Filed 5/17/13 Ameri v. JP Morgan Chase Bank CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



IRAJ AMERI,                                                         D060593

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2009-
                                                                    00103174-CU-BC-CTL)
JP MORGAN CHASE BANK, N.A.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Steven R.

Denton, Judge. Affirmed.



         Elizabeth E. Comeau and Philip L. Gagnon, Jr. for Plaintiff and Appellant.

         AlvaradoSmith, Theodore E. Bacon and Thierry R. Montoya for Defendant and

Respondent.



         Iraj Ameri obtained a residential construction loan from Washington Mutual Bank

(WMB). Subsequently, JP Morgan Chase Bank, N.A. (Chase) acquired Ameri's loan.
After Ameri defaulted on various provisions of the loan agreement, Chase instituted

foreclosure proceedings. Ameri sued Chase for breach of contract. As tried under his

third amended complaint, the lawsuit also included causes of action for breach of the

implied covenant of good faith and fair dealing, breach of the duty of commercial

reasonableness, wrongful foreclosure and financial elder abuse. Chase moved for nonsuit

following Ameri's presentation of evidence. The trial court granted the motion and

entered judgment in Chase's favor.

       Ameri appeals, challenging a number of the trial court's evidentiary rulings and

claiming he presented sufficient evidence to avoid a nonsuit. Ameri also asserts the court

erred by forcing him to abandon his cause of action for unjust enrichment. We affirm.

                       FACTUAL & PROCEDURAL HISTORY

       On August 30, 2007, Ameri entered into an agreement with WMB to obtain a

$3.42 million residential construction loan secured by a deed of trust recorded against the

property located at 460 Country Club Lane in Coronado. Under the loan agreement,

WMB agreed to advance monies to Ameri to finance the purchase of the property,

demolish the existing residence on the property and to construct a custom home on the

property within 12 months. The loan agreement provided for a scheduled completion

date of August 31, 2008. The loan agreement also included a "time is of the essence"

provision.

       Under the agreement, the construction loan would convert to a conventional loan

with amortization through regular monthly payments of principal and interest after the

residence was built. If the construction was not completed by August 31, 2008, or an

                                             2
extended date agreed to by WMB in writing, the bank could declare the construction loan

immediately due and payable. The loan agreement identified the failure to complete

construction before the scheduled completion date as a default. As long as any default

remained, the lender had no obligation to disburse funds under the loan agreement.

Among other things, Ameri agreed to keep the property "free and clear of any and all

liens other than the security interest(s) of Lender. . . ."

       After escrow closed, WMB began releasing construction funds to Ameri's general

contractor, which were used to obtain a demolition permit and hire a crew to demolish the

existing structure. The demolition was completed in a timely fashion.

       However, WMB stopped disbursing construction funds after it discovered a

competing deed of trust had been recorded on the property by the sellers because Ameri

had defaulted on a $45,000 promissory note.1 In February 2008, WMB placed Ameri's

construction loan in "workout" status, which effectively froze disbursement of funds until

the issue was resolved. In April 2008, WMB formally informed Ameri he was in default

of the construction loan agreement because he had agreed to keep the property free of

liens and had not done so. Further, WMB said it had no obligation to disburse funds as

long as any default existed. WMB told Ameri it would not disburse any further

construction funds until the sellers' lien was removed from the title on the property.



1       Ameri had signed the $45,000 promissory note and the deed of trust to the sellers
one day before he signed the WMB loan agreement. The sellers recorded the deed of
trust on September 4, 2007. In January 2008, the sellers filed a notice of default after
Ameri did not make payments due under the note. Ameri claimed he did not know the
sellers had recorded the deed of trust until he received the notice of default.
                                                3
       It took Ameri and his contractor several months to get the sellers of the property to

remove the lien. WMB agreed to disburse $15,600 to Ameri, through an architectural

budget change order, to pay the sellers a compromised amount of $15,000 to reconvey

the sellers' deed of trust to Ameri plus $600 in attorney fees.2 After the sellers were paid

in June 2008 and reconveyed the deed of trust to Ameri, WMB moved Ameri's loan from

"workout" to regular status.

       In July 2008, WMB informed Ameri that he was behind in his interest payments

under the construction loan. When the construction loan closed, an interest reserve

account in the amount of $159,030 had been set up to pay for the interest payments as

they became due.3 The reserve account had a remaining balance of $4,358.53, which

was insufficient to pay the $16,617.86 interest payment due on August 1. Ameri said he

did not make interest payments to cure the default because WMB did not assure him that

it would release the loan funds.

       Also in July 2008, Ameri asked WMB to extend the scheduled completion date on

the construction loan. In a July 28 letter, WMB said it would grant a three-month

extension to December 1, 2008, for a fee of $25,650. Ameri believed a three-month

extension would not be adequate, and he also questioned the proposed extension fee of

$25,650. Ameri did not accept WMB's three-month extension offer.



