Opinion
Introduction
Dеfendant Frank E. Ferreira appeals from a judgment in favor of plaintiff Monica Niederer, including an interlocutory order specifying issues without substantial controversy. He also appeals from a judgment in favor of the Paines, cross-defendants.
Statement of Facts
In 1974, plaintiff and the Paines negotiated the sale of the assets and name of Barnard Instruments, Inc. to Paine Instruments, Inc. Plaintiff owned 60 percent and her four children owned 40 percent of Barnard Instruments, Inc.; plaintiff also was president of the corporation. The Paines owned 49 percent of Paine Instruments, Inc.; defendant, some of his family and friends owned 51 percent.
*1492 As part of its payment, Paine Instruments, Inc. executed a promissory note; the note included a guaranty signed by defendant and the Paines. Plaintiff required the guaranty as security before she would agree to accept the note.
Following the sale, Barnard Instruments, Inc. changed its name to Niederer Instruments, Inc.; Paine Instruments, Inc. changed its name to Barnard Instruments, Inc. Niederer Instruments, Inc. subsequently liquidated and dissolved. Plaintiff executed an assignment of the promissory note on behalf of Niederer Instruments, Inc. and pursuant to the corporation’s plan of liquidation; the assignment was to her individually and as custodian of her then-minor children.
Barnard Instruments, Inc. made monthly payments on the note to plaintiff through October 1978. Additional payments totalling $ 10,646.07 were made in March 1979. No further payments were made, although close to $10,000 still was owing on the note. Pursuant to the terms of the note, which provided all unpaid principal and interest would become immediately due in event of default, plaintiff demanded full payment from defendant and the Paines; they failed to make any pаyment. Barnard Instruments, Inc. subsequently was adjudged a bankrupt, with no assets available for distribution.
Plaintiff instituted this action against defendant and the Paines in 1980 and filed a first amended complaint in June 1982. Defendant filed a cross-complaint against the Paines.
1
In December 1982, plaintiff moved for summary judgment against defendant or, in the alternative, an order specifying issues without substantial controversy. The motion was granted, and the court issued an order specifying issues without substantial controversy. Defendant appealed from the order. In a published opinion, this court ordered the appeal dismissed on the ground the order was nonappealable.
(Niederer
v.
Ferreira
(1983)
Contentions
I
Defendant contends the trial court lacked jurisdiction to proceed in the absence of plaintiff’s children, who werе indispensable parties.
*1493 II
Defendant also contends plaintiff violated court rules for conduct of proceedings, in that she filed her motion for summary judgment on the last permissible day.
III
Defendant asserts plaintiff’s motion for summary judgment or, in the alternative, an order specifying issues without substantial controversy should have been denied as to the following triable issues of fact:
1. Whether plaintiff’s children were indispensable parties;
2. Whether defendant’s “guaranty” included the obligation to make payment in the event of default on the note;
3. If so, whether the obligation extended to plaintiff; and
4. Whether the assignment of the note was genuine.
IV
Defendant also asserts plaintiff failed to give consideration for the guaranty.
V
Defendant avers the trial court erred in awarding attorneys’ fees to plaintiff.
VI
Defendant further avers the award of attorneys’ fees in the amount of $10,000 is excessive and unreasonable.
VII
Defendant finally contends the judgment for cross-defendants B. A. and Barbara Paine is unsupрorted by the evidence and contrary to law.
*1494 Discussion
I
Defendant contends the trial court lacked jurisdiction to proceed in the absence of plaintiffs children, who were indispensable parties. We disagree.
Code of Civil Procedure section 389, subdivision (a), provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.”
However, “[fjailure to join an ‘indispensable’ party is not ‘a jurisdictional defect’ in the fundamental sense; even in the absence of an ‘indispensable’ party, the court still has the power to render a decision as to the parties before it which will stand. It is for reasons of equity and convenience, and not because it is without power to proceed, that the court should not proceed with a case where it determines that an ‘indispensable’ party is absent and cannot be joined.”
(Sierra Club, Inc.
v.
California Coastal Com.
(1979)
An indispensable party is one whose interest in the subject matter of the litigation would be injured or affected if he was not joined and the plaintiff was granted the affirmative relief sought.
