Filed 2/14/20 Ustach v. Lim CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ANDREJ USTACH,

Plaintiff and Respondent,

v.

JONG OK LIM,

Defendant and Appellant.

B285611

Los Angeles County

Super. Ct. No. BC607922

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Doyle Judge. Affirmed.

Moon & Dorsett, Dana M. Dorsett, Jeremy Cook; Law Office of Jeremy Cook and Jeremy Cook for Defendant and Appellant.

Sam Kim & Associates and Christopher E. Delaplane for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant Jong Ok Lim appeals from a judgment entered in plaintiff Andrej Ustach’s favor following a bench trial. Lim loaned $120,000 to Andrej and his wife Tai Ustach. Andrej signed a promissory note for $150,000 (note) and a deed of trust that secured the note with property he owned. Lim sought to foreclose on Andrej’s property when he failed to pay off the loan. Andrej filed suit to enjoin the sale of the property, to seek reformation of the note, and to recover damages based on Lim’s breach of the deed of trust and violation of California’s usury laws (among other causes of action). The court found Lim had obtained the note through fraud or other improper means and declared the note and deed of trust void. It did not require Lim to disgorge payments received under the note, however, finding the remaining balance on the note reflected the damages Andrej had incurred. Lim contends the court erred by considering evidence that contradicted the terms of the note and voiding the note and deed of trust when the complaint neither alleged a fraud cause of action nor asked the court to void the note. Finding no prejudicial error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

We state the facts in the light most favorable to the judgment, as substantially set forth in the trial court’s statement of decision.

Factual summary

Andrej owns real property in Los Angeles where he and his wife Tai live (property). In April 2012, Tai began to borrow money from Lim. By June 2013, Tai had borrowed $70,000. The interest rate on the loans was 3 percent per month or 36 percent per year. Lim loaned the Ustaches another $50,000, bringing the total borrowed to $120,000.

Lim asked Andrej to execute a promissory note memorializing the loan and a deed of trust recorded against the property. On June 22, 2013, the Ustaches met with Lim, Lim’s financial advisor and notary public, Ki Chang Chung, and Ki Chang Chung’s attorney, David D. Won. Won drafted the documents. The promissory note reflected Andrej’s indebtedness to Lim in the amount of $150,000. Lim and Won represented to Andrej that the total reflected the $120,000 actual indebtedness plus $30,000 to cover fees and expenses Lim might incur in the event of a default.

The essential terms of the $150,000 promissory note included a 10 percent interest rate, a requirement that Andrej pay monthly installments of $1,250, and a maturity date of June 30, 2014, that required “a very substantial” balloon payment. Andrej, who was a Polish immigrant without sufficient understanding of the English language and without counsel, executed the note and deed of trust on June 22, 2013. He paid Won $600 for drafting the documents, which were recorded that same day.

Andrej made payments to Lim totaling about $66,500. The payments were made by check and, at Lim’s request, the payee sometimes was left blank or made payable to a third party, including Lim’s daughter.

Sometime in 2014, Lim began living with the Ustaches in a separate area of their home. Lim continued to live at the residence throughout the parties’ dispute.

In the months leading up to and continuing through June 2015, Andrej attempted to pay off the loan by refinancing the property. Andrej testified he had been approved for funding at a 4.25 percent interest rate, but Lim thwarted the refinance transaction when she refused to accept $120,000—the amount of loan monies she actually delivered—as the principal amount for her loan pay-off. Instead, Lim demanded the full amount of the promissory note be treated as the loan principal—$150,000 —even though the Ustaches had already paid $66,500, and Lim had loaned them $120,000, not $150,000.

The court found the evidence established Lim demanded from Andrej “amounts that were clearly not owing under any circumstances,” and Lim changed her demands while Andrej was trying to refinance the loan. Lim’s “palpably unreasonable” changing demands “effectively doomed” Andrej’s effort to refinance the property—a result the court concluded “Lim not only quite apparently actively sought but also made inevitable by her misconduct.”

