Aska Sakan v. LA's Tasty & Healthy Food CA4/3

Filed 11/30/22 Aska Sakan v. LA’s Tasty & Healthy Food CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ASKA SAKAN, INC.,
Plaintiff and Respondent, G060481
v. (Super. Ct. No. 30-2018-00975694)
LA’S TASTY & HEALTHY FOOD, OPINION
INC.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Deborah
C. Servino, Judge. Affirmed.
Law Offices of Levi Reuben Uku, Levi Reuben Uku on behalf of
Defendant and Appellant.
Bove Law Group, Brooke L. Bove on behalf of Plaintiff and Respondent.
LA’s Tasty & Healthy Food, Inc. (Tasty) appeals from a judgment in favor
of Aska Sakan, Inc. following a bench trial. At issue below was the validity and
enforceability of a deed of trust securing a promissory note Tasty recorded against
property owned by Aska Sakan. The trial court found the deed of trust and promissory
note were forged, and the court ruled in favor of Aska Sakan on its causes of action for
quiet title, cancellation of instrument, and injunctive relief. Tasty contends the judgment
should be reversed because the trial court infringed upon its constitutional rights by
refusing to provide it with a jury trial. We reject this contention because the record
shows both parties agreed the matter was to proceed as a bench trial. Tasty also
challenges the sufficiency of the evidence, making two related claims: (1) the trial
court’s determination the deed of trust and promissory note were forged is not supported
by substantial evidence; and (2) the court should have ruled in Tasty’s favor despite the
court’s concerns about the credibility of certain evidence supporting Tasty’s defense. We
conclude the trial court’s decision is supported by substantial evidence and will not
reevaluate the court’s credibility findings or reweigh the evidence. Accordingly, we
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We take our factual summary from the court’s statement of decision and the
available record.
I.
THE PARTIES AND THE DISPUTE
Three individuals are central to this case: Abdurrezag Kaal, Hossein or
Frank Wasiri, and Wasiri’s mother-in-law Farideh Nourizadeh.
Kaal is in the real estate business and owns several companies in Morocco,
where he lives, including a construction company Oujhalkhair Sarl (Oujhalkhair). Kaal
came to the United States on a visa. He is the sole shareholder of Aska Sakan, a
2
company incorporated in California in 2014. That year, Aska Sakan purchased a carwash
in Yorba Linda.
Kaal was introduced to Wasiri, who had prior experience running
carwashes. Wasiri became Kaal’s assistant at the carwash and supervised the employees.
Nourizadeh lives in Iran and is an owner of Samimi Marble Quarries
(Samimi) in Iran, a company involved in mining and selling marble. Tasty, a California
corporation, is owned either by Nourizadeh or Wasiri.
There were several disputed issues at trial: (1) whether Kaal and
Nourizadeh entered into a partnership agreement in 2013 to form Aska Sakan in
California; (2) whether Kaal and his company Oujhalkhair received $3.9 million in cash
and merchandise from Samimi as part of Nourizadeh’s investment in Aska Sakan; and
(3) whether Kaal signed a deed of trust securing a promissory note for a $3.9 million debt
to Tasty or did Wasiri forge Kaal’s signature on the deed of trust, promissory note, and
other documents.
II.
WASIRI ASSISTS KAAL WITH HIS AFFAIRS
Wasiri aided Kaal with his business and personal affairs because Kaal
spoke limited English. To obtain a license for the carwash, Aska Sakan needed a bond
and a general indemnity agreement was required. Wasiri took Kaal to a notary public for
Kaal to sign the indemnity agreement. Kaal signed the indemnity agreement on October
21, 2015. Attached to the indemnity agreement was the notary public’s certificate of
acknowledgement page, which stated the notary had verified the identity of the individual
who signed the document attached to the certificate.
Wasiri also helped Kaal apply for a new visa and helped him compile the
documents he needed for the application, giving Wasiri access to Kaal’s foreign business
and financial information. Wasiri also assisted Kaal in his communication with his
immigration attorneys.
