Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC346675, Soussan G. Bruguera, Judge.
Law Offices of Alfred O. Anyia and Alfred O. Anyia for Defendants and Appellants Vicky Ngangu and Esperance Ngangu.
Dennison, Bennett & Press and James H. Goudge, for Plaintiff and Respondent Catherine Tenen.
ZELON, J.
Defendants Vicky Ngangu and Esperance Ngangu appeal from summary judgment granted to plaintiff Catherine E. Tenen on her claim for defendants’ conversion of funds from Tenen’s deceased husband’s bank account. The principal issue on appeal is whether triable issues of fact exist as to the validity of Tenen’s Mexican marriage to the decedent. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the late 1990s, Roger Sebastian opened a checking account at Wells Fargo Bank. Tenen and Sebastian were married on December 16, 1995 in Mexico, as evidenced by a marriage certificate issued by the State of Chihuahua in Mexico. Sebastian died on November 11, 2004, intestate and with no children. Defendants are his sisters.
On February 14, 2005, defendants withdrew the balance of Sebastian’s checking account, $20,033.66, by presenting to Wells Fargo a death certificate stating that Sebastian was unmarried. After Tenen demanded that defendants return the funds to her and they refused, she commenced this action for negligence and conversion on January 31, 2006.
On August 16, 2006, Tenen moved for summary adjudication of her second cause of action for conversion. She argued the undisputed facts conclusively entitled to her to all funds on deposit in the checking account because Sebastian was her spouse. Tenen contended she was entitled to one-half of the funds as her community property, and the other half through intestate succession as his surviving spouse.
In addition to her declaration attesting to the marriage, Tenen attached a marriage certificate from the State of Chihuahua in Mexico and a certified translation which established she had married Sebastian on December 16, 1995 in Ciudad Juarez, Chihuahua, Mexico. Although the certificate bears a number stamp (089 1235 78), the translation noted that the volume number, page number, and number of the certificate were “not stated.” Tenen also submitted defendants’ responses to requests for admission in which they admitted they presented Sebastian’s death certificate and other documentation to Wells Fargo Bank in order to establish their entitlement to all or part of the funds on deposit.
On October 2, 2006, defendants filed their opposition in which they argued that they had never believed that Sebastian had married, and that Tenen’s marriage certificate from Mexico was not genuine and lacked authentication. In support of this contention, Defendants submitted a declaration from the Consul General containing a notarized translation of a document from the General Government office of Cuidad Juarez which stated that a marriage certificate on file with the number 0891235 did not contain the names Roger Sebastian or Catherine Tenen, and which also asserted that no matrimony record for Sebastian and Tenen existed. Additionally, defendants submitted several grant deeds executed during the marriage in which both Sebastian and Tenen took property as “unmarried,” and Sebastian’s Orange County death certificate which indicated he was unmarried.
On October 27, 2006, plaintiff objected to defendants’ evidence on the grounds of foundation, hearsay, relevancy, and lack of authentication. On January 31, 2007, the trial court issued its minute order stating it had taken the matter under submission on November 2, 2006, and allowing plaintiff to serve objections to the admission of certified copies of Sebastian’s death certificate and the grant deeds submitted by defendant by February 12, 2007. Plaintiff filed a declaration concerning its objections, noting in part that no certified copies had been filed.
On March 14, 2007, the trial court entered its order granting plaintiff’s motion for summary adjudication on the second cause of action for conversion. The trial court gave defendants 10 days to submit an order pursuant to Code of Civil Procedure section 437c, subdivision (g).
The record contains no reporter’s transcript.
On April 2, 2007, defendants filed a motion for reconsideration under Code of Civil Procedure section 1008 that reiterated their opposition to the summary judgment motion and relied on the same declaration of the Vice Consul of the United States a Ciudad Juarez, but attached certified copies of the grant deeds. As grounds for reconsideration, defendants contended that prior to November 2006, they represented themselves and failed to properly present evidence to the court. Defendants requested judicial notice of their exhibits.
On April 4, 2007, the trial court sustained all of plaintiff’s objections to defendants’ evidence, finding the evidence incompetent, and granted plaintiff’s motion for summary adjudication. After plaintiff dismissed her first cause of action for negligence, the trial court entered judgment for plaintiff on her conversion claim.
