Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RID203422 Becky Dugan, Judge.
Derick Payne, in pro. per., for Appellant.
Law Offices of Randy Alexander and Randy Alexander for Respondent.
OPINION
King, J.
I. INTRODUCTION
The trial court entered a judgment dissolving the marriage of Derick Payne and Lorna Reid, and dividing their property. Thereafter, Payne filed a motion for new trial based upon alleged newly discovered evidence, perjury, and fraud by Reid. The court denied the motion. Payne appealed. Reid requests that Payne be sanctioned for filing a frivolous appeal.
We affirm the court’s order denying the motion for new trial and deny Reid’s request for sanctions.
II. SUMMARY OF FACTS AND PROCEDURAL BACKGROUND
Among the personal property involved in this case was a certain Beech Baron E55 airplane (the aircraft). In November 2006, the court authorized Reid to transact a sale of the aircraft and to retain the net proceeds of the sale, which would be subject to reallocation at a later hearing. Although the record on appeal is incomplete, it appears that Reid did sell the aircraft for net proceeds of $17,521.93. (An attachment to the judgment describes the aircraft as “[f]lood damaged.”)
Trial was held on September 27, 2007. The trial court entered judgment on January 14, 2008. The judgment dissolved the parties’ marriage, divided their property, and established an amount for spousal and child support owed by Payne. The judgment also provided that Reid did not breach her fiduciary duty in the sale of the aircraft, and that the proceeds of the sale of the aircraft were to be retained by Reid.
Payne did not designate, and we have not been provided with, a transcript of the oral proceedings of the trial or of the hearing on Payne’s new trial motion. (See Cal. Rules of Court, rules 8.120(b), 8.121(b)(1)(C).)
On April 14, 2008, Payne filed a motion for new trial. This motion was based primarily upon grounds of newly discovered evidence. Payne identified three such items of evidence: (1) information that the aircraft had not been sold; (2) information that an attorney for Reid who was involved in the purported sale of the aircraft had been disbarred at the time he represented Reid; and (3) Reid never supplied a copy of her final declaration of disclosure to Payne. Payne also asserted grounds for new trial based upon allegations of fraud, perjury, and Reid’s violation of disclosure obligations. In particular, Payne asserted: Reid fraudulently prevented him from fully participating in the dissolution proceeding because of her role in having Payne arrested, convicted, and incarcerated; Reid perjured her disclosure declarations; Reid submitted false documents concerning a stock transfer; Reid failed to disclose certain assets taken from their home and a vehicle; and Reid failed to serve him with a final declaration of disclosure, which misstated the value of certain real property.
The motion is supported by Payne’s declaration, which states that he spoke with officials at the Federal Aviation Administration (FAA), the California State Board of Equalization, “usbank,” and Travelers Express Company. Based on these discussions, Payne states: “[I]t was made very clear to me the transaction was a fraud.” Although it is not clear from the declaration, it appears that “the transaction” refers to the sale of the aircraft.
The motion is further supported by numerous documents, including a document from the FAA indicating that Payne was the registered owner of the aircraft as of April 2, 2008. Where relevant, other documents supporting the motion will be discussed below.
Reid filed an opposition to the motion. In the opposition, Reid disputed Payne’s claims, asserted that Payne was properly served with the disputed declaration of disclosure, argued that the disbarment of Reid’s prior attorney is immaterial, and that Payne’s other allegations were resolved at trial. With respect to the sale of the aircraft, Reid supplied a copy of a bill of sale reflecting the sale of the aircraft by Reid to a third party in February 2007. Payne asserts that he never received this opposition.
Because we do not have a record of the hearing on the motion, we do not know whether issues concerning the service of the opposition were raised or addressed.
The court denied the motion on May 19, 2008.
Payne filed a notice of appeal on June 9, 2008. According to the notice, Payne was appealing from the January 14, 2008, judgment and the May 19, 2008, order denying his motion for new trial. On this court’s own motion, we dismissed the appeal as to the judgment on the ground that it was not timely filed. We further stated that the notice of appeal was timely as to the order denying the motion for new trial. As a result, we are concerned only with the court’s denial of Payne’s motion for new trial.
After Payne filed his opening brief on appeal, Reid filed a motion to dismiss the appeal on the grounds that Payne’s “opening brief is wholly deficient” and “though disguised as one from the denial of his motion for new trial is in fact from nonappealable orders.” We denied this motion without prejudice to Reid raising these grounds in her respondent’s brief.
III. ANALYSIS
A. Standard of Review
We review a trial court’s ruling on a new trial motion for an abuse of discretion. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872; In re Marriage of Green (1989) 213 Cal.App.3d 14, 25.) To the extent that the trial court confronted conflicting evidence in denying the new trial motion, we will not disturb the trial court’s express or implied factual determinations if they are supported by substantial evidence. (Sandoval v. Los Angeles County Dept. of Public Social Services (2008) 169 Cal.App.4th 1167, 1176, fn. 6.) “Nonetheless, ‘it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party... including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’ [Citation.]” (Ibid.)
B. Newly Discovered Evidence
To obtain a new trial based upon newly discovered evidence, the moving party must establish that the evidence was (1) newly discovered, (2) material, and (3) the proponent used reasonable diligence to discover or produce the evidence at trial. (Code Civ. Proc., § 657, cl. (4); Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) New evidence is “material ‘in the sense that it is likely to produce a different result.’ [Citation.]” (In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095, 1101.)
On appeal, Payne reasserts his argument that newly discovered evidence regarding the aircraft and the disbarment of Reid’s former attorney requires a new trial. (It does not appear from his brief that he is reasserting the argument regarding the service of Reid’s disclosure declarations.)
