Filed 6/22/16 Woods v. Bank of America CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



FLAVIANA WOODS,                                                     D068024

         Plaintiff and Appellant,

         v.                                                        (Super. Ct. No. 37-2011-00096230-
                                                                   CU-OR-CTL)
BANK OF AMERICA, N.A.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Katherine

A. Bacal, Judge. Affirmed.

         Law Offices of Douglas Jaffe and Douglas Jaffe for Plaintiff and Appellant.

         Bryan Cave and Aileen M. Hunter, Sarah Burwick for Defendant and Respondent.

         Flaviana Woods (Woods) sued Bank of America, N.A. (BOA) to quiet title to real

property on Tulip Street in San Diego, California (the Tulip Property). In 2005, the Tulip

Property was quitclaimed to Jose Ortega, who thereafter obtained a loan from BOA's

predecessor, secured by the property. Ortega defaulted, and the bank foreclosed. At trial,

Woods argued she never intended to transfer the Tulip Property to Ortega and that the
quitclaim deed (2005 Deed) purporting to transfer title was a forgery. BOA moved for

nonsuit. The trial court treated BOA's motion as a motion for judgment under Code of

Civil Procedure1 section 631.8 and granted it.

      On appeal, Woods argues: (1) the trial court erred in converting BOA's nonsuit

motion into a motion for judgment; (2) substantial evidence does not support the court's

finding that Woods's signature on the 2005 Deed was not forged; and (3) the court failed

to consider Woods's contention that she never intended to transfer the Tulip Property to

Ortega. We conclude the trial court did not err in granting BOA's motion pursuant to

section 631.8, and substantial evidence supports its findings and entry of judgment in

BOA's favor.

                  FACTUAL AND PROCEDURAL BACKGROUND

      Woods has lived at the Tulip Property since 1968. Over the years, she and her

husband acquired nine properties around San Diego. When her husband died in 1993,

Woods became the sole owner of those properties. She began borrowing against the

Tulip Property after her husband died. In 2005, Woods owed $124,000 to Ocwen

Financial on a mortgage taken out against the Tulip Property.

      In 2001, Woods sold one of her properties, the Newton Property, to Ortega. She

also sold the Keeler Property to Ortega, in 2002. Although the deed denoted the transfer

as a "gift," Ortega paid Woods $200,000 for the Keeler Property and promised to pay the




1      Further statutory references are to the Code of Civil Procedure, unless otherwise
specified.
                                            2
balance of $127,000 within six months. Ortega did not pay the balance; instead, he

agreed to pay off Woods's mortgage and taxes owing on the Tulip Property.

       On June 3, 2005, the 2005 Deed was filed purporting to "gift" Woods's interest in

the Tulip Property to Ortega. Woods signed an affidavit of last deed two months later,

confirming she transferred the Tulip Property to Ortega in June 2005. In July 2005,

Woods received a payoff statement from Ocwen Financial, indicating her mortgage on

the Tulip Property had been paid in full.

       In 2007, Ortega and his wife (the Ortegas) borrowed $350,961 from Countrywide

Bank, secured by the Tulip Property. The Ortegas stopped making payments on the loan

in 2008. Fannie Mae purchased the Tulip Property at a trustee's sale in 2010. Woods

claimed she only learned about the 2005 Deed when the sheriff tried to evict her from the

Tulip Property in 2011.

       Woods filed suit against Fannie Mae and the Ortegas. Her amended complaint,

filed in October 2011, asserted eight causes of action: quiet title, declaratory relief, and

injunctive relief against all defendants; fraud and negligent misrepresentation against the

Ortegas; and negligence, Rosenthal Fair Debt Collection Practices Act violations, and

intentional infliction of emotional distress against Fannie Mae. Woods alleged the 2005

Deed was a forgery and that she never intended to "gift" the Tulip Property to Ortega.

       In 2012, the court sustained Fannie Mae's demurrer as to all causes of action

except for the cause of action for quiet title. BOA acquired the Tulip Property from

Fannie Mae and substituted as the defendant in Woods's lawsuit. The Ortegas defaulted.



                                              3
       In April 2014, the court held a two-day bench trial on the single remaining cause

of action against BOA for quiet title. The court heard testimony from Woods, her son,

her daughter, her daughter-in-law Raquel (the notary public for the 2005 Deed), and

BOA's corporate representative.2 At the close of Woods's case-in-chief, BOA moved for

nonsuit. The trial court heard argument from both sides. After a short recess, the court

announced it would construe BOA's motion as a motion for judgment pursuant to section

631.8 and granted the motion.

