Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 233573
ROBIE , J.
“A legal claim is not like a fine wine that gets better with age. It is more like milk, which spoils after its expiration date.” (U.S. v. Machado (11th Cir. 2006) 465 F.3d 1301, 1307.) If this is true, then this case is the equivalent of spoiled milk. It stems from a partnership dispute that occurred sometime in the late 1980’s, which led to the filing of a complaint in 1991, which led to a trial in 1996, which led to a tentative decision in 1997, which led to further trial in 2000, which -- eventually -- resulted in the filing of a third amended judgment in 2004, from which the parties filed these appeals, which we now decide in 2007.
The primary reason the case is spoiled is that somewhere along the way, a substantial portion of the reporter’s notes from the trial in 1996 went missing. This has led plaintiffs to ask us to vacate the judgment and order a new trial pursuant to section 914 of the Code of Civil Procedure. We decline to do that because plaintiffs have failed to show that the missing testimony is necessary for proper consideration of the one issue they manage to raise on appeal -- whether the trial court erred in awarding partnership property to a nonpartner. As we will explain, the trial court’s ruling was based on its determination that the property was essentially worthless at the time the partnership was dissolved in 1997. Plaintiffs have not shown that the missing testimony would have a bearing on the propriety of that determination; thus, a new trial is not warranted. Furthermore, we reject plaintiffs’ assertion of trial court error because their argument ultimately rests on suggestions of what value the property may have had years later, after the partnership was dissolved and the property disposed of, which is irrelevant to the trial court’s determination of the value of the property in 1997.
We also reject defendants’ claim of error, which is that the trial court erred in failing to prepare a statement of decision. As will be shown, the trial court did prepare a statement of decision, although not in the conventional manner, and defendants have failed to demonstrate any reversible error in the trial court’s findings. Accordingly, we will affirm the judgment and put this case to a long-awaited end.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1991, Terry Vivian, Glen Vivian, and Armando Murillo (jointly plaintiffs) filed a verified complaint against Jerry Cearley, Sr., Bonnie Cearley, Jerry Cearley, Jr., and Michael Cearley (jointly defendants or the Cearleys) alleging breach of a partnership agreement. More specifically, the complaint alleged as follows:
In April 1987, Terry Vivian and Armando Murillo entered into a written general partnership agreement with Jerry Cearley, Jr., for the purpose of developing and redeveloping real estate. Subsequently, they all orally agreed to include Glen Vivian as a partner. Under the agreement, the partners were to contribute labor, and each of the partners was to have an equal ownership interest in the partnership.
Later, the partners orally agreed to include Jerry Cearley, Sr., as a partner. Under the terms of the agreement, Jerry Cearley, Sr., was to purchase “in his name and on his credit” real property located at 2606 South Harrison Street in Stockton for the partnership to renovate. Jerry Cearley, Sr., was to make a $10,000 down payment on the property, which he was to recoup (along with an additional $10,000 as interest) on sale of the property.
In May 1987, Jerry Cearley, Sr., bought the South Harrison Street property, which was recorded in his name and that of his wife, Bonnie Cearley.
The complaint went on to allege that in or about April 1988, defendants assumed control of and excluded plaintiffs from the project without making any accounting to them. Plaintiffs claimed that defendants engaged in various actions in violation of the partnership agreement, including borrowing funds against the property without approval of the partners and using partnership funds to purchase assets for their personal use. Among other things, plaintiffs sought dissolution of the partnership, an accounting, and damages. They also sought a determination that the South Harrison Street property was a partnership asset and that Michael Cearley and Bonnie Cearley had no interest in the partnership.
Defendants filed a verified answer in June 1991. They admitted formation of the partnership as alleged in the complaint, except that they denied Jerry Cearley, Sr.’s, down payment was to be returned to him only on sale of the property and they claimed Jerry Cearley, Sr., was to receive two shares of the partnership instead of one. They denied all the allegations of wrongdoing. As an affirmative defense, defendants alleged (among other things) that plaintiffs themselves had breached the partnership agreement, although defendants did not specify how.