(Bank of California
v.
Superior Court
(1940)
Based on the above principle, defendant asserts plaintiff’s four children are indispensable parties, in that they owned 40 percent of Niederer Instruments, Inc. and its interest in the promissory note; thus, the appropriate allocation of any recovery on the note requires that the children be party to the action. Moreover, if he were required to make payment solely to plaintiff, he “conceivably could be subjected to further legal action brought by the four children or any one or more of them.” Defendant also asserts plaintiff is not entitled to recover her children’s share of the payment on the note in their behalf as their “custodian.”
The assignment of the promissory note reads: “For Value Received, pursuant to plan of liquidation adoptеd by Niederer Instruments, Inc., formerly named Barnard Instruments, Inc., the holder hereof, Niederer Instruments, Inc., does hereby sell, assign and transfer to Monica Niederer as to two-fifths (2/5) as Custodian for Ann Marie Niederer, Mona Claire Niederer, John Walter Niederer and Paul Ernest Niederer, Minors, as to three-fifths (3/5) to Monica Niederer, individually, all of its right, title and interest in and to the within Note.” The allocation of the interest between plaintiff and the children is clearly defined; thus, this is not a case “where a number of persons have undetermined interests in the same property” and one seeks to recover a share in it to the potential detriment of the others.
{Bank of California, supra,
Moreover, there was no showing the children themselves had a right to payment under the note or its guaranty. The note contains a promise “to pay to Barnard Instruments, Inc., or order,” the specified amount. Barnard Instruments, Inc. became Niederer Instruments, Inc., which then assigned its interest in the note to plaintiff, individually and as custodian for her children. Payments on the note were made to plaintiff.
Although the note was assigned to plaintiff, it never was endorsed either to her or in blank. Therefore, plaintiff never became a holder of the note.
*1496
(Cal. U. Com. Code, § 1201, subd. (20);
Security Pacific Nat. Bank v. Chess
(1976)
12 Am.Jur.2d, Bills and Notes, section 1070 states: “It is the legal title to negotiable paper, and not the beneficial interest therein, which controls as to the proper parties plaintiff in suits for the collection thereof. Courts will never inquire whether a plaintiff sues for himself or as trustee for another ....” (At p. 97, fns. omitted.) 10 Cal.Jur.3d, supra, section 322 adds that the California Uniform Commercial Code provides the claim of a third person to an instrument is not an available defense to a party liable on the instrument. (At p. 321.)
Based on the foregoing, we conclude although plaintiff’s children hаd a beneficial interest in the proceeds of the note, because they were not assignees they had no right of action on the note and consequently were not indispensable parties to the action. Any action they might bring for their share of the proceeds would have to be against plaintiff, not defendant.
Additionally, as will be discussed
post,
this action is actually on the independent guaranty contract, not the note itself. (See
S.F.T. Seminary
v.
Monterey Co. G. & E. Co.
(1918)
II
Defendant also contends plaintiff violated court rules for conduct of proceedings, in that she filed her motion for summary judgment on the last permissible day. The contention is meritless. *1497 Plaintiff noticed her motion for summary judgment on December 2,1982, to be heard on December 17, 1982; notice was served on December 2. According to defendant’s opposition to the motion, trial was set for January 31, 1983. At that time, Code of Civil Procedure section 437c provided in pertinent part: “Notice of the motion and supporting papers shall be served on the other party to the action at least 10 days before the time fixed for hearing. The motion shall be heard no later than 45 days before the date of trial, unless the court for good cause orders otherwise.” The notice was served on defendant 15 days before the hearing, which was to be held 45 days before the date of trial; consequently, plaintiff complied with the law concerning the timing of her motion.
Defendant nevertheless asserts plaintiff violated a local court rule which provided a summary judgment motion noticed near the date set for trial is disfavored. Inasmuch as section 437c allowed such motions to be noticed and heard at least 45 days prior to the date of trial, it can only be motions noticed and heard after that time—which may be allowed only for good cause—which are disfavored. Plaintiff’s motion, noticed and heard within the statutory time limits, was not disfavored and the trial court had no cause to deny it on that ground.