3
Around the end of 2015, Kaal’s visa application was denied and
immigration authorities requested he leave the country. Kaal returned to Morocco and
has not since been back to the United States. After Kaal left the country, Wasiri managed
the carwash and paid its employees through Aska Sakan’s bank account. Wasiri was
fired in December 2017.
III.
TASTY RECORDS DEED OF TRUST AGAINST ASKA SAKAN’S PROPERTY
The month Wasiri was fired from the carwash, Tasty recorded a deed of
trust and assignment of rents (the deed of trust) securing a promissory note against Aska
Sakan’s carwash property. The deed of trust stated it was for the purpose of securing
payment of a $3.9 million debt by Aska Sakan to Tasty as evidenced by a promissory
note. The deed of trust was dated October 21, 2015, the same day Kaal signed the
indemnity agreement. Attached to the deed of trust was an exact copy of the notary
public’s certificate page from the indemnity agreement.
IV.
ASKA SAKAN FILES ITS LAWSUIT
In February 2018, Aska Sakan filed a complaint against Tasty, alleging four
causes of action: (1) quiet title, (2) cancellation of instrument, (3) injunctive relief, and
(4) declaratory relief. The factual basis of the causes of action was that the deed of trust
and promissory note were forged. Aska Sakan denied it or Kaal was indebted to Tasty
for $3.9 million.
V.
THE TRIAL
In the leadup to trial, both parties posted jury fees. In November 2020, the
court called the matter for trial, and both parties announced ready. The court informed
the parties the four causes of action were in equity and not triable by a jury. Both parties’
counsel agreed the matter would proceed as a court trial.
4
The bench trial commenced on November 10 and continued over multiple
dates in November 2020, January 2021, and March 2021. Tasty has not presented us
with a reporter’s transcript, agreed statement, or settled statement for the court
proceedings on November 10 or 12, during which the court heard the complete testimony
of witnesses Amir Kacem, Linda Mitchell, and Michael Nazari, and the partial testimony
of witnesses Wasiri and Mohamed Ramadan. The following summary of the trial
evidence is based on the record we have been provided.
A. Tasty’s Evidence
Tasty presented testimony and documentary evidence to support its claim
the contested deed of trust and promissory note were valid and enforceable. One such
piece of evidence was a partnership agreement dated February 2013 between Oujhalkhair
and Samimi. The agreement stated the two companies were forming a California
company to be called Aska Sakan and the purpose of the partnership was real estate
investment and development. According to the agreement, Oujhalkhair was to contribute
$5 million in cash to the partnership and Samimi was to contribute cash and merchandise
amounting to the same. The agreement was purportedly signed by Kaal for Oujhalkhair
and Nourizadeh for Samimi.
Wasiri’s testimony was inconsistent as to who drafted the partnership
agreement. At one point, he testified he drafted the partnership agreement. Later, he
testified it was prepared by Samimi’s office, but he gathered information for the
agreement and advised them it should be governed by California law. At the time,
neither Kaal nor Nourizadeh lived in California. Because the agreement was in English,
Wasiri reviewed it for Nourizadeh and advised her to sign it.
Mehdi Jalali, an employee of Samimi, testified he assisted in drafting the
partnership agreement between Samimi and Oujhalkhair. He recalled flying with
Nourizadeh to Dubai, where she and Kaal signed the agreement at a restaurant.
5
The court admitted into evidence invoices from Samimi showing shipments
of unpolished marble to Oujhalkhair in 2013 and 2014. Jalali testified, however, polished
marble was sent to Oujhalkhair. Wasiri testified these shipments from Samimi were part
of its contribution to the Aska Sakan partnership. But he did not have any bills of lading
showing the merchandise was received by Oujhalkhair.
Wasiri testified Samimi shipped unpolished marble in 2013 to four general
trading companies in Dubai, who were Samimi’s customers and at Nourizadeh’s request,
these customers sent payment for the merchandise to one of Kaal’s companies in
Morocco via wire transfers. These wire transfers totaled about $1 million. According to
Wasiri, this money was part of Samimi’s investment in Aska Sakan. In August 2015,
Samimi drafted a letter to Oujhalkhair stating one of Samimi’s customers had transferred
over $1 million to Aska Sakan at Samimi’s request. Wasiri testified Samimi sent the
letter to him and he gave it to Kaal, who then signed the letter as confirmation he had
received the money.
