Opinion
A149220
09-27-2018
HEMLATA G. VYAS, Plaintiff and Appellant, v. EDWARD BERMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC14540736)
Appellant Hemlata G. Vyas brought this action to quiet title concerning a parcel of property she owns in San Francisco encumbered by deeds of trust securing three business-related loans that she contends have been fully satisfied and discharged. The superior court ruled against her after a bench trial, finding the loans have not been fully paid and declining for that reason to extinguish the cloud on her title. She now appeals the judgment, along with a post-judgment award of approximately $47,000 in attorney fees. We affirm both.
BACKGROUND
In November 2003, Vyas entered into three loans with respondent Edward Berman to finance the purchase and renovation of a hotel located in New Orleans. Vyas purchased the New Orleans hotel through a Louisiana limited liability company of which she was the sole member, Louisiana Hospitality LLC. Berman is an attorney and a licensed real estate broker, and had made a series of real estate loans to Vyas beginning in approximately 1999.
The principal amount of the three loans, in the aggregate, was $2.43 million ($300,000, $980,000, and $1,150,000). In connection with each, Vyas executed a promissory note secured by, among other collateral, deeds of trust on a parcel of property she owns on Iris Avenue in San Francisco, California. Due to the risky nature of the New Orleans hotel venture (the hotel property was dilapidated, and Vyas had a "shoestring" budget to run it), the notes carried interest rates in excess of ten percent, and an even higher default rate of 18 percent.
Although the notes are in Vyas' name individually, Berman testified he regarded her limited liability company as a co-obligor on the loans too.
Vyas' hotel business fell on hard times due in part to Hurricane Katrina, and the loans went into default. By June 2008, the Louisiana hotel had been sold through bankruptcy and the proceeds distributed, as well as the proceeds from Vyas' sale of a hotel she owned in San Francisco, but the three loans were still in arrears by nearly $98,000 combined. Vyas' business manager, however, who had negotiated the loans and was Vyas' principal contact with Berman, disputed that there was still any outstanding debt. Vyas never made another payment, and the loans continued to accrue default interest for another eight years until trial, when the accrued debt was approximately $400,000.
In this period Berman had made several other real estate loans to her that went into default too, but eventually they were satisfied and discharged and are not at issue here.
In 2014, Vyas brought this suit seeking to quiet title to the Iris Avenue property in her name, alleging the loans secured by the deeds of trust had been fully paid but Berman refused to remove his liens on the property. The case proceeded to a bench trial, a statement of decision was waived, and the superior court ruled that Vyas did not meet her burden of proving she doesn't owe anything on the loans and rejected her quiet title claim. Judgment was entered, a motion for contractual attorney fees was filed and granted in the amount of $46,820, and this appeal followed.
Named as defendants were both Berman and another entity, Interspace, Inc., that was also alleged, for reasons not specified, to be a party to the loans transactions. The parties do not differentiate between the two for purposes of this appeal, and we will refer to them collectively as "Berman" or "respondents."
DISCUSSION
I.
Jurisdiction
Berman urges us to dismiss the appeal on the ground it was taken from a nonappealable judgment entered on June 9, 2016, rather than from a final, appealable judgment entered on July 28, 2016. We decline to do so.
A. Background
At the conclusion of trial, the court announced its ruling from the bench and then directed the defense to submit a proposed order and judgment.
On June 9, 2016, it then entered a "Judgment." The judgment states, in pertinent part, that the matter came on for trial on specified dates, a jury was waived and so was a statement of decision, and that "[a]fter considering the testimony and evidence of the parties, the court makes the following ruling: Plaintiff Hemlata G. Vyas has not met her burden of proving that she does not owe money to Defendant. Plaintiff cannot prevail on her cause of action for quiet title. Defendant shall recover his costs. [¶] The Court reserves ruling on attorney fees, but will consider any motion pursuant to Code of Civil Procedure § 1717 that defendants may make in this matter."
Thereafter, on June 13, 2016, Berman served notice that the June 9, 2016 "Judgment" had been entered, by means of a document captioned "Notice of Entry of Judgment." The notice states that "on June 9, 2016, the Court entered its Judgment, a copy of which is attached hereto."
Berman then filed a motion for an award of attorney fees and costs. In the notice of motion, Berman requested "the issuance of an amended judgment to add the awarded amount of attorney's fees and costs to the existing judgment entered in their favor in this matter on June 9, 2016." (Italics added.)
