Panther v. Park

• Decision Date: 16 July 2003
• Docket Number: D038066.
• Court: California Court of Appeals Court of Appeals
• Parties: JAMES B. PANTHER, Plaintiff and Appellant, v. WILLIAM K. PARK et al., Defendants and Respondents. FINANCIAL ASSET MANAGEMENT FOUNDATION, Cross-complainant and Appellant, v. JAMES B. PANTHER et al., Cross-defendants and Respondents.

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JAMES B. PANTHER, Plaintiff and Appellant, v. WILLIAM K. PARK et al., Defendants and Respondents.

FINANCIAL ASSET MANAGEMENT FOUNDATION, Cross-complainant and Appellant, v. JAMES B. PANTHER et al., Cross-defendants and Respondents.

D038066.

Court of Appeals of California, Fourth Appellate District, Division One.

Filed July 16, 2003.

APPEALS from a judgment of the Superior Court of San Diego County, E. Mac Amos, Jr., Judge. Super. Ct. No. 728248.

Modified and affirmed.

KREMER, P. J.

Plaintiff James B. Panther appeals various portions of the judgment entered on his first amended complaint against defendants Financial Asset Management Foundation (FAMF), William K. Park, Ken Tremblett and Grain Developments, LLC (Grain) for wrongful foreclosure and breach of the implied covenant of good faith and fair dealing (implied covenant). First, Panther contends the court erred in granting summary adjudication favoring Park, Tremblett and Grain on Panther's cause of action for wrongful foreclosure. Panther also contends the court erred in awarding attorney fees to Park, Tremblett and Grain. Further, Panther seeks additional recovery against FAMF on the portion of the judgment on the jury's special verdict favoring Panther on his claims for wrongful foreclosure and breach of the implied covenant. Specifically, Panther claims judicial error with respect to (1) the judgment's lack of an award of prejudgment interest against FAMF; (2) the date from which postjudgment interest was awarded against FAMF; (3) and the asserted omission from the judgment of the amount of damages the jury found Panther suffered as a result of FAMF's breach of the implied covenant. We modify the judgment to include an award to Panther of prejudgment interest in the amount of $ 321,351 and then affirm, as modified, the portions of the judgment favoring Panther on his first amended complaint.

Cross-complainant FAMF appeals the portion of the judgment on the jury's special verdict favoring cross-defendant Panther on FAMF's second amended cross-complaint's causes of action for intentional misrepresentation and negligent misrepresentation. FAMF contends the court reversibly erred in granting Panther's motion in limine to exclude evidence assertedly relevant to the primary issues of FAMF's second amended cross-complaint. We affirm the portion of the judgment favoring Panther on FAMF's second amended cross-complaint.

This litigation arises out of two separate business transactions involving the parties. Panther's appeal concerns a real estate development financing transaction that formed the basis of Panther's first amended complaint. FAMF's appeal relates to a financing transaction for the servicing of poorly performing credit card portfolios that formed the basis of FAMF's second amended cross-complaint. The trial of the actions was bifurcated.

I

PANTHER'S APPEAL

A Introduction

At issue in Panther's appeal are issues involving the financing of a contemplated development of Carlsbad real property (the Property) owned initially by Panther and Russell Grosse (Grosse).¹

Wanting to develop their Property, Panther/Grosse obtained funds from business trust FAMF in return for a promissory note favoring FAMF secured by the Property (the FAMF note). Eventually, Panther and FAMF's trustees agreed to a joint venture and created CanAm Developments, LLC (CanAm) to receive the Property. Panther and Grosse each received a 25 percent membership interest in CanAm. The remaining 50 percent ownership interest in CanAm was held by Grain, an entity created by FAMF's trustees to become a member of CanAm. As part of that transaction, Grain executed a promissory note to FAMF (the Grain note) secured by the membership interests in CanAm held by Grain and Panther/Grosse.²

Later, Park and Tremblett assumed management of FAMF and Grain. When Grain did not make interest payments to FAMF under the Grain note, FAMF noticed a default on the note. After FAMF gave Panther notice of its intent to sell his CanAm membership interest, Park and Tremblett began foreclosure proceedings on that interest.³ This lawsuit ensued.

