Finance Holding Co. v. Molina CA4/1

Filed 5/19/16 Finance Holding Co. v. Molina CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FINANCE HOLDING COMPANY, LLC, D067952
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2014-00084275-
CU-CL-CTL)
DOMINIQUE MOLINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
B. Taylor, Judge. Affirmed.
The Fullman Firm, Adam C. Fullman, Christopher J. Peters and Ryan J. Hanley
for Defendant and Appellant.
Law Offices of David Sean Dufek and David Sean Dufek; Carl Fabian, for
Plaintiff and Respondent.
Finance Holding Company, LLC (Finance) sued Dominque Molina seeking
repayment of money drawn from a business line of credit. Molina did not dispute she
owed the funds, but argued Finance was not a proper party to enforce the debt because it
did not have a proper assignment from the original lender. After a bench trial, the court
rejected this argument, finding the evidence supported that Finance was an assignee of
Molina's loan and thus was a proper party to enforce the debt. The court entered
judgment in Finance's favor for $49,958.74 plus prejudgment interest.
Molina appeals. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2006, Molina's business entity entered into a contract with Bank of America,
N.A. (Bank) for a $50,000 credit line (Credit Agreement). Molina signed a personal
guaranty to repay all borrowed sums. The Credit Agreement was "binding on . . . the
Bank's successors and assignees."
In January 2014, Finance brought an action against Molina, alleging that Molina's
business had withdrawn $49,958.74 from the credit line, and had not repaid any of the
principal.1 Finance alleged it "purchased all right, title and interest in the . . . [Bank]
Loan" and attached a "true and correct copy" of a document allegedly reflecting this
assignment. The notarized document, entitled Limited Power of Attorney, was signed by
a Bank director. The document referenced the Bank's sale of a loan to Finance, and
provided Finance with powers of attorney regarding the loan.
A bench trial was held in January 2015. The court minutes reflect that before trial,
the trial court told the parties that appellate review would be "difficult" without a
reporter, but the parties made the decision to move forward without a reporter. The court
1 Molina's business entity was also named as a defendant, but was later dismissed
from the action.
2
minutes also show that before trial, Molina moved to exclude Finance's two witnesses—
Bernadette Ramirez, a Bank vice-president, and Ronald Mayer, Finance's managing
member—on the ground that Molina did not have sufficient notice of these witnesses.
The court denied the motion, finding Molina had appropriate notice.
At trial, Finance called its two witnesses (Ramirez and Mayer) and Molina to
testify. Finance also presented documents reflecting Molina's outstanding loan balance.
Molina did not present any additional evidence, but she objected to Finance's documents
pertaining to the assignment of the Credit Agreement. These documents were: the
Limited Power of Attorney (discussed above) and an "Affidavit of Sale" (not in the
record). The court sustained Molina's objections to these documents based on a lack of
foundation/authentication and/or hearsay grounds.
At the conclusion of the evidence and arguments, the court found in Finance's
favor and explained its reasoning in a written order. In the order, the court stated it was
undisputed that Molina had withdrawn $49,958.74 from the credit line and had not repaid
any of this principal, and Molina's sole defense was that Finance was not a proper party
to enforce the debt because it did not have a valid assignment. The court then rejected
this defense based on the testimony of Finance's two witnesses (Ramirez and Mayer).
The court stated: "[This] testimony was that [the Bank] sold this loan to [Finance].
Bernadette Ramirez, a 37 year [Bank] employee . . . (and a [Bank] Vice President) said
so, and so did Ronald Mayer, the managing member of [Finance]. They said so, in part,
in response to questions put to them during the defense cross examination. Thus, the
evidence preponderated in favor of a finding that the loan was the subject of a valid
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assignment from [the Bank] to plaintiff." The court also found that to the extent Molina
was concerned that the Bank would "later claim[ ] that it, and not [Finance], had the right
to collect the debt," this claim would be barred by the judicial estoppel doctrine which
prevents "litigants from playing 'fast and loose with the court.' "
Following the court's "careful consideration of the evidence and the able
arguments of counsel," the court entered judgment in Finance's favor for $49,948.74 plus
prejudgment interest. Molina later requested the court to prepare a settled statement. The
court declined, noting its workload and that it had already issued a detailed written ruling
explaining "the rationale" for the court's determinations.
DISCUSSION
On appeal, Molina challenges the sufficiency of the evidence to support the court's
finding that the Bank assigned the Credit Agreement to Finance. In asserting this
argument, Molina contends the court erred by permitting, and/or relying on, the
testimony of Ramirez and Mayer because they did not have personal knowledge of the
relevant facts pertaining to the assignment. Molina also maintains that if a court sustains
evidentiary objections to documents reflecting an assignment, witness testimony on the
same subject is inadmissible as a matter of law. For the reasons explained below, we
reject these contentions.