2      WMB agreed to this disbursement as a one-time exception to releasing funds
while the loan was in "workout" status.

3     The $159,030 figure was based on the 12-month term of the construction loan
agreement.
                                             4
       On August 8, 2008, Ameri and his contractor asked WMB to put $70,000 in the

interest reserve account, which they justified by pointing to construction plan changes

eliminating the planned basement garage and the pool/jacuzzi. These changes were

necessary because the City of Coronado would not approve a basement garage. On

August 13, WMB placed Ameri's loan in the "workout" category to consider that request

as well as the proposed change in the scope of the construction plan. WMB informed

Ameri that it needed to review the new building plans for purposes of obtaining a new

appraisal. Ameri told WMB he did not have money to pay for the new plans. On August

26, 2008, WMB made its second one-time exception to its "workout" policy and

disbursed $8,975 to pay for the new plans. (See fn. 2, ante.)

       On August 31, 2008, the construction loan expired. By this date, the only

improvement completed at 460 Country Club Lane was the demolition of the existing

structure. Ameri had not obtained a completed set of approved plans or building permits

for the construction of the residence.

       On September 25, 2008, WMB was closed by the Office of Thrift Supervision,

and the Federal Deposit Insurance Corporation (FDIC) was appointed the receiver. The

FDIC, acting as receiver, permitted Chase to acquire certain assets of WMB through a

purchase and assumption agreement (PAA). Pursuant to the PAA, which was dated

September 25, 2008, Chase purchased some of WMB's assets, including Ameri's

construction loan, and assumed the servicing responsibilities for Ameri's loan, which

continued to be in "workout" status.



                                            5
       In October 2008, Ameri contacted Christine Symanski, a Chase employee who

was assigned a fact-finding role regarding construction loans that were either delinquent

or going into foreclosure. Symanski's job was to obtain new information from borrowers

in this situation to determine whether Chase should continue with their loans or proceed

with foreclosure. Specifically, Symanski requested Ameri to submit his 2006 and 2007

personal and business tax returns and the two most recent months of asset information.

On November 17, 2008, Symanski e-mailed Ameri that the bank would "not move

forward with releasing funds for [the] construction loan until requested financial

information is provided and account [was] brought current."4

       On November 14, 2008, Chase sent Ameri a certified breach letter stating the

loan's maturity date had expired on September 1, 2008. The letter also noted that Ameri's

interest payments on the loan were four months past due. On November 25, 2008, Chase

instituted foreclosure proceedings. On December 18, 2008, Chase recorded a notice of

default and election to sell under the deed of trust.

       Also that month, Ameri's attorney demanded Chase withdraw its notice of default

and suggested the matter could be worked out if funds were released and the loan was

amended to a completion date of November 19, 2009. The attorney's letter also stated

Ameri would pay the accrued interest due on the loan out of his separate funds. The

attorney asserted: (1) the building permits could be obtained within 30 days; (2) time to

complete the construction would be approximately 10 months from permitting; (3) a


4      The appraisal for Ameri's project with the new plans was lower than the original
appraisal upon which the construction loan was based.
                                              6
certificate of occupancy could therefore be obtained on or before November 15, 2009;

and (4) construction could be completed with the amount of money left in the unfunded

portion of the loan, which was approximately $1.1 million.

       Chase began a risk review process in response to Ameri's request for the loan

extension. On March 9, 2009, a Chase employee started gathering information about the

loan and entered it on a risk review worksheet to "show the current state of the

construction loan." The worksheet was sent to the senior risk committee, which on

March 16, 2009, denied Ameri's request for an extension and recommended the bank

continue with foreclosure. Chase's denial of the extension request was based on the

following factors: Ameri had not built anything on the property, Ameri had not obtained

a building permit, Ameri had managed to complete only 4 percent of the loan's

construction scheduled activities, and Ameri had allowed a competing lien to cloud title.

Chase concluded there was no reasonable basis to presume Ameri would build anything

at any reasonable time in the future.

       Chase foreclosed on the property at a public auction on April 28, 2009, in which it

bought the property for $984,000. On May 1, 2009, the substitute trustee recorded a

trustee's deed upon sale.

       In granting the nonsuit, the trial court found that Chase was not obligated to grant

Ameri's loan extension request given the lack of approved construction plans and

building permits. The court also ruled Ameri was in material breach of the loan

agreement by failing to start and complete construction within the required times; not

making timely interest payments, as required; and allowing a competing lien to be

                                             7
recorded against the property. "JP Morgan Chase would have been within its legal rights

to declare breach of the agreement and accelerate the loan and institute foreclosure

proceedings based on any of these material breaches," the court said.

                                      DISCUSSION

                                   I. Evidentiary Issues

       Ameri contends the trial court erred by (1) allowing Chase to present the

testimony of Daniel C. Steenerson, the seller of the Country Club Lane property; (2)

allowing Stacy Teasdale, a Chase employee who prepared the risk review worksheet, to

give expert opinion derived from inadmissible multiple hearsay; and (3) not allowing

Ameri to testify about the value of his residence in Carmel Valley. We consider these

claims in seriatim.

