Morschauser v. Continental Capital
Filed 12/14/12 Morschauser v. Continental
Capital CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
WILLIAM MORSCHAUSER,
Plaintiff
and Appellant,
v.
CONTINENTAL
CAPITAL, LLC et al.,
Defendants and Respondents.
E052930
(Super.Ct.No.
SCVSS124603)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Donald R. Alvarez, Judge.
Affirmed.
William
Morschauser, in pro. per.; McKennon Schindler, McKennon Law Group, Robert J.
McKennon, Eric J. Schindler and Reid A. Winthrop for Plaintiff and Appellant.
Hagan
& Associates, Cara J. Hagan and Michelle E. Partington for Defendants and
Respondents.
Plaintiff
and appellant William Morschauser filed an action against defendants and
respondents Continental Capital, LLC (ConCap), Stephen J. Collias, and Thia
Fuller (collectively referred to as respondents) for damages caused by their
alleged negligent and fraudulent misrepresentations and other conduct in
connection with the sale and foreclosure proceedings of real property (the
Property) owned by the Devore Stop partnership and Morschauser. Morschauser, individually, and as a partner
with Mohammad Abdizadeh, was a trustor of record on the underlying Deed of
Trust, the beneficial interest of which had previously been assigned to
ConCap. Morschauser alleged causes of
action for fraud and intentional
infliction of emotional distress against respondents.
grounds that they had made no representations to Morschauser and in good faith
believed he had signed all relevant documents and/or that his partner,
Abdizadeh, had the authority to bind the partnership. The trial court agreed, granted the motion, and
entered judgment in favor of respondents.
Morschauser appeals, contending there are triable issues of fact as to
respondents’ conduct.
I. STANDARD OF REVIEW
The
well-known principles generally governing appellate review of an order granting
a motion for summary judgment are as follows:
“A trial court properly grants summary judgment where no
the moving party is entitled to judgment as a matter of law. [Citation.]
We review the trial court’s decision de novo, considering all of the
evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. [Citation.] In the trial court, once a moving defendant
has ‘shown that one or more elements of the cause of action, even if not
separately pleaded, cannot be established,’ the burden shifts to the plaintiff
to show the existence of a triable issue; to meet that burden, the plaintiff
‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of
action . . . .’
[Citations.]†(
Cal.4th 465, 476-477; see also Code Civ. Proc.,
II. PROCEDURAL BACKGROUND AND FACTS
In
February 1989, Morschauser and Abdizadeh established Devore Stop as a real
estate development partnership (DS Partnership). They held title to the Property as tenants in
common, with each holding an undivided 50 percent interest in the Property,
which included three contiguous parcels:
Parcel 1 is a gas station and convenience store owned and operated by
the partnership, and parcels 2 and 3 are unimproved. On April 1, 1998, they, individually,
and as Mohammed Abdizadeh William G. Morschauser, a California
Partnership, executed a promissory note and a construction loan agreement
whereby California State Bank made a construction loan in the principal sum of $850,000.
parcels 1 and 2. On March 24, 1999,
Abdizadeh executed a promissory note and business loan agreement whereby First
Security Bank of California (a successor to California State Bank due to a
merger) made a business loan to Abdizadeh in the principal amount of
$150,000. This loan was secured by a
deed of trust on parcel 3. Later, Wells
Fargo Bank became the owner of both by merger with First Security Bank of
California. In April 2000, the $850,000
loan was modified to change the variable rate to a fixed rate. According to Morschauser, the decision to
change the rate was up to the lender and Abdizadeh. Nonetheless, Morschauser claims he never
approved this change; however, his signature is on the necessary document and
is notarized.
In
May 2001, Abdizadeh lost his Arco AM/PM franchise rights and could not make the
monthly rent payments due for use of the Property. Commencing in July 2002, Wells Fargo
proceeded with a nonjudicial foreclosure of the Property. TD Services Company (TD) acted as
sales/foreclosure trustee for Wells Fargo in the foreclosure, which was
authorized by power of sale contained within the trust deed recorded in April
1998. In order to stop the foreclosure
proceedings, Abdizadeh filed individual bankruptcy; however, his bankruptcy
case was dismissed in December 2002.
