Rubinstein v. Fakheri

Filed 5/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ARTURO RUBINSTEIN, B291116
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC630004)
v.
PARIS P. FAKHERI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael J. Raphael, Judge. Affirmed.
Lebedev, Michael & Helmi, Gennady L. Lebedev, Sam
Helmi and Genevieve Bourret-Roy for Defendant and Appellant.
Tesser | Grossman, Brian M. Grossman and Frank R.
Trechsel for Plaintiff and Respondent.
_________________________________
Paris P. Fakheri appeals from a judgment against him
following a court trial. We affirm.
The trial court found that respondent Arturo Rubinstein
loaned Fakheri $874,708.44, which Fakheri never repaid.
Fakheri does not dispute that he received the money, but he
argues that it came from entities controlled by Rubinstein rather
than from Rubinstein himself. Although those entities assigned
their interests in the loan to Rubinstein, the entities’ corporate
powers were suspended at the time of the assignments. Fakheri
therefore claims that Rubinstein did not have “standing” to sue.
The trial court found that Fakheri waived this defense
because he did not raise it until trial. That finding was within
the court’s discretion. Rubinstein stood in his entities’ shoes with
respect to the rights he could exercise by assignment. But the
issue is one of capacity to sue, rather than standing or
jurisdiction. The defense of lack of capacity is waived if not
asserted at the earliest opportunity. Fakheri failed to do so here.
Fakheri also argues that the trial court erred in finding for
Rubinstein on his common count claim for money lent because
Fakheri did not personally request the loan. Rather, Rubinstein
provided the money to Fakheri at the request of a mutual
business associate of his and Fakheri’s, Yoram Yehuda.
We reject the argument. The trial court properly concluded
that proof of an implied promise to repay was legally sufficient
for Rubinstein’s common count claim. The trial court’s finding
that Fakheri made such an implied promise is based on
substantial evidence. That evidence included Yehuda’s request
that Rubinstein loan the money to Fakheri; Fakheri’s receipt of
the money directly from Rubinstein after providing wiring
2
instructions to Yehuda; and the lack of any other reasonable
explanation for the transfer.
BACKGROUND
1. The Loan1
Rubinstein and Yehuda were friends and business
associates. Yehuda is a contractor. The two had invested
together in various real estate projects.
Rubinstein had heard of Fakheri through Yehuda from a
prior real estate transaction, but Rubinstein had not met him. In
November 2013, Yehuda asked Rubinstein to lend money to
Fakheri so that Fakheri could purchase a house from Yehuda.
The house was on Boris Drive in Encino (the Boris Property).
The arrangement that Rubinstein and Yehuda discussed was
that the money would be repaid, without interest, once Yehuda
had renovated the Boris Property and it had been sold.
Rubinstein agreed to the loan because of his close relationship
with Yehuda at the time.
Rubinstein provided the money to Fakheri through wire
transfers and checks from various sources. Fakheri provided his
account information for the wire transfers to Yehuda, who gave
that information to Rubinstein.
One payment of $383,532.28 was wired to Fakheri from
“Rick O’Hara & Associates” (O’Hara). A company that
Rubinstein owned, Lanark MK LLC (Lanark), borrowed that
money from O’Hara to provide to Fakheri. Yehuda told
1Consistent with the standard of review governing our
consideration of the evidence supporting the trial court’s decision,
we summarize the evidence in the light most favorable to
Rubinstein as the prevailing party. (See People v. Avila (2009) 46
Cal.4th 680, 701 (Avila).)
3
Rubinstein that Fakheri would make the payments to O’Hara on
the loan. Fakheri made one $100,000 payment. However,
Rubinstein repaid the rest of the amount due on the loan himself
after he and Yehuda had a falling out.
Another large payment of $471,863 was wired to Fakheri
from an account belonging to another entity that Rubinstein
owned, 19111 Wells Dr., LLC.2 Fakheri received the remainder
of the money for the loan in the form of checks from Wells made
out to him and signed by Rubinstein.
Fakheri purchased the Boris Property and Yehuda
renovated it. Fakheri sold the property in December 2014. After
the sale, Fakheri paid approximately $1.3 million to Yehuda.
Fakheri testified that he believed the money he received
from O’Hara to purchase the Boris Property was a loan that
Yehuda had arranged and that Fakheri was obligated to repay to
Yehuda. Fakheri further testified that the $471,863 he received
from Wells was the repayment of a loan that Fakheri had
previously made to Yehuda.
