Marriage of Kamalnathan CA1/4 ( 2022 )

Filed 12/28/22 Marriage of Kamalnathan CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re the marriage of LINDA
and RAJAGANESH
KAMALNATHAN
LINDA KAMALNATHAN,
Petitioner and Appellant,
A162464
v.
RAJAGANESH (Alameda County
KAMALNATHAN, Super. Ct. No.
HF15792825)
Defendant and
Respondent.
In this dissolution appeal, petitioner Linda Kamalnathan
argues that the trial court erred in rejecting her claim that
certain properties in India constitute community property
because they were acquired by respondent Rajaganesh
Kamalnathan during their marriage. Finding no reversible error,
we affirm the judgment.
1
BACKGROUND1
Petitioner and respondent married in October 1998, and
petitioner filed for dissolution in 2015. After years of litigation,
the court set a July 2019 trial date, and it ultimately held trial in
July 2020.
Prior to the original trial date, petitioner appears to have
requested that the court hold an evidentiary hearing on the
authentication of deeds for multiple Indian properties that she
claimed were community properties (the disputed properties).
The record does not include petitioner’s briefing in support of her
request, but respondent argued in his briefing that the foreign
deeds should be excluded as hearsay and for lack of
authentication. With respect to authentication, respondent
argued that the foreign deeds could not be presumed authentic as
acknowledged documents under Evidence Code section 1451 and
Civil Code section 1183, subdivision (e)2 because the words
1We recite only the background facts relevant to the
contentions raised in this appeal.
2 An acknowledged document may be offered into evidence
without further proof of its execution. (Evid. Code, § 1451
[certificate of acknowledgment “is prima facie evidence of the
facts recited in the certificate and the genuineness of the
signature of each person by whom the writing purports to have
been signed if the certificate meets the requirements of [Civ.
Code, § 1180 et seq.]”]; Wegner et al., Cal. Practice Guide: Civil
Trials and Evidence (The Rutter Group 2015) ¶ 8:361, Ch. 8C–B.)
An acknowledgment is the act of a person who has executed an
instrument declaring before a competent court or officer that the
execution is their act or deed. (De Wolfskill v. Smith (1907)
5 Cal.App. 175, 184.) An acknowledgment may be made outside
of the United States in front of a notary, but, in such cases, the
notary’s signature must be “proved or acknowledged (1) before a
2
“authentic” and “authenticity” were crossed out in the apostilles
on the deeds petitioner submitted.
Judge Nixon presided over the hearing and ordered as
follows: “After review of each parties’ points and authorities as
well as all other documents filed by each party concerning the
deeds at issue, the court denies petitioner’s request to admit all
18 apostilles ‘sale deeds’. The court finds that the modified
notary stamps specifically crossing out the words ‘authenticated’,
‘authentic’ and ‘authenticity’ and renouncing any liability for the
accuracy of the content of each document nullifies the very
purpose of the Apostilles. [¶] The court reserves for trial the use
of said deeds, their relevancy, or other evidentiary methods of
admission proven at trial.”
Shortly thereafter, on his own motion, Judge Nixon
reconsidered his order. He ruled, “The court finds that the
Apostilles are not defective because the word ‘authenticated’ is
crossed out. The Apostilles were not meant to authenticate the
deeds, only to certify the authenticity of the signature, seal or
position of the official (in this case the notary) who executed,
issued or certified a copy of a public document (the deeds). An
apostille of an authentication does not relate to the content of the
underlying document. [¶] The deeds may be introduced into
judge of a court of record of the country where the proof or
acknowledgment is made, or (2) by any American diplomatic
officer, consul general, consul, vice consul, or consular agent, or
(3) by an apostille (certification) affixed to the instrument
pursuant to the terms of The Hague Convention Abolishing the
Requirement of Legalization for Foreign Public Documents.”
(Civ. Code, § 1183, subd. (e).)
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evidence provided they have a notary stamp certified with an
apostille. Neither the notary stamp nor the apostille are evidence
of the validity of the information contained in said deeds.”3
At trial, the parties did not contest that six of twenty
Indian properties were community properties, but they disputed
the characterization of the additional fourteen properties.