       Steenerson Testimony

       Ameri filed a motion to exclude the testimony of Steenerson on the grounds it was

irrelevant to his claim against Chase and prejudicial.5 Ameri's counsel argued the issue

of the Steenerson trust deed was resolved before Chase entered the picture and had

nothing to do with Chase's decisionmaking. The trial court denied the motion, finding

the Steenerson trust deed had direct relevance to the lawsuit because the entire history of

the loan agreement was going to be explored and was potentially relevant for

impeachment. Steenerson was allowed to testify as a defense witness during the

presentation of plaintiff's case-in-chief as an accommodation to the witness.


5     Ameri's motion was entitled "Motion to Preclude the Red Herring Steenerson-
Cured-Junior Lien Issue from being Presented to the Jury."
                                             8
       On appeal, Ameri repeatedly argues the Steenerson lien was irrelevant because

Chase did not rely on it when denying his request for a 10-month construction extension

and proceeding with foreclosure. We disagree.

       There were numerous factors supporting Chase's decision, including the

Steenerson lien, as shown on the risk review worksheet. The worksheet noted the title

was "clouded, there is a second [deed of trust] of [$]50,000 executed a day before

[WMB] loan, but recorded 18 days after [WMB deed of trust] recording." The preparer

of the worksheet testified the cloud on title was "a huge red flag." "[W]ith construction

loans, you're not allowed to have a second mortgage or second deed of trust on the title.

We require a clean title, period." The preparer also said: "If we give them that

opportunity to clean up that second deed of trust, a lot of times they clean it up, we pull

clean title and they go right back and get another one recorded, so it is a huge red flag for

us."

       The existence of the recorded Steenerson deed of trust was a breach/default by

Ameri. Further, Ameri's argument that it was taken care of before Chase became

involved is unavailing because the default was contractually preserved. The construction

loan agreement specifically provided: "Failure or delay by Lender to exercise or enforce

a right, power, or remedy under this Construction Loan Agreement shall not constitute a

waiver of such right, power or remedy under the same." Thus, under the agreement,

Chase could raise any default, at any time, as the reason for foreclosure. Chase did not

waive the default caused by the Steenerson trust deed and properly considered it in

evaluating the extension request and proceeding with foreclosure.

                                              9
       Ameri also complains the trial court erred by allowing Chase to present its witness

Steenerson out of order and before establishing the preliminary fact making the testimony

relevant—namely, that Chase relied on the Steenerson lien issue to foreclose. Ameri fails

to demonstrate error.

       "The [trial] court in its discretion shall regulate the order of proof." (Evid. Code,

§ 320.) "Motions for . . . calling witnesses out of order[] are largely in the discretion of

the trial court. It must be made to appear very clearly that such discretion has been

abused before [the appellate court] can reverse the trial court's action." (Estate of Lefranc

(1950) 95 Cal.App.2d 885, 887-888.) We find no abuse of discretion in allowing

Steenerson to testify out of order as an accommodation to him.

       Ameri's argument about the failure to establish the preliminary fact supporting

Steenerson's testimony is not well taken. The portions of the Evidence Code concerning

preliminary determinations on the admissibility of evidence are contained in division 3,

article 2, at sections 400 et seq. (See particularly Evid. Code, §§ 402-405.) However,

Ameri ignores Evidence Code section 406, which provides: "This article does not limit

the right of a party to introduce before the trier of fact evidence relevant to weight or

credibility." Before Steenerson was called, Ameri testified he never owed Steenerson

any money, Steenerson—not he—had created the problems with his loan, the Steenersons

were "trying to cheat me," and the recording of Steenerson's deed of trust was a dishonest

transaction. Steenerson's testimony was intended, among other things, to impeach

Ameri's credibility. "A party may introduce various types of evidence either impeaching

or supporting a witness's credibility [Evid. Code, §§ 780, 785], or evidence relevant to

                                              10
weight and credibility [Evid. Code, § 406]." (3 Witkin, Cal. Evidence (5th ed. 2012)

Presentation at Trial, § 100, p. 154.) Since Steenerson's impeaching testimony was

admissible under Evidence Code section 406, there was no need to make a preliminary

fact determination.

         There was no error.

         Teasdale Testimony

         Ameri contends Teasdale improperly (1) included expert opinions by her

coworker, Randy Chanadet,6 who provided information and analysis concerning the

property value for input on the risk review worksheet, as well as her own expert opinions,

and (2) included multiple layers of hearsay. Ameri also contends it was error to admit

into evidence exhibit 122, the risk review worksheet. These contentions are without

merit.

