Filed 5/29/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ARTURO RUBINSTEIN,

Plaintiff and Respondent,

v.

PARIS P. FAKHERI,

Defendant and Appellant.

B291116

(Los Angeles County

Super. Ct. No. BC630004)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Michael J. Raphael, Judge. Affirmed.

Lebedev, Michael & Helmi, Gennady L. Lebedev, Sam 

Helmi and Genevieve Bourret-Roy for Defendant and Appellant.

Tesser | Grossman, Brian M. Grossman and Frank R. 

Trechsel for Plaintiff and Respondent.

_________________________________
2

Paris P. Fakheri appeals from a judgment against him 

following a court trial. We affirm.

The trial court found that respondent Arturo Rubinstein 

loaned Fakheri $874,708.44, which Fakheri never repaid. 

Fakheri does not dispute that he received the money, but he 

argues that it came from entities controlled by Rubinstein rather 

than from Rubinstein himself. Although those entities assigned 

their interests in the loan to Rubinstein, the entities’ corporate 

powers were suspended at the time of the assignments. Fakheri 

therefore claims that Rubinstein did not have “standing” to sue.

The trial court found that Fakheri waived this defense 

because he did not raise it until trial. That finding was within 

the court’s discretion. Rubinstein stood in his entities’ shoes with 

respect to the rights he could exercise by assignment. But the 

issue is one of capacity to sue, rather than standing or 

jurisdiction. The defense of lack of capacity is waived if not 

asserted at the earliest opportunity. Fakheri failed to do so here.

Fakheri also argues that the trial court erred in finding for 

Rubinstein on his common count claim for money lent because 

Fakheri did not personally request the loan. Rather, Rubinstein 

provided the money to Fakheri at the request of a mutual 

business associate of his and Fakheri’s, Yoram Yehuda.

We reject the argument. The trial court properly concluded 

that proof of an implied promise to repay was legally sufficient

for Rubinstein’s common count claim. The trial court’s finding 

that Fakheri made such an implied promise is based on 

substantial evidence. That evidence included Yehuda’s request 

that Rubinstein loan the money to Fakheri; Fakheri’s receipt of 

the money directly from Rubinstein after providing wiring 
3

instructions to Yehuda; and the lack of any other reasonable 

explanation for the transfer.

BACKGROUND

1. The Loan1

Rubinstein and Yehuda were friends and business 

associates. Yehuda is a contractor. The two had invested 

together in various real estate projects.

Rubinstein had heard of Fakheri through Yehuda from a 

prior real estate transaction, but Rubinstein had not met him. In 

November 2013, Yehuda asked Rubinstein to lend money to 

Fakheri so that Fakheri could purchase a house from Yehuda. 

The house was on Boris Drive in Encino (the Boris Property). 

The arrangement that Rubinstein and Yehuda discussed was 

that the money would be repaid, without interest, once Yehuda 

had renovated the Boris Property and it had been sold. 

Rubinstein agreed to the loan because of his close relationship 

with Yehuda at the time.

Rubinstein provided the money to Fakheri through wire 

transfers and checks from various sources. Fakheri provided his 

account information for the wire transfers to Yehuda, who gave 

that information to Rubinstein.

One payment of $383,532.28 was wired to Fakheri from 

“Rick O’Hara & Associates” (O’Hara). A company that 

Rubinstein owned, Lanark MK LLC (Lanark), borrowed that 

money from O’Hara to provide to Fakheri. Yehuda told 

 

1 Consistent with the standard of review governing our 

consideration of the evidence supporting the trial court’s decision, 

we summarize the evidence in the light most favorable to 

Rubinstein as the prevailing party. (See People v. Avila (2009) 46 

Cal.4th 680, 701 (Avila).)
4

Rubinstein that Fakheri would make the payments to O’Hara on 

the loan. Fakheri made one $100,000 payment. However, 

Rubinstein repaid the rest of the amount due on the loan himself 

after he and Yehuda had a falling out.

Another large payment of $471,863 was wired to Fakheri 

from an account belonging to another entity that Rubinstein 

owned, 19111 Wells Dr., LLC.

