Filed 2/25/14 Woolfolk v. Countrywide Home Loans CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

CHARLES ROLAND WOOLFOLK,                                                B241525

      Plaintiff, Cross-defendant and                                    (Los Angeles County
Appellant;                                                              Super. Ct. No. TC021802)

STRENGTH REVIVED, INC.,

         Cross-defendant and Appellant,

         v.

COUNTRYWIDE HOME LOANS, INC.,

      Defendant, Cross-complainant and
Respondent.



      APPEAL from a judgment of the Superior Court of Los Angeles County.
William P. Barry, Judge. Affirmed.

      The Law Offices of Julius Johnson & Associates and Julius Johnson for Plaintiff,
Cross-defendant and Appellant.

      The Law Offices of Gabrielle C. Woods and Gabrielle C. Woods for Cross-
defendant and Appellant.

      Cunningham & Treadwell, Francis J. Cunningham III and David S. Bartelstone for
Defendant, Cross-complainant and Respondent.


                                        _________________________
       In a confusing and largely unintelligible brief, appellants Charles Roland
Woolfolk (Charles) and Strength Revived, Inc. (Strength) challenge a trial court
judgment in favor of Countrywide Home Loans, Inc. (Countrywide), among others.
Appellants have not met their burden on appeal. Accordingly, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
       Charles and Lena Woolfolk (Lena) are married. According to Charles, Douglas
Burch (Burch) approached Lena and asked her to invest monies with him. Because she
did not have the money to invest, Burch allegedly convinced Lena to take out a loan on
certain real property, which Charles inherited before his marriage to Lena. When Lena
signed the loan documents, an unidentified man who had arrived with the notary public
signed the documents as though he was Charles.
       Envision Lending Group, Inc. (Envision) was the independent, approved mortgage
broker for the loan.
       Countrywide made the loan. The net proceeds of the Countrywide loan were
$117,000, after the payment of various fees and after the pay off of an existing loan held
by World Savings (the World Savings deed of trust). The net proceeds were wired to
Lena, who transferred the monies to Burch. Lena has not seen or heard from him since.
       Meanwhile, at some point thereafter, Strength made a loan to Charles and recorded
a deed of trust to secure the debt. When Strength’s chief executive officer, Julius
Johnson,1 recorded the Strength deed of trust, it knew of the existence of the
Countrywide deed of trust.




1     Mr. Johnson, an attorney, represented Charles below and continues to represent
him on appeal.

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Complaint and Cross-Complaint
       On June 20, 2008, Charles filed a verified complaint alleging declaratory relief,
fraud and deceit, constructive trust (fraud), quiet title, cancellation of deed, injunctive
relief, and accounting, seeking, inter alia, a determination of the parties’ rights in and to
the subject property, including equitable lien rights. The only causes of action asserted
against Countrywide were declaratory relief, quiet title, cancellation of deed, and
injunctive relief; Countrywide was not sued for fraud or negligence. Among other things,
Charles alleged that Countrywide did not have a valid deed of trust against the real
property that is the subject of this appeal because Charles’s signature had been forged on
the document.
       On July 14, 2008, Countrywide filed its answer to the complaint, and on March 2,
2009, Countrywide filed its cross-complaint against Charles, Lena, Envision, and others,
alleging causes of action for, inter alia, imposition and foreclosure of equitable lien.
Countrywide alleged that it had a valid and existing first trust deed lien against the
subject real property and, in the event that it did not, that it was entitled to the imposition
and foreclosure of an equitable lien due to its payoff of the prior, valid and existing
encumbrance in favor of World Savings.
       On October 25, 2010, Countrywide filed its first amended cross-complaint, adding
Strength as a cross-defendant, after discovering that Strength had claimed a secured
interest in the subject real property pursuant to the Strength trust deed.
Strength’s Tardy Expert Witness Designation
       On August 16, 2011, Strength attempted to serve a designation of expert
witnesses, designating Tom Tarter (Tarter). Countrywide objected. On November 2,
2011, Strength filed an ex parte application to file tardy designation of expert witness.
Countrywide opposed the application. The trial court denied Strength’s ex parte
application.
       Notably, neither Strength nor Charles asked that Tarter be allowed to offer rebuttal
testimony.