DISCUSSION
Defendants argue that the trial court erred in failing to grant them a continuance to properly authenticate their documents, and summary adjudication was improper because the Vice Consul’s declaration raised a triable issue of fact concerning whether plaintiff’s marriage to the decedent was valid, thereby potentially negating plaintiff’s conversion claim based upon her status as the decedent’s spouse.
I. STANDARD OF REVIEW.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.) Where summary judgment has been granted, we review the trial court’s decision de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. IMPORT OF EVIDENTIARY RULINGS IN THE TRIAL COURT.
Here, the trial court sustained all of plaintiff’s evidentiary objections to defendant’s evidence, and properly indicated in its order that it had done so. (Code Civ. Proc. § 437c, subds. (b) and (c); see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) Because the court did so, defendant’s evidence is not part of the record for our review. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [appellate court does not consider evidence proffered on summary judgment to which objections have been made and sustained]; see also LLP Mortgage, Ltd. v. Bizar (2005) 126 Cal.App.4th 773, 776.) Further, where the appellant does not challenge the trial court’s ruling sustaining a moving party’s objections to evidence offered in opposition to the summary adjudication motion, any argument concerning the correctness of the trial court’s evidentiary rulings is waived, and we consider all such evidence to have been properly excluded. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
III. NO ERROR IN DENYING MOTION FOR RECONSIDERATION OR FAILING TO GRANT CONTINUANCE.
Defendants contend that the trial court erred in refusing to grant them a continuance to provide the court with authenticated documents in opposition to plaintiff’s motion. The sole ground for this contention is the fact that defendants, until November 2006, represented themselves. Although the record does not contain any request for a continuance, defendants did move under Code of Civil Procedure section 1008 for reconsideration of the ruling on the summary judgment motion, relying upon the same documentation.
Under Code of Civil Procedure section 1008, a party moving for reconsideration must show both new or different facts or law and a satisfactory explanation for the failure to present such facts or law earlier. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198; see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1099-1100.) Defendants failed to comply with the statute. Here, plaintiff’s evidentiary objections to defendants’ evidence were served in October 2006; defendants were aware of the basis of the objections, yet failed to obtain certified copies of the Mexican documents, or explain why they could not in time to oppose summary judgment; and their request for reconsideration did not reference any new facts or law. Thus, even had defendants requested a continuance, their motion provided no basis to assume such a continuance could lead to success on the motion they did file.
IV. PLAINTIFF’S MARRIAGE LICENSE CREATES AN UNREBUTTED PRESUMPTION THAT SHE WAS MARRIED TO THE DECEDENT.
Defendants contend that plaintiff lacked standing to bring her conversion claim because she was not married to the decedent, and further that their evidence creates a triable issue of fact with respect to her marital status. We disagree.
California recognizes as valid out-of-state marriages that are valid under the laws of the jurisdiction in which the marriage was made. (Fam. Code, § 308.) The solemnization of a marriage may be proved under the same general rules of evidence as facts are proved in other cases. (Fam. Code, § 305.) A ceremonial marriage is presumed valid. (Evid. Code, § 663.) This presumption places a heavy burden on the party seeking to attack the validity of the marriage. (See Hamburgh v. Hys (1937) 22 Cal.App.2d 508, 509.)
To establish conversion, a plaintiff must show (1) plaintiff’s ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of plaintiff’s property rights; and (3) damages. (Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 598.) Under California law, each spouse has a one-half interest in community property (Fam. Code, § 751), and the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent. (Prob. Code, § 6401, subd. (a).) Here, the only contested issue is plaintiff’s marital status. Plaintiff raised the presumption of a valid marriage by the presentation of a marriage license that was regular on its face. Because we do not consider defendants’ evidence, and defendants do not challenge the trial court’s exclusion of their evidence in opposition to plaintiff’s summary adjudication motion, the presumption of a valid marriage is unrebutted. Therefore, as plaintiff was legally entitled to the funds as the decedent’s spouse, she was entitled to judgment on her conversion claim.
Defendants argue that plaintiff did not have standing to pursue a conversion claim because she was not married to the decedent and thus had no ownership interest in the checking account. This argument erroneously treats as a premise the conclusion to be drawn. Only a party with a real interest in a dispute has standing to adjudicate a claim. (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) Plaintiff had an interest in this dispute because of her claim of entitlement to the funds.
DISPOSITION
The judgment of the superior court is affirmed. Respondent is to recover her costs on appeal.
We concur: PERLUSS, P. J., WILEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.