial court, Meyerov also argued that the parties were
required to comply with the notice provisions of the tolling agreement in
order to effectuate that agreement. The trial court rejected this argument
and Meyerov does not challenge that rejection on appeal.
12