Other than the $100,000 that Fakheri repaid on the loan
from O’Hara, Fakheri did not repay anything to Rubinstein.
2 According to the reporter’s transcript, Rubinstein testified
that the wire came from “19111 West Drive, LLC.” This appears
to be a transcription error. Both parties describe the origin of
that transfer as 19111 Wells Dr., LLC (Wells), a company that
Rubinstein owned and managed. The wire transfer itself was
apparently introduced as an exhibit at trial, but neither party
included the exhibits in the appellate record or requested that the
trial court provide them to this court. (See Cal. Rules of Court,
rule 8.224(a)(1).) As the point is undisputed, we accept the
parties’ representation that the source of the transfer was Wells.
4
2. The Lawsuit
Rubinstein filed his complaint (Complaint) in this case
against Fakheri on August 9, 2016. The Complaint alleged one
common count claim for “money lent.”
Fakheri filed a general denial. The general denial asserted
the statute of limitations as an affirmative defense but not
standing or the lack of capacity to sue.
The parties tried Rubinstein’s common count claim to the
court on March 7 and 8, 2018. At trial, Rubinstein introduced
evidence that Lanark and Wells had assigned their claims
against Fakheri to Rubinstein.
Just before the conclusion of trial, Fakheri filed a request
for judicial notice of a document from the California Secretary of
State showing that the corporate powers of Lanark and Wells
were suspended. The trial court kept the defense case open
pending receipt of a certified copy of the document, which
Fakheri submitted several days later.
In his written closing argument, Fakheri claimed that
Rubinstein lacked “standing” to sue. Fakheri argued that the
money Fakheri received for the Boris Property transaction came
from Wells and Lanark, not Rubinstein, and that Rubinstein’s
claim therefore belonged to those entities. Fakheri argued that,
as an assignee of the corporate claims, Rubinstein was subject to
the same defenses as the corporate assignors. Fakheri claimed
that the corporate powers of Lanark and Wells, including the
right to file a lawsuit, were suspended at the time they assigned
their claims to Rubinstein, and that Rubinstein therefore also did
not have the right to sue.
On May 14, 2018, Rubinstein filed a request for judicial
notice of documents from the Secretary of State showing that, as
5
of April 25, 2018, both Lanark and Wells were again active and in
good standing.
On June 20, 2018, the trial court issued a written “Verdict
Following Court Trial.”3 The court first granted the requests for
judicial notice of both Fakheri and Rubinstein. The court
overruled Fakheri’s objection to the reopening of evidence for the
purpose of receiving Rubinstein’s documents from the Secretary
of State, observing that Fakheri’s “ ‘standing’ defense involving
the capacity of [Wells and Lanark] to assign their claims to
Rubinstein was not raised until trial.”
The trial court denied Fakheri’s standing argument on the
same ground. The court explained that “[s]tanding does not
appear among the 36 mainly-boilerplate affirmative defenses in
the Answer, so it is waived.” The court also found that
“Rubinstein in fact provided the loan money and his companies
were merely accounts he used to draw money from in the
transactions, so Rubinstein may properly recover personally.”
On the merits, the trial court found that Rubinstein
provided the $874,708.44 to Fakheri as a loan. The court also
found that the evidence showed an implied promise by Fakheri to
repay the loan. The court reasoned that “[i]n the basic situation
of an intermediary-arranged loan at issue here, the lendee will be
unjustly enriched (and the lender unjustly deprived of
repayment) if the Court does not enforce an implied promise to
repay.” The court concluded that such an implied promise was
3The court explained that “[n]either party requested a
statement of decision, but this Court’s practice is to explain the
essentials of any verdict it renders after a bench trial.”
6
all that was necessary to prove a common count claim for money
lent.
The court indirectly addressed Fakheri’s defense that he
thought the money came from Yehuda. The trial court explained
that an implied promise to repay might be inequitable if an
intermediary (such as Yehuda) communicated different loan
terms to the lender and to the recipient of the loan. However, the
court stated that it was “not convinced there is any inequity in
ordering repayment from Fakheri.” The court also concluded
that, “to the extent there might be” such inequity, it was mooted
by Fakheri’s testimony that Yehuda had agreed to indemnify
him.
The trial court found that Rubinstein had conceded “that
$100,000 of the $874,708.44 transferred as a loan was repaid.”
