Gupta v. Patil CA1/1

Opinion

Filed 9/2/26 Gupta v. Patil CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SANCHITA GUPTA, Plaintiff and Respondent, A171489 v. GAUTAM PATIL, (Alameda County Super. Ct. No. 23CV051251) Defendant and Appellant.

Respondent Sanchita Gupta sued appellant Gautam Patil after Patil failed to repay money owed under a promissory note. Patil proceeded without an attorney. Shortly before trial, the trial court denied Patil’s motion to amend his answer to allege that the action was barred by Code of Civil Procedure section 726, subdivision (a) (section 726(a)), which generally governs actions brought to recover debts secured by a mortgage.1 The court subsequently denied Patil’s motions to continue the trial and to present the testimony of two expert witnesses remotely. After a short bench trial, the court found in Gupta’s favor. On appeal, Patil argues that the court erred in 1 All further statutory references are to the Code of Civil Procedure.

1 denying his motions to amend, for a continuance, and to present the remote expert testimony. We reject his arguments and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In December 2020, Gupta lent Patil, a “friend who [Gupta] trusted at the time,” $91,503 to buy a condominium in India. Three days later, Patil and Gupta executed a document titled “Promissory Note.” The note contemplated an interest rate of 4.5 percent, and the loan was to be repaid in monthly installments beginning in January 2022. The note provided, “The undersigned agrees that this note may be revocable due to the non-payment of any collection costs, such as court, and other collection activities will be added to the balance. [¶] Should the lender exercise this option, the entire unpaid balance of the loan and interest becomes due and payable immediately. Reasonable collection activities may include attorney fees and obtaining a judgment.” The note further provided, “In the event of default by the borrower, the lender can liquidate the borrower’s property [located in Jenner] and return any proceeds in excess of the owed funds and a reasonable transaction cost.” Both parties agree that no deed of trust or other security interest in the Jenner property was entered into or exchanged in connection with the promissory note. Gupta contacted Patil in September 2021 and asked to be paid the full amount owed. The parties discussed repayment, but Patil made no payments. Gupta sued for breach of contract in November 2023. She sought the principal sum of the promissory note, plus interest at a rate of 4.5 percent dating back to the initial loan date, and attorney fees. That same month, she filed an application to attach real property Patil owns in Oakland. She 2 asserted that she was not required under section 726(a) to first move on the Jenner property because she had no security interest in it. The trial court denied the request. Patil answered the complaint in January 20242 and listed 49 affirmative defenses. The answer, however, did not mention section 726(a) or otherwise claim that Gupta had failed to foreclose on the Jenner property. At a case-management conference held in March, the trial court scheduled a pretrial conference for July 5 and trial for July 15. The minute order entered in connection with the case-management conference directed the parties to comply with the court’s standing pretrial orders for civil cases set forth in Local Rule of Court 3.35. This rule provides that a list of all witnesses (including experts) must be personally served on opposing counsel three court days before the pretrial conference. (Alameda Co. Local Rules, rule 3.35(f) [standing pretrial orders for civil cases, witnesses].) The minute order also directed the parties to bring to the pretrial conference filed copies of all motions in limine as well as a “comprehensive list of all witnesses the parties intend to call in the case.” In May, Patil asked if Gupta would stipulate to allowing him to amend his answer to include a defense under section 726(a), which he referred to as the “One Action Rule.” Gupta’s counsel requested a copy of the proposed amendment. Patil provided a proposed amendment that dropped around 20 affirmative defenses, but still did not mention section 726(a). He then withdrew the proposed amendment. Gupta’s counsel later represented that 2 Unless otherwise specified, all further date references are to the 2024 calendar year.