The court granted the attorney fee motion by order dated July 25, 2016.
Thereafter, on July 28, 2016, it signed and entered a document captioned "Judgment (amended)." It contained the following modified language: "Judgment is plaintiff Hemlata G. Vyas to receive nothing from defendants Edward Berman and Interspace, Inc. [¶] Defendants Edward Berman and Interspace, Inc. are to recover costs of $2,172.00 and attorney's fees of $46,820.00."
On June 29, 2016, Vyas then filed a notice of appeal specifying both the June 9, 2013 judgment and an unspecified "order after judgment under Code of Civil Procedure section 904.1(a)(2)" which Berman concedes was intended to refer to the July 25, 2016 attorney's fees order.
As Berman notes, the notice of appeal cited not the date the judgment was entered but the date that notice of entry of the June 9, 2016 judgment was served (i.e., June 13, 2016). But Berman implicitly concedes, correctly, that principles of liberal construction require us to construe the notice of appeal as specifying the June 9, 2016 judgment. Indeed, the superior court clerk understood it this way: it gave notice that Vyas' notice of appeal was from the "Judgment filed on 6/09/2016 (Notice of Entry of Judgment filed on 6/13/2016)." Berman does not ask us to dismiss this appeal on the basis of the incorrect date.
B. Analysis
Berman argues the June 9, 2016 judgment is not final and appealable because it contains no dispositional language expressly declaring the ultimate rights of the parties. But Berman cites no authority that this fact alone renders a judgment non-final. In the authority he cites, that was just one of several factors suggesting the order in question was not intended to operate as a final judgment (an order granting summary judgment). (See Swain v. California Casualty Insurance Co. (2002) 99 Cal.App.4th 1, 6 (Swain).) Furthermore, the June 9, 2016 judgment does contain dispositional language. Although it might have been more clear, it states that "Plaintiff cannot prevail on her cause of action for quiet title," and "Defendant shall recover his costs." Berman does not explain why such language does not suffice.
The June 9, 2016 judgment fully disposed of all of the issues, and "there was nothing further in the nature of judicial action on the part of the court essential to a final determination of the asserted rights of the respective parties." (Eldridge v. Burns (1978) 76 Cal.App.3d 396, 405.) It was entered after the court directed the submission of a proposed judgment; the defendants themselves referred to it as a judgment in their notice of entry of judgment and then again in their motion for attorney fees; and seven days after that judgment was entered, but before entry of the amended judgment, the defendants filed their cost bill, which was due within 15 days of "the date of service of written notice of entry of judgment." (Cal. Rules of Court, rule 3.1700(a).) Clearly, the defendants regarded it as a final judgment too.
At most, the later amended judgment merely corrected a clerical error when it substituted language of the June 9, 2016 judgment ( "Plaintiff cannot prevail on her cause of action for quiet title") with, "Judgment is plaintiff Hemlata G. Vyas to receive nothing from defendants Edward Berman and Interspace, Inc." That is exactly the sort of error we ourselves would be empowered to correct had the superior court not done so itself. (See Swain, supra, 99 Cal.App.4th at p. 6; Estate of Dito (2011) 198 Cal.App.4th 791, 800.) If an amendment " 'merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective as the only appealable final judgment; the amendment does not operate as a new judgment from which an appeal may be taken.' " (CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048.) For these reasons, the appeal is viable and we will address it on the merits.
Berman rightly does not contend the award of attorney fees and costs in the later "judgment" affects the finality of the earlier judgment. A judgment is final and appealable despite a later amendment adding an award of attorney fees, costs or interest. (See Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1163-1164.)
II.
The Merits
Vyas raises four issues on appeal. First, she contends she was charged an illegal, usurious interest rate, and that taking into account all of her payments without regard to that illegal interest rate, the loans were fully satisfied and so Berman's liens should have been deemed extinguished. Second, she argues the loans were discharged by the bankruptcy of her LLC. Third, she argues there was no legal basis for an award of attorney fees to Berman. And finally, she challenges the amount of the fee award as unreasonable.
Also scattered throughout her briefing are broad, legally unsupported assertions about the inequities and "great injustice" of the circumstances, asserting the judgment should be reversed "as a matter of equity." We do not reverse judgments on such grounds. Those points warrant no discussion.