2 Fakheri received the remainder 

of the money for the loan in the form of checks from Wells made 

out to him and signed by Rubinstein.

Fakheri purchased the Boris Property and Yehuda 

renovated it. Fakheri sold the property in December 2014. After 

the sale, Fakheri paid approximately $1.3 million to Yehuda.

Fakheri testified that he believed the money he received 

from O’Hara to purchase the Boris Property was a loan that 

Yehuda had arranged and that Fakheri was obligated to repay to 

Yehuda. Fakheri further testified that the $471,863 he received 

from Wells was the repayment of a loan that Fakheri had 

previously made to Yehuda.

Other than the $100,000 that Fakheri repaid on the loan

from O’Hara, Fakheri did not repay anything to Rubinstein.

 

2 According to the reporter’s transcript, Rubinstein testified 

that the wire came from “19111 West Drive, LLC.” This appears 

to be a transcription error. Both parties describe the origin of 

that transfer as 19111 Wells Dr., LLC (Wells), a company that 

Rubinstein owned and managed. The wire transfer itself was 

apparently introduced as an exhibit at trial, but neither party 

included the exhibits in the appellate record or requested that the 

trial court provide them to this court. (See Cal. Rules of Court, 

rule 8.224(a)(1).) As the point is undisputed, we accept the 

parties’ representation that the source of the transfer was Wells.
5

2. The Lawsuit

Rubinstein filed his complaint (Complaint) in this case

against Fakheri on August 9, 2016. The Complaint alleged one 

common count claim for “money lent.”

Fakheri filed a general denial. The general denial asserted 

the statute of limitations as an affirmative defense but not 

standing or the lack of capacity to sue.

The parties tried Rubinstein’s common count claim to the 

court on March 7 and 8, 2018. At trial, Rubinstein introduced 

evidence that Lanark and Wells had assigned their claims

against Fakheri to Rubinstein.

Just before the conclusion of trial, Fakheri filed a request 

for judicial notice of a document from the California Secretary of 

State showing that the corporate powers of Lanark and Wells 

were suspended. The trial court kept the defense case open 

pending receipt of a certified copy of the document, which 

Fakheri submitted several days later.

In his written closing argument, Fakheri claimed that 

Rubinstein lacked “standing” to sue. Fakheri argued that the 

money Fakheri received for the Boris Property transaction came 

from Wells and Lanark, not Rubinstein, and that Rubinstein’s 

claim therefore belonged to those entities. Fakheri argued that, 

as an assignee of the corporate claims, Rubinstein was subject to 

the same defenses as the corporate assignors. Fakheri claimed 

that the corporate powers of Lanark and Wells, including the 

right to file a lawsuit, were suspended at the time they assigned 

their claims to Rubinstein, and that Rubinstein therefore also did 

not have the right to sue.

On May 14, 2018, Rubinstein filed a request for judicial 

notice of documents from the Secretary of State showing that, as 
6

of April 25, 2018, both Lanark and Wells were again active and in 

good standing.

On June 20, 2018, the trial court issued a written “Verdict 

Following Court Trial.”3 The court first granted the requests for 

judicial notice of both Fakheri and Rubinstein. The court 

overruled Fakheri’s objection to the reopening of evidence for the 

purpose of receiving Rubinstein’s documents from the Secretary 

of State, observing that Fakheri’s “ ‘standing’ defense involving 

the capacity of [Wells and Lanark] to assign their claims to 

Rubinstein was not raised until trial.”

The trial court denied Fakheri’s standing argument on the 

same ground. The court explained that “[s]tanding does not 

appear among the 36 mainly-boilerplate affirmative defenses in 

the Answer, so it is waived.” The court also found that 

“Rubinstein in fact provided the loan money and his companies 

were merely accounts he used to draw money from in the 

transactions, so Rubinstein may properly recover personally.”

