Flagstar Bank, FSB v. The Loan Experts Corporation et al

Filing 228

ORDER by Judge Charles R. Breyer denying 224 Motion to Alter Judgment. (crblc1, COURT STAFF) (Filed on 11/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 10-03190 CRB

FLAGSTAR BANK,

ORDER DENYING MOTION TO
ALTER OR AMEND

Plaintiff,
v.
THE LOAN EXPERTS, et al.,
Defendants.

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Cross-Claimants The Loan Experts Corporation and Hormoz Nazari move the Court

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to alter or amend its judgment under Federal Rule of Civil Procedure 59(e). See Mot. (dkt.

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224). The Court finds this matter suitable for resolution without oral argument or further

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briefing, pursuant to Civil Local Rule 7-1(b), DENIES the Motion, and VACATES the

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hearing currently set for December 7, 2012.

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Pursuant to Federal Rule of Civil Procedure 59(e), a motion to alter or amend

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judgment may be granted if “the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law.” 389

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Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Rule 59(e) “offers an

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extraordinary remedy, to be used sparingly in the interests of finality and conservation of

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judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

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2000). The rule “may not be used to relitigate old matters, or raise arguments or present

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evidence that could have been raised prior to entry of judgment.” Exxon Shipping Co. v.

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Baker, 554 U.S. 471, 485 n.5 (2008) (internal quotation marks omitted).

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Cross-Claimants argue that the Court committed clear error in (1) ruling that

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California Code of Civil Procedure 1021.6 was unavailable; (2) finding that the Cross-Claim

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failed to seek attorneys’ fees for the indemnity claims; and (3) failing to consider that Cross-

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Claimants might be entitled to attorneys’ fees as damages for the fraud claims. See

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generally Mot. The Court disagrees.

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First, the Court continues to find that Cross-Claimants misread Section 1021.6, which
requires that (a) the indemnitee be required to act through the tort of the indemnitor; (b) the

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United States District Court
For the Northern District of California

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indemnitor was properly notified of the demand to bring the action; and (c) the trier of fact

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determined that the indemnitee was without fault in the principal case. As the Court held in

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its Order Granting Summary Judgment, The Loan Experts “does not meet all of the

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requirements of Section 1021.6.” See Order (dkt. 218) at 10. No trier of fact determined

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anything in the principal case, because that case was dismissed without any findings of fault

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or lack of fault. See id. Nor is the Court aware of any evidence that Cross-Claimants

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properly notified the indemnitor.

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Second, as the Court held in its Order, the language in the Cross-Claim “make[s] clear

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that The Loan Experts did not seek to recover any sums it ever spent in connection with the

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case, but only the money that Flagstar recovered from it.” See id. at 9. Cross-Claimants’

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argument that the Court should have considered a reference in Nazari’s declaration to

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Stewart Title having been provided with his bills, see Mot. at 10 (“the intent was clear”), is

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both untimely and fails to raise a genuine issue of material fact as to whether the Cross-Claim

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sought attorneys’ fees for the indemnity claims.

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Third, Cross-Claimants’ argument that “the fraud caused damage which included the

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attorneys’ fees,” see id. at 12, is particularly unreasonable. Cross-Claimants could have

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made this argument in opposing summary judgment, and never did. See Exxon Shipping

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Co., 554 U.S. at 485 n.1. There was therefore no basis for the Court to consider the

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attorneys’ fees as damages for the fraud. In addition, as Stewart Title points out in its
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opposition, this argument also fails because the fraud claims were brought only by The Loan

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Experts, while it was Nazari who paid the attorneys’ fees. See Opp’n (dkt. 225) at 14.

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Because Cross-Claimants fail to demonstrate that the Court committed clear error, the
Court DENIES the Motion.
IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: November 19, 2012

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United States District Court
For the Northern District of California

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G:\CRBALL\2010\3190\order denying alter-amend.wpd

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