DEUTSCHE BANK NATIONAL TRUST CO. v. THE SUPERIOR COURT OF ORANGE COUNTY

No. D070678.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, etc., Plaintiff, v. THE SUPERIOR COURT OF ORANGE COUNTY, Defendant; ASSURED GUARANTY CORP., Real Party in Interest and Appellant; THIRD POINT QUALIFIED PARTNERS LP et al., Objectors and Respondents.

Court of Appeals of California, Fourth District, Division One.

Filed June 15, 2017.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT

McCONNELL, P. J.

THE COURT:

The petition for rehearing filed on June 1, 2017, by appellant Assured Guaranty Corp. is denied. It is ordered that the opinion filed herein on May 17, 2017, be modified as follows:

1. On page 20, at the end of the first paragraph, the following footnote, to be identified as footnote 10, is added and reads as follows:

"On June 1, 2017, Assured filed a petition for rehearing, which we denied on June 15, 2017. In its petition, Assured argued that we erred in interpreting the term `class' as used in the phrase `final distribution on the class to which such Underlying Certificate belongs' in the Indenture's definition of the term `Loss,' quoted above. Instead of interpreting `class' as we have in our opinion, Assured argued we should have interpreted it as a particular class of particular securities issued by a particular underlying trust pursuant to a particular pooling and servicing agreement (Underlying Agreement). However, the express language of the Indenture does not support Assured's proposed interpretation. Furthermore, its argument for its proposed interpretation of `class' is dependent on language in the Underlying Agreements for the Underlying Certificates, but the Underlying Agreements were not part of the record below and are not part of the record on appeal. Rather, Assured's petition for rehearing primarily, if not exclusively, cites to language in the preliminary offering memorandum for the offering for sale of the Notes, which memorandum was an ancillary marketing document and not the operative document in this case and therefore does not persuade us to adopt Assured's proposed interpretation. Accordingly, Assured has not carried its burden on appeal to provide an adequate record supporting its argument or to otherwise persuade us that our interpretation of `class' is incorrect. (Cf. Western Aggregate, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)

"In any event, assuming arguendo the term `class,' as used in the Indenture's definition of the term `Loss,' should be interpreted as Assured proposes, we nevertheless would affirm the probate court's order. Even if the term `class' relates to only a particular Underlying Certificate, the sale of the four liquidated Underlying Certificates would not have resulted in a `Loss' under the Indenture. Specifically, Assured does not show that, at the time of the liquidation sale, there were final distributions on the classes to which the liquidated Underlying Certificates belong. As Third Point argues, there will continue to be distributions on the classes of those Underlying Certificates, albeit not to the Trust, after the liquidation sale. We reject Assured's argument that there can be no future distributions on those classes of Underlying Certificates because those particular securities would no longer be held as part of the Trust Estate and therefore no longer qualify as `Underlying Certificates,' as defined in the Indenture (i.e., `securities transferred to the Indenture Trustee . . ., as from time to time are held as part of the Trust Estate and as more fully described on Schedule I attached hereto'). If the Trust and Trustee had intended the Indenture to provide for a `Loss' in the circumstances of a liquidation sale of Underlying Certificates such as in this case, we presume that, as sophisticated parties, they would have expressly so provided in the Indenture. Because they did not and the Indenture's provisions do not support Assured's position, we would affirm the order even if the term `class' were interpreted as it proposes. (Quadrant, supra, 16 N.E.3d at p. 1172; Vermont Teddy Bear Co., Inc., supra, 807 N.E.2d at p. 879.)"

There is no change in the judgment.


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