A few months after Kaal signed the letter, Wasiri became concerned about
Nourizadeh’s investment in Aska Sakan, after seeing an email from one of the attorneys
preparing Kaal’s visa application. The email included a list of things Kaal needed for his
application and one item was Aska Sakan’s stock ledger. The email indicated the stock
ledger must state Aska Sakan was owned solely by Oujhalkhair. Aska Sakan’s stock
documentation showed Oujhalkhair owned the company; Samimi had not been issued
any stock in Aska Sakan. Aska Sakan’s formation documentation did not mention any
investment by Samimi. Wasiri testified this concerned him because Nourizadeh did not
have any security for her investment in Aska Sakan.
Wasiri drafted the promissory note and the deed of trust to secure
Nourizadeh’s purported investment in Aska Sakan. The documents indicated Aska Sakan
owed $3.9 million to Tasty, not Samimi or Nourizadeh. Wasiri testified Kaal signed the
deed of trust and promissory note in October 2015, when Kaal signed the general
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indemnity agreement for the carwash. Wasiri kept the original deed of trust and
promissory note.
B. Aska Sakan’s Evidence
Kaal denied signing the deed of trust or promissory note. He testified his
signatures on these documents had been forged. Kaal explained Wasiri took him to the
notary public to sign the indemnity agreement and that was the only document he signed
at the notary’s office.
Kaal also denied knowing Nourizadeh and signing the partnership
agreement with her. He denied having any communication with or conducting any
business with her or her companies. Kaal testified he did not purchase or receive any
marble from Nourizadeh or Samimi. He asserted his signature had been forged on
documents purporting to show his company received marble from Samimi. Kaal further
denied borrowing any money from Nourizadeh or Tasty for the purchase of the carwash.
He admitted receiving wire transfers totaling $1 million from four trading companies but
explained this was his personal money he transferred through those companies from his
foreign accounts before moving to the United States.
Once Kaal returned to Morocco, he was unable to access Aska Sakan’s
bank accounts online, so Wasiri e-mailed him the company’s bank statements. Kaal
testified the bank statements he received from Wasiri were “fake” and hid Wasiri’s
embezzlement of over $1 million from the company.
Ramadan took over managing Aska Sakan after Wasiri’s departure.
Ramadan discovered money was missing from the carwash’s accounts and believed
Wasiri had taken it. Neither Ramadan nor Kaal had heard of Nourizadeh prior to the
recording of the deed of trust in December 2017, which occurred after they fired Wasiri
from the carwash.
Ramadan testified the signature on the partnership agreement was not
Kaal’s signature. Ramadan reviewed Oujhalkhair’s records in Morocco and corroborated
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Kaal’s testimony that Kaal’s companies did not engage in any business transactions with
Samimi. Ramadan did not find any records showing Samimi had wired money to
Oujhalkhair or that Samimi had directed third parties to wire money to Oujhalkhair.
Ramadan was unable to find any records indicating that Kaal personally or his companies
received $3.9 million in exchange for the promissory note.
C. Handwriting Experts
Both parties presented expert testimony by forensic document examiners
concerning the issue of whether Kaal’s signature was forged on the contested deed of
trust and promissory note. Tasty has only provided us a record of the testimony of its
expert, Beth Chrisman. Chrisman examined the deed of trust and promissory note and
determined the signatures on those documents were originals, meaning they were ink
signed on paper and not photoshopped. Wasiri gave her numerous documents, displaying
what he represented to her were exemplars of Kaal’s signature; Chrisman referred to
these as the known documents. In her opinion, the same person signed the contested
original documents and the known documents. Chrisman acknowledged it was possible
Wasiri signed all of the documents and presented them to her as Kaal’s signature.
Chrisman testified every notarized document should have its own notary
acknowledgment. But here, the same notary public’s acknowledgment page was attached
to both the indemnity agreement and the deed of trust; one was the original, and the other
was a copy.
VI.