         Ameri's counsel called Teasdale as a hostile witness pursuant to Evidence Code

section 776. Teasdale prepared the risk review worksheet, which was the basis for

Chase's decision to deny Ameri's request for a contract extension. Teasdale's function

was to gather information about the loan and enter it on the worksheet form, which was

designed to "show the current state of the construction loan." She was not part of the

decision-making process on whether to grant the extension. Further, Teasdale had no

independent recollection of working on Ameri's file.




6     At the time, Chanadet, a California appraiser, and Teasdale were working in
Chase's loss mitigation department at the bank's Denver National Construction Center.
                                             11
       Notwithstanding Ameri's arguments, Teasdale did not testify as an expert witness

and did not offer expert opinion testimony. Moreover, Ameri's citations to the record to

show Teasdale provided improper expert opinions—about (1) how the decisionmakers

would assess the worksheet information, (2) the significance of the property's location

near a naval air station, and (3) whether the appraised value was too high—did not elicit

an objection based on improper opinion evidence from Ameri's counsel.7 In order to

preserve a claim of evidentiary error for appellate review, an appellant must make a

contemporaneous and specific objection in the trial court. (Evid. Code, § 353, subd. (a).)

Ameri's failure to object to this evidence forfeits his appellate claim the evidence was

improperly admitted as opinion evidence. (3 Witkin, Cal. Evidence, supra, Presentation

At Trial, § 383, p. 535.)

       Ameri also complains that Teasdale's testimony included "generalizations and

speculations of the conduct or situation of other borrowers that have nothing to do with

this case." However, the testimony cited by Ameri to back up this claim was not expert

opinion testimony. Rather, it was properly admitted lay opinion testimony. (Evid. Code,

§ 800.)8



7      Ameri's counsel objected on foundational grounds to a question about how Chase's
decisionmakers would treat information concerning the percentage of construction line
items in the plan that had been completed. Chase's counsel then asked Teasdale a
question to establish the foundation.

8       Evidence Code section 800 provides: "If a witness is not testifying as an expert,
his testimony in the form of an opinion is limited to such an opinion as is permitted by
law, including but not limited to an opinion that is: [¶] (a) Rationally based on the
perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
                                             12
         As Ameri correctly notes, at the time Teasdale prepared the risk review worksheet

for Ameri's extension request, she had been preparing such worksheets for Chase for less

than a month. However, Teasdale previously had worked in the banking and mortgage

industry for 10 years, including working as a mortgage loan officer for new construction

loans.

         Lay opinion testimony is admissible if it is based on the witness's own perceptions

and personal observations and is helpful to understanding the witness's testimony. (Evid.

Code, § 800; People v. McAlpin (1991) 53 Cal.3d 1289, 1306-1307 & fn. 12.) Teasdale's

testimony at issue in this complaint was based on her long experience in the banking and

mortgage industry and was helpful in describing how banks deal with construction loans.

Such testimony does not call for an expert witness because Teasdale was describing her

work activities and her personal experience. Whether to admit lay witness opinion

testimony rests largely in the trial court's discretion. (Osborn v. Mission Ready Mix

(1990) 224 Cal.App.3d 104, 112.) Appellate courts give broad deference to the trial

court's decision to admit lay opinion testimony that is subject to cross-examination.

(Ibid.) There was no abuse of discretion here.

         Ameri also complains the expert opinions of Chandalet, who did not appear at

trial, were improperly admitted through Teasdale's testimony. However, all of Ameri's

citations to the record concerning this issue took place during his counsel's questioning of

Teasdale. Again, the absence of proper objections operates as a waiver or forfeiture of

this issue on appeal. (Evid. Code, § 353, subd. (a).)



                                              13
       The real crux of Ameri's contentions concerning Teasdale's testimony is the

admissibility of the risk review worksheet. Bank records are admissible as business

records. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 524.) We find the

worksheet was properly admitted under Evidence Code section 1271, the business

records exception to the hearsay rule.9

       It is undisputed Teasdale's risk review worksheet was prepared by Teasdale in the

regular course of Chase's consideration of loan modification requests. (Evid. Code,

§ 1271, subd. (a).) Moreover, it is undisputed Teasdale entered the information onto the

worksheet during the week of May 9, 2009, after receiving the request for an extension of

the scheduled completion date for the loan, and the senior risk review committee denied

the request on May 16 after reviewing the worksheet. (Evid. Code, § 1271, subd. (b).) In

her testimony, Teasdale identified the worksheet and described how it was prepared.

(Evid. Code, § 1271, subd. (c).) Teasdale's testimony provided substantial evidence to

the trustworthiness of the sources of information and the procedures employed in

preparing the report. (Evid. Code, § 1271, subd. (d).)