During her testimony, petitioner sought to introduce a purported
foreign deed for one disputed property, and respondent objected
that the deed was hearsay and it did not conform with Judge
Nixon’s order because it lacked a notary stamp. After reviewing
the record, the trial judge ruled that the court was going to
enforce Judge Nixon’s order. The court stated the deeds could be
admitted with a notary stamp and apostille, and it observed that
petitioner had submitted an example deed to Judge Nixon that
contained both. Petitioner thereafter did not seek to move the
foreign deeds into evidence. She testified about how she obtained
the deeds; however, her counsel expressly disclaimed that her
testimony was being offered to prove that respondent owned any
of the properties.
3 Because the record does not include petitioner’s briefing
in support of her request for the evidentiary hearing or the
reporter’s transcript for the hearing, we are left to speculate to
some extent about what exactly petitioner requested with respect
to the foreign deeds. From the record provided, it appears the
issue was authenticity, the court rejected respondent’s argument
that the apostilles were defective because certain words therein
were crossed out, and the court ruled that deeds with both a
notary stamp and an apostille were properly authenticated.
4
In its final statement of decision, the court rejected
petitioner’s contention that the disputed properties were
community properties. The court ruled as follows: “Petitioner
claims that Respondent purchased numerous other properties in
India during the marriage that she contends are community
assets and seeks her share of those properties. Respondent
denies that those properties are community assets. He denies
purchasing those disputed properties or directing any community
assets towards their purchase. Despite much discussion during
trial about the issue, Petitioner did not introduce into evidence
any purported deeds regarding these disputed properties.
Petitioner did not prove that any community assets were used to
purchase these disputed properties, despite the extensive work
done by [an appointed expert under section 730]. Petitioner did
not prove that Respondent purchased any of these properties
during the marriage. Petitioner did not identify any transfers
from any community account that went towards the purchase of
any of the disputed properties. Petitioner’s own knowledge of
these disputed properties was very limited and speculative.
Respondent testified that his mother and sister purchased
certain properties in India and placed certain ones in his name.
That testimony was not contradicted by any credible evidence.
The Court finds that Petitioner did not prove that any of the
disputed India properties is a community asset to be divided.
Petitioner’s claim for a share of the value of the disputed India
properties is DENIED.”
5
DISCUSSION
On appeal from a judgment based upon a statement of
decision, we review questions of law de novo and findings of fact
for substantial evidence. (Cuiellette v. City of Los Angeles (2011)
194 Cal.App.4th 757, 765.) Under substantial evidence review,
findings of fact are liberally construed to support the judgment
and we consider the evidence in the light most favorable to the
prevailing party, drawing all reasonable inferences in support of
the findings. (Citizens Business Bank v. Gevorgian (2013)
218 Cal.App.4th 602, 613.) We review the trial court’s
evidentiary rulings for abuse of discretion. (See People v.
Williams (1997) 16 Cal.4th 153, 196–197.)
Petitioner contends the trial court erred by refusing to
admit deeds for the disputed properties into evidence; by failing
to require respondent to rebut the presumption under Family
Code4 section 760 that the disputed properties were community
properties; and by failing to continue the trial to allow her more
time to obtain deeds compliant with Judge Nixon’s order. As set
forth below, each of petitioner’s contentions lacks merit.
I. Admissibility of the Foreign Deeds
Petitioner argues that the court erred in ruling that foreign
deeds with notary stamps and apostilles could be admitted, but
she does not establish the court abused its discretion in so ruling.
The court’s ruling addressed authentication, yet petitioner
notably fails to cite any authority governing the authentication of
4All further statutory references are to the Family Code
unless otherwise specified.
6
writings. Petitioner instead cites Evidence Code sections 452,
subdivision (f), 1202, and 1523, subdivision (b), but these statutes
do not assist her. Evidence Code section 452, subdivision (f),
allowing a court to take judicial notice of “[t]he law of an
organization of nations and of foreign nations and public entities
in foreign nations,” and Evidence Code section 1202, addressing
impeachment of hearsay statements by a declarant who does not
testify at trial, are inapposite, and in any event, petitioner fails to
show she sought relief under those statutes below. The same is
true for Evidence Code section 1523, subdivision (b), which
addresses the admissibility of oral testimony to prove the content
of a writing, not the authenticity of writings that a party seeks to
admit.5
The Section 760 Presumption
Before addressing petitioner’s claim that the court
misallocated the burden of proof and failed to require respondent
to rebut the section 760 presumption, it is helpful to review the
two statutes relevant to her claim. Section 760 sets forth the
5 Under Evidence Code section 1523, subdivision (b), oral
testimony of the content of a writing is admissible when the
proponent does not have possession or control of a copy of the
writing and the original is lost or has been destroyed without
fraudulent intent on the part of the proponent. Even if this
statutory provision were somehow implicated, petitioner concedes
its inapplicability by admitting that she had copies of the
writings at issue. In her brief, petitioner also cites “Code of Civil
Procedure [s]ection 1281(8)[,]” which does not exist. To the
extent she meant to cite Code of Civil Procedure section 128,
subdivision (a)(8), which grants the court the power to amend
and control its process and orders, that statute too is inapposite.
