Filed 10/20/15 Loomis Land, Inc. v. Amick CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




LOOMIS LAND, INC.,                                                                        C077386

                   Plaintiff, Cross-defendant                             (Super. Ct. No. SCV-0026470)
                   and Respondent,

         v.

ROBERT AMICK,

                   Defendant and Appellant;

CALIFORNIA INVESTMENT GROUP, LLC,

                   Defendant, Cross-complainant
                   and Appellant;

MARIOARA BUCURENCIU,

                   Cross-defendant and Respondent.



         Defendants Robert Amick and California Investment Group, LLC (CIG), appeal
from a judgment following summary adjudications granted in favor of plaintiffs Loomis


                                                             1
Land, Inc. (Loomis), and Marioara Bucurenciu involving a deed of trust securing
repayment of a loan. Loomis, owned by Bucurenciu, served as guarantor for a loan
provided by CIG, owned by Amick, to Albert Thomas, who is not a party to this appeal. 1
When Thomas failed to repay the loan, CIG initiated foreclosure proceedings on the deed
of trust recorded against Loomis’s property. Loomis sued, alleging inter alia causes of
action for cancellation of the deed of trust and for quiet title. CIG cross-complained,
alleging a cause of action for breach of contract against Loomis and Bucurenciu, as
Loomis’s alter ego. Summary adjudication was awarded to Loomis as to all three causes
of action.2

       On appeal, Amick and CIG contend the trial court erred as a matter of law in
granting summary adjudication as to these three causes of action because (1) the lack of
consideration paid to Loomis is not fatal because it was acting as guarantor and (2)
execution by CIG of a reconveyance of another deed of trust securing the loan did not
release CIG’s lien interest in Loomis’s real property. We conclude the trial court erred in
granting summary adjudication because triable issues of material fact remain as to
whether (1) the lack of consideration was fatal, (2) execution of the deed of reconveyance
released CIG’s interest in Loomis’s property, (3) the surety was exonerated by execution




1 Thomas, though not a moving or responding party in the motions for summary
adjudication on review in the instant appeal, filed declarations and response to Loomis’s
separate statements of undisputed material facts. Loomis objected to these responses as
improper pursuant to Code of Civil Procedure section 437c and California Rules of
Court, rule 3.1350, arguing Thomas was “not a party” to the motions. We do not decide
the merits of these objections because we deem Thomas’s responses and declarations
unnecessary to the resolution of the appeal.
2 Following the award of the summary adjudication, the parties stipulated to dismissal
of some counts and to entry of judgment on all remaining counts to facilitate appellate
review of the issues raised in the motions for summary adjudication. (Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 401-402.) It is from that judgment that this appeal was taken.


                                             2
of the deed of reconveyance, and (4) Loomis is an alter ego of Bucurenciu. Therefore,
we will reverse the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       CIG is a professional hard money lender. In 2007, Thomas approached CIG
(owned by Amick) for a loan in the amount of $200,000, ostensibly to be secured by real
property located in Long Beach and owned by a trust for which Thomas was trustee.
CIG denied Thomas’s request because it found the Long Beach property, already
encumbered by an existing first deed of trust, to be insufficient security for the loan.
Thomas then approached Loomis (owned by Bucurenciu) to provide him with additional
security for the loan. Loomis consented to act as guarantor for Thomas’s loan from CIG,
with its real property located in Granite Bay to be used as additional security.

       On August 29, 2007, a loan of $200,000 from CIG to Thomas was funded, with
Thomas receiving all proceeds of the loan. On that same day, a note was executed by
both Loomis and Thomas that promised to repay to CIG the borrowed $200,000 plus
interest accrued at a rate of 12 percent per annum by October 30, 2007, at which time the
entire sum would be due. The note was secured by two separate deeds of trust executed
that same day, one recorded against the Long Beach property and one recorded against
Loomis’s property. The deed of trust recorded against the Long Beach property refers to
Loomis’s property as “affect[ed] other property.” The deed of trust recorded against
Loomis’s property refers to the Long Beach property as “affect[ed] additional property”
and includes a legal description of the Long Beach property as “collateral property.”
Both deeds of trust provide that the recitals included in a reconveyance of the title held
pursuant to that deed of trust would be “conclusive proof of the truthfulness thereof.”
Neither the note nor the deeds of trust apportion the liability for the obligation among the
two deeds of trust.



