Abrams v. Bendat

Plaintiff sued defendant to establish a trust in real property and for money had and received. Defendant counterclaimed seeking money judgments against plaintiff. The matter was heard by the court sitting without a jury. From the judgment rendered in plaintiff’s favor for $3,550.01 and declaring her to be the owner of certain real property, defendant appeals.

Mindful of the rule that in reviewing the evidence, this court must resolve all factual conflicts in favor of respondent, and all reasonable inferences must be indulged to sustain the judgment (Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777 [ 163 P.2d 756 ]) we briefly recount the evidence relating to three real property transactions.

In February, 1952, plaintiff owned a duplex, referred to herein as the Elevado, worth approximately $18,500, subject to two deeds of trust totaling $12,000; and a vacant lot, referred to as Wonderview, valued at about $9,000, subject to a $2,600 deed of trust. She orally agreed with defendant, a

Pursuant thereto, plaintiff conveyed to defendant both properties. He paid $2,730 to the holder of the deed of trust on Wonderview and $1,000 to plaintiff as part payment of the $5,000 agreed upon for the Elevado.

On January 6, 1953, plaintiff bought a third property referred to herein as Broadleaf, for $12,600, making a $3,515.03 cash down payment which was advanced by defendant from the $5,000 due her on the Elevado. The balance was represented by a promissory note secured by a deed of trust in favor of Northwestern Mutual Life Insurance Company, paya.ble in monthly installments. Plaintiff moved in and has since continuously occupied Broadleaf, making all monthly payments thereon with the exception of $2,011.54, of which $208.04 was paid by defendant in 1955, and $1,803.50 in 1957.

In October, 1952, without the knowledge of plaintiff, defendant sold Wonderview for $8,750, receiving $8,244.08 net. At no time between that date and December 14, 1956, when she filed her complaint herein, did defendant inform her of the sale of Wonderview, or that $8,750 had been received for it. It was not until June or July, 1956, plaintiff first discovered Wonderview had been sold. At no time prior to the filing of the complaint did defendant make any claim to Broadleaf or repudiate his oral agreement with plaintiff.

Defendant’s account of what occurred, which is the only evidence appellant saw fit to recount, was in conflict with plaintiff’s version. Defendant testified that in addition, plaintiff signed a written agreement authorizing defendant to reimburse himself from the proceeds of the Elevado and Wonder-view, for amounts to be advanced by him to plaintiff, on her behalf, and to her father and mother; that he advanced such sums and they were in excess of the proceeds, leaving a balance of $4,699.12 due defendant. Plaintiff testified in effect that she did sign certain documents which defendant represented to her as only carrying out the oral agreement which

Due to appellant’s failure to comply with rule 15(a), Form of Briefs, Rules on Appeal, requiring that “ (B)ach point in a brief shall appear separately under an appropriate heading ’ ’ and should be “concise . . . generally descriptive of the subject matter covered,” his precise points upon which he seeks a reversal are not too clear. However, as far as we can ascertain from “Argument I.” appellant first attempts to attack that portion of the judgment awarding plaintiff $3,550.01, on the ground that the evidence is insufficient to sustain it. His position is not well taken. In the first place, in support of his argument wherein he has set out only evidence favorable to defendant, he has failed to mention plaintiff’s evidence and has neglected to point out wherein it is insufficient to support the judgment or error lies. Following the general rule on appeal, appellant has waived any alleged error based upon the insufficiency of the evidence to sustain this part of the judgment. In Tesseyman v. Fisher, 113 Cal.App.2d 404 , at page 407 [ 248 P.2d 471 ], the court said: “. . . where an appellant claims that some particular issue of fact is not sustained by the evidence, he is required to set forth in his brief all the material evidence on the point and not merely his own evidence. If this is not done, the error assigned is deemed waived.”