On the merits, the trial court found that Rubinstein 

provided the $874,708.44 to Fakheri as a loan. The court also 

found that the evidence showed an implied promise by Fakheri to 

repay the loan. The court reasoned that “[i]n the basic situation 

of an intermediary-arranged loan at issue here, the lendee will be 

unjustly enriched (and the lender unjustly deprived of 

repayment) if the Court does not enforce an implied promise to 

repay.” The court concluded that such an implied promise was 

 

3 The court explained that “[n]either party requested a 

statement of decision, but this Court’s practice is to explain the 

essentials of any verdict it renders after a bench trial.”
7

all that was necessary to prove a common count claim for money 

lent.

The court indirectly addressed Fakheri’s defense that he 

thought the money came from Yehuda. The trial court explained 

that an implied promise to repay might be inequitable if an

intermediary (such as Yehuda) communicated different loan 

terms to the lender and to the recipient of the loan. However, the 

court stated that it was “not convinced there is any inequity in 

ordering repayment from Fakheri.” The court also concluded 

that, “to the extent there might be” such inequity, it was mooted 

by Fakheri’s testimony that Yehuda had agreed to indemnify 

him.

The trial court found that Rubinstein had conceded “that 

$100,000 of the $874,708.44 transferred as a loan was repaid.” 

The trial court therefore awarded $774,708.44 to Rubinstein 

along with prejudgment interest, for a total judgment of 

$874,550.32.

DISCUSSION

1. Fakheri Forfeited His Defense that Rubinstein 

Lacked Capacity to Sue

Fakheri claims that the trial court erred in finding that he 

forfeited his defense concerning the suspension of Wells’s and 

Lanark’s corporate powers. He argues that the defense concerns 

Rubinstein’s standing to sue, which may be asserted at any time.

We independently review Fakheri’s legal argument that his 

defense raised an issue of standing that could not be forfeited. 

(See Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774 

(Robbins) [question of law concerning the court’s jurisdiction over 

a claim reviewed de novo].) We review for abuse of discretion the 

trial court’s ruling that Fakheri did not timely raise the defense. 
8

(Cal-Western Business Services, Inc. v. Corning Capital Group 

(2013) 221 Cal.App.4th 304, 312 (Cal-Western).)

Fakheri’s argument that Rubinstein lacked standing to sue 

is wrong. Even assuming that the claim Rubinstein asserted 

belonged to Wells and Lanark rather than to Rubinstein 

personally, he acquired the right to sue by virtue of the entities’ 

assignments of their claims.4

It is immaterial that the corporate powers of Lanark and 

Wells were suspended at the time they made the assignments. A 

contract made by a suspended corporation is not void, but is only 

voidable “at the instance of any party to the contract other than 

the taxpayer.” (Rev. & Tax. Code, § 23304.1, subd. (a).) A party 

to the contract may exercise its right to declare a contract void 

only by seeking that relief in a lawsuit, subject to the 

requirement that the corporate taxpayer be allowed “a reasonable 

opportunity to cure the voidability.” (Rev. & Tax. Code, 

§ 23304.5.) As a nonparty to the assignments, Fakheri had no 

right to challenge their validity. (Ibid.; Cal-Western, supra, 221 

Cal.App.4th at p. 313.)5

 

4 In light of our disposition, we need not consider the trial 

court’s alternative finding that the claim at issue belonged to 

Rubinstein personally rather than to the entities that he owned 

and managed.

5 Fakheri cites Yvanova v. New Century Mortgage Corp.

(2016) 62 Cal.4th 919 for the proposition that a borrower can 

challenge an assignment to which he is not a party “when the 

defect alleged would deprive the assignee of any legitimate 

authority to act on the assignment.” That principle does not 

apply here. In Yvanova, our Supreme Court held that the 
9

Fakheri is correct that, as an assignee, Rubinstein was 

subject to the same defenses that applied to the assignors prior to 

notice of the assignments. (Cal-Western, supra, 221 Cal.App.4th 

at pp. 310–312; Code Civ. Proc., § 368.) However, a suspension of 

corporate powers only affects a corporation’s capacity to sue, not 

its standing. A party that lacks standing lacks the right to seek 

relief, which “ ‘goes to the existence of a cause of action.’ ” (ColorVue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 (ColorVue), quoting Parker v. Bowron (1953) 40 Cal.2d 344, 351.) In 

contrast, the lack of capacity to sue is simply a legal disability 

that “ ‘deprives a party of the right to come into court.’ ” (ColorVue, at p. 1604, quoting Parker, at p. 351.)