                                              3
       Eventually, Amick became aware that the holder of the first deed of trust on the
Long Beach property was initiating foreclosure proceedings. Amick understood that if
the first deed of trust was foreclosed, CIG’s second deed of trust secured by the property
would be extinguished. Thereafter, an escrow for the sale of the Long Beach property to
another buyer was opened. In conjunction with that escrow, CIG prepared a demand for
repayment of the note from the escrow proceeds. Also in conjunction with the Long
Beach escrow, Thomas provided CIG with junior deeds of trust on other parcels of real
property as substitute collateral, and CIG executed a document entitled “Substitution of
Trustee and Deed of Full Reconveyance,” which purportedly reconveys CIG’s interest in
the Long Beach property. Amick signed the reconveyance on behalf of CIG with
instructions that when the $200,000 loan was paid, the reconveyance could be recorded.
When escrow closed, there were insufficient funds to repay the loan; the reconveyance
was nonetheless recorded.

       The reconveyance further provides that “whereas the indebtedness secured, to be
paid by this Deed of Trust [recorded against the Long Beach property] above mentioned
has been fully paid and/or satisfied,” CIG “grant[s] and reconvey[s] unto the parties
entitled thereto without warranty, all the estate and interest derived to the said Trustee
[escrow company] under said Deed of Trust [recorded against the Long Beach property]
in the lands therein described, situated in the City of Long Beach, County of Los
Angeles, State of California. Reference being hereby made specifically to said Deed of
Trust and the record thereof for a particular description of said lands.” That
reconveyance was not recorded until April 24, 2008.

       In April 2009, Thomas stopped making payments on the loan. CIG demanded
payment from Loomis and, thereafter, Loomis and Bucurenciu’s daughter, ostensibly on
behalf of Loomis, paid CIG $12,000 in loan payments. In December 2009, Loomis




                                              4
ceased making payments and CIG initiated nonjudicial foreclosure proceedings against
Loomis’s property.

       The trial court granted summary adjudication as to Loomis’s cause of action for
cancellation of the deed of trust, finding defendants failed to raise a triable issue of
material fact by failing to dispute that Loomis received no consideration. The trial court
granted summary adjudication as to Loomis’s cause of action for quiet title, finding
Loomis had shown that it received no consideration and that the reconveyance
acknowledged the underlying obligation had been satisfied, and that CIG had failed to
raise a triable issue of material fact. Finally, the trial court awarded Loomis summary
adjudication as to CIG’s cause of action for breach of contract, finding Loomis received
no consideration, Bucurenciu did not sign any documents in her individual capacity, the
reconveyance acknowledged the underlying obligation was satisfied, and that CIG had
failed to sufficiently dispute any of these material facts.

                                        DISCUSSION

       Whether summary adjudication was properly awarded as to Loomis for all three
causes of action, i.e., cancellation of the deed of trust, quiet title, and breach of contract,
turns on the same material facts and legal issues: (1) did Loomis receive consideration in
exchange for the use of its real property as security and is the failure of that consideration
fatal to the enforceability of its agreement to provide security? (2) did execution of the
reconveyance acknowledge satisfaction of the underlying debt so as to extinguish the
validity of the deeds of trust securing that debt? and (3) did execution of the
reconveyance exonerate the suretyship by altering the borrower’s underlying obligation
without notice to the surety?

       We conclude the trial court improperly awarded summary adjudication as to
Loomis because (1) the lack of consideration was not fatal as Loomis was acting as
guarantor; (2) CIG raised a triable issue of material fact as to whether it acknowledged

                                               5
satisfaction of the debt, despite execution of the reconveyance containing that language;
and (3) CIG raised a triable issue of material fact regarding whether the reconveyance
materially altered the borrower’s underlying obligation. Further, as to Bucurenciu, we
conclude the trial court erred when it awarded her summary adjudication based on the
finding that she had not executed any contractual documents in her individual capacity
because CIG raised a triable issue of material fact as to whether Loomis was her alter
ego.

