Filed 6/26/17 Andaya v. Maas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



CESAR ANDAYA,

Plaintiff and Appellant,

v.

JEFFREY MAAS,

Defendant and Respondent.


E062241

(Super.Ct.No. RIC1211194)

OPINION


APPEAL from the Superior Court of Riverside County. David Gregory, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Office of Michael A. Younge and Michael A. Younge for Plaintiff and Appellant.
Chandler Law Firm, Robert C. Chandler, and Carla R. Kralovic for Defendant and Respondent.

Plaintiff and appellant Cesar Andaya appeals the judgment against him on his contract claim against defendant and respondent, Jeffrey Maas. Andaya claimed Maas breached their agreement to take title to a piece of property Andaya owned, take out a mortgage on the property and invest the proceeds for the parties’ mutual benefit, return title to Andaya, and pay off the mortgage. According to Andaya, Maas stopped paying the mortgage and he, Andaya, lost the property in foreclosure.
After a bench trial, the court found Andaya had presented insufficient evidence and found in favor of Maas. Because the parties did not request a statement of decision, the court did not provide further explanation of its ruling.
Andaya contends the court’s finding was not based on substantial evidence. We are unable to make that determination on the appellate record presented. The parties did not have a court reporter record the proceedings below, and Andaya failed to substitute a settled statement of the record.
We affirm because the record is inadequate to demonstrate error.
I
FACTUAL BACKGROUND
Andaya owned real property located at 6025 Anita Avenue in Riverside (the property). On June 24, 2008, Andaya transferred the deed to the property to Maas. Andaya also submitted an unrecorded grant deed dated June 25, 2008, which purported to transfer the property back from Maas.
On July 10, 2008, Maas applied for a mortgage on the property. According to a final settlement statement dated July 30, 2008, Maas obtained a mortgage on the property for $200,000, which yielded proceeds of $179,914.85. Maas recorded a deed of trust on the property on July 30, 2008 benefiting the mortgage lenders.
According to Andaya, these transactions constituted partial performance of a contractual agreement between Andaya and Maas. Andaya submitted an unsigned document entitled “Maas/Andaya Plan” (plan document), which he claims sets out the terms of the agreement. According to Andaya’s representation about the meaning of that plan document, the parties agreed: (1) Andaya would deed the property to Maas, who would record the deed; (2) Maas would deed the property back to Andaya, who would hold the new deed until Maas obtained a mortgage on the property; (3) Maas would loan Andaya $200,000 for five years at an interest rate of 7.5 percent, payable annually; (4) After Maas obtained the mortgage, he would obtain a five-year $1 million credit line for Andaya, with $750,000 available to Andaya at an interest rate of 5.75 percent; (5) Maas would invest the balance of the credit line (through “JDS group”). Though the plan document does not include this detail, Andaya contends Maas was required to make payments on the mortgage. According to the plan document, if “Andaya makes all payments in a timely manner, including paying off the credit line, Andaya will receive 50% of the $250,000 plus the interest it earned. It is estimated it will grow to $2,600,000. Andaya’s share would thus be $1,300,000.” Easy money.
For reasons not apparent from the appellate record, the investment scheme did not go as planned. We note it commenced at the beginning of the financial crisis of 2008. After some delays, according to an unsigned amendment of the terms of the plan document, the parties agreed to (i) reduce the interest on Andaya’s $200,000 loan from 7.5 percent to 3.25 percent, (ii) reduce its principle to $150,000, and (3) increase the credit line to $2 million, with $1.5 million available to Andaya and $500,000 invested.
Apparently, there were problems with the investment at the heart of the plan. On June 5, 2009, Andaya’s spouse, Mirey Andaya, sent an email to Maas asking about the loan and credit line. Maas sent a noncommittal response. On December 3, 2009, Mirey Andaya sent another email asking Maas to pay off the loan on the property so she and her husband could sell. Maas responded, “I can’t pay off the loan any more than you can until we finalize a deal. [¶] I understand the frustration. I am paying the mortgage on the house. That’s an extra $2,200 a month I get nothing out of. At least you’re not stuck with any additional payments because of this deal. I’m not sure what you want me to say differently than before. We’re working on it and will wrap it up when we can.”
On June 23, 2011, the trustee on the mortgage recorded a notice of default and election to sell under the deed of trust. The notice said payments were $11,923.31 in arrears as of June 21, 2011.
On July 5, 2011, Mirey Andaya asked Maas “what is your plan to pay what you borrowed on our house?” Maas responded, “My immediate plans include a complete payoff of the loan before a sale date occurs. This will occur through one of Eric’s transactions. I have not heard of anything new in the last week but I do know there is progress and it appears eminent [sic] one will close. My secondary plan is begin paying you up to $2000 per month when I am able.”
After another email inquiry on August 31, 2011, Maas responded: “I understand where you’re coming from. I have personally put over $65,000 in to [sic] this investment. Not to mention I put up 10 acres of my own land as collateral . . . I stand to lose more than anyone in this transaction, including you. I also understand the trust issue, but this is not an issue of trust. You trusted me that I thought this was a good investment. I thought it was. The evidence of that is the money and property I put up for it. I didn’t mislead or lie to you. This deal went bad and the escrow attorney breached our contract.” Maas then said he would pay Andaya “$2000 monthly (except if a month is tight. I won’t jeopardize rent or payroll) towards the principle [sic] until it’s paid off.”
Andaya’s property was sold at a foreclosure sale on December 13, 2011 for $140,000.
II
DISCUSSION
It is the appellant’s burden to provide an adequate record for appellate review of his claims. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Here, the court tried Andaya’s contract claim against Maas and found in Maas’s favor. The parties did not ask the court to provide a statement of decision. As a consequence, we do not have the benefit of the court’s rationale. More importantly, the parties did not have a court reporter transcribe the proceedings below, so there is no recorder’s transcript to aid our review. Though Andaya filed a motion in this court to use a settled statement in lieu of a reporter’s transcript, we denied the motion because such motions must be served and filed in the trial court with the party’s notice designating the record on appeal. (Cal. Rules of Court, rule 8.137(a)(1).) As a result, Andaya failed to obtain a settled statement of the proceedings in the trial court to serve as a substitute for a reporter’s transcript. Consequently, Andaya has given us no basis for concluding the court erred in finding in favor of Maas. Simply put, he failed to meet his burden on appeal of proving error occurred in the trial court. We must therefore presume the court correctly made factual findings demonstrating Andaya was not entitled to recover on his contract claim.
What Andaya has presented to support his appeal cannot overcome that presumption. The appellate record is limited to the complaint and documentary exhibits Andaya relied upon at trial. Though these exhibits tend to support some elements of Andaya’s contract claim, they do not provide a sufficient basis for us to reverse the trial court. At most, they show Andaya has created a factual dispute on some elements of his claim. But the trial court resolved such factual disputes in Maas’s favor, and without a record of the proceedings, we are compelled to presume that evidence supported the trial court’s resolution.
III
DISPOSITION
We affirm the judgment. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.