Opinion
A147927
04-12-2018
LISA F. RHEAD et al., Plaintiffs, Cross-defendants and Respondents, v. PATRICIA C. ROCK, Defendant, Cross-complainant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 26-62876)
This appeal concerns a long-running family dispute over 37 acres of land on which appellant Patricia Rock (Rock or Patricia) and her adult daughter and son-in-law (Lisa F. Rhead and Raymond Rhead) are tenants in common under a written agreement. After a five-day court trial on the Rheads' complaint for ouster, partition, quiet title and declaratory relief and Rock's cross-complaint for breach of contract, reformation, and set-off, the court quieted title to the Rheads as to their concurrent right, with Rock, to control and manage the property, and denied all other requested relief. Rock now raises three issues on appeal: the judgment in favor of the Rheads' quiet title cause of action is erroneous, the court abused its discretion by misapplying the doctrine of judicial estoppel and rejecting Rock's claim for reformation of the tenants in common agreement, and the court erred in denying Rock's motion for new trial. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
We draw our brief summary of the pertinent portions of the underlying litigation from the trial court's detailed 14-page statement of decision; there is no reporter's transcript.
The trial judge described the "factual and procedural background" of the case as follows:
"Patricia and Donald E. Rock (collectively, 'the Rocks') purchased approximately 50 acres in Napa and Solano counties in 1975. In approximately 1980-81, the Rocks gifted 13 acres to their son, Donald W. Rock ('Butch'), and his wife, Pauline. In 1996, the Rocks offered to gift 10% of the remaining 37 acres located primarily in Napa County to the Rheads on the condition that the Rheads pay for the legal paperwork. The parties eventually entered into an Agreement Between Tenants in Common ('TIC agreement') on July 9, 1996, for the property commonly known as 1257 Jameson Canyon Road. After the agreement, the parties held the 37 acres commonly known as 1257 Jameson Canyon Road as tenants in common with the Rocks maintaining 90% of the property as community property and the Rheads holding 10% of the property as community property.
"The Rocks later divorced. Donald E. Rock's one-half interest (45%) of the 90% of the property was offered to the other owners under the terms of the TIC agreement. Patricia and the Rheads purchased the 45% interest. The purchase was funded by a loan secured by a deed of trust against the property with Patricia to pay half of the balance and the Rheads to pay the other half of the balance. Following the purchase, Patricia had a 67.5% ownership interest and the Rheads had a 32.5% ownership interest in the property.
"On November 16, 2010, Patricia filed a petition under Probate Code section 850, subdivision (a)(3)(B), for a judicial determination that title to the 37 acres was held in her name, as to an undivided 67.5% and the Rheads as to an undivided 32.5%, in Napa County Superior Court, Case No, 26-54791. Thereafter, on February 8, 2011, the Rheads filed a complaint in Napa County Superior Court, Case No. 26-55411, against Patricia for quiet title, breach of contract, promissory estoppel, and declaratory relief. The two cases were consolidated for trial. On October 13, 2011, the trial court ruled in Patricia's favor and against the Rheads on all claims. The judgment affirmed the terms of the TIC agreement, restored Patricia's 67.5% ownership of the property, and awarded Patricia her costs. (Exhibit 32.)
"Although the trial court ruled in Patricia's favor, the underlying family dispute remained unresolved. Continued familial squabbling led to the current litigation. On November 7, 2013, the Rheads filed the instant complaint for damages based on ouster, quiet title, partition and declaratory relief. On January 7, 2014, Patricia filed her answer to the complaint and filed a cross-complaint for damages and request for declaratory relief for breach of contract (unauthorized encumbrance), breach of contract (failure to pay agreed upon common costs), reformation of contract (reformation of the TIC agreement), and setoff."
Having set the stage, we now describe the facts relating to the only causes of action at issue on appeal.
