Filed 12/29/20 Nia v. Amip Management CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

STEVEN NIA,

 Plaintiff and Appellant,

v.

AMIP MANAGEMENT, LLC et 

al.,

 Defendants and Respondents.

 B297472

 (Los Angeles County

 Super. Ct. No. LC107294)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Virginia Keeny, Judge. Affirmed.

Lewis R. Landau, for Plaintiff and Appellant.

Ghidotti │Berger and Shannon C. Williams, for Defendants 

and Respondents AMIP Management, LLC; Ron McMahan; and 

FCI Lender Services, Inc.
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I. INTRODUCTION

In a second amended complaint, plaintiff and appellant 

Steven Nia asserted causes of action against defendants and 

respondents AMIP Management, LLC (AMIP); Ron McMahan

(McMahan); and FCI Lender Services, Inc. (FCI) for wrongful 

foreclosure, breach of contract, fraud, negligent 

misrepresentation, and promissory estoppel.

1 The trial court 

sustained defendants’ demurrer to the second amended complaint 

without leave to amend and plaintiff appeals. We affirm.

II. BACKGROUND

According to plaintiff’s second amended complaint and 

attached documents, plaintiff owned and lived in a home on 

Medley Drive in Encino (Property). On or about 

September 10, 2007, plaintiff obtained a $1,225,250 loan from 

Countrywide Bank, FSB. On September 17, 2017, a deed of trust 

securing the loan was recorded.

1 Plaintiff asserted the same causes of action against PROF2013-S3 Legal Title Trust by U.S. Bank National Association as 

Legal Title Trustee (U.S. Bank) (erroneously sued as U.S. Bank 

National Association as Trustee for PROF-2013-S3 Remic Trust, 

III); Recontrust Company, N.A.; and Barrett Daffin Frappier 

Treder & Weiss, LLP (Barrett Daffin). Plaintiff also asserted a 

single cause of action for constructive trust against Magnum 

Property Investments, LLC (Magnum). None of these defendants 

is a party to this appeal (pursuant to plaintiff’s, U.S. Bank’s, and 

Magnum’s stipulations, we dismissed plaintiff’s appeal with 

respect to U.S. Bank and Magnum).
3

On January 30, 2015, Barrett Daffin, the trustee for the 

deed of trust, commenced foreclosure proceedings by recording a 

notice of default and election to sell under deed of trust (default 

notice). The default notice stated that the loan was in default as 

of May 1, 2013, and the amount of the default was then 

$124,751.49.

Defendants informed plaintiff of their intention to foreclose 

on and sell the Property on Monday, May 7, 2018, at 11:00 a.m. 

On Friday, May 4, 2018, plaintiff had discussions with McMahan, 

AMIP’s founder and manager, about arranging for a financier to 

purchase the promissory note and deed of trust from AMIP, the 

promissory note and deed of trust’s then current holder. 

McMahan agreed to a net price of $1,080,000. McMahan 

represented that AMIP would postpone the foreclosure sale to 

allow plaintiff to deliver to AMIP the terms of plaintiff’s offer in 

writing.

On Sunday, May 6, 2018, real estate broker R. Joseph 

Kerendian e-mailed a letter of intent to McMahan.2 The letter of 

intent’s terms included a net purchase price of $1,080,000, a 

seven-day due diligence period apparently for the buyer to 

inspect loan documents, an agreement by AMIP to postpone the 

foreclosure sale for 45 days, and a 15-day escrow period. The 

letter of intent identified the buyer as “Shatar Holdings, LLC 

and/or assignee.” The letter of intent concluded, in part, “If 

accepted, the terms and conditions of this letter may be 

incorporated into a mutually acceptable Purchase Contract or 

Escrow Instructions.”

2 The letter of intent to which plaintiff’s second amended 

complaint apparently referred was addressed to FCI and dated 

May 4, 2018.
4

On Monday, May 7, 2018, at 8:19 a.m., McMahan sent an email to Kerendian stating that “[t]he net proceeds in [the] offer 

[were] acceptable.” McMahan expressly represented that the 

foreclosure sale scheduled for later that morning would be 

postponed for one day to May 8, 2018, to allow plaintiff to provide 

proof of funds.