                                   I. Standard of Review

        “A motion for summary adjudication shall be granted only if it completely
disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of
duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A moving plaintiff has met his or her
burden of showing there is no defense to a cause of action if that party has proved each
element of the cause of action entitling the party to judgment on that cause of action.
(Id., subd. (p)(1).) A moving cross-defendant has met his or her burden of showing that a
cause of action has no merit by establishing that one or more elements of a cause of
action cannot be established or that there is a complete defense to that cause of action.
(Id., subd. (p)(2).) Once the moving party has met this burden, the burden shifts to the
nonmoving party to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto. (Id., subd. (p)(1), (2).)

       “We independently review an order granting summary adjudication. [Citation.]
In determining whether there is a triable issue of material fact, we consider all the
evidence set forth by the parties except that to which objections have been made and
properly sustained. [Citations.] ‘[W]e strictly construe the moving party’s evidence and
liberally construe the opposing party’s evidence.’ ” (Snatchko v. Westfield LLC (2010)
187 Cal.App.4th 469, 476.) “[I]f a plaintiff who would bear the burden of proof by a
preponderance of evidence at trial moves for summary judgment, he must present


                                               6
evidence that would require a reasonable trier of fact to find any underlying material fact
more likely than not. By contrast, if a defendant moves for summary judgment against
such a plaintiff, he may present evidence that would require such a trier of fact not to find
any underlying material fact more likely than not.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 845.)

                                    II. Consideration

       Amick and CIG contend the trial court erroneously concluded that because
Loomis did not receive independent consideration for acting as guarantor of the loan, the
guaranty agreement was unenforceable. Loomis and Bucurenciu argue that the deed of
trust should be cancelled because the note secured by the deed of trust labels Loomis as
the borrower, and there was no consideration provided to Loomis in support of that
obligation. We conclude the trial court erred in finding the lack of consideration
provided to Loomis was relevant to the question of whether the deed of trust recorded
against Loomis’s property was effective.

       As a preliminary matter, to the extent Loomis and Bucurenciu argue that Loomis
was the borrower and not the guarantor, we disregard such arguments, and to the extent
the trial court relied on that argument in granting summary adjudication, the trial court
erred. Loomis alleged in its first amended verified complaint that it was acting as
guarantor and that the reference to it as the borrower in the note and deed of trust was
fraudulent.3 These factual allegations are judicial admissions and Loomis was thereby


3 Specifically, Loomis alleges all parties “knew that [Loomis] was not borrowing
anything and was only acting to provide additional security on agreed terms as a
LIMITED GUARANTOR for THOMAS who was the Principal both receiving the
money from the loan and agreeing to repay the $200,000 loan[.] Defendants . . . prepared
the Straight Note intentionally and fraudulently reversing the roles of LOOMIS and
THOMAS. The Straight Note dated August 29, 2009, for the $200,000 loan fraudulently
lists LOOMIS as the borrower promising to pay Defendant[s] [CIG] and AMICK in 60
days, and THOMAS as the Guarantor. . . . At the time [Loomis] signed the Straight

                                             7
precluded from contradicting those allegations in the summary adjudication proceedings
and here. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746-747; see
Dang v. Smith (2010) 190 Cal.App.4th 646, 657 [“statements in a pleading are always
admissible against the pleader” and “a pleaded fact is conclusively deemed true as against
the pleader”].) Therefore, we continue our analysis based on the understanding that
Loomis acted as guarantor in the transaction with Thomas and CIG.

       Thus, the issue is whether the fact that Loomis, as guarantor, did not receive
consideration renders the guaranty agreement unenforceable, thereby warranting
cancellation of CIG’s deed of trust against Loomis’s real property and extinguishing
CIG’s lien interest in that property.