3 he “prepared for trial under the assumption that [Patil] was not pursuing the ‘one action rule’ as a defense.” On the day of the scheduled pretrial conference, Patil filed a “Request to Designate Expert Witnesses.” Patil listed two proposed experts: (1) a “forensic linguist” who “specializ[es] in cross-cultural communication patterns and the interpretation of ambiguous language,” and (2) “a real- estate expert specializing in real estate transactions, securitized notes, notes with options, and the interpretation of CCP [section] 726a.” At the pretrial conference on July 5, Patil repeatedly asked if he would be allowed to present the testimony of his proposed experts. At one point, the following exchange took place: “THE COURT: Explain to me what defendant’s request to designate expert witnesses, what that motion is for. “MR. PATIL: During pre-trial and meet-and-confer, I have stated I was going to have two expert witnesses. And I have the two expert witnesses but I . . . “THE COURT: Has anybody circulated to me for designation in this case? “MR. PATIL: No, Your Honor. “THE COURT: Then what would be the point of a request here? “MR. PATIL: I’m not sure I understand, Your Honor. “THE COURT: All right. I’m going to move on. ¶. . .¶ “MR. PATIL: Your Honor, about the expert witnesses, I have two expert witnesses, and during meet and trial confer [sic], we agreed they are part of the trial proceedings. “THE COURT: When you represent yourself, you have a handicap. I’m not here to tell you how to practice law. I can’t do that.”

4 The court never specifically stated whether Patil would be permitted to present expert testimony, and at no point did Patil indicate that he wanted his expert witnesses (or any witness) to appear remotely. Three days after the pretrial conference, Patil filed an “Ex Parte Application for Leave to Amend Answer and Motion to Permit Expert Witnesses to Appear Via Zoom.” (Formatting omitted.) In it, he sought to amend his answer to add an affirmative defense that Gupta’s action was barred under section 726(a), because Gupta “failed to first exhaust all remedies against the security for the alleged debt before commencing this lawsuit.” He also requested that his two proposed expert witnesses be permitted to appear remotely via Zoom. Gupta opposed Patil’s requests. The opposition stated that counsel for Gupta “had repeatedly explained to [Patil] why the ‘one action rule’ did not apply to this case, due to the lack of any security interest by [Gupta] in the property referenced in the promissory note, and the non-mandatory language in the promissory note about [Gupta’s] right to move against the Jenner property.” The trial court ruled that the “motion to amend the answer to include a defense that is only appropriate in judicial foreclosure cases is denied because this is not a judicial foreclosure case.” The trial court also denied Patil’s request for his proposed experts to testify remotely. The court explained, “We did a great deal of remote examination and participation during the COVID years, but my experience has been that in-person testimony and in-person appearances are what is now required because the COVID crisis is over.” The day after the hearing, and three days before the scheduled trial, Patil challenged the trial court’s rulings by filing in this court a petition for a writ of mandate and a request for stay (No. A170889). He also filed in the 5 trial court an ex parte application for a trial continuance pending a ruling by this court on his petition for a writ of mandate. Both the petition and the application were denied on the first day of the trial. After a one-day bench trial, the trial court found in Gupta’s favor and awarded her the full amount of the principal sum of the note plus the accrued interest that Gupta had requested. It later awarded her post-judgment interest, and attorney fees and costs. Patil continues to represent himself in this appeal. He filed an opening brief, then a supplemental opening brief that the court permitted him to file. II. DISCUSSION A. The Trial Court Did Not Abuse Its Discretion by Denying Patil’s Last-minute Request to Amend His Answer and Add a Defense Under Section 726(a).

