Elzey v. Metropolitan Builders, Inc.

Opinion

KINGSLEY, J. Plaintiff owned a lot in southeastern Los Angeles County. He contracted with defendant Metropolitan Builders to construct thereon a 12-unit apartment house. Construction was to be financed by a loan on the property, in the amount of $54,000, secured by a first deed of trust. Subsequently, at the request of defendant Metropolitan Builders, plaintiff executed an additional note for $18,102.40, secured by a second deed of trust. He sued to rescind the two transactions, alleging fraud in inducing him to execute the second deed of trust and a failure of consideration for either deed or the notes they secure. After a trial by the court, a motion for judgment under section 631.8 of the Code of Civil Procedure was made by defendant and was granted. No findings were requested within the time provided by rule 232 of the California Rules of Court.1 Plaintiff has appealed; we affirm.

Contrary to the contention of plaintiff, it is well settled that, on a motion under section 631.8 of the Code of Civil Procedure (unlike the situation on a motion for a nonsuit under section 581c) the trial court weighs the evidence and its decision must be upheld on appeal if there is any substantial evidence sufficient to sustain it. (Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 853 [82 Cal.Rptr. 830], and authorities there cited.) Suffice it to say that the trial court was not required to accept plaintiff’s testimony but was permitted [73]to find, from the record before it and now before us: that there was no fraud or misleading; that all of the money advanced under the two trust deed notes was expended properly; that the building was constructed (after remedial work) in substantial compliance with the plans and specifications; and that the present holder of the trust deeds and notes was a holder in due course. Such findings amply support the judgment.

Plaintiff complains that no findings of fact were made. It is true that, prior to the 1969 amendment of section 632 of the Code of Civil Procedure, a judgment under section 631.8 required findings unless expressly waived. (East-West Capital Corp. v. Khourie (1970) 10 Cal.App.3d 553 [89 Cal.Rptr. 369].) But that is no longer the law. The applicable language in section 631.8 is as follows: “The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make findings as provided in Sections 632 and 634 of this code, . . .” (Italics supplied.)