       A guarantor “is one who promises to answer for the debt, default, or miscarriage
of another, or hypothecates property as security therefor.” (Civ. Code, § 2787.) “Where
a suretyship obligation is entered into at the same time with the original obligation, or
with the acceptance of the latter by the creditor, and forms with that obligation a part of
the consideration to him, no other consideration need exist. In all other cases there must
be a consideration distinct from that of the original obligation.” (Civ. Code, § 2792.)
Indeed, “[w]here . . . the guaranty and principal obligation form one instrument and are
entered into at the same time, consideration for the principal obligation also forms
consideration for the guaranty. [Citations.] That no consideration flowed directly to the
guarantor is irrelevant and it is no defense to the guarantor. [Citations.] Neither does it
matter from whom the consideration flowed.” (Niederer v. Ferreira (1987)
189 Cal.App.3d 1485, 1504.)


Note, the Note did not state that Loomis Land was the borrower who received $200,000.”
Loomis further alleges that “[r]egardless of appellation [in the loan documents],
THOMAS was the PRINCIPAL and LOOMIS was the LIMITED GUARANTOR. The
$200,000 Good Faith Estimate dated August 29, 2007, signed by both [Bucurenciu] and
[Thomas], identifies [Thomas] as a borrower and recipient of loan funds.”


                                              8
       Here, it was undisputed that Thomas received consideration for the principal
obligation, and Loomis’s guaranty obligation was entered into in the same instrument as
the principal obligation, i.e., the note. Therefore, whether Loomis received any
consideration for its promise to act as guarantor for Thomas’s debt is irrelevant and
immaterial. Accordingly, it was error for the trial court to award any relief on the
cancellation of deed of trust, quiet title, or breach of contract causes of action based on a
lack of consideration received by Loomis.

                               III. Effect of Reconveyance

       Amick and CIG contend the trial court erroneously concluded the reconveyance of
the deed of trust recorded against the Long Beach property simultaneously extinguished
the deed of trust recorded against Loomis’s property by acknowledging the underlying
debt was satisfied because it was merely a substitution of collateral and did not alter
Thomas’s debt or Loomis’s surety obligation. Loomis argues execution of the
reconveyance extinguished the deed of trust recorded against the Granite Bay property
because the deed of reconveyance acknowledges satisfaction of the underlying debt and
exonerated the surety. We conclude the trial court erroneously awarded summary
adjudication because CIG established a triable issue of material fact whether execution of
the deed of reconveyance acknowledged satisfaction of the underlying debt and whether
the surety’s position was materially altered without the consent of Loomis.
                           A. Acknowledgment of Satisfaction
       A deed of trust is essentially a security instrument, executed for the purpose of
securing a promissory note, and permitting a lender to reach the real property asset if the
note is not paid. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1235.)
Once the underlying obligation is satisfied, the deed of trust is automatically extinguished
by operation of law. (Ibid.) The trustor under the deed of trust is then automatically




                                              9
revested with title and is entitled to a reconveyance, which has the legal effect of clearing
the title of record. (Snider v. Basinger (1976) 61 Cal.App.3d 819, 823.)

       Loomis contends that when CIG executed the deed of reconveyance as to the deed
of trust recorded against the Long Beach property, which includes language indicating
that the underlying obligation was satisfied, the deed of trust recorded against Loomis’s
property was automatically extinguished. CIG contends it was error for the trial court to
award summary adjudication on this basis because CIG raised an issue as to whether the
obligation was in fact satisfied. We conclude CIG raised a triable issue of fact as to
whether the underlying obligation was satisfied; therefore it was error for the trial court to
award summary adjudication on that basis.

       A recital acknowledging satisfaction in a reconveyance is prima facie evidence the
indebtedness had been satisfied. (Woods Leasing Co. v. Funcheon (1933) 134 Cal.App.
111, 118.) In addition, Loomis presented as an allegedly undisputed material fact that
“CIG knew that by reconveying the [Long Beach] property it was acknowledging that a
debt had been satisfied.” However, CIG disputed that fact, asserting: “CIG knew that
Thomas had defaulted on Thomas’[s] repayment of the loan principal on October 30,
2007. . . . CIG knew that . . . the holder of the first deed of trust threatened foreclosure on
the first deed of trust on the Long Beach [property]. . . . Amick understood that if the
first deed of trust foreclosed, his second deed of trust would be extinguished. . . . Amick
believed that it was a better position for CIG to have new collateral rather than have
CIG’s collateral [(the Long Beach property)] wiped out during a foreclosure.”

