Filed 3/27/13 Spyksma v. Sousamian CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


CHRISTINE SPYKSMA,

     Plaintiff and Respondent,                                         G046837

                 v.                                                    (Super. Ct. No. 30-2010-00430100)

TIMOTHY SOUSAMIAN,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thierry
Patrick Colaw, Judge. Affirmed.
                   Kenneth D. Sisco for Defendant and Appellant.
                   Greenbaum Law Group and Brooke A. Brandt for Plaintiff and Respondent.


                                          *                  *                  *
              Timothy Sousamian appeals from a judgment holding him liable to
Christine Spyksma under a “hold harmless” clause in the asset separation agreement
entered into between the parties. Sousamian contends Spyksma’s $45,000 payment to a
lender to obtain a release of her liability for a loan following Sousamian’s default was
“voluntary” and thus it did not trigger his obligation to indemnify her under the hold
harmless clause. We disagree and affirm the judgment.
              Sousamian errs by conflating the amount identified as past due in the
lender’s notice of default ($10,815.80) with the amount the lender claimed was owed as a
consequence of that default. According to the notice, the lender’s claim was for “all
sums secured []by” the deed of trust, which it had elected to “declare . . . immediately
due and payable” as a consequence of Sousamian’s default. It was that claim, amounting
to approximately $270,000, Spyksma was responding to when she negotiated her peace
with the lender. Her payment of $45,000 to achieve that peace cannot, therefore, be
considered “voluntary.”


                                          FACTS


              In March of 2008, Sousamian and Spyksma entered into an agreement to
divide their joint ownership of various assets and liabilities. Included among the assets
were a “motor home coach” (the coach) and “[a] lot at ‘Outdoor Resorts’ in Indio on
which the [c]oach is from time to time parked . . . .” (The coach lot.) The agreement
reflected the parties had jointly obtained one loan to purchase the coach and a separate
loan in the amount of $275,000 to purchase the coach lot. Spyksma agreed to convey her
interest in both the coach and the coach lot to Sousamian, and he in turn agreed to assume
exclusive responsibility for both loans. He further agreed to “hold [her] harmless from




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any claims from the lender on the coach loan, the lender on the coach lot loan, the
association associated with the coach lot, and other creditors associated with the coach,
the coach lot, or the coach lot loan.” (Capitalization omitted.)
              By 2010, Sousamian was experiencing significant financial difficulties. He
sold the coach, and attempted without success to sell the coach lot. He made his last
payment on the coach lot loan in June 2010. He did not inform Spyskma of his default,
however. Instead, in September 2010, Spyksma received notice from the lender that the
coach lot loan was in default.
              Specifically, the lender’s default notice stated that $10,815.80 was the
amount of “pastdue payments plus permitted costs and expenses,” on the loan as of
September 1, 2010, and that the amount “will increase until your account becomes
current.” The notice explained “you may have the legal right to bring your account in
good standing by paying all of your past due payments plus permitted costs and expenses
within the time permitted by law for reinstatement of your account,” but goes on to state
that the bank “has declared and does hereby declare all sums secured . . . [by the Deed of
Trust] immediately due and payable . . . .”
              After receiving that notice, Spyksma contacted Sousamian, who informed
her he had no intention of making further payments on the loan, and would allow the loan
to go into foreclosure without making any attempt to cure the default. Spyskma then
contacted the lender, explained the terms of her agreement with Sousamian, and inquired
whether it would be possible to release her from liability on the loan. The representative
of the lender informed her it would not agree to release her without consideration.
              After some negotiation, Spyksma agreed to pay the lender $45,000 in
exchange for its release of her liability on the coach lot loan and its agreement “not [to]
report any nonpublic information to credit reporting agencies pertaining to the [l]oan.”




