Filed 7/8/14 Renteria v. Gutierrez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FIFTH APPELLATE DISTRICT


RAYMOND RENTERIA et al.,
                                                                                           F063845
         Plaintiffs and Appellants,
                                                                           (Super. Ct. No. 07CECG03513)
                   v.

ANTONETTE GUTIERREZ, Individually and as                                                 OPINION
Executrix, etc.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.

         Raymond Renteria, in pro. per., for Plaintiff and Appellant.
         Alaina N. Ybarra for Plaintiff and Appellant Rita Renteria.
         Baker, Manock & Jensen, Dirk B. Paloutzian and Amber M. Bridges for
Defendant and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellants Raymond Renteria (Raymond) and Rita Renteria (Rita) contend the
trial court erred in granting respondent Antonette Gutierrez’s motion for judgment
following presentation of their case to the court, sitting as trier of fact. More particularly,
appellants maintain respondent’s motion was procedurally defective. They also
challenge the trial court’s findings that appellants failed to present substantial evidence to
establish ownership of certain real property and that the statute of frauds barred their
claims. Further, appellants assert the trial court erred by ruling that testimony offered in
support of their case was hearsay not subject to an exception.
       We conclude respondent’s motion, while titled a motion for nonsuit below, may be
treated on appeal as a motion for judgment. Further, we conclude the trial court’s
findings are supported by substantial evidence. Lastly, we determine appellants have
waived any argument concerning objections based upon hearsay.
                               FACTUAL BACKGROUND
       In 1988, Raymond became delinquent on a debt owed to Finance and Thrift
Company (F&T). That loan was secured by his property located at 1264 North Pecan in
Reedley (Pecan Property). In an effort to avoid foreclosure, Raymond filed for
bankruptcy. When that tact proved unsuccessful, Raymond executed a quitclaim deed
whereby his mother, Rita, became one-half owner of the Pecan Property. He also
executed a quitclaim deed giving his sister, Alice Rodriguez, a 25 percent share or
interest. Rita then filed for bankruptcy.
       Meanwhile, F&T conducted a trustee sale of the Pecan Property. Eventually, as a
part of the bankruptcy proceeding involving Rita, a stipulation in settlement of all issues
was reached. Included was the agreement that Rita would pay off the debt owed to F&T
in exchange for a quitclaim deed in favor of Rita. Raymond agreed to be bound by the
terms of the settlement and stipulation agreement reached in Rita’s bankruptcy
proceeding.
       The money used to pay off the approximately $26,000 owed to F&T was obtained
by another loan. Raymond’s sister, Erlinda Gutierrez (Erlinda), and her husband Leroy
Gutierrez (Leroy) agreed to loan Raymond and Rita the money. Erlinda and Leroy



                                              2.
borrowed against their own property; from those funds, F&T was paid in full. In turn,
F&T issued a quitclaim deed in favor of Rita as owner of the Pecan Property.
       Thereafter, Rita executed a grant deed to the Pecan Property to Erlinda and Leroy.
According to Raymond, this was done to secure Erlinda and Leroy’s “credit” and was to
be collateral for the loan. Once Rita and Raymond paid off the debt they then owed to
Erlinda and Leroy, it was Raymond’s understanding the Pecan Property would be
returned to him and his mother.
       Raymond and Rita began making payments to Erlinda and Leroy in March 1989.
The payments were made in cash or money order payable to Erlinda. A record of the
payments was maintained by Raymond in a “payment book” obtained at Chicago Title.
Erlinda would make notations or initial the book to record the payments.
       In about 1996,1 Erlinda came into some money and paid off the loan she had taken
against her own property to the benefit of Raymond and Rita. Thereafter, Raymond and
Rita made payments according to an amortization schedule provided by Erlinda and
continued to do so through 2001.2 In 1996, the balance owed was $19,289.27. Monthly
payments were $397.63. All payments were made and the debt to Erlinda was completed
or paid off according to the schedule.
       Instead of asking Erlinda to execute a grant deed on the Pecan Property in favor of
him and Rita, Raymond asked Erlinda to hold the property in trust because he was ill at
that time.
       In 2004, Rita was diagnosed with dementia. Erlinda handled her mother’s
financial affairs thereafter as a result. At about this time, Raymond asked Erlinda about
getting the house back but then told her that because he was not feeling well, they should
wait a year before taking any action.



       1Leroy passed    away in February 1995.
       2Earlier,   Raymond testified payments were made from 1989 through 1994.