       "The key to establishing the admissibility of a document made in the regular

course of business is proof that the person who wrote the information or provided it had



9       Section 1271 provides: "Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to prove
the act, condition, or event if: [¶] (a) The writing was made in the regular course of a
business; [¶] (b) The writing was made at or near the time of the act, condition, or event;
[¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its
preparation; and [¶] (d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness."
                                              14
knowledge of the facts from personal observation." (Jazayeri v. Mao (2009) 174

Cal.App.4th 301, 322.) "The witness need not have been present at every transaction to

establish the business records exception; he or she need only be familiar with the

procedures followed, which [Teasdale] clearly was. (Ibid.)

       To the extent Ameri objects to the introduction of the worksheet because

Chandalet provided information and analysis about the property for the worksheet and

was not available as a witness, there was no error. From Teasdale's testimony, it could

reasonably be inferred that the worksheet was prepared in the usual manner and regular

course of Chase's business. "'"In the case of the conduct of the business and affairs of an

establishment, it is presumed that the regular course of business of such establishment is

followed [citation] and the books and records of an establishment truly reflect the facts

set forth in such books."'" (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439,

1451.) The purpose of the business records exception is to eliminate the necessity of

calling each witness involved in preparation of the record, and to substitute the record of

the transaction or event. (Loper v. Morrison (1944) 23 Cal.2d 600, 608-609; County of

Sonoma v. Grant W., supra, at p. 1451.)

       Moreover, the evidentiary value of the risk review worksheet was that it was a

document within Chase's records indicating the reasons for its action—denying Ameri's

extension request. Admission of the worksheet did not necessarily show the truth of its

individual components; rather, it showed Chase conducted a review and was offered to

determine whether Chase made an arbitrary decision.



                                             15
       Determining whether a proper foundation has been laid for the admission of

business records under Evidence Code section 1271 is within the trial court's discretion

and "will not be disturbed on appeal absent a showing of abuse." (County of Sonoma v.

Grant W., supra, 187 Cal.App.3d at p. 1450; Aguimatang v. Cal. State Lottery (1991) 234

Cal.App.3d 769, 797.) The trial court did not abuse its discretion in admitting exhibit

122, the risk review worksheet.

       Limitation on Ameri's Testimony

       Ameri contends the trial court erred by not allowing him to testify about the value

of his residence in Carmel Valley. The contention is without merit.

       On direct examination, Ameri's counsel asked him the December 2008 value of his

Carmel Valley residence. The trial court sustained Chase's objection to the question on

relevancy grounds.

       In a sidebar discussion, Ameri's counsel explained he wanted to explore the equity

Ameri had in this Carmel Valley home to show his client could have supplied additional

security for the construction loan. Counsel further argued that if Chase were actually

concerned about the viability of the construction loan, it would have considered Ameri's

ability to provide additional security. The court found Chase did not have a contractual

duty at that point in time to inquire about other assets owned by Ameri.

       Evidence Code section 351 provides: "Except as otherwise provided by statute, all

relevant evidence is admissible." "'Relevant evidence' means evidence, including

evidence relevant to the credibility of a witness or hearsay declarant, having any tendency

in reason to prove or disprove any disputed fact that is of consequence to the

                                            16
determination of the action." (Evid. Code, § 210.) An appellate court examines the

exclusion of evidence on relevancy grounds for abuse of discretion. (City of Ripon v.

Sweetin (2002) 100 Cal.App.4th 887, 900.)

       By December 2008 the property was in foreclosure. As a result of Ameri's

counsel's extension request letter, Chase engaged in a risk review to determine at that

point in time whether the loan could be made viable or it was too risky to attempt to do

so. Chase looked at factors, such as the lack of a building permit and the failure to start

building on the property after more than one year, and concluded based on this track

record that it would be too risky. Given the property was in foreclosure at the time,

Chase was not required to look at Ameri's other assets as part of its risk review. The

value of Ameri's other assets, therefore, was not relevant. "No evidence is admissible

except relevant evidence." (Evid. Code, § 350; Brokopp v. Ford Motor Co. (1977)

71 Cal.App.3d 841, 853.)

       Moreover, even if evidence of Ameri's other assets was relevant, any error was

harmless. "In civil cases, a miscarriage of justice should be declared only when the

reviewing court, after an examination of the entire cause, including the evidence, is of the

opinion that it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error." (Huffman v. Interstate Brands

Corp. (2004) 121 Cal.App.4th 679, 692.) Not permitting Ameri to testify about the value

of his Carmel Valley residence did not result in a miscarriage of justice.




                                             17
                               II. Nonsuit Properly Granted

       Ameri contends the trial court erred when it granted Chase's motion for a nonsuit.

The contention is without merit.

       A defendant's motion for judgment of nonsuit "is the modern equivalent of a

demurrer to the evidence; it concedes the truth of the facts proved [by the plaintiff], but

denies that they, as a matter of law, sustain the plaintiff's case." (7 Witkin, Cal.