In addition, appellant has ignored the well-settled rule that it is not the function of the appellate court to weigh conflicting evidence, in advancing the argument that he should have had judgment against plaintiff. He contends herein that he made certain expenditures on behalf of plaintiff and at her request, under a purported written agreement totaling $19,905.75, leaving $6,155.75 due to defendant from plaintiff—all figures being based solely upon exhibits and testimony of defendant. Obviously, the trial court, faced with a factual conflict, was unwilling to accept this evidence, rejected defendant’s version and found in accord with plaintiff’s testimony, which findings will not be disturbed by this court as long as there is sufficient evidence in the record to sustain them. (Crisci v. Sorci, 115 Cal.App.2d 76 [ 251 P.2d 383 ] ; Monastero v. Los Angeles Transit Co., 131 Cal.App.2d 156 [ 280 P.2d 187 ] ; Buckhantz v. R.

Appellant’s argument following his second contention entitled “The defendant denies that the plaintiff is entitled to the ownership of the Broadleaf property” again amounts to no more than a claim that the trial court should have believed defendant’s version of the transaction. As before, he recounts only defendant’s evidence, completely ignoring the obvious fact that the trial judge rejected defendant’s testimony which is borne out by his statement at the close of the trial after hearing all of the evidence, “It is sufficient for the Court to say the credibility of the defendant is very seriously impaired.” If appellant is here urging that the judgment declaring plaintiff to be the owner of Broadleaf is against the weight of the evidence, having advanced no evidence favoring the judgment, of which there is ample in the record, his contention is subject to the same criticism as his first contention and it would serve no useful purpose to repeat the evidence supporting the portion of the judgment under attack. However, of serious import is plaintiff’s Exhibits 1 and 2, a telegram and a note from defendant to plaintiff, wherein defendant admitted he was not the owner of Broadleaf. In addition the record discloses that all transactions relating to the sale of Broadleaf were with plaintiff, not defendant, and that defendant neither saw the property until after its purchase, nor

Appellant’s third argument that “The Findings of Fact and Conclusions of Law are not in accord with the evidence and exhibits introduced into evidence,” refers briefly to 11 alleged inconsistencies, in the following manner: “(a) Finding III that plaintiff and defendant entered into an oral •agreement, is inconsistent with Defendant’s Exhibit ‘I’ and so on. Appellant’s attack is based solely upon the assertion that various findings are inconsistent with his evidence and his exhibits. Obviously, where there is a conflict in the evidence there is always an inconsistency between the findings and the evidence of the unsuccessful party. Appellant again has failed to point out wherein plaintiff’s evidence is insufficient to support the findings and judgment. It is fundamental that any such contention requires appellant to demonstrate wherein there is no substantial evidence to sustain the challenged findings. “Although appellants assert insufficiency of the evidence in this and several other respects, they have not ‘demonstrated’ that there is no substantial evidence to support the challenged findings as they are required to do in order to sustain that claim of error. (Nichols v. Mitchell, 32 Cal.2d 598 , 600 [ 197 P.2d 550 ] ; New v. New, 148 Cal.App.2d 372 , 383 [ 306 P.2d 987 ].) Appellants’ mere summary .of the evidence given by various witnesses, without argument as to the effect or specific application of the same, does not suffice for this purpose.” (Refinance Corp. v. Northern Lbr. Sales, Inc., 163 Cal.App.2d 73 , at p. 77 [ 329 P.2d 109 ].) Appellant’s sole assertion that certain findings are inconsistent with defendant’s exhibits is not the “demonstration” contemplated under the rule.

However, we comment briefly on alleged “inconsistency” (e) to.the effect that Finding IX has no basis in law; and (f) that Finding X is inconsistent with the statute of limitations. Finding IX declared that a confidential relationship . existed between plaintiff and defendant. Without regard to

Under appellant’s heading “Errors of Law” reference is made by number to various pages of the Reporter’s Transcript, which appellant claims, without any argument or explanation, reflect “errors in the law of evidence.” He fails to inform us even of the subject matter involved. Nine references are set out as follows: “ 1. Page 99, lines 14 to 25; 2. Page 100, line 8, to page 101, line 19”; and so on. This constitutes the entire so-called argument of appellant on his “Errors of Law” point. He has failed to advise us concerning the evidence involved or direct our attention- to the specific ruling he seeks to attack; he has neglected to inform

The judgment is affirmed.

White, P. J., and Fourt, J., concurred.