A defense based on a party’s lack of capacity to sue can be 

forfeited. (Color-Vue, supra, 44 Cal.App.4th at p. 1604.) 

Specifically, “[a] defense based on a suspended corporation’s lack 

of capacity to sue ‘ “is a plea in abatement which is not favored in 

law, is to be strictly construed and must be supported by facts 

 

borrower on a home loan secured by a deed of trust has the right 

to challenge an assignment of the deed of trust and the 

underlying note by means of a wrongful foreclosure action when 

the assignment is allegedly “void, and not merely voidable at the 

behest of the parties of the assignment.” (Id. at p. 923, italics 

added.) The court carefully distinguished between a transaction 

that is void and one that is only voidable. The court explained 

that “[w]hen an assignment is merely voidable, the power to 

ratify or avoid the transaction lies solely with the parties to the 

assignment; the transaction is not void unless and until one of 

the parties takes steps to make it so.” (Id. at p. 936.) As 

discussed above, an assignment by a suspended corporation is 

merely voidable, not void.
10

warranting the abatement” at the time of the plea.’ ” (CalWestern, supra, 221 Cal.App.4th at p. 312, quoting Traub Co. v. 

Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370.) Such a 

defense “ ‘ “must be raised by the defendant at the earliest 

opportunity or it is waived.” ’ ” (Cal-Western, at p. 312.)

In Cal-Western, the court concluded that the defendant was 

excused from timely raising the defense based upon an exception 

that applies in the “ ‘unusual circumstance where a corporation 

announces that it does not intend to pay its delinquent taxes.’ ” 

(Cal-Western, supra, 221 Cal.App.4th at p. 312, quoting ColorVue, supra, 44 Cal.App.4th at p. 1604.) That exception does not 

apply here; in fact, Rubinstein actually restored his corporations 

to good standing soon after Fakheri raised the defense.6

 

6 In in its recent opinion in Wanke, Industrial, Commercial, 

Residential, Inc. v. AV Builder Corp. (2020) 45 Cal.App.5th 466 

(Wanke), Division One of the Fourth Appellate District observed 

in a footnote that the defendant in that case did not waive the 

defense of lack of capacity even though the defendant first raised 

the defense in its trial brief. (Id. at p. 475, fn. 5.) The plaintiff in 

that case was a judgment creditor that asserted a claim against a 

third party to recover a debt that the third party owed to the 

judgment debtor. (Id. at pp. 470–471.) The judgment debtor’s 

corporate powers had been suspended, and the defendant argued 

that the plaintiff therefore lacked the right to sue because its 

right was derivative of the judgment debtor’s rights under 

assignment principles. (Id. at p. 474.) The court concluded that 

the defendant was not required to assert the defense of lack of 

capacity in its answer, reasoning that the defense the defendant 

asserted was not actually lack of capacity but rather “that 

assignment principles prevent it from maintaining its suit.” (Id. 

at p. 475, fn. 5.)
11

Fakheri did not raise a defense based upon the suspension 

of the corporate powers of Wells and Lanark until the conclusion 

of trial. Had he asserted the defense earlier, Rubinstein would 

have had the opportunity to restore his corporations’ powers 

earlier.

Fakheri argues that his failure to assert the defense before 

trial was excused because Rubinstein alleged that he personally

provided the money that Fakheri received and only relied upon 

the assignments at trial. But Rubinstein was not required to 

 

The observation was dictum. The court actually held that 

assignment principles did not apply to the plaintiff because the 

plaintiff acquired its right to sue through a creditor’s suit statute 

that did not require an assignment. (Wanke, supra, 45 

Cal.App.5th at pp. 476–477; see Code Civ. Proc., § 708.280.) To 

the extent that the footnote could be read to state a rule that a 

defendant cannot forfeit a defense to an assignee’s claim that 

exists only because of the corporate status of the assignor, we 

respectfully disagree. That rule would be inconsistent with the 

holding in Cal-Western. (See Cal-Western, supra, 221 

Cal.App.4th at p. 313 [defendant failed to timely raise the 

defense of lack of capacity in response to the complaint filed by 

the assignee of a suspended corporation].) It would also be 

inconsistent with the assignment principles underlying that 

holding. An assignee “stands in the shoes” of the assignor for 

purposes of the defense of lack of capacity. (Id. at pp. 310–311.) 