Patil renews his argument that the trial court erred when it denied his request to amend his answer. We are not persuaded. To begin with, we agree with Gupta that Patil has failed to establish any prejudice by the trial court’s denial of his request to amend his answer. As Gupta points out, the court in fact addressed the merits of Patil’s position regarding section 726(a) when it ultimately characterized any security interest as “entirely illusory.” Thus, Patil cannot establish that the denial of his request to amend prejudiced him by leaving unresolved the question of section 726(a)’s applicability. Furthermore, we agree with the merits of the trial court’s ruling. Section 726(a) provides, “There can be one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein, which action shall be in accordance with the provisions of this chapter. In the action the court may, by its 6 judgment, direct the sale of the encumbered real property or estate for years therein (or so much of the real property or estate for years as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, the expenses of levy and sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney’s fees, the sum for attorney’s fees as the court shall find reasonable, not exceeding the amount named in the mortgage.” This section applies only to debts secured by a security interest,3 and the court’s characterization here that any security interest was illusory was tantamount to a finding that there was no such interest. We review such a finding for substantial evidence. (Beeler v. American Trust Co. (1944) 24 Cal.2d 1, 7; Kogan v. Bergman (1966) 244 Cal.App.2d 613, 620–621.) There was ample, and certainly substantial, evidence here to support the court’s finding. Whether written real estate documents constitute a mortgage or other security interest depends on the parties’ intent. (Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 313–314, overruled on other grounds in Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 953.) Substantial evidence supports the trial court’s implicit finding that the parties did not intend to create a security interest. The promissory note’s single reference to real property stated that “[i]n the event of default by the borrower, the lender can liquidate the borrower’s property at [Jenner] and return any proceeds in excess of the owed funds and a reasonable transaction cost.” This non-mandatory passage hardly establishes that the parties intended that foreclosure of the Jenner property would be the exclusive remedy for non-payment. At trial, both 3 While the text of the statute refers to debts “secured by mortgage,”

section 726(a) similarly applies to debts secured by a deed of trust. (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 996–997.)

7 parties unequivocally stated that there was no deed of trust or other security interest in the Jenner property exchanged in connection with the promissory note. Further, when asked at trial if Patil had mentioned “anything about collateral property to be included in [the promissory] note,” Gupta responded, “[Patil] did mention it, but he did not want [to] go into details. And I did not ask too many details because, genuinely, I wasn’t interested in any of that.” Patil spends most of his supplemental opening brief criticizing the trial court’s assertion that this was not a “judicial foreclosure case” as “legal error” and contends that the promissory note served as an “obligation secured by real property.” He argues that the trial court erred when it allowed proceedings to continue “without a section 726(a) security-first analysis despite record evidence pointing to a collateral remedy.” He insists that section 726(a) applies when property is secured by a security interest. But his argument and insistence are based on the faulty premise that the promissory note created a security interest. Patil contends in his reply brief that “[t]he record contains multiple, converging indicia that the Jenner property clause was understood as a real- property remedy upon default—i.e., at minimum a triable equitable-mortgage predicate.” But the idea that some evidence might have supported a theoretical finding by the trial court that the parties intended to create a security interest is immaterial to the question before us, which is whether substantial evidence supports the court’s actual finding that they did not. And to the extent the contention is an argument for finding an equitable mortgage, Patil has forfeited it by waiting until his reply brief to first raise it. (See, e.g., Proctor v. Vishay Intertechnology (2013) 213 Cal.App.4th 1258, 1273 [issues raised in the reply brief for the first time will not be considered unless good reason is shown for failure to present them before].) We agree 8 with Gupta that because the parties never agreed to “a deed of trust, mortgage, or any recorded security instrument on the Jenner property,” section 726(a) does not apply. B. The Trial Court Did Not Abuse Its Discretion By Denying Patil’s Untimely Request for Expert Witnesses to Testify Remotely.

Patil also argues that the trial court abused its discretion by applying a “blanket policy or refusal to exercise informed discretion” when it “declined remote testimony for defense witnesses without articulating case-specific factors,” allegedly in violation of section 367.75 and California Rules of Court, rule 3.672, which both govern remote proceedings. We find no reversible error. Section 367.75, subdivision (b), provides that the trial court may require a witness to appear in person if any of five technological factors are present, or if “[t]he court determines on a hearing-by-hearing basis that an in-person appearance is necessary to the determination of the . . . proceeding, or that remote attendance would materially impair the resolution of the . . . proceeding.” (Id., subd. (b)(3).) Notwithstanding this provision, “an expert witness may appear remotely absent good cause to compel in-person testimony.” (Id., subd. (c).) But parties must comply with notice requirements. California Rules of Court, rule 3.672(h)(2)(C)(i) provides that a party “must provide notice of the party’s intent to appear remotely at least 10 court days before the . . . trial.” Patil did not provide such notice and instead waited until after the pretrial conference (and seven days before trial) to request a remote appearance. Patil likewise did not comply with the local rule requiring him to provide a list of all witnesses (including experts) three court days before the pretrial conference, and instead filed his request the day of the conference. (Super. Ct. Alameda County, Local Rules, rule 3.35(f).)