Plaintiff attached McMahan’s May 7, 2018, e-mail to the 

second amended complaint. The e-mail was sent to Kerendian, 

plaintiff, and others, and bore the salutation “Hello Everyone.” 

We set forth the e-mail’s entire terms:

“The net proceeds in your offer are acceptable, however

there are several items that require clarification.

“First, we require proof of funds necessary to purchase the 

note. Please provide today.

“Second, we will not agree to postpone the sale for 45 days. 

The sale will be postponed as required for timeframes necessary 

to complete the transaction. Today, the sale will be postponed for 

one day pending acceptable proof of funds in the amount of 

$1,100,000.

“The buyer shall not have seven days to inspect the 

collateral. The original collateral will be available for inspection 

in our office in Seal Beach. This should be able to be completed 

in a couple of hours.

“The seller will draft the form of Mortgage Loan Purchase 

Agreement to be used for the transaction. Once the buyer has 

accepted the final form of document, closing will occur within 48 

hours.

“Collateral will be immediately deliverable to the buyer 

upon closing.
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“The current borrowers will execute a global release of any 

and all existing or future litigation related to the loan origination 

or servicing.

“Thanks, let me know if this is acceptable.”

On May 7, 2018, the sale went forward and Magnum 

purchased the Property for $1,406,000. At 5:11 p.m., that day,

Kerendian sent an e-mail to McMahan purportedly attaching 

proof of funds for the purchase of the Property—a copy of the 

proof of funds is not a part of the record on appeal.

3 Kerendian 

noted that earlier that afternoon McMahan had informed him the 

Property was sold that morning. Kerendian requested that the 

foreclosure deed not be recorded and the sale be undone. Within 

minutes, McMahan responded that the proof of funds was 

unacceptable because it was for “SEPARZADEH MAYER,” a 

party other than the purchaser listed in the letter of intent. 

McMahan stated that the sale would not be undone.

The second amended complaint alleged that had McMahan 

not agreed to postpose the sale, plaintiff “intended to use the 

funds available to him from the financier to pay[ ]off the

[p]romissory [n]ote prior to the sale date to prevent the sale of the 

property or in the alternative to appear at the foreclosure sale as 

[a] bidder.” Plaintiff did not exercise these options in reliance on 

defendants’ false promises, that is, defendants’ promises to accept 

3 The second amended complaint alleged that plaintiff 

provided “proof of the availability of funds in excess of 

$2,400,000,” and attached an exhibit that purported to 

demonstrate such availability. The exhibit attached to the 

complaint, however, did not include a proof of funds. Further, at 

oral argument, counsel for plaintiff conceded that plaintiff had 

not alleged that he had more than $1.1 million available to pay 

off the promissory note or to bid at the sale.
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plaintiff’s offer and postpone the sale. The only substantive 

allegation against FCI in the second amended complaint was that 

it was acting on behalf of U.S. Bank, the holder of the promissory 

note prior to and at the time of the foreclosure sale.

AMIP, McMahan, and FCI demurred to the second 

amended complaint. The trial court sustained the demurrer 

without leave to amend and entered judgment for defendants.

III. DISCUSSION

A. Standard of Review

“When reviewing a judgment of dismissal based on the 

sustaining of a demurrer without leave to amend, an appellate 

court first exercises its independent judgment to determine 

‘whether the complaint states a cause of action as a matter of 

law. [Citation.]’ [Citation.] ‘“We treat the demurrer as 

admitting all material facts properly pleaded, but not 

contentions, deductions or conclusions of fact or law. [Citation.] 

We also consider matters which may be judicially noticed.”