On
February 3, 2003, Morschauser filed a fraud claim with Wells Fargo, claiming
that Abdizadeh must have signed his name to the modification documents that
converted the loan rate from variable to fixed.
As
of April 3, 2003, Wells Fargo sold its interest in the deeds of trust to
ConCap. On April 4, DS Partnership
filed a voluntary petition under Chapter 11 of the United States Bankruptcy
Code to stop the foreclosure.
Morschauser, personally, as one of the general partners of DS
Partnership, signed the bankruptcy petition and all supporting pleadings. He listed himself and Abdizadeh as general
partners in the bankruptcy petition without any limiting language as to their
respective powers or duties. The
petition identifies the attorney for DS Partnership as Arshak Bartoumian of the
Law Office of Stanley W. Hodge. At
the bankruptcy hearings, Bartoumian appeared as counsel for DS Partnership,
while Morschauser appeared on behalf of DS Partnership and himself. At no time did Morschauser claim Abdizadeh
was not authorized to act on behalf of the partnership.
Shortly
after acquiring the deeds of trust, ConCap retained GVC to represent ConCap’s
interest in DS Partnership bankruptcy.
GVC immediately filed a motion for relief from the automatic stay in the
bankruptcy proceedings in order to allow ConCap to continue with the
foreclosure. Morschauser, through
Bartoumian as partnership counsel, opposed the motion.
Between
May 2 and May 13, 2003, counsel for the parties (GVC and Bartoumian, the
partnership’s attorney) negotiated repayment of the obligations admittedly owed
to ConCap. On May 13, the parties
reached an agreement, which they placed on the record in the bankruptcy
court. Morschauser was present and
affirmed the agreement reached between them.
According to the agreement, ConCap agreed to provide Morschauser time to
sell the Property, and thus, there would be no foreclosure unless there was a
default in the agreement. DS Partnership
would pay ConCap $10,000 on June 1 and July 1, 2003, until escrow
closed on or before July 14, 2003.
If necessary, the buyer or seller of the Property could opt to extend
the closing of escrow two times, with each extension being 15 days. The obligation to pay $10,000 on
August 1, 2003, would apply if the extension continued into August. At the close of escrow, ConCap would receive
a payoff of all obligations.
Morschauser
sent a letter dated May 13, 2003, to GVC, stating he had represented
himself, that Bartoumian was not court approved, and that certain payoff
amounts were not correct because Abdizadeh had forged Morschauser’s name. The agreement was formalized into a
stipulation for relief from stay, which was received by the bankruptcy court on
July 21, 2003. The stipulation
reaffirmed that ConCap held a perfected security interest in the partnership’s
real property by virtue of the two trust deeds, and that the obligations were
accruing interest on a daily basis as well as fees and costs. Abdizadeh signed the stipulation as general
partner on behalf of DS Partnership. On
July 22, an order was entered approving the stipulation without any
objections to the contents of the stipulation or the fact that Abdizadeh signed
it on behalf of the partnership.
Prior
to the stipulation being entered in the bankruptcy court, DS Partnership found
a buyer for the Property. Thus,
Bartoumian, on behalf of the partnership, filed a motion for authority to sell
the Property subject to ConCap’s liens.
Before the hearing on the motion, Bartoumian sent a letter to GVC on
July 24, 2003, on behalf of DS Partnership and Morschauser, explaining
that Morschauser had not signed the stipulation “because he does not agree with
the bank documents to wit, he did not sign the modification of the note, and
other facts surrounding the settlement.â€
Bartoumian further outlined various grounds that Morschauser allegedly
had “against the lender in an adversarial action . . . .†However, Bartoumian conveyed Morschauser’s
offer to settle the matter. In response,
GVC advised that if Morschauser insisted on changing the terms of the
stipulation for relief from stay, ConCap would oppose the upcoming motion to
approve a sale that would change the previously negotiated terms. The motion to sell was approved, and
Bartoumian prepared an order, which provided that ConCap would be paid a
discounted sum of $1,075,000 on both loans out of the sale proceeds, if and
only if escrow closed on or before August 11, 2003.
On
August 8, 2003, Bartoumian ceased representing the partnership in the
bankruptcy due to a “breakdown of the relationship . . . and a
potential conflict.†Bartoumian later
signed a declaration dated November 16, 2004, stating that his office was
never approved by the bankruptcy court to represent the partnership and thus
was not allowed to file any paperwork.
