Opinion
F083456
06-28-2023
RANDEEP S. DHILLON, Plaintiff and Appellant, v. STATE BANK OF INDIA (CALIFORNIA), Defendant and Respondent.
Darren J. Bogie; Law Office of Forrest R. Miller, Forrest R. Miller; Law Office of Reshma Kamath and Reshma Kamath for Plaintiff and Appellant. Enenstein Pham & Glass, Teri T. Pham and Alvaro Montenegro for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BCV-19-101602 Thomas S. Clark, Judge.
Darren J. Bogie; Law Office of Forrest R. Miller, Forrest R. Miller; Law Office of Reshma Kamath and Reshma Kamath for Plaintiff and Appellant.
Enenstein Pham & Glass, Teri T. Pham and Alvaro Montenegro for Defendant and Respondent.
OPINION
DE SANTOS, J.
Plaintiff Randeep S. Dhillon appeals a judgment in favor of defendant State Bank of India (California) (SBIC), following the trial court's order granting SBIC's summary judgment motion on Dhillon's claims for fraud and intentional misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair and deceptive business practices, unjust enrichment, and accounting. Dhillon contends the trial court erred in applying the doctrines of res judicata and collateral estoppel to bar relitigation of claims and issues raised by his complaint. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, Dhillon purchased a 153-acre pistachio farm located in Bakersfield (the property) from R&M Kent Family Ltd. Partnership for $7,420,500. To finance part of the purchase price, Dhillon borrowed $2.16 million from State Bank of India (California) (SBIC).
Dhillon's wife, Kamalpreet K. Sidhu, was a co-purchaser of the property and her name appears on the 2006 and 2007 loan documents, as well as some subsequent transactions pertaining to the 2007 loan. Since she is not a party in this lawsuit and her role in these transactions is irrelevant to the issues in this appeal, we refer only to Dhillon's role in the purchase and subsequent transactions.
In November 2007, Dhillon refinanced the loan by taking out a $4.626 million loan from SBIC with a November 2012 maturity date (the 2007 loan). Dhillon signed a $4.626 million promissory note (the 2007 note) and allowed a deed of trust to be recorded on the property as security for the 2007 loan. Dhillon also executed a commercial security agreement, which granted SBIC a security interest in Dhillon's personal property.
By October 26, 2011, Dhillon had defaulted on the 2007 note by, among other things, failing to make his monthly payments. Dhillon entered into a "Forbearance and Settlement Agreement" with SBIC (forbearance agreement) in which Dhillon acknowledged and agreed he owed $4,361,641.84 in principal and interest on the 2007 note as of October 15, 2011.
Unbeknownst to SBIC, Dhillon transferred title in the property to a third party, BlueGreenPista Enterprises, Inc., in April 2010.
Pursuant to paragraph 2(d) of the forbearance agreement Dhillon promised, among other things, to cure the defaults and pay $430,000 by October 2012 to cover the monthly payments due under the 2007 note from October 15, 2012, through September 15, 2013. Dhillon later defaulted under the terms of the 2007 note and forbearance agreement by failing to make the payments agreed upon in the forbearance agreement. Dhillon told SBIC he was attempting to refinance the 2007 Loan, which would be completed by the end of June 2013. Based on Dhillon's representation, SBIC agreed to extend the 2007 note's maturity date to June 25, 2013. Dhillon, however, failed to refinance the property and pay off the 2007 note, which remained in default.
On January 31, 2014, the parties entered into a change in terms agreement by which SBIC agreed to extend the 2007 note's maturity date to June 30, 2015. Dhillon acknowledged and agreed he owed a principal amount of $3,803,865.57 under the 2007 note. Dhillon agreed to make monthly principal and interest payments of $23,316.61 beginning on February 28, 2014, with a final principal and interest payment of $3,616,313.84 due on June 30, 2015. Dhillon, however, defaulted once again when he failed to make the monthly principal and interest installment payment that was due on July 31, 2014, and failed to pay the subsequent monthly payments.
SBIC initiated nonjudicial foreclosure proceedings in December 2014, by recording a notice of default, and recorded a notice of trustee's sale in March 2015. The following month Dhillon filed a verified complaint against SBIC and others alleging quiet title, fraud, and other claims, in Kern County Superior Court case No. S-1500-CV-284468-SPC (the quiet title case).
On June 30, 2015, the 2007 note matured under the change of terms agreement and the entire balance, including principal and interest, became due and payable.