[Citation.] Further, we give the complaint a reasonable 

interpretation, reading it as a whole and its parts in their 

context. [Citation.]’ [Citation.]” (Brakke v. Economic Concepts, 

Inc. (2013) 213 Cal.App.4th 761, 766.) “While the ‘allegations [of 

a complaint] must be accepted as true for purposes of demurrer,’ 

the ‘facts appearing in exhibits attached to the complaint will 

also be accepted as true and, if contrary to the allegations in the 

pleading, will be given precedence. [Citation.]’ [Citations.]” (Id.

at p. 767.)
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B. Analysis

1. Wrongful Foreclosure

In sustaining defendants’ demurrer to plaintiff’s wrongful 

foreclosure cause of action, the trial court ruled that tender was 

required. It explained that “[i]n this case, plaintiff alleges he 

tendered the amount of his debt by bringing to defendants an 

offer to purchase the deed of trust. A tender must be one of full 

performance, and must be unconditional to be valid. [(Civ. Code, 

§ 1486.)] In this case, based on a review of the allegations of the 

complaint and the Notice of Trustee’s sale, plaintiff did not 

tender the full amount of the debt but rather made an offer to 

purchase the deed of trust for a portion of the amount of the debt. 

This cannot qualify as tender. Further, as the court previously 

observed in ruling on previous demurrers, plaintiff does not 

explain what was illegal, fraudulent or oppressive about the sale. 

It is undisputed that plaintiff was in default and through 

bankruptcy and attempted 11th hour negotiations tried but failed 

to avoid foreclosure.”

“To obtain the equitable set-aside of a trustee’s sale or 

maintain a wrongful foreclosure claim, a plaintiff must allege 

that (1) the defendants caused an illegal, fraudulent, or willfully 

oppressive sale of the property pursuant to a power of sale in a 

mortgage or deed of trust; (2) the plaintiff suffered prejudice or 

harm; and (3) the plaintiff tendered the amount of the secured 

indebtedness or was excused from tendering. [Citation.] 

Recognized exceptions to the tender rule include when (1) the 

underlying debt is void, (2) the foreclosure sale or trustee’s deed 

is void on its face, (3) a counterclaim offsets the amount due, (4) 
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specific circumstances make it inequitable to enforce the debt 

against the party challenging the sale, or (5) the foreclosure sale 

has not yet occurred. [Citations.].)” (Chavez v. Indymac 

Mortgage Services (2013) 219 Cal.App.4th 1052, 1062 (Chavez).) 

To survive a demurrer on a wrongful foreclosure claim, a 

plaintiff must allege a full tender of the debt. (Stebley v. Litton 

Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) At the 

time of the foreclosure sale, the amount unpaid on the loan, 

together with costs, was $1,670,399.77. Plaintiff alleged in his 

second amended complaint that he offered to pay off the loan at 

the discounted price of $1.1 million. Accordingly, he did not 

allege a tender of the full indebtedness and the trial court 

properly sustained defendants’ demurrer to the wrongful 

foreclosure cause of action.

Citing Chavez, supra, 219 Cal.App.4th 1052, Blankenchip 

v. CitiMortgage, Inc. (E.D.Cal. Dec. 3, 2014, No. 2:14-2309 WBS 

AC) 2014 WL 6835688; and Menan v. U.S. Bank N.A. (E.D.Cal. 

2013) 924 F.Supp.2d 1151, plaintiff contends that no tender was 

required. These authorities do not support plaintiff’s contention.

2. Breach of Contract

The trial court ruled that the e-mails attached to the 

second amended complaint showed that the parties never had an 

enforceable written agreement. “Instead, the parties were still 

negotiating terms of a contract that was acceptable to both. They 

were unable to come to acceptable terms with an acceptable proof 

of funds in order to stop the foreclosure.”

Plaintiff does not address his breach of contract cause of 

action in his opening brief on appeal, and expressly disavows any 
9

claim of error based on a breach of contract theory in his reply 

brief. We accept plaintiff’s waiver.

