MALLANO, P. J.
Nvard Tngryan appeals from a judgment entered after a jury returned a special verdict against her on her claims for slander of title, negligence, fraud, and unjust enrichment against Robert Weiss and Rockland Funding, Inc., and the trial court entered judgment against her on her equitable claims for removal of cloud from title, cancellation or setting aside of deed of trust, quiet title, and declaratory relief against Weiss and Rockland Funding, Inc. Tngryan contends that the court erred in failing to declare her the prevailing party on all her claims because Weiss reconveyed a deed of trust to her and dismissed his cross-complaint against her; the court erred in not awarding her attorney fees; the court erroneously instructed the jury on her slander of title claim; and the court "abused its discretion" when it did not enter judgment in her favor on her negligence claim.
We disagree. The court did not err in determining that Weiss and Rockland Funding, Inc., were the prevailing parties because Tngryan did not recover any relief against Weiss and Rockland Funding, Inc., as a result of the jury and court trials and Weiss reconveyed the deed of trust on July 28, 2009, prior to the start of trial on March 22, 2010. Thus, Tngryan did not achieve her main litigation objectives, which were to prevail at trial on her causes of action for slander of title, negligence, fraud, unjust enrichment, removal of cloud from title, cancellation or setting aside of deed of trust, quiet title, and declaratory relief and to receive an award of punitive damages, attorney fees, and at least $29,000 in compensatory damages. Therefore, the trial court did not abuse its discretion in determining that Weiss and Rockland Funding, Inc., were the prevailing parties.
Tngryan's contention that the jury was instructed erroneously fails because her arguments are based on misrepresentations of the record to this court. Further, Tngryan's claim that the trial court erred in not granting her a judgment on the negligence claim fails because she did not make a motion for a judgment notwithstanding the verdict below and therefore has forfeited that claim on appeal.
The following facts are taken from the pleadings, correspondence, and transcripts of the proceedings before the jury and the trial court. On appeal, we indulge every reasonable intendment in favor of sustaining the trial court's judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Weiss and Tngryan were the victims of a fraudulent scheme perpetrated by Alisa Altounian. Altounian worked as an independent contractor processing loans for Weiss, who was a licensed real estate broker and the owner and president of Rockland Funding, Inc. Altounian, a notary public, was not a branch manager or partner in Weiss's office, but held herself out as such in advertisements and business cards without Weiss's knowledge. Weiss and Altounian did not work together making short-term loans or splitting commissions from banks. Altounian was a very close friend of Tngryan. Weiss and Tngryan did not know each other, but Tngryan knew that Altounian worked with Weiss. Tngryan believed Altounian was Weiss's partner.
Tngryan had lent Altounian $29,000 in 2002, which Altounian paid off. Subsequently, Tngryan made more short-term loans to Altounian, which she continued to pay off until 2007. In October 2005, at Altounian's request, Tngryan became a joint savings account holder with Altounian at Wells Fargo Bank.
Weiss had known Altounian for 20 years and had lent money to Altounian in the past, which she had always paid back. In February 2007, Altounian approached Weiss and asked him to lend money to five friends of hers, including Tngryan, at various interest rates, secured by their five separate properties. Weiss agreed. Unbeknownst to Altounian's friends, Altounian borrowed money in their names by forging their names on the notes and deeds of trust. Altounian convinced Weiss to delay recording the deeds of trusts, and made cash payments on the notes to Weiss until late 2007. Weiss did not know the borrowers and had never met with them. He lost $275,000 due to Altounian's fraud.
With respect to Tngryan's transaction, Altounian convinced Weiss to loan Tngryan $50,000, plus points and interest, secured by real property owned by Tngryan located in North Hollywood (the real property). Weiss did not meet with Tngryan because he believed Altounian's explanation that Tngryan was from a tightly knit community that dealt only with their own members.
After determining that the real property had equity, Weiss prepared a promissory note for $55,000 and a deed of trust secured by Tngryan's real property. Under the terms of the note, the $55,000, which included points and interest, was to be paid back to Weiss on January 25, 2007. After Weiss received the note and deed of trust purportedly signed by Tngryan, he wired $50,000, minus wire transfer fees, to the Wells Fargo savings account. At that time, he was unaware that Tngryan's signature on the note and deed of trust was forged by Altounian.
Altounian made three interest payments in cash to Weiss, ostensibly on behalf of Tngryan. After the note matured on January 25, 2007, Weiss did not attempt to foreclose on Tngryan's property because he believed Altounian's assurance that Tngryan would pay off the loan. But Weiss recorded the deed of trust on February 12, 2007, to protect his investment. In April 2007, Altounian obtained a signed blank check from Tngryan. Altounian filled out the check in the amount of $1,000, payable to Weiss, and showed him the check and told him she would deposit it in his account, in order to convince him that Tngryan wanted to pay off the loan. Instead, she deposited $1,000 from another source into Weiss's checking account.