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Trial Court’s Disclosure of Prior Refinance Loans from Countrywide
       On January 10, 2012, the trial court disclosed that it “got a loan from Countrywide
through a broker, but it was not a subprime loan. And I had no dealings with
Countrywide that would indicate anything of relevance to this case. So I—it’s just that I
want to let you know that I did have a loan from Countrywide that is now being serviced
or owned by Bank of America. . . . [¶] If you have any questions, you can ask me, but I
wanted to let you know. Actually, I think I did two [refis] with Countrywide. And one
of them may have been in ’05 or ’04, and the other one a little earlier than that. Through
a broker. Not Envision. And I had no dealings, and none of the names that have been
mentioned have any meaning to me at all. But I thought I should let you know.”
Judgment and Appeal
       Judgment was entered in favor of Charles and against Countrywide on Charles’s
cause of action for cancellation of deed of trust only. Charles was awarded nothing on
his claims for declaratory relief, fraud and deceit, constructive trust (fraud), quiet title,
injunctive relief, and accounting. As for the cross-complaint, judgment was entered in
favor of Countrywide and against Charles, Lena, and Strength. In so ruling, the trial
court found that Countrywide was the holder of an equitable lien that encumbered the
property in a first lien position.
       Charles and Strength’s timely appeal ensued.
                                        DISCUSSION
       The major problem with appellants’ appeal lies in their opening brief. As another
court observed in describing a similarly inadequate brief, “[i]ndeed, this document is
strongly reminiscent of those magazine puzzles of yesteryear where the reader was
challenged to ‘guess what is wrong with this picture.’” (People v. Dougherty (1982) 138
Cal.App.3d 278, 280.)
       Issues are raised that are not thoroughly flushed out or supported by record
citations and/or legal authority. (Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned
argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant


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must present argument on each point made]; Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1115 [appellate court is not required to make an independent,
unassisted search of the appellate record].) For example, appellants assert that the trial
court erred in refusing to allow the rebuttal testimony of Tarter, but Tarter was never
called as a rebuttal witness. Despite arguing that the substantial evidence rule applies in
part, appellants did not set forth all of the material relevant evidence. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [failure to set forth all material evidence results
in forfeiture of substantial evidence claim].)
       We decline to consider the issues raised in plaintiff’s opening brief that are not
properly presented or sufficiently developed to be cognizable, and we treat them as
waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994)
8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v.
Board of Administration (1994) 30 Cal.App.4th 539, 545–546.)
       With these principles in mind, and to the extent possible, we have attempted to
reach the merits of the issues raised by appellants in their appellate briefs.
I. Alleged Trial Court Bias
       Charles and Strength contend that the trial court was biased in favor of
Countrywide, as evidenced by its disclosure during trial that it had one or two refinance
loans with Countrywide. As pointed out by Countrywide, this issue is not properly
before us. Appellants did not properly and timely seek disqualification of the trial judge
upon learning, during trial, of his alleged bias. (In re Steven O. (1991) 229 Cal.App.3d
46, 55; Code Civ. Proc., § 170.4, subd. (b).) In fact, instead of objecting, appellants
continued to appear in front of the same trial court judge and filed multiple posttrial
documents with the trial court. By failing to raise this issue below, they have forfeited