                                                 3.
          Then, in 2005, Erlinda was diagnosed with lung cancer. Before she died in
October of that year, Raymond testified Erlinda told him the Pecan Property would be
returned to him. Specifically, Erlinda told him he and Rita would be “protected” and
“safe.”
          Raymond learned after Erlinda’s passing that the Pecan Property was left to
respondent Antonette Garza (Antonette),3 and he was given a life estate. He was angry
because his mother did not receive a life estate in the Pecan Property and thus was not
“protected” in the event of his death.
          Raymond asked Antonette to return the Pecan Property to him and Rita, yet she
refused. Antonette did not tell him the loan to her mother had not been repaid. Raymond
and Rita submitted claims to the Pecan Property in probate court. Those claims were
rejected. This lawsuit followed.
          With regard to the evidence concerning the assertion that Raymond and Rita paid
off the debt owed to Erlinda, Raymond testified the payment book was taken by
Antonette after Erlinda’s death, and thus was not available to him. He claimed the
payment book would have been in his or his mother’s papers and those documents were
taken by Antonette after Erlinda’s passing. Further, Raymond claimed Antonette was
aware of the fact he and Rita had made payments to Erlinda, and Antonette had
knowledge of the payment book. Additionally, Raymond testified Antonette was present
when Erlinda made statements indicating the loan had been paid, and she was also
present when Erlinda said the Pecan Property would be returned to Rita and Raymond.
          Other family members, including Raymond’s brother, Frank Renteria, and his
sister, Alice Rodriguez, testified they had witnessed Raymond and Rita making a
payment or payments to Erlinda. They also testified Erlinda had made statements that the
loan to Rita and Raymond had been satisfied. In particular, Frank Renteria testified


          3At
           trial, respondent testified she had divorced and was using her maiden name,
Antonette Gutierrez. Judgment was entered for respondent under that name.


                                              4.
Antonette stated the loan had been “paid already” and the Pecan Property would be
returned to the “family.” Frank Renteria believed Erlinda intended to return the Pecan
Property to all of Rita’s children. Alice Rodriguez had the same understanding.
       Antonette maintained that prior to her mother’s death in October 2005, Erlinda
advised Antonette that the loan made to Rita and Raymond was not repaid.
       In 2004, Erlinda told Antonette that she intended to leave the Pecan Property to
Antonette and her sister Melissa Gutierrez.4 After Erlinda was diagnosed with cancer,
she reminded Antonette the Pecan Property belonged to her (Erlinda) because Raymond
and Rita had not repaid the loan.
       Antonette first learned of the particulars of Erlinda’s will and trust after her
mother’s passing. She denied any knowledge of a payment book. It was not among her
mother’s belongings. She did not remove any items from the Pecan Property belonging
to her grandmother Rita or her Uncle Raymond following her mother’s death.5
                                        DISCUSSION
Preliminary Matters
       The representation of Rita Renteria
       On October 23, 2013, attorney Alaina N. Ybarra substituted in as counsel on
appeal for Rita. This substitution was necessitated by the fact Raymond could not
represent the interests of his mother Rita, over whom he had guardianship.
       On November 5, 2013, this court granted Ms. Ybarra a 30-day extension of time
within which to file an opening brief on behalf of Rita, or to advise the court and parties
in writing that she adopted the brief previously filed by Raymond.
       Thereafter, Raymond timely filed his reply brief.



       4Melissa Gutierrez   died on May 19, 2005.
       5Antonette was accompanied by members of the Reedley Police Department on the
occasion she removed her mother’s belongings from the Pecan Property where Rita and
Raymond continued to reside.


                                               5.
       On December 4, 2013, counsel for Rita filed a document entitled “Notice of
Adoption of Appellants’ Reply Brief,” expressly stating Rita “adopts the argument and
authorities set forth in the Reply Brief of Appellant Raymond Renteria.” (Italics added.)
       Counsel for Rita failed to respond to this court’s order concerning whether her
client elected to adopt the opening brief filed by Raymond. Nevertheless, in light of the
fact a separate opening brief was not filed as permitted by the court’s November 5 order,
and the fact Rita did elect to adopt appellant Raymond’s reply brief, we will treat the
notice filed in December 2013 as an election by Rita to adopt both the opening brief and
the reply brief filed by Raymond.
       The request for judicial notice
       On June 18, 2012, Raymond filed a “Request for Judicial Notice in Support of Ex
Parte Application to Augment Record and Order Thereon.” Specifically, Raymond asked
the court to take judicial notice of the following: (1) court proceedings held before the
United States Bankruptcy Court on November 14, 1988; (2) a deposition of Raymond
taken May 9, 2011; (3) a deposition of Antonette taken August 23, 2011; and (4) a
deposition of Henry D. Nunez taken August 29, 2011.
       Rule 8.809(a) of the California Rules of Court provides:

             “(1) To obtain judicial notice by a reviewing court under Evidence
       Code section 459, a party must serve and file a separate motion with a
       proposed order.