We can see no reason why a defendant should be excused from 

timely asserting such a defense to the claim of an assignee when 

the defendant would have been required to assert the defense at 

the earliest opportunity if the claim had been brought directly by 

the assignor. Indeed, notice to the plaintiff of the defense is 

arguably more important when the plaintiff is an assignee. An 

assignee is less likely to be aware of the corporate status of an 

assignor than the assignor itself.
12

anticipate defenses that Fakheri did not assert. Rubinstein’s 

primary theory throughout the case was that he loaned the 

money to Fakheri personally. In fact, the trial court accepted 

that argument in its written decision. Fakheri raised as a

defense that Rubinstein’s claims actually belonged to Wells and 

Lanark. In response to evidence that Wells and Lanark had 

assigned any claims they might have had to Rubinstein, Fakheri 

then raised the further defense that Wells and Lanark were 

suspended. Fakheri’s delay in asserting his lack of capacity 

defense was not excused by Rubinstein’s failure to allege facts 

responding to an affirmative defense that Fakheri never pleaded.

Fakheri does not provide any other explanation for his 

delay in asserting lack of capacity as a defense. He does not 

claim that he was unaware that he received the money from 

corporate accounts rather than from Rubinstein directly. Indeed, 

he testified that he received the $471,000 wire transfer and a 

check from Wells. Fakheri must also have been aware of the 

assignments before trial, as they appeared on Rubinstein’s 

exhibit list. Yet Fakheri did not move to amend his answer and 

did not seek leave from the trial court to assert a lack of capacity 

defense. The trial court did not abuse its discretion in ruling that 

Fakheri’s defense was untimely.7

 

7 The trial court stated that Fakheri waived his “standing” 

defense because he did not assert it in his answer. But the trial 

court clearly intended to include the defense of lack of capacity 

under that label. In granting Rubinstein’s posttrial request for 

judicial notice of Wells’s and Lanark’s revival, the trial court 

noted that Fakheri’s “ ‘standing’ defense involving the capacity of 

these companies to assign their claims to Rubinstein was not 

raised until trial.”
13

2. Fakheri Forfeited His Statute of Limitations 

Defense

Fakheri argues that Rubinstein’s claim was barred by the 

statute of limitations. Fakheri asserts that the statute of 

limitations had run before Rubinstein revived the corporate 

powers of Wells and Lanark and that a lawsuit filed by 

Rubinstein as the assignee of those entities therefore did not toll 

the statute.

Fakheri has forfeited that argument. Although Fakheri

asserted the statute of limitations as an affirmative defense in 

his answer, he did not raise it at trial. We decline to consider an 

argument that Fakheri did not make below. (See Pool v. City of 

Oakland (1986) 42 Cal.3d 1051, 1065–1066; Curcio v. Svanevik 

(1984) 155 Cal.App.3d 955, 960 [“The general rule is that a party 

to an action may not for the first time on appeal change the 

theory upon which the case was tried”].)8

 

8 At oral argument, Fakheri argued that he did not have an 

opportunity to raise the statute of limitations defense at trial 

because Rubinstein did not provide evidence that his 

corporations’ powers had been revived until Rubinstein’s rebuttal 

argument after trial. But there is no reason Fakheri could not 

have raised the statute of limitations defense at the same time he 

requested judicial notice of the fact that the corporate powers of 

Lanark and Wells had been suspended. His statute of limitations 

defense stems directly from the suspension; Fakheri’s argument 

is that a lawsuit filed while a corporation lacks capacity to sue 

does not toll the statute. In any event, Fakheri filed an objection 

to Rubinstein’s May 14, 2018 request for judicial notice of the 

Secretary of State documents showing that Lanark and Wells

had been restored to good standing. He could have raised the 
14

Moreover, even on appeal Fakheri did not raise his statute 

of limitations argument until his reply brief. For obvious reasons 

of fairness, points raised for the first time in a reply brief will 

ordinarily not be considered. (See Reichardt v. Hoffman (1997) 