On August 3, 2015, Lim initiated foreclosure proceedings against the property by recording a notice of default and election to sell under deed of trust, with Lim’s daughter appointed as trustee. The notice of default indicated an unpaid balance on the loan that the court found “exceeded any amount that Mr. Ustach could possibly have owed.” Andrej demanded an accounting of the loan pay-off demand, but received no response. On September 10, 2015, a second notice of default and election to sell under deed of trust was recorded on behalf of Lim, with C&H Trust Deed Service (C&H) appointed as trustee. On January 12, 2016, C&H had a notice of trustee’s sale posted on the property.

In January 2016, Andrej sued Lim, her daughter, and C&H seeking an injunction against the foreclosure and other damages. The trial court granted Andrej’s application for a preliminary injunction and entered an order enjoining Lim from foreclosing on or selling Andrej’s property.

The complaint also alleges causes of action for negligence, breach of deed of trust, reformation of contract, ejectment, breach of contract, and violation of usury laws. It seeks (1) an injunction preventing defendants from taking steps to foreclose on the property until they have provided an accurate accounting of the amount due to cure the default; (2) an order reforming the promissory note and deed of trust “ ‘to reflect the parties’ true intention in entering the agreements, specifically that the loan amount was $120,000 not $150,000’ ”; (3) an order ejecting Lim from the property; (4) a declaration of forfeiture of the rental agreement; (5) actual damages to be proven at trial; (6) attorney fees and costs; and (7) “any other relief this Court deems just and proper under the circumstances.”

The court held a two-day bench trial in January 2017. No reporter was present. Andrej, Tai, and three other witnesses, including their accountant, testified in support of Andrej’s case-in-chief, and the court received Andrej’s 39 exhibits into evidence without objection. After Andrej rested, Lim also rested without offering into evidence any testimony or exhibits of her own. Lim did not testify. The parties filed posttrial briefs in lieu of closing arguments and the trial court took the matter under submission. In his opening posttrial brief, Andrej withdrew his causes of action for negligence and breach of contract. He also moved the court to allow him to amend the complaint to state a claim for declaratory relief to conform to the proof presented at trial.

The trial court filed its 16-page statement of decision on April 14, 2017. In it, the court granted Andrej’s motion to amend his pleadings to add a claim for declaratory relief. The court noted Andrej also had made the motion in his trial brief filed before trial and orally during trial and concluded Lim would not be prejudiced.

The court concluded that, regardless of the causes of action named in the complaint, “at the core of this case lies an unlawfully obtained and otherwise fatally flawed Promissory Note . . . and a correspondingly deficient and unenforceable Deed of Trust . . . that together under the circumstances can in no way in law or in equity provide a lawful basis for the foreclosure proceedings which defendant Lim commenced.” The court found and declared, under the amended cause of action for declaratory relief, the note and deed of trust could not be relied upon as a basis for Lim to recover the alleged loan balance she sought, nor could they provide a basis for the foreclosure on Andrej’s property, “[w]hether the product, for example, of a breach of contract . . . and/or the product of a breach of the security instrument . . . , and/or the product of a violation of the laws that govern permissible interest rates.”

The court found the note and deed of trust “were obtained essentially by fraudulent and otherwise improper means by defendant Lim—acting in concert with” her daughter, her notary/financial advisor, and her financial advisor’s attorney. It explained Lim and her representatives had Andrej sign the instruments “under circumstances in which it cannot be disputed” that Andrej did not have “a necessary and sufficient understanding of the transaction.” He did not have a sufficient understanding of the English language and was without counsel or other assistance, and he “was under some amount of duress,” having made installment payments to Lim on an outstanding loan balance “on which for a period of time a usurious interest rate of 36% was charged.”

The court found Lim and her representatives thus engaged in “handiwork [that] was clearly the work of an unscrupulous private lender seeking to take advantage of a vulnerable victim, by means not only of the usurious annual interest rate of 36% that had previously been charged, but also by means of improperly adding $30,000 to the subject loan balance purportedly to cover fees and expenses in the event of a default.” The court found both the 36 percent interest rate and addition of $30,000 to the loan balance “were clearly unlawful under the circumstances here.”