              “(2) The motion must state:

              “(A) Why the matter to be noticed is relevant to the appeal;

               “(B) Whether the matter to be noticed was presented to the trial
       court, and, if so, whether judicial notice was taken by that court;

              “(C) If judicial notice of the matter was not taken by the trial court,
       why the matter is subject to judicial notice under Evidence Code section
       451, 452, or 453; and

              “(D) Whether the matter to be noticed relates to proceedings
       occurring after the order or judgment that is the subject of the appeal.”


                                              6.
       Raymond’s motion fails to address why the materials appended to his notice are
relevant, whether the materials were considered by the trial court, as well as whether
those materials relate to proceedings occurring after the order or judgment at issue.
Because Raymond has failed to comply with the requirements of California Rules of
Court, rule 8.809, we deny his request. In any event, the transcript for the proceedings
heard in the United States Bankruptcy Court for the Eastern District of California on
November 14, 1988, in the matter entitled Bankruptcy Hearing in the Matter of: Rita
Renteria were made a part of the record on appeal by virtue of Raymond’s motion to
augment the record filed May 22, 2013, and granted June 11, 2013.
       Even overlooking the foregoing procedural defect, the balance of appellants’
request is denied as those materials are not necessary for resolution of this appeal.
       A note re respondent’s brief
       At page 13 of her opening brief, respondent puts forth an argument that appellants
failed to present evidence sufficient to prove their claims concerning conversion of
monies distributed by Catholic Charities. However, appellants did not argue in their
opening brief on appeal that the trial court erred with regard to its findings concerning the
conversion cause of action.
       While appellants’ opening brief references the purported conversion at pages 12
and 13 under the heading of “Factual Background,” the arguments actually presented by
appellants amount to only an attack on the trial court’s findings with regard to the Pecan
Property. For that reason, this court will not address the issue of conversion or
respondent’s arguments related thereto.
I.     Respondent’s Motion at the Close of Appellants’ Case-in-Chief
       Appellants argue respondent’s motion at the close of their case-in-chief was
procedurally improper in light of this court’s previous decision in Lingenfelter v. County
of Fresno (2007) 154 Cal.App.4th 198. They contend the trial court committed reversible
error by granting the motion. Respondent maintains the motion presented in the trial
court as a motion for nonsuit must be treated on appeal as a motion for judgment.

                                             7.
       In Lingenfelter, this court concluded a motion for nonsuit is no longer recognized
in a court or bench trial after the close of the plaintiff’s evidence. Rather, the correct
motion is one for judgment pursuant to Code of Civil Procedure section 631.8. Further, a
motion for nonsuit may be treated as a motion for judgment for the defendant under that
statute. (Lingenfelter v. County of Fresno, supra, 154 Cal.App.4th at p. 206; see also
Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1262; Lucchesi v.
Giannini & Uniack (1984) 158 Cal.App.3d 777, 784, fn. 7, overruled on a different
ground in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.) Therefore,
in this case, we treat the trial court’s order granting respondent’s motion for nonsuit as
one for judgment. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 314, fn. 23.)6
       Code of Civil Procedure section 631.8, subdivision (a) provides, in relevant part:

       “After a party has completed his presentation of evidence in a trial by the
       court, the other party, without waiving his right to offer evidence in support
       of his defense or in rebuttal in the event the motion is not granted, may
       move for a judgment. The court as trier of the facts shall weigh the
       evidence and may render a judgment in favor of the moving party, in which
       case the court shall make a statement of decision as provided in Sections
       632 and 634, or may decline to render any judgment until the close of all
       the evidence.”
       In a motion for judgment, the trial court “must decide questions of credibility,
must weigh the evidence, and must make findings of fact. [Citations.]” (Lingenfelter v.
County of Fresno, supra, 154 Cal.App.4th at p. 204; see Ford v. Miller Meat Co. (1994)
28 Cal.App.4th 1196, 1200; Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th
1245, 1255; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 2013) ¶ 12.206, at p. 12-43 (rev. #1, 2009).) In reviewing an order granting such a


       6  “‘“The purpose of Code of Civil Procedure section 631.8 is to enable a trial court
which, after weighing the evidence at the close of the plaintiff’s case, is persuaded that the
plaintiff has failed to sustain his burden of proof, to dispense with the need for the defendant to
produce evidence. [Citations.]” [Citation.] Thus, section 631.8 serves the same purpose as does
section 581c, which permits the court to grant a nonsuit in a jury trial. [Citation.]’” (Roth v.
Parker (1997) 57 Cal.App.4th 542, 549.)