When
escrow did not close on the specified date as required in the order, counsel
entered into further negotiations. As a
result of those negotiations, the discounted amount originally agreed upon was
not extended. Rather, ConCap’s demand
was increased to include the full amount then owed, including accrued default
interest at the contract default rates, late charges, all fees incurred and
costs. A settlement agreement was
drafted, which provided that the partnership’s cumulative obligation to ConCap
on the notes was $1,253,773.99, but the repayment required for release of the
liens was reduced to $1,175,000 (later amended to $1,100,000 per agreement with
another creditor) in full and complete satisfaction of both outstanding
promissory notes. This amount was to be
paid from the pending sale of parcel 1.
The $75,000 balance was to be secured by parcel 2 (co-owned by
Morschauser and Abdizadeh as tenants in common) and would be repaid in monthly
installments, and released when ConCap was paid in full. The final settlement agreement was sent to
Bartoumian.
On August 12, 2003, another
creditor called GVC and proposed that if ConCap consented to yet another delay
in close of escrow, the other creditor would receive $25,000 less than what
they were owed by Devore Stop and ConCap would receive that additional $25,000
as an extension payment out of escrow proceeds.
GVC then changed the dollar amounts on the settlement agreement to
$1,100,000 and faxed a copy of the revised settlement agreement to
Bartoumian. Prior to receipt of the
fully executed settlement agreement, Bartoumian called GVC and explained that,
while Bartoumian and Abdizadeh had signed the agreement, Morschauser disagreed
with the amounts owed to ConCap in the agreement and he would not sign the new
settlement agreement. GVC advised
Bartoumian that if the agreement was not signed, then ConCap would not release
its lien on parcel 1 and allow the pending sale to go forward, which would then
allow ConCap to proceed with its foreclosure for the full amount previously
agreed to by the parties in the settlement agreement. Shortly after this discussion, GVC received the
signature page bearing Morschauser’s signature.
In
August 2003, $1,100,000 was paid to ConCap.
On October 21, ConCap sent a letter to Morschauser notifying him
that he was default on the remaining amount, demanding the full $75,000. On or about November 19, ConCap, through
TD, commenced nonjudicial foreclosure on parcel 2 because it never
received the remaining $75,000 payment.
Morschauser repeatedly objected to this foreclosure, claiming that it
was improper because the bankruptcy had not been dismissed, and in any event,
the loan had been paid off.
Prior
to the completion of the foreclosure, Morschauser paid $81,464.61 to ConCap to
pay off remaining obligations owed under the settlement agreement and stopped
the foreclosure.
On
March 17, 2005, Morschauser sued respondents and other parties. In his first amended complaint, Morschauser
raised four causes of action against respondents: First—fraud in their actions involving the
modification of the loan/trust deeds; Third—fraud in their actions involving
the settlement agreement; Fourth—negligence in their actions involving the
modification of the loan/trust deeds and the settlement agreement; and
Fifth—emotional distress caused by their extreme conduct. Following respondents’ initial motion for summary
judgment (joinder with GVC’s motion), on December 17, 2009, the trial
court ordered judgment in their favor on the Third and Fourth causes of
action. The remaining causes involved
respondents’ actions regarding the loan modification and trust deeds. When TD moved for summary judgment, respondents
joined, arguing there were no triable issues of fact as to the First and Fifth
causes of action regarding respondents’ conduct involving the loan modification
and trust deeds. On July 22, 2010,
the trial court agreed and granted summary judgment in favor of respondents on
the last two remaining causes of action.
Judgment was entered on December 17, 2010, and Morschauser
appealed.
III CONCAP’S JOINDER TO MOTION FOR SUMMARY
JUDGMENT
Morschauser
contends the trial court erred in considering ConCap’s joinder to TD’s motion
for summary judgment because it was without jurisdiction to reconsider its
prior ruling denying ConCap’s initial motion for summary judgment. (§ 1008; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383 (
Section 1008 jurisdictional].) We
disagree.
