Filed 7/27/26 Saint Andrews Equities v. Curry Parkway CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SAINT ANDREWS EQUITIES, LLC, B343960
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
20TRCV00565)
CURRY PARKWAY, L.P.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. David K. Reinert, Judge. Affirmed.
Law Office of Richard Jacobs and Richard B. Jacobs for
Plaintiff and Appellant.
Fike & Boranian and David A. Fike for Defendant and
Respondent.1
1 Platino, Inc. was also a named defendant, although the
October 28, 2024 minute order shows the trial court and the
parties agreed to refer to Curry Parkway, L.P. and Platino, Inc.
together as Curry Parkway, L.P. throughout the proceedings.
The judgment did not name Platino, Inc. as a defendant, but the
same minute order stated “judgment will be entered as to both
This case comes before us a second time. It arises from the
nonjudicial foreclosure of a deed of trust held by defendants
Curry Parkway, L.P. and Platino, Inc. (Curry Parkway) that
encumbered a commercial property owned by plaintiff Saint
Andrews Equities LLC (Saint Andrews). The deed of trust was
secured by a promissory note executed by Saint Andrews in the
amount of $300,000. Saint Andrews maintained the foreclosure
was wrongful, principally because Curry Parkway had refused to
accept Saint Andrews’s offer of a cash-only pay-off of the note,
requiring instead payment by a wire transfer or cashier’s check.
Saint Andrews then sued Curry Parkway for breach of contract
and wrongful foreclosure. Following a three-day trial, the jury
returned a special verdict finding in favor of Curry Parkway on
both causes of action. Saint Andrews appeals from the judgment,
claiming (1) Curry Parkway’s refusal to accept the cash payment
offer was unlawful; and (2) the evidence failed to show Saint
Andrews was in default at the time of the foreclosure sale. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Saint Andrews is a real estate development company. In
June 2019, Saint Andrews purchased a commercial property in
Gardena, California, from the Carolyn C. Auswerger Trust
(Trust). The purchase was financed by a loan from the Trust,
evidenced by a $300,000 promissory note and secured by a deed
of trust. In March 2020, Saint Andrews defaulted on the loan. A
Defendants.” Based on the briefs and other documents filed with
this court, we assume Curry Parkway, L.P. is the sole respondent
on appeal.
2
foreclosure sale of the Gardena property was scheduled for
August 6, 2020.
Curry Parkway is in the business of buying and selling
commercial properties with funding provided by third party
private investors. On or about August 1, 2020, prior to the
scheduled foreclosure sale, the Trust assigned its rights under
the promissory note and deed of trust to Curry Parkway.
In early August 2020, e-mails were exchanged between
Chris Mathys of Curry Parkway and Benjamin Ellenberg, Chief
Operating Officer of Saint Andrews: On August 4, 2020, Mathys
notified Ellenberg of the assignment and advised him the loan
was in default with a balance due that included unpaid property
taxes. After some discussion, they agreed to delay the pending
foreclosure sale to August 13, 2020, to negotiate a reinstatement
of the loan. In an August 5, 2020 e-mail to Mathys, Ellenberg
confirmed “foreclosure . . . has been postponed while we put
together an agreement between your office and mine.” The same
day, Mathys proposed a series of conditions for reinstatement,
one of which was the deposit of a cashier’s check in the amount of
$28,247.08 with First American Trustee (foreclosure trustee) by
August 7, 2020. The funds were “to cure loan delinquencies, legal
fees, [and] past due property taxes.” The check was not sent. No
agreement was reached to reinstate the loan.
In an August 10, 2020 e-mail to the foreclosure trustee,
Ellenberg stated that Saint Andrews had decided to pay off the
promissory note in full and had requested a pay-off demand from
Mathys. Ellenberg added the loan was to be paid off in cash to be
hand-delivered to the foreclosure trustee. The same day, Mathys
e-mailed Ellenberg a pay-off statement in the amount of
$325,762. Mathys stated the pay-off amount was “good” through
3
the day of the foreclosure sale on August 13, 2020. Mathys also
informed Ellenberg that the foreclosure trustee would not accept
a cash payment; only a wire transfer to a designated bank or a
cashier’s check was acceptable. Saint Andrews never delivered
the pay-off amount.
On the day of the foreclosure sale, the trial court heard and
denied Saint Andrews’s request for a temporary restraining order
to stop the sale from proceeding. The sale went forward as
scheduled on August 13, 2020, and the Gardena property was
sold to a third party bidder for $403,500.01. Saint Andrews
neither attended the sale nor bid on the Gardena property.
Saint Andrews filed suit against Curry Parkway. In the
operative pleading, the second amended complaint, Saint
Andrews alleged seven causes of action against Curry Parkway.
Only two of them, breach of contract and wrongful foreclosure,
were submitted to the jury.