The court found Lim never provided a proper accounting of the disputed loan and never justified the inclusion of the $30,000 for potential fees and costs in the note to increase the “purported principal” amount of the note. The court acknowledged Lim “made this and that contention” to defeat or mitigate Andrej’s claims, but found “all roads lead to the inevitable conclusion that the disputed [note] was unlawful and otherwise improper at the time it was executed.”

The court noted Lim did not call a single witness and “had nothing to say at trial about any of these facts and circumstances, even in the face of substantial testimony by the witnesses called in plaintiff’s case-in-chief which the Court found to be uniformly credible.” The court found Tai’s and Andrej’s testimony “extremely believable and persuasive.” It found they “were plainly taken advantage of in an unlawful manner by defendant Lim who acted essentially as a kind of hard money lender under the circumstances here, aided by her daughter and the others discussed [above], who helped facilitate the unlawful scheme.”

The court concluded that, at the time of the note’s execution, Lim had loaned the Ustaches $120,000, not $150,000 as stated in the note. The court found Andrej credibly testified that he believed when he signed the note—based on what Lim, the notary/financial advisor, and the notary’s attorney told him —that the addition of the $30,000 to the loan principal “was something in the nature of a business custom or practice in the local private lending community.”

The court then declared the note and deed of trust “null and void . . . having been procured by fraudulent and otherwise improper means, that these instruments shall have no continuing validity, that whatever balance might have otherwise been payable pursuant to the . . . [n]ote or otherwise shall be stricken and effectively awarded to plaintiff Ustach as his damages.” The court found the notices of default, notice of sale, and other documentation issued in support of the nonjudicial foreclosure it previously enjoined no longer viable given the court’s finding the loan instruments were void.

The court concluded the amount of the loan balance— about $53,500—that Andrej otherwise would have owed Lim had the disputed loan “been a lawful loan” was “a reasonable damages determination under the circumstances.” The court explained that to the extent the damages here were not capable of calculation with “absolute precision,” “any such uncertainty was substantially, if not entirely, the product of defendant Lim’s deceit and lack of forthrightness throughout her course of dealings with [Andrej], including her continuing failure to provide an accounting.” The court further explained it found “an award of damages in this amount—in a usury case marked by transparently deceitful conduct by . . . Lim and those acting in concert with her and acting on her behalf, in a case marked by an abusive course of conduct in an elder context . . . , and particularly given [Andrej’s] poor English speaking and writing capabilities—falls well within the parameters of reasonableness, and is well supported by the facts and circumstances as described.”

The court also ruled Lim must vacate the Ustaches’ residence and the underlying rental agreement must be forfeited. But it declined to make a further award of damages to Andrej for unpaid rent Lim might owe (about $16,200), finding “the current damages award is appropriate as it suitably reflects the nature and extent of defendant Lim’s misconduct and is a measured calculation of the harmful consequences thereof that were suffered by plaintiff Ustach.” The court also did not require Lim to disgorge the $66,500 in payments already collected “in the exercise of its discretion and in the interests of justice in this particular case under the circumstances.”

The court entered judgment in favor of Ustach on August 1, 2017. Lim moved for a new trial, primarily on the ground of surprise, based on the court’s finding the note and deed of trust void when the complaint did not request that relief. The court denied the motion on September 13, 2017. Lim timely appealed, proceeding without a reporter’s transcript or a settled statement.

DISCUSSION

Lim contends the court erred by (1) denying her motion in limine to exclude evidence that the loan was for $120,000 under the parol evidence rule; (2) finding fraud and voiding the loan instruments on that basis when the complaint did not plead a fraud cause of action; (3) voiding the note and deed of trust when Andrej never sought to void it; and (4) denying Lim’s motion for new trial on the ground she did not have the opportunity to defend the validity of the note based on surprise.

