Malone v. Western Conf. of Teamsters Pension Trust

• Decision Date: 24 October 1980
• Citation: 110 Cal.App.3d 538,169 Cal.Rptr. 90
• Parties: Carolyn MALONE, Individually and as Personal Representative, etc., Plaintiff and Appellant, v. WESTERN CONFERENCE OF TEAMSTERS PENSION TRUST, Defendant and Respondent. Civ. 45315.
• Court: California Court of Appeals Court of Appeals

Page 90

169 Cal.Rptr. 90

110 Cal.App.3d 538

Carolyn MALONE, Individually and as Personal Representative, etc., Plaintiff and Appellant, v. WESTERN CONFERENCE OF TEAMSTERS PENSION TRUST, Defendant and Respondent.

Civ. 45315.

Court of Appeal, First District, Division 1, California.

Oct. 24, 1980.

OPINION ON DENIAL OF REHEARING

ELKINGTON, Acting Presiding Justice.

On its petition for rehearing the Trust urges that, since the trial court's judgment was entered on a Code of Civil Procedure section 631.8 motion it "had no opportunity to present evidence against the claim," and the cause must now be remanded for a continuation of the trial. We disagree. Cal.App., 168 Cal.Rptr. 210.

At the trial's commencement the Fund filed with and handed to the trial court its trial brief delineating its version of the material facts of the case. At the same time plaintiff Malone filed her trial brief with the court stating substantially the same facts as the controlling facts of the case. Although there was some disagreement as to minor and irrelevant points, none is found in their respective statements of the material and dispositive facts. Neither party sought inclusion of the trial's evidence in the appellate record, but both of the parties' trial briefs are so included. It will therefore be presumed that the trial's evidence was not necessary "to a determination of the points on appeal." (See rule 52, Cal. Rules of Court.) And as in the trial court, the parties on appeal have treated the agreed facts of their trial briefs as the facts of the case.

Moreover, on its petition for rehearing, the Trust makes no assertion that the material facts were different, or broader, than those stated by the parties at the trial's commencement.

The Fund will not, under the circumstances, now be permitted to say that there were, or may have been, other and additional facts calling for a result different from that we have reached on the facts of the case as stated by it and plaintiff Malone.

The petition for rehearing is denied.

GRODIN, J., is of the opinion a rehearing should be granted.