In July 2015, Dhillon sought an injunction in the quiet title action to prevent SBIC from proceeding with the foreclosure sale on the basis that SBIC allegedly miscalculated the loan amounts and made false and intentional misrepresentations regarding the loan's status. The superior court denied the injunction.
The Foreclosure Action
On December 5, 2016, SBIC filed a complaint against Dhillon in Kern County Superior Court case No. BVC-16-102839, for judicial foreclosure of the property under the 2007 note and subsequent agreements (the foreclosure action). That same month, SBIC sold and assigned all of its interests in the 2007 note and deed of trust to Joseph P. Romance. On January 10, 2017, Romance recorded a Notice of Trustee's Sale against the property and nine days later, he substituted into the foreclosure action as plaintiff in SBIC's place.
On February 6, 2017, Romance elected to nonjudicially foreclose on the property. Romance subsequently filed a first amended complaint in the foreclosure action, alleging a balance of $292,714.06 remained due and owing under the 2007 note following the foreclosure sale, and he was entitled to possess and foreclose on Dhillon's personal property used as collateral pursuant to a security interest SBIC perfected by filing a UCC Financing Statement.
Romance moved for summary judgment in January 2018. Romance argued the creation, attachment, and perfection of his security interest were undisputed, as were Dhillon's breach and wrongful withholding of possession of the personal property collateral. Dhillon opposed the motion and submitted his declaration in support of his opposition. Dhillon argued he paid $233,166.10 to SBIC prior to Romance's purchase of SBIC's interest, which made the foreclosure on the 2007 note improper, and he was wrongly deprived of his right to complete the purchase of the property from SBIC.
Dhillon stated in his declaration: timely loan payments were made to SBIC from December 2007 through June 2014; thereafter, SBIC rejected his attempts to make payments on the loan, which resulted in a default that was not his fault; in May 2015, he tendered $233,166.10 to SBIC to cure the default and SBIC thereafter confirmed the loan payments were current; SBIC failed to give him a payoff amount, which wrongfully deprived him of his right to pay off the SBIC loans and obtain clear title to the property; SBIC's attorney ignored his attorney's communications concerning an investor to potentially purchase the remaining interest in the property; and any default resulting in foreclosure was created by SBIC's unwillingness to accept payment on the note.
On May 7, 2018, the trial court issued a minute order granting Romance's summary judgment motion. On August 23, 2018, judgment was entered in Romance's favor and against Dhillon, in pertinent part, as follows: (1) the principal amount due on the SBIC note is $278,417.77 and judgment is entered in that amount; (2) Romance is entitled to immediate possession of the personal property collateral; (3) Dhillon shall release the personal property collateral to Romance; (4) a writ of possession for the personal property collateral shall issue which Romance is authorized to foreclose on; and (5) the sale proceeds shall be applied to reduce the $278,417.77 judgment (the foreclosure judgment).
Dhillon filed a notice of appeal from the foreclosure judgment in August 2018. We dismissed the appeal on August 9, 2019, because Dhillon failed to file an opening brief. The remittitur issued on October 15, 2019. No further appeal of the foreclosure judgment was filed, and the judgment is now final.
The Underlying Action
In June 2019, while the appeal in the foreclosure action was pending, Dhillon filed the present action against SBIC. The operative second amended complaint alleged causes of action for fraud/intentional misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair and deceptive business practices, unjust enrichment, and accounting. These causes of action are based on Dhillon's allegations that SBIC failed to conduct an accurate accounting of the 2007 note balance, which led to miscalculations and discrepancies in loan statements, and resulted in an incorrect notice of default being issued prior to the foreclosure, as the amount owed was incorrect. Dhillon also alleged he attempted to cure the default by paying SBIC $233,166.10 in April 2015, and while SBIC issued a letter stating the loan was current, SBIC then stated the payment was insufficient, refused to provide a correct amount due under the loan, and failed to reinstate the loan before transferring its interest to Romance.
Chicago Title Insurance Company was also a named defendant. After the trial court sustained Chicago Title's demurrer with leave to amend, Dhillon dismissed Chicago Title from the action with prejudice.
Dhillon alleged SBIC wrongfully administered the loan in numerous ways, including: (1) charging a higher interest rate than provided in the loan agreement; (2) providing conflicting monthly statements; (3) rescinding a principal reduction without informing Dhillon; and (4) keeping two sets of books on the loan.