The trial court therefore awarded $774,708.44 to Rubinstein
along with prejudgment interest, for a total judgment of
$874,550.32.
DISCUSSION
1. Fakheri Forfeited His Defense that Rubinstein
Lacked Capacity to Sue
Fakheri claims that the trial court erred in finding that he
forfeited his defense concerning the suspension of Wells’s and
Lanark’s corporate powers. He argues that the defense concerns
Rubinstein’s standing to sue, which may be asserted at any time.
We independently review Fakheri’s legal argument that his
defense raised an issue of standing that could not be forfeited.
(See Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774
(Robbins) [question of law concerning the court’s jurisdiction over
a claim reviewed de novo].) We review for abuse of discretion the
trial court’s ruling that Fakheri did not timely raise the defense.
7
(Cal-Western Business Services, Inc. v. Corning Capital Group
(2013) 221 Cal.App.4th 304, 312 (Cal-Western).)
Fakheri’s argument that Rubinstein lacked standing to sue
is wrong. Even assuming that the claim Rubinstein asserted
belonged to Wells and Lanark rather than to Rubinstein
personally, he acquired the right to sue by virtue of the entities’
assignments of their claims.4
It is immaterial that the corporate powers of Lanark and
Wells were suspended at the time they made the assignments. A
contract made by a suspended corporation is not void, but is only
voidable “at the instance of any party to the contract other than
the taxpayer.” (Rev. & Tax. Code, § 23304.1, subd. (a).) A party
to the contract may exercise its right to declare a contract void
only by seeking that relief in a lawsuit, subject to the
requirement that the corporate taxpayer be allowed “a reasonable
opportunity to cure the voidability.” (Rev. & Tax. Code,
§ 23304.5.) As a nonparty to the assignments, Fakheri had no
right to challenge their validity. (Ibid.; Cal-Western, supra, 221
Cal.App.4th at p. 313.)5
4 In light of our disposition, we need not consider the trial
court’s alternative finding that the claim at issue belonged to
Rubinstein personally rather than to the entities that he owned
and managed.
5 Fakheri cites Yvanova v. New Century Mortgage Corp.
(2016) 62 Cal.4th 919 for the proposition that a borrower can
challenge an assignment to which he is not a party “when the
defect alleged would deprive the assignee of any legitimate
authority to act on the assignment.” That principle does not
apply here. In Yvanova, our Supreme Court held that the
8
Fakheri is correct that, as an assignee, Rubinstein was
subject to the same defenses that applied to the assignors prior to
notice of the assignments. (Cal-Western, supra, 221 Cal.App.4th
at pp. 310–312; Code Civ. Proc., § 368.) However, a suspension of
corporate powers only affects a corporation’s capacity to sue, not
its standing. A party that lacks standing lacks the right to seek
relief, which “ ‘goes to the existence of a cause of action.’ ” (Color-
Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 (Color-
Vue), quoting Parker v. Bowron (1953) 40 Cal.2d 344, 351.) In
contrast, the lack of capacity to sue is simply a legal disability
that “ ‘deprives a party of the right to come into court.’ ” (Color-
Vue, at p. 1604, quoting Parker, at p. 351.)
A defense based on a party’s lack of capacity to sue can be
forfeited. (Color-Vue, supra, 44 Cal.App.4th at p. 1604.)
Specifically, “[a] defense based on a suspended corporation’s lack
of capacity to sue ‘ “is a plea in abatement which is not favored in
law, is to be strictly construed and must be supported by facts
borrower on a home loan secured by a deed of trust has the right
to challenge an assignment of the deed of trust and the
underlying note by means of a wrongful foreclosure action when
the assignment is allegedly “void, and not merely voidable at the
behest of the parties of the assignment.” (Id. at p. 923, italics
added.) The court carefully distinguished between a transaction
that is void and one that is only voidable. The court explained
that “[w]hen an assignment is merely voidable, the power to
ratify or avoid the transaction lies solely with the parties to the
assignment; the transaction is not void unless and until one of
the parties takes steps to make it so.” (Id. at p. 936.) As
discussed above, an assignment by a suspended corporation is
merely voidable, not void.
9
warranting the abatement” at the time of the plea.’ ” (Cal-
Western, supra, 221 Cal.App.4th at p. 312, quoting Traub Co. v.
Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370.) Such a
defense “ ‘ “must be raised by the defendant at the earliest
opportunity or it is waived.” ’ ” (Cal-Western, at p. 312.)