On January 22, 2008, Weiss's attorney sent a letter to Tngryan demanding payment of $55,000 due on January 25, 2007, and stating that he had been authorized to take legal action, including instituting foreclosure proceedings against the real property. Weiss's attorney sent similar letters to other purported borrowers to whom Weiss had lent money at Altounian's request.
On March 1, 2008, Altounian admitted to Tngryan that she had forged Tngryan's signature on the promissory note and the deed of trust, and had taken the $50,000 loaned by Weiss. Tngryan's attorney, her brother Armand Tinkerian, sent Weiss letters stating that Tngryan had never signed the $55,000 promissory note and that Altounian forged Tngryan's signature on the promissory note, and demanded that Weiss reconvey the deed of trust.
On March 31, 2008, Weiss's attorney sent a letter to Tinkerian stating that Weiss would not take any legal action against any individual until the criminal investigation was completed and all culpable parties were criminally charged. It also stated: "However, if a law suit is filed against my client, you can . . . rest assured that it will be dealt with to the fullest extent of law."
On October 14, 2008, Tngryan filed a complaint against Weiss, Rockland Funding, Inc., and others, including Altounian. On January 27, 2009, criminal charges were filed against Altounian for theft and forgery of five deeds of trust. Around that time, Weiss became aware that Altounian had been arrested.
On March 17, 2009, Tngryan filed a first amended complaint against Weiss, Rockland Funding, Inc., and others, including Altounian, alleging causes of action for removal of cloud from title and to cancel or set aside a deed of trust; slander of title; quiet title; negligence; fraud and violation of Civil Code sections 1709 and 1710; breach of oral contract; unjust enrichment; declaratory relief; and damages for acknowledgment and recovery on notary bond (the complaint). The complaint alleged that in May 2002, Tngryan lent Altounian $30,000; Weiss encouraged Altounian to borrow the $30,000 from Tngryan; Altounian transferred to Weiss some of the $30,000 she had borrowed from Tngryan for Weiss to use in his business operations; and Weiss did not intend to pay Tngryan back. The complaint also alleged that Weiss and Altounian conspired to obtain loans secured by a deed of trust on Tngryan's real property; Jirair Gharakhani and Altounian conspired to obtain loans secured by a deed of trust on Tngryan's real property; Weiss and Altounian conspired to borrow hundreds of thousands of dollars, which they did not intend to pay back, from Sarkis Kalinyan, Vahag Stephen, and Ms. Anahit; Weiss and Altounian conspired to forge the signatures of Tigran Depelyan and Pogos Zakarian on promissory notes and deeds of trust; and Weiss and Altounian fraudulently recorded deeds of trust and slandered title of properties belonging to Gevork Hadjibekian and Tagouhi Hajibekian. The complaint further alleged that Weiss had participated in the fraud; been shown a declaration by Altounian in which she admitted she had forged the promissory note and deed of trust; been aware of the criminal investigation of Altounian; and refused to cancel the fraudulent deed of trust. It also alleged that Weiss was negligent because he should have known that he did not lend Tngryan "$55,000." Tngryan requested declaratory relief, punitive damages, compensatory damages in the amount of $30,000, attorney fees, and costs of suit.
On June 2, 2009, Altounian pleaded guilty to 26 counts of grand theft and forgery.
Around June 16, 2009, Weiss filed a cross-complaint concurrently with a verified answer against Tngryan, Altounian, and Surety Bonding Company of America for breach of contract; conspiracy to commit fraud; declaratory relief; unjust enrichment; common counts; and damages for acknowledgement and recovery of notary bond (the cross-complaint). The cross-complaint alleged that Altounian had induced Weiss to enter into an agreement under which Weiss loaned $50,000 to Tngryan secured by a deed of trust; under the agreement, Tngryan was to make monthly payments of interest only of $458.33 starting on October 25, 2006. Tngryan failed to make monthly interest payments beginning on December 1, 2007, and Weiss informed Tngryan that she was overdue on January 22, 2008. The cross-complaint also alleged that Tngryan and Altounian conspired to defraud Weiss.
On July 28, 2009, Weiss reconveyed the real property back to Tngryan, executing a substitution of trustee and full reconveyance. And on August 17, 2009, Weiss dismissed with prejudice his cross-complaint against Tngryan as well as the cross-complaint he had filed against Zakarian and Depelyan.
On October 6, 2009, the trial court denied Tngryan's motion for summary judgment and motion for issue and discovery monetary sanctions against Weiss.