1. Applicable law and standard of review

In reviewing a judgment based on a statement of decision following a bench trial, we apply the substantial evidence standard of review to the trial court’s express and implied findings of fact. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462.) We resolve “any conflict in the evidence or reasonable inferences to be drawn from the facts” in support of the judgment. (In re Marriage of Hoffmeister (1987) 191 Cal.App. 3d 351, 358.) We review questions of law de novo. (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1104.) When reviewing an order denying a motion for new trial, we independently determine, based on our review of “the entire record,” whether the asserted error was prejudicial. (Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)

Our review is guided by the familiar appellate principle that a judgment or order challenged on appeal is presumed to be correct, and “it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “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 an appeal proceeds without a reporter’s transcript or settled statement, we “must make all presumptions in favor of the validity of the judgment.” (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 (Randall).) We can neither reevaluate the credibility of witnesses nor reweigh the evidence. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 188 (Foust).)

2. The court did not err in admitting evidence that contradicted the terms of the note and deed of trust

a. The parol evidence rule did not preclude evidence to demonstrate Lim engaged in fraudulent or unlawful conduct and the note’s illegality

The parol evidence rule is partly codified in section 1856 of the Code of Civil Procedure (section 1856). (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174 (Riverisland).) “It provides that when parties enter an integrated written agreement, extrinsic evidence may not be relied upon to alter or add to the terms of the writing.” (Ibid.; § 1856, subd. (a).) “Although the parol evidence rule results in the exclusion of evidence, it is not a rule of evidence but one of substantive law.” (Riverisland, at p. 1174.)

Here, the note had an “integration clause” that stated it was “the final, complete and entire understanding between the parties.” The parol evidence rule would thus seem, as Lim contends, to bar Andrej from introducing evidence to show the principal loan amount and interest rate were other than the $150,000 and 10 percent stated in the note.

Section 1856 sets forth several exceptions to the parol evidence rule, however. The statute expressly provides it does not exclude evidence “to establish illegality or fraud.” (§ 1856, subd. (g); Riverisland, supra, 55 Cal.4th at pp. 1172, 1175.) Nor does the parol evidence rule bar admission of evidence to establish mistake or to explain or supplement the agreement’s terms through a course of dealing. (§ 1856, subds. (c), (e).) And, when the validity of the agreement is in dispute, “ ‘[e]vidence to prove that the instrument is void or voidable for mistake, fraud, duress, undue influence, illegality, alteration, lack of consideration, or another invalidating cause is admissible.’ ” (Riverisland, at p. 1175; § 1856, subd. (f).)

In its statement of decision, the court overruled all objections “that are still being asserted with respect to the evidence that was admitted at trial” and that the court “evaluated and otherwise discussed” in its statement of decision. As Andrej asserts, although the court did not provide a specific basis for overruling Lim’s parol evidence rule objection, the statement of decision makes clear the court found the evidence contradicting the terms of the note fell under the exception to establish fraud or illegality.

Based on the trial evidence, the court concluded the note and deed of trust were “unlawfully obtained.” It found they “were obtained essentially by fraudulent and otherwise improper means” by Lim and her representatives, and that they had engaged in “handiwork [that] was clearly the work of an unscrupulous private lender seeking to take advantage of a vulnerable victim.” The court also found Lim lent the Ustaches $120,000, not $150,000, and both the earlier 36 percent “usurious annual interest rate” Lim had charged and her “improper” addition of $30,000 to the loan principal to cover contingent fees were “clearly unlawful under the circumstances.”

Evidence of facts that supported these findings—that the note was tainted by fraud and included illegal terms—squarely fell within the well-established fraud or illegality exception to the parol evidence rule.

b. The complaint embraced allegations that the $150,000 note was procured through fraudulent and other unlawful conduct

Lim’s primary contention on appeal, however, is that the trial court could not consider the evidence of fraud or misrepresentations Andrej proffered—even under the fraud exception to the parol evidence rule—because he never properly pleaded a cause of action for fraud. She argues she had no notice Andrej contended the note was obtained through fraud because Andrej’s cause of action for reformation of the note was based on mutual mistake.

We do not read the trial court’s statement of decision as reading a cause of action for fraud into the complaint. Rather, the evidence demonstrating the note terms’ illegality or that the note was obtained through Lim’s and her associates’ misrepresentations or other unlawful conduct supports the court awarding Andrej relief on the causes of action he did plead (injunctive relief, breach of deed of trust, reformation of contract, and violation of the usury laws), as well as his request for declaratory relief added—without objection from Lim— to conform the complaint to the proof presented at trial.

