Aviad Sahar v. Prescient Inc et al

Filing 76

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Manuel L. Real. (pj)

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JOHN M. SORICH (CA Bar No. 125223)
[e-mail]
ROBERT OLIVER (CA Bar No. 180318)
[e-mail]
JENNY L. MERRIS (CA Bar No. 246088)
[e-mail]
ALVARADOSMITH
A Professional Corporation
1 MacArthur Place, Suite 200
Santa Ana, California 92707
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
PRESCIENT, INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

A LVARADO S MITH
A P ROFESSI ONAL C ORPORATI ON
S ANTA A NA

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CASE NO.: 10-cv-08628-R-E

AVIAD SAHAR, an individual,
Plaintiff,

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v.

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JUDGE: Hon. Manuel L. Real

PRESCIENT, INC., a Florida corporation
doing business as PRESCIENT ASSET
MANAGEMENT; FEDERAL DEPOSIT
INSURANCE CORPORATION, a
corporation; and DOES 1 through 100,
Inclusive,

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FINDINGS OF FACT AND
CONCLUSIONS OF LAW
TRIAL DATE
DATE: July 3, 2012
TIME: 9:00 a.m.
DEPT: Dept. 8, 2nd Floor

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Defendants.
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ACTION FILED: July 7, 2010

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Defendant Prescient, Inc. (“Prescient”) submits its proposed Findings of Fact

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and Conclusions of Law.

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I.

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FINDINGS OF FACT
1.

Plaintiff Aviad Sahar (“Plaintiff”) resided at the real property located at

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6020 Etiwanda St., Tarzana, California (the “Property”) as a tenant from December

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2005 through January 2012. Testimony of Aviad Sahar on July 3, 2012.
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3237296.1 -- DN37.2

[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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2.

On January 18, 2008, Real Time Resolutions, LLC (“RTR”) took title to

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the Property by way of a Trustee’s Deed Upon Sale which was recorded on January

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24, 2008, with the Los Angeles County Official Records as instrument number

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20080149107. Exhibit 85.

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3.

On June 17, 2009, Plaintiff commenced an action in the Los Angeles

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County Superior Court styled Aviad Sahar v. Real Time Resolutions Properties, LLC

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et al., Case No. LC085908 (“RTR Action”). Testimony of Daniel B. Spitzer on July

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3, 2012, and Exhibit 13.

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4.

On June 23, 2009, Plaintiff recorded a Notice of Pendency of Action

Affecting Title to Real Property (Lis Pendens) with the Los Angeles County

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A LVARADO S MITH
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Recorder’s Office as instrument number 20090941675. Testimony of Daniel B.

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Spitzer on July 3, 2012, and Exhibit 14.

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5.

On July 14, 2009, an amendment to the Complaint in the RTR Action

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was filed naming Prescient as a defendant. Testimony of Daniel B. Spitzer on July 3,

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2012 and Exhibit 17.

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6.

On October 13, 2009, Olga Velasco, staff counsel for Prescient, sent

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Daniel B. Spitzer an email correspondence (“October 13, 2009 Email”) which stated

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the following:

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We have reviewed your client’s offer based on the FDIC criteria
and have the following counter-offer:
1. Increase purchase price to $265,000;
2. Execution by your client of the attached contract and other
documents attached;
3. Dismissal of the lawsuit as it relates to all parties.
Testimony of Daniel B. Spitzer on July 3, 2012, Testimony of Olga
Velasco on July 5, 2012, and Exhibit 27.

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7.

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The October 13, 2009 Email string contained language stating: “Counter

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offers from Prescient Asset Management are valid for 24 hours from the time date

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stamp on this email transmission. Acceptance of the counter offer must be in writing

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in the form of a contract and fully executed by the purchaser and subject to approval
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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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of Prescient and FDIC’s senior management.” Testimony of Daniel B. Spitzer on July

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3, 2012 and Exhibit 27.

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On October 26, 2009, Norm Chess, Asset Manager for Prescient, sent

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Daniel B. Spitzer an email correspondence containing language stating: “Counter

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offers from Prescient Asset Management are valid for 24 hours from the time date

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stamp on this email transmission. Acceptance of the counter offer must be in writing

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in the form of a contract and fully executed by the purchaser and subject to approval

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of Prescient and FDIC’s senior management.” Testimony of Daniel B. Spitzer on July

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3, 2012 and Exhibit 30.

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The Real Estate Purchase and Sale Contract (“FDIC Contract”) expressly

A LVARADO S MITH
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states at paragraph 20: “AUTHORITY TO EXECUTE: Only an FDIC employee who

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is an Attorney-in-Fact for the FDIC acting in the capacity stated in Section 1 is

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authorized by the FDIC to execute this Contract.” Testimony of Daniel B. Spitzer on

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July 3, 2012, Testimony of Olga Velasco on July 5, 2012 and Exhibit 52.