Litigation of the case dragged on for the next five years, with the case finally coming to trial in May 1996. Testimony began on May 7. Three witnesses testified that day, including two of the plaintiffs, Armando Murillo and Glen Vivian. Unfortunately, only the testimony of the third witness appears in the reporter’s transcript on appeal; the testimony of the two plaintiffs was not transcribed because by the time transcription of that testimony was requested, the reporter’s notes had apparently been destroyed.
Testimony continued on May 8, 1996, with three more witnesses testifying, including the remaining plaintiff, Terry Vivian. No portion of the testimony given on May 8 appears in the reporter’s transcript on appeal due to the loss or destruction of the reporter’s notes.
Three more days of testimony followed. Of the nine witnesses who testified on those days, the testimony of three of them is missing from the reporter’s transcript due to the loss or destruction of the reporter’s notes.
According to the trial minutes, in the midst of plaintiffs’ case, the trial court ruled that the South Harrison Street property was a partnership asset and personal funds were not to have been commingled with the partnership account. The trial minutes further indicate that following all of the testimony, the parties stipulated to present three questions to the jury regarding facts prior to 1991, with the remainder of the disputed issues to be “presented after an accounting of newly produced evidence is prepared.” The special verdict returned by the jury the next day, however, contains only two questions. In answering those questions, the jury decided that: (1) Jerry Cearley, Sr., held only one share of the partnership; and (2) Michael Cearley was a partner.
Subsequently, the parties filed posttrial briefs with the court. Plaintiffs requested hundreds of thousands of dollars in damages; defendants argued “the judgment should be zero.” The final brief was filed on October 11, 1996. Ten months later, on August 11, 1997, the trial court issued a one-page “Intended Decision,” as follows:
“Each Plaintiff (3) is entitled to $27,773 plus one-sixth of any attorney fees paid in excess of $58,250.
“Proof of attorney fees paid by the partnership in excess of the amount to be supplied within ten days.
“Income and expense itemization to be submitted to the Court covering the period from last day of trial to present.
“All paperwork on any new loans to be provided.
“Unless parties can agree to disposition of property a partition sale will be necessary.”
On August 20, 1997, defendants filed a request for a statement of decision pursuant to section 632 of the Code of Civil Procedure. Defendants also notified the court that Jerry Cearley, Sr., had died.
As far as can be determined from the record, nothing of substance appears to have happened in the case for nearly a year and eight months following defendants’ request for a statement of decision. Then, in April 1999, defendants filed a motion to vacate the intended decision. Defendants argued the South Harrison Street property was encumbered with more debt than the property was worth and thus “in essence, has no value.” Defendants asked that the court either dismiss the case for lack of prosecution or enter a new tentative ruling in their favor.
A hearing on the motion was set for May 1999 but then apparently continued to July. At the hearing in July, the court continued the matter to October but noted that if plaintiffs could assume the loan on the property within 90 days, the issue would resolve. In October, the matter was continued again to December with the court noting that plaintiffs would get a new appraisal. In December, the court denied defendants’ motion to vacate the intended decision and continued the matter to January 2000 regarding the appraisal.
In January 2000, plaintiffs apparently told to the court that they could not afford to obtain an appraisal of the property. Thereafter, the court set the case for further trial in September 2000. According to defendants’ trial brief, the purpose of the further trial was to determine: (1) the equity in the project, if any; (2) the contributions of Bonnie Cearley; (3) the reasonable value of management fees; and (4) partner liability. According to plaintiffs’ brief, the purpose of the hearing was to provide “an accounting of profits and losses regarding the real property from date of conclusion of presentation of evidence to the present” and to determine “Bonnie Cearley’s claim for payment for managing the South Harrison Street Property and reimbursement for outlays incurred in repairing the property.”
