Filed 8/27/26 Cooke v. Parton CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
PHILIP COOKE,
Plaintiff and Appellant, A174204
v.
ERIC PARTON, (San Francisco County
Super. Ct. No. CGC-21-594052)
Defendants and Respondents.
Usury is addressed in article XV, section 1 of the California
Constitution, which sets permissible interest rates with many exceptions. As
relevant here, that provision states that the interest rate for a loan of money
primarily for personal, family, or household purposes may not exceed
10 percent per annum. (Ibid.) The interest rate for a loan of money not
primarily for personal, family or household purposes may not exceed the
higher of (1) 10 percent per annum or (2) 5 percent per annum plus the
prevailing rate for member banks of the Federal Reserve Bank. (Ibid.)
In the present action, Philip Cooke sought, among other things, to
recover allegedly usurious interest collected by Eric Parton on a $195,000
loan secured by a promissory note. At trial, it was undisputed that the
interest rate on the loan was 18 percent per annum. The trial court entered
judgment1 in favor of Parton.2 The court found that Cooke had not proven
that the 18 percent interest rate paid on the loan exceeded the constitutional
maximum because Cooke did not present evidence of the applicable interest
rate of the Federal Reserve Bank.
On appeal, Cooke contends that he presented evidence of the Federal
Reserve rate of interest by “alleg[ing]” it in his first amended complaint and
trial brief, and that this “contention” was never challenged. He further
argues that he raised this point in an objection to the June 2025 Decision and
that the trial court abused its discretion by failing to rule on his objection
before judgment was entered. Alternatively, he argues that this court should
take judicial notice of the applicable Federal Reserve Bank rate of interest,
which he asserts was 2.5 percent. We find that Cooke’s arguments do not
establish error, and therefore we must affirm the judgment.
BACKGROUND
Cooke executed a promissory note in exchange for a loan in the
principal sum of $150,000 from Parton’s father. The interest rate on the loan
was 10 percent per annum. About three weeks later, Cooke requested
additional funds and executed an updated note in the principal sum of
1 Cooke’s notice sought to appeal from a statement of decision
(Decision) entered in June 2025. Following entry of judgment in
October 2025, Cooke filed a second appeal. On Cooke’s motion, we construed
the present appeal to be taken from the October 2025 judgment and
dismissed the second appeal as duplicative.
2 Judgment was also entered in favor of defendant Robert Tayac, who is
an attorney who was hired by Parton to enforce the promissory note. Cooke’s
complaint alleged that the $60,000 in attorney fees collected by Tayac was
additional usurious interest collected on the loan. The trial court rejected
this claim and Cooke has not challenged that ruling on appeal.
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$195,000 with interest charged at the rate of 18 percent per annum.3 Both
notes were secured by his personal residence. Cooke did not pay the note
when due, but later satisfied the loan through escrow following the sale of his
home. This action was commenced shortly thereafter.
Cooke’s first amended complaint alleged causes of action for breach of
contract, rescission, fraud, conversion, and usury. With respect to the issue
on appeal, Cooke argued at the bench trial that “18% per annum is a
usurious interest rate. This is beyond dispute. Cooke is entitled to return of
all interest paid . . . .” He acknowledged the two constitutional limitations
set forth above and concluded: “Given the rate of interest set by the Federal
Reserve Bank at the time of the subject loan, regardless of whether the loan
to Cooke is characterized as primarily business or personal, the maximum
amount of interest which could have been charged . . . and/or collected . . .
was 10%—not 18%.” In his closing trial brief, Parton argued that Cooke’s
claim that the 18 percent per year interest rate was usurious must be denied
because Cooke failed to present evidence that the rate charged exceeded the
constitutional limit applicable to loans for nonpersonal use. Specifically, he
noted the absence of any evidence regarding the applicable interest rate for
the Federal Reserve Bank: “There can be no dispute that Plaintiff Cooke
offered no such testimony at trial through any of the witnesses who testified
at trial or through the exhibits entered into evidence. Not a single witness
even uttered the phrase ‘federal reserve,’ let alone provided testimony on this
subject.”
On May 22, 2025, the trial court issued a tentative statement of
decision finding in Cooke’s favor on the usury claim and rejecting Cooke’s
3 Following the father’s passing, the updated promissory note was
assigned to Parton.
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remaining claims. Parton objected to the tentative decision, arguing that
Cooke had not satisfied his burden of proof as to the usury claim. Parton
argued that the proceeds of the loan were for commercial, rather than
personal, use so that the constitutional limit on interest rates for personal
loans was not applicable and that Cooke failed establish that the rate was
usurious under the provision applicable to nonpersonal loans because he did
not admit evidence of the Federal Reserve Bank’s interest rate. Cooke did
not file a response to Parton’s objection.
