BMO Harris Bank N.A. v. Hassanally CA1/1

Filed 11/29/22 BMO Harris Bank N.A. v. Hassanally CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi-
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BMO HARRIS BANK N.A.,
Plaintiff and Respondent, A162824
v. (Solano County
RAHIM HASSANALLY et al., Super. Ct. No.
FCS051806)
Defendants and Appellants.
This case is one of several lawsuits precipitated by the closure of
several vehicle dealerships following their default on loan and lease
obligations. The instant appeal arises from the final chapter of litigation
brought by BMO Harris Bank, N.A. (the Bank) to enforce its floor financing
loans for the Mitsubishi dealership. Following liquidation of the dealership’s
assets, the Bank sought a deficiency judgment, first moving for summary
adjudication of its damages. Appellants opposed the motion, challenging the
“commercial reasonableness” of the Bank’s disposition of certain assets,
1
namely the remaining new Mitsubishi vehicle inventory and the remaining
used vehicle inventory.1 The trial court ruled in favor of the Bank.2
After several additional hearings and stipulations by the parties, the
court allocated the disposition proceeds and other monetary items,
determined the amount of the Bank’s deficiency judgment, and terminated
the receivership that had been put in place to assist with the liquidation.
Appellants maintain the trial court erred in its summary adjudication
rulings. We affirm.
DISCUSSION3
Appealability
The Bank asserts there are two procedural obstacles to appellants’
appeal: (1) that appellants appealed from the non-appealable summary
adjudication order and not from the later-entered final judgment, and (2) that
they stipulated to the terms of the final judgment. While it is true that an
appeal from a non-appealable order or from a stipulated judgment must often
be dismissed, that is not so in the instant case.
The Courts of Appeal have many times stated that an appeal will not
lie from an order granting or denying summary adjudication or from an order
granting summary judgment. Rather, an appeal lies from the final judgment
1 Appellants are not the dealerships, themselves, but a corporate entity
with an ownership interest in the Mitsubishi dealership (Fairfield CJD, LP
d/b/a Momentum CDJR-Fairfield) and an individual guarantor (Rahim
Hassanally).
2 Although denominated a motion for summary judgment or summary
adjudication, the order at issue ruled in favor of the Bank on certain legal
issues and fixed the damages benchmark, but as we explain, it did not resolve
all issues between the parties or conclude the litigation.
3 We discuss the pertinent facts and procedural aspects of the case in
connection with our discussion of the issues raised on appeal.
2
entered pursuant to such an order.4 (Mitchell v. Los Robles Regional Medical
Center (2021) 71 Cal.App.5th 291, 296, fn. 2 (Mitchell); Taylor v. Trimble
(2017) 13 Cal.App.5th 934, 939 (Taylor).) Thus, an appeal from such an order
is premature and must be dismissed.
Appellants’ assertion that we should “classify” the summary
adjudication order, itself, as a final judgment misses the mark. “ ‘Generally,
an order granting summary adjudication is an intermediate order which is
“reviewable on appeal from the final judgment in the action.” ’ ” (Wilson v.
County of San Joaquin (2019) 38 Cal.App.5th 1, 7, italics omitted.) Such an
order is immediately appealable only if it “ ‘effectively disposes of the entire
matter’ ”—for example where it wholly removes one of several defendants
from the case, or where other pending causes of action are wholly duplicative
of the cause(s) of action resolved by summary adjudication. (Ibid.)
Here, while the summary adjudication order may have resolved the
principal substantive issues in the case and set the damages base mark,
issues remained as to the exact amount of the deficiency judgment and the
discharge of the receiver. Accordingly, the order did not fully resolve all
issues between the parties.
Nevertheless, where, as here, a final judgment is entered after a
premature appeal from a summary adjudication or summary judgment order,
the appellate courts generally will deem the appeal to be from the ensuing
4 The trial court flatly told appellants at the outset of the first post-
summary adjudication hearing that the litigation was not concluded, that it
“need[ed] [a] happy little document saying ‘judgment,’ ” and that “the appeal
[was] premature,” as were the Bank’s motions for fees and costs.
3
final judgment, and we will do so in this case.5 (Mitchell, supra,
71 Cal.App.5th at p. 296, fn. 2; Taylor, supra, 13 Cal.App.5th at p. 939.)
It is also generally the case that a party cannot appeal from a judgment
to which it stipulated. (See, e.g., Kristine H. v. Lisa R. (2005) 37 Cal.4th 156,
160 [appellant estopped from attacking the validity of the judgment to which
she stipulated]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400 (Norgart)
[“ ‘by consenting to the judgment or order the party expressly waives all
objection to it, and cannot be allowed afterwards, on appeal, to question its
propriety’ ”].)
An exception to this rule permits an appeal “ ‘ “[if] consent was merely
given to facilitate an appeal following adverse determination of a critical
issue.” ’ ” (Norgart, supra, 21 Cal.4th at p. 400; accord, Harrington-Wisely v.
State of California (2007) 156 Cal.App.4th 1488, 1495; Cadle Co. II, Inc. v.
Sundance Financial, Inc. (2007) 154 Cal.App.4th 622, 625 [“decades of case
law hold[] that a party stipulating to a judgment waives the right to appeal
unless the purpose of the stipulation was to facilitate an appeal”].)
Appellants maintain they stipulated only to the calculated deficiency
numbers that inevitably flowed from the trial court’s summary adjudication
order, and they did not stipulate to any of the court’s predicate legal rulings
5 We caution appellants, however, that saving a premature appeal by
deeming it to be from a subsequently entered final judgment, is wholly within
the discretion of the appellate court. And should a court decline to save a
premature appeal and should the party have failed to timely appeal from the
subsequent final judgment—as appellants failed to do here and despite the
trial court having expressly told them before it entered final judgment that
their appeal was premature—the party will entirely lose its right to appeal,
as appellants would here if we declined to exercise our discretion to save their
premature appeal.
4
set forth in that order. They further insist that they so stipulated to facilitate
an appeal from the summary adjudication order.