9 Even assuming that Patil complied with notice requirements and that the trial court erred in denying him permission to present his expert witnesses’ testimony remotely, Patil falls far short of establishing any prejudice, as he has not shown that the experts’ testimony would have been admissible. (See Evid. Code, § 801, subd. (a) [expert testimony limited to subject sufficiently beyond common experience that the expert’s opinion would assist trier of fact].) One expert was to testify on a defense under section 726(a), which we already have concluded was unavailable to Patil.4 (See Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1091 [“parties cannot introduce evidence about issues outside the pleadings”].) As for the second proposed expert, a linguist, Patil argues that the witness “would show that the parties’ usage of ‘can’ functioned as mandatory in context across >1,000 pages, corroborating intent regarding the Jenner property and informing contract meaning.” To the extent this proposed testimony was being offered in support of a section 726(a) defense, again, we have already rejected such a defense. In any event, the trial court made clear that the mandatory or non-mandatory nature of the word “can” was ultimately irrelevant because it found that Patil’s assertion of a security interest was “illusory” regardless of whether the promissory note said “shall or can or must at all.” Since Patil has not established that either expert’s testimony would have been helpful or appropriate, the trial court did not abuse its discretion in excluding the testimony.

4 Patil also asserts that the expert would have testified as to why prejudgment attachment was improper, which was not an issue at trial since the trial court previously had denied Gupta’s request to attach his Oakland property.

10 C. The Trial Court Did Not Abuse Its Discretion When It Denied Patil’s Untimely Request for a Trial Continuance.

The trial court also did not abuse its discretion when it denied Patil’s last-minute request for a continuance of the trial. (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 [review of denial of continuance for abuse of discretion]; Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984–985 [burden is on appellant to demonstrate abuse of discretion].) California Rules of Court, rule 3.1332(a) provides that “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” “[C]ontinuances of trial are disfavored,” and a “court may grant a continuance only on an affirmative showing of good cause requiring the continuance,” based on factors set forth in the rule. (Cal. Rules of Court, rule 3.1332(c)(1)–(7) & (d)(1)–(11).) The only reason Patil provided for seeking a continuance was to gain additional time to pursue a defense under section 726(a), which—as we have discussed—was meritless. We likewise reject Patil’s related argument that he was improperly denied “ADA tools,” an apparent reference to a request of his to use a PowerPoint presentation during trial. The trial court ruled that “[i]f you want to project a document that is in evidence, you can do that. You can use the demonstrative evidence and project that. [¶] Can you put on your outline of your case notes and give a lecture? No, you can’t do that.” There is no indication that Patil ever argued that he needed to use PowerPoint slides for “ADHD focus,” as he contends on appeal, nor has he established that he was entitled to some other accommodation. Patil has not established error, much less reversible error.

11 D. Patil Provides No Additional Information on the Issues that He Purportedly Preserved for Supplemental Briefing. In Patil’s opening brief, he lists several issues under the heading “OTHER ISSUES PRESERVED FOR SUPPLEMENTAL BRIEFING (post- augmentation).” Beyond the issues fully briefed by Patil, which we have addressed, the remaining issues on the list in Patil’s brief include parenthetical notes stating, “settled statement pending” or “settled statement to be lodged.” (Italics omitted.) Given that Patil provides no additional information on these issues in his supplemental brief, we consider these issues waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”].) III. DISPOSITION The judgment is affirmed. Respondent shall recover her costs on appeal.

12 _________________________ Humes, P. J.

WE CONCUR:

_________________________ Banke, J.

_________________________ Smiley, J.

Gupta v. Patil A171489