Moreover, we agree with Andrej that the complaint included the facts—presumably fleshed out in more detail during the trial—on which the court based its finding that the note and deed of trust were fraudulently or unlawfully obtained. Although it did not use the word “fraud,” in essence the complaint alleged Lim deceived Andrej into agreeing to the $150,000 principal amount in the note. The complaint included allegations that: Lim’s financial advisor “suggested to” Andrej, Tai, and Lim that it was “standard” for the promissory note and deed of trust to show a loan balance of $150,000, “even though the final loan amount was only $120,000,” to cover fees that may be incurred if the borrower defaults, but that “advice” was “incorrect” and “false” and such a practice “[wa]s not standard or customary”; “as an immigrant and unsophisticated person in such matters,” Andrej relied on Lim’s and her financial advisor’s representations when he signed the note and deed of trust stating the loan amount was $150,000; and Lim “knew or suspected” Andrej “was relying upon such representations when he entered into” the note and deed of trust.

The court’s factual findings reflect the evidence presented at trial stemmed from these allegations. The court concluded the evidence showed that at the time Andrej signed the note, Lim had loaned Tai $120,000, not $150,000; Lim obtained Andrej’s agreement to the $150,000 principal amount through her and her representatives’ representations that it was standard practice to add the $30,000 to the $120,000 principal to cover potential fees and expenses, when in fact increasing the principal to include contingent expenses was “an impermissible practice for all purposes”; Andrej did not have a “sufficient understanding” of the transaction as an unrepresented immigrant “without a sufficient understanding of the English language”; and Lim previously had charged the Ustaches an impermissible usurious 36 percent interest rate on the $120,000 loan. The court thus found the note for $150,000 had been obtained through “deceitful conduct” and found the loan transaction unlawful.

Although perhaps not precisely pleaded, the complaint’s allegations were sufficient to put Lim on notice that Andrej contended the note for $150,000 and accompanying deed of trust were improperly obtained through false representations made by Lim or on her behalf with the intent the Ustaches would rely on them. “It has long been settled that where (1) a case is tried on the merits, (2) the issues are thoroughly explored during the course of the trial, and (3) the theory of the trial is well known to court and counsel, the fact that the issues were not pleaded does not preclude an adjudication of such litigated issues.” (Duncan v. Sunset Agricultural Minerals (1969) 273 Cal.App.2d 489, 494.) Not only were the issues fully litigated on the merits here—as we must presume without a reporter’s transcript—but based on the complaint, the parties’ briefing to the trial court that is part of the appellate record, and the court’s statement of decision, Lim and the court both were well aware of Andrej’s theory of the case.

As we discuss, Lim also had the opportunity to object to or rebut that evidence but did not. Had she objected, the court would have allowed Andrej to conform the pleadings to the proof presented at trial, just as it did for his declaratory relief claim. Thus, any error in admitting the evidence was harmless. (See Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [variance between pleading and proof harmless where retrial merely would result in amendment of complaint to conform to proof]; see also Cal. Const., art. VI, § 13 [“[n]o judgment shall be set aside . . . for any error as to any matter of pleading . . . unless . . . the error complained of has resulted in a miscarriage of justice”].)

Accordingly, we conclude the court did not commit reversible error by considering Andrej’s evidence of fraud, on which it ultimately based its finding that the note was invalid. The evidence contradicting the note’s terms was admissible under the fraud and illegality exceptions to the parol evidence rule and was encompassed by the facts alleged in the complaint. (See Buxbom v. Smith (1944) 23 Cal.2d 535, 543 [“the matter of pleading becomes unimportant when a case is fairly tried upon the merits and under circumstances which indicate that nothing in the pleadings misled the unsuccessful litigant to his injury”]; Code Civ. Proc., § 580, subd. (a) [“the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue[s]”].)

c. Lim did not object on the ground fraud was not pleaded

Generally, as Lim notes, a claim that a complaint fails to state a cause of action is not waived by a failure to demur and may be raised for the first time on appeal. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 585, fn. 5.) Nevertheless, we have discretion to treat the point as forfeited. As one leading appellate treatise has recognized, “A defendant-appellant who permitted the case to be tried on the assumption the complaint stated a cause of action may be precluded from challenging the sufficiency of the complaint for the first time on appeal.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:234, citing Nelson v. Department of Alcoholic Beverage Control (1959) 166 Cal.App.2d 783, 788.)