Ill
Defendant asserts plaintiff’s motion for summary judgment or, in the alternative, an order specifying issues without substantial controversy, should have been denied as to the following triable issues of fact:
1. Whether plaintiff’s children were indispensable parties;
2. Whether defendant’s “guaranty” included the obligation to make payment in the event of default on the note;
3. If so, whether the obligation extended to plaintiff; and
4. Whether the assignment of the note was genuine.
We disagree with the assertions.
A motion for summary judgment properly is granted where the “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice... may be taken” in support of and in opposition to the motion “show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subds. (b), (c).) Where “it appears that the proof supports the granting of such motion as to some but not all of the issues
*1498
involved in the action ..., the court shall, by order, specify that such issues are without substantial controversy.” (Code Civ. Proc., § 437c, subd. (f).) Review of an order declaring an issue to be without substantial controversy is governed by the same standards as review of a summary judgment.
Tauber-Arons Auctioneers Co.
v.
Superior Court
(1980)
On a motion for summary judgment, the moving party’s papers are strictly construed, accepting as fact only those portions not contradicted by opposing papers
(Harding
v.
Purtle
(1969)
Here, the moving papers included two declarations by plaintiff, a declaration by plaintiff’s attorney, defendant’s admissions and answers to interrogatories, as well as pertinent documents. Defendant submitted no declarations or affidavits in opposition to the motion.
Whether Plaintiffs Children Were Indispensable Parties
As previously discussed, neither the promissory note, the guaranty, nor the assignment created a right of action against defendant for plaintiff’s children. Defendant presented no evidence which created a triable issue of fact as to whether the children had such a right or were indispensable parties. Therefore, this question was one which properly could be decided as a matter of law, and the court did not err in proceeding to summary judgment in the absence of the children.
Whether Defendant’s “Guaranty” Included the Obligation to Pay in the Event of Default
Defendant asserts there is a triable issue of fact as to whether the guaranty in the promissory notе is a legal obligation to pay all sums due on the note in the event of default or whether it is merely a guarantee as to the *1499 creditworthiness of the maker, Paine Instruments, Inc. The guaranty reads: “For a valuable consideration, the receipt of which is hereby acknowledged, we, the undersigned, do hereby jointly and severally guarantee to Monica Niederer, her successors and assigns, the prompt payment of each and every installment of the within note, when due, waiving any defenses that the maker could not maintain as maker. We also waive demand of payments, the protest and notice of protest of the written note.” Underneath the guaranty, at the bottom of the note, “Payment Guaranteed:” is written and, below that, are the signatures of defendant and the Paines.
Defendant admitted signing the original copy of the note, and that he “guaranteed payment” of the note in his individual capacity. He presented no evidence as to his intent at the time he signed the guaranty. His refusal to pay the balance due on the note is based on the assertion “[s]aid promissory note does not in its terms provide a written guarantee of defendant Frank E. Ferreira of any payments due pursuant to the note to plaintiff herein.”
The dispute between the parties centers on the meaning of the language of the guaranty; they do not challenge the document itself and they presented no extrinsic evidence as to their intent at the time the document was signed. Where the essence of the opposition to a motion for summary judgment is that the opposing party draws different legal conclusions than the movant from facts as to which the parties agree, resolution of the matter may be had on summary judgment as a matter of law.
(C.L. Smith Co.
v.
Roger Ducharme, Inc.
(1977)
Additionally applicable are the rules governing the interpretation of contracts. (Civ. Code, § 2837; 59 Cal.Jur.3d,
supra,
§ 22, p. 47; see
Bass
v.
Hueter
(1928)
The trial court found, in its order specifying issues without substantial controversy, “The language of the guaranty ... is in fact the guaranty of defendant Frank E. Ferreira to pay all sums then due and owing to Monica Neiderer [szc].” By inference, the court also found the guaranty to be clear and unambiguous and reasonably interpreted only to mean defendant guaranteed payment on the note in the event of the maker’s default.