SBIC filed a motion for summary judgment or, in the alternative, summary adjudication, on the following grounds: (1) the statute of limitations barred all causes of action; (2) Dhillon could not prove facts sufficient to establish his claims; and (3) the litigation privilege barred any claims based on communications of counsel. Dhillon opposed the motion. In his memorandum of points and authorities, Dhillon disclosed Romance obtained a $278,417.77 judgment against him, which he claimed was "based 'solely' on all actions and failures of proper accounting that were set in motion by SBIC." In its reply brief, SBIC questioned Dhillon's reliance on the judgment in the foreclosure action, but asserted that to the extent he was claiming SBIC was liable to him based on privity with Romance, Dhillon was collaterally estopped from so arguing. SBIC asserted Dhillon apparently was attempting to challenge the foreclosure judgment in this lawsuit, which he could not do under the doctrines of res judicata and collateral estoppel.
At the May 19, 2021 hearing on the summary judgment motion, after the parties argued and submitted the matter, the trial court continued the hearing to August 31, 2021, and ordered supplemental briefing addressing the issues of res judicata and collateral estoppel. The trial court set out a briefing schedule, with SBIC filing opening points and authorities, Dhillon filing an opposition, and SBIC filing a reply brief.
In its supplemental opening brief, SBIC argued the collateral estoppel and res judicata doctrines barred all of Dhillon's claims, as the issues Dhillon was raising in the current action were adjudicated in the foreclosure action. SBIC argued all elements of both doctrines were satisfied as follows: (1) Dhillon's allegations of SBIC's wrongful conduct in the current action were raised in the foreclosure action and both actions involved the alleged violation of the same primary right; (2) the issues either were actually litigated in the foreclosure action or could have been raised in that action; (3) the issues raised in this action were necessarily decided in the foreclosure action; (4) the foreclosure judgment is final and on the merits; and (5) Dhillon was a party to both actions and either SBIC or its successor-in-interest or privity, Romance, was a party to both actions. SBIC asked the trial court to take judicial notice of specific records filed in the foreclosure action.
In his supplemental opposition brief, Dhillon asserted that because his complaint was grounded in SBIC's fraud and breach of contract, neither res judicata nor collateral estoppel applied. Dhillon argued res judicata, or claim preclusion, could not apply as the two actions did not involve the same causes of action between the same parties. Dhillon further argued collateral estoppel, or issue preclusion, did not apply as the issues in the two cases were not identical and the allegations in the current case were not actually litigated and necessarily decided in the foreclosure action. Dhillon asked the trial court to take judicial notice of certain documents filed in the foreclosure action, as well as the November 2007 commercial security agreement between Dhillon and SBIC.
In reply, SBIC argued the foreclosure action dealt with the same issue in dispute in this lawsuit, namely, whether Dhillon defaulted on the 2007 note which entitled the lender to foreclose on the collateral. SBIC asserted this issue was resolved in its favor in the foreclosure action-that Dhillon owed money on the 2007 note and Romance was entitled to foreclose on the collateral as SBIC's assignee or successor-in-interest. SBIC contended that because the issue of whether Dhillon paid the 2007 note remained the same after Romance substituted into the foreclosure action, every defense Dhillon had against SBIC based on SBIC's alleged wrongful conduct as to the 2007 note was available as a defense against Romance's claim of liability on the loan. SBIC further contended that in deciding whether the personal property collateral would be executed to procure repayment of the 2007 note, the foreclosure action court was necessarily required to determine whether the note had been paid; therefore, it necessarily decided the conduct and performance of the parties under the loan. Finally, SBIC asked the trial court to grant summary judgment based on the additional grounds set forth in its moving papers.