1. Quiet Title
The quiet title claim was described by the trial court as follows: "The Rheads seek to quiet title against Patricia's belief that . . . she can exclude the Rheads from utilizing certain portions of the property." (App. 430)
The trial court analyzed the issue as follows:
The first three paragraphs in this section quoted below are from the portion of the statement of decision on the Rheads' ouster claim, but they are referred to by the trial court in the section of the statement of decision on the quiet title claim and essential to understand the trial court's resolution of the quiet title claim. Rock does not raise any issue on appeal regarding the ouster claim, which was ultimately decided in her favor because the Rheads could not establish damages.
"The Rheads testified at trial that in 2009 Patricia began to tell the Rheads they could not use several portions of the property. The Rheads allege that 60 days from April 15, 2013, Patricia ousted them from portions of the property without the authority to do so. The Rheads and Patricia both testified that Patricia placed a chain and a lock on the gate leading to the old garden pasture and on the pasture where Patricia's goat shelters were located. (Exhibit 38.) Patricia testified the V pasture and the old garden pasture were her personal use areas. The Rheads testified that Patricia called animal control to remove the Rheads' animals when they attempted to use portions of Patricia's property.
"Based on these actions, the Rheads served two letters on Patricia requesting the unconditional concurrent possession of the property. (Exhibits 18, 21.) Patricia responded by asserting she had the right to exclusive management and control of the property. (Exhibits 19, 23.) Evidence submitted at trial explains Patricia's belief, and her defense at trial, was that she had the exclusive right to manage and control portions of the property under paragraph 4.2 of the TIC agreement. (Exhibits 8-11, 13, 15-17, 20; see Exhibit I-2 [a letter from Patricia highlighting her use area in bright pink.])
"Patricia's defense under paragraph 4.2 of the TIC agreement is not well-founded. The TIC agreement originally gave Patricia and Donald E. Rock the right to exclusive management and control over the property. (Exhibit 1, § 4.2.) The TIC agreement, however, provides that any person succeeding to the interest of a party to the agreement shall succeed to all of such party's rights in the agreement. (Exhibit 1, § 12.4.) After the Rocks divorced, the Rheads and Patricia purchased Donald E. Rock's 45% interest in the property. Under section 12.4 of the TIC agreement, when the Rheads purchased their 22.5% interest of Donald E. Rock's interest in the property, they succeeded to his right to manage and control the property. As a result, Patricia relinquished the right to exclusive management and control of the property . . . . Consequently, Patricia's defense fails: she cannot preclude the Rheads from using entire sections of the property under paragraph 4.2 of the TIC agreement."
"The purpose of a quiet title action is to settle all conflicting claims to the property and to declare each interest or estate to which the parties are entitled. (Newman v. Cornelius (1970) 3 Cal.App.3d 279, 284.) The Rheads seek to quiet title against Patricia's belief that she has the exclusive right to control and manage the property and the belief that she can exclude the Rheads from utilizing certain portions of the property. (Compl., ¶ 29.) As detailed above, Patricia no longer has the exclusive right to manage and control the property under paragraphs 4.2 and 12.4 of the TIC agreement. (Exhibit 1, §§ 4.2, 12.4.) The Rheads succeeded to Donald E. Rock's right to manage and control the property after they purchased his 22.5% interest in the property. The quiet title claim, therefore, is well-taken. The Court quiets title to the Rheads as to their concurrent right, with Patricia, to control and manage the property. Patricia is prevented from excluding the Rheads from utilizing certain portions of the property except as provided in any other Court order."
2. Reformation
The other portion of the statement of decision we focus on is Rock's cause of action for reformation of contract, alleged in her cross-complaint. Once again, we quote from the trial court's explication of the issue:
"Patricia's third cause of action is for reformation of section 8.1.3 of the TIC agreement, which contains a 2% escalation clause upon the sale of the property after completion of the Rheads' residence. (Cross-Compl., Prayer, ¶ 8; Exhibit A-2 at pp. 7-8.) Patricia seeks to eliminate the provision as she asserts the handwritten "2" percent supposedly was added after the parties signed the agreement without Patricia's knowledge. The Rheads contend the doctrine of judicial estoppel bars Patricia's claim.
"The doctrine of judicial estopped 'applies when "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." [Citations.]' (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987; see Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 449.)