52 Cal.App.4th 754, 764–765.) Fakheri does not provide any 

explanation of his decision to raise the statute of limitations 

argument for the first time on reply. His failure to make the 

argument in his opening brief provides another ground to 

conclude that he has forfeited the argument.

3. The Trial Court Did Not Err in Finding an 

Implied Promise that Fakheri Would Repay the 

Loan

a. The trial court correctly ruled that 

Rubinstein did not have to prove that 

Fakheri personally requested the loan

Fakheri argues that a cause of action for money lent 

requires proof that the recipient of a loan specifically requested 

it. As this is a legal issue, we review it de novo. (See Robbins, 

supra, 22 Cal.App.4th at p. 1774.)

A claim for “money lent” is one of the common counts. 

(Moya v. Northrup (1970) 10 Cal.App.3d 276, 278–279 (Moya).) 

The common counts arose from the action of assumpsit in the 

common law. Such an action permitted a plaintiff to recover 

money that, under the circumstances, the defendant should be 

required to repay to avoid inequity. (Philpott v. Superior Court 

(1934) 1 Cal.2d 512, 518–519 (Philpott); see 4 Witkin, Cal. 

Procedure (5th ed. 2020) Pleading, § 553.)

 

statute of limitations defense in that objection or requested leave 

for further briefing on the issue. He did not do so.
15

A common count claim broadly applies “wherever one 

person has received money which belongs to another, and which 

in ‘equity and good conscience,’ or in other words, in justice and 

right, should be returned.” (Philpott, supra, 1 Cal.2d at p. 522, 

quoting Page on Contracts, vol. 3, pp. 2510–2512, § 1473.) The 

claim does not require privity of contract. Although the plaintiff’s 

right to recover under a common count is based on equitable 

principles, the claim is legal in nature. (Philpott, at p. 522, citing 

Page on Contracts, at pp. 2510–2512.)

Fakheri does not cite any authority holding that the 

common count claim for money lent requires an express request 

for the loan. The cases that Fakheri cites support the conclusion 

that a common count claim can be alleged for money paid out or 

loaned at the defendant’s specific request. However, those cases 

do not require such a request as an element of the claim.

For example, in Moya, the court merely observed that the 

principles permitting conclusory pleading of common count 

claims apply to “a common count for moneys paid, laid out, 

expended, loaned or advanced to and for the defendant by the 

plaintiff at the former’s instance and request.” (Moya, supra, 10 

Cal.App.3d at p. 280.) The court did not hold that such a request 

was necessary to state a claim. Indeed, in describing the nature 

of a common count claim, the court emphasized the flexible 

equitable principles underlying it: “The obligation to pay is 

rested upon the equitable principle of preventing unjust 

enrichment as applied to the particular circumstances which 

have arisen between the parties.” (Id. at p. 281.)

Provident Mutual Building-Loan Association v. Davis 

(1904) 143 Cal. 253 involved a cause of action based upon an 

express contract rather than a common count. In the course of 
16

distinguishing a common count case that the appellant had cited, 

the court simply explained that the traditional common count 

allegation that “moneys were paid out and expended at the 

special instance and request of defendant” could “still be used to 

state a cause of action under our practice.” (Id. at p. 256.)

In Kraner v. Halsey (1889) 82 Cal. 209, the court similarly 

held that a complaint sufficiently stated a claim when it alleged 

“the payment of a sum of money by plaintiff at the special 

instance and request of defendant, for which money so paid 

defendant is indebted to him, and that he (defendant) has failed 

and refused to pay this money, or any part of it.” (Id. at p. 210.) 