PROPOSED STATEMENT OF DECISION AND TASTY’S OBJECTIONS
After hearing the parties’ closing arguments, the court took the matter
under submission. It later issued a tentative and proposed statement of decision, in which
it discussed the evidence presented, made findings of fact, and made credibility
determinations. The court explained its tentative conclusion Aska Sakan had proved the
8
deed of trust and promissory note were forged and had prevailed on its causes of action
for quiet title, cancellation of instruments, and injunctive relief.
Tasty filed two documents in response. First, Tasty requested a statement
of decision on the factual and legal bases of the court’s tentative ruling and findings in
favor of Aska Sakan on the three causes of action. Second, Tasty filed objections to the
court’s tentative and proposed statement of decision. In its objections, Tasty asserted the
court’s tentative decision did not explain the court’s conclusion that Aska Sakan had met
its burden of proving forgery of the deed of trust and promissory note. Tasty argued the
court’s ruling was ambiguous, inconsistent with the trial evidence, omitted certain facts,
misstated testimony, and failed to reconcile conflicting evidence.
VII.
STATEMENT OF DECISION
After considering Tasty’s request for a statement of decision and
objections, the court issued its statement of decision. The court indicated Tasty’s
objections were “largely improper” because they were essentially assertions the court
should have reached different conclusions. In its statement of decision, the court stated it
“considered and weighed the testimony of all the witnesses, . . . evaluated the credibility
of each witness, . . . considered and weighed the documentary evidence submitted by the
parties, and . . . considered the arguments of counsel.”1 The court concluded, based on
the totality of the evidence, Aska Sakan had proved the deed of trust and promissory note
were forged and therefore were void and unenforceable. The court ruled in favor of Aska
Sakan on its causes of action for quiet title, cancellation of instruments, and injunctive
relief. As to the fourth cause of action, the court concluded declaratory relief was
unnecessary given its rulings on the quiet title and cancellation of instrument causes of
action.
1
The court’s findings in its statement of decision are discussed in greater detail post.
9
DISCUSSION
Before reaching the substantive issues Tasty has raised in its appeal, we
must address its failure to adhere to basic appellate rules. Throughout its brief, Tasty
makes numerous assertions of fact and recitations of procedural matters that were
unsupported by citation to the record and were not found in our review of the appellate
record. California Rules of Court, rule 8.204(a)(2)(C) states an appellant’s opening brief
must “[p]rovide a summary of the significant facts limited to matters in the record.”
(Italics added.) Rule 8.204(a)(1)(C) requires references to matters in the record be
supported “by a citation to the volume and page number of the record where the matter
appears.” “If a party fails to support an argument with the necessary citations to the
record, the argument will be deemed waived. [Citations.]” (LA Investments, LLC v. Spix
(2022) 75 Cal.App.5th 1044, 1061.) We disregard assertions of fact in Tasty’s brief that
are unsupported by the record or citation to the record.
I.
RIGHT TO A JURY TRIAL
Tasty argues the judgment must be reversed because the court refused to
provide it with a jury trial. Tasty makes several assertions in support of this argument.
Tasty asserts it was deprived of its right to a jury trial because the court’s protocols
during the COVID-19 pandemic made conducting a jury trial impossible and the court
commenced the trial despite both parties’ request the case be continued until a jury could
be impaneled. Tasty further asserts it “strenuously objected to the court deciding
unilaterally[] to try the case without a jury in total disregard of [its] request for a jury
trial.” Tasty’s assertions are refuted by the record.
The court’s minute order states that when the matter was called for trial on
November 9, 2020, the court informed the parties the four causes of action in the
complaint “are equitable actions not triable by a Jury” and “[b]oth counsel agree the
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matter is to proceed as a Court Trial.” (Italics added.)2 There is no indication in the
appellate record Tasty objected to trying the case without a jury. Nor does the record
reflect the parties presented the court with a stipulation or joint request to continue the
trial until a jury could be impaneled. The record shows that on November 9, each party
requested the start of the trial be continued briefly for reasons unrelated to impaneling a
jury; Tasty sought a two-day continuance. Thus, the record does not support Tasty’s
assertion the court “unilaterally” decided to try the case without a jury over Tasty’s
objection and over the parties’ request to continue the matter until a jury could be
impaneled.