At the continued hearing on the summary judgment motion, the trial court granted the motion on res judicata and collateral estoppel grounds. The trial court took judicial notice of the court records in the foreclosure action and noted Dhillon's opposition memorandum to Romance's summary judgment motion showed he argued that" 'SBIC was put on notice of all the inaccuracies of the loan statements and balances.' "
The trial court reviewed the entire foreclosure action case file and took judicial notice of a June 4, 2018 order granting Romance's summary judgment motion. The trial court quoted at length from the June 4, 2018 order as follows:" 'The Court finds that there is no triable issue of material fact as to: (1) the formation of the subject SBIC Promissory Note in the original principal amount of $4,626,000 ("SBIC Note") and the related Commercial Security Agreement ("SBIC Security Agreement") both dated November 19, 2007; (2) the performance of Plaintiff's predecessor under the SBIC Note and SBIC Security Agreement; (3) Defendants' breach of the SBIC Note and SBIC Security Agreement; (4) the assignment of the SBIC Note and SBIC Security Agreement to Plaintiff; (5) Plaintiff's demand for delivery of the personal property collateral securing the SBIC Note and pledged by Defendants under the SBIC Security Agreement; (6) Defendants' failure to deliver all of the personal property collateral upon Plaintiff's demand; and (7) Plaintiff's right to foreclose said collateral to apply to the balance due in the principal amount of $278,417.77 or to have judgment for the balance due should Defendants fail to deliver the personal property collateral.' "
The trial court noted the foreclosure action court entered judgment in the amount of $278,417.77 against the defendants in that case, which included Dhillon. The trial court determined that based on Dhillon's arguments opposing the motion and the summary judgment order, the foreclosure action court necessarily considered Dhillon's loan from SBIC, which was the same loan in dispute in the present case, "considered the 'inaccuracies' arguments," and found Romance's predecessor SBIC had performed under, and Dhillon breached, the 2007 note and security agreement, which resulted in a judgment that had been finally adjudicated. Accordingly, the trial court found "res judicata and/or collateral estoppel applies to bar this action" and granted summary judgment in SBIC's favor.
DISCUSSION
I. Standard of Review
The standards governing summary judgment motions and appellate review of them are well established. Summary judgment is proper if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) When a defendant moves for summary judgment, the defendant has the initial burden of presenting evidence sufficient to establish either that the plaintiff cannot prove one or more elements of the causes of action asserted in the complaint, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If the defendant does so, the burden then shifts to the plaintiff to produce admissible evidence demonstrating there is a triable issue of material fact as to the claim or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.)
We review the trial court's ruling on a summary judgment motion de novo and independently determine whether the moving party is entitled to judgment as a matter of law. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).) We consider all the evidence set forth in the moving and opposing papers, except that as to which objections have been made and sustained. (Code Civ. Proc., § 437c, subd. (c).) We liberally construe the evidence in favor of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (Hampton, at p. 347.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)
" '[A]lthough we use a de novo standard of review here, we do not transform into a trial court.'" (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379 (Dinslage).) As with any appeal, we approach a summary judgment appeal with the presumption the judgment or trial court ruling is correct and error must be affirmatively shown by the appellant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore,"' "[o]n review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] ... 'As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'" '" (Dinslage, at p. 379; accord, Centex Homes v. St. Paul Fire &Marine Ins. Co. (2018) 19 Cal.App.5th 789, 796 [same principles stated, including that appellate review is limited to contentions adequately raised in the appellant's briefs]; Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645 [same, noting an appellant challenging a summary judgment bears the burden of establishing error on appeal, even though the respondent had the burden of proving its right to summary judgment in the trial court].)
II. Claim and Issue Preclusion
The trial court granted summary judgment on the ground the foreclosure action precluded litigation of Dhillon's claims in the current action under the doctrines of res judicata and collateral estoppel. "The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case." (Samara v. Matar (2018) 5 Cal.5th 322, 326 (Samara).) California courts generally "now refer to 'claim preclusion' rather than 'res judicata'" and" 'issue preclusion' in place of 'direct or collateral estoppel.'" (Ibid.; accord, Grande v. Eisenhower Medical Center (2022) 13 Cal.5th 313, 323.) "Claim and issue preclusion have different requirements and effects." (Samara, supra, 5 Cal.5th at p. 326.)
"Claim preclusion 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.'" (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824, second italics added (DKN Holdings); see Samara, supra, 5 Cal.5th at p. 326 [claim preclusion applies to "entire causes of action"].) "Causes of action are considered the same if based on the same primary right." (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 325.) "If claim preclusion is established, it operates to bar relitigation of the claim altogether." (DKN Holdings, at p. 824.) "[C]laim preclusion applies not just to what was litigated, but more broadly to what could have been litigated." (Guerrero v. Department of Corrections &Rehabilitation (2018) 28 Cal.App.5th 1091, 1098, italics added.)
Issue preclusion, by contrast, "prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action." (DKN Holdings, supra, 61 Cal.4th at p. 824, italics added.) "It applies only '(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.'" (Samara, supra, 5 Cal.5th at p. 327.)