Trial commenced on March 22, 2010. In closing argument, Tinkerian argued that Altounian was Weiss's branch manager, they were partners, and they worked together to process loans and mortgages. Tinkerian maintained that Weiss defrauded Tngryan, that he was negligent in recording the deed of trust, and that he "probably" got 50 percent of the $29,000 Tngryan loaned to Altounian. Tinkerian sought $55,000 in "lost interest in [Tngryan's] property" and "up to" $29,000 for the money loaned by Tngryan to Altounian.
Tinkerian drafted and submitted a special verdict form to the trial court. After the court made a minor grammatical change, the parties agreed on question No. 1 as: "Did Robert Weiss publish a statement by recording a deed of trust slandering the title of Nvard Tngryan's real property?" The jury was instructed on the elements of negligence, slander of title, unjust enrichment, conspiracy, fraud, and agency. The jury instruction on slander of title stated: "Tngryan claims that she was harmed by the recording of the deed by Robert Weiss that slandered the title to her real property. To establish this claim, she must prove all of the following: [¶] One: That . . . there was a publication of false statement. [¶] Two: The publication was without privilege and without verification. [¶] Three: The publication must have been done with malice. [¶] Four: The publication was the proximate cause of pecuniary loss or damage to the owner of the interest."
On March 24, 2010, the jury returned a special verdict in favor of Weiss, finding that Weiss did not "publish a statement by recording a deed of trust slandering the title of Nvard Tngryan's real property"; that Weiss was not "negligent in recordation of the deed of trust on Nvard Tngryan's real property"; that Weiss did not "receive money from Nvard Tngryan"; that Rockland Funding, Inc., did not "receive money from Nvard Tngryan"; and that "Tngryan's damages against Robert Weiss or Rockland Funding, Inc. for unjustly retaining money" were zero. The court awarded Weiss and Rockland Funding, Inc., their costs of suit from Tngryan.
The court trial followed on March 30, 2010, on Tngryan's causes of action for removal of cloud from title and cancellation or setting aside a deed of trust, quiet title, and declaratory relief against Weiss and the causes of action against Altounian. The court took the matter under submission and filed a judgment on June 8, 2010, determining that Tngryan had not met her burden of proof on the causes of action against Weiss and Rockland Funding, Inc., for removal of cloud from title, cancellation or setting aside deed of trust, and declaratory relief. The court entered judgment in favor of Weiss and Rockland Funding, Inc., and against Tngryan, and awarded Weiss and Rockland Funding, Inc., their costs of suit from Tngryan. No statement of decision appears in the record.
No appearance at trial was made by Altounian, and the court determined that Tngryan was entitled to judgment against her in the amount of $29,000 and attorney fees in the amount of $202,500.00 and costs of $5,837.86 on her causes of action for slander of title, removal of cloud from title, and quiet title.
Tngryan appealed.
Tngryan contends that she was the prevailing party pursuant to Code of Civil Procedure section 1032, subdivision (a)(4) on her causes of action for quiet title, removal of cloud from title, and declaratory relief because in October 2008 she filed a lawsuit to cancel the deed of trust, which Weiss "was forced to cancel" in July 2009 and because Weiss dismissed his cross-complaint against her.
Section 1032, subdivision (b) provides that, "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." Pursuant to section 1032, subdivision (a)(4), "`Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the `prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034."
"Generally, when a party falls squarely within one of the four situations enumerated in the definition of a prevailing party under section 1032, that party is entitled to recover costs as a matter of right. [Citations.]" (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 188.) "In other circumstances, the trial court exercises its discretion to determine the prevailing party, `comparing the relief sought with that obtained, along with the parties' litigation objectives as disclosed by their pleadings, briefs, and other such sources.' [Citation.]" (Ibid.)
Here, both the jury and the trial court found in favor of Weiss and against Tngryan. The jury returned a verdict finding that Weiss did not publish a statement by recording a deed of trust slandering the title of Tngryan's property; that Weiss was not negligent in recording the deed of trust on Tngryan's real property; and that neither Weiss nor Rockland Funding, Inc., received money from Tngryan. It also found that Tngryan sustained no damages against Weiss or Rockland Funding, Inc., for unjustly retaining money. The court found that Tngryan had failed to meet her burden of proof on the causes of action against Weiss and Rockland Funding, Inc., for removal of cloud from title and cancellation or setting aside the deed of trust and declaratory relief. Thus, Tngryan did not recover any relief against Weiss and Rockland Funding, Inc.
