NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AFC REALTY CAPITAL, INC., 

Plaintiff-Appellee, 

 v. 

SUNDEEP S. DALE; et al., 

Defendants-Appellants.

No. 22-16786 

D.C. No. 

2:18-cv-02389-MCE-JDP 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted February 5, 2024

San Francisco, California

Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.

Defendant-Appellants Sundeep S. Dale; Rohit Ranchhod; Dale Investments, 

LLC; Sundeep Dale, LLC; California Fruit Building, LLC; and American 

Hospitality Services, Inc. (Defendants) appeal the district court’s order granting 

summary judgment to Plaintiff-Appellee AFC Realty Capital, Inc. asking us to direct

the district court to grant summary judgment for Defendants instead. Alternatively, 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

APR 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Defendants argue the cross motions for summary judgment should be denied and the 

case remanded for trial. Finally, Defendants challenge the district court’s award of 

prejudgment interest. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

We review the district court’s grant of summary judgment de novo. See Idaho 

Conservation League v. Poe, 86 F.4th 1243, 1246 (9th Cir. 2023). We review a grant 

or denial of prejudgment interest for abuse of discretion. See Acosta v. City Nat’l 

Corp., 922 F.3d 880, 885 (9th Cir. 2019).

1. Brokerage activities “within this state.” Under California Business and 

Professions Code § 10130, “[i]t is unlawful for any person to engage in the business 

of, act in the capacity of, advertise as, or assume to act as a real estate broker . . . 

within this state without first obtaining a real estate license.” “A contract to perform 

acts barred by California’s licensing statutes is illegal, void and unenforceable.” 

Consul Ltd. v. Solide Enterprises, Inc., 802 F.2d 1143, 1148 (9th Cir. 1986). 

California’s licensing statute further expressly prohibits any lawsuit seeking 

compensation for unlicensed broker activity occurring “within” California. Cal. Bus. 

& Prof. Code § 10136.1 Thus, a plaintiff who performed work as an unlicensed 

1The full text of the relevant portion of § 10136 reads as follows: 

No person engaged in the business or acting in the capacity of a real 

estate broker . . . within this state shall bring or maintain any action in 

the courts of this state for the collection of compensation for the 

performance of any of the acts mentioned in this article without alleging 
3 

broker “within” California has no contract remedy for work performed and cannot 

recover in equity. See Castillo v. Barrera, 146 Cal. App. 4th 1317, 1328–29 (2007); 

Consul, 802 F.2d at 1151 n.8 (Even “de minimis brokerage activity in California 

[without a license] . . . bar[s] recovery under California law” from breach of contract 

lawsuits.).

The parties dispute the meaning of “within this state” as used in § 10130.

There is no published California authority construing what constitutes broker 

activities “within this state” under the relevant statutes. But we addressed this 

question in Consul. Applying California law, we held that a real estate broker who 

was not licensed in California could recover for services relating to property located 

in California because he did not perform any regulated acts within the physical 

boundaries of California. Consul, 802 F.2d at 1149–51. We explained that absent

California case law directly addressing the issue, we were “hesit[ant] to ignore [the] 

plain language” of §§ 10130 and 10136, which clearly “refer to acts within the state.” 

Id. at 1149–50. 

Consul has not been undermined by any subsequent California appellate

decision. Therefore, Consul controls given its factual similarity to this case. Like the 

brokers in Consul, see id. at 1149, AFC and its president Arthur Fefferman did not 

and proving that he or she was a duly licensed real estate broker or real 

estate salesperson at the time the alleged cause of action arose.
4 

perform any broker work within the geographic boundaries of California. See Cal. 

Bus. & Prof. Code § 10131; see also Tyrone v. Kelley, 9 Cal. 3d 1, 11 (1973) (“[A 

broker] enters into the negotiation of the transaction or other activities beyond 

introduction.”). Fefferman visited California once to tour the California Fruit 

Building. He testified that he did not solicit any lenders during this trip. deposed, 

Ranchhod did not recall Fefferman’s visit, and Dale recalled only having dinner with 

Fefferman after his tour of the building.

2 This record does not establish as a matter 

of law that Fefferman sold, negotiated to sell, offered to sell, solicited prospective 

buyers or lenders, leased, negotiated loans, or negotiated the purchase of a business 

opportunity while he was in California.3 See Cal. Bus. & Prof. Code § 10131.