The record does not indicate Lim objected at trial to the admission of evidence of fraud on the ground fraud was not pleaded. As the court noted, Lim “had nothing to say at trial about any of the[ ] facts and circumstances [the court discussed in its statement of decision], even in the face of substantial testimony by the witnesses called in plaintiff’s case-in-chief which the Court found to be uniformly credible.” (Italics added.) Had Lim believed the complaint did not encompass the issue of fraud or illegality, she could have objected to the testimony on that ground then. But, as Andrej argues, nothing in the record suggests Lim objected to the presentation of evidence that Lim obtained the note through fraud or that the note otherwise was unlawful on the ground that evidence was outside the scope of the pleadings.

Andrej’s posttrial brief argued “[m]istake and/or fraud was clearly present” when the Ustaches relied on Lim’s and her representatives’ representations at the time Andrej entered the note and deed of trust. Yet Lim’s responsive posttrial brief did not argue the evidence of fraud Andrej cited was inadmissible or irrelevant because the complaint did not allege a cause of action for fraud. Instead, Lim argued about the interpretation of the evidence. She disputed Tai’s credibility, arguing Tai falsely testified the $30,000 in the note was a penalty surcharge to cover potential fees. Lim contended the evidence did not demonstrate the loan was for $120,000, rather than $150,000. She merely reiterated her earlier objection that the parol evidence rule barred evidence contradicting the note’s terms, and argued she had “debunked” Andrej’s claim that she had lent only $120,000. In other words, Lim simply ignored Andrej’s contention the fraud exception to the parol evidence rule applied.

Having permitted Andrej to present evidence of fraud and illegality to attack the terms of the note to prove they were usurious and obtained through fraudulent means—as we must presume given the lack of a reporter’s transcript—Lim cannot now claim for the first time on appeal that the evidence was inadmissible or irrelevant because the complaint did not plead fraud sufficiently. (Collison v. Thomas (1961) 55 Cal.2d 490, 498 [“ ‘[a] party cannot permit an issue to be litigated and on appeal escape the consequences by claiming that such issue was not pleaded’ ”].) Accordingly, even if the court erred, Lim forfeited her challenge on appeal to the trial court’s ability to consider evidence of fraud in these circumstances.

d. Without a reporter’s transcript we presume substantial evidence supports the court’s findings of fraud

Lim contends the trial court’s statement of decision shows Andrej failed to demonstrate any fraud occurred. Lim argues Andrej did not specify the misrepresentations made, did not demonstrate Lim knew she had made a false representation, did not demonstrate Andrej justifiably relied on any misrepresentations, and did not demonstrate how he suffered damages as a result of the misrepresentations. The court made its factual findings based on evidence presented at trial, including the Ustaches’ testimony that the court found “extremely believable and persuasive.” Lim’s contentions concern the sufficiency of that evidence, and the court’s interpretation of it. In essence, she asks us both to reweigh the evidence and to reconsider its credibility. This we cannot do. (Foust, supra, 198 Cal.App.4th at p. 188.) More importantly, as Andrej notes, without a reporter’s transcript, we cannot assess the evidence presented to the trial court. Rather, we must presume substantial evidence supported the trial court’s findings. (Randall, supra, 2 Cal.App.5th at p. 935; Foust, at p. 187 [“ ‘[i]n the absence of a contrary showing in the record,’ ” reviewing court makes “ ‘all presumptions in favor of the trial court’s action’ ”].)