" 'The "identical issue" requirement addresses whether "identical factual allegations" are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.'" (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511512, italics added (Hernandez).) "[A]n issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding." (Id., at p. 511, italics added.) "The 'necessarily decided' requirement generally means only that the resolution of the issue was not' "entirely unnecessary" to the judgment in the initial proceeding.'" (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 83.) "In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding." (Hernandez, at p. 511.)
Even if the threshold requirements for issue preclusion are satisfied, a court will not apply the doctrine if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 879), or the party to be estopped did not have a full and fair opportunity to litigate the issue in the prior proceeding (Zevnik v. Superior Court, supra, 159 Cal.App.4th at p. 82).
III. Forfeiture
As a threshold matter, we note Dhillon contends the trial court erred in granting summary judgment on grounds of claim and issue preclusion because (1) SBIC did not plead claim preclusion as an affirmative defense, and (2) SBIC did not assert either doctrine as a ground for summary judgment in its original motion. We do not consider the merits of either argument, however, since Dhillon failed to preserve them by raising them below. (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1074 [" 'arguments not raised in the trial court are forfeited on appeal' "].)
Dhillon does not show he raised a procedural objection in the trial court based on either SBIC's failure to plead claim preclusion as a defense or the trial court's decision to consider claim and issue preclusion as grounds for the motion. Instead, the record shows he argued the merits of the doctrines as if they had been pleaded and properly raised. He "may not assert the pleading defect for the first time on appeal." (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 48; see Roybal v. University Ford (1989) 207 Cal.App.3d 1080, 1087-1088 &fn. 6 [rejecting plaintiff's claim the defendant waived right to raise claim preclusion by not pleading it as an affirmative defense; plaintiff did not contend issue was not properly before the court when defendant raised the defense in summary judgment motion].)
The record shows at the May 2021 hearing on the summary judgment motion the trial court ordered the parties to submit supplemental briefing addressing claim and issue preclusion and set out a briefing schedule. While the parties submitted supplemental briefs addressing the merits of these doctrines, Dhillon did not object to the trial court considering the issue in his opposition; neither does the record show he objected at either hearing on the summary judgment motion. By failing to object in the trial court, Dhillon forfeited these issues. (Monarch Healthcare v. Superior Court, supra, 78 Cal.App.4th at pp. 1286-1287 [plaintiffs forfeited claim trial court lacked jurisdiction to grant motion to compel on grounds not stated in notice of motion or moving papers by failing to object below].)
Dhillon asserts in his reply brief that he "was not afforded the opportunity to defend against any purported assertion of issue or claim preclusion presented by [SBIC]." His assertion is belied by the record-he was given a full opportunity to defend against SBIC's arguments that claim and issue preclusion applied to the present action. Therefore, his due process right to notice and an opportunity to be heard was satisfied. (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286-1287 [due process principles call for party to be given opportunity to brief new issue raised by the trial court at hearing on motion to compel where issue was not asserted in notice of motion or moving papers]; Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 860 [trial court may grant summary judgment on a ground not tendered by moving party if opposing party has notice of and an opportunity to respond to that ground].)
IV. Issue Preclusion
Dhillon contends issue preclusion does not apply because the issues to be precluded in this action are not identical to the issues in the foreclosure action and were not actually litigated or necessarily decided in that action.
Dhillon does not challenge the other elements required to apply issue preclusion, namely, the finality of the foreclosure action and that he was a party to both proceedings.
A. Identical Issues
Dhillon contends the issues in the foreclosure action are not identical to the issues in this case, as in the foreclosure action he was defending against the only claim Romance raised, namely, possession of personal property held as collateral. Dhillon claims he was unable "to seek affirmative redress directly against SBIC for misconduct and fraud in the administration of the loan because the uncertainty of the original loan amount was not relevant," and he could not assert SBIC's fraud against Romance since Romance was a bona fide purchaser for value of the real property.
Dhillon misapprehends the identical issue requirement, which" 'addresses whether "identical factual allegations" are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.'" (Hernandez, supra, 46 Cal.4th at pp. 511-512.) "Although the focus is on the identity of the specific issue litigated and decided based on the facts presented, it has also been held that '[a]n issue decided in a prior proceeding establishes [issue preclusion] even if some factual matters or legal theories that could have been presented with respect to that issue were not presented. [Citations.] A prior decision does not establish [issue preclusion], however, on issues that could have been raised and decided in the prior proceeding but were not.'" (Textron Inc. v. Travelers Casualty &Surety Co. (2020) 45 Cal.App.5th 733, 747.) This rule requires scrutiny of each case "to determine whether a particular issue was raised even though some legal theory, argument or 'matter' relating to the issue was not expressly mentioned or asserted." (Clark v. Lesher (1956) 46 Cal.2d 874, 880-881.) As one appellate court explained, "the factual predicate of the legal issue decided in the prior case must be sufficient to frame the identical legal issue in the current case, even if the current case involves other facts or legal theories that were not specifically raised in the prior case." (Textron Inc., at p. 747.)
