National Directory v. Empire Bail Bonds

Filed 9/13/06 National Directory v. Empire Bail Bonds CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard Strauss, Judge. Affirmed.

The trial court ruled in favor of National Directory Company in its contractual dispute with Empire Bail Bonds, which contends insufficient evidence supported the judgment. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

In December 2003, National Directory Company (NDC) filed a complaint^[1] against Empire Bail Bonds (Empire) that alleged Empire did not comply with the terms of a March 2001 promissory note signed by Robert May, Empire's President, and Leonard Owens, NDC's Director of Receivable Management.^[2] The relief sought was $66,030.12 plus interest and costs. Empire's answer generally denied each of the allegations in the complaint.

Owens was the only witness at trial. He testified as follows: Empire owed the amount in dispute for advertisements it placed in the yellow pages of the telephone directory. The debt was owed from 1998. Owens participated in the decision-making regarding whether NDC would file a lawsuit against Empire. He testified, "I didn't have [the attorney] file suit on this because we had Mr. May in our directory and he agreed to renew his advertising in the next year's edition, and continue with the promissory note, to make his payments on it."

Under cross-examination, Owens retreated from the exact amount stated in the promissory note, and recalculated Empire's debt at $33,174.12.

The trial court ruled, "I think we have a valid promissory note. . . . It's a reaffirmation of the obligation. It's also a new arrangement to establish a payment plan.

. . . [¶] . . . I think that's the right amount from the evidence that we have, as best Mr. Owens knows it. Mr. Owens and everybody in this room recognized the fact that we didn't have the best records and everything else to work with, but that's what we have to work with, so I'm going to award [NDC] $33,174.12." The final judgment, including costs, was for $36,069.00.

DISCUSSION

Sufficient evidence substantiated the trial court's decision that the promissory note was valid and supported by consideration. When, as in this case, the parties request no statement of decision, we assume the trial court made whatever findings were necessary to support the judgment. We indulge all presumptions in favor of the judgment. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 202.) " '[W]hen a [judgment] is attacked as being unsupported [by the evidence], the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact].' " (Traxler v. Thompson (1970) 4 Cal.App.3d 278, 285.)

Empire contends the promissory note was not supported by new consideration and it was not an enforceable contract because Empire had a preexisting duty to pay its debt to NDC.

"Forbearing suit or extending time for performance which suspends a legal right constitutes a sufficient consideration. [Citations.] While mere forbearance without an agreement to do so is not sufficient, 'The cases in this state, as elsewhere [citation], hold that the promise to forbear may be implied as well as express.' [Citations.] 'Further, the act of forbearance [is] in itself evidence of an agreement to forbear." (Levine v. Tobin (1962) 210 Cal.App.2d 67, 69.)

" 'Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.' [Citation.] 'An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise.' " (Healy v. Brewster (1967) 251 Cal.App.2d 541, 550, 551.)

Owens's unrebutted testimony established NDC's forbearance from pursuing legal action against Empire was valid consideration for the promissory note. Empire argues "The undisclosed intentions of NDC cannot be used to show a meeting of the minds." However, because Empire 's debt dated from 1998, the promissory note, signed in 2001, contains at least an implied promise that NDC would forbear from pursuing legal action against Empire to collect on the debt. At any rate, the mere fact NDC did not take such legal action evidences an agreement to forbear, which was valid consideration.

Empire argues in the alternative that Owens, the sole witness at trial, stated varying amounts that Empire owed; therefore, his testimony was speculative and not substantial evidence because "not a single new fact was presented to support the capricious adjustments to the alleged damages." We reject this contention to the extent Empire objects to the quantum of proof. "The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411.)

Empire, citing no authority, invites us to exercise our independent review over the trial court's ruling regarding the amount owed. We decline the invitation. "When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 (Winograd).)

As a factual matter, Owens explained the basis for the recalculated amount due. He testified, "I believe it was payments that were posted to -- against the promissory note." Owens, during cross-examination, explained the disparity between the amount stated in both the promissory note and his deposition testimony versus the revised amount at trial. "[M]y testimony today is that I believe the statement of accounts represents both of Mr. May's accounts with our company. So the payments less the payments that are identified as Pool City payments would be credited then to the [Empire] account." Empire's counsel asked Owens if he was certain whether the specific amount Empire owed was $50,154.12 or $33,174.12. Owens responded, in reference to the latter amount, "I'm pretty comfortable with this calculation."

Empire's counsel, in closing argument, objected regarding the recalculated amount due. However, the court rebutted the argument as follows: "[Owens] tells me those, as best he knows right now, are the right numbers. I agree with you.^[3] I think Mr. Owens is operating with very limited numbers, but I think he's an honest man. I think he's telling me the best he can what he thinks the numbers are. That's evidence. Now I'll grant you it's evidence that you can quarrel with, but it's still the only evidence I have in the case. [¶] You're right that the note is wrong, but it's practically $17,000 to your client's benefit wrong. I don't know if Mr. May knew that or didn't know that. There's no evidence about that. Your argument assumes that he was misled. I don't know if he was misled or not. He might have known exactly what the number was because maybe he kept better records than Mr. Owens' organization kept. I don't know."

Empire does not dispute its obligation to repay NDC some money; indeed, as mentioned above, it argues it had a preexisting duty to do so. Empire simply disputes the amount stated in the court's order. In the absence of contrary evidence regarding Empire's specific debt, the trial court's order was correct, and we are bound by it. "Where different inferences may reasonably be drawn from undisputed evidence, the conclusion of the jury or trial judge must be accepted by the appellate court." (Winograd, supra, at p. 633.)

Given our resolution of this case on the basis of the promissory note, we need not address the legal theory of account stated or any other legal theory.

DISPOSITION

The judgment is affirmed. National Directory Company is awarded costs on appeal.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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^[1] The complaint was based on the following causes of action: (1) open book account; (2) account stated; (3) reasonable value of goods/services received; (4) agreements and (5) promissory note.

^[2] The promissory note stated in its substantive entirety:

"By signing the below I am confirming that I agree to the balance due and the payment plan stated in page one of this document. The undersigned promises to pay NDC YELLOW PAGES, (National Directory Company) its agent or assign, the total sum of $66,030.12. This amount, as set forth, is the outstanding balance(s) due for advertising appearing on behalf of Robert May, as the President of Empire Bail Bonds, Inc.

"There shall be a ten (10) day grace period for any one payment. However, if the undersigned fails to make any payment when due, any and all remaining payments shall immediately become due and owing.

"Should legal action become necessary to enforce this agreement, the prevailing party shall be entitled, but not limited, to the recovery of costs, reasonable attorney's fees, and interest at the rate of ten percent (10%) per annum from the date this agreement is breached.

"I agree to the terms and conditions above[.]"

^[3] In closing argument, Empire's counsel stated, "I don't believe Mr. Owens intentionally misrepresented the number, but it is abundantly clear from the testimony that the number was not an accurate number."