The court did not state or suggest that payment “at the special 

instance and request of defendant” was a necessary part of the 

claim.9

The traditional common count pleading language that these 

courts cited is not the only means to state or prove a common 

count claim. As Witkin explains, “[t]he typical form of a common 

count claim for work and labor or services uses the language ‘at 

defendant’s special instance and request.’ Where the obligation 

is not founded on an express contract, the request is a basis for 

implying a promise to pay. But it is not the only basis for an 

implied promise and accordingly the omission of this language is 

not a fatal defect.” (4 Witkin, Cal. Procedure (5th ed. 2020) 

Pleading, § 558, italics added.)

 

9 Fakheri also cites Sanders v. Riviera Realty Co. (1951) 

104 Cal.App.2d 70, but that case holds only that a person can be 

the principal debtor on a loan even though the consideration 

“passed to a third party.” (Id. at p. 75.) That principle has 

nothing to do with this case. Rubinstein sued Fakheri, who 

received the loan, not Yehuda, who arranged it.
17

Our Supreme Court’s decision in McFarland v. Holcomb 

(1898) 123 Cal. 84 supports that conclusion. In that case, the 

court held that a complaint adequately stated a claim against an 

estate based on personal services (including nursing, boarding, 

lodging, counseling, and advising) provided to the decedent over a 

period of years. The court rejected the defendant’s argument that 

the complaint failed to state a claim because it did not “aver that 

the services of the plaintiff were rendered at the request of their 

testator.” (Id. at p. 86.) The court explained that “it is not 

requisite to aver either the consideration or the promise, when 

they are implied as a legal conclusion from the facts which are 

alleged. While counsel and advice are frequently given without 

any request, and may be of no benefit to the party to whom they 

are given, yet a complaint which shows that the plaintiff 

rendered services to the defendant which were received by him in 

person, and were presumptively at his request, and of which he 

has enjoyed the benefit, states facts from which the liability of 

the defendant therefore is presumed . . . . In the present case the 

nursing of the decedent by the plaintiff, and his acceptance from 

her of his board and lodging during the time specified, was a 

consideration sufficient to support the promise for compensation 

therefor which is implied in law, and to render him liable 

therefor.” (Ibid.)

The same principle applies to a common count claim for 

money lent. An inflexible rule requiring proof of a specific 

request for a loan would be inconsistent with the broad equitable 

principles underlying a common count claim.

For the same reasons, we agree with the trial court that

Rubinstein was not required to prove that Yehuda was acting as 

Fakheri’s agent in requesting the loan from Rubinstein. 
18

Rubinstein was not required to prove that Fakheri specifically 

requested the loan, either personally or through an agent.10 Nor 

was Rubinstein required to prove an express promise to repay the 

loan. (See Brown v. Spencer (1912) 163 Cal. 589, 595 [evidence of 

a promise by the plaintiffs to repay a loan received for the 

purchase of property was not necessary, as the “loan of the money 

would itself raise an implied promise, binding on them in law, to 

repay it”].) It was sufficient for Rubinstein to prove that Fakheri 

received the loan under circumstances showing an equitable 

obligation to repay it. As discussed below, the evidence supports

the trial court’s finding that such circumstances existed in this 

case.

b. The trial court’s finding that Fakheri 

made an implied promise to repay the loan 

is supported by substantial evidence

We review the trial court’s factual findings for substantial 

evidence. Under that standard, we review the entire record in 

the light most favorable to the judgment to determine whether it 

contains substantial evidence supporting the trial court’s 

decision. (Avila, supra, 46 Cal.4th at p. 701.) Substantial 

evidence is evidence that is “ ‘reasonable, credible, and of solid 

value.’ ” (Ibid., quoting People v. Lindberg (2008) 45 Cal.4th 1, 

27.) We must presume in support of the judgment “ ‘the existence 

of every fact the trier could reasonably deduce from the 

evidence.’ ” (Avila, at p. 701, quoting People v. Kraft (2000) 23 

Cal.4th 978, 1053.) Our task “begins and ends with the 

 

10 Nevertheless, as discussed below, the circumstances of 

Yehuda’s request were relevant to show that Rubinstein 

understood the source and purpose of the money.
19

determination as to whether, on the entire record, there is 

substantial evidence, contradicted or uncontradicted,” which will 

support the decision. (Bowers v. Bernards (1984) 150 Cal.App.3d 

870, 873–874.)

