Filed 3/30/15 Financial Assistance, Inc. v. Ajib 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

FINANCIAL ASSISTANCE, INC.,

Plaintiff and Respondent,

v.

WAJIH AJIB,

Defendant and Appellant.

F068715

(Super. Ct. No. 10CECG03997)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce 

Smith, Judge.

Wajih Ajib, in propria persona, for Defendant and Appellant.

Raymond A. Patenaude, Stephanie Boone and Jeffrey W. Speights for Plaintiff 

and Respondent.

-ooOooDefendant Wajih Ajib (Ajib) appeals in propria persona from a judgment of 

$49,927.40, entered in favor of Plaintiff Financial Assistance, Inc. (Financial Assistance) 

following a half-day court trial on Financial Assistance’s claims for breach of contract, 

breach of guaranty and account stated. Ajib contends the trial court erred in ruling in 

Financial Assistance’s favor because there is no enforceable contract as (1) essential 
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terms are missing, (2) the contract is illegible, (3) the trial court erroneously relied on a 

blank specimen to supply the terms contained in the illegible contract, and (4) he did not 

sign the personal guarantee. He also contends he should have been allowed to raise 

violations of the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq.) 

as an affirmative defense.

In preparing the record on appeal, Ajib elected to proceed without a reporter’s 

transcript and designated only a partial clerk’s transcript. As Ajib’s showing on appeal is 

insufficient, we affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

We take our recitation from the trial court’s written decision.

In June 2010, Ajib filed a small claims action alleging a violation of the FDCPA, 

in which he claimed to be due $1,000 for Financial Assistance’s actions in trying to 

collect the debt alleged against him in this action. On November 15, 2010, Financial 

Assistance filed its complaint against Nshan Enterprise, Inc. and Ajib, alleging causes of 

action for breach of the written agreement, breach of guaranty and account stated. In 

March 2011, Financial Assistance filed a first amended complaint that contained the 

same or similar allegations and Ajib filed his answer. On September 10, 2013, Ajib 

dismissed his small claims action without prejudice. Trial commenced on Financial 

Assistance’s action on September 23, 2013. 

According to the trial court, the evidence produced at trial showed the following:

Around March 28, 2007, a Business Direct Application either was prepared online, 

or retrieved online and delivered to a representative of Wells Fargo Bank (Wells Fargo). 

The application was made in the name of Nshan Enterprise, Inc., with a business location 

of 1385 Shaw Ave. #104 in Carlsbad and owner, Wajih Ajib, who resided at 760 W. 

Sierra in Clovis, California. 

At trial, Ajib could neither confirm nor deny that he was the individual who 

prepared and delivered the application to Wells Fargo, but he admitted he had been 
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looking at obtaining a line of credit at the time, which he may or may not have done 

through Wells Fargo. On the application, he is identified as the 100% owner of the 

business. Other than the Carlsbad reference and name misspelling on page four of the

application, Ajib confirmed the rest of the information was correct. 

A blank specimen copy of the Wells Fargo Business Banking Loan Application 

was received into evidence, which was identical to the completed application that was to 

a large extent, illegible. Based on the testimony of John Williams, which the trial court 

found credible, the trial court was satisfied the “Agreement and Personal Guarantee 

language” contained on the specimen copy was the same as the illegible portion of the 

completed application. 

Williams testified as to Wells Fargo’s custom and practice in lending on lines of 

credit, and as the company’s custodian of records. According to Williams, no line of 

credit or loan would be made to any business entity without a “personal guarantee” from 

someone so there would be a means for collection in the event of a default. It was clear 

to Williams that an initial loan application was submitted and rejected twice before 

subsequently being overridden and a $50,000 line of credit authorized, which suggested 

there was some personal contact between the bank and an individual identifying himself 

as Wajih Ajib. 

Between April 3 and April 27, 2007, the account was funded in the amount of 

$50,000. According to Williams, once funded and drawn on, there was a mutual 

agreement reached between Wells Fargo and their customer as to how the money would 

be paid back and under what specific terms. By July 30, 2007, the line of credit had been 

drawn down to zero, and by May 1, 2008, there was a principal owed of $49,482.40 and 

interest of $2,780.26. 

The trial court found the evidence clear that someone purporting to be Wajih Ajib 

solicited Wells Fargo for a line of credit, and signed an “Agreement and Personal 

Guarantee.” Under the personal guarantee, the signor jointly and severally 
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unconditionally guaranteed and promised to pay the Bank for all indebtedness of the 

applicant in his individual capacity, and agreed to be bound by the terms of the customer 

agreement and other written documentation “that will be sent” to the applicant. 

The trial court rejected Ajib’s contentions that the documents showed only an 

application for a loan or line of credit, and therefore did not comprise a contract, because 

the personal guarantee constitutes an agreement with further terms to be spelled out once 

the applicant draws money from the line of credit. While the font was extremely small 

and difficult to read without significant magnification, the trial court was convinced as to 

its content. The trial court further found, by a preponderance of the evidence, that Ajib 

was the person who signed the personal guarantee and was provided the money. 