3. The court did not commit reversible error by voiding the note and deed of trust

a. Lim had the opportunity to defend against the cancellation of the note and deed of trust
b.
Lim contends the court erred when it found the note and deed of trust void because Andrej did not apply for their cancellation under Civil Code section 3412 or otherwise ask the court to find them void. She thus argues she had no opportunity to defend their validity. As Lim asserts, neither the complaint nor the declaratory relief cause of action asked the court to find the note and deed of trust void. As we have said, however, the trial court may grant “any relief consistent with the case made by the complaint and embraced within the issue[s].” (Code Civ. Proc., § 580; American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 883 [“it is fundamental that after [a] trial on the merits, the court may afford any form of relief supported by the evidence and as to which the parties were on notice, whether requested in the pleadings or not”].)

The court concluded Andrej “established by a preponderance of the evidence admitted at trial his essential claim that the loan and security instruments . . . cannot be properly relied upon as a basis for essentially recovering the alleged loan balance sought by defendant Lim . . . , nor can such instruments under the circumstances here provide a lawful basis for the foreclosure of the subject property.” The court found that “essential claim” to be encompassed by at least Andrej’s causes of action for breach of trust and violation of California’s usury laws, and that it could declare the note and deed of trust unlawful—and thus void—under Andrej’s cause of action for declaratory relief, “having been procured by fraudulent and otherwise improper means.” As we have found the complaint included the facts constituting Lim’s fraudulent or otherwise improper procurement of the note and related deed of trust, the court’s voiding of the note also was consistent with the issues “embraced” by the complaint.

In other words, because Lim had an opportunity to defend against the allegations of fraud and unlawful conduct that formed the basis for the court to declare the note void, Lim was not deprived of her opportunity to defend the validity of the note. The court’s finding that the note and deed of trust were invalid was based on admissible evidence that the court found demonstrated Lim procured the note for $150,000, having loaned only $120,000, through false representations. Lim could have testified or presented other evidence, including other witness testimony, that she did not engage in fraudulent or otherwise unlawful conduct to obtain the $150,000 note, which in turn would have demonstrated the note was not void. Lim did not present any evidence to rebut the Ustaches’ testimony, however, and she does not suggest what evidence she would have presented that the court had not considered already if Andrej had asked the court to void the note.

Moreover, as the court noted in its order denying Lim’s motion for new trial, the complaint sought “ ‘any other relief’ ” the court “ ‘deem[ed] just and proper under the circumstances.’ ” As the court explained, its finding that the note and deed of trust were void “was simply a resolution of the rights of the parties under the subject Promissory Note—an issue lying at the core of Plaintiff’s causes of action.” Voiding the note allowed the court to resolve the payment of damages to Andrej that it found were reasonable and supported by the evidence without “the need for another court case or court cases” to resolve accounting issues had the debt instruments been left intact. Because the evidence provided grounds for the court to find the note and deed of trust void, that relief was proper.

b. The court did not commit prejudicial error in finding the note and deed of trust void or in denying Lim’s motion for new trial on that ground

Even if it were procedurally improper for the court to find the note and deed of trust void, we find no reversible error. We may not set aside a ruling―even if made in error―“unless . . . the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; see also Code Civ. Proc., § 475.)

Lim has failed to meet her burden. She has not demonstrated it reasonably probable that she would have received a more favorable result had the court awarded Andrej compensatory damages rather than voiding the note and deed of trust. Nor has she demonstrated on appeal what evidence she would have presented that would have made a favorable difference in the judgment had Andrej requested the instruments be declared void or had the court granted Lim’s motion for new trial on that issue.

Indeed, as the trial court found, Lim’s motion for new trial did not specify what other evidence she would have introduced had a new trial on the issue of voiding the note been granted. Instead, she essentially rehashed arguments about the evidence presented at trial. In her new trial motion, Lim argued she would have raised an alternative argument of unjust enrichment had Andrej pleaded cancellation of the note. But the evidence Lim contended demonstrated Andrej was unjustly enriched already had been presented to the court. Indeed, in her posttrial brief, Lim argued the trial evidence, including copies of checks admitted through Andrej’s exhibits and witness testimony, showed she had loaned the Ustaches more than the amount Tai testified she had received, including an additional $66,000 disbursed after Andrej signed the note—what Lim argued unjustly enriched Andrej.