       The court issued a statement of decision in June 2014. The court found Woods's

testimony that she did not sign the 2005 deed or intend to "gift" the Tulip Property to

Ortega not credible. By contrast, the court found Raquel's testimony that Woods signed

the 2005 Deed in her presence to be credible. The court determined that Woods had no

right, title, or interest in the Tulip Property, and, therefore, BOA was entitled to

judgment. In March 2015, the court entered judgment in BOA's favor and entered a

default judgment against the Ortegas in the amount of $449,866.54.

       Woods timely appealed.

                                       DISCUSSION

       Woods argues the trial court committed reversible error by converting BOA's

nonsuit motion into a motion for judgment. Woods also challenges the trial court's

finding that the 2005 Deed was not forged and claims the court erred by failing to

consider whether Woods intended to transfer her interest in the Tulip Property to Ortega.


2      To avoid repetition, we discuss the evidence in the discussion section.

                                              4
As we explain, the court did not err in construing BOA's motion as a motion for

judgment; substantial evidence supports the court's finding that the 2005 Deed was not

forged; and the court properly considered, and rejected, Woods's alternative argument

that she did not knowingly gift the property to Ortega.

                                              I.

 THE COURT PROPERLY CONSTRUED BOA'S MOTION UNDER SECTION 631.8

       A party may move for judgment in its favor under section 631.8 after the opposing

party has completed the presentation of its evidence. (§ 631.8, subd. (a).) The trial court,

sitting as trier of fact, may weigh the evidence and order judgment in favor of the moving

party. (Ibid.) The purpose of the statute is to dispense with the need for the defendant to

produce evidence where the court is persuaded that the plaintiff has not sustained its

burden of proof. (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th

1242, 1262 (Combs).) The trial court weighs credibility of witnesses and evidence; the

court may choose to believe some witnesses and not others. (Ibid.)

       "In a nonjury trial, such as the one held in this case, a motion for nonsuit is no

longer recognized; the correct motion is a motion for judgment under . . . section 631.8."

(Combs, supra, 159 Cal.App.4th at p. 1262.) Both motions serve the same purpose: to

dispense with the need for the defendant to produce evidence where a plaintiff has failed

to sustain his or her burden of proof. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 314

fn. 23.) Whereas section 631.8 (motion for judgment) permits a trial court to weigh the

evidence presented, section 581c (motion for nonsuit) does not. (Ritschel v. City of

Fountain Valley (2006) 137 Cal.App.4th 107, 115; Lingenfelter v. County of Fresno
                                              5
(2007) 154 Cal.App.4th 198, 204.) Nevertheless, to prevail on a nonsuit motion, a

plaintiff must still demonstrate substantial evidence in the record in support of her claim;

mere conjecture or nonsensical interpretations of evidence do not suffice. (Ibid.; 7

Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 410.)

       BOA moved for nonsuit following Woods's presentation of evidence. The court

construed the motion as a motion for judgment. Woods argues this was error because the

court did not afford Woods an opportunity to reopen her case, as provided for under

section 631.8. We disagree.

       First, Woods forfeited her challenge by failing to object below. (In re Marriage of

Arceneaux (1990) 51 Cal.3d 1130, 1138 ["it is clearly unproductive to deprive a trial

court of the opportunity to correct such a purported defect by allowing a litigant to raise

the claimed error for the first time on appeal"].) Woods did not object when the court

stated it would construe BOA's motion as a motion for judgment. Nor did she request to

reopen her case or object when the court commented that Woods had not sought to

reopen her case.

       Second, BOA's defect in filing a nonsuit motion was one of form, not substance.

(Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 784 fn. 7, disapproved on

other grounds in Wilson & Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.) Just

as appellate courts routinely construe orders granting nonsuit motions as orders granting

motions for judgment (Commonwealth Memorial, Inc. v. Telophase Society of America

(1976) 63 Cal.App.3d 867, 869 fn. 1; Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 314



                                              6
fn. 23), there was no error in the trial court's decision to construe BOA's motion as a

motion for judgment under section 631.8.