The issues in the foreclosure action were those required to establish Romance's right to possession of the personal property collateral, namely, that: (1) Dhillon owed Romance a debt; (2) Dhillon executed a security agreement that allowed Romance to take possession of the personal property if Dhillon defaulted in payment of the debt; and (3) Dhillon defaulted in such payment. (Commercial &Savings Bank of Stockton v. Foster (1930) 210 Cal. 76, 80.) In moving for summary judgment, Romance presented evidence to establish Dhillon's debt and default as follows: (1) Dhillon and SBIC entered into a loan agreement pursuant to which Dhillon executed a $4.626 million promissory note, a deed of trust on real property, and a commercial security agreement; (2) SBIC sold and transferred its interest in these contracts to Romance; (3) Dhillon breached his payment obligation under the promissory note by failing to pay the entire outstanding balance due on or before the June 30, 2015, maturity date; (4) Romance purchased the real property at a nonjudicial foreclosure sale for $4 million after Dhillon's attempt to stop the foreclosure was rejected; and (5) at the time of sale, the amount of unpaid debt was $4,292,714.06, which left a $292,714.06 deficiency.
Romance argued the issue was whether Dhillon breached the contract, which required showing existence of a contract, plaintiff's performance of the contract or excuse for nonperformance, defendants' breach, and resulting damage to the plaintiff. Romance contended the evidence showed Dhillon borrowed money from SBIC secured by the commercial security agreement and deed of trust, Dhillon admitted he breached the promissory note, the deed of trust was foreclosed but the proceeds were insufficient to cover the debt with a balance due of $292,714.06, and Romance sought to enforce his security interest in the personal property collateral so it could be sold and the proceeds applied to the balance due. Romance argued summary judgment should be granted because the creation, attachment and perfection of his security interest were undisputed, as were Dhillon's breach and wrongful withholding of the personal property collateral, and the evidence proved the amount due under the promissory note, which should be included in the judgment for possession.
In opposing the motion, Dhillon asserted he paid $233,166.10 on the loan, which SBIC confirmed made him current on the loan, yet SBIC later "expressed their desire to foreclose" on him on July 8, 2015. Dhillon claimed SBIC refused "to give any other amount in which to cure the subject loan with accurate amounts," and "SBIC was put on notice of all the inaccuracies of the loan statements and balances." Dhillon further claimed the attorneys for SBIC and Romance were acting in concert to take possession of the real property for monetary gain, and Romance's plan was to purchase the property at the foreclosure sale so he could wipe out the junior liens on the property. Dhillon argued because he paid the $233,166.10 due SBIC prior to SBIC's foreclosure and Romance's purchase of SBIC's interest, the foreclosure on the note was improper, Romance did not have the right to foreclose on his personal property and the alleged transfer of SBIC's interest to Romance was illusory. Dhillon asserted he was intentionally prevented from completing the purchase of the property because SBIC failed to give him a payoff amount.
In granting summary judgment, the trial court found the following: (1) SBIC performed its obligations under the 2007 note and security agreement; (2) Dhillon breached the 2007 note and security agreement; and (3) Romance had a right to foreclose on the personal property collateral. Judgment was entered for the principal amount due on the 2007 note of $278,417.77, which also authorized Romance to foreclose on the collateral and apply the sales proceeds to the $278,417.77 judgment.
Thus, in the foreclosure action the court decided issues concerning SBIC's performance under the 2007 note and commercial security agreement, whether Dhillon breached those agreements by defaulting on the note, the amount of the deficiency on the 2007 note after foreclosure on the real property, and Romance's right to foreclose on the personal property collateral. These issues necessarily encompass SBIC's administration of the loan, the right to foreclose on the real and personal property, and the amount due on the 2007 note.