In Cal-Western, the court concluded that the defendant was
excused from timely raising the defense based upon an exception
that applies in the “ ‘unusual circumstance where a corporation
announces that it does not intend to pay its delinquent taxes.’ ”
(Cal-Western, supra, 221 Cal.App.4th at p. 312, quoting Color-
Vue, supra, 44 Cal.App.4th at p. 1604.) That exception does not
apply here; in fact, Rubinstein actually restored his corporations
to good standing soon after Fakheri raised the defense.6
6 In in its recent opinion in Wanke, Industrial, Commercial,
Residential, Inc. v. AV Builder Corp. (2020) 45 Cal.App.5th 466(Wanke), Division One of the Fourth Appellate District observed
in a footnote that the defendant in that case did not waive the
defense of lack of capacity even though the defendant first raised
the defense in its trial brief. (Id. at p. 475, fn. 5.) The plaintiff in
that case was a judgment creditor that asserted a claim against a
third party to recover a debt that the third party owed to the
judgment debtor. (Id. at pp. 470–471.) The judgment debtor’s
corporate powers had been suspended, and the defendant argued
that the plaintiff therefore lacked the right to sue because its
right was derivative of the judgment debtor’s rights under
assignment principles. (Id. at p. 474.) The court concluded that
the defendant was not required to assert the defense of lack of
capacity in its answer, reasoning that the defense the defendant
asserted was not actually lack of capacity but rather “that
assignment principles prevent it from maintaining its suit.” (Id.
at p. 475, fn. 5.)
10
Fakheri did not raise a defense based upon the suspension
of the corporate powers of Wells and Lanark until the conclusion
of trial. Had he asserted the defense earlier, Rubinstein would
have had the opportunity to restore his corporations’ powers
earlier.
Fakheri argues that his failure to assert the defense before
trial was excused because Rubinstein alleged that he personally
provided the money that Fakheri received and only relied upon
the assignments at trial. But Rubinstein was not required to
The observation was dictum. The court actually held that
assignment principles did not apply to the plaintiff because the
plaintiff acquired its right to sue through a creditor’s suit statute
that did not require an assignment. (Wanke, supra, 45
Cal.App.5th at pp. 476–477; see Code Civ. Proc., § 708.280.) To
the extent that the footnote could be read to state a rule that a
defendant cannot forfeit a defense to an assignee’s claim that
exists only because of the corporate status of the assignor, we
respectfully disagree. That rule would be inconsistent with the
holding in Cal-Western. (See Cal-Western, supra, 221
Cal.App.4th at p. 313 [defendant failed to timely raise the
defense of lack of capacity in response to the complaint filed by
the assignee of a suspended corporation].) It would also be
inconsistent with the assignment principles underlying that
holding. An assignee “stands in the shoes” of the assignor for
purposes of the defense of lack of capacity. (Id. at pp. 310–311.)
We can see no reason why a defendant should be excused from
timely asserting such a defense to the claim of an assignee when
the defendant would have been required to assert the defense at
the earliest opportunity if the claim had been brought directly by
the assignor. Indeed, notice to the plaintiff of the defense is
arguably more important when the plaintiff is an assignee. An
assignee is less likely to be aware of the corporate status of an
assignor than the assignor itself.
11
anticipate defenses that Fakheri did not assert. Rubinstein’s
primary theory throughout the case was that he loaned the
money to Fakheri personally. In fact, the trial court accepted
that argument in its written decision. Fakheri raised as a
defense that Rubinstein’s claims actually belonged to Wells and
Lanark. In response to evidence that Wells and Lanark had
assigned any claims they might have had to Rubinstein, Fakheri
then raised the further defense that Wells and Lanark were
suspended. Fakheri’s delay in asserting his lack of capacity
defense was not excused by Rubinstein’s failure to allege facts
responding to an affirmative defense that Fakheri never pleaded.
Fakheri does not provide any other explanation for his
delay in asserting lack of capacity as a defense. He does not
claim that he was unaware that he received the money from
corporate accounts rather than from Rubinstein directly. Indeed,
he testified that he received the $471,000 wire transfer and a
check from Wells. Fakheri must also have been aware of the
assignments before trial, as they appeared on Rubinstein’s
exhibit list. Yet Fakheri did not move to amend his answer and
did not seek leave from the trial court to assert a lack of capacity
defense. The trial court did not abuse its discretion in ruling that
Fakheri’s defense was untimely.7
7 The trial court stated that Fakheri waived his “standing”
defense because he did not assert it in his answer. But the trial
court clearly intended to include the defense of lack of capacity
under that label. In granting Rubinstein’s posttrial request for
judicial notice of Wells’s and Lanark’s revival, the trial court
noted that Fakheri’s “ ‘standing’ defense involving the capacity of
these companies to assign their claims to Rubinstein was not
raised until trial.”