                                                8.
motion, we are bound by the trial court’s findings that are supported by substantial
evidence, but not by its interpretation of the law. (Fink v. Shemtov (2012) 210
Cal.App.4th 599, 608; People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006)
139 Cal.App.4th 1006, 1012.)
II.     Substantial Evidence Supports the Trial Court’s Findings
        Appellants assert there was substantial evidence to support their position in the
trial court. Stated another way, appellants contend the evidence did not support the trial
court’s ruling in favor of respondent. Respondent maintains the trial court properly
granted her motion for judgment because the motion was supported by substantial
evidence.
        The question on appeal is whether the trial court’s findings following respondent’s
motion for judgment are supported by substantial evidence. We find they are.
        A.     Standards of Review
        When factual findings are challenged on the ground there is no substantial
evidence to support them, an appellate court must determine whether there is any
substantial evidence to sustain the challenged findings. (Leff v. Gunter (1983) 33 Cal.3d
508, 518.) The clear and convincing evidence standard applicable in the trial court does
not govern our review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
        Substantial evidence is evidence “‘of ponderable legal significance, … reasonable
in nature, credible, and of solid value.’” (Bowers v. Bernards (1984) 150 Cal.App.3d
870, 873, italics omitted; see Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d
496, 507.) If substantial evidence exists, it is of no consequence that the evidence could
also support a contrary conclusion. (Bowers v. Bernards, supra, at pp. 873–874.)
Appellants bear the burden of demonstrating there is no substantial evidence to support
the challenged factual findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875,
881.)
        We begin with a presumption that the record contains evidence to sustain every
finding of fact (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881), and we

                                              9.
view the evidence in the light most favorable to the prevailing party, giving the prevailing
party the benefit of every reasonable inference and resolving all conflicts in the evidence
in support of the judgment (As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th
431, 454). We do not weigh the evidence, consider the credibility of the witnesses, or
resolve conflicts in the evidence or in the reasonable inferences that may be drawn from
them. (Leff v. Gunter, supra, 33 Cal.3d at p. 518.) If more than one inference reasonably
can be deduced from the facts, the trial court’s decision will not be disturbed on appeal.
(Boswell v. Reid (1962) 199 Cal.App.2d 705, 714.)
       B.     The Statement of Decision
       The trial court filed its statement of decision on November 17, 2011. In pertinent
part, it provides as follows:

              “Oral and documentary evidence was introduced on behalf of the
       respective parties and the cause was argued and submitted for decision.
       The court, having considered the evidence and heard the arguments of
       counsel and being fully advised, issues the following statement of decision
       setting forth the factual and legal basis for its decision:

              “1. With regard to the issue of whether the Pecan Property belongs
       to [appellants], the court’s decision is that [appellants] have not presented
       evidence sufficient to establish that [appellants] own or are entitled to the
       Pecan Property.

               “[Appellants] alleged that they are the rightful owners of the Pecan
       Property because in or about 1989 they allegedly entered into an oral
       agreement with [respondent]’s parents. [Appellants] alleged that under the
       terms of this purported agreement, they transferred title to the Pecan
       Property to [respondent]’s parents in consideration for a loan, i.e., the
       repayment of the indebtedness owed by [Raymond] and secured by the
       Pecan Property. [Appellants] further alleged that [respondent]’s parents
       agreed to transfer title of the Pecan Property to [appellants] upon repayment
       of the loan. [Appellants] contended that they repaid [respondent]’s parents
       in 2002, but instead of taking back title, they left title with Erlinda to hold
       for them ‘in trust.’ These allegations formed the basis for [appellants]’
       causes of action for fraud and deceit, aiding and abetting fraud and deceit,
       breach of fiduciary duty, breach of contract, and specific performance.

