Opinion
G054675
08-15-2018
DAVID GORAN, Plaintiff and Appellant, v. MICHAEL BARTHALAMEW STREET, Defendant and Respondent.
Michael V. Hesse for Plaintiff and Appellant. Glenn A. Williams for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CIVDS1009466) OPINION Appeal from a judgment of the Superior Court of San Bernardino County, David S. Cohn, Judge. Affirmed. Michael V. Hesse for Plaintiff and Appellant. Glenn A. Williams for Defendant and Respondent.
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INTRODUCTION
David Goran, the owner of a parcel of real property, sought to cancel a deed of trust encumbering that property and the promissory note secured by the deed of trust. Both Goran and Michael Street, the holder of the deed of trust, testified at trial, and the trial court found them both to be not credible as witnesses. The court denied Goran's claims for relief, as the court concluded that Goran could not meet his burden of proof.
We affirm. Goran contends his testimony was uncontradicted and judgment in his favor was therefore required. However, the trial court's finding that Goran's testimony was not credible means that there was not sufficient evidence to establish a right to cancellation of the documents or to the other relief sought.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Goran is the owner of the real property known as 2329 Cedar Street, San Bernardino, California (the Cedar Street property). On July 7, 2000, a deed of trust with assignment of rents was recorded, encumbering the Cedar Street property. The deed of trust states it was given "for the purpose of securing . . . payment of the sum of $1,7713.43 [sic] with interest thereon according to the terms of a promissory note or notes of even date herewith." The deed of trust is dated November 11, 1999. A promissory note in the amount of $17,713.43 and dated November 1, 1999, was signed by Goran in favor of Street.
Goran testified he filled out the deed of trust in the amount of $7,713.43, and gave the document to Street. Goran further testified he had never seen, much less signed, the promissory note. Goran testified Street loaned him $7,713.43, interest free, and that Street was to hold the deed of trust unrecorded until Goran paid him back. Goran also testified he paid Street back the full amount of $7,713.43.
Street testified that he had loaned Goran small amounts of money on numerous occasions, which Goran did not pay back. Therefore, Street asked Goran to sign a deed of trust on the Cedar Street property to secure his debts. Street provided Goran with a partially completed deed of trust securing a total amount of $7,713.43, and asked Goran to complete and sign it. By the time Goran finally returned the signed and notarized deed of trust several months later, Street had loaned him even more money, so they changed the amount to $17,713.43. Street prepared the promissory note in that amount, and had Goran sign it. Street was unable to explain why the date on the promissory note was 10 days before the date on the deed of trust. Street testified that Goran never paid off the debt secured by the Cedar Street property, and that payments made by Goran were to pay off other debts he had incurred.
On May 28, 2002, Street recorded a notice of default and election to sell the Cedar Street property, claiming that Goran owed him $19,496.27. Goran's attorney, Robert Starr, advised the trustee under the deed of trust that Goran contended the promissory note was not authentic: "I have reviewed the subject note and deed of trust with Mr. Goran. Mr. Goran has advised me that he did not sign the promissory note. If you review the promissory note, you will notice that the signature on the promissory note does not bear a signature which matches the signature on the deed of trust. Furthermore, you have in your possession other documents which bear Mr. Goran's signature. These other documents do not bear a signature which is similar to the signature on the note in question. [¶] This letter shall serve to place you on notice that Mr. Goran disputes the authenticity of the note. Please place your title insurance carrier on notice of this matter. Mr. Goran has advised me that he intends to pursue legal action against Golden State Escrow, Inc., if the Notice of Default is not immediately rescinded. I strongly recommend that you review the documents in question and act accordingly." The trustee immediately recorded a rescission of the notice of default upon receipt of Starr's letter.
In March 2010, Street substituted himself as trustee under the deed of trust and recorded a new notice of default and election to sell, which claimed that Goran owed Street $63,725 on the promissory note. On June 17, 2010, Street recorded a notice purporting to schedule a trustee's sale of the Cedar Street property for Monday, July 12, 2010.
On July 9, 2010, Goran filed the present action asserting causes of action for cancellation of the deed of trust, promissory note, notice of default, and notice of trustee's sale; quiet title; specific performance; and declaratory and injunctive relief. Street did not proceed with the trustee's sale of the Cedar Street property.
The trial court found that other causes of action were barred by the applicable statutes of limitations; this court previously affirmed the trial court's findings in an unpublished opinion. (Goran v. Street (Oct. 9, 2014, G050078).)
After a two-day bench trial in September 2016, the court announced its tentative decision in favor of Street on all causes of action. In relevant part, the court found that neither Goran nor Street was a credible witness. The court further found that because Goran had the burden of proof as to all causes of action, and the court had found him not credible, all causes of action failed. Judgment was entered, and Goran filed a notice of appeal.