The California Uniform Commercial Code section 3416, subdivision (1), provides: “ ‘Payment guaranteed’ or equivalent words added to a signature mean that the signer engages that if the instrument is not paid when due he will pay it according to its tenor without resort by the holder to any other party.” Thus, by law, the words beneath which defendant signed meant he would pay the amount owing on the note upon the maker’s default.
Further, according to the terms of the guaranty, defendant waived any defenses the maker could not maintain, demand of payments, the protest and notice of protеst of the written note. Such waivers would not be necessary if the guaranty was only as to the maker’s creditworthiness; their inclusion in the guaranty is reasonable only if it is a guaranty of payment.
Defendant asserts the language of the guaranty does not contain an explicit promise to pay in the event of default, and therefore cannot be interpreted to contain such a commitment. However, in light of California Uniform Commercial Code section 3416, subdivision (1), and the language of the guaranty, such an interpretation is the only one which reasonably may be made. Consequently, the trial court properly determined as a matter of law the guaranty was one of payment.
Defendant also cites a Georgia case which distinguishes a guarantor from a surety, holding the former merely warrants the principal’s solvency
(W. T. Rawleigh Co.
v.
Overstreet
(1944)
*1501 Whether the Obligation to Pay Extends to Plaintiff
Defendant contends the obligation to pay does not extend to plaintiff, in that: “No commitment to pay this plaintiff can be found from the language of the note. The guaranty clearly runs to the benefit of the payee and the fact that, for some recondite reason, the note mentions the plaintiff’s name cannot and does not give rise to a cause of action in her. If a promise to pay in the event of default exists it is not a promise to pay her, but to pay the named payee, Barnard Instruments, Inc. or order, and she has no standing to sue on that so-called guaranty, but the suit can only be brought by the entity which succeeds to the rights of the рayee. In other words, a guaranty of payment is for the benefit of the entity to whom the obligation is owed, and not to some third person who is not a party to the transaction.” (Italics original.)
A guaranty is either general or special. A special guaranty names a definite person as its obligee, and it may be enforced only by that person.
(Burkhardt
v.
Bank of America Nat. Trust & Sav. Ass’n
(1953)
Here, the guaranty specifically stated it was made to plaintiff. However, it guaranteed payment on the note, which was owed to Barnard Instruments, Inc. (subsequently Niederer Instruments, Inc.) not plaintiff. Assuming, as defendant contends, the guaranty is general, it passes with the transfer of the note. Plaintiff, as transferee of the note, would be entitled to the benefits of the guaranty. (CaLU.Com. Code, § 3201, subd. (1); 10 Cal.Jur.3d, supra, § 348, p. 350; 38 Am.Jur.2d, supra, § 36, p. 1034.) If the guaranty is special, plaintiff, again, as named obligee, would be entitled to its benefits. (Id., § 20, p. 1018.)
As previously discussed, there is no real dispute as to the facts. Rather, the dispute between the parties centers on the interpretation of the guaranty. Consequently, the question whether the guaranty ran to plaintiff’s benefit was one which properly was resolved as a matter of law by the trial court in its order specifying issues without substantial controversy.
(C. L. Smith Co.
v.
Roger Ducharme, Inc., supra,
Whether the Assignment of the Note Was Genuine
Defendant contends plaintiffs conflicting and contradictory deposition and declarations raised a triable issue of fact as to the genuineness of the assignment of the note. 2
Plaintiff stated, in her declaration in support of summary judgment: “On December 29, 1975, I executed a document on behalf of Niederer Instruments, Inc., transferring to me, individually and as the custodian for my children, the assets then remaining of Niederer Instruments, Inc., including said note, all of its liabilities having been satisfied. I hold an individual interest in the note to the extent of 3/5 of its proceeds and I hold a 2/5 interest in the note as the trustee and custodian for the interest of my children.” Included in the record is a copy of the document, labeled “Assignment,” dated December 29, 1975, in which Niederer Instruments, Inc. sells, assigns and transfers all of its interest in the note to plaintiff pursuant to a plan of liquidation.
However, in her deposition, plaintiff was asked: “Now, Mrs. Niederer, was the promissory note which we have been referring to ever transferred or assigned to you?” She responded: “No, not to my knowledge.”