The trial court found that Rubinstein paid the $874,708.44 

to Fakheri as a loan. Ample evidence supports that finding. 

Rubinstein testified that Yehuda requested that Rubinstein loan 

the money to Fakheri, and Rubinstein agreed to do so. 

Rubinstein and Yehuda specifically discussed that the purpose of 

the loan was to renovate the Boris Property; that Fakheri would 

make the payments due on the loan from O’Hara; and that the 

entire principal amount of Rubinstein’s loan would be repaid once 

the Boris Property was sold.

The evidence also supports the trial court’s finding that 

Fakheri made an implied promise to repay the loan. As the trial 

court reasonably concluded, one may fairly infer an implied 

promise to repay a loan arranged by an intermediary if the 

recipient knows that he or she is receiving a loan and 

understands its terms.

There was sufficient evidence to conclude that Fakheri 

understood he had received a loan from Rubinstein (or his 

entities), despite Fakheri’s testimony that he thought the money 

belonged to Yehuda.

First, the money did not come from Yehuda. It came by 

means of wire transfers from O’Hara and Wells and checks 

signed by Rubinstein.

Second, as discussed above, Rubinstein and Yehuda 

specifically discussed the terms of the loan. Under the 

deferential standard of review we apply to the evidence, we 

accept Rubinstein’s testimony on this point. Yehuda told 
20

Rubinstein that Rubinstein was loaning money to Fakheri; it is 

therefore reasonable to infer that Yehuda communicated the 

same information to Fakheri. As the trial court found, “Yehuda’s 

arranging for a loan that would be repaid supports an implied 

promise by Fakheri to repay the loan.”

Third, other evidence supports the conclusion that Fakheri 

understood he had received a loan from Rubinstein. Rubinstein 

was copied on communications concerning the Boris Property

after Fakheri purchased it. Rubinstein’s ongoing interest in the 

project would not have made sense if, as Fakheri testified, the 

money for the purchase of the property came from Yehuda. 

Fakheri also had no coherent explanation for the source of the 

$471,000 he received from the Wells account. Fakheri testified 

that the money was the repayment of a loan he had previously 

made to Yehuda. However, when impeached with his prior 

deposition testimony, he admitted that his prior loan to Yehuda 

was for only about $150,000. Finally, there was evidence that 

Fakheri and Yehuda had an ongoing personal and business 

relationship, supporting the conclusion that Yehuda had reason 

to inform Fakheri about the actual source of the money.

This evidence adequately supports the trial court’s finding 

of an implied promise by Fakheri to repay the loan to Rubinstein 

under the equitable principles governing Rubinstein’s common 

count claim.

4. Fakheri’s Statute of Frauds Argument is 

Meritless

In his opening brief, Fakheri argues that the statute of 

frauds precludes any liability for the money he received from 

O’Hara because Lanark, not Fakheri, was the borrower on the 

loan from O’Hara. Fakheri relies on the statutory requirement 
21

that a “special promise to answer for the debt, default, or 

miscarriage of another” must be in writing. (Civ. Code, § 1624, 

subd. (a)(2).)

In his opposition brief, Rubinstein correctly points out that 

the judgment the trial court awarded does not include any 

amount based upon interest that Fakheri allegedly promised to 

pay O’Hara on Lanark’s loan.11 Rather, the judgment awards

only the principle amount that Fakheri owes directly to 

Rubinstein (either personally or by assignment from Lanark) 

because of the loan that Fakheri received. That obligation does 

not involve any promise to answer for the debt of another, and 

the statute of frauds therefore does not apply.

 

11 Fakheri did not address the issue on reply.
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DISPOSITION

The judgment is affirmed. Rubinstein is entitled to his

costs on appeal.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.