Street filed a motion for attorney fees, to which Goran did not submit any written opposition. At the hearing on the motion, Goran stated that because there was no evidence of a valid promissory note, there was no legal basis for awarding attorney fees. Goran also argued that while he did not agree with the amount of attorney fees sought by Street, he would not provide specific argument about it in the trial court, but rather would wait until the appeal to raise those arguments. The trial court awarded Street $32,792.50 in attorney fees, and entered an amended judgment. On appeal, Goran does not raise any argument regarding attorney fees.
DISCUSSION
"'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.'" (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged to affirm the judgment if possible. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) We do not reweigh or reinterpret the evidence. (Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 113-114.)
Goran argues the de novo standard of review applies because the evidence is uncontradicted. However, as shown in the statement of facts, ante, the parties disputed virtually all significant facts. --------
Where, as here, no statement of decision was requested from the trial court, the appellate court will infer all factual findings necessary to support the judgment and analyze whether those findings are supported by substantial evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132-1133.)
Goran argues on appeal that his testimony that the promissory note was a forgery was uncontradicted, and the court's judgment against him must therefore be reversed. Goran's appellate briefs set forth 14 separate arguments in favor of reversal of the judgment. However, each of those arguments is based on the same underlying claim: Goran's testimony about the promissory note was uncontradicted.
The trier of fact is the ultimate judge of the weight and credibility of the witnesses' testimony. (People v. Hovarter (2008) 44 Cal.4th 983, 996; Navigators Specialty Ins. Co. v. Moorefield Construction, Inc. (2016) 6 Cal.App.5th 1258, 1276.) The appellate court cannot second guess the trial court's assessment of the credibility of witnesses. (Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 670.)
In this case, the trial court found Goran's testimony to be not credible. The court made the following specific findings as to why Goran was not a credible witness:
"In any event, starting with Mr. Goran's version of the transaction, it starts with the premise that the parties used a Deed of Trust without a Promissory Note to complete this transaction. That's the premise. I find that to be wholly incredible. [¶] Mr. Goran testified that's all Mr. Street asked him for. All he asked him for was a Deed of Trust, so that's all I gave him. Mr. Goran also testified that he didn't know that you needed a Promissory Note to go along with the Deed of Trust. Both of those statements make no sense. [¶] Mr. Goran is—identifies himself as a real estate investor. Mr. Street is a real estate investor/hard money lender. Mr. Goran is a Dartmouth graduate. He knows the purpose of a Deed of Trust is to secure a Promissory Note. It simply isn't believable to me that there was no Promissory Note. [¶] . . . [¶]
"There were some other problems with Mr. Goran's testimony about this. I started asking him questions about this and he reverted to some 'not to my recollection' answers, which—I mean, part of his testimony was unequivocal. I did this and I didn't do this and then he started saying, well, not to my recollection, which all sounds a little bit cagey to me. [¶] Let me put aside the issues about the Deed of Trust for a minute and go on to the payments. Here's where Mr. Goran loses all credibility in my mind. First of all; he didn't get any receipts for these purported payments that he made on this loan. Really? [¶] . . . [¶]
"Paying the balance in cash makes no sense at all other than to me to come up with a figure that shows that the amount was paid. Mr. Goran's testimony for using cashier's checks was that he was uncomfortable carrying large amounts of money in San Bernardino, which I certainly understand given the crime rate here. [¶] Well then, why was he carrying $1088.43 in his pocket? That just doesn't seen credible to me that they're going to be standing in the parking lot and Mr. Goran is going to be counting out the dollars and cents: [$]1,000 and then $88 and then a quarter, a dime, a nickel and three pennies. It's—It just doesn't make any sense that that's the way the transaction happened. [¶] . . . [¶]
"In any event, I don't think that Mr. Goran has shown that he paid these amounts. Perhaps the most telling thing on that point is the Interrogatory response in the earlier litigation. Not a word about this. Rather he said, well, I paid the full amount in cash within four months of the transaction. [¶] Well, that's not what he testified to in this court. Mr. Goran was testifying under oath in response to the Interrogatories and now he's testifying inconsistently with that here at trial. [¶] . . . [¶]
"I think Mr. Goran is lying about a great deal here."
To be fair, the trial court also specifically found that Street was "probably lying about a number of things here as well," and identified the portions of Street's testimony that were problematic. But the court's finding that Goran was not a credible witness forecloses Goran's argument that his testimony regarding the promissory note was uncontradicted and that the court was required to accept and credit it.
Ultimately, the trial court found that Goran's lack of credibility, combined with the fact that he had the burden of proof on all causes of action, required that the court rule against him. The trial court concluded: "But the problem is this; Mr. Goran, he has the burden of proof in this case, and I have found him not to be a credible witness."
The trial court was entitled to disbelieve some or all of Goran's testimony. Without Goran's testimony, there is no evidence supporting Goran's claims regarding the invalidity of the promissory note and the deed of trust.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.