The jury rendered a special verdict on October 30, 2024,
making findings in favor of Curry Parkway on both causes of
action. Specifically, the jury found a contract existed between
Saint Andrews and Curry Parkway, Saint Andrews failed to do
all, or substantially all, of the significant things the contract
required, and failed to cure its breach of the contract. The jury
further found the foreclosure sale of the Gardena property was
not wrongful.
Judgment in favor of Curry Parkway was entered on
November 18, 2024. This appeal followed the trial court’s denial
of Saint Andrews’s new trial motion.
4
DISCUSSION
A. Curry Parkway Was Not Obligated to Accept Cash as
the Manner of Payment
Saint Andrews initially contends Curry Parkway was
compelled by state and federal law to accept Saint Andrews’s
offer of cash because it was valid legal tender as defined by title
31 United States Code section 5103.2 The statute provides in
part: “United States coins and currency . . . are legal tender for
all debts, public charges, taxes, and dues.”3 Saint Andrews’s
claim would be cognizable on appeal if Curry Parkway had either
questioned the validity of the cash offer as legal tender or sought
to confer legal tender status on the requested wire transfer or
cashier’s check. (See Berry v. Hannigan (1992) 7 Cal.App.4th
587, 590, and cases cited therein.) Neither occurred here. The
record shows Curry Parkway rejected the cash offer as a manner
of payment, not as valid legal tender.
It is not unlawful for an individual, or a private or public
entity to favor another manner of payment over cash in the
normal course of business.4 Under federal law, a the Board of
2 Saint Andrews cites no California authority to support
this claim.
3 Congress enacted this and other legal tender provisions in
response to its express constitutional authority. (See U.S. Const.,
art. 1, § 8, cl. 5 and § 10, cl. 1.)
4 Chris Mathys of Curry Parkway testified that cash is not
acceptable for business purposes because the source of the cash
would have to be identified. The usual practice of receiving loan
pay-offs is either by a wire transfer or a cashier’s check. David
Bark testified, on behalf of the foreclosure trustee, that loan pay-
5
Governors of the Federal Reserve explained: “There is no federal
statute mandating that a private business, a person, or an
organization must accept currency or coins as payment for goods
or services. Private businesses are free to develop their own
policies on whether to accept cash unless there is a state law that
says otherwise.” (https://www.federalreserve.gov/faqs/currency
12772.htm [as of July 6, 2026], archived at
statute requiring vehicle-towing companies to accept credit cards
because “[t]he legislation simply requires that towing and storage
facilities accept credit cards as a manner of paying legal tender.”
(Berry v. Hannigan, supra, 7 Cal.App.4th at p. 590.) The court
observed “there is a distinction between legislation requiring the
acceptance of checks or credit cards as a manner of payment,
which carry a promise to pay in legal tender, from legislation
establishing that checks or credit cards discharge debts upon
presentation without any recourse against the payee.” (Ibid.)
The record shows the issue before the jury was whether
Curry Parkway properly advised Saint Andrews of its objections
to cash as the manner of payment. The trial court instructed the
jury pursuant to Code of Civil Procedure section 2076: “The
person to whom a tender is made must, at the time, specify any
objection he may have to the money, instrument, or property, or
he must be deemed to have waived it; and if the objection be to
the amount of money, the terms of the instrument, or the amount
or kind of property, he must specify the amount, terms, or kind
offs are typically made by a wire transfer or a cashier’s check, not
in cash.
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which he requires, or be precluded from objecting afterwards.”
This is a question of fact, which the jury necessarily determined
in favor of Curry Parkway to find the foreclosure sale was not
wrongful. Saint Andrews does not dispute the sufficiency of the
evidence to support this finding.
Whether the cash offer constituted valid legal tender was
not an issue at trial. It was neither a question of law for the trial
court to decide nor for us to review on appeal.
Saint Andrews also faults the special verdict form,
specifically challenging a purported question as one of law for the
trial court to decide: “14b. Was this sale wrongful because Curry
Parkway waived any objections to the offer of cash payment at
the time of the offer?” However, in our reading of the special
verdict form we discern no such question. The form only has
questions numbered 1 through 11 with various lettered subparts,
none of which include the language Saint Andrews is now
contesting. Further, the record does not show, and Saint
Andrews does not assert, that it objected to the special verdict
form as given to the jury or submitted a proposed form to be used
instead.
B. Saint Andrews Failed to Satisfy Its Burden of Proof
Saint Andrews’s trial theory, in part, was the August 13,
2020 nonjudicial foreclosure sale was wrongful because “the
default was cured.” In other words, Saint Andrews was current
on its loan payments. However, the jury made factual findings
that Saint Andrews had not done all it was substantially required
to do under the contract, which included curing the default, and
the foreclosure sale was therefore not wrongful. Saint Andrews
now alternatively contends the jury got it wrong.