Nothing in the appellate record shows Tasty argued to the trial court before,
during, or after the bench trial that its right to a jury trial was being infringed. Tasty
willingly proceeded with a court trial, lost, and now claims a violation of its right to a
jury trial. By failing to raise it below, Tasty forfeited its contention of error. (See Taylor
v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900-901 [“‘a party cannot without
objection try his case before a court without a jury, lose it and then complain that it was
not tried by jury’”].)
Moreover, Tasty makes no effort to demonstrate the court erred when it
concluded the parties were not entitled to a jury trial because the causes of action were in
equity. (See Shaw v. Superior Court (2017) 2 Cal.5th 983, 995 [“‘“jury trial is a matter
of right in a civil action at law, but not in equity”’”].) “‘[A]n appellant must do more
than assert error and leave it to the appellate court to search the record and the law books
to test his claim. The appellant must present an adequate argument including citations to
supporting authorities and to relevant portions of the record.’ [Citation.]” (Ribakoff v.
2
Because there was no court reporter at the hearing, we do not have a verbatim
transcript of this proceeding. Tasty could have provided us with an agreed statement
(Cal. Rules of Court, rule 8.134) or a settled statement (id., rule 8.137) if it believed the
minute order did not accurately represent the discussion at the hearing, but it did not.
11
City of Long Beach (2018) 27 Cal.App.5th 150, 162.) Because Tasty did not demonstrate
the court erred, Tasty’s contention fails on this ground also.
II.
SUFFICIENCY OF THE EVIDENCE
The court ruled in favor of Aska Sakan on three of its causes of action:
quiet title, cancellation of instruments, and injunctive relief. The core issue for each
cause of action was whether Kaal signed the deed of trust and promissory note,
evidencing a debt of $3.9 million to Tasty, or whether Kaal’s signature was forged on
these documents. Based on the totality of the evidence, the court found Aska Sakan had
proved Kaal’s signature was forged. Tasty contends the court’s finding is not supported
by substantial evidence because Tasty presented unrebutted evidence through its
handwriting analysis expert that the signature on the contested documents matched
Kaal’s signature. We disagree and conclude the court’s finding of forgery is supported
by substantial evidence.
A. Statement of Decision
The court provided a lengthy statement of decision, detailing its findings
and credibility determinations. The court found credible Kaal’s testimony that he did not
sign the deed of trust or promissory note. The court also found credible Kaal’s
testimony: (1) he did not know Nourizadeh or her companies—Samimi or Tasty; (2) he
did not enter into an agreement with them; (3) his Moroccan company, Oujhalkhair, did
not enter into any partnership agreement with Samimi; and (4) he did not receive any
marble from Samimi.
The court found not credible Tasty’s “theory of how the deed of trust and
promissory note came into existence.” The court noted Tasty had presented a partnership
agreement between Oujhalkhair and Samimi concerning the creation of Aska Sakan. But
the court did not find it to be persuasive evidence, explaining: “. . . the deed of trust was
not between Oujhalkhair Sarl and Samimi Marble Quarries, but was between Aska Sakan
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and LA’s Tasty & Healthy Food. LA’s Tasty & Healthy Food’s explanation of how the
promissory note ended up being between Aska Sakan and LA’s Tasty & Healthy Food as
a result of the purported marble deliveries and wire transfers from third parties to
Oujhalkhair Sarl, is unsatisfactory. Moreover, the deed of trust was recorded with the
Orange County Clerk-Recorder more than two years . . . after it was signed. LA’s Tasty
& Healthy Food explained that the deed of trust was not immediately recorded because
Kaal was told that his L1 Visa would be denied. This explanation is not credible because
it essentially suggests that Kaal’s immigration attorneys had advised their client to
commit immigration fraud.”
The court found “Wasiri was admittedly familiar with Kaal’s signature”
and “Wasiri had the opportunity, access, motive, and means to accomplish the forgery of
the promissory note and deed of trust.” The court further found “other documents tied to
Wasiri . . . suggested that he had forged signatures or documents in other instances, such
as the Statement of Information for LA’s Tasty & Healthy Food, and Aska Sakan’s bank
statements that he sent to Kaal.”
