Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC382025. Elizabeth A. Grimes, Judge.
Law Offices of Cyrus Meshki and Cyrus Meshki for Plaintiffs and Appellants.
Law Offices of Banjo & Associates and Femi J. Banjo, for Defendant and Respondent.
BIGELOW, P. J.
Heshmat and Afagh Tayebi sued Enas Rofael for failure to repay a promissory note. A court trial ensued and the Tayebis appeal from the judgment entered against them. We affirm.
FACTS
Enas Rofael is the trustee of the Rofael Trust dated December 18, 1992, which was created by her father-in-law. The beneficiaries to the Rofael Trust are Enas’s husband, Victor, and his two sisters. In 2000, Enas, on behalf of the trust, borrowed $50,000 from The Hope Trust Deed Company. The $50,000 loan was secured by a third trust deed on a property owned by the trust located on Pacific Avenue in Los Angeles. The Tayebis purchased the promissory note from the Hope Trust Deed Company in October 2000. Interest payments were made for about a year and then the property entered foreclosure proceedings. To save the property, Victor offered to pay the Tayebis $10,000 in principal with the remainder to be secured by another property. The Tayebis received a new note for $40,000 dated December 29, 2003, and a form of the Deed of Trust for the new property. However, the Deed of Trust was not signed even though it was notarized. When the Tayebis sought to record it, it was returned.
For clarity and ease of reference, we will refer to the Rofaels and the Tayebis by their first names to the extent necessary.
The Tayebis filed a verified complaint for breach of written contract, fraud, and elder abuse, among six other causes of action, on December 11, 2007, against Enas as an individual and as trustee. Victor was not a party to the suit. In a one-day bench trial, the trial court heard testimony from Enas, Victor and Heshmat. Enas questioned whether it was her signature on the $40,000 note to the Tayebis in 2003 but ultimately admitted it was. She further testified that she never offered another property to secure a loan in 2003 and never intended to take out a new loan for $40,000. She believed her husband made payments, mostly in cash, on the $50,000 note to the Tayebis and it was fully paid off on November 17, 2003, when the Rofaels received a large loan from another lender. Victor testified that he conducted all the negotiations relating to the loan with Heshmat. He paid $40,000 in principal to the Tayebis plus interest. Heshmat testified he was not paid any of the principal on the $40,000 loan, but only received monthly interest payments.
A statement of decision was not requested, required or prepared. By minute order, the trial court ruled in favor of Enas and entered judgment for her, both individually and as trustee of the Rofael Trust. The Tayebis appealed.
DISCUSSION
The Tayebis claim the trial court made two errors which require reversal. Both are based on passing comments made by the trial court during a colloquy with the Tayebi’s counsel during closing argument. We determine none of the comments made by the court can be relied upon to reverse the judgment.
First, the Tayebis contend the trial court erroneously concluded that the 2003 note must be signed by both Enas, as the borrower, and the Tayebis, as the lenders. In particular, they take issue with the trial court’s comment that “[i]t’s not a binding note agreement. It’s not a binding promissory agreement because it’s only signed by one party. I don’t know what happened to it.” Under California law, only the party to be charged (in this case, the borrower) is required to sign a promissory note subject to the statute of frauds. (Civ. Code, § 1624; Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333, 339.) The Tayebis argue that the 2003 note is subject to the statute of frauds because on its face, it contemplates the execution of a deed of trust to secure it. As a result, it was error for the trial court to conclude the note was not binding.
Second, the Tayebis contend the trial court failed to hold Enas to her burden of proof since the law presumes nonpayment when a lender holds an uncancelled promissory note. The burden is then shifted to the borrower to prove payment. (Evid. Code, § 635; Remington Investments, Inc. v. Hamedani (1997) 55 Cal.App.4th 1033, 1041.) At trial, the Tayebis admitted into evidence the uncancelled 2003 note for $40,000 and Heshmat testified he was never paid. Enas testified that she believed the $50,000 owed to the Tayebis had been paid by her husband, but admitted she had no documentary proof of payment. In a colloquy with counsel, made before entry of judgment, the court made the following statements:
“I don’t know whether the $40,000 was paid or not.”
“There is testimony that it was paid off. There’s testimony it was not paid off.”
“Maybe Mr. Tayebi and Mrs. Tayebi were not paid their $40,000.”
“I don’t know if the $40,000 remains unpaid. I really don’t know.”
According to the Tayebis, these comments showed that Enas had not met her burden of proof. We disagree.
The trial court’s “tentative comments” have “no relevance on appeal.” (Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9; Oldis v. La Societe Francaise (1955) 130 Cal.App.2d 461, 472.) “This is because a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then, the judgment supersedes any memorandum or tentative decision or any oral comments from the bench.” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.) In addition, an appealed judgment is presumed to be correct; the appellate court implies all findings necessary to support the judgment absent a statement of decision; and the trial court is presumed to have followed the law. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563; In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)
Because there is no statement of decision and we disregard the trial court’s comments, we need only decide whether there exists any basis to affirm the judgment. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) We find there is. The Teyabis sued Enas for failure to repay the 2003 note for $40,000. While admitting it was her signature on the 2003 note, Enas testified at trial that she never intended to enter into a new loan for $40,000 in 2003. She also testified that she never intended to offer a different property to secure the loan. We cannot say that, as a matter of law, Enas’s signature on the 2003 note overrides her testimony. It is apparent from a review of the entire record that the trial court rejected both Victor’s and Heshmat’s testimony that a new loan was created. Instead, the trial court found Enas’s testimony to be credible. We are bound by the trial court’s credibility assessment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.) Accordingly, the Tayebis failed to meet their burden to prove the parties entered into an agreement for a $40,000 loan in 2003.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: FLIER, J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.