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The burden was on Saint Andrews to show the debt was not
in default to preclude a foreclosure sale. (Nguyen v. Calhoun
(2003) 105 Cal.App.4th 428, 440 [“ ‘The trustor-mortgagor or the
person who alleges that a debt has been paid has the burden of
proving payment.’ ”].) Once the existence of a debt is established,
the burden to prove payment is on the debtor. (McKay v. McKay
(1921) 184 Cal. 742, 747–748; Egilbert v. Hall (1941) 44
Cal.App.2d 305, 307–308.)
Because Saint Andrews had the burden of proof at trial, the
question on appeal is whether the evidence compels a finding in
favor of Saint Andrews as a matter of law. (Roesch v. De Mota
(1944) 24 Cal.2d 563, 570–571; Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th
456, 464–466.) Saint Andrews cannot foist its burden of proof on
Curry Parkway by claiming it failed to provide an accounting of
Saint Andrews’s default on the loan.
Saint Andrews faces a daunting standard on review. A
defense judgment based on failure of proof will be upheld unless
the plaintiff’s evidence is “uncontradicted and unimpeached,” and
“of such a character and weight as to leave no room for a judicial
determination that it is insufficient to support a finding.”
(Roesch v. De Mota, supra, 24 Cal.2d at p. 571; Sonic
Manufacturing Technologies, Inc. v. AAE Systems, Inc., supra,
196 Cal.App.4th at p. 466.) Saint Andrews failed to meet that
standard.
Saint Andrews’s evidence at trial consisted of the testimony
of Benjamin Ellenberg and related exhibits. Ellenberg testified
the $400,000 Gardena property was purchased with a $100,000
down payment and a $300,000 loan from the Trust secured by a
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deed of trust. Its monthly loan payments were $1,932.90. Saint
Andrews made these payments until “early to mid-2020.”
Ellenberg testified he received a notice of default in the
amount of $3,362.84 to date from the Trust in March 2020. The
Trust then exercised its assignment of rents provision and began
collecting the $4,000 in monthly rent payments directly from the
Gardena property tenant at the time.5 Ellenberg testified Saint
Andrews also sent the Trust a cashier’s check for $10,000 to
make sure the loan payments were current.6 Saint Andrews’s
“initial default” was “a little bit less of [sic] two months.”
Two weeks after sending the check, Saint Andrews received
notice the loan had been sold to Curry Parkway. Ellenberg
testified he told Curry Parkway the loan had been made current.
But the foreclosure sale occurred anyway. Ellenberg testified he
also asked Curry Parkway several times for an accounting, but
he never received one.
Ellenberg further testified that over a six-month period
(from March through August 2020), Curry Parkway would have
received the $4,000 in monthly rent payments from the tenant
plus the $10,000 check to the Trust totaling $34,000 in payments.
Ellenberg testified that sum was more than the $27,651.36 in
“Unpaid Charges” shown in the August 10, 2020 pay-off demand,
suggesting Saint Andrews could not have been in default.
5 The Trust had originally leased the Gardena property to
Aerodynamics Plating Co., Inc. The Trust assigned the lease to
Saint Andrews as part of the purchase price. Saint Andrews
continued the collection of monthly rent payments from
Aerodynamics Plating Co., Inc., until defaulting on the loan.
6 The copy of the check to the Trust, admitted into evidence
as exhibit 13, is illegible.
9
Ellenberg’s testimony and related exhibits do not compel a
finding that Saint Andrews was not in default as a matter of law
on the date of the foreclosure sale. First, while Ellenberg insisted
at trial “we were current on the loan”—i.e. the default had been
cured—his August 5, 2020 e-mail shows he intended to negotiate
a reinstatement of the loan. When that failed, Saint Andrews
decided to pay off the loan in full. We agree with Curry Parkway
that Saint Andrews “cannot have it both ways.”
Second, Ellenberg’s attempt to reconstruct the purported
payments to Curry Parkway using the tenant’s rent payments
and the $10,000 check lacked evidentiary support. There was no
proof that those monies, if indeed sent and received, were
actually applied to the default. Saint Andrews’s position the
default had been cured, based on Ellenberg’s testimony, was
entirely speculative. We find no reason to disturb the special
verdict and judgment.
Saint Andrews resists this conclusion by producing three
charts in its opening brief. Each chart displays a series of dates
with either a dollar “Amount Owed” or “Payments Made.” These
charts were neither introduced as evidence nor supported by any
evidence admitted at trial. We decline to consider them.
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DISPOSITION
The judgment is affirmed. Saint Andrews is to bear costs
on appeal.
LUI, P. J.
We concur:
CHAVEZ, J.
GOORVITCH, J.
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