In
Kerns, the defendant insurer renewed
its previously denied summary judgment motion on the same grounds, facts and
law as the original motion. (
plaintiff appealed. The appellate court
considered the issue of whether Section 1008 is jurisdictional and agreed that
“trial courts have the inherent power to reconsider and correct their own
interim decisions in order to achieve substantial justice. [Citations.]â€
(Kerns, supra, at p. 388.) However,
the court reversed the lower court’s grant of summary judgment, finding that
“[a]s applied to the circumstances of this case—in which [the law and motion
judge’s] previous denial of summary judgment was clearly put in issue not on
the trial court’s own motion but instead by . . . [the defendant’s]
verbatim reapplication for summary judgment—the provisions of section 1008 were
jurisdictional and controlling.†(
court observed that the defendant’s actions were “difficult to distinguish
. . . from the kind of brazen forum shopping section 1008 is
specifically intended to bar.
[Citation.]†(
In
contrast, here, ConCap’s first motion was denied prior to completion of
discovery. By the time TD’s motion,
along with ConCap’s motion via joinder, were heard on July 22, 2010,
discovery was complete
name="_ftnref5" title="">[5] and Morschauser’s deposition had been taken on
September 21, 2009. Thus, in
joining in TD’s motion, ConCap was not simply renewing its initial motion for
summary judgment; rather, it was identifying each issue that had previously
been decided against Morschauser, along with joining in TD’s motion to the
extent the trial court’s ruling as to issues of fact applied to ConCap. This case does not present any possibility of
forum shopping. Instead, the lower court
was reconsidering its prior order in light of the current state of discovery
and pleadings. As such, we conclude the
“circumstances of this case†(Kerns,
different from those that convinced the Kerns
court to reverse the lower court’s order granting reconsideration despite its
conclusion that Section 1008 is not jurisdictional.
IV. TRIAL COURT’S RULINGS ON CONCAP’S EVIDENTIARY
OBJECTIONS
TO THE DECLARATION OF MORSCHAUSER
Morschauser
challenges the trial court’s ruling on the evidentiary objections to his
declaration. However, we note that he
references the rulings made on December 17, 2009, with respect to ConCap’s
initial motion for summary judgment via joinder to GVC’s motion. Unfortunately, the time for challenging those
rulings has long expired. While
Morschauser submitted a declaration in opposition to ConCap’s most recent
joinder to TD’s motion for summary judgment, and ConCap filed evidentiary
objections to such declaration, this court has not been directed to, and is
unable to locate, ConCap’s evidentiary objections. Failure to cite to the record in support of a
contention violates California Rules of Court, rule 8.204 (a)(1)(C). Moreover, “[I]t is counsel’s duty to point
out portions of the record that support the position taken on appeal. The appellate court is not required to search
the record on its own . . . . [A]ny point raised that lacks citation may,
in this court’s discretion, be deemed waived.
[Citation.]†(
Cal.App.4th 761, 768 [Fourth Dist., Div. Two].)
A violation of the rules of court may also result in the striking of the
offending document, the imposition of fines and/or the dismissal of the
appeal. (Ibid.) Given the size of the
record on appeal, we exercise our discretion and deem Morschauser’s evidentiary
objections waived.
V. FRAUD
According
to Morschauser, the “crux of the trial court’s ruling†that his fraud claim
failed is that Abdizadeh had the authority to bind the partnership to the
settlement agreement and there was no triable issue with regard to the
execution of the settlement agreement or its enforceability. Morschauser challenges the court’s findings.
A.
Abdizadeh’s Authority to Bind Partnership
Regarding
Abdizadeh’s authority to bind the partnership to the settlement agreement,
Morschauser argues that Abdizadeh was not authorized to bind the partnership,
because execution of the settlement agreement was not for the “carrying on in
the ordinary course of the partnership’s business,†ConCap had actual notice
that Abdizadeh could not bind the partnership, and ConCap knew that Abdizadeh
had filed personal bankruptcy which caused him to be ‘“dissociated’†from the
partnership. Morschauser cites to the
record and case law to support his argument.
This same issue was raised in Morschauser’s prior appeal against GVC,
and this court concluded there was no triable issue of fact as to Abdizadeh’s
authority. (Morschauser, supra,
E050809.)