"The Rheads are correct that Patricia is judicially estopped from contending that the 2% notation is not a part of the TIC agreement. Patricia took the position in three previous lawsuits that the handwritten 2% was part of the TIC agreement. (Exhibits 27, 29, 31.) Patricia now takes a contrary and 'totally inconsistent' position. (Cross-Compl., ¶¶ 52-53.) Further, the Court in its October 13, 2011 Judgment adopted the position that the 2% clause was part of the agreement. (Exhibit 32 at p. 10 ['The Court finds that the [TIC agreement] addresses the subject for the reimbursement, as well as for the greater of additional 2% or increase in value, and there is insufficient evidence for the court to depart from the terms of the agreement.'].) There is no indication that Patricia's prior position was a result of 'ignorance, fraud, or mistake' considering she endorsed the position in three other judicial proceedings. (Exhibits 27-29, 31.) Based on these circumstances, Patricia's third cause of action for reformation of contract fails. (See M. Perez Co., Inc. v. Base Camp Condominiums Ass'n No. One (2003) 111 Cal.App.4th 456, 463 [providing that judicial estoppel " ' " 'is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process . . . . Judicial estoppel is "intended to protect against a litigant playing 'fast and loose with the courts.' " ' " [Citation.] " ' "It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite." ' "].)
3. Procedure in the trial court regarding statement of decision
After receiving written closing arguments from each side, the trial court issued a 13-page tentative decision, which stated that it would become the statement of decision unless a party "specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the tentative decision."
In its final statement of decision, the trial court described what happened next:
"Patricia filed a request for statement of decision on August 4, 2015, with 39 'principal controverted issues at trial.' On August 17, 2015, the Court ordered Patricia to prepare the proposed statement of decision and a proposed judgment by September 8, 2015.
"Rather than use the tentative decision, on September 8, 2015, Patricia submitted a 45 page proposed statement of decision and a 46 page proposed judgment. Patricia's proposed statement of decision does not set forth the Court's decision as set forth in its tentative decision. Patricia completely re-wrote and reversed many of the Court's decisions and findings as stated in the tentative decision. (Emphasis added). Moreover, nearly all of the 39 'principal controverted issues at trial' in Patricia's request for a statement of decision seek a yes or no answer, are compound, and set forth one-sided disputed facts and testimony taken out of context. (Emphasis added.)
"Patricia's actions following the tentative decision were improper and a disservice to all parties as it has delayed resolution of this litigation. The Court has considered Patricia's 39 'principal controverted issues at trial'—to the extent possible—and the proposed statement of decision, but with extreme skepticism. . . .
The trial court then discussed legal authority governing the preparation of statements of decision, which we will discuss later.
"On September 23, 2015, the Rheads filed a response and objections to the proposed statement of decision. On September 28, 2015, Patricia filed a reply to the Rheads' response and objections. The Court has not considered the reply. Code of Civil Procedure section 632 does not allow for a reply. In addition, neither did the Court in its August 17, 2015 Order give leave nor did Patricia seek leave to file such a document."
The trial court then summed up its introductory paragraphs by stating, "Having considered the testimony of the parties, the evidence presented, and the objections and proposal submitted, the Court now enters its statement of decision." Its analysis (the pertinent portions of which we have described above) followed.
II. DISCUSSION
It is a fundamental principle of appellate law that " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Where there has been a court trial, as here, "[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.)
When we review a judgment based on a statement of decision after a court trial, we review findings of fact under a substantial evidence standard. "Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) In conducting this review, "we do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the [judgment] in favor of the prevailing party. Thus, we only look at the evidence offered in [respondent's] favor and determine if it was sufficient." (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.)
As a corollary of that rule, if an appellant challenges the sufficiency of the evidence to support a finding (as Rock does), she is required to set out in her opening brief all of the evidence on that point. If an appellant fails to do this, we may treat the issue as waived. (See, e.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 ["Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' "].)
