Filed 12/14/23 Valadez v. Valadez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RICARDO VALADEZ,
Plaintiff and Respondent,

v.
ISMAEL RAMIREZ VALAD EZ,
Defendant and Appellant. D083002

(Super. Ct. No. CIVDS1919338)

APPEAL from a judgment of the Superior Court of San Bernadino County, Michael A. Sachs, Judge. Affirmed. Law Office of Zulu Ali & Associates and Zulu Abdullah Ali, for Defen dant and Appellant. Arias & Lockwoo d , Christopher Lockwood and Ricks & Associates, Kenneth Ricks, for Plaintiff and Respondent. In March of 201 8 , Ricardo Valadez ( Ricardo ) and his cousin Ismael Ramirez Valadez ( Ismael ) entered into an oral contract to purc hase a

restaurant. 1 In April of 201 8 , Ricardo paid Ismael $45,000 toward the total

1 For clarity and ease of reference , we use appellant and respondent’s first names . We intend no disrespect.2

purchase price of $90,000 and claims that, s oon thereafter, Ismael stopped communicating with him . Ricard o filed a complaint in June of 2019 alleging
that Ismael failed to purchase the restaurant as they had agreed and instead used the $45,000 for his own benefit

. T he trial cou rt entered judgment in Ricardo’s favor on his breach of contract cause of action and common count claim in the alternative for $45,000 plus interes t and costs

. On appeal, Ismael cont ends the judgment is not supported by substantial evidence . We reject t his contention and affirm
the trial court’s judgment

. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A two

- day bench tri al began on October 3 1 , 2022. Ricardo, Ismael, and Ismael’s son testified

. Ricardo testified that , in March of 2018, h is first cousin Ismael reached
out to him a nd proposed they jointly purchas e La Mexicana restaurant
located in Jarupa Valley, California. They agreed to purchase t he restaurant

as 50

- 50 owners, each pay ing $45,000 toward the $90,000 purchase price

. Ismael was to purchase the restaurant in early April of 2018 , and Ricardo
would then move with his family from Illinois to Ismael’s home in Chino Hills, California and h elp run the restaurant

. Ricardo sent Ismael $45,000 via two wire transfers, the first in late
March in the amount of $29,000 and the second in the first week of April in the amount of $16,000

. Rather tha n contributing his $45,000 and immediately purchas ing the rest aurant, Ismael told Ricardo that he only put down a $20,000 deposit

. According to Ricardo, Ismael never told him that he purchased a restaurant, nor did he provide him with any documentation
relative to the restaurant.3

A fter Ricardo asked Ism ael for a receipt documenting the $20,000 deposit , Ismael stopped all communicati on with him

. Ricardo left multiple voicemail messages and text messages via various applications , and even contacted local law enforcement, but received no response. Ricardo also tried calling Ismael from a different phone number, but when Ismael answered, he claimed he couldn’t hear Ricardo , laughed and hung up.
Ismael , on the other hand, testified that in July 2018, he paid someone named “Mario” $90,000 in cash to purch ase a restaurant called La Hacienda

. He claimed he used Ricardo’s $45,000 and $45,000 of his own money to purchase it, renamed it Mariscos El Patron, and operated it as a sole proprietorship

. Ismael had no receipt for the $90,000 purchase price , no
cont ract for the sale , and no financial documents concerning the restaurant. The only documents submitted by Ismael at trial were a gas bill in his name dated May 9, 2022 (well

- after the restaurant had closed) and a health inspection re port for the Mariscos E l Patron restaurant dated November 6,
2018 that only listed Ismael as the owner. Ismael testified he operated the restaurant for approximately seven months but never realized any profits

. He asked Ricardo for an unspecified amount of money to help oper ate the restaurant but received nothing. After
he ran out of funds, Ismael closed the restaurant but did not attempt to sell
the business or any of the appliances or furniture. Ismael Ramirez, Jr. (Ismael’s son) testified that he was present when
his father paid the former owner “Mario” $90,000 in cash in exchange for the keys to the restaurant and witness ed his father sign the lease later that same day