Panther's first amended complaint, the pleading at issue on Panther's appeal, sought to state 12 causes of action against defendants FAMF, Park, Tremblett and Grain.⁴ In essence, Panther alleged the defendants conspired to eliminate Panther as a member of CanAm by wrongfully foreclosing on the encumbrance against Panther's 25 percent ownership interest in CanAm and appropriate that ownership interest to defendants' benefit. Panther also alleged defendants breached the implied covenant in CanAm's operating agreement, the Grain note, and the Security Agreement.

The superior court granted summary adjudication favoring Park, Tremblett and Grain on Panther's claim for wrongful foreclosure. Later, the jury returned a special verdict against FAMF on Panther's claims for wrongful foreclosure and breach of the implied covenant. FAMF has not appealed the portion of the judgment favoring Panther on those claims, but Panther has, seeking (1) additional recovery from FAMF, (2) entry of judgment against Park, (3) a new trial against Tremblett and Grain, and (4) reversal of the attorney fees awards to Park, Tremblett and Grain.

B Summary Adjudication Favoring Park, Tremblett and Grain

In granting summary adjudication favoring defendants Park, Tremblett and Grain (the moving defendants) on Panther's cause of action for damages for wrongful foreclosure, the superior court concluded that only secured parties could be liable for wrongful foreclosure under Commercial Code⁵ former section 9507, and it was undisputed that FAMF had been the only creditor secured by Panther's interest in CanAm.⁶ Panther contends the court erred in concluding he could not also sue other persons allegedly responsible for the wrongful foreclosure, to wit, the moving defendants. Hence, asserting Park was the person directing all of FAMF's actions in conducting the wrongful foreclosure, Panther seeks reversal of the portion of the judgment favoring Park and entry of an amended judgment favoring Panther against Park. Further, asserting the court erroneously precluded him from pursuing a verdict against Tremblett and Grain, Panther seeks reversal of the portion of the judgment favoring those defendants and remand for a new trial. However, as we shall explain, on this record Panther has not demonstrated any reversible error with respect to the summary adjudication favoring the moving defendants on Panther's claim for wrongful foreclosure.

Preliminarily, we note that in seeking reversal of the order granting summary adjudication favoring the moving defendants, Panther relies on the allegations of his first amended complaint and the evidence ultimately presented at trial bearing on the conduct of those defendants without citing or discussing any evidence submitted with respect to the defense summary adjudication motion. In determining the propriety of an order granting summary adjudication, we may only review the evidentiary matters that were presented to the superior court with respect to the summary adjudication motion. "It is well settled that `in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.''' (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962; accord, Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661; Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 790-791; Maxwell v. Colburn (1980) 105 Cal. App. 3d 180, 185, 163 Cal. Rptr. 912 ["summary judgment must be reviewed on the basis of the papers filed at the time the court considers the motion"]; Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal. App. 3d 621, 627, 157 Cal. Rptr. 248 ["trial court's decision must be reviewed on the basis of the papers filed at the time the court considered the motion, not in the light of documents filed subsequent to the trial court's resolution of the issue"]; Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal. App. 3d 959, 966 [where we observed that "the validity of a summary judgment is to be determined solely by the sufficiency of the affidavits which were before the court when the motion was heard, and this court will consider only the facts before the trial court at the time it ruled on the motion"].) "Under this well-established rule, we need not address" Panther's appellate contentions challenging the ruling granting summary adjudication. (Havstad, at p. 661.)

Further, since Panther's appellate contentions are not supported by citation to anything in the evidentiary record of the summary adjudication motion, we may disregard his claims of errors with respect to the motion. (Cal. Rules of Court,⁷ rule 14(a)(1)(C) [brief must "support any reference to a matter in the record by a citation to the record"]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [reviewing court is generally "' not required to make an independent, unassisted study of the record in search of error'"; counsel has duty to refer reviewing court to portion of record supporting appellant's appellate contentions]; Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal. App. 3d 1203, 1205, 277 Cal. Rptr. 401 [party has duty to support arguments in briefs "by appropriate reference to the record, which includes providing exact page citations"; "problem is especially acute" where appeal is taken from summary judgment]; Fox v. Erickson (1950) 99 Cal. App. 2d 740, 742, 222 P.2d 452 [appellate court "will not act as counsel for either party" or assume task of "initiating and prosecuting a search" of record for "purpose of discovering errors not pointed out" in briefs; counsel has duty to refer reviewing court to portion of...