Further, an appellant must make an adequate record to show that there was error. "In many cases involving the substantial evidence or abuse of discretion standard of review . . . a reporter's transcript or an agreed or settled statement of the proceedings will be indispensable. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to review the adequacy of an award of damages absent a transcript or settled statement of the damages portion of a jury trial]; Vo. v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 ['The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion'].)" (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483). If the record is inadequate for us even to consider whether the trial court erred or the judgment is not supported by substantial evidence, we will affirm the judgment. (See, e.g., Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 [" '[i]t was [Harbert's] responsibility to include the reporter's transcript' of the 13-day trial, but he elected not to designate an adequate record for this court to evaluate his claim of error regarding the sufficiency of the evidence . . . . As a result, we presume the judgment imposing sanctions . . . is correct."].) As a leading treatise on appellate practice cautions on the "risks" of an incomplete record, "Absence of a record of the oral proceedings (a) bars appellant from claiming the evidence was insufficient to support the judgment or raising any other evidentiary issues and (b) also precludes a determination that the trial court abused its discretion." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 4.45, p. 4-12.)
Another essential principle is that "[a] party on appeal has the duty to support the arguments in the briefs by appropriate reference to the record, which includes providing exact page citations. We have no duty to search the record for evidence and may disregard any factual contention not supported by proper citations to the record." (Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928.) If statements of fact are unsupported by record citations, we may disregard them, and we will not "scour the record on our own in search of supporting evidence." Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149.)
It should go without saying that when we review for substantial evidence the "evidence" cited must be evidence that was introduced at the court trial. Here, almost all of the "record" cites are to two declarations that were not in evidence. One is Rock's own detailed 15-page declaration in support of her new trial motion, which itself contains documents that were not in evidence at the court trial, including a 104-page transcript of Rock's trial testimony in one of the earlier lawsuits in this family dispute. The other declaration is from Rock's trial counsel, also filed in support of the new trial motion, and which, among other things, also purports to describe the trial evidence. Neither of these declarations was in evidence at the trial, yet Rock attempts to cite them as substantial evidence contrary to the trial court's findings. She claims the declarations may be considered as evidence because "[a]ppellate Courts may also apply the substantial evidence standard to findings of fact made by a trial court based upon affidavits and declarations without any oral testimony." True enough. But not when the affidavits and declarations were not in evidence. Rock stakes her position on Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187 (Consolidated Irrigation), but that case is factually and legally beside the point. Consolidated Irrigation was a writ of mandate petition arising under CEQA, and an issue on appeal was whether substantial evidence supported the trial court's decision to grant a contested motion to augment the administrative record with two documents, a decision made by the trial court based on the declarations and documentary evidence submitted to it rather than oral testimony. (Id. at p. 198.) The court in Consolidated Irrigation made the unremarkable observation that "[a]ppellate courts routinely apply the substantial evidence standard to findings of fact made by a trial court based on affidavits and declarations without any oral testimony." (Ibid.) Here, Rock is asking us to apply the substantial evidence standard based on declarations and exhibits that were not before the trial court during the trial. This we will not do. With these principles in mind, we address Rock's appeal.
The transcript purports to be Rock's trial testimony on July 11, 2011, in Rhead v. Rock, Napa Superior Court No. 26-54791, a case the trial court mentioned in the background of the statement of decision (the 2011 lawsuit or 2011 complaint).
While we may consider Rock's declaration (and her attorney's) in connection with review of certain grounds for a motion for new trial under section 657 of the Code of Civil Procedure, it is not a substitute for a citation to the record of evidence introduced at trial. (Cf. Code Civ. Proc., § 658 [when application for new trial is made on grounds in § 657, subds. (1) through (4), it must be made on affidavits]; see Wegner et al., Cal Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶¶ 18:263 to 18:266, p. 18-71 [since these grounds for a motion for new trial are fact based, affidavits are necessary to apprise other side of the particular matters on which the motion is based to prepare counter affidavits; no live testimony at the motions hearing].)
1. Issues with the statement of decision
We begin with Rock's assertions that the statement of decision is fatally flawed because the court erred in not responding to the 39 controverted issues she raised in response to the trial court's tentative decision, with the consequence that the doctrine of implied findings should not apply and a new trial or further proceedings ordered to address these asserted errors. Rock further claims that the court's asserted failure to respond to her controverted issues resulted in the court rendering a statement of decision "without consideration of any of Patricia's controverted issues."