Procedure (5th ed. 2008) Trial, § 406, p. 478.) "A defendant is entitled to a nonsuit if the

trial court determines that, as a matter of law, the evidence presented by plaintiff is

insufficient to permit a jury to find in his favor." (Nally v. Grace Community Church

(1988) 47 Cal.3d 278, 291.) "A trial court may grant a nonsuit only when, disregarding

conflicting evidence, viewing the record in the light most favorable to the plaintiff and

indulging in every legitimate inference which may be drawn from the evidence, it

determines there is no substantial evidence to support a judgment in the plaintiff's favor."

(Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.)

       In reviewing the trial court's ruling, we independently view the evidence most

favorably to plaintiff "'resolving all presumptions, inferences and doubts in [his] favor.'"

(Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) We will uphold the

judgment for respondent only if there is no substantial evidence to support a judgment for

appellant. (Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th 15 at p. 28.)

"'Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing

more than speculation, suspicion, or conjecture, reversal is warranted if there is "some

substance to plaintiff's evidence upon which reasonable minds could differ. . . ."'

                                              18
[Citation.] In other words, '[i]f there is substantial evidence to support [the plaintiff]'s

claim, and the state of the law also supports that claim, we must reverse the judgment.'"

(Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124-1125.)

       Ameri claims Chase breached the loan agreement by not granting the extension

request and by foreclosing on the property. The elements of breach of contract are "(1)

the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's

breach, and (4) the resulting damages to plaintiff." (Careau & Co. v. Security Pacific

Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) In an action upon a contract, a

plaintiff must prove either performance or a valid excuse for nonperformance. (Nesson v.

Northern Inyo County Local Hosp. Dist. (2012) 204 Cal.App.4th 65, 87.) "The wrongful,

i.e., the unjustified or unexcused, failure to perform a contract is a breach." (1 Witkin,

Summary of Cal. Law (10th ed. 2005) Contracts, § 847, p. 935.) "[I]t is elementary that

one party to a contract cannot compel another to perform while he himself is in default."

(Lewis Publishing Co. v. Henderson (1930) 103 Cal.App. 425, 429.)

       It is undisputed Ameri, at a minimum, committed the following material breaches

of the loan agreement: failed to obtain approved plans and building permits; failed to

complete construction within the scheduled completion date; and failed to pay interest on




                                              19
time as due starting August 1, 2008.10 Further, there was no evidence that either WMB

or Chase played a role in any of these breaches by Ameri.

        Ameri's complaint that his construction efforts were stymied because loan

disbursements were suspended for several months is unavailing. WMB was contractually

entitled to suspend disbursements until Ameri cleared the Steenerson lien. Moreover,

neither WMB nor Chase was involved with the City of Coronado's veto of a basement on

the property, which necessitated a change of plans. Ameri may have been a victim of

some unfortunate circumstances—some of his own making and some not—but neither

lender was to blame for these circumstances. "A commercial lender is not to be regarded

as the guarantor of a borrower's success and is not liable for the hardships which may

befall a borrower. [Citation.] . . . [I]n this state a commercial lender is privileged to

pursue its own economic interests and may properly assert its contractual rights."

(Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334-

335.)

        Ameri's breach of contract claim fails as a matter of law because he did not

demonstrate that he performed under the contract or was excused from performing; he



10      The trial court also found, among other things, Ameri breached the loan agreement
by granting a security interest in the property to the Steenersons, who recorded their deed
of trust and established a lien on the property. We agree this was a material breach.
Under the loan agreement, Ameri promised the property was unencumbered and free of
all liens. We reject Ameri's arguments that because the breach was cured and no longer a
factor when Chase became involved it was not a material breach. Under the loan
agreement (§§ 9, 13), the lender had the right to raise any default at any time. (See
Storek & Storek, Inc. v. Citicorp Real Estate Inc. (2002) 100 Cal.App.4th 44, 51, fn. 5,
58, fn. 11.)
                                              20
failed to establish all of the elements of a breach of contract by his lenders. (Hamilton v.

Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.)

          Ameri's cause of action for breach of the implied covenant of good faith and fair

dealing also failed as a matter of law. Under California law, every contract imposes upon

each party a duty of good faith and fair dealing in the performance of the contract such

that neither party shall do anything which will have the effect of destroying or injuring

the right of the other party to receive the fruits of the contract. (Waller v. Truck Ins.

Exchange, Inc. (1995) 11 Cal.4th 1, 36.) Outside of the insurance context, liability for

breach of the implied covenant of good faith and fair dealing sounds solely in contract,

not in tort. (Cates Construction Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43-44.)

          The implied covenant of good faith and fair dealing is intended to prevent either

party to a contract from unfairly frustrating the other party's right to receive the benefits

of the contract. (Cates Construction Inc. v. Talbot Partners, supra, 21 Cal.4th at p. 43.)

However, our Supreme Court has clarified that an implied covenant of good faith and fair

dealing cannot contradict the express terms of a contract. (Carma Developers (Cal.), Inc.

v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373 [scope of conduct

prohibited by implied covenant is limited, and "circumscribed by the purposes and

express terms of the contract"].) A court may not imply a covenant of good faith and fair

dealing that contradicts the express terms of an agreement. (Storek & Storek, Inc. v.