3. Fraud, Negligent Misrepresentation, and Promissory

Estoppel

The trial court addressed together defendants’ demurrer to 

plaintiff’s fraud and promissory estoppel causes of action.4 It 

ruled, in part, “Plaintiff’s claim is based on the alleged lie 

defendant told in representing that the foreclosure would be 

postponed one day. But in examining the e[-]mail exchange it is 

clear that no such firm representation had been made. Instead, 

the parties were negotiating an 11th hour sale of the deed of 

trust. There is no statement made upon which plaintiff could 

have reasonably relied. Instead, in his e[-]mail dated May 7 at 

8:19 a.m., Mr. McMahon [sic] was making a [counteroffer] which 

4 The trial court’s tentative ruling, which the court adopted 

as its final order, did not expressly address plaintiff’s negligent 

misrepresentation cause of action. Because the record on appeal 

does not contain a reporter’s transcript of the demurrer hearing, 

we cannot determine whether the court addressed plaintiff’s 

negligent misrepresentation cause of action during oral 

argument. Plaintiff does not address the court’s omission in his 

briefs on appeal. Because we review a trial court’s ruling on a 

demurer de novo, and, as we explain below, plaintiff’s negligent 

misrepresentation cause of action, like his fraud and promissory 

estoppel causes of action, required that McMahan’s alleged 

promise to postpone the foreclosure sale for one day damaged 

plaintiff—an element the sale deed and plaintiff’s counsel’s 

representations at oral argument disprove—any trial court error 

in failing to address expressly the negligent misrepresentation 

cause of action was harmless.
10

required further acceptance or negotiation. Plaintiff did not 

respond prior to the sale to state that he accepted this offer or to 

make a [counteroffer]. Accordingly, based on the alleged 

contractual documents submitted by plaintiff, there was no 

contract or firm promise prior to the sale.”

As an alternative ground for sustaining the demurrer, the 

trial court concluded that plaintiff failed to allege detrimental 

reliance sufficiently: “If plaintiff had known . . . defendant was 

lying [about postponing the sale] what would or could he have 

done differently? Plaintiff states he could have used the funds 

available to him by the financier to pay off the promissory note 

prior to the sale date or appear at the foreclosure sale as a bidder. 

Significantly, plaintiff fails to allege that the financier (who was 

to pay $1[.1 million] to buy the deed of trust) could make 

available the amount owed under the loan $1,670,399.77.”

The elements of fraud, negligent misrepresentation, and 

promissory estoppel share an element: the plaintiff must have 

been damaged by the defendant’s alleged statement. (Golden 

Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 

Cal.App.5th 399, 428, [“The elements of fraud [include] . . . 

resulting damage”], internal quotation marks omitted; Apollo 

Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 

Cal.App.4th 226, 243 [“The elements of negligent 

misrepresentation [include] . . . resulting damage”]; Jones v. 

Wachovia Bank (2014) 230 Cal.App.4th 935, 945 [“The elements 

of a promissory estoppel claim [include] . . . the party asserting 

the estoppel must be injured by his reliance”], internal quotation 

marks omitted.) Each of plaintiff’s fraud, negligent 

misrepresentation, and promissory estoppel causes of action 

alleged that plaintiff was damaged as follows: in the absence of 
11

McMahan’s agreement to postpone the sale, he “intended to use 

the funds available to him from the financier to pay[ ]off the

[p]romissory [n]ote prior to the sale date to prevent the sale of the 

property or in the alternative to appear at the foreclosure sale as 

[a] bidder. However, in reliance to the promises made by 

[d]efendant[s], [p]laintiff did not pursue the said options and 

changed his position in reliance upon the promise of acceptance of 

his offer and postponement of the foreclosure sale by . . . 

[d]efendants.”

The amount owed under the loan was $1,670,399.77 and 

the property sold for $1,406,000. Because plaintiff had available 

only $1.1 million, he could not have paid off the promissory note 

or successfully bid on the property at the sale. Accordingly, he 

did not suffer damage.
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IV. DISPOSITION

The judgment is affirmed. Defendants are awarded their 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.