California Court of Appeal, Fourth District, First Division
February 27, 2014
BREWER CORPORATION et. al., Plaintiffs and Respondents,
POINT CENTER FINANCIAL, INC., Defendant and Appellant.
The petitions for rehearing are DENIED.
It is ordered that the opinion filed herein on January 31, 2014,
223 Cal.App.4th 831; __ Cal.Rptr.3d __ be modified as follows:
1. On page 3 of the opinion the first full paragraph is deleted [223 Cal.App.4th 837, advance report, 5th par.], and the following is inserted:
As Lender raised funds for subsequent stages of construction, it assigned portions of its beneficial interest in the construction loan trust deed to third party investors. Lender entered into private loan servicing agreements with its third-party investors, bye which it served as each investor's agent with regard to the construction loan. Lender paid the third party investors interest on their fractional loan interest at a rate of 10 percent and charged a servicing fee of 1.5 percent. Significant to this action, under the private loan placement and fee agreements on each of these loans Lender prepaid itself interest, loan fee/points, loan underwriting and other feestotaling $1,555,771.37. (As used in this decision, the term "prepaid" means that the Lender was paid before the stop notice claimants were paid in full on their claims.) The loan servicing agreements between Lender and the third party investors were not recorded as a public record.
2. On page 27 of the opinion the last paragraph which continues onto page 28 [223 Cal.App.4th 853, advance report, 2d full par.], is deleted, and the following is inserted:
Because the record reveals that the parties did not have a full and fair opportunity to litigate the potentially dispositive factual excuse issue, we decline to rule on whether Dynalectric had a factual excuse for not complying with the preliminary notice requirement. In the interest of justice, we provisionally reverse the judgment in favor of Dynalectric and remand the matter to the trial court for an evidentiary hearing on when Dynalectric
started work on the project. For purposes of this appeal, the provisional reversal means that on remand, Dynalectric and the lender are placed in the same positions and have the same rights as before rendition of the judgment. (Hall v. Superior Court (1955) 45 Cal.2d 377, 381 [289 P.2d 431].) If the trial court finds in favor of Dynalectric on the existence of a factual excuse for not serving a preliminary notice on Lender the judgment in favor of Dynalectric should be affirmed. Alternatively, if the trial court finds against Dynalectric on the existence of a factual excuse, the judgment in favor of Dynalectric should be reversed.
3. On page 32 of the opinion [223 Cal.App.4th 856, advance report, 2d par. of the Disposition], the last paragraph is deleted, and the following is inserted:
The judgment in favor of Dynalectric is provisionally reversed and the matter is remanded to the trial court for further proceedings, on an expedited basis, consistent with the views expressed in this opinion. If trial court finds in favor of Dynalectric on the existence of a factual excuse for not serving a preliminary notice on Lender, the judgment in favor of Dynalectric is affirmed and Dynalectric is to recover its costs on appeal. Alternatively, if the trial court finds against Dynalectric on the existence of a factual excuse, the judgment in favor of Dynalectric is reversed and Lender is to recover its costs on appeal.