Plaintiff explained her response in a supplemental declaration: “With respect to the testimony quoted in the opposition papers of Mr. Ferreira, that I denied that the promissory note was ‘ever transferred or assigned’ to me, I did not understand the question at the time Mr. Weiner [s/c] (Mr. Ferriera’s [sic] counsel) asked it. First, the promissory note had always been in my possession. Second, I did not understand the concept of assignment. I was represented at this deposition by Mr. Lande. The original assignment document was clipped to the original promissory note and in my safe deposit box. I had never given Mr. Lande a copy of the assignment. Much later, when Kathryn Tschopik of Lipofsky and Lande took over handling my case, she went through all of the documents in my former attorney’s possession regarding the winding up and dissolution of Niederer Instruments and found his copy of the assignment. Because Mr. Weiner [.sic] had made the contention that perhaps the assignment was false or a forgery, she prepared a decla *1503 ration which my former counsel signed authenticating all of the documentation prepared in connection with the winding up and dissolution of Niederer Instruments, Inc., including the assingment [s/c]. I have reviewed that declaration.”
Where a plaintiff’s admissions in a deposition contradict statements in the plaintiff’s affidavits opposing the summary judgment, “the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff’s admissions sufficient to pass the strict construction test imposed on the moving party ... , the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.”
(Leasman
v.
Beech Aircraft Corp.
(1975)
Plaintiff’s original declaration and deposition are in contradiction as to whether the note was transferred or assigned to her. However, her supplemental declaration explains this contradiction by her statement she did not understand the question asked of her at the deposition.
Moreover, defendant’s admissions show there is no real dispute as to the genuinenеss of the assignment. The record contains a number of checks drawn on the Barnard Instruments, Inc. account, signed by defendant, and made payable to plaintiff. These checks are for $1,100 each, written one per month from October 1977 through October 1978. Several other checks, drawn on the Barnard Instruments, Inc. account, signed by defendant and made payable to California First Bank, plus a check from Gear-Metrixx, Ltd. payable to plaintiff, total $10,646.07.
In his answer to the first amended complaint, defendant alleged the $10,646.07 in payments were made by him personally, to plaintiff, on the note. In his response to plaintiff’s second set of interrogatories and requests for admissions, defendant acknowledged payments on the note made through October 1978 and the $10,646.07 payments “were made either by defendant Frank E. Ferreira personally thrоugh the Barnard corporate account or by assignment of his interest in corporate funds.”
Defendant also admitted, in response to plaintiff’s first set of requests for admissions: “Payment in accordance with the terms of [the promissory] note were made until and including October 1, 1978.”
From the foregoing, it is clear defendant treated the note as assigned to plaintiff and accordingly made payments on the note, to her, over a period *1504 of time. He presented no evidence he ever challenged the genuineness of the assignment or plaintiffs right to receive payments thereunder.
Thus, the contradiction between plaintiffs deposition and original declaration is explained. The evidence also shows no genuine dispute as to the authenticity of the assignment. Consequently, summary judgment on this issue was proper and the court did not err in finding the genuineness of the assignment to be without substantial controversy.
IV
Defendant also asserts plaintiff failed to give consideration for the guaranty. The contention lacks merit.
Where, as here, the guaranty and principal obligation form one instrument and are entered into at the same time, consideration for the principal obligation also forms consideration for the guaranty.
(Bank of Italy
v.
Wetzel
(1927)
Defendant does not assert there was no consideration for the promissory note itself. There being consideration for the note, there also was consideration for the guaranty, executed contemporaneously with the note.
(Bank of Italy
v.
Wetzel, supra,
Additionally, the guaranty itself states it is made “[f]or a valuable consideration.” The written guaranty containing the recital of consideration constituted a prima facie showing of consideration, and it was defendant’s burden at trial to prove lack of consideration. (Civ. Code, §§1614, 1615;
Niederer
v.
Ferreira, supra,
V
Defendant avers the trial court erred in awarding attorneys’ fees to plaintiff. We disagree.
