Davis v. Lucas

• Decision Date: 27 April 1960
• Citation: 4 Cal.Rptr. 479,180 Cal. App. 2d 407
• Court: California Court of Appeals
• Parties: , Blue Sky L. Rep. P 70,473 John A. DAVIS, Plaintiff and Respondent, v. Kathryn B. LUCAS, individually, and Kathryn B. Lucas, as Executrix of the Estate of Gladys B. Davis, Deceased, Defendant and Appellant. Civ. 23990.

Page 479

4 Cal.Rptr. 479

180 Cal.App.2d 407, Blue Sky L. Rep. P 70,473

John A. DAVIS, Plaintiff and Respondent, v. Kathryn B. LUCAS, individually, and Kathryn B. Lucas, as Executrix of the Estate of Gladys B. Davis, Deceased, Defendant and Appellant.

Civ. 23990.

District Court of Appeal, Second District, Division 2, California.

April 27, 1960.

Rehearing Denied May 20, 1960.

Theodore E. Bowen, Los Angeles, for appellant.

George E. Atkinson, Jr., Paramount, for respondent.

ASHBURN, Justice.

Respondent John A. Davis, the surviving husband of Gladys B. Davis, sued Kathryn B. Lucas, individually and as executrix of Mrs. Davis' will, for a judgment quieting in plaintiff title to certain real property which he alleged to be his separate estate. Judgment went in his favor and defendant appeals.

Appellant claims the property to have been community property in which she, as sole devisee of her mother's will, is entitled to a one-half interest. Her main contention is that the evidence is insufficient to sustain the court's finding that it was at all times plaintiff's separate property. Her counsel makes numerous separate claims, all of which converge upon this one central issue. They are reflected in reporter's transcripts comprising some 300 pages, and counsel for appellant devotes six pages of his opening brief to the discussion of the sufficiency of the evidence; most of that space is occupied by citations and quotations from cases announcing legal principles applicable to the facts as he asserts them to be. This method overlooks cardinal rules applicable to appellate review.

The appellate court starts with the presumption that the evidence sustains each finding of fact (Gold v. Maxwell, 176 Cal.App.2d 213, 1 Cal.Rptr. 226; Cooper v. Cooper, 168 Cal.App.2d 326, 331, 335 P.2d 983), and the burden rests upon appellant 'to demonstrate that there is no substantial evidence to support the challenged findings.' Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552, see also, New v. New, 148 Cal.App.2d 372, 383, 306 P.2d 987; Cooper v. Cooper, supra, 168 Cal.App.2d at page 331, 335 P.2d 983, and Gold v. Maxwell, supra. 176 Cal.App.2d 217, 1 Cal.Rptr. 229. To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs (Kruckow v. Lesser, 111 Cal.App.2d 198, 200, 244 P.2d 19; Gold v. Maxwell, supra, 176 Cal.App.2d 217, 1 Cal.Rptr. 287; Cooper v. Cooper, supra, 168 Cal.App.2d at page 331, 335 P.2d 983); if this is not done the point is deemed waived (so held in the cases just cited). Counsel in this case has made no real effort to comply with the rule. '[A] claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents.' In re Estate of Good, 146 Cal.App.2d 704, 706, 304 P.2d 196, 197. In the circumstances we are entitled to accept the statements of respondent's brief as to the evidence upon the subject. Respondent's counsel has assembled enough of the testimony in his brief to show at least a substantial conflict in the evidence. Our duty begins and ends with the determination of the existence of such a conflict. 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231, 233. We do not make an independent search of the record to uncover error. Our duty with respect to this contention of appellant is now discharged.

Next appellant contends that the court erred in excluding certain joint income tax returns made by the Davis spouses for the years 1945 to 1953, inclusive, which show (according to defendant's offer of proof) that the net income or profit of Davis Sales Yard (the business conducted by plaintiff) 'was carried as the joint income of the husband and wife.' This was tendered in furtherance of the claim that the subject realty was treated by Mr. and Mrs. Davis as community property. In reliance upon Webb v. Standard Oil Co., 49 Cal.2d 509, 319 P.2d 621, 623, the court refused to order production of the returns and sustained an objection to an offer of proof of their contents. That case holds that §§ 19282 and 19283, Revenue and Taxation Code, ¹ forbid the requiring of disclosure of income tax returns because § 19283 confines court orders for production of returns to 'cases or actions instituted for the enforcement of this part or for the prosecution of violations of this part.' At page 513 of 49 Cal.2d at page 624 of 319 P.2d it is said: 'The purpose of the amended statutory provisions prohibiting disclosure is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes. If the information can be secured by forcing the taxpayer to produce a...