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At the time of Spyskma’s agreement with the lender, the principal balance on the loan
was “$240,115.20, exclusive of interest, late fees and legal fees.”
              Spyksma demanded Sousamian send her the $45,000 to pay the lender, but
he refused. She thereafter paid the lender from her own funds and filed suit against him
to recoup that payment.
              After a trial at which both parties testified, the court ruled in favor of
Spyksma. The court found “[t]here are no bad people in this lawsuit,” and recognized
Sousamian “had financial difficulties that were not necessarily his fault, but they were the
reality of the situation. He could not make payments.” The court explicitly inferred from
the lender’s notices in evidence that “the entire [loan] amount is due and owing if you
default.” Spyksma, concerned about the effect on her credit rating, then “tried to buy her
piece [sic: ‘peace’] on this $270,000 debt. She bought it for $45,000. She incurred the
debt . . . and the claim because the primary payor, [Sousamian], didn’t pay, and [he] was
not able to honor the agreement that he had with her.” Although the court acknowledged
Sousamian might have made a different decision if he had been in Spyksma’s situation, it
reasoned “it was her call to make because she was left with the debt [after Sousamian]
walked away . . . . It is a claim. It does trigger the operable clause of the agreement.”


                                       DISCUSSION


              A “hold harmless” clause is a form of indemnity agreement. “The very
essence of an indemnity agreement is that one party hold the other harmless from losses
resulting from certain specified circumstances.” (Myers Building Industries, Ltd. v.
Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 973.) “[I]ndemnity refers to ‘the
obligation resting on one party to make good a loss or damage another party has




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incurred.’” (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal.4th 1151, 1157.)
              Sousamian’s appeal is primarily grounded on the assertion Spyksma’s
$45,000 payment to the lender qualified as voluntary, because it was made for the
purpose of protecting her own credit rating and not in response to the compulsion of an
existing “legal liability.” (Southern Cal. Gas Co. v. Ventura etc. Co. (1957) 150
Cal.App.2d 253, 257.) He claims that such a “voluntary” payment would not trigger his
obligation to indemnify Spyskma under the hold harmless clause. The assertion is flawed
both legally and factually.
              First, the prohibition against indemnity for “voluntary” payments is not as
plenary as Sousamian suggests. While “[a]s a general rule, an indemnity contract does
not cover losses for which the indemnitee is not liable to a third person or for which the
indemnitee improperly pays” (Peter Culley & Associates v. Superior Court (1992) 10
Cal.App.4th 1484, 1493), it is also true that “‘one acting in good faith in making payment
under a reasonable belief that it is necessary to his [her] protection is entitled to
indemnity or subrogation, even though it develops that he [she] in fact had no interest to
protect. [Citation.]’ [Citation.]” (Ibid., italics added.) Thus, even if it were ultimately
established that Spyskma was not liable on the coach loan, or that her potential liability
was more limited than she understood when she negotiated her settlement, indemnity
would still be appropriate as long as Spyksma acted reasonably and in good faith in doing
so. But Sousamian has made no attempt to establish that Spyksma’s settlement, even if
unnecessary to protect her bank account, was not based upon a reasonable belief that it
was necessary for her financial protection. Nor has he made any effort to portray her as
having acted in bad faith. He has consequently failed to demonstrate that indemnity was
legally inappropriate.
              And even if we agreed with Sousamian’s characterization of the law, his
argument would founder on the facts. His key factual assertion is that at the time


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Spyksma agreed to pay the $45,000, the only “claim made by the lender” was for
immediate payment of $10,815.80 – the amount of “arrears necessary to get the property
and loan out of default.” Based on that factual assertion, he argues Spyksma’s agreement
to pay an amount significantly in excess of that claim must be viewed as “voluntary.”
But the assertion is incorrect. As the trial court explicitly found, the lender’s notices
reflected its claim that, as a result of Sousamian’s default, the entire loan balance was
“due and owing . . . .”
              As Spyksma points out, Sousamian simply ignored that crucial factual
finding in his opening brief. Moreover, his belated effort to “dispute[]” the finding in his
reply brief is ineffective. Sousamian rests his effort on the notice of default dated
September 2, 2010, which he claims states that $10,815.80 was the amount “due and
payable” as of that date. It does not. What the notice states is that $10,815.80 is the
amount of “past due payments plus permitted costs and expenses,” as of September 1,
2010, and that the amount “will increase until your account becomes current.” The notice
then goes on to specify the bank “has declared and does hereby declare all sums
secured . . . [by the Deed of Trust] immediately due and payable . . . .” (Italics added.)
Thus, contrary to Sousamian’s contention, what this notice unequivocally establishes is
that the lender’s claim was for immediate payment of the entire loan balance.
              Moreover, the fact the lender might have agreed to accept a smaller
payment to cure the default and reinstate the loan is of no consequence. As between
these parties, Spyksma had no obligation to make the loan payments; the parties’
agreement had assigned that obligation to Sousamian alone. And curing the default
would have offered only a temporary reprieve in any event, since Sousamian expressly
informed Spyksma he had no intention of making any further loan payments. She was
entitled to rely on his statement and to proceed on the understanding she had only two