The court received 39 exhibits into evidence, including copies of checks and Lim’s discovery responses. The court found Andrej’s witnesses “uniformly credible,” and Andrej’s and Tai’s testimony particularly persuasive. We can presume the court considered and weighed all of the evidence admitted at trial and resolved any conflicts in favor of Andrej. The court found Lim loaned the Ustaches $120,000 at the time Andrej signed the note, and we can infer the court rejected—based on the trial testimony—Lim’s contention the evidence showed she lent another $66,000 to the Ustaches after the note’s execution. Accordingly, Lim would not have been entitled to the amounts she argued the note would have enabled her to recover based on the court’s resolution of apparently conflicting evidence.

Thus, even if Lim had pursued an unjust enrichment claim, whether in a new trial or if the complaint had alleged the note should be voided, she has not demonstrated what other evidence she would have presented that the court had not considered and resolved against Lim already, or that the court would have weighed the evidence differently if the court had considered it under the guise of an unjust enrichment claim.

Moreover, we can infer from the limited record that the court evaluated any potential issue of unjust enrichment and concluded the remedy it fashioned by canceling the balance due on the $120,000 loan principal did not unjustly enrich Andrej. For example, despite finding the loan transaction unlawful, the court did not order Lim to disgorge “the roughly $66,500” the Ustaches had paid her. Nor did the court require Lim to pay Andrej damages for the reasonable rental value of the part of the property Lim had occupied.

Finally, Lim has not demonstrated it probable that the court would have found Andrej’s compensatory damages were less than any amount offset by what Lim could have collected under the note and deed of trust had the court not voided them, or that the court would have reached a different result if a new trial were held on the issue of whether the note should be voided. The court found its remedy of voiding the balance of the $120,000 loan—about $53,500—was “a reasonable damages determination under the circumstances,” and “well supported by the evidence” admitted at trial. Andrej argued Lim’s breach of the deed of trust caused him damages in the form of the expenses he incurred in bringing his lawsuit to declare the trustee’s sale invalid; the negative impact on his credit due to the filing of the improper notices of default; and the loss of a favorable 4.75 percent interest rate on the loan to refinance the mortgage on his property that failed to record due to Lim’s wrongful actions. Andrej also asked the court to strike any interest due Lim under the note on the ground the loan was usurious and that the note be reformed to state a $120,000 principal amount. The complaint asked the court to find Lim owed Andrej triple the amount of interest Andrej paid during the year before he filed the action under California’s usury laws. Finally, Andrej argued the court should award him $16,200 for the rental value of the property Lim wrongfully occupied.

We presume the trial court found Andrej presented sufficient evidence of these damages. The court’s award of damages to Andrej in the form of voiding the balance due on the loan principal was based on its finding that the amount, about $53,500, was “well within the parameters of reasonableness” under the circumstances—what the court found to be “a usury case marked by transparently deceitful conduct by defendant Lim and those acting in concert with her and acting on her behalf, . . . marked by an abusive course of conduct in an elder context . . . , and particularly given [Andrej’s] poor English speaking and writing capabilities.”

Given the court’s factual findings that we presume are supported by substantial evidence and Andrej’s claimed damages, we cannot conclude it probable the court would have calculated Andrej’s damages against Lim in an amount that did not offset any recovery Lim could have obtained under the note and deed of trust had they remained intact. Nor does Lim make any argument on appeal as to how the court would have calculated damages more favorably to Lim given the court’s findings based on the evidence presented at trial.

We thus conclude Lim has not met her burden to demonstrate she was prejudiced so as to justify reversal of the judgment or a new trial. Whether the court voided the debt instruments and found neither party owed the other further payment on any obligation, or awarded Andrej compensatory damages in an amount that offset any amount he owed under the note based on the court’s findings concerning this loan transaction, the result would be the same. And as the court explained when it denied Lim’s motion for new trial, “whether the relief ultimately afforded was purely compensatory in nature or resulted in the voiding of the subject debt instruments would not have apparently altered the evidence presented at trial.”

DISPOSITION

The judgment is affirmed. Respondent Andrej Ustach is to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P.J.

DHANIDINA, J.