On June 13, 2025, the court issued its Decision finding in favor of
Parton on the usury claim. The Decision reads in relevant part, “The Court
finds that plaintiff failed to present evidence that the interest paid exceeded
the higher of either 10% or 5% plus the prevailing rate for member banks of
the Federal Reserve Bank.”
On June 20, 2025, Cooke filed an objection to the Decision. His
objection states:
“1. The loan between Cooke and Ralph Parton was primarily for
personal, family or household purposes. Any such loan cannot exceed 10%
and the Federal Reserve interest rate is irrelevant since it applies only to
business loans.
“2. Cooke had no obligation to produce evidence to confirm a matter of
public record since it is a matter as to which the Court can and should take
judicial notice.
“3. Mr. Parton did not and does not dispute that 18% interest is
usurious, under any circumstance, and he conceded at trial that the interest
charged and collected was usurious.”
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The court did not rule on Cooke’s objections. Judgment was entered on
October 6, 2025.4
After judgment was entered, Cooke moved for new trial based on
irregularity, abuse of discretion, surprise, and error of law.5 Cooke reiterated
the arguments asserted in his objection to the Decision. Along with this
motion, Cooke filed a formal request for judicial notice of the applicable
Federal Reserve interest rate.
The trial court denied Cooke’s motion. The court explained: “Plaintiff
did not identify any irregularities or abuse of discretion as set forth in [Code
of Civil Procedure] [section] 657. Rather, Plaintiff asks that the Court take
judicial notice of evidence not presented at trial, specifically the percentage
rate of the Federal Reserve Interest Rate at the time of the subject loans.
This Court denies to do so. Plaintiff is effectively seeking to reverse the final
Statement of Decision based on evidence not submitted during trial.”
DISCUSSION
On appeal, Cooke does not reassert his claim that the proceeds of the
loan were for primarily personal use and thus that the interest rate charged
by the Federal Reserve Bank at the time was irrelevant. He maintains,
however, that even if the limit for nonpersonal loans was applicable, the trial
court erred in finding that the absence of evidence regarding the Federal
Reserve rate of interest precluded entry of judgment in his favor. He argues
that he was not required to introduce such evidence because he “alleged” in
4 The judge who issued the Decision passed away in August 2025. The
matter was subsequently reassigned to a new judge who issued the final
judgment.
5 Parton’s request to augment the record with the documents relating
to Cooke’s new trial motion and the order denying the motion is granted.
Cooke did not mention that motion in his opening brief or include those
documents in the record.
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his first amended complaint and in his trial brief that the maximum rate of
interest allowed was 10 percent and this “contention” was never challenged.
Allegations, whether in a pleading or a brief, are not evidence.
(San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal.App.4th
1736, 1744; In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510,
515.) It is true that defendants did not argue that a higher rate of interest
was permissible, but they responded to the first amended complaint with a
general denial and Cooke offered no admission or stipulation at trial that the
maximum allowable rate of interest was 10 percent. There was no
affirmative concession of the point. It was Cooke’s burden to establish every
element on which he bore the burden of proof, one of which was the
maximum allowable rate of interest.
The record shows that prior to the close of evidence, Cooke was on
notice of this deficiency in his proof. When Cooke’s attorney asked Tayac on
cross-examination “what interest rate would apply to the transaction between
Mr. Cooke and Mr. Parton,” Tayac answered, “Subject to exception,
10 percent.” (Emphasis added.) Cooke’s attorney did not ask what
exception(s) Tayac was referring to, and instead followed up by asking
whether 18 percent is “usurious in that transaction.” Parton’s attorney
objected on the grounds that the question called for a conclusion of law and
lacked foundation, which the court sustained. The objections themselves
should have put Cooke on notice that defendants had not conceded that a rate
of 18 percent was usurious. Moreover, because Tayac qualified his answer to
the first question by saying the 10 percent rate was “subject to exception,”
and did not answer the second question at all, Cooke should have realized
that he needed to submit proof sufficient to establish the maximum legal rate
of interest. Moreover, although Cooke moved the court in his post-trial brief
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to admit into evidence several exhibits that had not been admitted at trial, he
did not take that opportunity to ask the court to admit any evidence, or to
take judicial notice, of the Federal Reserve rate of interest.
We note that, when defendants first raised the issue in their post-trial
brief, Cooke could have moved to reopen the evidence. (See McLear-Gary v.