              “Under California’s statute of frauds, an agreement to transfer land
       to another is unenforceable unless it is reduced to writing. (Civ. Code,

                                             10.
       § 1624 (a)(3).) California law prohibits the transfer of an interest in real
       property without a written instrument subscribed by the party creating the
       interest. (Code Civ. Proc., § 1971.)[7] Additionally, a voluntary express
       trust with respect to real property can only be created in California by a
       written instrument subscribed by the trustor or trustee. (Prob. Code,
       § 15206;[8] Code Civ. Proc., § 1971; see Doran v. Doran (1893) 99 Cal.
       311, 314; Smith v. Mason (1898) 122 Cal. 426, 427; 48 Cal.Jur.2d, Trusts,
       § 31.) [Appellants] have neither presented evidence sufficient to meet these
       legal standards nor explained why they are excused from such
       requirements.

               “Regardless of the foregoing, the court heard the testimony of
       witnesses and was presented with documentary evidence purporting to
       establish [appellants]’ repayment of [respondent]’s parents and right to title
       of the Pecan Property. The court did not find the testimony regarding
       repayment of [respondent]’s parents to be credible. In particular,
       [Raymond]’s testimony on a variety of subjects was inconsistent and, in
       some cases, not believable. He was, therefore, not a credible witness and
       his testimony was discounted. Additionally, [appellants] presented the
       testimony of other witnesses, including Frank Renteria, Alice Rodriguez,
       Danny Ruelas and Aremi Alanis, each of whom testified to the effect that
       Erlinda made statements that [Rita] had paid off the purported loan. Oral
       declarations of a party whose lips are sealed by death, such as those upon
       which [appellants] relied so heavily, is evidence of the weakest kind and
       should be received with caution. (In re Armstrong’s Estate (1966) 241
       Cal.App.2d 1, 10; In re Zlaket’s Estate (1960) 180 Cal.App.2d 553, 560.)
       Moreover, Frank Renteria and Alice Rodriguez also claimed an ownership
       interest in the Pecan Property as children of Rita …, which affected their
       credibility. Mr. Alanis’ credibility was adversely affected by his demeanor
       on the witness stand and by his acknowledgment that he had filed his own

       7Code of   Civil Procedure section 1971 provides as follows: “No estate or interest in real
property, other than for leases for a term not exceeding one year, nor any power over or
concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered,
or declared, otherwise than by operation of law, or a conveyance or other instrument in writing,
subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by
the party’s lawful agent thereunto authorized by writing.”
       8Probate   Code section 15206 states as follows:
       “A trust in relation to real property is not valid unless evidenced by one of the following
methods: [¶] (a) By a written instrument signed by the trustee, or by the trustee’s agent if
authorized in writing to do so. [¶] (b) By a written instrument conveying the trust property
signed by the settlor, or by the settlor’s agent if authorized in writing to do so. [¶] (c) By
operation of law.”


                                                11.
        unsuccessful lawsuit against [respondent] relating to the estate of Erlinda.
        The court, therefore, discounted the testimony of [appellants]’ witnesses.

                “[Appellants] failed to present sufficient evidence to preponderate
        that the purported loan had been repaid. Except for [Raymond], whose
        credibility was suspect, no witness was aware of how much money was
        exchanged in total between [appellants] and Erlinda or what it was for.

                “Likewise, the testimony of [Raymond] and others concerning
        Erlinda’s purported statements near the end of her life about her estate plan
        in general, and disposition of the Pecan Property specifically, was vague
        and quizzical. The court did not find testimony of statements such as, ‘You
        [Raymond] and your mother [Rita] own the trust’ to be probative.
        Likewise, the testimony regarding Erlinda’s changes to her estate plan in
        the last couple months of her life, and her statements to others about that,
        was contradictory. Erlinda may have very well changed her mind over time
        as to how she wished to bequeath the Pecan Property.

               “Furthermore, none of the documents that were received into
        evidence were signed by [respondent]’s parents, or set forth the specific
        terms of any alleged agreement. The documents presented were
        authenticated by witnesses determined by the court to lack credibility and
        were accordingly given minimal weight.