2We deny AFC’s motion to take judicial notice of excerpts from the 

depositions of Ranchhod and Dale [Dkt. 30]. The district court granted AFC’s 

motion to correct the record on appeal, see Order, AFC Realty Cap., Inc. v. Dale, 

No. 2:18-cv-02389 (E.D. Cal. June 17, 2022), ECF No. 96, which included excerpts 

from these deponents’ depositions. See id. ECF Nos. 93-3, 93-4. Those excerpts are 

thus part of the record on appeal. See Fed. R. App. P. 10(a); see also 9th Cir. R. 10-

2 (contents of the record on appeal). And judicial notice of documents filed with the 

district court is unnecessary. Asvesta v. Petroutsas, 580 F.3d 1000, 1010 n.12 (9th 

Cir. 2009). In reaching its decision, this court does not rely on deposition testimony 

outside of the excerpts presented in the district court. 

3Defendants argue that the difference in procedural posture between Consul 

and this case is material. If anything, this cuts against Defendants’ arguments 

because the district court here had a developed summary judgment record that lacked 

any evidence that Fefferman engaged in broker activities in California. In contrast, 

the district court in Consul had only pleadings and was required to take the 

nonmovant’s factual allegations as true. See Hanagami v. Epic Games, Inc., 85 F.4th 

931, 938 (9th Cir. 2023). More importantly, the procedural posture has no effect on 

the precedential authority of statutory interpretation.
5 

Defendants suggest that, at a minimum, there are triable issues of fact that 

defeat both parties’ competing motions for summary judgment. But Defendants offer 

no explanation or description of the material facts that they contend are in dispute, 

and as the district court correctly stated, there is “no dispute that all relevant work 

was performed by Fefferman in New York, where he had a broker’s license, and not 

in California.” The dispute presented is a legal question, grounded in statutory 

interpretation, about whether the agreed-upon facts of Fefferman’s activities outside 

California are sufficient to invoke California’s real estate licensing statutes requiring 

that brokers “within the state” be licensed by California. See United States v. 

Marbella, 73 F.3d 1508, 1515 (9th Cir. 1996) (stating statutory interpretation is a 

legal question). This is properly resolved at summary judgment.

Moreover, Defendants neither questioned AFC’s performance nor offered any 

argument challenging the district court’s conclusion that Defendants breached their 

contract with AFC. Therefore, the district court did not err in resolving the cross 

motions in favor of AFC and finding no dispute of material fact as to whether AFC 

or Fefferman performed broker activities “within” California and Defendants 

breached their contract. 

2. Judicial Admission. Defendants also argue the district court erred by 

not addressing that AFC’s first amended complaint sought a “finders” fee rather than 

broker compensation. According to Defendants, the reference to a “finder’s fee” is 
6 

a judicial admission that binds AFC and AFC cannot recover fees as a broker. This

argument fails for two reasons. First, as a procedural matter, Defendants waived this 

issue by not raising it to the district court despite having ample opportunities to do 

so after AFC filed its first amended complaint. See Tarpey v. United States, 78 F.4th 

1119, 1126 (9th Cir. 2023) (“[A]n issue will generally be deemed waived on appeal 

if the argument was not raised sufficiently for the trial court to rule on it.” (citation

omitted)). Second, on the merits, in this context a “finder” is a legal category (as is 

“broker”) rather than a factual assertion. See Cal. Bus. & Prof. Code § 10131. As a 

result, AFC’s reference to a “finder’s fee” is not a judicial admission. See, e.g., Am. 

Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (judicial 

admissions are factual assertions).

3. Prejudgment Interest. Finally, Defendants argue that the district court 

erred in awarding prejudgment interest “from the time that the Stonehill Term Sheet 

was signed, rather than the date of breach and/or the date of closing of the loan.”

California caselaw clearly states that prejudgment interest accrues from the day “the 

amount of damages become certain or capable of being made certain, not the time 

liability to pay those amounts is determined.” Evanston Ins. Co. v. OEA, Inc., 566 

F.3d 915, 921 (9th Cir. 2009) (discussing Cal. Civ. Code § 3287(a)). AFC’s damages 

became certain in August 2017 when the parties signed the Term Sheet and Stonehill

stated the amount it would loan Defendants. Because AFC’s fees are based on a 
7 

percentage of the “loan commitment amount,” the district court appropriately

awarded prejudgment interest on AFC’s restitution claims from the date that the loan 

agreement between Defendants and the lender that AFC procured was signed. 

AFFIRMED.