       Third, Woods fails to show prejudice from not reopening her case. (See National

Farm Workers Service Center, Inc. v. M. Caratan, Inc. (1983) 146 Cal.App.3d 796, 807-

808 [any error under section 631.8 not prejudicial].) Woods did not have an absolute

right to reopen her case under section 631.8. (People v. Mobil Oil Co. (1983) 143

Cal.App.3d 261, 272.) Instead, she could have offered additional evidence solely for

purposes of rebuttal or rehabilitation. (§ 631.8, subd. (a).) Neither below nor on appeal

does Woods point to any such evidence she could have proffered. Woods argues on

appeal that BOA's witness, A. Frank Hicks, testified at deposition he could not rule out

the possibility that Woods's signature on the 2005 Deed was traced. However, Hicks's

testimony would have had little probative value as rebuttal evidence, given that the trial

court found credible Raquel's testimony that she "saw [Woods] sign" the 2005 Deed in

her presence.

       Thus, the court did not err in considering BOA's motion as a motion for judgment

under section 631.8.

                                             II.

  SUSBTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT'S FINDING THAT
                 THE 2005 DEED WAS NOT FORGED

       We review the court's order under section 631.8 for substantial evidence. (Fink v.

Shemtov (2012) 210 Cal.App.4th 599, 608.) "We will not reverse the trial court's order

granting the motion if its findings are supported by substantial evidence, even if other


                                             7
evidence in the record conflicts." (Combs, supra, 159 Cal.App.4th at p. 1263.) We view

the record in the light most favorable to the judgment and make all reasonable inferences

in favor of the prevailing party. (Ibid.)

       Woods challenges the court's finding that the 2005 Deed was not forged. We

conclude substantial evidence supports that finding.

       Woods testified at one point she signed the "S" of her middle initial "like a worm"

and not in cursive, like the "S" on the 2005 Deed. However, on cross examination, she

conceded she signed her bankruptcy papers with a cursive "S," and she later admitted the

signature on the 2005 Deed could be hers. At deposition, she identified the signature on

the Newton Property deed as hers; at trial, she testified her signature was "never like

that." When asked to identify another signature, Woods responded, "I got too many

signatures that I don't even know." In light of these multiple inconsistencies, the trial

court found Woods's testimony "so contradictory that it was simply not credible."

       By contrast, the trial court credited Raquel's testimony. Raquel testified

unequivocally at trial that she saw Woods sign the 2005 Deed in front of her. Raquel

identified her signature and notary seal on the 2005 Deed and denied having given her

stamp or notary journal to any other person. When asked if she had any doubt Woods

was the person sitting in front of her signing the 2005 Deed, Raquel replied she had "no

doubt" and "kn[e]w who she was."

       Credibility determinations lie within the province of the trial court; our inquiry

begins and ends with whether there is any substantial evidence, contradicted or

uncontradicted, to support the trial court's findings. (Estate of Teel (1944) 25 Cal.2d 520,
                                              8
526; In re I.J. (2013) 56 Cal.4th 766, 773.) Raquel's testimony, which the court found

credible, constitutes substantial evidence supporting the court's finding that Woods's

signature on the 2005 Deed was not forged. (In re Marriage of Mix (1975) 14 Cal.3d

604, 614 [testimony of a single witness may suffice].)

       Woods attempts to challenge Raquel's trial testimony by cherry-picking from the

record. Woods points to Raquel's deposition testimony that she: did not believe the

notary page for the 2005 Deed was taken from her notary journal; never notarized a

document for Ortega; could not recall where the notarization of the 2005 Deed took

place; and believed her husband (and Woods's son), Tyrone Woods, was present during

notarization, whereas Tyrone testified he was not present. Woods also points to Raquel's

trial testimony that she could not recall what she notarized in 2005. Woods's citations are

unavailing. "The issue is not whether there is evidence in the record to support a

different finding, but whether there is some evidence that, if believed, would support the

findings of the trier of fact." (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th

156, 170-171.) Raquel's unequivocal testimony at trial that she witnessed Woods, her

future mother-in-law, sign the 2005 Deed in front of her meets that standard.3

       We reject Woods's argument that the trial court improperly allowed BOA to use

leading questions to examine Raquel. Woods's counsel objected to only one question

towards the end of BOA's questioning on grounds it was leading, and her counsel did not


3      Woods's selective citations ignore Raquel's trial testimony that upon closer
inspection, she did believe the record of the 2005 Deed was copied from her notary
journal, and she specifically remembered notarizing the 2005 Deed for Woods.

                                             9
object to any of the questions prompting Raquel's testimony that she saw Woods sign the

2005 Deed. By failing to object before the trial court, Woods forfeited the argument on

appeal. (Evid. Code, § 353, subd. (a); see Dowd v. Dowd (1952) 111 Cal.App.2d 760,

762 [absent objection that testimony was obtained through leading questions, "the

evidence became and is competent"].)