According
to the record before this court, Abdizadeh filed a personal bankruptcy on
July 19, 2002. This personal
bankruptcy case was dismissed five months later, on December 18, 2002. Four months after the dismissal, on
April 4, 2003, DS Partnership filed for bankruptcy. About the same time as the partnership filed
bankruptcy, Wells Fargo sold its interest in the deeds of trust to ConCap. While Morschauser notes that ConCap was aware
of Abdizadeh’s personal bankruptcy, such knowledge is irrelevant, given the
subsequent actions of Morschauser in the partnership’s bankruptcy proceedings.
ConCap
entered the picture after the partnership filed bankruptcy. According to the record, upon the partnership
filing bankruptcy, Morschauser, personally, as one of the general partners of
DS Partnership, signed the bankruptcy petition and all supporting pleadings,
wherein he listed Abdizadeh as a general partner, without any limiting language
as to his powers or duties in the bankruptcy petition. (Corp. Code, § 16301, subd. (1)).
appeared on his own behalf and that of DS Partnership. At no time did Morschauser claim Abdizadeh
was not authorized to act on behalf of the partnership. Even Morschauser’s declaration in support of
opposition to motion from relief from stay signed on April 30, 2003,
refers to the “partnership†and that Abdizadeh was a partner. If Morschauser believed Abdizadeh lacked the
authority to bind the partnership, then Morschauser should not have noted in
the bankruptcy pleadings that Abdizadeh was a general partner. Rather, Morschauser should have advised all
parties and the court of the disassociation.
Having failed to do so, he is estopped from denying Abdizadeh’s
authority as a general partner of DS Partnership. (Evid. Code, § 623.)
the partnership argument both as a shield and a sword†by claiming that
Abdizadeh was “a partner for purposes of the bankruptcy and that Abdizadeh was
authorized to act on its behalf . . . but then asserts to the
contrary in his allegations against Respondent[s].â€
Notwithstanding
the above, Morschauser argues that the issue he is now raising was not before
this court in his appeal from the judgment in favor of GVC. He maintains that Abdizadeh had no authority
to sign the Settlement Agreement because the partnership “was by definition a
landlord and leased-land and a convenience store/gas station structure. [Citation.]
It was not in the business of holding the property for sale, and
certainly was not in the business of executing settlement agreements concerning
partnership property liens.â€
Morschauser’s argument is misplaced.
Regardless of its primary purpose, the partnership was tasked with
paying its mortgage obligations, which Abdizadeh did until 2002. As Morschauser testified, he paid attention
to Abdizadeh’s payments on the loan only if he received notice from Wells Fargo
about defaults; otherwise, the responsibility was Abdizadeh’s. Further, Morschauser testified that any
decision regarding the construction loan, including whether to keep it at a
variable rate or change it to a fixed rate, was to be made by Abdizadeh who
“did the up[]front stuff.†Clearly,
given the authority Abdizadeh had, up front and during the course of paying on
the loan, when the partnership was no longer able to pay its bills, Abdizadeh
was authorized to pursue a course of action that would be best for the
partnership. Such course included filing
bankruptcy and entering into the Settlement Agreement. That is precisely what Abdizadeh did.
For
the above reasons, we conclude the trial court correctly found that Abdizadeh
had the authority to bind the partnership.
B.
Triable Issues of Fact as to Fraud
Morschauser
contends he has alleged and proffered evidence of fraud “in connection with a
deliberate scheme to con Morschauser and the [DS partnership] out of
substantial sums of money.†According to
Morschauser, ConCap conspired with its attorneys to defraud him by
misrepresenting the amount of money owed under the loan agreements to all the
parties and the bankruptcy court, concealing information regarding the
bankruptcy order, and falsely promising to calculate the balance owed on the
loans. He accuses ConCap, through its
attorneys, of manipulating Abdizadeh, the weakest link, along with the
partnership’s attorney Bartoumian, into negotiating the Settlement Agreement to
its (ConCap’s) advantage. According to
Morschauser, the “fraudulent Settlement Agreement†created the Deed of Trust
for the $75,000 (the new lien on Parcel 2), and the additional $100,000.
“The
elements of fraud are similar to the elements of promissory estoppel, with the
additional requirements that a false promise be made and that the promisor know
of the falsity when making the promise.
[Citation.]†(
Cal.App.4th 218, 231.)