"The most fundamental principle of appellate review is that '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.' " (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1006.) Here, Vyas has failed to carry her burden as the appellant to persuade us of any error by the trial court. In large part that is due to the manner in which she has presented her arguments. For example (and without purporting to be exhaustive), the discussion of the underlying facts in her opening brief is incomplete and, such as it is, a largely one-sided presentation of the evidence that disregards much, if not all, evidence that does not favor her position, which is improper. (See In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531; North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 677.) And on the question of attorney fees she does not cite or discuss any evidence at all. Another problem with her appellate briefing is that Vyas does not address, much less apply, the appropriate standard of review concerning the trial court's finding she did not meet her burden of proving the loans were full paid. By failing to do so, she has not fulfilled her duty to make a coherent legal argument demonstrating error. (See Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 555.)
When a plaintiff fails to carry its burden of proof below and then challenges the sufficiency of the evidence on appeal, " 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' " (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) The appellant's evidence must be " '(1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." ' " (Ibid.) It is "almost impossible" for a losing plaintiff to make such a showing and win on appeal, because "unless the trial court makes specific findings of fact in favor of the losing plaintiff, we presume the trial court found plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof." (Bookout v. State ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)
Each of the issues Vyas raises on appeal fail for additional reasons of their own, and we briefly turn to them.
First, the usury issue was not raised below and has been forfeited. Vyas contends she did raise this issue, because "[t]he court heard extensive testimony and the parties introduced documentary evidence regarding the usurious interest rates." But the question is not whether there was evidence to support the legal argument. It is whether the legal question itself was raised. It wasn't. That is a waiver. (See Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) Moreover, were we to consider the issue, we would reject it. The question whether a particular transaction is usurious is generally a question of fact. (See Del Mar v. Caspe (1990) 222 Cal.App.3d 1316, 1323-1324.) Citing his own trial testimony, Berman argues he is exempt from constitutional interest limitations because he is a licensed real estate broker. (See Cal. Const., art. XV, § 1 ["none of the above restrictions shall apply to . . . any loans made or arranged by any person licensed as a real estate broker by the State of California and secured in whole or in part by liens on real property"]; Civ. Code, § 1916.1) Vyas does not address the licensed real estate broker exemption in her reply brief, and as result she has not met her burden to show the loans were usurious.
Next, it is unnecessary to consider Vyas' argument that the loans were discharged in bankruptcy, because that portion of her brief contains no citations to the record, and it is not our duty to comb through the record on her behalf. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) In addition, Berman responds that the bankruptcy discharge of Vyas's limited liability company could not, and did not, legally discharge her individually of her obligations under the loans, and she has no answer in her reply brief. (See 11 U.S.C., § 524 (e).) So even if she had cited relevant evidence in the record on this issue, she still would not have met her burden of persuading us her debts were legally discharged.
Next, is the attorney fees award. On the question of entitlement, Vyas makes a number of wide-ranging legal contentions that are unnecessary to summarize because her arguments take no account (nor even mention) the attorney fee provision in the promissory notes that the trial court quoted and applied. We quote a portion of its ruling: "The promissory notes . . . state that Plaintiff agrees to pay all costs and expenses . . . , including . . . attorney's fees which defendant 'may incur in the exercise, preservation, or enforcement of its right, powers and remedies under this Note or under any of the Loan Documents.' " The contract was one of two alternative grounds Berman invoked below for seeking legal fees (the other was Civil Code section 1717). On its face, this provision appears to authorize an award of fees in an action such as this. Yet by not even addressing this contractual provision, not even in response to Berman's discussion of it in the respondents' brief, Vyas has failed to demonstrate the trial court erred in awarding legal fees.
Finally, Vyas argues the amount of fees awarded was excessive and unreasonable. The record on this issue is not adequate, however, because she did not include a transcript of the hearing which was her burden to do. (See Maria P. v. Riles (1997) 43 Cal.3d 1281, 1295; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 711.) We review the amount of an attorney fees award for abuse of discretion, a standard that is " 'highly deferential to the views of the trial court.' " (Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 897.) Vyas has not demonstrated any abuse of discretion. Her arguments that the award was excessive reargue the weight of various circumstances, in a manner that assumes we are free to decide this issue ourselves anew, independently. We are not. The award appears to be well within the trial court's discretion and Vyas has not persuaded us otherwise.
DISPOSITION
The judgment and the post-judgment award of attorney fees are affirmed. Respondents are entitled to recover their appellate costs.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.