In its statement of decision, the court also addressed the testimony of the
parties’ experts and the notary public’s acknowledgment page, stating: “[Aska Sakan’s
expert] Linda Mitchell, a forensic document examiner, testified that because Kaal’s
signature was so simple, it was easy to copy. The notary acknowledgment attached to the
deed of trust was the same as the notary acknowledgment attached to the general
indemnity agreement. The two notary acknowledgments were copies of each other.
[Tasty’s expert] Beth Chrisman, a forensic document examiner, testified that it was
unusual for the same notary acknowledgment to be attached to two different documents.
The documents should have had different notary acknowledgments. Chrisman[ ] testified
Kaal’s signatures on the deed of trust and promissory note (questioned documents) were
the same as Kaal’s signature on documents presented to her by Wasiri as ‘known
documents.’ This testimony did not assist LA’s Tasty & Healthy Food because Chrisman
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admitted that the same person who signed the known documents could have also signed
the questioned documents. In other words, if Wasiri signed all the ‘known documents,’
then he could have signed the questioned documents. Most of the known documents
were pay stubs, and likely signed by Wasiri, who was the car wash manager.”
The court continued explaining why it found Tasty’s evidence not credible.
The court found Tasty’s evidence of “[t]he partnership agreement, receipts for wires,
receipts for marble, and invoices for marble appear[ed] to have been fabricated.” Tasty’s
witness Jalali had testified about the drafting and signing of the partnership agreement
and that he had prepared the invoices for marble shipments sent to Oujhalkhair, but the
court found Jalili’s “testimony was not credible for several reasons,” and the court
explained those reasons.
Based on the totality of the evidence, the court found Aska Sakan had
proved the deed of trust and promissory note were forged and void.
B. Standard of Review
When reviewing a judgment based upon a statement of decision following a
bench trial, “[w]e apply a substantial evidence standard of review to the trial court’s
findings of fact. [Citation.] Under this deferential standard of review, findings of fact are
liberally construed to support the judgment and we consider the evidence in the light
most favorable to the prevailing party, drawing all reasonable inferences in support of the
findings. [Citation.]
“‘A single witness’s testimony may constitute substantial evidence to
support a finding. [Citation.] It is not our role as a reviewing court to reweigh the
evidence or to assess witness credibility. [Citation.] “A judgment or order of a lower
court is presumed to be correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.” [Citation.]’” (Ribakoff v. City of Long Beach,
supra, 27 Cal.App.5th at p. 162.)
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“We emphasize that the test [under the substantial evidence standard] is not
the presence or absence of a substantial conflict in the evidence. Rather, it is simply
whether there is substantial evidence in favor of the respondent. If this ‘substantial’
evidence is present, no matter how slight it may appear in comparison with the
contradictory evidence, the judgment must be upheld. As a general rule, therefore, we
will look only at the evidence and reasonable inferences supporting the successful party,
and disregard the contrary showing. [Citations.]” (Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 631.)
C. Substantial Evidence Supports the Court’s Finding the Deed of Trust and Promissory
Note Were Forged
Tasty contends the court’s determination that Kaal’s signatures on the
promissory note and deed of trust had been forged was “based on speculation and
guesswork and [was] not supported by any[ ] – much less substantial – evidence
presented at trial.” We disagree. Examining the record we have been provided in the
light most favorable to the judgment, we conclude substantial evidence supported the trial
court’s finding the deed of trust and promissory note were forged.
The court found Kaal’s testimony credible and found not credible evidence
Tasty presented to show Kaal signed the contested documents. We “are bound by the
trial court’s credibility determinations. [Citations.]” (Citizens Business Bank v.
Gevorgian (2013) 218 Cal.App.4th 602, 613.) Kaal testified he did not sign the deed of
trust and the promissory note. Kaal’s credible testimony by itself was sufficient to
constitute substantial evidence. (Ibid. [“‘The testimony of a single witness may be
sufficient to constitute substantial evidence’”].) But Kaal’s denial was not alone, it was
corroborated by other evidence. Aska Sakan’s forensic document expert, Mitchell,
testified Kaal’s signature was easy to copy. The timing of the filing of the deed of trust
rendered it suspect, as it was purportedly signed in 2015 but not filed until 2017, after
Wasiri was fired. The evidence of alleged marble shipments from Samimi and wire
15
transfers to Oujhalkhair did not prove Aska Sakan had incurred a debt to Tasty. And then
there was the improper duplication of the single notary public’s acknowledgment page
and attachment to two separate documents.