The promissory note provides: “If action be- instituted on this Note, the undersigned promises to pay such sum as the Court may fix as attorney’s fees.” The guaranty states the guarantors “guarantee... the prompt payment of each and every installment of the within note, when due____” It does not mention attorneys’ fees. The trial court found the guarantors promised to pay “every installment due pursuant to the note.” “Installment” was deemed to include payments of attorneys’ fees, as provided in the note, in that the term was “merely descriptive of payments due.” Additionally, defendant presented no evidence payment of attorneys’ fees was not contemplated by the guaranty.
As a general rule, attorneys’ fees are recoverable only if there is an express statutory or contractual provision therefor. (Code Civ. Proc., § 1021.) “A suretyship contract may specifically provide for attorneys’ fees, and attorneys’ fees may, in a proper case, be allowed when provided for in the principal contract secured by the suretyship obligation. Thus, where one guarantees payment of a note according tо its terms, and the note provides for attorneys’ fees, the judgment, in an action on the note and guaranty, may include attorneys’ fees.” (59 Cal.Jur.3d, supra, § 81, pp. 153-154.)
The guarantor’s obligation rests on the contract of guaranty, not on the note itself, and an action against the guarantor must be brought on the contract of guaranty.
(S.F.T. Seminary
v.
Monterey Co. G. & E. Co., supra,
*1506
First Nat. Bank
v.
Spalding
(1918)
Where a guaranty provided the guarantor will “ ‘pay said note in accordance with its terms on the due date thereof ” if the maker defaults, and the note provided for payment of attorneys’ fees while the guaranty did not, the guarantor was held liable for payment of attorneys’ fees incurred in a suit on the guaranty.
(California S. F. Corp.
v.
Bessolo & Gualano
(1931)
In the instant case, no extrinsic evidence was introduced as to the intention of the parties concerning attorneys’ fees at the time they entered into the guaranty contract. Consequently, its interpretation is a question of law based on its terms. (Civ. Code, §§ 1638,1639;
Abbott
v.
Hauschild, supra,
While the terms of the guaranty do not specifically provide for payment of attorneys’ fees in the event of a suit on the guaranty, the guaranty does, in essence, provide the guarantors will “perform” the underlying contract or make payment on the note in accordance with its terms in the event of default. Therefore, according to the previously stated authorities, defendant, as guarantor, agreed to pay attorneys’ fees, as provided in the note, if there was a suit against him on the guarаnty.
(California S. F. Corp.
v.
Bessolo & Gualano, supra,
*1507 VI
Defendant further avers the award of attorneys’ fees in the amount of $10,000 is excessive and unreasonable. Again, we disagree.
Where a contract provides for attorneys’ fees but does not specify a particular sum, it is within the trial court’s discretion to determine what constitutes reasonable attorneys’ fees.
(Walters
v.
Marler
(1978)
The major factors the trial court must consider in determining an attorneys’ fee award include: the nature of the litigation and its difficulty; the amount of money involved in the litigation; the skill required and employed in handling the litigation; the attention given to the case; the attorney’s success, learning, age and experience in the particular type of work demanded; the intricacy and importance of the litigation; the labor and necessity for skilled legal training and ability in trying the case; and the amount of time spent on the case.
(In re Marriage of Cueva
(1978)
Plaintiff here was awarded the principal sum of $9,455.12 plus interest in the amount of $4,777.13, for a total damage award of $ 14,232.25. Defendant avers the attorneys’ fee award of $ 10,000 was excessive in relation to the amount of the damages awarded. While the amount of money involved in the litigation is an important factor in determining an award of attorneys’ fees, defendant cites no authority for the proposition it is a controlling factor. It is not necessarily related to such other factors as the amount of time spent on the case, the complexity of the litigation, the skill and effort required of the attorneys. In a case involving attorneys’ fees awarded under 42 United States Code section 1988, the United States Supreme Court held an award of $245,456.25 was reasonable, even though the damages were only $33,350.00.
(Riverside
v.
Rivera
(1986)
Here, the trial court received into evidence the bills received by plaintiff for attorney services in connection with the action and checks showing her payment of those bills. Plaintiff’s attorney submitted a declaration explaining the charges and reviewing her own training and experience. The record also reveals successful steps undertaken in plaintiff’s behalf: discovery, the motion for summary judgment, response to defendant’s premature appeal and trial itself.