As the Bank points out, however, appellants can hardly have stipulated
“ ‘to facilitate’ ” an appeal, since they had already (albeit improperly)
appealed from the summary adjudication order. It further asserts that the
stipulated judgment resulted from negotiations wherein the Bank agreed to
forego a portion of the interest to which it claimed it was entitled. Thus, the
Bank characterizes the stipulated judgment as a negotiated, final resolution
of the dispute to which appellants agreed and from which they cannot
attempt to back out by way of an appeal.
It is a close question whether appellants can invoke the “to facilitate an
appeal” exception to the general rule that an appeal will not lie from a
stipulated judgment. Appellants plainly thought they had already appealed
from the summary adjudication order. And at no place in the record
concerning entry of final judgment, did appellants state they were agreeing to
a stipulated judgment only to hasten their ability to appeal the adverse
summary adjudication rulings. (Compare Building Industry Assn. v. City of
Camarillo (1986) 41 Cal.3d 810, 816 [written agreement stated sole purpose
of stipulated judgment was to permit plaintiff to appeal trial court’s adverse
summary adjudication rulings]; Sargon Enterprises, Inc. v. University of
Southern California (2013) 215 Cal.App.4th 1495, 1507 [stipulation stated
parties agreed and acknowledged that sole purpose of stipulated judgment
was to hasten transfer of the case to the appellate court and facilitate
plaintiff’s appeal following an adverse determination of “ ‘critical issue’ ”].)
However, at two points during the post-summary adjudication hearings
concerning the entry of final judgment, the trial court commented on
appellants’ appeal.
5
At the first such hearing, after reminding the parties the case was not
concluded by the summary adjudication order and the court needed to enter a
final judgment resolving the remaining issues (including calculating the
exact amount of the deficiency judgment and discharging the receiver), the
court made the following comment to appellants’ counsel: “I don’t think, Mr.
Amin, that it’s [referring to the further proceedings necessary to prepare a
final judgment] going to change anything for your appeal. I don’t think
anybody really—you know, you guys can fight about whether that’s
premature or untimely or just agree that it is what it is.” The court further
stated in explaining it’s need for actual numbers for the judgment: “Mr.
Amin, by stipulating to this number [that] does not necessarily mean—and
we can put a proviso in there—that you are giving up any rights to contest
the summary judgment findings or the orders or any of that. I’m just trying
to get a number so that you guys can be done with this chapter and do
whatever needs to happen next.”
At the second hearing, the court drilled down into the numbers
presented by the receiver and the lenders, initially expressing unhappiness at
the parties’ efforts to provide the numbers necessary to calculate the final
judgment and sending them out for further discussions. It is clear the court
wanted the parties to return with an agreed-to resolution of the remaining
issues concerning the numbers and the discharge of the receiver. The court
commented appellants had “already filed an appeal, and he’s got that right, I
don’t have any problem with it,” but it wanted to “connect[] all the dots” when
it came to the numbers in the judgment.
On recalling the case, the court first turned to the final judgment as to
the Bank, stating it had “a new stipulated judgment hot in my hand.” It then
asked counsel for the Bank and for appellants to confirm that they
6
“stipulated to this form of the judgment,” and both said they did. The court
also confirmed that the stipulated judgment encompassed the principal and
prejudgment interest set forth in the summary adjudication order, the credits
to be applied to reduce those amounts, and a reduction the Bank agreed to
accept to resolve the interest owed. The court then reconfirmed appellants
were “approving as to form the stipulated judgment” and signed the
stipulated judgment. The judgment did not include the proviso the court had
earlier suggested expressly preserving appellants’ right to appeal the merits
of the court’s summary adjudication rulings.
Thus, it can hardly be said that appellants took any steps to come
within the “to facilitate an appeal” exception to the general rule that no
appeal will lie from a stipulated judgment. Indeed, they made no record,
themselves, to come within this exception. Thus, contrary to appellants’
assertion that “even a cursory examination” of the record “clearly indicates
that consent to the stipulated judgment was provided for the sole purpose of
facilitating the present appeal,” an examination of the record shows no such
thing. To the contrary, all appellants can point to are a couple of comments
by the trial court that their appeal from the summary adjudication order
appeared to be premature and that by entering into a stipulation as to the
remaining issues, they were not “necessarily” giving up their right to appeal
the summary adjudication rulings. At best, appellants’ silence in the face of
the court’s comments suggests an implied reservation of their right to appeal
the rulings.
Nevertheless, it is apparent that the stipulation resolved only the
remaining issues in the case and did not pertain to the merits of the court’s
summary adjudication rulings. Thus, while by only a gossamer thread, we
conclude the balance tips toward allowing appellants’ appeal to proceed.
7
The Summary Adjudication
“ ‘[S]ummary judgment law in this state no longer requires a plaintiff
moving for summary judgment to disprove any defense asserted by the
defendant as well as prove each element of his own cause of action. . . . All
that the plaintiff need do is to “prove[ ] each element of the cause of action.”
[Citation.]’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. . . .)
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.’ (Code Civ. Proc., § 437c, subd. (p)(1).)” (WRI Opportunity
Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 531–532 (WRI
Opportunity Loans).)
On appeal after a motion for summary adjudication or “ ‘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. . . .) The three steps are (1)
identifying the issues framed by the complaint, (2) determining whether the
moving party has made an adequate showing that negates the opponent’s
claim, and (3) determining whether the opposing party has raised a triable
issue of fact. (Ibid.)” (WRI Opportunity Loans, supra, 154 Cal.App.4th at
p. 531.)
Sufficiency of Statement of Reasons
Appellants first contend the trial court’s order granting summary
adjudication failed to comply with the statutory requirement that such an
8
order must “specifically refer to the evidence proffered in support of and, if
applicable, in opposition to the motion.” (Code Civ. Proc., § 437c, subd. (g).)
“A statement of reasons is sufficient if it allows for meaningful
appellate review.” (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist.
(2001) 88 Cal.App.4th 439, 448.)
