Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. LD022039, Susan K. Weiss, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Syrus Parvizian, in pro. per., for Appellant.
Law Office of Alex Powell and Alex Powell for Respondent.
VOGEL, Acting P.J.
This is an appeal from an order granting a judgment creditor’s motion for an order for the sale of the judgment debtor’s real property. We reject the judgment debtor’s claim that the trial court should have found that he had a homestead exemption and affirm the order.
FACTS
Malak and Syrus Parvizian married in 1967, separated in 1997, and have been litigating various issues ever since.
A.
In In re Marriage of Parvizian (May 21, 2003, B158111, [nonpub. opn.]), we affirmed (1) a default judgment entered in favor of Malak and (2) an order denying Syrus’s motion to vacate the default judgment. Malak recorded an abstract of the judgment in her favor and against Malak in the judgment amount of $218,491.07.
In Parvizian v. Jewett (Dec. 10, 2003, B163437, [nonpub. opn.]), Division Seven of our court reversed a defense judgment entered in a legal malpractice action brought by Syrus against his former lawyer (Margaret A. Jewett). (See also Parvizian v. Jewett (Mar. 22, 2006, B179122, [nonpub. opn.]), an unsuccessful appeal by Syrus in the legal malpractice action.)
In Parvizian v. Parvizian (Oct. 17, 2005, B178609, [nonpub. opn.]), an action by Malak against Syrus and Parviz Parvizian (to whom Syrus had fraudulently conveyed real property in Calabasas) to set aside Syrus’s fraudulent transfers, Division Five of our court affirmed a judgment in favor of Malak. (See also Parvizian v. Parvizian (Aug. 17, 2007, B191718, [nonpub. opn.], another appeal in the fraudulent transfer action.) The judgment in the fraudulent transfer case orders Parviz to reconvey the Calabasas property to Syrus, and gives Malak the right to execute her marital dissolution judgment against the Calabasas property.
In In re Marriage of Parvizian (Feb. 28, 2008, B194981, [nonpub. opn.]), we affirmed the trial court’s order denying Syrus’s renewed motion to vacate the default judgment in the marital dissolution proceedings.
B.
Meanwhile, in July 2006 in the marital dissolution proceedings, the trial court issued a writ of execution in favor of Malak to enforce the judgment against Syrus in the amount of $321,166.80 (the amount of the judgment plus interest). In November, Malak applied to the court for an order for the sale of the Calabasas property, explaining in her application that the property was not subject to any homestead declarations by Syrus or Parviz, express or implied, because they had been voided by the judgment in the fraudulent transfer action (which expressly gave Malak the right to levy against the Calabasas property for the full amount due to her under the marital dissolution judgment).
The trial court issued an order to show cause and set the matter for hearing on December 18, 2006, after which the court granted Malak’s application, finding on “proof made to the satisfaction of the court that the property is not subject to a homestead exemption in the amount of $150,000 (or in any amount); that the fair market value of the dwelling is $975,000”; that the property was to be sold, and that Malak was permitted “to make a credit bid to satisfy the amount due” to her under the marital dissolution judgment (at that time, $321,166.80 plus interest accruing at $59.86 per day from July 26, 2006).
Syrus filed a timely notice of appeal, and shortly thereafter filed a petition for a writ of supersedeas in which he asked us to stay the sale. We refused to issue a stay, and presume the property has been sold.
DISCUSSION
In his pro se brief on appeal, Syrus contends he was entitled to a $150,000 homestead exemption. We disagree.
Before the 1982 enactment of the Enforcement of Judgments Law (Code Civ. Proc., §§ 680.010-724.260; Stats. 1982, ch. 1364, p. 5070 et seq.), a homestead could be created only by a declaration recorded by the owner of real property. Now, however, an owner (independent of his right to record a declared homestead) automatically has a homestead exemption on his dwelling as protection against an execution sale. (§§ 704.910-704.995 [declared homestead], 704.710-704.850 [implied dwelling homestead]; Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2007) Property Exempt from Enforcement of Money Judgments, § 6:1036, p. 6E-64.7.)
All section references are to the Code of Civil Procedure.
To prove his claim to a dwelling homestead at the time of the hearing on Malak’s motion for an order for the sale of the Calabasas property, Syrus had the burden of proof to establish (1) that the property was his dwelling (§ 704.710, subd. (a) [dwelling is “a place where a person resides”]) and, to determine the amount of the exemption, (2) his age and health (the basic exemption is $50,000 but increases to $150,000 for judgment debtors who are at least 65 years old or disabled). (§ 704.730.) When a homestead (dwelling or declared) is established, the dwelling may not be sold at an execution sale unless the bid amount is sufficient to satisfy all liens and encumbrances plus the amount of the homestead exemption. (§ 704.800.)
Syrus points to nothing in the record to establish that he was living in the Calabasas house at the time of the execution sale, nothing to establish the existence of a declared homestead, nothing to establish his age. The record references in his brief are to pages that do not exist (i.e., he provided a one-volume clerk’s transcript consisting of 278 pages but refers to page numbers in the 300’s). We have nevertheless looked at the opposition papers he filed in the trial court and found only conclusions -- that he was entitled to a homestead -- no facts, no evidence. There is no reporter’s transcript of the hearing on Malak’s motion for an order for the sale of the property.
Although Syrus states in his brief that his family “was living” on the property for about 25 years and that he is over the age of 65, there is no such evidence in the record. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 577-578 [statements in an appellate brief are not evidence and cannot be considered on appeal when no such evidence was presented to the trial court].)
In short, Syrus has failed to provide a record sufficient to permit meaningful review. Accordingly, the presumptively correct judgment must be affirmed on this ground. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [an appellant’s failure to provide an adequate record is fatal to his appeal].)
DISPOSITION
The judgment is affirmed. Malak Parvizian is awarded her costs of appeal.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.