The trial court found the fees awarded were not excessive, in that: “1. Monica Niederer testified thаt at the time of the default, she had a conversation with Ferriera [íz'c] in which she asked him to pay and reminded him of his obligations as a guarantor; she further testified that during this conversation Ferriera [sic] told her that he wanted her to sue him because if a court ordered him to pay the debt he could pay it with ‘before tax dollars’ rather than with ‘after tax dollars’; that, in order to establish his right to this tax consequence, he would not pay when sued, but would raise a substantial defense; and that she should seek a good lawyer, because he had a good lawyer;
“2. Ferriera [szc] testified that the only part of the foregoing conversation that he could remember was that Monica Niederer asked him to pay the amount due;
“3. Plaintiff’s attorneys’ fees at the conclusion of trial exceeded $13,000.00;
“4. Plaintiff showed through the declaration of her counsel that the bulk of her attorneys’ fees were the result of various contentions and postures assumed by Ferreira____”
It is clear the trial court considered the evidence before it and the relevant factors in determining the amount of attorneys’ fees to be awarded. Although the award is large in proportion to the amount of damages awarded, it does not shock the conscience but is justified by other factors. Consequently, there was no abuse of discretion in the award.
(Iverson
v.
Spang Industries, Inc., supra,
*1509 VII
Defendant finally contends the judgment for cross-defendants B. A. and Barbara Paine on the cross-complaint is unsupported by the evidence and contrary to law. We cannot agree.
The trial court ruled, in its minute order: “Judgment for Cross-defendant on the cross-complaint by reason of set-off.” The record contains no statement of dеcision; counsel for the Paines was ordered to prepare, serve and file a statement of decision, which defendant claims was not done, but there is no indication why the record before us contains no statement of decision. Additionally, the cross-complaint and answer were not made a part of the record on appeal. Thus, the bases of defendant’s claim against the Paines, their defense, and the trial court’s ruling are not clear.
Defendant asserts it is uncontroverted he personally paid out $10,646.07 on the guaranty and no evidence was introduced which would support a setoff of the amount owed to defendant by the Paines; therefore, as a matter of law, he was entitled to a contribution from them of two-thirds the amount he paid. Defendant is correct that a guarantor who has pаid an obligation under a guaranty has the right to require contribution from coguarantors. (Civ. Code, §2848;
Gelbach v. Dewey
(1930)
However, defendant misstates the record. It is uncontroverted he paid $10,646.07 to plaintiff from his own funds but there is substantial evidence showing this payment was made on the note on behalf of Barnard Instruments, Inc., not on the guaranty on defendant’s own behalf. Additionally, the Paines introduced evidence apparently intended to show defendant misappropriated certain assets of Barnard Instruments, Inc., of which the Paines were shareholders, and this may have been the basis of the setoff.
Hampering our further review of defendant’s contention is his failure to include the cross-complaint and answer thereto in the record оn appeal. We do not know the basis of his claim against the Paines, so it cannot be determined whether the trial court ruled properly on the claim. It is an appellant’s duty to present a record from which the appellate court can determine whether there has been error; failure to do so results in affirmance.
(Roberts
v.
Home Ins. Indem. Co.
(1975)
*1510
Additionally, a reviewing court begins with the presumption the record contains evidence sufficient to support the judgment, and it is an appellant’s burden to demonstrate there is no substantial evidence to support the judgment.
(Foreman & Clark Corp.
v.
Fallon
(1971)
Defendant here does not refer in his brief to any of the evidence presented by the Paines; he does not demonstrate why it is legally or factually insufficient to support the judgment in their favor. This failure, along with the inadequate record, must be deemed to waive defendant’s final contention on appeal.
The judgment is affirmed.
Devich, J., and Woods (N. F.), J., * concurred.
Notes
A default subsequently was entered against the Paines.
The court on the summary judgment motion found a transfer had occurred but did not identify it as an assignment. (Niederer v. Ferreira, supra, 150 Cal.Ap.3d 219, 224.) Neither did the trial court specify the type of transfer. Inasmuch as it is labeled an assignment and the parties refer to it as such, we also call it an assignment. ■
Assigned by the Chairperson of the Judicial Council.