On September 11, 2000, an appraiser testified for defendants. On September 13, Bonnie Cearley and her accountant testified. The hearing resumed on September 19, at which time the court apparently ordered the parties to submit closing briefs, which they did -- plaintiffs on October 3 and defendants on October 17. The matter then stood submitted.
Eight months later, on June 13, 2001, the court issued its decision. The court determined that the property had net income from 1996 through 1999 in the amount of $15,210 and that Bonnie Cearley was entitled to a management fee of $20,104 (10 percent of gross rents). The court ultimately determined that defendants were entitled to “a net award of $17,080,” which was “to be a credit from the prior findings of this court in favor of the three Plaintiffs.” The court further ordered the property to be sold with the “proceeds distributed accordingly.”
Defendants moved for reconsideration. That motion was argued at a hearing on September 27, 2001. At that time, defendants reiterated their request for a statement of decision. The court told the parties, “You will hear from me.”
Nearly five months later, on February 14, 2002, the court granted the motion for reconsideration. The court noted that it had “overlooked a basic principle of partnership law when rendering its decision. A partnership is to be evaluated at the time of its dissolution.” Based on the principle, the court found “its decision of a few years ago final and as the partnership asset is over-encumbered and Mrs. Cearley is the sole person responsible for such debt, the Court awards her the property in question.”
Defendants apparently submitted a judgment in March 2002, but the court did not sign it. Instead, on August 22, 2002, the court issued a ruling in which the court purported to “clarify” its earlier decisions of August 7, 1997, and February 14, 2002, by explaining its basis for determining that each plaintiff was entitled to $27,773. The court directed plaintiffs’ counsel to submit a judgment and “statement of decision, if requested.”
Defendants filed another motion for reconsideration. That motion was apparently argued at a hearing on October 4, 2002. Eight months later, on June 2, 2003, the court denied the motion and added the following: “The court determined judgment based upon the following facts. One son received $15,000.00 from the partnership account, one received $10,000.00 and Attorney Meleyco received attorney fees of $52,000.00, plus the balance of the amount were personal expenses on credit cards paid by the partnership. [¶] Plaintiff is to prepare judgment and these findings constitute the statement of decision.”
Defendants filed a motion to vacate the June 2 ruling. At a hearing on that motion on July 29, 2003, plaintiffs argued they did not “have sufficient information to prepare the judgment.” Once again, the court told the parties, “You’ll hear from me.”
Apparently the next thing that happened was that the court prepared and filed its own judgment in the case on September 26, 2003. That judgment does not appear in the record, but on October 9, 2003, defendants filed a motion for a new trial or to vacate the judgment. The trial court granted the motion to vacate the judgment and on December 31, 2003, entered a new judgment prepared by defendants which simply decreed that the South Harrison Street property belonged to Bonnie Cearley.
Continued wrangling over the proper form of the judgment apparently continued for another six months, until July 13, 2004, when the court entered a third amended judgment. That judgment, prepared by plaintiffs: (1) dissolved the partnership “nunc pro tunc to the time of first decision”; (2) determined that “[d]efendants misappropriated funds derived from the assets of the Sun Valley Development Partnership”; (3) awarded each plaintiff $27,773; and (4) declared that Bonnie Cearley was the sole owner of the South Harrison Street Property.
Both sides filed timely notices of appeal from the third amended judgment, defendants in July 2004 and plaintiffs in August 2004 -- both more than eight years after the original trial in May 1996.
On July 26, 2004, the same day they filed their notice of appeal, defendants filed a request for preparation of the reporter’s transcript, but they designated less than all of the testimony given at trial. Most notably, defendants failed to designate any of the testimony from plaintiffs themselves. Despite designating less than all of the trial testimony, defendants did not comply with former rule 4 (now rule 8.130(a)(5)) of the California Rules of Court, which provides that “[i]f the appellant designates less than all the testimony, the notice must state the points to be raised on appeal.”
