Filed 9/29/26 Shayan Capital, LLC v. Shakib CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SHAYAN CAPITAL, LLC, B348571
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 23STCV05062)
v.
EBBY SHAKIB,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Tiana J. Murillo, Judge. Affirmed.
Murphy Rosen, David E. Rosen and Anujan Jeevaprakash
for Defendant and Appellant.
Ross, Peter W. Ross and Ira Bibbero for Plaintiff and
Respondent.
________________________________
Defendant and appellant Ebby Shakib appeals from a
judgment the trial court entered against him after granting plaintiff
and respondent Shayan Capital, LLC’s (Shayan Capital) summary
judgment motion. We affirm.
FACTUAL BACKGROUND
A. The Complaint and Attached Loan Documents
In 2023, Shayan Capital sued Shakib and others in
connection with $1,600,000 Shayan Capital lent the family trust
of Shakib and his wife (the Shakib Trust) and entities affiliated
with Jamshid Goltche (not a party to this appeal) (collectively, the
borrowers).
Shayan Capital attached to its complaint four documents
related to the loan: a June 17, 2016 “installment note” obligating
the borrowers to make monthly interest payments at 9 percent
per annum and full repayment of the unpaid principal by July 16,
2018, a June 16, 2017 deed of trust securing the note with two
properties, one owned by the Shakib Trust, a June 16, 2017
guaranty purporting to bear the signatures of Shakib and Goltche
in their personal capacities, and a March 29, 2019 “modification of
promissory note and deed of trust” agreement signed by Shakib and
Goltche on behalf of the borrowers (the modification agreement).
(Capitalization omitted.)
The modification agreement purports to “amend[ ]” all “loan
documents,” which it defines as the June 16, 2017 note and deed
of trust and “all related loan documents.” (Capitalization omitted.)
“Except as otherwise expressly set forth [in the modification
agreement], [however,] all of the terms and conditions of the loan
documents . . . remain unmodified and in full force and effect and
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accurately represent the terms of the loan transaction between
[Shayan Capital] and [the] [b]orrower[s].” (Capitalization omitted.)
The agreement extends the note’s maturity date to
December 31, 2019. It further provides that, in exchange for
the Shakib Trust paying Shayan Capital $1,000,000—$800,000
towards the principal of the loan and $200,000 towards outstanding
interest—Shayan Capital will reconvey the deed of trust on the
Shakib Trust property and “immediately release the Shakib Trust
from any further obligation under the note, the loan and/or any
other loan documents, and the Shakib Trust shall have no further
obligations thereunder to [Shayan Capital].” (Capitalization
omitted.)
According to the operative complaint, per the modification
agreement, the Shakib Trust paid Shayan Capital $1,000,000, and
Shayan Capital reconveyed the deed of trust on the Shakib Trust’s
property. The modification agreement had no impact on the
Goltche-affiliated entities’ obligations under the note and deed
of trust, except that it reduced the total outstanding principal to
$800,000.
In 2022, the Goltche-affiliated entities defaulted on the loan.
B. Motion for Summary Judgment Against Shakib
Shayan Capital ultimately dismissed all defendants except
Shakib. The only claim it asserted against Shakib was for breach
of written guaranty. Through that claim, Shayan Capital sought
to recover the outstanding $800,000 in principal, with interest, from
Shakib in his capacity as a personal guarantor.
In November 2024, Shayan Capital filed a motion for
summary judgment. It argued the loan documents established on
their face that Shakib was obligated to pay the outstanding balance
of the loan and unpaid interest if the Goltche-affiliated entities
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defaulted. Shayan Capital proffered Shakib’s deposition testimony
that he had signed the guaranty.
At his deposition, Shakib was shown the guaranty, and
testified: “It’s a guarantee regarding [sic] $1,600,000 loan.
“Q: Right. Do you recall signing [the] document?
“[¶] . . . [¶]
“A: I don’t know. I think that’s my signature.
