Fidelity National Title Co. v. Namco Capital Group

Filed 1/25/08 Fidelity National Title Co. v. Namco Capital Group CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed.

Manouchehr Tabibzadeh, in pro. per.; Law Office of Paul Tashnizi and Paul Tashnizi; Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Defendant, Cross-complainant and Appellant.

Epport, Richman & Robbins, Mark Robbins, Steven C. Huskey and Melissa M. Coyle for Defendants, Cross-defendants and Respondents.

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This is an appeal from a judgment of dismissal entered after a demurrer was sustained without leave to amend. We affirm.

FACTS

In June 1993, Manouchehr Tabibzadeh put up part of the money (at the most, 25 percent) for a $750,000 loan originally made by Namco Financial, Inc. to Namco Capital Group, Inc., and secured by real property. Namco Capital made scheduled payments on the loan for a number of years, then sold the property in 2003 and tendered $187,500 to Tabibzadeh as the balance due to him. Tabibzadeh disputed the accuracy of the accounting provided by the Namco entities and refused to reconvey his security interest. Ultimately, in July 2005, the escrow holder (Fidelity National Title Company) filed this interpleader action against the Namco entities and Tabibzadeh, and deposited the $187,500 into court.

Tabibzadeh cross-complained against the Namco entities and Ezri Namvar (who is included in our references to the Namco entities) and, following a series of sustained demurrers, filed his fourth amended cross-complaint in July 2006. The gist of the cross-complaint is that the Namco entities breached the promissory note and a related Loan Service Agreement by selling the property without first obtaining Tabibzadehs consent and by failing to tender the correct amount due under the terms of the note and other agreement, and that the entire transaction was fraudulent (and otherwise tortious). Although it appears from the fourth amended cross-complaint and its exhibits that, with the interpleaded amount, Tabibzadeh has been fully repaid (principal and interest), he nevertheless alleged that the Loan Service Agreement is some sort of agency agreement obligating the Namco entitles to pay additional sums to him.

The Namco entities demurrer to the fourth amended cross-complaint was sustained without leave to amend, the trial court explaining its ruling thus: All of the causes of action arise out of duties [Tabibzadeh] alleges [the Namco entitles] owe him pursuant to two 1993 contracts. The first contract is the written note attached as exhibit A. [Tabibzadeh] alleges he cannot remember the details of the second contract except that he loaned [the Namco entities] $37,500. He does not recall whether they repaid interest or whether the contract was written or oral. He does not state when any default occurred, but he does allege that [the Namco entities] paid him $1,490 per month for six years.

Tabibzadeh appeals from the judgment of dismissal thereafter entered.

DISCUSSION

On appeal (where he is represented by new counsel), Tabibzadeh has voluntarily abandoned all claims except his breach of contract cause of action against the Namco entities, and he concedes that his five cross-complaints are far from models of drafting clarity -- but he does not tell us what additional facts he could allege to state a cause of action, or what consideration he gave to the Namco entities in addition to the loan, or how he was damaged, or what it is that he should have received that was not paid to him. It follows that he has not stated a cause of action for breach of contract (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830), and that the demurrer to the fourth amended cross-complaint was properly sustained without leave to amend (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081).

DISPOSITION

The judgment is affirmed. Namco is entitled to its costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.