These arguments have no merit. First, the trial court "is not required to respond point by point to the issues posed in a request for statement of decision. The court's statement of decision is sufficient if it fairly discloses the court's determination as to the ultimate facts and material issues in the case." (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379-1380.) Moreover, it cannot "be required to sift through a host of improper specifications in search of the few arguably proper ones. A party cannot be prevented from using the request as a way of arguing with the court rather than clarifying the grounds of its decision. But neither should a party who makes that choice be entitled to rely on the resulting document to insulate the judgment from the presumption of correctness." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559.) As the trial court noted, the 39 controverted issues sought yes or no answers, were compound and appeared to set forth "one-sided disputed facts and testimony taken out of context."
Further, without a reporter's transcript we have no way to evaluate the trial court's assessment that the testimony was taken out of context. As the Rheads described it in their response to Rock's request for a statement of decision, Rock "cherry picks alleged facts in the case and seeks a specific judicial determination." For example, among the "controverted issues" there are questions that ask whether the testimony of a witness is credible on a particular point, sometimes with the question framed in an argumentative way. (See, e.g., question 37 asking whether Lisa Rhead's testimony was "render[ed] . . . inherently unbelievable.")
Second, Rock's claim that the statement of decision was thus filed without any consideration of her "controverted issues" is meritless. Rock drafted her own 48-page proposed statement of decision in which she addressed all 39 issues, to which the Rheads responded with their own objections. The trial court, thus equipped with the posttrial submissions (including Rock's written closing argument in the form of a posttrial brief, filed months earlier, and Rock's initial 16-page version of a proposed statement of decision), issued its final statement of decision. As we have quoted above, the trial court explicitly stated that in so doing it considered the testimony, the evidence, and the "objections and proposal submitted," making clear that it had considered all of Rock's submissions on the issues, but decided against her. We presume the trial court carried out its duty. (See Evid. Code, § 664.)
2. Quiet Title
Rock argues that the judgment in favor of the Rheads on the quiet title is erroneous and should be reversed for laches, unclean hands, collateral and equitable estoppel. But these arguments are not supported by evidence, and the appellate record is inadequate for us to assess whether the trial court erred. Purporting to explain why the judgment "does not follow the principle of quiet title to resolve issues between the parties," Rock has pages of descriptions—unsupported by record cites because there is no transcript—as to what "Patricia testified at trial." For example, she purportedly testified "consistent with her verified answer" and "consistent with her declaration in support of motion for a new trial," and her "supplemental declaration" in support of motion for new trial. Further, the purported summaries of the trial court testimony are one-sided and conclusory (the Rheads' "egregious behavior toward Patricia continued;" trial court's resolution is "absurd[];" Rheads engaged in "relentless bullying") and fail to set forward the evidence favorable to the judgment. We have no way of knowing from Rock's appellate briefs what the evidence was before the trial court.
The same is true for her laches argument. It relies on what "Patricia testified" to in another lawsuit (the 2011 lawsuit) and is based on citations to a portion of Rock's trial testimony from the earlier lawsuit that was not before the trial court in this case. As a result, the record is inadequate to permit us to assess this claim as well.
Rock next claims the court's interpretation of the tenancy in common agreement in connection with the quiet title claim is "repugnant" because the court failed to "consider the circumstances under which the contract was made and the situation of the parties" in the face of two clauses of an agreement that appear to be in conflict. But there is no evidence cited for us to evaluate the repugnancy claim either, except an uncited statement that the Rheads "never acknowledged or sought to enforce their rights pursuant to paragraph 12.4 of the TIC Agreement they allege to have obtained in 1998 until April 15, 2013." This is simply a conclusory reference to the laches argument, which, as we have described, is inadequate for us to review.