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options: (1) voluntarily cure his default and then continue making the monthly payments
until the end of the loan term; or (2) accept his default and negotiate a permanent
resolution of the bank’s claim for immediate payment of the entire loan amount. As we
have already noted, she owed him no obligation to do the former.
              Sousamian also suggests Spyksma’s payment of $45,000 should be
considered voluntary because her liability to the lender would necessarily have been
“extinguished” as part of the non-judicial foreclosure process ultimately utilized by the
lender in connection with the coach lot. But Sousamian’s assertion concerning the
ultimate disposition of the property is unsupported by any citation to the record and we
consequently disregard it. Besides, the manner in which the property was later disposed
of would not be determinative of Spyksma’s liability at the time she entered into her
settlement agreement with the lender and triggered Sousamian’s duty to indemnify. She
was clearly liable for the principal loan amount at that point, and the lender could have
chosen to enforce the debt in a judicial proceeding. In any event, the assertion reflects
confusion between the concepts of liability and collectability. While a non-judicial
foreclosure process does extinguish liens and prevent the lender from obtaining a
deficiency judgment (Code of Civ. Proc. § 580, subd.(d); Cadelrock Joint Venture, L.P. v.
Lobel (2012) 206 Cal.App.4th 1531), it does not automatically nullify the obligor’s
liability to pay the debt in accordance with the loan agreement. “Although the lender
may not obtain a deficiency judgment after a foreclosure by power of sale (Code Civ.
Proc., § 580, subd. (d)), the foreclosure does not extinguish the debt. The lender retains
other remedies for collection of the unpaid balance of the debt.” (Romo v. Stewart Title
of California (1995) 35 Cal.App.4th 1609, 1615, fn.5; Hatch v. Security-First Nat. Bank.
(1942) 19 Cal.2d 254, 258.)




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              Finally, even assuming the lender would never have made any attempt to
collect a deficiency from Spyksma following foreclosure on the coach lot, we nonetheless
reject Sousamian’s implication that her payment of $45,000 to the lender was excessive.
“The ultimate determination of whether or not indemnity should be allowed . . . is
generally a factual question” (Aetna Life & Cas. Co. v. Ford Motor Co. (1975) 50
Cal.App.3d 49, 53), and “even if the indemnitor is not bound by the amount of damages
arrived at as part of a settlement, that amount is presumptively valid and the burden shifts
to the indemnitor to show that a lesser amount should be awarded.” (Aero-Crete, Inc. v.
Superior Court (1993) 21 Cal.App.4th 203, 212.) In light of these principles, it is not
sufficient for Sousamian to simply assert that Spyksma’s $45,000 payment was excessive
as compared to the potential damage to which his default exposed her – which he
portrays as being confined to the perceived harm to her credit rating. Instead, Sousamian
was obligated to provide the court with evidence that it was. Then, on appeal, he must
persuade us that his evidence effectively precluded the trial from reaching a contrary
factual conclusion. “When a trial court has resolved a disputed factual issue, an appellate
court reviews the ruling according to the substantial evidence rule. . . . We look at the
evidence in support of the trial court’s finding, resolve all conflicts in favor of the
respondent and indulge in all legitimate and reasonable inferences to uphold the finding.”
(Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1290.) Here, although
Sousamian acknowledged at trial that his default on the coach lot loan could possibly
harm Spyksma’s credit rating, he apparently made no attempt to quantify the value of that
harm. And on appeal, he does not explain why the desire to avoid it could not have been
worth the $45,000 Spyksma paid. We consequently infer that it was.




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                                 DISPOSITION


           The judgment is affirmed. Spyksma is to recover her costs on appeal.




                                            RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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