Despite defendants’ failure to designate all of the testimony for inclusion in the reporter’s transcript and failure to state the points to be raised on appeal, plaintiffs did not file a notice designating any additional testimony for inclusion in the transcript. (See Cal. Rules of Court, rule 8.130(a)(2).) Nearly a month later, however, on August 23, 2004, plaintiffs filed a notice of cross-appeal. Nearly two months after that, on October 12, 2004, plaintiffs then filed their own Notice Designating Record on Appeal, which included a provision that was apparently intended to designate for inclusion in the reporter’s transcript all of the testimony given at trial in May 1996. Unfortunately, the provision did not accomplish its intended goal.
After several extensions of time, the reporter’s transcript was filed with this court on March 16, 2005. On April 5, 2005, plaintiffs filed a motion to augment the reporter’s transcript to include the testimony of the five witnesses whose testimony defendants had failed to designate. Plaintiffs asserted that the testimony of these witnesses was “relevant, important, and necessary for a proper adjudication of the issues involved in this appeal.” This court granted plaintiffs’ motion.
Thereafter, on May 12, 2005, defendants filed their own application to augment the reporter’s transcript. They pointed out that the testimony of two witnesses specifically identified in their notice to prepare the reporter’s transcript had not been transcribed because the witnesses had testified on different dates than those shown in their notice designating the transcript. They asked that the testimony of those witnesses be added to the transcript “because this material is necessary for the determination of the appeal.” This court granted defendants’ application to augment also.
In July 2005, this court received a declaration from the court reporter stating, essentially, that she was unable to provide a transcript of the testimony of the two witnesses who were the subject of defendants’ application to augment because “the reporter’s notes for the dates requested are no longer available.” The reporter did not specifically assert the notes had been destroyed, but she intimated as much by referring to the five-year period for preserving reporter’s notes in civil cases. (See Gov. Code, § 69955, subd. (e).)
A month later, this court received a second declaration from the court reporter, this one in reference to the testimony of the five witnesses who were the subject of plaintiffs’ motion to augment the record. Again, she stated that “the reporter’s notes for the dates requested are no longer available” and referred to the five-year period for preserving notes in civil cases.
Shortly after receipt of this second declaration, plaintiffs filed a motion with this court to vacate and set aside the judgment and order a new trial based on the loss or destruction of the reporter’s notes. Defendants did not file any opposition or response to the motion. The court deferred ruling on the motion pending calendaring and assignment of the panel.
DISCUSSION
I
New Trial Motion
We begin with plaintiffs’ motion.
Section 914 of the Code of Civil Procedure provides that “[w]hen the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule, because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”
When a party seeks a new trial based on the impossibility of securing a reporter’s transcript, “there must be a showing . . . of the presence of substantial issues showing the necessity for one, and of reasonable diligence.” (Duarte v. Rivers (1949) 90 Cal.App.2d 152, 155; see also Aylmer v. Aylmer (1956) 139 Cal.App.2d 696, 703 [abuse of discretion to deny motion for new trial when “it affirmatively appears that the [missing] evidence . . . is necessary to a proper determination of the claims . . . on . . . appeal, that the reporter’s notes could not be read; that there was no unnecessary delay in bringing to the court’s attention the necessity of having a reporter’s transcript prepared in case of an appeal . . . , and [when] there appears to be no adequate ground to hold that [appellants] waived their right to move for a new trial”].)
In their motion, plaintiffs argue that a transcript containing the missing testimony is necessary for their appeal because in that testimony is evidence “which support[s] plaintiffs’ claim that the property in question in this appeal belongs to the partnership that existed between the parties.” They also argue that “[t]he way and manner as to which the partnership arose and as to which the sole partnership asset was acquired are important and relevant to this appeal.”
We are not persuaded. At the trial in 1996, the court found the South Harrison Street property was a partnership asset, and consistent with that finding the judgment expressly provides that the property “is an asset of the Sun Valley Development Partnership.” Neither defendants nor plaintiffs have challenged that finding on appeal. Thus, evidence supporting plaintiffs’ assertion that the South Harrison Street property belonged to the partnership is not necessary to a proper determination of the claims on appeal because that assertion is undisputed.