       Loomis contends this assertion does not create a dispute as to whether CIG knew
that “when a property is reconveyed, it indicates that loan has been satisfied.” The
evidence on which Loomis relies to support this assertion is Amick’s deposition
testimony that he generally understood that a property is reconveyed once a loan is
satisfied. However, there was clear evidence, which Loomis does not dispute, that the


                                              10
loan was not in fact satisfied. Rather, CIG presented evidence that Amick executed the
reconveyance at issue in this matter as part of an escrow for the sale of the Long Beach
property with the understanding (1) that foreclosure proceedings were already underway
that would wipe out his deed of trust recorded against the Long Beach property, (2) with
the expectation that the loan would be satisfied, and (3) with the additional inducement of
the additional or substitute collateral being provided. This evidence that the loan was not
satisfied, and that the reconveyance, which would not be effective until recorded, was
executed with the understanding the loan would be satisfied, creates a triable issue of
material fact to rebut the prima facie evidence Loomis relies on, i.e., the recital in the
reconveyance acknowledging satisfaction of the underlying obligation. Therefore, it was
error for the trial court to award summary adjudication on this basis.
                                  B. Exoneration of Surety
       On appeal CIG contends that because the execution of the reconveyance of the
deed of trust was part of a substitution of collateral, it did not have the effect of
exonerating Loomis’s surety. Loomis contends the surety was exonerated pursuant to
Civil Code section 2819. The parties provided only glancing arguments regarding
exoneration in supporting or opposing the motions for summary adjudication in the trial
court, and exoneration was not the basis for the trial court’s award of summary
adjudication. Nonetheless, because we review a trial court’s ruling de novo, if the
evidence presented in the record establishes that Loomis was entitled to summary
adjudication on that ground as a matter of law, we must affirm the trial court’s award of
summary adjudication. (See Coral Construction, Inc. v. City and County of San
Francisco (2010) 50 Cal.4th 315, 335-336; see also Flatt v. Superior Court (1994)
9 Cal.4th 275, 279.) We conclude Loomis was not entitled to summary adjudication on
that basis because there remains a triable issue of material fact regarding whether the
surety was exonerated by CIG’s execution of the reconveyance.



                                              11
       “A surety is exonerated, except so far as he or she may be indemnified by the
principal, if by any act of the creditor, without the consent of the surety the original
obligation of the principal is altered in any respect, or the remedies or rights of the
creditor against the principal, in respect thereto, in any way impaired or suspended.”
(Civ. Code, § 2819; but see Civ. Code, § 2822 [acceptance of partial satisfaction does not
exonerate the surety but reduces the surety’s obligation “in the same measure as that of
the principal”].) A surety will not be exonerated, however, where the surety consents to
the alteration, whether prior to, at the time of, or after the alteration. (Southern Cal. First
Nat. Bank v. Olsen (1974) 41 Cal.App.3d 234, 240.)

       Here, there is a triable issue of fact regarding whether Loomis consented to the
execution of the reconveyance. CIG did not inform Loomis that it was executing the
reconveyance. However, it presented evidence that it did not seek Loomis’s consent
“because Thomas appeared to be acting as the agent for [Loomis]. Thomas negotiated
the loan. Thomas represented that [Loomis] pledged a deed of trust on [Loomis’s
property] as collateral for the guaranty of the repayment of the loan. [Loomis] made no
effort to contact . . . Amick or [CIG] to recant on the representations made by Thomas.”
CIG also presented evidence that it “believed that Thomas informed or would inform
[Loomis] that there [were] insufficient funds to pay [CIG’s] loan and that there were
additional Thomas junior liens given to [CIG] and Amick for the extension of the loan
and to secure the payment of the loan. Thomas appeared to be the agent for [Loomis] and
had the responsibility to contact his principal about the loan.”