Scott (2018) 25 Cal.App.5th 145, 151 [trial court has discretion to grant
request to reopen where failure to submit evidence was result of mistake,
inadvertence, or excusable neglect]; Simon v. Tomasini (1950) 97 Cal.App.2d
115, 123 [“motion to reopen . . . based on claimed inadvertence and mistake
was a matter to be decided in the discretion of the court”].) Or he could have
made that motion as soon as the trial court issued its Decision, in lieu of (or
in addition to) filing an objection. And failing that, when he later moved for a
new trial, he could have expressly asked the court to exercise its authority to
“vacate and set aside the statement of decision and judgment and reopen the
case for further proceedings and the introduction of additional evidence with
the same effect as if the case had been reopened after the submission thereof
and before a decision had been filed or judgment rendered.” (Code Civ. Proc.,
§ 662.)
The denial of any of those requests would have been reviewable on
appeal. Having failed to make them, Cooke’s appellate options were
diminished, but he might have argued that the trial court should have
treated his objection to the Decision as a motion to reopen. Or he might have
argued that the trial court erred by not reopening the evidence under Code of
Civil Procedure section 662 in response to the motion for a new trial,
notwithstanding his failure to identify that option specifically. Or he might
have advanced the other argument he made in the objection to the Decision
and in his motion for new trial—that the loan was made primarily for
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personal purposes and thus the lawful interest rate was capped at 10 percent
regardless of the Federal Reserve rate. There is no guaranty these strategies
would have been successful, but the arguments Cooke has offered instead
miss the mark.
Cooke argues that the trial court committed a “per se abuse of
discretion” by failing to rule on his objections to the Decision. But the
purpose of an objection to a statement of decision is to draw the court’s
attention to omissions or ambiguities; it gives the court an opportunity to
make changes before the taking of an appeal, but if the court does nothing,
the statute provides simply that the doctrine of implied findings will not be
available on appeal. (See Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981;
Code Civ. Proc., § 634.) Cooke has not directed us to any case in which a
failure to “rule” on an objection to the final statement of decision was held to
be an abuse of discretion. Moreover, Cooke has not explained how the failure
was prejudicial when he did not ask the court to reopen the evidence and has
not even argued on appeal that the court should have treated the objection
that way—and when the same issue was rejected by the trial court in
connection with his motion for new trial and he has not challenged that
ruling on appeal. Both in his briefing here and in his objection, Cooke cited
Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135
for the proposition that the trial court had the authority to amend the
statement of decision, which is true but misses the point. In Bay World
Trading, the trial court amended the statement of decision to award
prejudgment interest. (Id. at p. 141.) Here, Cooke was asking the court to
amend the statement of decision based on a fact he failed to establish at trial.
Cooke also requests that we take judicial notice of the Federal Reserve
rate of interest and thereby determine that the trial court “erred as a matter
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of law by failing to exercise discretion when asked to do so.” He contends
that the purpose of judicial notice is to establish a fact without requiring the
production of evidence, and that the Federal Reserve rate of interest is
subject to judicial notice. We agree with these points, but they do not help
Cooke here, at least in the absence of any argument that the court may take
post-trial judicial notice of a matter on which the plaintiff bears the burden of
proof without reopening the case. (But see Cal. Law Revision Com. com.,
Deering’s Ann. Evid. Code (2011 ed.), pp. 272–273, comment to Evid. Code,
§ 455, subd. (a) [“If the judge does not discover that a matter should be
judicially noticed until after the cause is submitted for decision, he may, of
course, order the cause to be reopened for the purpose of permitting the
parties to provide him with information concerning the matter”];
In re Damian L. (2023) 90 Cal.App.5th 357, 364 [“the department requested
to reopen evidence to allow the juvenile court to . . . take judicial notice of
mother’s recent misdemeanor conviction”].) The court properly would have
taken judicial notice of the Federal Reserve rate of interest during trial if
Cooke had asked it to do so. Absent a request to reopen, however, once the
trial was over it appears that nothing would be accomplished by taking
judicial notice of the rate of interest—not in the trial court and not on appeal.
Cooke’s opportunity to prove his claim had passed. We are willing to assume
for purposes of argument that Cooke could readily have established at trial
that the maximum allowable rate of interest was 10 percent had he sought to
do so, but we deny his request for judicial notice because it would not change
how we resolve the appeal. (North Coast Rivers Alliance v. Kawamura (2015)
243 Cal.App.4th 647, 654.)
Cooke’s litigation missteps have led to a lamentable result, but it is not
our role to act as counsel for the appellant. (Century Surety Co. v. Polisso
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(2006) 139 Cal.App.4th 922, 963.) The arguments Cooke raised in his
briefing do not furnish a basis to reverse the judgment.
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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