               “Accordingly, [appellants] were unable to establish a right to title to
        the Pecan Property.”
        C.     Analysis
               Ownership of the Pecan Property
        The trial court found that despite appellants’ assertions to the contrary, they had
not established ownership to the Pecan Property for several reasons. We address each in
turn.
                       a.      Equitable Mortgage
        Appellants contend the trial court erred by failing to specifically address their
argument that the transaction between Leroy and Erlinda and Raymond and Rita created
an equitable mortgage.9

        9Associated    with this argument is appellants’ assertion via footnote in the opening brief
that the trial court should have permitted them “to amend their complaint to plead a cause of
action based on wrongful foreclosure based on an equitable mortgages theory.” Generally,

                                                 12.
       The trial court considered appellants’ argument after giving its tentative decision
in favor of granting respondent’s motion for judgment. Its statement of decision does not
specifically address appellants’ argument in that regard. Nonetheless, the record reflects
appellants did not challenge this omission. In light of the fact appellants did not
challenge the omission of this particular finding in the statement of decision, we will
“infer the trial court made implied factual findings favorable to the prevailing party on all
issues necessary to support the judgment, including the omitted or ambiguously resolved
issues.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.)
       Here, too, the trial court’s statement of decision provides a narrative explanation
of the factual and legal bases for its decision. The trial court was not required “to make
minute findings as to individual items of evidence.” (People v. Casa Blanca
Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 524, abrogated on other grounds
in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20
Cal.4th 163, 184-185; accord, Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20
Cal.App.4th 1372, 1379–1380 [statement of decision sufficient if it “fairly discloses the
court’s determination as to the ultimate facts and material issues in the case”].)
       “A mortgage can be created, renewed or extended, only by writing, executed with
the formalities required in the case of a grant of real property.” (Civ. Code, § 2922.) A
mortgage comes within the statute of frauds. (Secrest v. Security National Mortgage
Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552.) Nonetheless, an equitable
mortgage will be construed if the parties created a defective mortgage, intended to create
a security interest in property, intended to make real property security for an obligation,



however, we need not address issues discussed only in a footnote. (Cal. Rules of Court, rule
8.204(a)(1)(B); People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; see Sabi v. Sterling (2010)
183 Cal.App.4th 916, 947; Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151,
160.) Thereafter, and somewhat confusingly, appellants contend in their reply brief that
respondent raised the point yet claimed it “is a non-issue.” Because appellants originally raised
the issue in their opening brief via footnote, and because appellants themselves later
characterized this issue to be a “non-issue,” we consider it waived on appeal.


                                               13.
or where it is necessary to prevent unjust enrichment. (Grappo v. Coventry Financial
Corp., supra, 235 Cal.App.3d at p. 509.)
       Here, the only evidence that could be said to establish an equitable mortgage was
discredited by the trier of fact. More particularly, the testimony of Raymond, his brother
Frank Renteria, and his sister Alice Rodriguez was discounted by the trial court. The
documentary evidence admitted, discussed more fully below, simply does not support
appellants’ argument that an equitable mortgage was created.
                     b.      Statute of Frauds
       First, the trial court referenced the statute of frauds. Under the statute of frauds,
contracts “for the sale of real property, or of an interest therein” (Civ. Code, § 1624,
subd. (a)(3)) “are invalid, unless they, or some note or memorandum thereof, are in
writing and subscribed to by the party to be charged or by the party’s agent.” (Id., subd.
(a); see Alameda Belt Line v. City of Alameda (2003) 113 Cal.App.4th 15, 20-21.) Here,
there is no written contract or agreement concerning the loan by Erlinda and Leroy to the
benefit of Raymond and Rita purportedly made in 1989.
       “The statute of frauds primarily serves an evidentiary purpose. [Citation.] It
requires reliable evidence of the existence and terms of the contract so as to prevent
enforcement through fraud or perjury of a contract that was never in fact made.
[Citation.]” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1556; see Sterling v. Taylor
(2007) 40 Cal.4th 757.)
       The statute of frauds does not require a written contract. A note or memorandum
subscribed by the party to be charged is sufficient. (Sterling v. Taylor, supra, 40 Cal.4th
at p. 765.) A memorandum will satisfy the statute of frauds if it identifies the subject of
the parties’ agreement, shows they made a contract, and states the essential contract terms
with reasonable certainty. (Id. at p. 766.)
       Appellants reference a handwritten note allegedly inscribed by Erlinda onto a
document the parties agreed was a memorandum dated May 28, 1996—prepared for
Erlinda by a Mark Macias and accompanied by an amortization chart—as substantial

