Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC 036235, Judith A. Vander Lans, Judge.
Cheryl Thomas for Plaintiffs and Appellants.
No appearance for Defendants and Respondents.
Greenbaum Law Group, Martin B. Greenbaum and Virginia Sampson for Interveners and Respondents.
FLIER, J.
Plaintiffs Bun Kay and Naren Kay filed this action against defendants Chantheary Som and Erick L. Tai for breach of contract, breach of fiduciary duty, conversion, fraud, money had and received and constructive trust. Plaintiffs alleged they gave defendants money to purchase a gas station as part of an oral partnership agreement but defendants diverted the funds. After a two-and-a-half-day nonjury trial, the court awarded plaintiffs a judgment of $283,833 for breach of contract but denied them relief for breach of fiduciary duty, conversion, fraud and constructive trust. The court ruled a complaint in intervention filed by interveners Both Sommaner Huk, Reay Ponno Huk and Kunthia Huk to be moot. Plaintiffs appeal from the denial of their constructive trust claim and the court’s finding the complaint in intervention moot.
We affirm.
PROCEDURAL HISTORY
1. Complaint as Amended
The complaint as amended alleged as follows. From February 2002 to August 2002, plaintiffs gave defendants $283,833 as part of an oral partnership agreement to purchase a gasoline station in Cypress, California. Defendants never used the money to purchase the Cypress gas station, nor did they ever open a partnership bank account or a joint account to deposit the money received from plaintiffs. Defendants told plaintiffs they had decided instead to purchase a gasoline station in Long Beach, California, for the partnership. However, defendants never did so.
In July 2003, defendants told plaintiffs they had purchased a business in Cambodia. Plaintiffs told defendants they did not wish to be partners in any business in Cambodia and demanded the return of their money. Defendants orally agreed to repay plaintiff $83,833 by August 1, 2004. Defendants failed to make that payment. However, between October 2003 and September 2004, defendants paid plaintiffs $840 a month in interest on the principal.
Defendants used $65,000 of the money given them by plaintiffs to purchase 19 1/2 acres of vacant land in Apple Valley, California. Defendants intended to build homes on the property and promised to give plaintiffs one of the homes in full payment of the $283,833 they still owed plaintiffs. Defendants did not own the Apple Valley parcel but owned two other parcels in Victorville, California, upon which they allegedly intended to build homes. Defendants told plaintiffs they would execute promissory notes and pay plaintiffs interest of 10 percent per annum. Plaintiffs drafted promissory notes secured by the Victorville property for defendants to sign, but defendants refused to execute the notes.
Plaintiffs alleged they were entitled to $283,833 in damages plus interest and an order declaring that defendants were holding the Victorville/Apple Valley properties in constructive trust for plaintiffs’ benefit.
2. Complaint in Intervention
Interveners alleged they held a judgment lien against defendants’ Apple Valley property and therefore had an interest in defendants’ success against plaintiffs’ claims. Interveners asked the court to find in favor of defendants on plaintiffs’ conversion and constructive trust claims.
3. Judgment
The court awarded damages to plaintiffs after having heard testimony, with oral and written evidence having been introduced. Neither party requested a statement of decision from the court.
DISCUSSION
Plaintiffs elected to proceed on their appeal without a reporter’s transcript, and they designated only a limited number of documents to be included in the clerk’s transcript. The clerk’s transcript includes only the complaint, amended cause of action for constructive trust, complaint in intervention, notice of lodging a deposition of defendant Tai taken in another action, interveners’ trial briefs, judgment, notice of appeal, plaintiffs’ designation of record on appeal and civil case summary, together with several trial exhibits. Since plaintiffs elected to base their appeal on the clerk’s transcript, we treat the appeal as one taken on the judgment roll. (Williams v. Inglewood Board of Realtors (1963) 219 Cal.App.2d 479, 482.)
On a judgment roll appeal, the evidence is conclusively presumed to support the judgment, and the judgment can only be attacked for errors that affirmatively appear upon the face of the judgment roll. (Williams v. Inglewood Board of Realtors, supra, 219 Cal.App.2d at p. 482.) The appellant may not enlarge the scope of the inquiry on appeal by incorporating documentary evidence in the clerk’s transcript. (Ibid.)
In this case, plaintiffs lodged with the trial court a certified copy of defendant Tai’s deposition taken in another action that interveners had filed against defendants. However, the record on appeal does not disclose what evidence was before the trial court when it rendered its decision. The judgment only recites that the evidence before the court included oral testimony, together with “oral and written evidence.” As interveners note, the record before us does not include any stipulations that may have been entered into by the parties, and there is no record that defendant Tai’s deposition was ever admitted into evidence or what portions, if any, of the deposition transcript may have been read into the record at trial.
Plaintiffs moved to augment the record on appeal to include a certified copy of defendant Tai’s deposition. Receiving no objection from respondents, this court granted the request to augment the record with a copy of the deposition. Plaintiffs primarily cite to Tai’s deposition to support the contentions in their opening brief. Having now reviewed the full record, we determine no part of the deposition may be considered on appeal since plaintiffs have failed to show any portion of the deposition was admitted into evidence. (Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1968) 266 Cal.App.2d 331, 337 [depositions not made part of the trial record not considered on appeal].)
“In reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief.” (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207; see also Cal. Rules of Court, rule 8.204(a)(2)(C) [opening brief must provide “a summary of the significant facts limited to matters in the record”].) Although plaintiffs have included interveners’ memoranda of points and authorities filed in the trial court, we also do not consider unsupported facts appearing in memoranda of authorities. (Gantner v. Gantner (1952) 39 Cal.2d 272, 278 [“Statements of counsel in briefs are not part of the record on appeal”]; Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578 [“we do not consider evidence contained in documents . . . which the parties failed to present as evidence to the trial court”].)
Plaintiffs’ contentions on appeal are founded on the claim that defendants did not use partnership monies given them to purchase a gas station but instead used the money to buy real property in Victorville/Apple Valley for themselves. In so arguing, plaintiffs do not contend error appears on the face of the judgment roll but rather attack the sufficiency of the evidence to support the judgment. However, we presume the correctness of the judgment and any fact consistent with the validity of the judgment. (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.) The contentions therefore have no merit.
DISPOSITION
The judgment is affirmed. Respondents are to recover costs on appeal.
We concur: COOPER, P. J., RUBIN, J.