Plaintiffs have raised the issue of whether the trial court properly awarded the property to Bonnie Cearley, who was not a member of the partnership. However, they fail to explain what bearing the missing testimony could reasonably be expected to have on that question, if any. They further fail to explain why evidence of “[t]he way and manner as to which the partnership arose and as to which the sole partnership asset was acquired” is necessary to a proper determination of that issue, or any other issue raised before this court.
In the absence of any persuasive showing of necessity for the missing testimony, we deny plaintiffs’ motion for a new trial under Code of Civil Procedure section 914.
II
Defendants’ Appeal: The Statement Of Decision
The sole claim of error defendants make in their opening brief is that the judgment -- with the exception of the award of the property to Bonnie Cearley -- should be reversed because the trial court failed to issue a statement of decision. We conclude defendants have failed to show any reversible error.
Section 632 of the Code of Civil Procedure provides in relevant part that “upon the trial of a question of fact by the court” “[t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial . . . made within 10 days after the court announces a tentative decision . . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”
Here, the trial court announced its intended decision on August 11, 1997, and defendants filed their request for a statement of decision nine days later. That request essentially asked the court to make findings on 13 issues (set out in the margin).
Defendants contend “[n]o statement of decision was ever forthcoming,” but that is not true. Although no document with that title appears in the record, in two later rulings, the trial court attempted to explain the basis for the monetary award in its intended decision of August 1997. Specifically, in its ruling of August 22, 2002, the court explained that it “determined each plaintiff was entitled to $27,773.00 based upon the testimony concerning the money given to the Cearleys from the partnership accounts, the amount of attorney fees paid in the sum of $58,250.00 and the amount siphoned off the refinancing loans for the Cearleys’ personal use. The court also considered that the Cearleys were requesting reimbursement for personal funds expended on the properties as evidenced by the credit cards whereas credit card balances were paid when the Cearleys refinanced the property, thereby, getting a double recovery.”
Later, in its ruling of June 2, 2003, denying defendants’ motion for reconsideration of the August 2002 ruling, the court added that it “determined judgment based upon the following facts. One son received $15,000.00 from the partnership account, one received $10,000.00 and Attorney Meleyco received attorney fees of $52,000.00, plus the balance of the amount were personal expenses on credit cards paid by the partnership.” The court also specified that “these findings constitute the statement of decision.”
Consequently, the question here is not whether the trial court failed to issue a statement of decision, but whether what the trial court identified as its statement of decision met the requirements of the law, and if not, whether the deficiency constitutes reversible error. In answering that question, we must keep in mind that “‘[a] judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) That means it is defendants’ burden to demonstrate to us how the trial court’s statement of decision was insufficient and why that insufficiency constitutes reversible error.
Defendants have failed to carry that burden. First, defendants have failed to demonstrate any insufficiency in the trial court’s statement of decision. “In issuing a statement of decision, the trial court need not address each question listed in a party’s request. All that is required is an explanation of the factual and legal basis for the court’s decision regarding such principal controverted issues at trial as are listed in the request.” (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1525.) This means that to show error, defendants must identify one or more principal controverted issues listed in their request for a statement of decision and show us how the trial court failed to adequately explain the basis for its decision on those issues consistent with the requirements of the law.
Defendants have not done that. At best, we understand them to argue that in its rulings of August 2002 and June 2003, the trial court did not adequately explain how it determined that each plaintiff was entitled to $27,773. To that end, defendants complain the figures in the court’s June 2003 ruling ($10,000 plus $15,000 plus $52,000) do not add up to the total amount the court awarded the three plaintiffs, ($83,319) then they ask, “When were these amounts taken?”