                                              14.
evidence of a transaction between Erlinda and Leroy and Rita and Raymond. The
handwriting was identified as belonging to Erlinda and read as follows: “I paid,
Grandma house off, so she owes me for the loan. You look at the month & year and
that’s what she owes me. House is not to be given back to any one, until she pays off
loan. Everything is figured out until loan is paid off (over).”10 But this memorandum
does not state the essential contract terms with reasonable certainty, nor is it clear
regarding the subject of the parties’ agreement. Significantly, the Pecan Property is in no
way identified in the memorandum.
       Moreover, Erlinda did not sign or even place her name on the memorandum
prepared by Macias. Thus, the supporting writing relied upon by appellants is not
sufficient to overcome the statute of frauds. (Marks v. Walter G. McCarty Corp. (1949)
33 Cal.2d 814, 820 [“it is a universal requirement that the statute of frauds is not satisfied
unless it is proved that the name relied upon as a signature was placed on the document
or adopted by the party to be charged with the intention of authenticating the writing”].)
As the trial court pointed out, “none of the documents that were received into evidence
were signed by [respondent]’s parents, or set forth the specific terms of any alleged
agreement.”
       Other than Raymond’s testimony that all payments were made and the loan was
paid off in its entirety, there is no corroborating evidence to support these claims. Frank
Renteria testified to seeing his mother Rita make a “couple” of payments in 1999 then
“several” in 2003 or 2004. Alice Rodriguez testified to even less. Daniel Ruelas testified
he saw Rita make two payments to Erlinda. Aremi Alanis merely stated he was aware of
a loan between Rita and Erlinda, but he did not testify regarding any particular payments
made. Evidence that some payments were made is certainly not evidence that all
payments were made. The trial court’s findings in this regard are reasonable.


       10Despite the
                   notation “(over)” at the bottom of the page, no additional writing or
information was admitted into evidence.


                                              15.
       Appellants contend that after they paid off the loan to Erlinda, rather than return
the property to them via grant deed, Erlinda agreed to hold the Pecan Property in trust for
their benefit. However, it is well established that the statute of frauds forbids the creation
of an express trust in real property by verbal declaration of its owner. (Briggs v. Nilson
(1964) 226 Cal.App.2d 342, 345; Kingsley v. Carroll (1951) 106 Cal.App.2d 358, 363.)
There exists no written evidence of such a trust. The testimony given during appellants’
case-in-chief established only a purported verbal declaration of such a trust. Hence, the
trial court’s finding that a trust was not created is supported by substantial evidence.
                     c.      Credibility Determinations
       Next, the trial court determined that, notwithstanding the statute of frauds, neither
appellants’ documentary evidence nor the evidence offered in their case-in-chief
supported a finding appellants were entitled to ownership of the Pecan Property. When
considering a motion for judgment, “the trial court must decide questions of credibility,
must weigh the evidence, and must make findings of fact.” (Lingenfelter v. County of
Fresno, supra, 154 Cal.App.4th at p. 204; see Plaza Home Mortgage, Inc. v. North
American Title Co., Inc. (2010) 184 Cal.App.4th 130, 135.)
       More specifically, on the issue of whether Rita and Raymond repaid to Erlinda the
loan made on their behalf, the trial court concluded Raymond’s testimony was
“inconsistent and, in some cases, not believable.” As to the testimony proffered by Frank
Renteria, Alice Rodriguez, Danny Ruelas and Aremi Alanis that Erlinda made statements
prior to her death that the loan in question had been paid off, the trial court noted
testimony of this sort is, and obviously was, received with caution. Further, the trial
court noted that as the children of Rita, Frank Renteria and Alice Rodriguez claimed an
ownership in the Pecan Property, and that claim affected their credibility. Finally, the
trial court noted that Aremi Alanis’s testimony was “adversely affected by his demeanor
on the witness stand and by his acknowledgment that he had filed his own unsuccessful
lawsuit against [respondent]” concerning Erlinda’s estate. The trial court’s conclusions
are supported by the record.