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10.

The FDIC contract was not executed by the FDIC and the FDIC did not

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approve the counter-offer which Prescient conveyed to Plaintiff. Testimony of Olga

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Velasco on July 5, 2012 and Complaint at Exhibit B.

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11.

Plaintiff and Daniel B. Spitzer, as Plaintiff’s agent, knew or should have

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known that the counter-offer of $265,000.00 was subject to FDIC approval and that

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the FDIC had to approve the sale of the Property. Testimony of Olga Velasco on July

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5, 2012; Exhibits 27, 30-35, 39-46, and 55.

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12.

A Request for Dismissal of the RTR Action was executed by Plaintiff’s

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counsel on November 30, 2009 and was filed with the Los Angeles Superior Court on

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December 1, 2009. Testimony of Daniel B. Spitzer on July 3, 2012, Testimony of

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Aviad Sahar on July 5, 2012, and Exhibit 67.

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13.

A Notice of Withdrawal of Lis Pendens (“Lis Pendens”) was executed by

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Plaintiff’s counsel on November 30, 2009 and was recorded with the Los Angeles

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County Official Records on December 3, 2009. Testimony of Daniel B. Spitzer on
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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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July 3, 2012, Testimony of Aviad Sahar on July 5, 2012, and Exhibit 69.
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Plaintiff admits that, prior to the filing of the Request for Dismissal of the

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RTR Action and the recording of the Notice of Withdrawal of Lis Pendens, he was

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never informed that the FDIC had executed the FDIC Contract. Testimony of Aviad

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Sahar on July 5, 2012.

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15.

There is no evidence of a writing in this matter which references that

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Daniel B. Spitzer, as Plaintiff’s agent, was informed that the FDIC executed the FDIC

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Contract. Testimony of Daniel B. Spitzer on July 3, 2012.

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16.

There is no evidence of a writing in this matter which references that

Daniel B. Spitzer, as Plaintiff’s agent, ever informed anyone that he was told that the

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FDIC executed the FDIC Contract, after he learned that the FDIC rejected the FDIC

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Contract. Testimony of Daniel B. Spitzer on July 3, 2012.

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17.

Plaintiff instructed his counsel to dismiss Prescient from the RTR Action

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and release the Lis Pendens without first obtaining a copy of a fully executed FDIC

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Contract, or an indication of a fully executed FDIC Contract. Testimony of Aviad

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Sahar on July 5, 2012.

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18.

Olga Velasco did not inform Daniel B. Spitzer that the FDIC Contract

had been executed by the FDIC. Testimony of Olga Velasco on July 5, 2012.
19.

Plaintiff has not presented any evidence that Prescient did not intend to

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perform under the terms of the October 13, 2009 email. Testimony of Olga Velasco

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on July 5, 2012.

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20.

Plaintiff has not presented any evidence that Prescient knew that the

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representations in the October 13, 2009 Email was false when it was made, or that the

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representations were made recklessly and without regard for its truth. There is no

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evidence that there were false statements contained in the October 13, 2009 Email.

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Testimony of Olga Velasco on July 5, 2012.

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Plaintiff admitted that he did not believe that Olga Velasco's

representation of a counter-offer of $265,000 to Plaintiff was a false statement.
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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Testimony of Aviad Sahar on July 5, 2012.
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Plaintiff admitted that he believed that Olga Velasco's representation of a

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counter-offer of $265,000 to Plaintiff was a true statement when Olga Velasco made

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it. Testimony of Aviad Sahar on July 5, 2012.
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Plaintiff could not have relied on a representation that the FDIC had

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executed the FDIC Contract when he instructed his counsel to dismiss the RTR Action

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and release the Lis Pendens because nobody ever told him prior to or on December 3,

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2009 that the FDIC had executed the FDIC Contract. Testimony of Aviad Sahar on

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July 5, 2012.
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Plaintiff presented no evidence of any damages stemming from the

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dismissal of the RTR Action and withdrawal of the Lis Pendens. Testimony of Aviad

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Sahar on July 5, 2012.
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The Court finds that Olga Velasco of Prescient did not represent to

Daniel B. Spitzer, as Plaintiff’s agent, that the FDIC executed the FDIC Contract.
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The Court credits the testimony of Olga Velasco of Prescient and does

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not credit the testimony of Daniel B. Spitzer, Plaintiff’s agent.

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II.

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CONCLUSIONS OF LAW
1.

The Court concludes that Prescient has not made any fraudulent

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misrepresentation to Plaintiff. Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996);

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Ach v. Finkelstein 264 Cal.App.2d 667, 674 (1968).

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2.