I. Review Standards
It is a fundamental tenet of appellate law that the lower court's judgment is
presumed to be correct. As the party seeking reversal, the appellant has the burden to
provide an adequate record to overcome the presumption of correctness and show
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prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see Aguilar v.
Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
We must make all reasonable inferences favoring the court's order, and must
affirm the judgment if any possible grounds exist for the trial court to have reached its
factual conclusions. (See Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416; Vo v. Las Virgenes Municipal Water Dist. (2000) 79
Cal.App.4th 440, 447-448.) Any ambiguity in the record is resolved in favor of the
judgment. (Ibid.) Under these rules, if the appellant does not provide a reporter's
transcript, we cannot evaluate issues requiring a factual analysis and must presume "the
trial court acted duly and regularly and received substantial evidence to support its
findings." (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20; see Pringle v. La Chapelle
(1999) 73 Cal.App.4th 1000, 1003; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.)
II. Analysis
It is undisputed the Bank could assign the right to enforce the Credit Agreement to
a third party, and this assignment could be oral or written. (See Brown v. Patella (1938)
24 Cal.App.2d 362, 364; see also Amalgamated Transit Union, Local 1756, AFL-CIO v.
Superior Court (2009) 46 Cal.4th 993, 1002.) An assignment of a note generally requires
evidence of an intent to transfer. (Heritage Pacific Financial, LLC v. Monroy (2013) 215
Cal.App.4th 972, 988-989.) But "[a]n assignment requires very little by way of
formalities and is essentially free from substantive restrictions. '[I]n the absence of [a]
statute or a contract provision to the contrary, there are no prescribed formalities that
must be observed to make an effective assignment. It is sufficient if the assignor has, in
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some fashion, manifested an intention to make a present transfer of his rights to the
assignee.' [Citations.] Generally, interests may be assigned orally [citations] . . . ."
(Amalgamated Transit Union, supra, 46 Cal.4th at p. 1002.)
In this case, the record shows two witnesses (Ramirez and Mayer) testified that the
Bank sold the Credit Agreement to Finance. This testimony constituted substantial
evidence of the assignment. (See Citizens Business Bank v. Gevorgian (2013) 218
Cal.App.4th 602, 613.) A single witness's testimony may constitute substantial evidence
to support a finding. (Ibid.) The record supports that both witnesses were qualified to
testify on this subject matter as they were managing officers of the parties to the
transaction.
Molina argues the two witnesses did not have personal knowledge of the
assignment. Generally, "the testimony of a witness concerning a particular matter is
inadmissible unless he [or she] has personal knowledge of the matter." (Evid. Code,
§ 702, subd. (a).)2 When the opposing party asserts an objection, the witness's personal
knowledge must be established. (Ibid.) "A witness' personal knowledge of a matter may
be shown by any otherwise admissible evidence, including his own testimony." (§ 702,
subd. (b).)
Molina's challenge to the witnesses' personal knowledge is without merit on the
record before us. Without a reporter's transcript, we must presume the evidence
supported the court's findings, including that the evidence showed sufficient personal
2 All statutory references are to the Evidence Code.
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knowledge on the part of the witnesses. An appellant who supplies no reporter's
transcript is precluded from prevailing on an assertion that the evidence was insufficient
to support the court's findings. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th
918, 924; Estate of Fain (1999) 75 Cal.App.4th 973, 992; Stevens v. Stevens, supra, 129
Cal.App.2d at p. 20.)
In reviewing a substantial evidence challenge, we are required to "resolve all
factual conflicts and questions of credibility in favor of the prevailing party and indulge
in all legitimate and reasonable inferences to uphold the finding of the trial court if it is
supported by substantial evidence which is reasonable, credible and of solid value."
(Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) An appellate court " ' "must presume
that the record contains evidence to support every finding of fact . . . ." ' [Citations.] It is
the appellant's burden . . . to identify and establish deficiencies in the evidence. . . . This
burden is a 'daunting' one." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Molina did not show reversible error under these standards. The trial court
recognized the main factual issue was whether the Bank assigned the Credit Agreement
to Finance and whether the assignment was valid. The court's evaluation of these issues
included Finance's allegations in its complaint, and a review of the witnesses' testimony
to determine whether the facts supported the existence of an assignment. Based on this
evaluation, the court determined Finance satisfied its burden to show by a preponderance
of the evidence that it owned the rights to enforce the Credit Agreement. In making this
determination, the court necessarily found Finance's witnesses were credible and had
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sufficient personal knowledge to testify on the matter. We are bound by these factual
findings.