Finally, Rock contends the court erred in not finding that the quiet title claim is barred by "estoppel," apparently meaning claim preclusion. Res judicata, more precisely called claim preclusion, prevents parties from relitigating the same cause of action in a second lawsuit between the parties or their privities. DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824. "Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." Rock argues the Rheads' 2011 lawsuit seeking, among other things, quiet title and declaratory relief, should preclude their current claim. She relies on the following language from the court's judgment in the 2011 lawsuit: "[T]he Court finds that the conduct of the parties remains unchanged, i.e. that the parties acted the same as before the October 13, 2003 deed, even though one half of [ROCK'S] property was allegedly going to the Rheads. There was no difference in the responsibilities of the parties toward the property nor was there any change in the payment of the mortgage."
Rock contrasts the complaint at issue in this appeal (the 2013 complaint), and compares the prayers for relief in the two complaints: the 2011 lawsuit sought declaratory relief " '[f]or Judgment quieting title to plaintiffs' interest in the property, and determining the ownership right in the property of both plaintiffs and defendants' " and the 2013 complaint prayer for relief in the quiet title cause of action requests the court to quiet title " 'as to their rights to control and manage the Property and prevent Rock from excluding Rhead from utilizing certain portions of the Property, free and clear of any contrary claims of Rock whatsoever.' "
This is the sum total of the argument: two causes of action in two complaints requested "similar, if not duplicative relief, that was either adjudicated or abandoned in the prior lawsuit; namely the management and control of the property through a determination of the rights, obligations and duties of the parties through the TIC agreement."
The Rheads dispute this argument. Citing the 2011 complaint, they contend the 2011 litigation sought a determination of ownership interests, particularly whether the Rheads held the property as joint tenants with equal ownership interests as Rock. And the prayers for relief in the two complaints are different. The 2011 prayer for relief asks " '[f]or judgment quieting title to plaintiffs' interest in the property, and determining the ownership right in the property of both plaintiffs and defendants,' " but the prayer for relief in the 2013 complaint requests quieting title " 'as to their rights to control and manage the Property . . . .' "
The Rheads also contend that Rock's citation to one paragraph from the 2011 judgment is out of context and incomplete because the judgment goes on to make clear that the only factual finding by the court in the 2011 lawsuit was the percentage of the mortgage paid by the parties; nothing in that paragraph pertained to how the property was managed and controlled. Further, the paragraph quoted by Rock is in a section of the 2011 judgment entitled " 'B. Percentage of ownership based upon transfer documents.' " What is more, the declaratory relief cause of action in the 2011 complaint pertained to defining the term " ' residence' " as used in the parties' agreement, which is not the same issue as the right to manage and control property.
Here, the Rheads have the better argument; Rock has not shown the trial court erred in not barring the quiet title cause of action because of claim preclusion.
Were there any doubt, we note that, other than the complaint and judgment in the 2011 lawsuit and the complaint in the 2013 lawsuit, which were in evidence, Rock once again relies on evidence that is not in the trial record. Rock attempts to support her argument as to the scope of the 2011 complaint by citing to excerpts from her trial testimony in the 2011 litigation—which were not before the trial court in deciding the issue before us. She even asks this court to undertake a "cursory review of that transcript" because it will indicate that "the scope of the 2011 Rhead v[.] Rock trial far exceeded Respondents' explanation . . . ." For the reasons we have described above, this we will not do on appeal.
3. Reformation claim
Rock contends that the judgment denying her reformation claim "failed to consider the substantial evidence presented to establish that Patricia was mistaken when she averred a fraudulent version of the TIC Agreement," and that applying the doctrine of judicial estoppel here was overly harsh and an abuse of discretion.
"The determination of whether judicial estoppel can apply to the facts is a question of law reviewed de novo, i.e., independently[,] [citations] but the findings of fact upon which the application of judicial estoppel is based are reviewed under the substantial evidence standard of review. [¶] Even if the necessary elements of judicial estoppel are found, because judicial estoppel is an equitable doctrine [citations], whether it should be applied is a matter within the discretion of the trial court. [Citations.] The exercise of discretion for an equitable determination is reviewed under an abuse of discretion standard." (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46-47.)