For
the most part, Morschauser’s case rests on his claim that less money was owed
than what was paid, and that respondents knew this but intended to defraud
him. As this court concluded in
Morschauser’s appeal involving GVC (Morschauser,
supra, E050809) the record shows
otherwise. Morschauser signed the
original construction loan documents, which were notarized and contain a
provision that at the end of the loan period, the loan would be termed out at
certain agreed-upon terms, including a fixed interest rate. According to Morschauser, any decision
regarding the construction loan, including whether to keep it at a variable
rate or change it to a fixed rate, was to be made by Abdizadeh, who “did the
up[]front stuff.†The loan was modified
and the interest rate was changed. Thus,
Morschauser erred in using the lower variable interest rate to calculate the
amounts owed under the loan agreements.
claim of misrepresentation of the amount owed, his claim fails.
Morschauser
claims ConCap concealed information regarding the bankruptcy court’s
order. He argues the court’s order
stated ConCap would receive $1,075,000 in exchange for the release of its
liens; however, ConCap “preyed upon Abdizadeh, who was ignorant of the
bankruptcy court’s order,†and falsely convinced him that ConCap was owed
$1,253,773, such that it was “financially advantageous for Morschauser and the
partnership to agree to accept $1,175,000, and that a $75,000 lien should
remain on parcel 2.†What Morschauser
fails to acknowledge is that the bankruptcy court’s order also stated ConCap must
receive a “full payoff by Monday August 11, 2003 at 5:00 p.m., or else the
demand is null and void.†When it became
clear the August 11 deadline would not be met, the parties entered into
the Settlement Agreement. If they had
not done so, ConCap was authorized to proceed to foreclose on the Property or
take any other action “provided for in the Notes, Agreements, Deeds, Change
Agreements or California law.†There was
no concealing of information or misrepresentation of the court’s order.
Nonetheless,
Morschauser maintains that ConCap falsely promised to calculate, correctly, the
balance owed. As previously stated,
ConCap did calculate what was owed; Morschauser did not like the calculation
and disagreed with the amount. However,
as ConCap observes, “[a] dispute as to how much was owed on the business debt
does not translate into a knowing and intentional misrepresentation by
Respondent[s].†We agree.
For
the above reasons, we conclude the trial court correctly found that
Morschauser’s fraud claim fails.
VI. NEGLIGENCE
In
his final argument, Morschauser contends ConCap had a duty to provide an
accurate accounting, to ensure that it accurately accounted for the amounts
owed, and to “make sure it did not foreclose on the property improperly by
falsifying the payoff amounts needed to avoid foreclosure.â€
“Under
the common law, banks ordinarily have limited duties to borrowers. Absent special circumstances, a loan does not
establish a fiduciary relationship between a commercial bank and its debtor. [Citation.]
Moreover, for purposes of a negligence claim, ‘as a general rule, a
financial institution owes no duty of care to a borrower when the institution’s
involvement in the loan transaction does not exceed the scope of its
conventional role as a mere lender of money.’
[Citation.] As explained in
Court (1991) 227 Cal.App.3d 318, 334, 335 . . . ‘[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.]
It is simply not tortious for a commercial lender to lend money, take
collateral, or to foreclose on collateral when a debt is not paid. [Citations.]
And in this state a commercial lender is privileged to pursue its own
economic interests and may properly assert its contractual rights. [Citation.]’â€
(Das v. Bank of American, N.A.
(2010) 186 Cal.App.4th 727, 740-741.)
Here,
Morschauser claims ConCap misrepresented the amount owed and proceeded to
foreclosure with a false payoff amount; however, this claim is based on his
opinion that the interest rate should have remained variable, not fixed. There is no evidence, other than
Morschauser’s opinion based on an incorrect premise, that ConCap misrepresented
any amount owed. Thus, the trial court
correctly ruled there was no material triable issue of fact as to ConCap’s
alleged negligence.
VII. DISPOSITION
The
judgment is affirmed. ConCap shall
recover its costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Although Morschauser also alleged negligence
and a second fraud claim (as to ConCap’s actions involving the settlement of
claims in the bankruptcy), these claims were defeated in respondents’ prior
motion for summary judgment.
name="_ftn2" title=""> [2] All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