Although whether SBIC committed fraud was not at issue in the foreclosure action, the success of Dhillon's fraud and breach of contract claims in this action depend on whether SBIC properly administered and foreclosed on the 2007 note. There cannot be a claim for misrepresentation if the representations were true and the plaintiff did not reasonably rely on them. (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 [elements of intentional misrepresentation include a representation that an important fact was true when the representation was false and the plaintiff's reasonable reliance on the representation].) Similarly, there can be no claim for SBIC's breach of the 2007 note if SBIC performed under the contract and Dhillon breached it. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements of breach of contract include the plaintiff's performance or excuse for nonperformance and the defendant's breach].)
Thus, if SBIC performed under the 2007 note and Dhillon defaulted by failing to pay the principal due on the note by the maturity date, his misrepresentation and breach of contract claims cannot stand. Accordingly, the "identical issue" factor is met here.
B. Actually Litigated and Necessarily Decided
Dhillon contends the issues in the present action, namely, SBIC's fraudulent conduct when administering the 2007 loan, including inaccurate billing statements and its refusal to provide a correct amount to cure the loan deficiencies, were not "actually litigated" in the foreclosure action because the ruling in that action shows the trial court never actually determined these issues.
To support his argument, Dhillon points only to a minute order in the foreclosure action, which generally states the summary judgment motion is granted because Romance has demonstrated there are no triable issues of material fact and Dhillon's opposition fails to establish triable issues of material fact exist. The foreclosure action court's findings, however, are detailed in its June 4, 2018 order, which the trial court in the instant action took judicial notice of and quoted in its minute order granting SBIC's summary judgment motion. These findings include SBIC's performance under the 2007 note and commercial security agreement and Dhillon's breach of those agreements. Because these issues were submitted for determination and were determined, any factual matters or legal theories related to them, including whether SBIC arrived at an accurate balance for the 2007 note or its conduct in administering the loan, were litigated in the foreclosure action for purposes of issue preclusion. (See Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565-1566; Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401.)
Dhillon contends the trial court erroneously found that because he included allegations of SBIC's misconduct in his opposition to Romance's summary judgment motion, these issues were litigated as a matter of course. Dhillon asserts whether SBIC committed fraud had no bearing on whether Romance was entitled to the personal property collateral, and because Romance was a bona fide purchaser of the note, he would not be chargeable with SBIC's fraud unless he had notice of it. But as we have explained, it is not SBIC's fraud that matters for purposes of issue preclusion, but rather whether elements of his fraud and breach of contract claims were litigated in the foreclosure action, the success of which depends on whether SBIC properly administered and foreclosed on the 2007 note. Those issues were litigated in the foreclosure action as part of Romance's claim for wrongful possession of the personal property collateral.
Notably, while Dhillon asserts in his appellate briefs that Romance was a bona fide purchaser of the 2007 note, he alleges in his verified second amended complaint that Romance foreclosed with the knowledge of SBIC's miscalculations and inaccuracies. Moreover, he took a different position in the foreclosure action, where he asserted SBIC and Romance were acting in concert to take possession of the property; Romance's attorney tried to compel him to walk away from the property; Romance's plan was to let the property foreclose so he could purchase the property free of any junior liens; and SBIC and Romance had a "back door deal" which he was not privy to.
Dhillon also asserts his fraud claims against SBIC were not necessary for or relevant to the adjudication of Romance's claims in the foreclosure action. (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 858 [finding that was not essential to the judgment did not have preclusive effect].) Dhillon contends the "controlling factor in Romance's litigation was that he was a bona fide purchaser for value," which carries the presumption that the sale was properly executed. He claims assessment and determination of issues involving SBIC's prior conduct was unnecessary to the foreclosure action court's analysis in granting summary judgment, as the paramount concerns were whether (1) the loan documents were properly assigned to Romance, and (2) the documents authorized Romance to take possession of the property.
In support, Dhillon cites Moeller v. Lien (1994) 25 Cal.App.4th 822, which states the following concerning a nonjudicial foreclosure sale: "If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser." (Id. at p. 831.) In the foreclosure action, however, Romance was not acting as the purchaser of the real property; rather, he was suing as the owner of the 2007 note and security agreement, which interest he obtained through SBIC's assignment. As assignee, Romance stepped into SBIC's shoes," 'taking [its] rights and remedies, subject to any defenses which the obligor has against the assignor prior to notice of the assignment.'" (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096.)