In W.F. Hayward Co. v. Transamerica Ins. Co. (1993) 16 Cal.App.4th
1101, for example, the appellant argued, as do appellants here, that the trial
court’s order did not comply with Code of Civil Procedure section 437c,
subdivision (g). “[T]he court’s minute order specifically stated, ‘. . . plaintiff
failed to file his claim against the surety within six (6) months of the time the
stop action could have been filed, as required by Civil Code 3249,’ ” and the
“ ‘[m]otion is granted on grounds set forth in the moving papers, including
defendant’s separate statement of undisputed facts.’ ” (Id. at pp. 1110–1111.)
The judgment stated, “ ‘Plaintiff failed to file suit on its claim against the
payment bond of Transamerica Insurance Company within six (6) months,
after the time stop notices could have been filed, as required by Civil Code
Sections 3249 and 3184.’ ” (Id. at p. 1111.) The Court of Appeal concluded,
“[f]or purposes of meaningful appellate review (a key objective of subdivision
(g) of section 437c), the court’s statement of reasons [was] quite adequate.
Certainly, there [was] no question about the reason this motion for summary
judgment was granted.” (Ibid.; see, e.g., Wedeck v. Unocal Corp. (1997)
59 Cal.App.4th 848, 864 [trial court’s written and oral orders made clear that
ruling was based on a finding that all the evidence established defendant was
plaintiff’s special employer as a matter of law].)
Here, the trial court filed a two-page written order that attached and
incorporated the court’s six and a half page, single-spaced, tentative ruling.
The tentative ruling provided a procedural history of the motion (which was
9
originally filed before all the assets were liquidated and was refiled after
completion of the liquidation) and addressed the import of the suspension of
the dealerships, the appointment of the receiver, and the failure of the
dealerships to oppose motions for summary adjudication as to them. The
court then turned to the merits of the Bank’s motion for summary
adjudication of its “damages.” Stating there was no dispute of material fact
as to the “principal balance” owed on the floor financing loans, the court
turned to the issue of “commercial reasonableness,” first setting forth the
governing law, including stating that “[g]enerally, commercial reasonableness
depends upon the circumstances which existed as of the time of sale, and is
not established merely because a higher price might have been obtainable
under other circumstances or time.”
The court then stated: “[The Bank’s] moving papers establish facts to
support that the liquidation of assets was done in a commercially reasonable
manner. The burden shifted to Defendants to establish a triable issue of fact
that the liquidation was not done in a commercially reasonable manner.
Other than speculative argument, Defendants offer no evidence—not even an
expert opinion—that [the Bank’s] liquidation was not completed in a
commercially reasonable manner.”
It then explained, in three paragraphs, why appellants’ specific
objections to the disposition of the new vehicle inventory of the Volkswagen
and Hyundai dealerships, and the new vehicle inventory of the Mitsubishi
dealership at issue here, were unfounded. As to the latter, addressed in two
of the paragraphs and a footnote consisting of another full paragraph, the
court cited specifically to the declaration of Jack Kane submitted in support
of the Bank’s motion. The court then spent another two paragraphs
10
discussing appellants’ specific objections to the Bank’s disposition of the used
vehicle inventory.
In its written order, the court stated “[a]fter full consideration of the
evidence submitted by the parties, the Court finds that there is no triable
issue of any material fact and [the Bank] is entitled to judgment as a matter
of law . . . for the reasons set forth in the Court’s tentative ruling attached
hereto as Exhibit A (adopted as the final ruling of the Court), which are
hereby incorporated by reference as the Court’s findings as though fully set
forth herein.”
As was the case in W.F. Hayward Co., there is no question as to the
reasons why the trial court granted the Bank’s motion for summary
adjudication, and the court’s written order incorporating its minute order
allows for meaningful appellate review. This is particularly so given that
nearly all of the Bank’s evidence as to its handling and disposition of the
assets was set forth in Kane’s declaration.
In any case, since a trial court’s role in deciding a motion for summary
adjudication or summary judgment does not involve fact-finding in the
traditional sense and its role is limited to determining whether there are any
material triable issues of fact and, if there are not, whether the moving party
is entitled to summary adjudication or judgment as a matter of law, the
sufficiency of the court’s statement of reasons “is much less important for
review than a statement of decision upon a trial of a question of fact.” (Soto
v. State of California (1997) 56 Cal.App.4th 196, 199.) Accordingly, even a
statement of reasons that fails to comply with Code of Civil Procedure section
437c, subdivision (g) provides no basis for reversal where “independent
review [on appeal] establishes the validity of the judgment.” (Soto, at p. 199.;
Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772,
11
782.) As we shall explain, the record here demonstrates the court properly
granted the Bank’s motion for summary adjudication.
At some points in their briefing, appellants seem to approach the
sufficiency-of-the-statement-of-reasons issue in a slightly different way—they
maintain the trial court improperly put the “burden” on them to establish
that the vehicle sales at issue were not commercially reasonable, contrary to
the mandate of the Commercial Code that, when the issue of commercial
reasonableness of collateral disposition is raised, “the secured party has the
burden of establishing that the collection, enforcement, disposition, or
acceptance [of the collateral] was conducted in accordance with this chapter.”
(Com. Code, § 9626, subd. (a)(2)6; see § 9610, subd. (b) [“Every aspect of a
disposition of collateral, including the method, manner, time, place, and other
terms, must be commercially reasonable.”].)
Appellants acknowledge that the trial court stated that the Bank, “ ‘as
the secured creditor bears the initial burden to establish that liquidation of
assets occurred in a commercially reasonable manner.’ ” They complain,
however, that the court “focuse[d] almost exclusively on Defendants’
Opposition’s alleged shortcomings rather than citing to evidence which might
confirm [the Bank] met [its] initial burden. . . . [T]he trial court never
identified [the Bank’s] admissible evidence which proved that it acted in a
commercially reasonable manner.” As we have discussed, however, the trial
court’s order was not deficient in this regard.
Evidentiary Rulings
6 All further statutory references are to the Commercial Code unless
otherwise indicated.
12
Defendants next claim the trial court erred in overruling their
objections to several portions of the declaration of Jack Kane, submitted by
the Bank in support of its motion for summary adjudication.