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presumption that, except as otherwise provided by statute, all
property acquired during marriage is community property. On
the other hand, section 770, subdivision (a)(2) provides, “(a)
Separate property of a married person includes all of the
following: [¶] . . . [¶] (2) All property acquired by the person after
marriage by gift, bequest, devise or descent.” Section 760
provides a rebuttable presumption, and, once the presumption is
activated, the opposing party has the burden of establishing by a
preponderance of the evidence that the property at issue is not
community property. (Evid. Code, § 606; In re Marriage of
Ettefagh (2007) 150 Cal.App.4th 1578, 1585, 1591.) Any credible
evidence may be used to overcome the section 760 presumption,
including evidence the item was acquired as a gift to one spouse.
(In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 91.)
Here, petitioner does not demonstrate error in the trial
court’s finding that she failed to show that the disputed
properties were acquired during marriage, and that the section
760 presumption was therefore not triggered. (Cf. Simons,
Cal. Evid. Manual (2022) § 10:4 [effect of a rebuttable
presumption as to proof is that once the preliminary fact is
proved, a finding of the conclusionary fact is required if no
contradictory evidence is presented or when contradictory
evidence leaves trier of fact in equilibrium].) With one exception,
the evidence petitioner points us to in her briefing does not
establish the specific date of any property acquisition. And the
trial court did not err in the characterization of the single
exception—a property called “Thirunendarvur,” the deed to which
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respondent admitted signing in 2007—because the court found
Thirunendarvur was community property.
In any event, the judgment is not reversible even assuming
that respondent acquired the disputed properties during
marriage and the court erred by failing to apply the section 760
presumption because petitioner does not address prejudice, and
we perceive none given the court’s findings. (See Navigators
Specialty Ins. Co. v. Moorefield Construction, Inc. (2016)
6 Cal.App.5th 1258, 1288 [misallocation of burden of proof in
bench trial must be prejudicial].) The court acknowledged that
respondent disputed that he purchased the properties at issue
and disputed that they were community property. The court then
credited respondent’s testimony that his mother and sister
purchased the disputed properties, and the court found there was
no credible evidence to the contrary. Thus, if there were
acquisitions by respondent of the disputed properties during
marriage, the court found that the only credible evidence showed
that such acquisitions were made with the money of respondent’s
mother and sister. (See § 770, subd. (a)(2) [property acquired by
gift is separate property].) On this record, petitioner cannot show
that it is reasonably probable that she would have obtained a
more favorable result in the absence of any alleged error.6
6 Petitioner mentions undue influence within the section of
her brief discussing the section 760 presumption. To the extent
she seeks to raise this as an issue, she forfeited any such
contention. (See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172,
179 [failure to provide proper headings forfeits issues that may
be discussed in the brief but are not clearly identified by a
heading]; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th
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II. Trial Continuance
Petitioner’s final contention—that the trial court should
have continued the trial to allow her time to obtain foreign
deeds—merits little discussion. Petitioner mentions authority
allowing the trial court to set aside a judgment in certain
instances (§ 2122, Code Civ. Proc., § 473, subd. (b)), but she does
not seek reversal based on these authorities. Instead, she
contends that the trial court should have continued the trial in
the interests of justice. But petitioner knew of the need to obtain
deeds that complied with Judge Nixon’s order for nearly a year
before trial, and she never asked for a continuance. (In re A.B.,
supra, 225 Cal.App.4th at p. 1366 [“Because [the appellant’s]
counsel never requested a continuance . . . , we consider the
argument forfeited”].)
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
GOLDMAN, J.
In re Marriage of Kamalnathan (A162246)
270, 277 [to show error, appellant must supply some cogent
argument supported by legal analysis and citation to the record].)
Petitioner also fails to show that she raised undue influence
below. (See In re A.B. (2014) 225 Cal.App.4th 1358, 1366
[appellant is generally precluded from urging on appeal any point
not raised below].)
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