       We also reject Woods's argument that the trial court should have disregarded

Raquel's testimony because in notarizing the 2005 Deed, she did not obtain Woods's

thumbprint. Woods is correct that Raquel was required to record Woods's thumbprint in

her notary journal. (Gov. Code, § 8206, subd. (a)(2)(G).)4 The absence of a thumbprint

in Raquel's journal provided some circumstantial support for Woods's claim that the 2005

Deed was forged. (See Williams v. Kidd (1915) 170 Cal. 631, 648-649 [notary's failure to

record deed in his journal, as required by statute then in effect, could be considered in

evaluating whether deed had been effectively delivered].) The trial court's refusal to

consider the lack of a thumbprint in Raquel's notary journal was error.5 However, we



4       The thumbprint requirement was instituted to stem the "growing problem of
falsified loan documents" and forgeries; the Assembly Judiciary Committee expressed
concern that real estate documents were being "recorded with forged signatures and false
notarizations without the property owner's knowledge or consent." (Assem. Com. on
Judiciary, Rep. on Assem. Bill No. 1828 (1995-1996 Reg. Sess.) May 3, 1995, p. 1.) The
Legislature created an anti-fraud pilot program in 1992 requiring a thumbprint for
quitclaim deeds affecting real property in Los Angeles County. (Ibid.; Stats. 1992, ch.
815, § 2.) The Legislature extended the thumbprint requirement statewide in 1995.
(Stats. 1995, ch. 569, § 1.)

5      The trial court concluded a thumbprint was only required as "alternative proof" of
execution in certain cases and that it was not required here because the 2005 Deed was
acknowledged. To the contrary, section 8206, subdivision (a)(2)(G) of the Government
                                             10
conclude the error was harmless: Raquel testified that Woods signed the 2005 Deed in

her presence, and the trial court found that testimony credible.

       Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785 is instructive.

The plaintiffs in that case sued a notary public for negligence, alleging they did not sign a

document cancelling their commercial lease. Although their signatures appeared on the

notarized document, they pointed to the notary's failure to record the cancellation in her

sequential journal. (Id. at pp. 811-812.) The court rejected the plaintiffs' theory. While

noting that the notary's failure to maintain a record in her sequential journal violated her

statutory obligations, the court held that substantial evidence supported the trial court's

finding that the plaintiffs signed the document in question. The court pointed to the

notary's testimony, which the trial court found credible, that she knew the plaintiffs

personally and saw them sign the document in front of her. (Ibid.) Likewise, here, the

trial court was entitled to credit Raquel's testimony that she saw Woods sign the 2005

Deed in her presence, irrespective of her failure to obtain a thumbprint from Woods for

her notary journal.

       Contrary to Woods's argument, Raquel's failure to comply with her statutory

obligations did not render her incompetent to testify as to matters within her personal

knowledge. "Except otherwise provided by statute, every person, irrespective of age, is

qualified to be a witness and no person is disqualified to testify to any matter." (Evid.

Code, § 700, italics added.) Nothing in section 8206 of the Government Code suggests

Code, which was effective at the time of execution of the 2005 Deed, requires a notary
public's sequential journal to contain a thumbprint of the person whose signature on the
quitclaim deed was notarized, regardless of whether the deed was acknowledged.
                                             11
Raquel was rendered incompetent to testify by her failure to obtain Woods's thumbprint.6

Likewise, nothing in the record suggests that Raquel did not understand her duty to tell

the truth or lacked the capacity to communicate. (Evid. Code, § 701, subd. (a).)

       In short, substantial evidence supports the trial court's finding that the 2005 Deed

was not forged.

                                             III.

 THE COURT PROPERLY CONSIDERED, AND REJECTED, WOODS'S THEORY
    SHE DID NOT INTEND TO GIFT THE TULIP PROPERTY TO ORTEGA

       Woods argues the trial court committed reversible error by failing to consider her

argument that, even if she signed the 2005 Deed, she did not intend to transfer the Tulip

Property to Ortega. The contention lacks merit. The court's statement of decision

explicitly considered that theory, devoting an entire section to assess its merits and

finding Woods's evidence lacking in credibility. We conclude substantial evidence

supports the trial court's ruling.