       Moreover, even if Thomas was not acting as Loomis’s agent, Loomis may still be
barred from claiming that execution of the reconveyance exonerated the surety if it later
ratified Thomas’s actions in encouraging and approving of the reconveyance. Arguably,
CIG may be able to show this based on Loomis’s continued payment of the note
following Thomas’s default. But, to establish implied ratification, CIG would have to


                                              12
show Loomis was aware of the reconveyance when it made those payments or that it
became aware of the reconveyance and failed to object to it within a reasonable time.
(See Gates v. Bank of America Nat’l Trust & Sav. Assoc. (1953) 120 Cal.App.2d 571,
575-576.) Here, the record is inadequate for us to make this determination. Thus, there
remain triable issues of material fact as to whether execution of the reconveyance
exonerated the surety.

                                   IV. Alter Ego Liability

       The trial court awarded summary adjudication as to Bucurenciu on CIG’s breach
of contract cause of action, finding Bucurenciu had not signed any contractual documents
in her individual capacity. Amick and CIG contend this was error because there
remained a triable issue of material fact as to whether Loomis was Bucurenciu’s alter
ego. We agree.

       “[T]o prevail in a cause of action against individual defendants based upon
disregard of the corporate form, the plaintiff must plead and prove such a unity of interest
and ownership that the separate personalities of the corporation and the individuals do not
exist, and that an inequity will result if the corporate entity is treated as the sole actor.”
(Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749; see Leek v. Cooper
(2011) 194 Cal.App.4th 399, 414-415 [to put alter ego theory at issue for purposes of
summary judgment motion, the operative complaint “must allege sufficient facts to show
a unity of interest and ownership, and an unjust result if the corporation is treated as the
sole actor”].)

       Where an alter ego theory is properly pleaded and proved, the shareholder of the
corporation becomes liable for the acts of the corporation. (See Leek v. Cooper, supra,
194 Cal.App.4th at p. 415.) Here, CIG alleged in its cross-complaint that Loomis is an
alter ego of Bucurenciu, that it has no separate checking or bank account, that it has no
meetings for its Board of Directors and no separate identity from Bucurenciu, that

                                               13
payments for Loomis’s expenses and taxes are made from Bucurenciu’s or her daughter’s
bank accounts, that Loomis keeps no corporate minutes or records, and that it routinely
disregards corporate formalities. CIG further alleged that “to not find [Loomis] and
[Bucurenciu] are alter egos and impose a judgment on one but not on the other would be
an injustice.” Therefore, CIG properly pleaded an alter ego theory of liability as to
Bucurenciu.

       In support of her motion for summary adjudication as to the breach of contract
cause of action, Bucurenciu asserted she was not a party to the note, guaranty, or deed of
trust in her individual capacity because she signed the document on behalf of Loomis.
CIG disputes these facts, presenting evidence that others made payments on behalf of
Loomis, which was treated as a debt by Loomis, leading to the reasonable conclusion that
Loomis is undercapitalized. Loomis responded that it is not undercapitalized because it
owned the property in Granite Bay free and clear. This represents a triable issue of
material fact whether Loomis was undercapitalized, and thus the alter ego of Bucurenciu.
Therefore, contrary to the trial court’s findings, it is not dispositive that Bucurenciu did
not sign the note or deed of trust in her individual capacity. And, as Loomis has not
shown as a matter of law that it had a complete defense to the breach of contract cause of
action, neither has Bucurenciu. Accordingly, it was error to award summary adjudication
as to Bucurenciu on that basis.

                                      DISPOSITION

       The judgment is reversed, and the case is remanded to the trial court with
instructions to vacate its order granting Loomis’s motion for summary adjudication and
its order granting Loomis’s and Bucurenciu’s motion for summary adjudication and to




                                              14
enter a new and different order denying the motions in their entirety. CIG and Amick are
awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)



                                                       BUTZ                    , J.



We concur:



      HULL                  , Acting P. J.



      DUARTE                , J.




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