“Q: So do you know what the purpose of this document is?
Your understanding. I mean, obviously, I don’t expect you to read
it.
“A: Yeah, the guarantee. I guarantee the loan, and my—
I’m signing for the—my trust, and I sign this guarantee, actually.”
(Italics added.)
Shayan Capital also offered undisputed evidence that
the Goltche-affiliated entities had made no payments on the
loan for over two years following the modified maturity date.1
It was undisputed that neither Shakib nor Goltche had satisfied
the obligation.
Shayan Capital proffered evidence that the parties had orally
agreed to lower the interest rate to 8 percent per annum effective
January 1, 2020, and sought a judgment for the $800,000 in unpaid
principal, plus interest accruing at that reduced rate.
1 It is undisputed that the parties agreed several times
to extend the maturity date of the loan, first in the modification
agreement, then via oral agreements thereafter, and that the
loan thus did not come due until December 31, 2021.
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In opposing summary judgment, Shakib offered his own
declaration in which he denied signing the guaranty.2 He further
declared that he had located multiple (unsigned) versions of a
signature page labeled “page 25 of 25,” and multiple versions of
a page labeled “page 17 of 25” identifying parties to be noticed, in
the electronic files of his and Goltche’s partnership. (Capitalization
omitted.) The declaration attaches these and states: “I infer from
these files that they were designed to be swapped out while leaving
the other . . . pages of a document unaltered; this also means that
the signature pages could be rearranged and [I] believe that is what
may have happened with the guaranty,” which “appears to have
different fonts on [sic] for the page numbers at the bottom of pages
1, 17, and 25. [¶] . . . I also note that there are artifacts in the white
field to the right of my signature on page 25 that could have been
left by coving [sic] up signatures on the right side of the page.”
(Capitalization omitted.)
Shakib declared that he understood the modification
agreement as releasing him—not just the Shakib Trust—“from any
and all obligations to repay any amount due under the note” and
“would not have signed the modification agreement and paid
$1 million to Shayan Capital if [he] thought [he] would be liable
in any way for the repayment of any amount due under the
2 In his declaration, Shakib denied signing other loan-
related documents bearing his signature as well, but does not
reiterate these denials on appeal. For example, he declared
that he never signed the note on behalf of the Shakib Trust.
(“I did not sign the note in my fiduciary capacity as trustee of
the Shakib Trust. [¶] . . . I did not sign the note in the course of
administration of the Shakib Trust.” (Capitalization omitted.))
Our summary does not distinguish between facts Shakib never
disputed and those he no longer disputes on appeal.
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note.” (Capitalization omitted.) His wife executed a declaration to
this effect as well. Shakib also denied the parties agreed to reduce
the interest rate to 8 percent.
The court declined to consider Shakib’s declared testimony
that he had not signed the guaranty. Citing D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico), the court
explained that “a party’s admissions or concessions made during the
course of discovery”—here, Shakib’s deposition testimony—“govern
and control over the party’s contrary affidavits or declarations filed
in connection with the summary judgment motion.”
The court granted the motion and entered judgment for
Shayan Capital, awarding it $800,000, plus interest calculated
using the reduced 8 percent rate.
Shakib timely appealed.
DISCUSSION
Our review of a trial court’s grant of summary judgment
is de novo. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037.) We therefore independently analyze the admissible
evidence presented to the trial court using the summary
judgment legal framework applicable below. (Ibid.)
Under that framework, summary judgment is appropriate
“if all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); see
Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th
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1102, 1109 [“[w]e liberally construe the evidence in support of the
party opposing summary judgment [citation], and assess whether
the evidence would, if credited, permit the trier of fact to find in
favor of the party opposing summary judgment under applicable
legal standards”].)