       Woods used the words "give" and "sell" interchangeably. Woods testified she

"gave" the Newton Property to Ortega, when she sold it to him for $32,000. The deed for

the Keeler Property states the transfer was a "gift," but Woods testified Ortega paid her

6       The Secretary of State appoints and commissions notaries public. (Gov. Code,
§ 8200.) A notary's failure to comply with statutory requirements can result in civil
penalties (Gov. Code, § 8214.23) or revocation or suspension of the notary's commission
(Gov. Code, § 8214.1). In addition, the notary may be held liable in a civil action for
damages proximately caused by willful or negligent performance. (Gov. Code, § 8214;
McComber v. Wells (1999) 72 Cal.App.4th 512, 519-520; see Evid. Code, § 669, subd.
(a) [statutory violations create a presumption of negligence per se].) Woods does not cite
any statutory or case authority, and our independent research reveals none, indicating that
a notary's failure to comply with statutory requirements renders the notary incompetent to
testify as a witness.
                                             12
$200,000 and owed her an additional $127,000. Woods owned nine commercial and

residential properties and had repeat transactions with Ortega. She knew Ortega had

borrowed against the Tulip Property to pay her mortgage, outstanding taxes, and

insurance, and she conceded having received a payoff notice indicating her mortgage had

been paid. She recalled receiving water bills a "long time ago" addressed to the Ortegas;

at the time, she was told she could not transfer the bill to her name unless she could show

the Tulip Property belonged to her. In August 2005, Woods signed an affidavit

confirming she executed the 2005 Deed and delivered it to Ortega. In light of this

evidence, the trial court determined Woods's testimony she never intended to "gift" the

property to Ortega lacked credibility.

       After BOA moved for nonsuit, the court asked Woods's counsel, "what evidence

would support an inference or indication that when [Woods] signed the document, she

believed it was something else?" Woods's counsel pointed to no evidence to support that

theory and instead repeated that Woods's theory was that her signature on the 2005 Deed

was forged. When Woods was asked on cross-examination whether she signed the 2005

Deed not knowing what it was, she responded that she would never have signed the deed.

The only evidence Woods presented to support her theory that she did not knowingly

transfer the Tulip Property to Ortega was her own testimony that she never would have

given the property to him—evidence the trial court found was not credible. We do not

disturb the trial court's credibility determinations on appeal. (Estate of Teel, supra, 25

Cal.2d at p. 526; In re I.J., supra, 56 Cal.4th at p. 773.)



                                              13
       Woods argues she never received consideration to transfer the Tulip Property to

Ortega. She contends her use of the word "gift" to describe the sale of the Keeler

Property did not impact her testimony regarding the Tulip Property. We disagree. First,

Woods testified that Ortega agreed to pay off her mortgage, insurance, and outstanding

taxes on the Tulip Property, suggesting there was consideration for the transfer. Second,

the trial court found Woods's credibility was impacted by her interchangeable use of the

words "gift" and "sale" to describe other property transactions with Ortega. The court

found that because Woods received monies in exchange for other properties "gifted" to

Ortega, her testimony that she never would have gifted the Tulip Property to Ortega

lacked credibility. In other words, the court impliedly found Woods did receive

consideration for the Tulip Property, based on her testimony that she received money for

other properties she claimed to have "gifted" to Ortega and received a payoff of her

mortgage from Ocwen Financial.7

       Woods also points to Ortega's default, arguing his failure to answer resulted in his

admission of allegations against him in the amended complaint. As the trial court

concluded, such admissions would not be binding against Ortega's co-defendant, BOA.

(Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1211 [" ' "It


7      "It is axiomatic it is the appellant's responsibility to provide an adequate record on
appeal." (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins.
Co. (2006) 136 Cal.App.4th 999, 1003 fn. 1.) Because the record on appeal does not
indicate that Woods objected to any omissions or ambiguities in the court's June 2014
statement of decision, we imply all factual findings necessary to support the judgment.
(In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1136; SFPP v. Burlington Northern
& Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.)

                                             14
is an established principle of law that admissions implied from the default of one

defendant ordinarily are not binding upon a codefendant who, by answering,

expressly denies and places in issue the truth of the allegations thus admitted by the

absent party." ' "].)

       In short, the trial court adequately considered, and properly rejected, Woods's

contention she did not knowingly transfer the Tulip Property to Ortega. Woods did not

provide credible evidence to support that theory.




                                      DISPOSITION

       The judgment is affirmed. In the interest of justice, each side shall bear its own

costs on appeal.




                                             15
                             IRION, J.

WE CONCUR:


HUFFMAN, Acting P. J.


AARON, J.




                        16