The trial court explained Financial Assistance’s claims: (1) that Wells Fargo 

entered into a contract to provide a line of credit to Nshan Enterprise and/or Ajib, which 

contract Nshan Enterprise and/or Ajib breached by drawing $49,482.40 from the line of 

credit and not repaying the indebtedness to Wells Fargo; (2) Ajib guaranteed the debt and 

had not reimbursed Wells Fargo for it; and (3) Financial Assistance is entitled to money 

due on the account of Nshan Enterprise and Ajib. The trial court found in Financial 

Assistance’s favor on all three claims in the amount of $49,482.40 on the principal owing 

and awarded pre- and post-judgment interest at the legal rate from May 30, 2008. 

Because neither the interest rate on the line of credit nor the agreement entitling Wells 

Fargo thereto, was offered into evidence, the trial court found such interest not 

collectible. 

DISCUSSION

Ajib argues the personal guarantee is unenforceable because it lacks essential 

terms, such as the terms of repayment, and is illegible. He further argues there was no 

evidence he signed the personal guarantee, and the trial court abused its discretion in 

determining the illegible guarantee was identical to the legible blank sample. Finally, he 
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contends the trial court erred in denying him the right to raise the FDCPA as an 

affirmative defense, set-off or cross-complaint. 

The fatal problem with this appeal is that Ajib fails to provide us with a reporter’s 

transcript of the court trial or any other adequate statement of the evidence. The record 

consists of a partial clerk’s transcript which includes the following documents: (1) Ajib’s 

trial brief; (2) Ajib’s motion in limine to preclude Financial Assistance from offering any 

evidence related to illegible documents; (3) Financial Assistance’s motions in limine to 

preclude Ajib from offering any evidence regarding FDCPA violations, proceeding by 

jury trial, or settlement negotiations; (4) Financial Assistance’s trial brief; (5) the minutes 

of the trial; (6) Financial Assistance’s trial exhibits one through four; (7) the trial court’s 

written decision; and (8) the judgment. After the clerk’s transcript was filed, we granted 

Ajib’s request to augment the record with Ajib’s “trial exhibits” one through five, which 

according to the minutes were not entered into evidence, and Ajib’s answer to the first 

amended complaint. 

Without the reporter’s transcript, we have no record of the trial court’s rulings on 

the motions in limine or of the trial testimony. Accordingly, there is no evidence before 

us from which we can analyze Ajib’s claims of error. While we have the trial exhibits, it 

has long been settled that, when no reporter’s transcript is provided, the appellate court 

may not consider exhibits filed as part of a clerk’s transcript and the exhibits cannot be 

used to establish error; the appeal is treated as a judgment roll appeal. (See, e.g. Williams 

v. Inglewood Board of Realtors (1963) 219 Cal.App.2d 479, 481.)

On a judgment roll appeal, “‘[t]he question of the sufficiency of the evidence to 

support the findings is not open.’” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.) 

Instead, we presume the trial court’s findings are supported by substantial evidence, and 

we can only consider whether the judgment is supported by the findings or whether 

reversible error appears on the face of the record. (Nielsen v. Gibson (2009) 178 

Cal.App.4th 318, 324-325 [where an appellant fails to provide a reporter’s transcript of a 
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trial preceding a judgment, we presume that the evidence is sufficient to sustain the trial 

court’s findings and our review is limited to determining whether any error appears on 

the face of the record]; Fitch v. Pacific. Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 

142, fn. 1 [“This appeal is based upon only the clerk’s transcript and, as such, is 

considered to be upon the judgment roll alone. [Citation.] Hence the trial court’s 

findings of fact and conclusions of law are presumed to be supported by substantial 

evidence and are binding upon us, unless the judgment is not supported by the findings or 

reversible error appears on the face of the record.”]; Ruzich v. Boro (1943) 58 Cal.App.2d 

541, 543; see also California Rule of Court, rule 8.163 [“The reviewing court will 

presume that the record in an appeal includes all matters material to deciding the issues 

raised. If the appeal proceeds without a reporter’s transcript, this presumption applies 

only if the claimed error appears on the face of the record.”].) On a judgment roll appeal, 

we presume that the judgment is correct and is supported by the evidence. (9 Witkin, 

Cal. Procedure (4th ed. 1997) Appeal, § 353, pp. 401-402.)

Notwithstanding these well-established standards, Ajib seeks to establish reversal 

is justified based on exhibits admitted at trial. Pursuant to the applicable standard of 

review, however, we are unable to rely on the exhibits in any manner. (See Tibbets v. 

Robb (1958) 158 Cal.App.2d 330, 336-337 (Tibbets).) Accordingly, as to each of Ajib’s 

arguments on appeal, the initial question is whether the claimed error appears on the face 

of the record. (Tibbets, supra, 158 Cal.App.2d at p. 337.)

We acknowledge that Ajib is representing himself on appeal. While under the law 

one may act as his own attorney, when a litigant does so, he is held to the same restrictive 

rules of procedure and evidence as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 

623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-

161.) Nevertheless, we conclude that as to all of Ajib’s appellate arguments, no error 

appears on the face of the record and the proceedings in the trial court are presumed to 

support the trial court’s ruling. 
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DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

_____________________

Gomes, J.

WE CONCUR

_____________________

Hill, P.J.

_____________________

Franson, J.