Citicorp Real Estate, Inc., supra, 100 Cal.App.4th at p. 55.) Thus, if the contract gives

the right to one party to do what it did, there can be no breach of the implied covenant.

(Ibid.)

                                               21
      Ameri claims Chase breached the implied covenant by not modifying the loan—

i.e., not extending the scheduled completion date—and by foreclosing on the property.

      As to Ameri's proposed loan modification, the loan agreement provided:

          "If the Residence or Improvements are not completed and the final
          advance of the Loan has not occurred prior to the Scheduled
          Completion Date or any extended Scheduled Completion Date,
          Lender shall have the right to then or thereafter declare the Loan
          immediately due and payable. Without limiting the foregoing,
          Borrower may request and Lender, in its sole discretion, may grant
          an extension of the Scheduled Completion Date pursuant to the
          terms of the Construction Loan Addendum to Note. Any such
          extension shall be granted pursuant to terms and conditions
          acceptable to Lender in its sole and absolute discretion including, but
          not limited to, Borrower's payment of an extension fee and execution
          of such instruments as the Lender may require. Any extensions of
          the Scheduled Completion Date granted by Lender hereunder shall
          not require Lender to grant any further such extension."11




11      The pertinent provision in the construction loan addendum to note reads: "Failure
to complete construction . . . prior to the Scheduled Completion Date, shall constitute an
event of default hereunder, under the Security Instrument and under the Construction
Loan Agreement. . . . [O]n a one-time basis only, at Borrower's request, Lender in its
sole discretion may, but shall not be required to, approve an extension of the Scheduled
Completion Date of up to ninety (90) days to facilitate the completion of construction. If
Borrower desires to request such an extension, Borrower shall deliver a written extension
request to the Lender no less than ten (10) days prior to the Scheduled Completion Date.
Any such extension shall be subject to the following conditions: (i) Borrower must
execute a Modification Agreement and such other documentation as Lender may require;
(ii) Borrower must pay to Lender an extension fee equal to [one-fourth percent] of the
face loan amount on the Note for each 30-day period or portion thereof, for which the
extension has been approved, as well as any other costs and expenses associated with the
extension; (iii) Borrower must cause Contractor and/or other third parties to execute such
additional documentation as Lender may require; and (iv) Borrower must obtain for the
benefit of Lender, at Borrower's sole expense, such endorsements to Lender's Policy of
Title Insurance as Lender may require."
                                            22
       Under the loan agreement documents, Chase had sole discretion to decide whether

to extend the scheduled completion date. When a contract expressly authorizes a party to

take certain actions, the right to exercise that right is unfettered by the implied covenant

of good faith and fair dealing. (Carma Developers (Cal.), Inc v. Marathon Development

California, Inc., supra, 2 Cal.4th at p. 374.) Rather, the exercise of discretion by the

party is judged by the standard of objective reasonableness. (Storek & Storek, Inc. v.

Citicorp Real Estate, Inc., supra, 100 Cal.App.4th at p. 60.) Chase's decision in May

2009 to deny Ameri's request for a 10-month extension passes any objective reasonable

standard. Not only had there been no construction on the property in 18 months, Ameri

had not secured approved plans or any building permits. The contractor's estimate that

the construction could be completed within 10 months after the building permits were

obtained was speculative at best. Moreover, Ameri, who had committed numerous

breaches of the loan agreement, rejected WMB's offer of a three-month extension of the

completion date, which was the maximum extension time period under the loan

documents. (See fn. 11, ante.) Chase also could reasonably consider Ameri's breach

involving the Steenerson lien. Although Ameri cured this breach, the banking industry

considers any cloud on title a red flag regardless of whether the cloud is removed.

       Ameri's claim that Chase breached the implied covenant of good faith and fair

dealing by foreclosing on the property is also misplaced. A lender does not owe a duty of

good faith to forbear from foreclosure when the borrower is in default, regardless of the

hardship that strict enforcement may impose. (Price v. Wells Fargo Bank (1989) 213

                                             23
Cal.App.3d 465, 479, overruled on other grounds in Riverisland Cold Storage, Inc. v.

Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1176-1182.)

       Ameri, who was 67 when he entered into the loan agreement with WMB, could

not—as a matter of law—prevail on his cause of action for financial elder abuse under

Welfare and Institutions Code section 15600 et seq. because he did not present evidence

of fraud by Chase.

       Welfare and Institutions Code section 15610.30, subdivision (a)(1) provides:

"'Financial abuse' of an elder . . . adult occurs when a person or entity does any of the

following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal

property of an elder . . . adult for a wrongful use or with intent to defraud, or both."12

       Ameri argues he demonstrated the fraud element by showing Chase's rush to

foreclose without engaging in a "workout" process and Chase's risk review was

effectively a sham because it did not consider positive information about Ameri's credit

score and his equity in another property. Ameri also refers to testimony by a Chase

employee that Chase was getting out of the construction lending business a point that was

not communicated to him. We are not persuaded.

