Filed 8/27/26 Cooke v. Parton CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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
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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.