The problem with this “argument” is two-fold. First, the fact that the figures the court mentioned in its June 2003 ruling do not add up to the total amount awarded to the three plaintiffs does not demonstrate any legal insufficiency in the trial court’s statement of decision. In its ruling, the court explained that “[o]ne son received $15,000.00 from the partnership account, one received $10,000.00 and Attorney Meleyco received attorney fees of $52,000.00, plus the balance of the amount were personal expenses on credit cards paid by the partnership.” (Italics added.) Thus, the court made clear that the total amount of the award was made up of more than just the $25,000 the two sons received and the $52,000 the attorney received; it also included personal expenses of defendants that were charged on credit cards paid off with partnership funds. Defendants, however, have ignored the italicized portion of the court’s ruling in their argument and thus misrepresent the true substance of that ruling. This is not the way to show trial court error.
As for defendants’ question (“When were these amounts taken?”), that does not amount to proper legal argument. In any event, “A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence.” (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co., supra, 200 Cal.App.3d at p. 1525.) Thus, the trial court was not obliged to specifically identify for defendants the exact, evidentiary bases for its determination that the three plaintiffs were entitled to $27,773 each. It was sufficient that the court generally identified the basis for the award, e.g., that defendants had misappropriated funds derived from partnership assets in the form of money defendants took from the partnership accounts, the amount of fees defendants paid their attorney with partnership funds, and the amounts defendants siphoned off the refinancing loans for their personal use.
Even if we assume the trial court’s explanation of the basis for its award was not sufficient and that defendants have thus demonstrated an insufficiency in the trial court’s statement of decision, defendants’ arguments fail for another reason -- they have failed to show reversible error.
“Failure to find on a material issue is usually reversible error. But a failure to include a finding on a material issue is harmless when there is no substantial evidence to support the position of the appealing party. An appellant suffers no prejudice from the failure to make a finding on a material issue if the evidence would have compelled a finding adverse to him.” (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 304.) Similarly, “Even though a court fails to make a finding on a particular matter, if the judgment is otherwise supported, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings.” (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co., supra, 200 Cal.App.3d at p. 1525.)
The problem these rules pose for defendants is that under them, to demonstrate reversible error in the failure of the trial court to make an adequate finding of the basis for its monetary award to the three plaintiffs, defendants must point to evidence sufficient to sustain a finding in their favor on the disputed point. In other words, if it is defendants’ position that no award was justified because they did not misappropriate any money from the partnership, they must show us the evidence is sufficient to sustain a finding that there was no misappropriation. They have not done so. Indeed, they cannot do so, since sufficiency of the evidence must be judged “in light of the record as a whole” (Estate of Fain (1999) 75 Cal.App.4th 973, 987), and here we do not have a complete record because substantial parts of the testimony from the trial in 1996 are missing.
In essence, the incompleteness of the reporter’s transcript makes it impossible for us to determine whether any insufficiency in the trial court’s statement of decision amounts to reversible error, because we cannot determine, based on the record as a whole, whether the evidence would have been sufficient to support a finding in defendants’ favor.
It bears noting that defendants are responsible for their own predicament. First, it does not appear that in the eight years that elapsed between the trial in May 1996, and the filing of their notice of appeal in July 2004, defendants made any effort to ensure that the reporter’s notes would be preserved for purposes of preparing a reporter’s transcript on appeal, if one ultimately turned out to be necessary. Second, when they did designate the reporter’s transcript in July 2004, they failed to designate a complete transcript, even though they must have understood at that time that they wanted to challenge the sufficiency of the evidence supporting the trial court’s monetary award, and should have understood that a complete transcript would be necessary to validly mount such a challenge. Had defendants requested a complete transcript at that time, the testimony now missing likely would have been transcribed, and we would not be where we are today.
Because defendants have failed to demonstrate any reversible error in the trial court’s statement of decision, their appeal is without merit.
III
Plaintiffs’ Appeal:
Award Of A Partnership Asset To A Nonpartner
For their part, plaintiffs complain that the trial court erred in awarding the South Harrison Street property to Bonnie Cearley because she was not a member of the partnership. We find no error.
