Filed 7/20/17 Taylor v. Babcock CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MICHAEL TAYLOR,

Plaintiff and Appellant,

v.

LEA TAYLOR BABCOCK,

Defendant and Respondent.
H043596
(Santa Cruz County
Super. Ct. No. CV180420)

ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 23, 2017, be modified as followings:
On page 5, the sentence beginning “It is clear” is changed to “It is clear from the trial court’s written decision that it relied, at least in part, on external influences exerted during the final years of decedent’s life impacting the validity of the later executed grant deeds.”
There is no change in the judgment.
The petition for rehearing is denied.

____________________________________
Rushing, P.J.

____________________________________
Premo, J.

____________________________________
Grover, J.

Filed 6/23/17 Taylor v. Babcock CA6 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MICHAEL TAYLOR,

Plaintiff and Appellant,

v.

LEA TAYLOR BABCOCK,

Defendant and Respondent.
H043596
(Santa Cruz County
Super. Ct. No. CV180420)

The trial court denied plaintiff’s request to partition by sale residential property his mother had purchased in 1992. Finding no error on the record before us, we will affirm.
I. TRIAL COURT PROCEEDINGS
June Taylor died in September 2014. She was 90 years old. Eight weeks after her death, her son filed a complaint seeking to partition residential property in Ben Lomond she had purchased in 1992. He alleged a tenancy-in-common with his sister, defendant Lea Taylor Babcock, with each holding a 50 percent interest in the property. Plaintiff later filed an amended complaint claiming a 75 percent interest in the property, with his sister holding the remaining 25 percent interest.
A short cause bench trial was held in March 2016, with plaintiff represented by counsel and defendant representing herself. Soon thereafter the trial court issued a written decision finding that defendant owned the property (subject only to a lien by Bank of America) and denying the partition request. The court found that defendant had provided the down payment for and resided on the property since its purchase, that the original 1992 deed and loan were in the name of decedent June Taylor, mother of plaintiff and defendant, and that decedent had signed and executed a quitclaim deed to her daughter in July 1992. It found that the property was not a trust asset or part of decedent’s estate.
The trial court found that defendant and decedent had executed several deeds between 1992 and 2014, which were apparent attempts to put defendant’s name on the title and to comply with Bank of America’s lending requirements since defendant was not on the loan. Decedent had also refinanced the property to liquidate some equity, without defendant’s knowledge, at some point after the quitclaim deed was executed in 1992 but before that deed was recorded in 2014. During the last few years of decedent’s life after she had moved in with plaintiff, attempts were made to establish a conservatorship and to transfer ownership of the Ben Lomond property, bypassing decedent’s previous wishes. The trial court found those transfers were void, as decedent no longer held an interest in the property. It further found a lien on the property recorded by plaintiff’s attorneys of record in the conservatorship proceeding (DiJulio Law Group) void, and ordered that the lien be removed immediately.
The trial court found that defendant was responsible for reimbursing decedent’s estate (of which plaintiff was the beneficiary) for all payments made by the estate on behalf of the property after decedent’s death, including any mortgages, taxes, and insurance. It authorized a lien on the property to secure the money owed.
Plaintiff filed objections to the decision, arguing that it was ambiguous, it failed to specifically identify any finding of fact or identify evidence upon which it relied, and it did not correctly reflect the evidence presented at trial. According to the trial court’s on-line docket, the court did not respond to plaintiff’s objections.
Plaintiff filed a timely appeal and opening brief. Defendant did not file a respondent’s brief. Under California Rules of Court, rule 8.220(a)(2) (further rule references are to the California Rules of Court), we “decide the appeal on the record, the opening brief, and any oral argument by the appellant.” In designating the record on appeal, plaintiff elected to proceed without a reporter’s transcript of the court trial, and by using an appendix as the record of written documents.
II. DISCUSSION
Plaintiff argues the trial court erred by finding defendant the sole owner of the Ben Lomond property. According to plaintiff, the recorded deeds to the property conclusively determined ownership. Assuming an ownership interest in the property as the successor to his mother’s trust, plaintiff argues that the lien in favor of DiJulio Law Group is valid. We will affirm the trial court judgment because plaintiff has failed to meet his burden of establishing error.
“ ‘ “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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” ’ ” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Because error must be affirmatively shown (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502), appellant has a duty to provide an adequate record to the reviewing court to establish that error. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) Failure to provide an adequate record for appellate review requires that the reviewing court resolve the issue against the appellant. (Gee, at p. 1416; Hernandez, at p. 502.)
Here, plaintiff has failed to provide us with an adequate record to review the court’s decision following trial. As we have already noted, plaintiff elected to prepare an appendix as the record of written documents. That compendium, filed with the opening brief, included plaintiff’s complaint, amended complaint, witness list, exhibit list, and a request for judicial notice of several recorded deeds and decedent’s death certificate. It also included plaintiff’s trial brief (in which he asserted an ownership interest based on the recorded deeds and his status as beneficiary to a trust established by decedent in November 2012), the trial court’s decision, and plaintiff’s objections to the decision. Plaintiff’s opening brief to this court cites to his trial brief and the documents attached to the request for judicial notice. But plaintiff has failed to provide us with the trial court’s ruling on the judicial notice request, much less with the evidence presented at trial, including a record of the trial itself.
Plaintiff is not without guidance for filing an adequate record. The content of an appellant’s appendix is set forth in rule 8.124(b). It must contain “all items required by rule 8.122(b)(1)” and “[a]ny item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues, including, for an appellant’s appendix, any item that the appellant should reasonably assume the respondent will rely on.” (Rule 8.124(b)(1)(A)–(B).) Rule 8.122(b)(1) identifies the notice of appeal, any judgment appealed from and notice of its entry, any order appealed from and notice of its entry, documents related to certain post-trial motions, any notices or stipulations related to preparation of the record, and the register of actions. Rule 8.122(b)(3)(A) & (B) identifies “[a]ny other documents filed or lodged in the case,” and “[a]ny exhibits admitted in evidence, refused, or lodged.” Rule 8.120(b) requires “an appellant [who] intends to raise any issue that requires consideration of the oral proceedings” in the trial court to include in the record of appeal a reporter’s transcript or an agreed or settled statement of oral proceedings.
Plaintiff did not comply with those rudimentary rules of appellate practice. Most notably, plaintiff failed to provide us with the reporter’s transcript or an agreed or settled statement of the trial, or with any exhibits admitted in evidence, or refused or lodged. According to the trial court’s on-line public docket, a “document,” a “brief,” and a “minute order” were filed on the date of trial, but plaintiff also included none of those filings, nor the docket itself, in his appendix.
Even assuming the documents attached to plaintiff’s request for judicial notice were admitted into evidence at trial, we cannot say as a matter of law that they compel a ruling in plaintiff’s favor. The trial court’s decision was not based on the chain of recorded title. It is clear from the written decision that the trial court relied, at least in part, on external influences impacting decedent’s capacity to execute grant deeds after moving in with plaintiff in 2012, near the end of her life. Thus, our standard of review requires consideration of all the evidence presented to the trial court. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc., supra, 203 Cal.App.4th at p. 348.) Without a showing of error in the record on appeal, we necessarily resolve the challenge to the trial court’s judgment in favor of defendant. (Ibid.)
III. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Rushing, P. J.




____________________________
Premo, J.