To the extent Molina argues the court erred in not excluding the witnesses'
testimony based on a lack of personal knowledge, Molina did not preserve this argument
because there is no indication that Molina objected to the testimony on this basis at trial.
(§ 353, subd. (a).) The record shows only that Molina objected to the witness testimony
on the ground of insufficient notice, and she does not challenge the court's overruling this
objection. Further, the record does not show the witnesses lacked personal knowledge
and therefore Molina's evidentiary contention is without merit.
Molina alternatively argues we must presume a lack of personal knowledge
because the court sustained her objections to the assignment documents proffered by
Finance (the Limited Power of Attorney and the Affidavit of Sale). Molina maintains
that because Finance's two witnesses lacked personal knowledge of Finance's submitted
assignment documents, we must find these witnesses lacked personal knowledge of the
assignment.
The argument is unavailing. Although the court sustained Molina's objections to
these documents on authentication and/or hearsay grounds, the record does not disclose
the specific foundational information that was lacking. Without this information, we
cannot reasonably conclude these witnesses could not testify to the fact that the Credit
Agreement was assigned to Finance. Additionally, even assuming the two witnesses
were not qualified to testify to the validity, preparation, and/or custody of these
documents, this does not necessarily mean they did not have sufficient knowledge of the
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fact of the assignment. The witnesses could have reasonably stated they had personal
knowledge of the assignment based on other means, such as their knowledge of other
relevant business records.
In this regard, Molina's reliance on section 1523 is misplaced.3 Section 1523
provides that oral testimony is generally "not admissible to prove the content of a
writing." (§ 1523, subd. (a), italics added.) This code section is inapplicable because the
issue here is not the contents of written documents, but whether Finance proved the fact
of a valid assignment. Additionally, section 1523 sets forth several exceptions to the
general rule, and without a record of the trial, we have no information whether any of the
section 1523 statutory exceptions applied in this case. To prevail on appeal, Molina had
the burden to show the exceptions were inapplicable, and Molina made no effort to do so.
For similar reasons, Wiz Technology, Inc. v. Coopers & Lybrand, LLP (2003) 106
Cal.App.4th 1 is inapposite. In Wiz, a client sued its auditor claiming the auditor
wrongfully refused to complete an audit. (Id. at p. 4.) In upholding a summary judgment
3 Section 1523 provides: "(a) Except as otherwise provided by statute, oral
testimony is not admissible to prove the content of a writing. [¶] (b) Oral testimony of
the content of a writing is not made inadmissible by subdivision (a) if the proponent does
not have possession or control of a copy of the writing and the original is lost or has been
destroyed without fraudulent intent on the part of the proponent of the evidence. [¶] (c)
Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if
the proponent does not have possession or control of the original or a copy of the writing
and either of the following conditions is satisfied: [¶] (1) Neither the writing nor a copy
of the writing was reasonably procurable by the proponent by use of the court's process or
by other available means. [¶] (2) The writing is not closely related to the controlling
issues and it would be inexpedient to require its production. [¶] (d) Oral testimony of the
content of a writing is not made inadmissible by subdivision (a) if the writing consists of
numerous accounts or other writings that cannot be examined in court without great loss
of time, and the evidence sought from them is only the general result of the whole."
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in the auditor's favor, the Wiz court rejected the plaintiff's reliance on an investment
newsletter to show the plaintiff suffered damages from the auditor's conduct. (Id. at p.
16.) The court noted the plaintiff failed to submit a copy of the document "rendering
reliance on the item inappropriate," citing section 1523 and several other code sections.
(Wiz at p. 16.) The court also discussed the plaintiff's failure to present expert testimony
establishing damages resulted from statements made in the third-party investment
newsletter. (Ibid.)
This case is distinguishable. First, unlike the statements about the third-party
investment newsletter, the witnesses' testimony concerned the parties' own transaction
regarding the loan document. Moreover, unlike in Wiz, the challenged testimony was not
submitted to prove the contents of a document. Rather, Finance proffered Ramirez and
Mayer as witnesses to establish Finance was the valid owner of the loan, and this fact was
not necessarily dependent on any specific assignment document. Further, the Wiz court's
determination was based primarily on the absence of any evidence showing the link
between the written document and the plaintiff's alleged damages. Here, the challenged
testimony was directly on point. The court specifically found the two witnesses testified
about the existence of an assignment of Molina's loan from the Bank to Finance, and that
this assignment constituted a valid transfer of the loan. Unlike in Wiz, there was no
requirement that the moving party produce documentary evidence to support this
testimony.
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DISPOSITION
Judgment affirmed. Appellant to bear respondent's costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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