       Regardless of whether Chase used the term "workout," the evidence showed that

Chase employee Symanski attempted to work with Ameri to see if the loan could be

resuscitated. However, that process was frustrated because Ameri did not supply

requested financial information. As to the risk review, which included Ameri's high


12     An elder is defined as "any person residing in this state, 65 years of age or older."
(Welf. & Inst. Code, § 15610.27.)
                                             24
credit score, we disagree with Ameri's characterization. In the face of no approved plans,

no building permits and nothing having been built in one and one-half years, inclusion of

Ameri's equity in another property would almost certainly not have persuaded the senior

risk committee to grant the modification request. Contrary to Ameri's conjectural

argument, the Chase employee's testimony that Chase was getting out of the construction

lending business does not equate with Chase having no intention to service his loan or

any other construction loan. The employee's testimony on this point was not further

developed and could have meant that Chase had decided not to enter into new

construction loan agreements.

       Ameri's cause of action for wrongful foreclosure also fails as a matter of law.

Despite Ameri's claims of error in the foreclosure process, he has not shown the errors

were material or caused them prejudice. In Debrunner v. Deutsche Bank National Trust

Co. (2012) 204 Cal.App.4th 433, the plaintiff complained the notice of default was

defective in part because there was no record of a substitution of trustee. The Court of

Appeal held "'a plaintiff in a suit for wrongful foreclosure has generally been required to

demonstrate [that] the alleged imperfection in the foreclosure process was prejudicial to

the plaintiff's interests.'" (Id. at p. 443; Melendrez v. D & I Investment, Inc. (2005)

127 Cal.App.4th 1238, 1258 [presumption that nonjudicial foreclosure sale was

conducted regularly and fairly may be rebutted only by substantial evidence of

"prejudicial procedural irregularity"].) Ameri did not present evidence of prejudice.

       Further, notwithstanding the alleged procedural defects, there is no post-sale relief

contemplated in the statute. "There is nothing in [Civil Code] section 2923.5 that even

                                             25
hints that noncompliance with the statute would cause any cloud on title after an

otherwise properly conducted foreclosure sale. We would merely note that under the

plain language of [Civil Code] section 2923.5, read in conjunction with [Civil Code]

section 2924g, the only remedy provided is a postponement of the sale before it happens."

(Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235.)

       Another reason the cause of action for wrongful foreclosure fails is that, as a

general rule, a plaintiff may not challenge the propriety of a foreclosure on his or her

property without offering to repay what he or she borrowed against the property.

(Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 117.) Ameri did not

satisfy the tender rule.

             III. Forced Abandonment of Unjust Enrichment Cause of Action

       During a pretrial hearing on the parties' motions in limine, the trial court

announced it was going to conduct a bench trial on the equitable causes of action in

Ameri's third amended complaint before the jury trial began. As a result, Ameri's counsel

dismissed his cause of action for unjust enrichment.

       Ameri contends the trial court abused its discretion by forcing him to elect to

proceed first with his unjust enrichment cause of action as an equitable action. The

contention is without merit.

       There is no cause of action for unjust enrichment in California. (McKell v.

Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.) "Rather, unjust

enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a

constructive trust." (Ibid.) "The phrase 'Unjust Enrichment' does not describe a theory of

                                             26
recovery, but an effect: the result of a failure to make restitution under circumstances

where it is equitable to do so." (Lauriedale Associates, Ltd. v. Wilson (1992)

7 Cal.App.4th 1439, 1448.)

       "'"In determining whether the action was one triable by a jury at common law, the

court is not bound by the form of the action but rather by the nature of the rights involved

and the facts of the particular case—the gist of the action. A jury trial must be granted

where the gist of the action is legal, where the action is in reality cognizable at law."'

[Citations.] On the other hand, equitable issues are to be resolved by the court sitting

without a jury. [Citations.] 'Where legal and equitable issues are joined in the same

action the parties are entitled to a jury trial on the legal issues.' [Citations.] Ordinarily,

'the equitable issues are [to be] tried first and then, if any legal issues remain, a jury may

be called.'" (Arciero Ranches v. Meza) (1993) 17 Cal.App.4th 114, 123-124.)

       Ameri's third amended complaint contained both legal and equitable issues. The

trial court did not abuse its discretion by deciding to hear the equitable issues first.

Ameri's case authority (Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726) does

not stand for the proposition that a jury can decide equitable issues.13




13     Ameri's reliance on Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th
872 during oral argument is unavailing. The case is readily distinguishable on a number
of points and is not helpful or persuasive as to this case.
                                               27
                              DISPOSITION

      Judgment is affirmed.


                                 NARES, J.


WE CONCUR:


McCONNELL, P. J.


IRION, J.




                                  28