Thus, to prevail on its summary judgment motion,
Shayan Capital needed to conclusively “prove[ ] each element of ”
its breach of guaranty cause of action (Code Civ. Proc., § 437c,
subd. (p)(1)) and establish the evidence could not support even a
triable question as to any defense. (Aguilar, supra, 25 Cal.4th
at p. 843; Paramount Petroleum Corp. v. Superior Court (2014)
227 Cal.App.4th 226, 241.) The elements of a breach of written
guaranty cause of action are: (1) a valid guaranty; (2) the
borrower has defaulted; and (3) the guarantor failed to perform
under the guaranty. (Gray1 CPB, LLC v. Kolokotronis (2011)
202 Cal.App.4th 480, 486.)
A. No Triable Question as to Shakib’s Assent to
Guaranty
Shakib argues a triable question of fact exists as to whether
he signed the guaranty, because there is conflicting evidence—his
declaration and his deposition testimony—regarding this issue.
“[A] party cannot create an issue of fact by a declaration
which contradicts his prior discovery responses.” (Shin v. Ahn
(2007) 42 Cal.4th 482, 500, fn. 12; see, e.g., Barton v. Elexsys
Internat., Inc. (1998) 62 Cal.App.4th 1182, 1191 [“[t]o the extent
these descriptions directly contradict his discovery responses,
they must be disregarded”]; Visueta v. General Motors Corp.
(1991) 234 Cal.App.3d 1609, 1613 [“[a]dmissions or concessions
made during the course of discovery govern and control over
contrary declarations lodged at a hearing on a motion for
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summary judgment”].) “This is because, as the California
Supreme Court explained in D’Amico[, supra, 11 Cal.3d 1],
‘ “Where . . . there is a clear and unequivocal admission by the
plaintiff . . . in his deposition . . . [the trial court is] forced to
conclude there is no substantial evidence of the existence of a
triable issue of fact [notwithstanding a contradictory declaration
in opposition to summary judgment].” . . . [¶] . . . [A]dmissions
against interest have a very high credibility value. This is
especially true when, as in this case, the admission is obtained
not in the normal course of human activities and affairs but in
the context of an established pretrial procedure whose purpose
is to elicit facts. Accordingly, when such an admission becomes
relevant to the determination, on motion for summary judgment,
of whether or not there exist triable issues of fact (as opposed
to legal issues) between the parties, it is entitled to and should
receive a kind of deference not normally accorded evidentiary
allegations in affidavits.’ (Id. at pp. 21–22, italics omitted . . . .)”
(Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853,
861.) Citing these principles, the court correctly disregarded
Shakib’s declared denial that he signed the guaranty.
Shakib argues these principles do not apply, because he
“identified a concrete factual basis for” that denial and offered
“corroborat[ion].” He points “[s]pecifically” to “multiple versions
of the purported signature page . . . in varying configurations . . .
appearing capable of being swapped into different compilations.”
But unsigned signature pages, however one might speculate they
could have been used, neither corroborate Shakib’s declaration
nor undercut his deposition testimony. The authority Shakib
cites to support his argument is thus inapposite, because, inter
alia, it involves a court erroneously refusing to consider not just a
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party’s declaration that undermines the party’s earlier admission
in discovery, but additional witness testimony undermining that
admission as well. (See Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1521 & 1523.) Shakib’s explanation as to why
he mistakenly testified that he signed the guarantee might have
been worthy of creating a factual dispute. But all Shakib offered
was speculation regarding tampering. That is not enough.
B. No Triable Question as to the Effect of the
Modification Agreement on the Guaranty
Shakib argues the modification agreement released
him from any obligations under the guaranty. He notes the
agreement modifies all “loan documents,” the agreement’s
definition of which includes the guaranty. (Capitalization
omitted.) But the modification agreement unambiguously
releases only obligations of the Shakib Trust—not those of Shakib
as an individual. And, “[e]xcept as otherwise expressly set forth
[in] [the modification agreement], all of the terms and conditions
of the loan documents . . . remain unmodified and in full force
and effect.” (Capitalization omitted.) Thus, however “loan
documents” is defined, the modification agreement does not
release Shakib’s personal obligations in the guaranty or any
other document. (Capitalization omitted.)