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the issue on appeal.2 (Sacramento Etc. v. Jarvis (1959) 51 Cal.2d 799, 802; Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 384.)
       Setting this procedural obstacle aside, there is no evidence whatsoever of
“institutional bias” as appellants speculate. Rather, the trial court’s revelation about its
prior loan connection to Countrywide indicates an intention to be honest and transparent.
       As for appellants’ claim that the trial court exhibited bias when it questioned
Mr. Johnson during his attempts to amend his pleadings to conform to proof, appellants
also have not met their burden. The trial court’s questions of Mr. Johnson show that the
trial court was inquiring as to what evidence supported his request for leave to amend;
and its challenge to Mr. Johnson’s speculation and its correction of Mr. Johnson’s
misstatement of the evidence were appropriate.
       Appellants’ reliance upon People v. Williams (2007) 156 Cal.App.4th 949 is
misplaced. In that case, the trial court “‘switched gears’ from scholarly analysis to an
appraisal of [the appellant’s] character for honesty and veracity.” (Id. at p. 954.) Here,
the trial court did no such thing.
II. Alleged Evidence that Countrywide Acted Negligently in Extending Loan
       Appellants argue that the trial court “[i]gnored [s]ubstantial [e]vidence” that
Countrywide acted negligently. Appellants misunderstand the standard of review. In
reviewing a judgment for substantial evidence, we look for evidence that supports the
judgment. (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143;
Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.) That there may be evidence
to support an alternate judgment does not compel reversal. (Jameson v. Five Feet
Restaurant, Inc., supra, at p. 143; Bowers v. Bernards, supra, at pp. 873–874.)




2       We also note that pursuant to Code of Civil Procedure section 170.3, subdivision
(d), “[t]he determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed by a writ of mandate.”

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III. Charles’s Fraud Claim
       Charles argues that the trial court erred in denying his fraud claim against Lena
(his wife) and Burch. Charles has not met his burden on appeal. In the two paragraph
discussion of his fraud claim, Charles directs us to what Lena allegedly stated during
trial, but he offers no record citations. And, he offers no analysis as to how he proved all
elements of his claim for fraud. What misrepresentation did Lena allegedly make to
Charles? What misrepresentation did Burch make to Charles? How did Charles rely on
any alleged misrepresentations? These unanswered questions compel us to affirm the
judgment.3
IV. Equitable Lien
       Appellants argue that the trial court’s finding of an equitable lien in favor of
Countrywide was erroneous. Their only argument appears to be that while neither
Charles nor Strength was at fault, Countrywide was at fault; thus, the equities tip in favor
of appellants.
       Appellants have not shown that the trial court abused its discretion in awarding
Countrywide an equitable lien. (Katsivalis v. Serrano Reconveyance Co. (1977) 70
Cal.App.3d 200, 211; Dieden v. Schmidt (2002) 104 Cal.App.4th 645, 654.)
Countrywide paid off a prior, valid and existing senior lien against the property (the
World Savings deed of trust). It made the loan in reliance on the fact that it would be
secured by a first trust deed lien against the property. Under these circumstances,
Countrywide was entitled to the equitable lien.
V. Equitable Subrogation
       Appellants argue that Countrywide was not entitled to equitable subrogation
because it acted with culpable and inexcusable neglect in extending the loan to Lena.
Again appellants face a procedural obstacle—they did not plead this affirmative defense
in their answer to the cross-complaint. (Harris v. City of Santa Monica (2013) 56 Cal.4th



3     Notably, Lena did not file a respondent’s brief; Countrywide is the only
respondent in this appeal.

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203, 239–240.) Having failed to plead this issue below, they cannot raise it for the first
time on appeal.
       Setting this procedural obstacle aside, substantial evidence supports the trial
court’s implicit finding that Countrywide did not act negligently. At the heart of the
dispute in this litigation is the allegedly forged loan documents. But, there is no evidence
that Countrywide knew or should have known of the alleged forgery. The transaction
arose from a wholesale, broker-originated loan, and the processing of the loan, including
the verification of the signatures, was conducted by Envision, an independent broker.
Countrywide had no contact with the prospective borrowers (Charles and Lena), and it
was not responsible for ensuring the accuracy and authenticity of the signatures.
       In their reply brief, appellants argue that Countrywide is estopped from denying a
partnership with Envision because it held itself out as Envision’s partner. There are at
least two problems with this argument. First, appellants fail to direct us to those portions
of the appellate record demonstrating that they raised this argument in the trial court.
(Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1.) Second,
it is well-established that arguments first raised in a reply brief are not considered on
appeal. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)




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                                    DISPOSITION
      The judgment is affirmed. Countrywide is awarded costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                ____________________________, J.
                                                      ASHMANN-GERST


We concur:



___________________________, P. J.
           BOREN



___________________________, J.*
           FERNS




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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