Tasty makes further arguments challenging the sufficiency of the evidence
supporting the court’s forgery finding. Tasty asserts it presented unrebutted expert
witness testimony that established the signatures on the deed of trust and promissory note
matched known exemplars of Kaal’s signature. The trial court addressed this issue in its
statement of decision, explaining Chrisman’s testimony only established that the same
person signed the contested documents and the exemplar or known documents.
Chrisman’s testimony did not prove Kaal signed the contested documents. Chrisman
assumed Kaal signed the exemplar documents because Wasiri told her they were signed
by Kaal. However, the court found the known documents were “likely” signed by Wasiri
when he was the manager of the carwash. Tasty contends the court’s finding was
speculative and Kaal’s testimony established he was solely responsible for signing
financial documents when he was in the United States. We disagree. Tasty’s evidence
did not prove Kaal signed either the contested or known documents. The court’s forgery
finding was supported by substantial evidence.
Moreover, Tasty’s challenge to the sufficiency of the evidence fails for
another reason—it implicates portions of the appellate record we have not been provided.
Tasty asserts the testimony of its expert was “unrebutted” by the testimony of Aska
Sakan’s handwriting expert, Mitchell. But we do not have a record of Mitchell’s
testimony. No court reporter was present to transcribe Mitchell’s testimony and Tasty
did not obtain an agreed or settled statement concerning her testimony. (Cal. Rules of
Court, rules 8.134 & 8.137, respectively.) It is Tasty’s burden as the appellant to present
an adequate record for a meaningful substantial evidence review, and Tasty has failed to
do so. When an appellant does not provide a proper record for review, it may not
contend the record lacks substantial evidence with respect to a factual issue in a case.
16
(Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187; Estate of
Fain (1999) 75 Cal.App.4th 973, 992.)
With or without a complete record of the trial proceedings, we must reject
Tasty’s argument the evidence of forgery was insufficient because Chrisman’s testimony
was uncontradicted. The test is not whether Tasty’s evidence was uncontradicted, but
whether there is substantial evidence in favor of Aska Sakan. (Howard v. Owens
Corning, supra, 72 Cal.App.4th at p. 631.) And as we have explained, the court’s forgery
finding was supported by substantial evidence.
We likewise reject Tasty’s argument it should have prevailed at trial
because the evidence established it was more likely than not that Kaal signed the deed of
trust and promissory note. This argument turns the substantial evidence standard upside
down. Our task is to review the record in the light most favorable to the judgment and
determine whether it is supported by substantial evidence. We do not reweigh the
evidence or determine whether substantial evidence supports the losing party’s version of
the events. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.) “We are ‘not a second
trier of fact.’ [Citation.]” (Id. at p. 1246.)
Tasty’s argument challenging the court’s credibility findings similarly
seeks to have us reweigh the evidence. Tasty identifies four facts the court relied upon in
making its credibility findings: (1) the companies named in the deed of trust and
promissory note were not the same as those named in the partnership agreement; (2) the
deed of trust and promissory note were not recorded for two years; (3) the notary public’s
acknowledgment page attached to the deed of trust was the same as the one attached to
the indemnity agreement; and (4) Jalali’s testimony was inconsistent, internally and with
other evidence presented at trial. Tasty asserts each “is subject to a reasonable
explanation” and “none” should have impacted the court’s ruling. Tasty proceeds to offer
a “reasonable explanation” for some of these issues, seeking to explain why the court
reached the wrong conclusion. As a court of review, we do not reevaluate witness
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credibility findings or reweigh the evidence presented below. (Foust v. San Jose
Construction Co. Inc., supra, 198 Cal.App.4th at p. 188.) Thus, Tasty’s contention fails.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P. J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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