Filed 1/30/18 Sandhu v. Bhasin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In these consolidated appeals, defendant Ravdeep Bhasin (Bhasin)[1] appeals from the trial court’s judgment in favor of plaintiffs Manjit S. Sandhu and Satinder K. Dhillon (collectively, plaintiffs). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs commenced the instant action against Bhasin and American Realty (American) on May 1, 2012. As alleged in plaintiffs’ amended complaint, in or about March of 2011, plaintiffs, the owners of real property in Hayward, responded to solicitation by American and Bhasin. The statements of solicitation were made by three representatives of American and Bhasin who, “while working together, promised plaintiffs that they would assist Plaintiffs to obtain modification of Plaintiffs’ loan owed to Wellsfargo [sic] and that American Realty and Bhasin would defend Plaintiffs in court in any unlawful detainer law suit and other suits for damages against the bank, that may emanate during the loan modification process with Wellsfargo and that American Realty would act as Plaintiffs’ broker while Bhasin was represented as an attorney admitted to [the] California Bar who would represent plaintiffs at the superior court.”

After losing their home to foreclosure, plaintiffs filed the instant action against American and Bhasin. According to Bhasin’s opening brief, plaintiffs reached a pretrial settlement with American, which was dismissed from the action, and the case proceeded to jury trial against Bhasin alone. During the course of the proceedings, the trial court granted plaintiffs’ motion for directed verdicts on their claims that Bhasin violated the Mortgage Foreclosure Consultants law (Civ. Code, § 2945 et seq.) (MFCL) and engaged in the unauthorized practice of law. Thereafter, the jury returned verdicts in favor of plaintiffs on their causes of action for fraud and breach of fiduciary duty and in favor of Bhasin on their causes of action for breach of contract and intentional infliction of emotional distress. Bhasin timely appeals from the ensuing judgment in favor of plaintiffs, which includes awards of compensatory damages, punitive damages, statutory treble damages, and attorney fees against Bhasin as well as a permanent injunction prohibiting him from unauthorized practice of law or working as a paralegal.

DISCUSSION

Directed Verdict on Violation of the MFCL

Bhasin’s principal argument on appeal is that the trial court erred in granting a directed verdict on plaintiffs’ claim that he violated the MFCL and, hence, that the awards of compensatory damages, treble damages, and attorney fees based on the directed verdict must be set aside. The law governing directed verdicts is well established.

“A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629–630.) “On appeal, we decide de novo whether sufficient evidence was presented to withstand a directed verdict.” (Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315.)

In this case, the trial proceedings were not reported, and Bhasin did not seek to proceed by way of a settled statement in lieu of a reporter’s transcript. (Cal. Rules of Court, rule 8.137.) “Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992, original italics.) Applying these principles here, Bhasin is precluded from arguing that the evidence presented at trial was sufficient to withstand a directed verdict. Before turning to Bhasin’s remaining arguments, we briefly address two related challenges to the directed verdict on plaintiffs’ MFCL claim.

Bhasin first asserts that the MFCL is inapplicable as a matter of law because plaintiffs’ property had already been sold by the time they first met him. In the absence of a reporter’s transcript or a settled statement of the trial proceedings, Bhasin cannot establish the factual predicate for this assertion—namely, that plaintiffs’ property had already been sold by the time they first met him. Moreover, even if the assertion were true, it would not necessarily preclude relief under the MFCL. As Bhasin notes, for the purposes of the MFCL, the owner of a property entitled to its protections is determined as of “the time the notice of default was recorded,” a date preceding the date the property is sold. (Civ. Code, §§ 1695.1, subd. (f), 2945.1, subd. (g).) Nothing in the MFCL states that, in all instances, its protections terminate immediately upon the sale of the owner’s property, a time when the owner is particularly vulnerable.[2] In the absence of a complete and adequate record of the proceedings below, including precisely what transpired between Bhasin, American, and plaintiffs and when, we decline to address the hypothetical scope of the MFCL.

Bhasin next maintains that the directed verdict was procedurally defective because plaintiffs’ first amended complaint did not expressly allege a cause of action under the MFCL. Bhasin did not object to the directed verdict on this basis and, therefore, failed to preserve the issue for appeal. Nor does the limited record before us support Bhasin’s assertion that he was somehow surprised by the issue at trial. To the contrary, plaintiffs’ trial brief expressly referenced Bhasin’s alleged violations of the MFCL as one of the issues to be decided at trial. Under these circumstances, plaintiffs’ failure to seek formal leave to amend to add an MFCL cause of action does not warrant setting aside the directed verdict. (Code Civ. Proc., § 469 [“Variance between the allegation in a pleading and the proof shall not be deemed material, unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense upon the merits.”].)

Remaining Issues on Appeal

Bhasin also challenges the directed verdict on plaintiffs’ claim that he engaged in the unauthorized practice of law and the corresponding permanent injunction prohibiting him from doing so. In addition, he attacks the judgment based on several perceived “irregularities,” one of which amounts to nothing more than a self-evident typographical error. Once again, in the absence of a complete and adequate record of the proceedings below, we decline to reach the merits of these issues.

DISPOSITION

The judgment is affirmed with costs to plaintiffs.

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McGuiness, Acting P.J. *

We concur:

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Siggins, J.

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Jenkins, J.

A146420; A143127; A144128