That Shakib and his wife declared they understood the
modification agreement to be releasing Shakib from his personal
guaranty obligations also does not create a triable question.
This understanding expressly contradicts the language of
the agreement. A party’s “ ‘undisclosed intent . . . is simply
inadmissible to contradict . . . language of the [contract].’ ”
(Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620,
629; see Winet v. Price (1992) 4 Cal.App.4th 1159, 1167 [“parol
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evidence is admissible only to prove a meaning to which the
language is ‘reasonably susceptible’ [citation], not to flatly
contradict the express terms of the agreement”].)
Shakib further argues that “[s]uretyship law . . . provides
an independent reason summary judgment cannot stand.” He
cites Civil Code section 2819,3 which provides: “A surety is
exonerated . . . if by any act of the creditor, without the consent
of the surety the original obligation of the principal is alter[ed] in
any respect.” (§ 2819.) Shakib points to his declared testimony
that he did not agree to the modification agreement—at least
not in his personal capacity—and that the agreement “altered
the original [loan] obligation,” thereby exonerating him as a
guarantor of the loan under section 2819. But the terms of the
guaranty include an express waiver of any protections under
that section: “Guarantor hereby further waives [¶] . . . [¶] . . .
all rights, defenses and other benefits which might otherwise be
available to guarantor under . . . [section] 2819.” (Capitalization
omitted.) The code “expressly provide[s] for” “the ability of a
surety or guarantor to waive specific defenses otherwise available
to him or her, including exoneration under section 2819.” (G & W
Warren’s, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 582; § 2856,
subd. (a) [“[a]ny guarantor or other surety, including a guarantor
of a note or other obligation secured by real property . . . may
waive any or all of the following: . . . [¶] . . . any other rights
and defenses that are or may become available to the guarantor
or other surety by reason of Sections 2787 to 2855, inclusive”].)
Thus, “[a] surety (or guarantor) may, prior to the impairment,
alteration, or suspension of the principal’s obligation, waive the
3 Unless otherwise stated, all further statutory references
are to the Civil Code.
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protections afforded him or her under section 2819.” (G & W
Warren’s, Inc. v. Dabney, supra, at pp.581–582; see also § 2856,
subd. (b) [“[a] contractual provision that expresses [such a
waiver] . . . shall be effective . . . without regard to the inclusion
of any particular language or phrases”].) Shakib offers no
evidence suggesting his waiver in the guaranty is invalid for
any reason. Section 2819 is thus of no assistance to him.
C. Shakib Lacks Standing To Argue Interest
Awarded Was Too Low
Shayan Capital proffered evidence that the parties orally
agreed to reduce the interest rate on the loan to 8 percent per
annum starting January 1, 2020. Shakib proffered evidence
that the parties did not modify the note’s original 9 percent per
annum interest rate. Shakib argues this conflicting evidence
creates a triable question as to the amount of interest due. He
argues the court therefore erred when it resolved the question in
favor of the 8 percent figure, rather than letting the jury resolve
it.
Shakib does not have standing to raise this issue, because
he was not “aggrieved” by it. (Code Civ. Proc., § 902 [“[a]ny party
aggrieved may appeal in the cases prescribed in this title”].) To
the contrary, the error Shakib identifies worked to his benefit:
It resulted in Shakib owing Shayan Capital less than Shakib
contends the guaranty requires. (See Estate of Kempton (2023)
91 Cal.App.5th 189, 202 [“[a]n appellant is considered ‘aggrieved’
whose rights or interests are injuriously affected by the judgment
under review”].) An appellate court “will not entertain an
appeal” from a party that benefits from the trial court ruling
appealed. (Canal-Randolph Anaheim, Inc. v. Wilkoski (1980)
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103 Cal.App.3d 282, 289, fn. 6.) We thus consider the argument
no further.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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