The court awarded the property to Bonnie Cearley based on its determination that the property was “over-encumbered” with debt and she was the sole person responsible for that debt. In essence, the court determined that at the time the partnership was dissolved -- which happened in 1997 when the trial court issued its initial decision following the trial in 1996 -- the South Harrison Street property had no value because it was encumbered with more debt than it was worth. Thus, the court simply confirmed what was essentially a worthless piece of property to Bonnie Cearley -- the person whose name was on title to the property and the person who was personally responsible for all of the debt encumbering the property.
In arguing this was error, plaintiffs devote almost all of their time to arguing two issues that are not in dispute: (1) that the property was a partnership asset; and (2) that Bonnie Cearley was not a partner. The real question here, however, is whether the trial court erred in awarding a partnership asset to a nonpartner based on the court’s determination that the property had no value because it was encumbered with more debt than it was worth and the nonpartner was solely responsible for that debt.
What little argument plaintiffs offer on this point is not persuasive. They contend “[t]he claim that there is no equity [in the South Harrison Street property] can not [sic] hold water,” but in making that argument they fail to acknowledge the relevant time frame or address any evidence relating to that time frame. As we have explained, the trial court’s ruling to confirm the South Harrison Street property to Bonnie Cearley was based on its determination that the property was essentially worthless in 1997, when the partnership was dissolved and the partnership’s assets disposed of. To validly challenge the trial court’s decision on this point, plaintiffs would have to show there was no substantial evidence in the record to support the trial court’s determination of the lack of value in the property at the time the partnership was dissolved. Plaintiffs fail to do that. Instead, they offer argument (and supposed evidence) of what the property was worth years later. First, they cite portions of a motion for stay of judgment they filed in the trial court in January 2005, after these appeals were taken, in an effort to show “there was at least over $200,000.00 equity in [the South Harrison Street property] in July 2004.” Second, they cite various materials of which they have asked this court to take judicial notice (consisting primarily of newspaper articles published between December 2004 and March 2006) in an effort to show that there has “been a steady increase in the value of houses in Northern California and the Bay Area of California.”
Even if we assume for the sake of argument that these materials are properly before us, they prove nothing about what the property was worth in 1997, at the time the partnership was dissolved and the property disposed of. Evidence that the property had equity in it at various points in the decade that followed dissolution of the partnership, after it was awarded to Bonnie Cearley and thereby ceased being a partnership asset, is of no value to us.
Because plaintiffs have failed to challenge the trial court’s determination that the South Harrison Street property was essentially worthless in 1997, when the partnership was dissolved, they have failed to demonstrate any error in the award of the property to Bonnie Cearley.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(4).)
We concur: SIMS , Acting P.J., HULL , J.
Points raised in a reply brief for the first time will not be considered unless good reason is shown for failure to present them before. (See, e.g., Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) Because defendants have made no such showing here, these additional claims of error are not properly before us, and we decline to consider them.
“2. Why there is no differentiation between the Plaintiffs (i.e., one Plaintiff dropped approximately one year before the other two).
“3. The names of the Defendants responsible for such sums (as indicated in Question No. 1) and legally why they are each individually responsible.
“4. The amount of monies, if any, the Court determined were taken by Defendant, JERRY CEARLEY, SR., from the project that he was legally not entitled to withdraw.
“5. The amount of monies and/or materials, if any, the Court determined were taken by Defendants individually and the accounting.
“6. An explanation of the accounting in the manner with specific references as to foundation for all determinations.
“7. What affect the appraisal testimony had to the decisions to the amounts awarded the Plaintiffs.
“8. How much equity in the project there existed on the day each Plaintiff dropped out of the partnership.
“9. How much was determined to be due in the accounting to the effects of JERRY CEARLEY, SR., after the project was finished for management and also for the period of time since the trial.
“10. How the property can be disposed of by partition due to zoning laws and the loan on the property.
“11. If the Court determines that the property should be sold, then how any deficiency between the sale proceeds and loan payoff is to be paid.
“12. How much each of the Defendants are entitled to due to their individual effects.
“13. Since this was only an accounting action, why there was not [a] breakdown as to what each partner was entitled to.”