. He had never met Ricardo and did not know the origin of the $90,000.
He w orked in the restaurant along with his sister and another part

- time employee for approximately seven or eight months before it closed.4

At the conclusion of the bench trial, the court took the matter under
submissio n

. In a detailed Statement of Decision filed on December 8, 2 022 , the trial court relied upon the trial testimony and specific ally enumerated
exhibits 2 and entered judgment in favor of Ricardo on his breach of contract and common count causes of action in the amount of $45,000 plus interest
and costs. 3 Ismael time ly appeal ed

. We note that Ismael filed a non
- complying opening brief , failed to
include the trial court minutes in the record on appeal, and failed to submit
all trial exhibits despite repeated requests by the clerk pursuant to California Rules of Court, r ule 8.224(d)

. Ismael specifically omitted Exhibit 50 (the San Bernadino County Public Health Department’s Official Inspection Report), claiming it “does not exist.” 4

2 The trial court relied upon Exhibits 1 (d eposition transcript of Ismael Ramirez Valadez ), 3 ( San Bernardino Recorder fictitious business name search ), 13 ( Defendant’ s Responses to Form Interrogatories Set One ), 14 ( Defendant’s Amended Responses to Form Interrogatories Set One ), 18 ( Defendant’s Bank of America records ), and 50 ( the San Bernadino County Public Health Department’s Official Inspection Report ).

3 The tri al court found the evidence insufficient to support a fraud cause of action, noting that Ricardo did not establish wrongful intent at the time Ismael made the representations or promise to perform

.
4 Ismael’s failure to submit Exhibit 50 is mitigated by the trial court ’s detailed description of the document during trial : “ This is a document that came from the San Bernardino County Public Health Department. It ’ s entitled California Code Official Inspection Report. And it gives the address of public heal th, which is at 365 North Arrowhead, San Bernardino, California along with phone numbers and e

- mail address. Document is signed by Ismael Rodriguez and identified Mr. Rodriguez as the owner. ”5

As we discuss below, despite these procedural deficiencies, the trial court’s judgment is supported by su b stantial evidence and will not be disturbed on appeal. DISCUSSION
A. Standard of review

We begin with the “fundamental principle of appellate procedure that a trial court judgment is ordinarily p resumed to be correct and the burden is on

an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ” ( Jameson v. Desta (2018) 5 Cal.5 th 594, 608

- 609 .) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
When reviewing a judgment based upon a statement of decision followi ng a bench trial, w e apply the deferential substantial evidence standard of review to the trial court’s factual findings. ( Niko v.
Foreman (2006) 144 Cal.App.4th 344, 364 ). Under this deferential standard of review, findings of fact are liberally constru ed to support the judgment , and we consider the evidence in the light most favorable to Ricardo as the prevailing party, drawing all reasonable inferences in support of the trial court’s findings. ( See Citizens Business Bank v. Gevorgian (2013) 218 Cal.Ap p.4th 602, 613

. ) W e must infer that the trial court “ impliedly made every factual finding necessary to support its decision” ( Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4 th 42, 48 ), and we resolve all explicit conflicts in the evidence in favor of Ricardo ( s ee Kuhn v. Department of General Services (1994) 22 Cal.App. 4th 1627, 1632

- 1633)

. We do not reweigh
the evidence , reassess witness credibility, or make new findings. (See6

Reynaud v. Technicolor Creative Services USA, Inc. (2020) 46 Cal .App.5th 1007, 1015 .)
Ismael claims the trial court’s judgment is not supported by substantial
evidence , and yet he fails to “ set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable ” as required

. ( Doe v. Roman Cath olic Archbishop of Cashel & Emly (2009) 177 Cal.App.4 th 209, 218, italics added. ) Instead, Ismael ’s non
- complying opening brief (see Cal. Rules of Court, rule 8.204(a)(2)(C)) includes a truncated statement of facts and decidedly one