                                             16.
       On the other hand, Antonette testified Erlinda advised her that neither Raymond
nor Rita had repaid the loan. The testimony of a single witness, even if that witness is a
party to the case, may constitute substantial evidence. (Roth v. Parker, supra, 57
Cal.App.4th at pp. 549-550; see In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Here,
it is plain the trial court found respondent’s testimony to be credible. (Roth, supra, at p.
550.) Furthermore, a trial court’s credibility findings cannot be reversed on appeal unless
that testimony is incredible on its face or inherently improbable. (E.g., Artesia Dairy v.
Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 604; People v. Watts
(1999) 76 Cal.App.4th 1250, 1259.) Respondent’s testimony in this regard was neither
incredible on its face nor inherently improbable.
       The trial court also found the testimony of Raymond and others regarding
Erlinda’s statements near the end of her life about her estate plan, including the Pecan
Property, to be “vague and quizzical.” Again, credibility determinations were required of
the court in deciding respondent’s motion for judgment. (Lingenfelter v. County of
Fresno, supra, 154 Cal.App.4th at p. 204.) “Because the trial court evaluates the
evidence as a trier of fact, it may refuse to believe some witnesses while crediting the
testimony of others.” (Combs v. Skyriver Communications, Inc., supra, 159 Cal.App.4th
at p. 1263, citing Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1255.) As
an appellate court, we do not reweigh evidence nor do we make credibility
determinations. The trial court’s findings will not be overturned on appeal absent
manifest error. (Estate of Sharff (1963) 219 Cal.App.2d 128, 133.) No such error is
present here. It is clear the trial court credited respondent’s testimony over the testimony
proffered on behalf of appellants. It was entitled to do so.
       To the degree appellants argue there was evidence to support their position, it is
irrelevant. There is also evidence to support the trial court’s findings in support of
respondent’s motion for judgment. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp.
873-874.) The fact some evidence may also support a conflicting inference does not
require reversal.

                                             17.
                     d.      Hearsay Objections
       Appellants maintain “all the objections the lower court sustained that excluded
evidence in which the Appellants attempted to introduce the terms of the agreement with
Respondents should have been overruled.”
       Significantly, California Rules of Court, rule 8.204(a)(1)(C) requires each brief
“[s]upport any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears.” Appellants have failed to adhere to the
mandatory requirements of this court rule. Appellants’ brief is utterly lacking in citations
to the record concerning the trial court’s asserted errors in ruling on respondent’s
objections. A review of the record reveals there are dozens and dozens of objections by
respondent during the course of the trial. “‘The appellate court is not required to search
the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an
argument with the necessary citations to the record, … the argument [will be] deemed to
have been waived. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1246.)
       Further, Raymond is not exempt from the requirements of rule 8.204 of the
California Rules of Court. A party representing himself “‘is to be treated like any other
party and is entitled to the same, but no greater consideration than other litigants and
attorneys.’” (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)
       Appellants have failed to comply with appellate rules of procedure. Their claims
concerning the trial court’s evidentiary rulings following respondent’s objections based
upon hearsay are not supported by citation to the reporter’s transcript. Thus, we find
appellants have waived such challenges on appeal.
                     e.      Statute of Limitations
       At pages 20 and 21 of their opening brief, appellants argue their claims were not
barred by the statute of limitations. Respondent then argued to the contrary. Thereafter,
in their reply brief at pages 9 and 10, appellants contend this argument was “argued and
disposed of below” and assert the statute of limitations “is not at issue in this appeal.”

                                             18.
       In light of the fact appellants expressly assert the statute of limitations is “not at
issue,” we elect not to address the argument on appeal.11
                      f.      Spoliation of Evidence
       For the first time in their reply brief, appellants assert reversal is warranted to
resolve the issue of spoliation of evidence. Specifically, appellants refer to their
contention at trial that respondent wrongfully obtained possession of a payment book that
would conclusively establish they had paid off the debt owed to Erlinda.
       We need not consider this argument however. Appellate courts have concluded
issues first raised in a reply brief will not be considered, absent a showing of good cause
for the delay. “Consistent with well-established authority, absent justification for failing
to present an argument earlier, we will not consider an issue raised for the first time in a
reply brief.” (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87
Cal.App.4th 1172, 1181, fn. 3; see American Drug Stores, Inc. v. Stroh (1992) 10
Cal.App.4th 1446, 1453; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d
325, 335, fn. 8.) The California Supreme Court declined to consider an argument raised
for the first time in a reply brief, stating: “Obvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief of an appellant.” (Varjabedian
v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) There being no good cause shown,
and in the interests of fairness, we did not consider the argument.
                      g.      Summary
       The trial court drew reasonable inferences from the evidence before it regarding its
various findings. And we will not substitute our judgment—even assuming for the sake
of argument that judgment were different—for that of the trial court. (Greening v.
General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 551.) The trial court
properly granted respondent’s motion for judgment.

       11Notably, too, it would appear from the record that the trial court was not persuaded by
respondent’s argument that appellants’ claims were barred by the applicable statute of
limitations.


                                               19.
                                 DISPOSITION
     The judgment is affirmed. Costs on appeal are awarded to respondent.


                                                    ___________________________
                                                                        PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
KANE, J.




                                        20.