Once again, the record is inadequate for us to assess whether the trial court erred or whether substantial evidence supports the judgment. (Southern California Gas Co. v. Flannery, supra, 5 Cal.App.5th at p. 483.) We have no reporter's transcript. Rock's recitation of the "evidence produced at trial" draws heavily on the declarations submitted after trial in support of the motion for new trial purporting to describe trial testimony. And without a trial transcript, we cannot review for abuse of discretion.
4. Motion for new trial
Finally, Rock contends the court erred in denying her motions for new trial as to quiet title and reformation. In her brief on appeal she concedes that with the exception of one error (newly discovered evidence for the reformation cause of action) all but one of the errors raised in connection with the new trial motion are addressed in the arguments we have discussed above, and so we will not restate them here because we have found no error.
We turn to the remaining basis for the new trial motion, which is Rock's claim under section 657, subdivision (4), of the Code of Civil Procedure that a new trial was warranted based upon her discovery of new evidence pertaining to her reformation claim. To prevail on this statutory ground for new trial, the moving party "must establish (1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the moving party's case." (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 646.) A widely used treatise for trial judges states that "[i]f any of these elements is lacking, a trial judge does not have the discretion to grant a new trial." (Cal. Judges Benchbook: Civil Proceedings After Trial (CJER 2d ed. 2017) Motions Attacking Verdict or Judgment After Trial, § 2.40, p. 139.) We review the trial court's decision denying a new trial for abuse of discretion. (Plancarte v. Guardsmark, supra, 118 Cal.App.4th. at p. 645.)
Although it was not required to set forth its reason for denying the new trial motion (Code Civ. Proc., § 657; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1272, fn. 17), the trial court issued a written order and framed the issue as follows:
"Rock's ground for her motion based on newly discovered evidence is not well-taken. Rock asserts she discovered in October 2015 an 'unaltered and correct' version of the tenancy-in-common agreement from her prior attorneys. Purportedly, '[t]he reason it was not discovered until then was because [Rock's] former trial attorneys frustrated numerous requests for return of [Rock's] client files which were made by [Rock] since as early as 2012 to no avail.' (Mem. at p.4:16-17.) Rock argued mistake and fraud at trial as to the tenancy-in-common agreement. Rock's attorney could have—and should have—subpoenaed the documents prior to trial. Yet, despite raising these arguments at trial, Rock's attorney elected not to take the necessary steps to ensure he obtained Rock's files from her former attorneys. The evidence could have been discovered by reasonable diligence prior to trial. (Code Civ. Proc., § 657(4).)"
On this record, we cannot say the trial court abused its discretion in finding a lack of diligence. From what we can tell of the record, the issue of the authenticity of the tenancy in common agreement was an issue throughout the litigation. It was in Rock's cross-complaint filed on January 7, 2014, in her trial brief filed February 27, 2015, in her posttrial closing argument brief filed April 10, 2015 and, as we can tell from the statement of decision, the subject of testimony at trial. Multiple copies of tenancy in common agreements were introduced at trial.
Substantial evidence supports the trial court's conclusion that there was a lack of diligence. The issue was no surprise. The document in question was in the hands of Rock's former trial counsel, not an adverse or heretofore unknown potential witness. Rock was aware that the former trial counsel's file might be a fertile source of evidence; the declaration in support of new trial motion filed by her trial counsel states that he wrote letters on July 15, 2014, at Rock's request, to her former trial attorneys from the 2011 lawsuit requesting her client files, and followed up with numerous phone calls and emails "in an attempt to gain their cooperation to turn over" Rock's client files. The client file at issue was not received until October 2, 2015, at which point an "unaltered version" of the tenancy in common agreement (which had actually been marked and identified as an exhibit in the 2011 lawsuit) "was discovered." Most telling is Rock's concession on appeal: "Patricia concedes that hind-sight reveals that a more prudent course of action might have been to subpoena Patricia's client files from her attorneys since they were not cooperating with her repeated requests . . . ." Under the circumstances, we determine that substantial evidence supports the conclusion that Rock failed to act with reasonable diligence in discovering this evidence, and that the trial court did not abuse its discretion in denying the motion for new trial on the reformation cause of action on this ground.
III. DISPOSITION
The judgment is affirmed. The Rheads are entitled to their costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.