Tngryan urges that she was the prevailing party because she achieved her goal of having Weiss reconvey the deed of trust and forced him to dismiss his cross-complaint against her. We conclude that the trial court did not abuse its discretion in determining that Weiss and Rockland Funding, Inc., were the prevailing parties. Weiss reconveyed the deed of trust on July 28, 2009, after Altounian pleaded guilty on June 2, 2009, and prior to the commencement of trial on March 22, 2010. Nevertheless, Tngryan pursued her lawsuit, bringing the matter to trial on her causes of action for slander of title, negligence, fraud, unjust enrichment, removal of cloud from title, cancellation or setting aside of deed of trust, quiet title, declaratory relief, and attorney fees. During the course of the trial she sought to prove that Altounian and Weiss acted in concert to defraud Tngryan of $29,000 and record the forged deed of trust, and that Weiss was negligent in recording the deed of trust. Tinkerian urged in closing argument that the jury should award Tngryan $55,000 for "lost interest in her property" and "up to" $29,000 for Tngryan's loan to Altounian. Therefore, the trial court could infer that Tngryan's main litigation goals were to receive an award of $84,000, attorney fees, and punitive damages. Because she failed to achieve those goals, we conclude the trial court did not abuse its discretion in determining that Weiss and Rockland Funding, Inc., were the prevailing parties.
We also reject Tngryan's argument that she was the prevailing party because Weiss and Rockland Funding, Inc., dismissed their cross-complaint against her. As previously stated, even after Weiss and Rockland Funding, Inc., dismissed their cross-complaint against Tngryan, she unsuccessfully pursued her lawsuit but did not prevail on her litigation goals. Therefore, the trial court did not abuse its discretion in determining that Tngryan was not the prevailing party.
Further, in McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454 (McLarand ), the Court of Appeal held that under section 1032, where neither plaintiff nor defendant obtained relief on their complaints and cross-complaints, the defendant was the prevailing party. Citing Schrader v. Neville (1949) 34 Cal.2d 112, the McLarand court recognized that a defendant, who might never have filed suit against the plaintiff, would be compelled to assert claims against the plaintiff once that plaintiff filed suit. (McLarand, at p. 1455.) It noted that "[a] defendant cannot obtain relief unless it files a cross-complaint against the plaintiff because affirmative relief cannot be claimed in the answer. (§ 431.30, subd. (c).)" (McLarand, at p. 1454.) Here, the filing of the cross-complaint concurrently with the answer was a defensive move in response to Tngryan's complaint. Had Tngryan not filed her complaint, Weiss and Rockland Funding, Inc., might never have filed their cross-complaint, which was dismissed two months after it was filed and seven months before trial commenced. Thus, the trial court did not abuse its discretion in determining that Weiss and Rockland Funding, Inc., were the prevailing parties even though they dismissed their cross-complaint against Tngryan.
Having concluded that the trial court did not err in determining that Tngryan was not the prevailing party, we need not address her further argument that the trial court erred in failing to award her attorney fees as the prevailing party.
Tngryan contends that the trial court erred regarding the special verdict form on slander of title, resulting in jury confusion. We disagree and note that in making her argument, Tngryan misrepresents the record.
Tngryan claims on appeal that the court failed to instruct on the elements of slander and instead "
Further, Tngryan's claims that the trial court erred because "the fifth element of slander appears as the first element" in the special verdict form and that the court "placed the element of malice in the first place" in the special verdict form are not supported by the record. Rather, the record shows that the court instructed the jury on the elements of slander as: "Tngryan claims that she was harmed by the recording of the deed by Robert Weiss that slandered the title to her real property. To establish this claim, she must prove all of the following: [¶] One: That . . . there was a publication of false statement. [¶] Two: The publication was without privilege and without verification. [¶] Three: The publication must have been done with malice. [¶] Four: The publication was the proximate cause of pecuniary loss or damage to the owner of the interest."
Tngryan again misrepresents the record when she urges that the jury must have been confused by the instructions because it made findings contrary to Weiss's admission that, "`at the time that this deed was recorded, which was February 12, 2007, there was a publication of a false statement.'" But Weiss made no such admission: Tngryan's cite is to Weiss's counsel's closing argument, in which he merely set forth the first element of a slander of title cause of action.
We conclude that Tngryan has not shown the trial court erred regarding her slander of title claim. Finally, because Tngryan did not prevail on her slander of title cause of action, we need not consider Tngryan's further argument that the trial court erred in refusing to include an instruction allowing for the recovery of attorney fees in the slander of title action.
Tngryan's contention that the trial court abused its discretion in failing to grant her a judgment on her negligence claim must fail because there is nothing for us to review. Tngryan did not make a motion for a judgment notwithstanding the verdict before the trial court and therefore has forfeited that claim on appeal. (§ 629 [a motion for judgment notwithstanding the verdict shall be made within the period specified by § 659]; Mepco Services, Inc. v. Saddleback Valley Unified School Dist. (2010) 189 Cal.App.4th 1027, 1049, fn. 29 [failure to raise a challenge in the trial court forfeits the claim on appeal].)
The judgment is affirmed.
ROTHSCHILD, J. and JOHNSON, J., concurs.