12
2. Fakheri Forfeited His Statute of Limitations
Defense
Fakheri argues that Rubinstein’s claim was barred by the
statute of limitations. Fakheri asserts that the statute of
limitations had run before Rubinstein revived the corporate
powers of Wells and Lanark and that a lawsuit filed by
Rubinstein as the assignee of those entities therefore did not toll
the statute.
Fakheri has forfeited that argument. Although Fakheri
asserted the statute of limitations as an affirmative defense in
his answer, he did not raise it at trial. We decline to consider an
argument that Fakheri did not make below. (See Pool v. City of
Oakland (1986) 42 Cal.3d 1051, 1065–1066; Curcio v. Svanevik
(1984) 155 Cal.App.3d 955, 960 [“The general rule is that a party
to an action may not for the first time on appeal change the
theory upon which the case was tried”].)8
8 At oral argument, Fakheri argued that he did not have an
opportunity to raise the statute of limitations defense at trial
because Rubinstein did not provide evidence that his
corporations’ powers had been revived until Rubinstein’s rebuttal
argument after trial. But there is no reason Fakheri could not
have raised the statute of limitations defense at the same time he
requested judicial notice of the fact that the corporate powers of
Lanark and Wells had been suspended. His statute of limitations
defense stems directly from the suspension; Fakheri’s argument
is that a lawsuit filed while a corporation lacks capacity to sue
does not toll the statute. In any event, Fakheri filed an objection
to Rubinstein’s May 14, 2018 request for judicial notice of the
Secretary of State documents showing that Lanark and Wells
had been restored to good standing. He could have raised the
13
Moreover, even on appeal Fakheri did not raise his statute
of limitations argument until his reply brief. For obvious reasons
of fairness, points raised for the first time in a reply brief will
ordinarily not be considered. (See Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 764–765.) Fakheri does not provide any
explanation of his decision to raise the statute of limitations
argument for the first time on reply. His failure to make the
argument in his opening brief provides another ground to
conclude that he has forfeited the argument.
3. The Trial Court Did Not Err in Finding an
Implied Promise that Fakheri Would Repay the
Loan
a. The trial court correctly ruled that
Rubinstein did not have to prove that
Fakheri personally requested the loan
Fakheri argues that a cause of action for money lent
requires proof that the recipient of a loan specifically requested
it. As this is a legal issue, we review it de novo. (See Robbins,
supra, 22 Cal.App.4th at p. 1774.)
A claim for “money lent” is one of the common counts.
(Moya v. Northrup (1970) 10 Cal.App.3d 276, 278–279 (Moya).)
The common counts arose from the action of assumpsit in the
common law. Such an action permitted a plaintiff to recover
money that, under the circumstances, the defendant should be
required to repay to avoid inequity. (Philpott v. Superior Court
(1934) 1 Cal.2d 512, 518–519 (Philpott); see 4 Witkin, Cal.
Procedure (5th ed. 2020) Pleading, § 553.)
statute of limitations defense in that objection or requested leave
for further briefing on the issue. He did not do so.
14
A common count claim broadly applies “wherever one
person has received money which belongs to another, and which
in ‘equity and good conscience,’ or in other words, in justice and
right, should be returned.” (Philpott, supra, 1 Cal.2d at p. 522,
quoting Page on Contracts, vol. 3, pp. 2510–2512, § 1473.) The
claim does not require privity of contract. Although the plaintiff’s
right to recover under a common count is based on equitable
principles, the claim is legal in nature. (Philpott, at p. 522, citing
Page on Contracts, at pp. 2510–2512.)
Fakheri does not cite any authority holding that the
common count claim for money lent requires an express request
for the loan. The cases that Fakheri cites support the conclusion
that a common count claim can be alleged for money paid out or
loaned at the defendant’s specific request. However, those cases
do not require such a request as an element of the claim.