- sided arguments that i gnore the evidence favorable to respondent and the trial court’s judgment. Ordinarily, Ismael’s failure to provide a complete record coupled with
his election to present only the evidence favorable to his position rather than
all the relevant material ev idence would result in a waiver. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [appellant is “ ‘ required to set forth in their brief all the material evidence on the point and not merely their
own evidence . Unless this is done the error is deemed to be w aived.’ [Citations.]” O riginal italics. ]. ) Although we would be justified in concluding that Ismael forfeited his ability to challenge the sufficiency of the evidence in light of the significant shortcomings in his brief (see Foreman v. Cla rk Corp.
v. Fallon , supra, 3 Cal.3d at p. 875; see also Hauselt v. County of Butte (2009) 172 Cal.App.4 th 550, 563 [“plaintiff has forfeited [the substantial evidence] argument because he has cited only the evidence favorable to him”]), we reject Ismael’s challenge on the merits as the record contains ample evidence
to support the judgment.
B

. The judgment is supported by substantial evidence The trial court’s Statement of Decision clearly sets forth the trial court’s factual findings and conclusion that R icardo had proven all requisite7

elements of his breach of contract cause of action as well as the common count claim in the alternative for money had and received. (See CACI 303 [breach of contract], 370 [common count: money had and received].) Ismael
do es not dispute that the parties entered into an oral contract for the purchase of a restaurant as 50

- 50 owners or that Ricardo paid him $45,000 toward the $90,000 purchase price. He argues that Ricardo failed to prove that he “did all or substantially all , of the significant things that the contract required” and also failed to prove that Ismael “ failed to do something that the contract required.” (See CACI 303 .) Re iterating on his self

- serving testimony and arguments raised in the trial court, Ismael as serts that he substantially performed his obligations under the contract by purchasing a restaurant and
claims he was forced to close the restaurant because of Ricardo’s failure to fund the day

- to

- day operational costs.
The trial court rejected Ismael’s testimony and arguments

. Its finding
that Ricardo had fully performed his obligation under the contract by wiring $45,000 to Ismael for the purchase of the restaurant is supported by Ricardo’s testimony that Ismael stopped all communicati ons with him soon after receiving his funds

. (See Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004) 124 Cal.App.4 th 1390, 1407; Citizens Business Bank v. Gevorgian , supra , 218 Cal.App.4th at p. 613 [the testimony of one witness
constitutes substan tial evidence].) T he trial court was free to reject Ismael’s testimony that Ricardo was also obligated to fund the day

- to

- day operations of the restaurant ( s ee G & W Warren’s, Inc. v. Dabney (2017) 11 Cal.App.5 th 565, 581 [fact finder is free to reject th e testimony of a witness, even if that testimony is uncontradicted]) , and w e defer to the trial court ’ s determination of witness credibility

. ( Behm v. Clear View Technologies (2015) 241 Cal.App.4 th 1, 15

. )8

The trial court’s determination that Ismael brea ched the contract by failing to include Ricardo as a 50

- 50 owner of the restaurant he eventually purchased and that th is breach was a substantial factor in causing Ricardo’s
harm are also supported by sufficient evidence. Ricardo testified that he

never r eceived any documentation regarding the restaurant , and Ismael testified that he operated the restaurant as a sole proprietor

. Ismael did not submit any documentation showing that Ricardo had a ny ownership inter est in the restaurant ; the only restaurant d ocument submitted at trial was the San Bernadino County Public Health Department’s Official Inspection Report listing Ismael as the owner

. Ricardo’s claim in the alternative for money had and received is based
on the same facts . I t is undisputed that Ric ardo gave Ismael $45,000.00 for a 50% ownership interest in a restaurant to be purchased by Ismael and that Ismael never returned the funds to Ricardo. The trial court’s finding that the money had not been used for Ricardo’s benefit is supported by Ricard o ’s
testi mony that Ismael stopped communicating with him and never provided
him with an ownership interest in a restaurant

. (See CACI 370.) We conclude the trial court’s findings are sufficiently supported by the testimony and evidence presented at trial.9 DISPOSITION The judgment of the trial court is affirmed. R espondent is entitled to

recover his costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1).)

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

O'ROURKE, J.