Dhillon views the issues in the foreclosure action too narrowly. As we have explained, the trial court was required to determine the issues of SBIC's performance under the 2007 note, which encompasses SBIC's administration of the 2007 note, Dhillon's breach of the note, the amount of the deficiency on the note after foreclosure of the real property, and Romance's right to foreclose on the personal property collateral, in deciding whether Romance was entitled to foreclose on the personal property collateral. Thus, these issues were necessarily decided in the foreclosure action.
C. Equitable Considerations
Dhillon asserts the balance of equities does not support applying issue preclusion, as he did not have a full adversary hearing in the foreclosure action on all the issues involved in this action and he could not impute SBIC's wrongdoing against Romance in that action. (Zevnik v. Superior Court, supra, 159 Cal.App.4th at p. 82 [courts will not apply the doctrine of issue preclusion "if the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding"].)
Dhillon claims the present case is analogous to Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029. There, the defendant in an unlawful detainer action attempted to argue the trustee's sale of his property was invalid for fraud, a claim he also made as a plaintiff in a concurrent superior court action to cancel the trustee's deed and redeem the property. (Id. at p. 1032.) The municipal court in the unlawful detainer action struck his cross-complaint and entered judgment for the property owner after taking some evidence concerning the circumstances of the sale; the record, however, did not establish what occurred at the trial. (Id. at pp. 1032-1033.) The Court of Appeal upheld the superior court's ruling in the plaintiff's favor on the fraud claim and rejected the argument that claim preclusion applied as the record did not establish the "plaintiff received a full adversary hearing on all the issues involved in his subsequent suit, such as the trustee's practice of discouraging competitive bidding at a foreclosure sale in order to help obtain the property for the corporation, in which he had an interest. It does not appear that the unlawful detainer court, in the exercise of its limited power to inquire, properly could have received and considered evidence of the fraud." (Id. at pp. 10361037.)
But the foreclosure action's record shows the relevant issues of SBIC's performance under the 2007 note, the amount of the deficiency owed on the note, and Dhillon's breach of the note were litigated in the foreclosure action. These issues were presented in Romance's summary judgment motion and determined by the trial court. Dhillon was given an opportunity to present evidence on these issues in opposing Romance's summary judgment motion. (Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 490 [an issue that is litigated and determined "is binding in a subsequent action notwithstanding that a party may have omitted to raise matters for or against it which if asserted might have produced a different outcome"]; Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1301 [issue preclusion applies" 'even though some factual matters or legal arguments which could have been presented in the prior case ... were not presented' "].) And even if Dhillon could not impute SBIC's fraud to Romance, the issues decided in the foreclosure action preclude his fraud and breach of contract claims in this action.
D. Application of Issue Preclusion
Dhillon asserts the application of issue preclusion does not support summary judgment, as triable issues of fact remain. Dhillon correctly notes that issue preclusion does not bar entire causes of action and instead prevents relitigation of previously decided issues. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) Dhillon argues the findings in the foreclosure action that he breached his loan agreement with SBIC and owed Romance $278,417.77, do not render the present case against SBIC for fraud moot as a matter of law, as the issue of SBIC's fraudulent conduct, including representing the $233,166.10 payment was sufficient to cure the loan default, was not necessarily affected by the final judgment in the foreclosure action.
Dhillon's conclusory argument, which does not explain why the findings in the foreclosure action do not bar the causes of action asserted in this action, is insufficient to meet his appellate burden." 'Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.'" (Multani v. Witkin &Neal (2013) 215 Cal.App.4th 1428, 1457.) " 'It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.'" (Flores v. Department of Corrections &Rehabilitation (2014) 224 Cal.App.4th 199, 204.) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited." (Delta Stewardship Council Cases, supra, 48 Cal.App.5th at p. 1075.) "It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Ibid.)
Because Dhillon has not presented reasoned argument as to why summary judgment should not be granted based on issue preclusion, he has forfeited the claim. Even if not forfeited, we have explained why the foreclosure action findings bar Dhillon's fraud and breach of contract claims in this action. Since the elements needed to apply issue preclusion are satisfied and the issues decided in the foreclosure action bar the causes of action alleged in Dhillon's second amended complaint, the trial court did not err in granting summary judgment in SBIC's favor.
We decide only whether issue preclusion applies because it is dispositive. We note that while Dhillon argues claim preclusion does not apply because the two actions involve different parties and causes of action, his argument is conclusory, and he fails to provide reasoned argument as to how the claims in the two actions differ.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent SBIC.
WE CONCUR: LEVY, Acting P. J., SNAUFFER, J.