1. Sale of the Aircraft
Payne submitted a document purportedly from the FAA showing that he was still the registered owner of the aircraft as of April 2, 2008. Based upon this document and conversations Payne had with officials of the FAA and others, Payne believes that Reid never sold the aircraft. Payne speculates that Reid fabricated the sale transaction and that “she awaits the right buyer to come along after this case is over.”
It is not apparent from the evidence or the arguments presented that Payne used reasonable diligence to discover the evidence of the aircraft’s registration prior to trial. His declaration regarding this evidence provides nothing to suggest that the conversations he had with the various officials could not have taken place prior to trial or that the FAA registration document could not have been obtained prior to trial. He has thus failed to support the third element of a motion for new trial based upon newly discovered evidence.
Moreover, even if the evidence could not have been discovered or produced prior to trial, the evidence does not prove that the aircraft has not been sold. The FAA registration document merely indicates that the FAA’s records do not reflect a change in the aircraft’s registration. It does not establish that the aircraft was never sold.
2. Disbarment of Reid’s Former Attorney
Payne argues that a new trial is required because he has learned that Reid’s former attorney had been disbarred at a time when that attorney was representing Reid in this proceeding. He offers no evidence, however, as to when he discovered this fact or any explanation as to why he could not have, with reasonable diligence, discovered the fact prior to trial. Moreover, he has failed to show how this “evidence” could produce a different result if it had been produced at the time of trial.
C. Evidence of Alleged Perjury
Payne argues that Reid lied under oath in a declaration filed in 2004 when she testified that police took pictures of injuries she suffered at the hands of Payne in a domestic violence incident. In the declaration, Reid states: “[Payne’s] description of the events on the day he put the gun down my throat are all fabrications and untrue. The police took pictures of my injuries and evidence, including the gun.” Payne supports his perjury argument with a portion of the testimony of a deputy sheriff given in the criminal case against Payne arising from that incident. The testimony was given in October 2005. The deputy testified that he did not take any pictures of Reid and did not know of any pictures taken by any other officer.
Even if Reid’s 2004 statement regarding the taking of photographs was false, Payne has failed to show why such evidence compels a new trial. He refers us to section 2122 of the Family Code, which provides for setting aside a judgment based on “perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement[.]” (Fam. Code, § 2122, subd. (b).) The alleged perjury in this case, however, has no bearing on the disclosures or an income and expense statement. Nor does it appear to us to be otherwise material.
D. Alleged Forgeries
Payne contends that Reid submitted forged documents to the court on two occasions. In particular, he refers us to: (1) a written agreement whereby Payne purportedly sold to Reid all stock in Rendezvous Escrow Services, Inc. in 1995, and (2) a stock certificate dated December 30, 1994, showing Reid to be the owner of 10,000 shares of Rendezvous Escrow Services, Inc. Both documents bear a signature in the space for Payne’s signature.
Initially, we note that although Payne argues in his brief that these documents are forgeries, he does not provide any declaration or other evidence to prove that the signatures are not his.
Second, Payne has failed to provide us with an adequate record for reviewing the issues raised by these documents. He asserts that these documents were presented by Reid at the trial in this matter. If the authenticity of the documents was an issue at the trial, it was presumably litigated. However, Payne did not designate a reporter’s transcript of the trial as part of our record on appeal. Therefore, we cannot review the record of the proceedings to determine whether the authenticity of these records was an issue at the trial and, if so, how the issue was resolved, or the extent to which the documents had any significance at trial. Moreover, we have not been provided with a transcript of the hearing on Payne’s new trial motion. (See fn. 1, ante.) “It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) In the absence of a record sufficient to review the issues regarding these documents, we must treat the issue as waived.
Third, even if we had a sufficient record, Payne has failed to show how the forged documents, submitted at trial, require a new trial. He does refer us to the court’s ability to set aside a family law judgment based upon actual fraud. Section 2122 of the Family Code provides: “Actual fraud [is a ground for setting aside a judgment] where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.” (Fam. Code, § 2122, subd. (a).) Even if the documents are fraudulent, it does not appear that they kept Payne in ignorance or prevented him from participating in the proceeding.
E. Records Used to Calculate Child Support in 2004
Payne contends that Reid “submitted bogus records to the Court in 2004, which caused the Judge to issue unreasonable child and spousal support orders.” He does not identify the “bogus records” or explain how they relate to any legitimate ground for a new trial. Our statements above regarding the failure to provide an adequate record apply with equal force here.
F. Conclusion Regarding Payne’s Motion for New Trial
Based upon our review of the record on appeal and the arguments presented in Payne’s briefs on appeal, and for the reasons expressed above, we hold that the trial court did not abuse its discretion in denying Payne’s motion for new trial.
G. Reid’s Request for Sanctions
In her respondent’s brief, Reid argues that Payne’s appeal is from a nonappealable interlocutory order and therefore frivolous. She requests that sanctions be awarded to her for reasonable attorney fees and costs. However, as stated in our prior order concerning the notice of appeal, the order denying the motion for new trial was “itself an appealable order....” Even if there was merit to Reid’s contention that Payne’s appeal is an appeal from a nonappealable interlocutory order, she has failed to support her request. A request for sanctions for a frivolous appeal is governed by rule 8.276 of the California Rules of Court. According to this rule, a party’s motion for sanctions “must include a declaration supporting the amount of any monetary sanction....” (Cal. Rules of Court, rule 8.276(b)(1).) Reid’s request is not supported by the required declaration. Accordingly, the request is denied.
IV. DISPOSITION
The order denying Payne’s motion for new trial is affirmed. Reid’s request for sanctions is denied. Reid shall recover her costs on appeal.
We concur: Hollenhorst, Acting P.J., McKinster, J.