A trial court generally enjoys wide discretion in ruling on evidentiary
objections. Accordingly, most appellate courts review a trial court’s
evidentiary rulings for abuse of discretion even in the context of a summary
judgment motion. (See Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 852 [“According to the weight of authority, appellate
courts ‘review the trial court’s evidentiary rulings on summary judgment for
abuse of discretion.’ ” Quoting DiCola v. White Brothers Performance
Products, Inc. (2008) 158 Cal.App.4th 666, 679.]; Carnes v. Superior Court
(2005) 126 Cal.App.4th 688, 694 [“Although it is often said that an appellate
court reviews a summary judgment motion ‘de novo,’ the weight of authority
holds that an appellate court reviews a court’s final rulings on evidentiary
objections by applying an abuse of discretion standard.”]; see generally
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2021) ¶ 8.168, p. 8-148 [“Pursuant to the weight of authority, appellate
courts review a trial court’s rulings on evidentiary objections in summary
judgment proceedings for abuse of discretion.”].)
Nevertheless, “[t]o determine if a court abused its discretion, we must
consider ‘the legal principles and policies that should have guided the court’s
actions.’ ” (Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773. For example, a court’s discretion to exclude
expert testimony “is not unlimited” where it implicates a party’s ability to
present its case. (Ibid.) “Rather, it must be exercised within the confines of
the applicable legal principles.” (Ibid.) Accordingly, one Court of Appeal
13
recently examined de novo a “Sanchez”7 challenge to the admissibility of
expert testimony in the summary judgment context, concluding the trial
court improperly excluded the declaration testimony of one proffered expert
but properly excluded that of three other proffered experts. (Strobel v.
Johnson & Johnson (2021) 70 Cal.App.5th 796, 800, 816, 824–825, 827–828.)
While appellants interposed hearsay objections to Kane’s testimony in the
trial court, they did not couch these as Sanchez objections. Nor have they
cited to Sanchez in their briefing on appeal.
Turning to Kane’s declaration, he averred that he was the “Managing
Director & Team Lead in the Corporate & U.S. Commercial Special Accounts
Management Unit” of the Bank (we will refer to Kane and his team as the
“asset management team”) and personally managed the Bank’s relationship
with appellants and the Bank’s liquidation of the dealership assets.
Appellants interposed four objections to Kane’s declaration. The trial
court sustained one and overruled the other three. Appellants challenge two
of these rulings, specifically to objections 2 and 4.
Objection No. 2
Appellants’ second objection included an objection to the following
statement by Kane: “ ‘[The Bank] negotiated a deal on substantially similar
terms that a dealer would have been able to negotiate under the California
Vehicle Code with respect to the Infiniti, Volkswagen, and Hyundai
manufacturers, with each such manufacturer repurchasing their respective
vehicles at the full financed amounts, minus nominal fees and offsets.’ ”
Appellants contend this was an “improper expert witness opinion,” as Kane
“offered no evidence as to an educational background or professional
experience that would qualify him to render a legal opinion on whether
7 People v. Sanchez (2016) 63 Cal.4th 665.
14
certain vehicles were subject to the California Vehicle Code’s repurchase
requirements of manufacturers in connection with the termination of an
auto-dealer franchise.”
We first observe this was a peculiar objection for appellants to make.
As we shall discuss in more detail, appellants’ principal argument as to why
the Bank’s disposition of the new Mitsubishi vehicles was commercially
unreasonable was, and remains, that the Bank too quickly liquidated the
vehicles through auctions, rather than waiting until the dealership franchise
was terminated some nine months later, at which point Mitsubishi assertedly
would have been statutorily obligated under the Vehicle Code to repurchase
the new inventory at, appellants maintain, a much higher price than the
price the cars fetched at auction. In other words, appellants, themselves, felt
free to assert that the new vehicle inventory was subject to statutory
manufacture repurchase, yet, nevertheless, maintained Kane, who was the
Bank’s team lead for liquidation of the dealership vehicle assets, did not have
the qualifications to make such a statement.
In any case, the trial court did not abuse its discretion in overruling
appellants’ objection to Kane’s statement. Appellants, themselves, submitted
portions of Kane’s deposition evidencing that he was aware of the Vehicle
Code repurchase provisions and was also familiar with the repurchase
agreements with Infiniti, Volkswagen, and Hyundai for their respective new
vehicles. Moreover, in his declaration, Kane stated he had personal
knowledge of the matters set forth in his declaration, and that after the court
entered a stipulation between the Bank and the dealerships authorizing the
Bank to take possession of and dispose of the new vehicle collateral securing
the floor financing, the Bank commenced negotiations with the
manufacturers and secured, before those franchises were terminated,
15
repurchase agreements with Infiniti, Volkswagen, and Hyundai substantially
similar to what is contemplated under the Vehicle Code on termination of a
franchise. In short, Kane had ample basis to make the challenged statement.
Appellants’ second objection also included an objection to the italicized
language in the following statement: “ ‘As a result of the Dealership
Defendants’ pending eviction and Mitsubishi’s refusal to repurchase their
eligible vehicles, the Mitsubishi vehicles and the remaining new vehicles that
were not eligible for repurchase by their respective manufacturers were
transported offsite.’ ” All appellants say in their opening brief with respect to
this italicized phrase is that they “objected to the statement” “as lacking
foundation and speculative, an improper legal conclusion, and hearsay, to the
extent Mr. Kane was being told what new vehicles were not eligible for
repurchase by their respective manufacturers.” They offer no discussion or
argument as to why the trial court purportedly erred in not sustaining their
objection and have therefore waived the issue. (See Orange County Water
Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 360
[“ ‘ “ ‘When an appellant fails to raise a point, or asserts it but fails to support
it with reasoned argument and citations to authority, we treat the point as
waived.’ ” ’ ” Quoting Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.].)
In any case, as we shall explain, the objected-to phrase is irrelevant to
the instant appeal, as appellants’ commercial unreasonableness argument as
to the Bank with respect to new vehicles concerns only its disposition of the
new Mitsubishi vehicles, not any other new vehicles.
Objection No. 4
In their fourth objection, appellants objected to the following statement
by Kane: “ ‘[The Bank] fully performed under the IFSA and the other Loan
16
Documents and extended financing to the Dealership Defendants.’ ”
Appellants contend this statement was “both improper expert opinion and a
legal conclusion,” and Kane “provided no basis upon which to [so] opine.”8
Kane stated in his declaration that he personally reviewed and was
familiar with all the relevant loan documentation and the records reflecting
the status of the loans. He therefore had ample basis for stating the Bank
had, in accordance with the loan documentation, made the floor loans.
In any case, this objected-to statement is also immaterial to the instant
appeal—it was undisputed the Bank extended the financing and appellants
were in default. Rather, the only issues that were litigated were whether the
Bank’s disposition of the vehicles securing the loans was commercially
reasonable and the amount of the deficiency judgment. Accordingly, the
court’s ruling on the objection is of no consequence at this point.
Commercial Reasonableness (New Vehicles)
While appellants make several general assertions that “the record
shows [the Bank] did not sell collateral in the usual manner, nor in any
recognized market therefor,” the only specific argument they make and
develop in their opening brief pertains to the new Mitsubishi vehicles.
In this regard, our Commercial Code provides:
Section 9610
“(a) After default, a secured party may sell, lease, license, or otherwise
dispose of any or all of the collateral in its present condition or
following any commercially reasonable preparation or processing.
8 In the trial court, appellants also raised a hearsay objection.
However, in their opening brief, other than stating they made such an
objection in the trial court, they make no argument as to this ground and
have therefore waived it. (See United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 153 (United Grand) [argument forfeited where
appellant failed to support points “with cogent argument, legal authority or
specific citations to the record”].)
17
“(b) Every aspect of a disposition of collateral, including the method,
manner, time, place, and other terms, must be commercially
reasonable. If commercially reasonable, a secured party may dispose of
collateral by public or private proceedings, by one or more contracts, as
a unit or in parcels, and at any time and place and on any terms.
“(c) A secured party may purchase collateral at either of the following:
“(1) At a public disposition.
“(2) At a private disposition only if the collateral is of a kind that is
customarily sold on a recognized market or the subject of widely
distributed standard price quotations.” (§ 9610, subds. (a), (b), (c)(1)–
(2).)
Section 9626
“(a) In an action arising from a transaction, other than a consumer
transaction, in which the amount of a deficiency or surplus is in issue,
the following rules apply:
“(1) A secured party need not prove compliance with the provisions of
this chapter relating to collection, enforcement, disposition, or
acceptance unless the debtor or a secondary obligor places the secured
party’s compliance in issue.
“(2) If the secured party’s compliance is placed in issue, the secured
party has the burden of establishing that the collection, enforcement,
disposition, or acceptance was conducted in accordance with this
chapter.
“(3) Except as otherwise provided in Section 9628, if a secured party
fails to prove that the collection, enforcement, disposition, or
acceptance was conducted in accordance with the provisions of this
chapter relating to collection, enforcement, disposition, or acceptance,
the liability of a debtor or a secondary obligor for a deficiency is limited
to an amount by which the sum of the secured obligation, expenses, and
attorney’s fees exceeds the greater of either of the following:
18
“(A) The proceeds of the collection, enforcement, disposition, or
acceptance.
“(B) The amount of proceeds that would have been realized had the
noncomplying secured party proceeded in accordance with the
provisions of this chapter relating to collection, enforcement,
disposition, or acceptance.” (§ 9626, subd. (a)(1)–(3)(A) & (B).)
Section 9627
“(a) The fact that a greater amount could have been obtained by a
collection, enforcement, disposition, or acceptance at a different time or
in a different method from that selected by the secured party is not of
itself sufficient to preclude the secured party from establishing that the
collection, enforcement, disposition, or acceptance was made in a
commercially reasonable manner.
“(b) A disposition of collateral is made in a commercially reasonable
manner if the disposition satisfies any of the following conditions:
“(1) It is made in the usual manner on any recognized market.
“(2) It is made at the price current in any recognized market at the time
of the disposition.
“(3) It is made otherwise in conformity with reasonable commercial
practices among dealers in the type of property that was the subject of
the disposition.
“(c) A collection, enforcement, disposition, or acceptance is
commercially reasonable if it has been approved in or by any of the
following:
“(1) In a judicial proceeding.
“(2) By a bona fide creditors’ committee.
“(3) By a representative of creditors.
“(4) By an assignee for the benefit of creditors.
19
“(d) Approval under subdivision (c) need not be obtained, and lack of
approval does not mean that the collection, enforcement, disposition, or
acceptance is not commercially reasonable.” (§ 9627.)
Ultimately, “[t]he inquiry whether a sale was commercially reasonable
under section 9504, subdivision (3), including whether it was adequately
publicized, is intensively factual and ‘the answer depends on all of the
circumstances existing at the time of the sale.’ (Clark Equipment Co. v.
Mastelotto, Inc. [(1978)] 87 Cal.App.3d 88, 96.) A reviewing court must not
disturb a trial court’s factual findings or conclusion on this question unless no
substantial evidence supports them. (Peery v. Superior Court (1981)
29 Cal.3d 837, 845.[9])” (Ford & Vlahos v. ITT Commercial Finance Corp.
(1994) 8 Cal.4th 1220, 1235.)
This does not mean that summary adjudication or summary judgment
is inherently precluded. Where the material facts are undisputed and no
reasonable finder of fact could conclude other than that the challenged
disposition of collateral was commercially reasonable, summary adjudication
or judgment is proper. (See Bank of America, N.A. v. Sea-Ya Enterprises,
LLC (D. Del. 2012) 872 F.Supp.2d 359, 366–367 [applying California law and
granting summary judgment for bank on issue of commercial
reasonableness].)
Appellants’ claim that the Bank failed to establish that its disposition
of the new Mitsubishi vehicles was commercially reasonable, boils down to
their assertion that the Bank should not have disposed of the vehicles by
auction when it did, but should have waited to dispose of the vehicles until
the Mitsubishi franchise was terminated, at which point, the manufacturer
9 Superseded by statute on other grounds as stated in Amalgamated
Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1013–1015.
20
would have been statutorily required under Vehicle Code section 11713.13 to
repurchase the vehicles for amounts, according to appellants, far in excess of
those received at auction.10
We first address the Bank’s assertion that Vehicle Code section
11713.13 is irrelevant to this case because it sets forth the duties of a vehicle
manufacturer to a franchisee on the termination of a dealer franchise and
does not set forth any duties of a secured creditor. Rather, the relevant
rights and obligations of a secured creditor pertaining to the disposition of
collateral are set forth in the Commercial Code. While the Bank is correct as
to whom the Vehicle Code and Commercial Code duties pertain, this does not
respond to appellants’ basic argument—that had the Bank waited to dispose
of the new Mitsubishi vehicles until the dealer franchise was terminated,
Mitsubishi would then have been statutorily required to repurchase the cars,
resulting in, according to appellants, significantly more proceeds than were
yielded by auction.
We therefore turn to the evidence in the record as to the commercial
reasonableness of the Bank’s selling the new Mitsubishis through Manheim
Auctions, rather than waiting until the termination of the dealer franchise,
triggering Mitsubishi’s statutory duty to repurchase the new vehicles.
Appellants insist commercial unreasonableness is self-evident by virtue
of the fact the auction sales yielded amounts far below the dealer’s costs for
the new vehicles and, according to appellants, far below what Mitsubishi
10 Although the parties have to some extent viewed the commercial
reasonableness issue as two-fold—(1) challenging the sales by auction and (2)
the timing of the dispositions—appellants’ basic assertion is that the Bank
should have waited to dispose of the inventory until the dealer franchise was
terminated and then forced Mitsubishi to comply with its statutory duty to
repurchase the new car inventory.
21
would have been required to pay on repurchase on termination of the
franchise. There is, however, much more to the story than appellants’ highly
selective rendition.
By March 2018, appellants were in default on their obligations to the
Bank. The parties subsequently negotiated and entered into two, successive
forbearance agreements, the first in March and the second in August. When
appellants remained in default, the Bank filed suit in early November for
breach of the financing agreements and to recover its damages and secure a
deficiency judgment after disposal of the secured assets.
In late November, the court entered a stipulation between the Bank
and the dealerships, including the Mitsubishi dealership, authorizing the
Bank to take possession of, market, and dispose of some of the collateral
vehicles, including the new Mitsubishi vehicles.
By that time, the Mitsubishi dealership was, in addition to being in
default on the loans, in default on its lease and facing eviction from the
premises. Indeed, in mid-November, the dealership had been closed, leaving
the Bank to contend with 124 new Mitsubishi vehicles that could not remain
on the abandoned, and soon to be seized, premises.
The Bank’s asset management team had begun working with all the
auto manufacturers associated with appellants’ various dealerships to ensure
orderly disposition of the secured collateral, and the Bank successfully
negotiated new-vehicle repurchasing agreements with Infiniti, Volkswagen,
and Hyundai whereby the manufacturers agreed to repurchase their vehicles
“at the full financed amounts, minus nominal fees and offsets.” The Bank
considered these terms “substantially similar” to what the dealerships,
themselves, would have been able to negotiate pursuant to Vehicle Code
section 11713.13 on termination of the franchises.
22
However, despite three months of effort to negotiate a similar
repurchase by Mitsubishi, the manufacturer refused to discuss such a deal
with the Bank and took the position it had no repurchase obligation until its
franchise was actually terminated.
Mitsubishi’s intransigence is not all that surprising, given that
appellants responded to the company’s November 28 notice terminating the
franchise by filing a protest with the Motor Vehicle Board—a move
guaranteed to drag out the process even though appellants had abandoned
the dealership premises. It also meant Mitsubishi did not, at that point, have
any obligation under the Vehicle Code to repurchase the new Mitsubishi
vehicles. (See Guarantee Forklift, Inc. v. Capacity of Texas, Inc. (2017)
11 Cal.App.5th 1066, 1077 [when a protest is filed, “ ‘the franchisor may not
terminate or refuse to continue until the board makes its findings,’ ” quoting
Veh. Code, § 3060, subd. (a)(2), italics omitted].)
And, indeed, the protest proceeding lumbered along and did not
conclude until August 15, 2019, and that disposition date only occurred
because Mitsubishi filed a motion to dismiss the protest on the ground the
undisputed facts showed good cause to terminate the franchise.
In granting Mitsubishi’s motion, the administrative law judge (ALJ)
explained that upholding appellants’ protest would be “a meaningless act.”
“[O]rdering that the contractual relationship continue to exist will not result
in the re-opening of the dealership that has been closed for an excessive
amount of time nor will requiring [Mitsubishi] to maintain its contractual
relationship with [the dealership] change the fact [the dealership] has no
assets that would be lost by termination of the franchise. [The dealership]
has no location for the facility from which to operate the dealership, has lost
its inventory, and has lost all of its other assets to the claims of its
23
creditors.[11] In addition, [the dealership] no longer ha[d] a ‘valid’
occupational license from the Department of Motor Vehicles and is insolvent.”
Further, sustaining the protest would “leave the parties and the consuming
public where they have been since November 2018– with no Mitsubishi sales
being made, with no service available to the public, no warranty obligations
of [the dealership] being performed on customers’ vehicles, and no benefits to
the public that would accrue if the dealership had been operational.” The
ALJ, thus, found there was good cause to terminate the franchise and
proceeding further with the protest “would be an exercise in futility.”
In the meantime, after Mitsubishi refused to talk to the Bank about a
negotiated repurchase agreement, and with the dealership being evicted from
the premises, the Bank, in March 2019, sent the new Mitsubishi vehicles to
the Manheim vehicle auction. Manheim “is a large (if not the largest)
wholesale automobile auction company in the United States.” It “regularly
deals in automobile auctions, and provided notice of the auction and
marketed it to commercial auto dealers, including, specifically, Mitsubishi
dealers.”12 At the first auction, 114 of the new vehicles sold. It took several
additional auctions to dispose of the remaining 10 vehicles.
The Bank acknowledged new vehicle inventory is generally not
disposed of through auction—because in most liquidation situations, the
manufacture is either statutorily obligated to repurchase the new vehicles or
11 By this point, the Bank had long since been authorized to take
possession of and dispose of the dealership’s new vehicle inventory. It had
also been authorized by stipulation to take possession of and dispose of the
used car inventory, and a receiver had, also by stipulation, been appointed to
liquidate, and had liquidated, all the other assets.
12Appellants do not take issue with either the notice given by the
Bank or with the publicity provided by Manheim.
24
agrees to a pre-franchise termination repurchase as did Infiniti, Volkswagen,
and Hyundai. However, Mitsubishi’s statutory obligation had not been
triggered (and remained on hold until appellants’ protest was disposed of),
and Mitsubishi refused to negotiate a pre-termination repurchase.
Several months after the liquidation of the new vehicles, the court
entered a stipulation between the Bank and the dealerships, including the
Mitsubishi dealership, authorizing the Bank to take possession of, market,
and dispose of the used car collateral. The Bank then liquidated the used
cars through Manheim.
The following month, the court entered a third stipulation between the
Bank and the dealerships appointing a receiver and authorizing the receiver
to monetize substantially all of the remaining dealership property. The
receiver, like the Bank, “used Manheim to liquidate any remaining vehicles
in accordance with the same procedures” that had been applicable to the
Bank.
We agree with the trial court that this evidence, which was undisputed,
was sufficient to carry the Bank’s burden of establishing that its disposition
of the new Mitsubishi vehicles was commercially reasonable. In focusing
solely on an asserted significant disparity in the proceeds generated through
auction sales and what Mitsubishi assertedly would have paid many months
later to repurchase the vehicles when the franchise was finally terminated,
appellants ignore the statutory directive that the “fact that a greater amount
could have been obtained by a collection, enforcement, disposition, or
acceptance at a different time or in a different method from that selected by
the secured party is not of itself sufficient to preclude the secured party from
establishing that the collection, enforcement, disposition, or acceptance was
made in a commercially reasonable manner.” (§ 9627, subd. (a).)
25
Moreover, appellants did not present any evidence contradicting the
Bank’s showing. They did not, for example, submit a single declaration that
discussed what could reasonably have been expected in connection with a
repurchase of the new Mitsubishi vehicles after the protest was concluded
and the franchise was terminated (by which time the new vehicles would
have been a year old). Instead, they presented, for 15 of the new vehicles, a
comparison of the dealer’s invoices—the amount for which they claimed the
manufacturer would have had to repurchase the vehicles (less any dealer
incentives)—and the amount netted at the auction. This comparison,
according to appellants, showed an average “loss” of $9,917.08 per vehicle,
which multiplied by 124 showed a supposed disparity between repurchase
and auction of $1.229 million.
Not only is this comparison based on one assumption after another that
is unsupported by any evidence, but such a myopic, hind-sight analysis
disregards all the other circumstances that existed at the time despite the
fact commercial reasonableness “ ‘depends on all the circumstances existing
at the time of the sale.’ ” (Jack in the Box, Inc. v. Mehta (N.D. Cal. 2014)
2014 WL 2069530 at p. *2.) As we have recited, given the imminent eviction
of the dealership from its premises and Mitsubishi’s refusal to negotiate a
pre-franchise termination repurchase agreement, the Bank had little choice
but to liquidate the cars immediately and reasonably did so through a well-
established vehicle auction house.
While appellants repeatedly complain that the new vehicles were sent
to Manheim, pointing to Kane’s deposition testimony that it is unusual for
new car inventory to be disposed of by auction, they do not suggest that, at
the time, any other manner of disposition was feasible, but assert instead,
that the Bank should have waited to dispose of these vehicles until the dealer
26
franchise was terminated, when Mitsubishi would have been statutorily
required to repurchase them. Accordingly, as appellants have crafted their
argument, the problem with the new car dispositions was not use of
Manheim, per se, but rather, in failing to wait to dispose of the vehicles
through repurchase.13 However, for all the reasons we have discussed, that
argument does not carry the day.
Commercial Reasonableness (Used Vehicles)
In the trial court, appellants also challenged the commercial
reasonableness of the Bank’s disposition of the used vehicle inventory on the
ground no “reserve” floor price was placed on the auction price of these
vehicles. While appellants made mention of this argument in one paragraph
of their “Statement of Facts” in their opening brief on appeal, they did not
thereafter raise, let alone develop, this point in the “Argument” section of
their opening brief. Indeed, they made no mention of the used vehicles at all
in the argument section of their opening brief.
In its respondent’s brief, the Bank apparently assumed appellants’ one-
paragraph procedural recitation was an argument, to which it responded in
similarly cursory terms, pointing out appellants claimed “without support or
authority” that the Bank should have utilized a reserve.
13 It therefore makes little difference in this case that courts that have
found auto auction sales commercially reasonable have generally done so in
the context of used vehicles. (See, e.g., In re Estate of Sagmiller (N.D. 2000)
615 N.W.2d 567, 570 [stating “[c]ourts in several jurisdictions, under many
contexts, have held dealers-only auctions may constitute commercially
reasonable sales”].) As Kane explained, manufacturers generally want to
avoid the auctioning of new vehicles and therefore enter into repurchase
agreements to avoid any negative impact on the market value of the new
vehicles. But, here, Mitsubishi took a different stance and refused to
repurchase the new car inventory, allowing it to go to auction.
27
In their closing brief, appellants for the first time advanced the
argument that the disposition of the used vehicles was commercially
unreasonable for failure to use reserve pricing. It is well-established,
however, that arguments advanced for the first time in a reply brief may be
disregarded, and we do so here. (Reichardt v. Hoffman (1997) 52 Cal.App.4th
754, 766 [court refused to consider issues raised in reply brief that were not
raised in opening brief].)
In any case, appellants provide no authority in support of their
assertion that “utilization of reserve prices is clearly relevant to whether the
used vehicles were sold in a commercially reasonable manner,” and have
therefore forfeited the issue. (See United Grand, supra, 36 Cal.App.5th at
p. 153.) Moreover, given the entirety of the circumstances at the time, which
we have discussed above, the Bank’s disposition of the used vehicles through
a major vehicle auction house was imminently commercially reasonable.
Other “Damages” Issues
Appellants advance several other arguments pertaining to the
“amount” of damages. None has merit.
They first claim the trial court failed to address their argument that
the Bank unnecessarily maintained insurance on the vehicles until they were
sold and title was transferred, since the franchisors were required to bear the
risk of loss and secure insurance for the vehicles while in transit for
inspection. Appellants point out that a secured creditor is entitled only to
“reasonable expenses of collection and enforcement” of its security interest.
(§ 9608, subd. (a)(1)(A).) They complain that “[w]ith estimated costs
exceeding one million dollars and Respondent’s person most knowledgeable
[Jack Kane] unable to identify what the insurance costs were, what was paid
to have a third party-manage the vehicle inventory, or a breakdown of either
28
figure, the commercial reasonability of these cost[s] was clearly put at issue
and demonstrates that the property was not disposed of in a commercially
reasonable manner.”
We are perplexed by this argument, given the court’s order,
incorporating its minute order, granting the Bank’s motion for summary
adjudication. The order states that “[n]o material dispute of fact exists as to
the principal balance” owed on the loans and there is no dispute as to the “net
recoveries from liquidation of [the] collateral” as set for in Kane’s declaration.
The order further states that “[the Bank’s] moving papers also seek [an]
award of $781,361.17 in professional fees as damages. However, other than
the declaration of [counsel] establishing attorneys’ fees and expenses (which
is not referenced in the Separate Statement and does not seem to be
included), [the Bank] provides no evidentiary support for these expenses.
Defendants dispute expenses for insurance, monitors, security. (Defendants’
Opposition to [Bank’s] SS 8, 12.) As the moving party, [the Bank] bears the
burden to present admissible evidence to show these damages exist and has
not met its burden.”
Thus, it appears that, on summary adjudication, the Bank was not
recompensed for insurance costs and therefore the principal amount and
interest set forth in the court’s summary adjudication order does not reflect
this or any of the other expenses of handling the collateral.
The next proceedings that took place in the trial court concerned the
preparation and entry of final judgments (i.e., the deficiency judgments) for
the creditors, and, as we have recited, the court held two hearings in this
regard. At the first hearing, appellants’ counsel told the trial court, “I think
we’ve narrowed the scope of [the remaining issues] as to [the Bank]. It is
only—my client is unsatisfied with one issue, and that has to do with the
29
receiver’s fees, $172,000 is a substantial fee. [¶] And I’ve asked [counsel for
the receiver] to produce invoices for that. He’s produced a good amount of
documents, but he has not produced those underlying invoices. I did
represent to [counsel] that we will take the Duane Morris fees, his firm’s fees,
off the table for purposes of dispute, and we stand by that. [¶] So for [the
Bank], that is the only issue that’s remaining with respect to the receiver
issues.” Counsel for the receiver responded the documentation would be
provided.
As far as we can tell, there was no discussion at this hearing, or at the
second hearing, of expenses for insurance, monitors, security. Rather, the
court instructed the parties to make every effort to work out a stipulation
with specific numbers so it could prepare and enter final judgments for the
creditors, including the Bank, and discharge the receiver. As we have
discussed, the parties were able to provide the court with the stipulations it
desired. And, as we have further discussed, appellants cannot appeal with
respect to any matters embraced by the post-summary adjudication
proceedings and the stipulated judgment for the Bank that ensued.
Thus, it appears from the record that the Bank was not awarded the
insurance costs appellants purport to challenge on appeal, or if they were,
they were resolved by negotiation and the stipulated judgment.
Appellants secondly claim that there is a triable issue as to whether the
Bank adequately “mitigated” its damages. The trial court refused to consider
this argument since it was not raised in their written opposition to the
Bank’s summary adjudication motion, and appellants pressed the issue for
the first time at the hearing. Although the court spoke in terms of mitigation
not having been raised in the “pleadings,” it is clear it was referring to the
papers filed in opposition to the Bank’s motion.
30
Appellants point out that in their answers (i.e., their “pleadings”) they
did raise failure to mitigate as an affirmative defense. Basically, these
defenses were one-sentence, generic assertions, the only elaboration being in
Hassanally’s answer that the Bank “failed to exercise reasonable care and
diligence to avoid loss and to minimize damages.” Hassanally also raised as
an affirmative defense that the Bank “failed to act in a commercially
reasonable manner in the handling and disposition of collateral.”
While appellants may have separately pled generic “failure to mitigate”
and “commercial unreasonableness” defenses, in the trial court, they
seemingly treated the two as fungible, as reflected by the fact they never
mentioned failure to mitigate in their opposition to the Bank’s motion for
summary adjudication. Likewise, at the hearing on the Bank’s motion, their
counsel provided no explanation, nor asked to make an offer of proof for
purposes of appeal, as to how the Bank’s asserted failure to mitigate differed
from its asserted failure to dispose of the collateral in a commercially
reasonable manner.
Similarly, in their opening brief, while appellants maintain the trial
court erred in failing to address mitigation, they do not explain how their
claim that the Bank failed to mitigate its damages differs in substance from
their claim that the Bank failed to dispose of the collateral in a commercially
reasonable manner. For example, they quote from Apex LLC v. Sharing
World, Inc. (2012) 206 Cal.App.4th 999, 1018, to the effect that section 2706
“ ‘requires that all resales be conducted in a commercially reasonable manner
and that sellers act in good faith.’ ” And they quote from American National
Bank & Trust Co. v. Weyerhaeuser Co. (7th Cir. 1982) 692 F.2d 455, 468, to
the effect that “by imposing the requirements of good faith and commercial
reasonableness, the law does in fact require reasonable attempts to mitigate
31
damages.” They then refer back to the sections of their brief discussing
commercial reasonableness.
In short, while appellants complain they were not allowed to present
argument on failure to mitigate, they provide no hint as to what additional
point(s) they would have argued, had the trial court entertained such an
argument. Accordingly, they have not carried their burden to show any
reversible error by the trial court.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
32
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Devine, J.*
*Judge of the Contra Costa Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A162824, BMO Harris Bank v. Hassanally et al
33