For example, in Moya, the court merely observed that the
principles permitting conclusory pleading of common count
claims apply to “a common count for moneys paid, laid out,
expended, loaned or advanced to and for the defendant by the
plaintiff at the former’s instance and request.” (Moya, supra, 10
Cal.App.3d at p. 280.) The court did not hold that such a request
was necessary to state a claim. Indeed, in describing the nature
of a common count claim, the court emphasized the flexible
equitable principles underlying it: “The obligation to pay is
rested upon the equitable principle of preventing unjust
enrichment as applied to the particular circumstances which
have arisen between the parties.” (Id. at p. 281.)
Provident Mutual Building-Loan Association v. Davis
(1904) 143 Cal. 253 involved a cause of action based upon an
express contract rather than a common count. In the course of
15
distinguishing a common count case that the appellant had cited,
the court simply explained that the traditional common count
allegation that “moneys were paid out and expended at the
special instance and request of defendant” could “still be used to
state a cause of action under our practice.” (Id. at p. 256.)
In Kraner v. Halsey (1889) 82 Cal. 209, the court similarly
held that a complaint sufficiently stated a claim when it alleged
“the payment of a sum of money by plaintiff at the special
instance and request of defendant, for which money so paid
defendant is indebted to him, and that he (defendant) has failed
and refused to pay this money, or any part of it.” (Id. at p. 210.)
The court did not state or suggest that payment “at the special
instance and request of defendant” was a necessary part of the
claim.9
The traditional common count pleading language that these
courts cited is not the only means to state or prove a common
count claim. As Witkin explains, “[t]he typical form of a common
count claim for work and labor or services uses the language ‘at
defendant’s special instance and request.’ Where the obligation
is not founded on an express contract, the request is a basis for
implying a promise to pay. But it is not the only basis for an
implied promise and accordingly the omission of this language is
not a fatal defect.” (4 Witkin, Cal. Procedure (5th ed. 2020)
Pleading, § 558, italics added.)
9 Fakheri also cites Sanders v. Riviera Realty Co. (1951)
104 Cal.App.2d 70, but that case holds only that a person can be
the principal debtor on a loan even though the consideration
“passed to a third party.” (Id. at p. 75.) That principle has
nothing to do with this case. Rubinstein sued Fakheri, who
received the loan, not Yehuda, who arranged it.
16
Our Supreme Court’s decision in McFarland v. Holcomb
(1898) 123 Cal. 84 supports that conclusion. In that case, the
court held that a complaint adequately stated a claim against an
estate based on personal services (including nursing, boarding,
lodging, counseling, and advising) provided to the decedent over a
period of years. The court rejected the defendant’s argument that
the complaint failed to state a claim because it did not “aver that
the services of the plaintiff were rendered at the request of their
testator.” (Id. at p. 86.) The court explained that “it is not
requisite to aver either the consideration or the promise, when
they are implied as a legal conclusion from the facts which are
alleged. While counsel and advice are frequently given without
any request, and may be of no benefit to the party to whom they
are given, yet a complaint which shows that the plaintiff
rendered services to the defendant which were received by him in
person, and were presumptively at his request, and of which he
has enjoyed the benefit, states facts from which the liability of
the defendant therefore is presumed . . . . In the present case the
nursing of the decedent by the plaintiff, and his acceptance from
her of his board and lodging during the time specified, was a
consideration sufficient to support the promise for compensation
therefor which is implied in law, and to render him liable
therefor.” (Ibid.)
The same principle applies to a common count claim for
money lent. An inflexible rule requiring proof of a specific
request for a loan would be inconsistent with the broad equitable
principles underlying a common count claim.
For the same reasons, we agree with the trial court that
Rubinstein was not required to prove that Yehuda was acting as
Fakheri’s agent in requesting the loan from Rubinstein.
17
Rubinstein was not required to prove that Fakheri specifically
requested the loan, either personally or through an agent.10 Nor
was Rubinstein required to prove an express promise to repay the
loan. (See Brown v. Spencer (1912) 163 Cal. 589, 595 [evidence of
a promise by the plaintiffs to repay a loan received for the
purchase of property was not necessary, as the “loan of the money
would itself raise an implied promise, binding on them in law, to
repay it”].) It was sufficient for Rubinstein to prove that Fakheri
received the loan under circumstances showing an equitable
obligation to repay it. As discussed below, the evidence supports
the trial court’s finding that such circumstances existed in this
case.