The Court concludes that Plaintiff failed to demonstrate that Prescient did

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not intend to perform under the terms set forth in the October 13, 2009 Email. Lovejoy

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v. AT&T Corp., 92 Cal. App. 4th 85, 93 (2001); Conrad v. Bank of Am., 45

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Cal.App.4th 133, 156-57 (1999).

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3.

The Court concludes that Plaintiff has not demonstrated that Prescient

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knew that the representations in the October 13, 2009 email were false when they

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were made, or that the representations were made recklessly and without regard for its

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truth. 5 Witkin, Summary of Cal. Law, Torts § 800 (10th ed. 2005); OCM Principal
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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Opportunities Fund, L.P. v. CIBC World Mkts. Corp., 157 Cal. App. 4th 835, 862-863

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(2007).

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4.

The Court concludes that Plaintiff has not demonstrated “justifiable

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reliance” as it was not reasonable for Plaintiff to rely on any alleged representation

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that the counter-offer of $265,000.00 was accepted, by dismissing the RTR Action

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and withdrawing the Lis Pendens, without first having received a copy of the fully

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executed FDIC Contract. Alliance Mortgage Company v. Rothwell (1995) 10 Cal.4th

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1226, 1239; Seeger v. Odell (1941) 18 Cal.2d 409, 414; Rowland v. PaineWebber, 4

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Cal.App.4th 279, 286 (1992); Rosenthal v. Great Western Fin. Secs. Corp., 14 Cal.4th

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A LVARADO S MITH
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394, 423 (1996).
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The Court concludes that the damages Plaintiff seeks resulting from his

dismissal of the RTR Action are speculative.
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The Court concludes that Plaintiff did not plead in his complaint that he

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suffered any emotional distress, nor did he include a prayer for emotional distress

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damages, and is therefore not entitled to any such damages.

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7.

The Court concludes that Plaintiff has not suffered any damages as a

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result of the actions of Prescient. See Minnesota Mut. Life Ins. Co. Ensley, 174 F.3d

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977, 982 (2011); Williams v. Wraxall, 33 Cal. App. 4th 120, 133 (1995); Goehring v.

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Chapman Univ., 121 Cal. App. 4th 353, 364 (2004).

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8.

The Court concludes that Plaintiff is not entitled to recover punitive

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damages as Plaintiff has not demonstrated that Prescient has been guilty of

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oppression, fraud or malice. California Civil Code § 3294; Nolan v. National

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Convenience Stores, 95 Cal.App.3d 279, 286 (1979).

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9.

The Court concludes that no officer, director, or managing agent of

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Prescient had advance knowledge and with conscious disregard, authorized or ratified

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the acts of oppression, fraud or malice by any of their employees Civil Code §

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3294(b).

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10.

The Court concludes that Plaintiff is not entitled to an award of attorney’s
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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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fees. Code of Civil Procedure §§ 1021 and 1033.5; Civil Code § 1717.
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The Court concludes that Plaintiff has not satisfied his burden of proof on

his claim for fraud.
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In light of the above findings of fact and conclusions of law, the Court

finds in favor of Prescient. Judgment is entered in favor of Prescient and against

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Plaintiff.
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Plaintiff shall recover nothing against Prescient.

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A LVARADO S MITH
A P ROFESSI ONAL C ORPORATI ON
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DATED: _July 20, 2012_

__________________________________
Hon. Manuel Real
Judge, United States District Court

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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW

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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
Sahar v. Prescient, Inc., et al.
LASC –Van Nuys Case No.: LC090390 (removed)
USDC – Central Case No.: 2:10-CV-08628-R -E
I am employed in the County of Orange, State of California. I am over the age
of 18 years and not a party to the within action. My business address is
AlvaradoSmith, 1 MacArthur Place, Santa Ana, CA 92707.
On July 20, 2012, I served the foregoing document described as [PROPOSED]
FINDINGS OF FACT AND CONCLUSIONS OF LAW on the interested parties in
this action.
by placing the original and/or a true copy thereof enclosed in (a) sealed
envelope(s), addressed as follows:

A LVARADO S MITH
A P ROFESSI ONAL C ORPORATI ON
S ANTA A NA

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Daniel B. Spitzer, Esq.
Law Offices of Daniel B. Spitzer
16311 Ventura Boulevard, Suite 1200
Encino, CA 91436

T 818.990.9700
F 818.990.9705
E [e-mail]
Attorney for Plaintiff

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TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC
FILING (“NEF”): The foregoing document will be served by the court via
NEF. On July 20, 2012 I checked the CM/ECF docket for this case and
determined that the following persons are on the Electronic Mail List to receive
NEF transmission at the email address(es) indicated in the attached service list.

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(Federal) I declare that I am employed in the office of a member of the Bar of
this Court, at whose direction the service was made.

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Executed on July 20, 2012, at Santa Ana, California.

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Michelle E. Ault

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[PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW