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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

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business had withdrawn $49,958.74 from the credit line, and had not repaid any of the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

3
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

4
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

5
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.
6
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

7
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

8
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."
9
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.

10
 DISPOSITION

Judgment affirmed. Appellant to bear respondent's costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

11