b. The trial court’s finding that Fakheri
made an implied promise to repay the loan
is supported by substantial evidence
We review the trial court’s factual findings for substantial
evidence. Under that standard, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence supporting the trial court’s
decision. (Avila, supra, 46 Cal.4th at p. 701.) Substantial
evidence is evidence that is “ ‘reasonable, credible, and of solid
value.’ ” (Ibid., quoting People v. Lindberg (2008) 45 Cal.4th 1,
27.) We must presume in support of the judgment “ ‘the existence
of every fact the trier could reasonably deduce from the
evidence.’ ” (Avila, at p. 701, quoting People v. Kraft (2000) 23
Cal.4th 978, 1053.) Our task “begins and ends with the
10Nevertheless, as discussed below, the circumstances of
Yehuda’s request were relevant to show that Rubinstein
understood the source and purpose of the money.
18
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted,” which will
support the decision. (Bowers v. Bernards (1984) 150 Cal.App.3d
870, 873–874.)
The trial court found that Rubinstein paid the $874,708.44
to Fakheri as a loan. Ample evidence supports that finding.
Rubinstein testified that Yehuda requested that Rubinstein loan
the money to Fakheri, and Rubinstein agreed to do so.
Rubinstein and Yehuda specifically discussed that the purpose of
the loan was to renovate the Boris Property; that Fakheri would
make the payments due on the loan from O’Hara; and that the
entire principal amount of Rubinstein’s loan would be repaid once
the Boris Property was sold.
The evidence also supports the trial court’s finding that
Fakheri made an implied promise to repay the loan. As the trial
court reasonably concluded, one may fairly infer an implied
promise to repay a loan arranged by an intermediary if the
recipient knows that he or she is receiving a loan and
understands its terms.
There was sufficient evidence to conclude that Fakheri
understood he had received a loan from Rubinstein (or his
entities), despite Fakheri’s testimony that he thought the money
belonged to Yehuda.
First, the money did not come from Yehuda. It came by
means of wire transfers from O’Hara and Wells and checks
signed by Rubinstein.
Second, as discussed above, Rubinstein and Yehuda
specifically discussed the terms of the loan. Under the
deferential standard of review we apply to the evidence, we
accept Rubinstein’s testimony on this point. Yehuda told
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Rubinstein that Rubinstein was loaning money to Fakheri; it is
therefore reasonable to infer that Yehuda communicated the
same information to Fakheri. As the trial court found, “Yehuda’s
arranging for a loan that would be repaid supports an implied
promise by Fakheri to repay the loan.”
Third, other evidence supports the conclusion that Fakheri
understood he had received a loan from Rubinstein. Rubinstein
was copied on communications concerning the Boris Property
after Fakheri purchased it. Rubinstein’s ongoing interest in the
project would not have made sense if, as Fakheri testified, the
money for the purchase of the property came from Yehuda.
Fakheri also had no coherent explanation for the source of the
$471,000 he received from the Wells account. Fakheri testified
that the money was the repayment of a loan he had previously
made to Yehuda. However, when impeached with his prior
deposition testimony, he admitted that his prior loan to Yehuda
was for only about $150,000. Finally, there was evidence that
Fakheri and Yehuda had an ongoing personal and business
relationship, supporting the conclusion that Yehuda had reason
to inform Fakheri about the actual source of the money.
This evidence adequately supports the trial court’s finding
of an implied promise by Fakheri to repay the loan to Rubinstein
under the equitable principles governing Rubinstein’s common
count claim.
4. Fakheri’s Statute of Frauds Argument is
Meritless
In his opening brief, Fakheri argues that the statute of
frauds precludes any liability for the money he received from
O’Hara because Lanark, not Fakheri, was the borrower on the
loan from O’Hara. Fakheri relies on the statutory requirement
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that a “special promise to answer for the debt, default, or
miscarriage of another” must be in writing. (Civ. Code, § 1624,
subd. (a)(2).)
In his opposition brief, Rubinstein correctly points out that
the judgment the trial court awarded does not include any
amount based upon interest that Fakheri allegedly promised to
pay O’Hara on Lanark’s loan.11 Rather, the judgment awards
only the principle amount that Fakheri owes directly to
Rubinstein (either personally or by assignment from Lanark)
because of the loan that Fakheri received. That obligation does
not involve any promise to answer for the debt of another, and
the statute of frauds therefore does not apply.
11 Fakheri did not address the issue on reply.
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DISPOSITION
The judgment is affirmed. Rubinstein is entitled to his
costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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