ERIN REDMAN v. GERALD REDMAN (2011)

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 1994, appellant Erin Redman orally agreed to loan a sum of money to her brother, respondent Gerald Redman, a building contractor.   The purpose of the loan was to pay for renovating a residence in Morro Bay. The parties agreed that when the residence was sold, the loan would be repaid and they would each receive one-half of the profit from the sale of the house.   The parties disagreed on the exact amount of the loan.   Erin alleged she loaned Gerald $115,605.65 between January 1994 and August 1995, and an additional $11,677.56 in January 1996.   Erin further alleged that the parties agreed that the loan would bear interest at the rate of 10 percent per annum.

The residence was sold in early 1998 at a $60,000 loss.   Erin contends Gerald made a partial payment on the loan in the amount of $45,000 in January 1996;  a second payment of $48,000 on April 3, 1998;  and a third payment of $15,000 in September 1999.

Erin filed a complaint for breach of contract, fraud, and intentional torts on May 4, 2006, against Gerald and G. Evan Redman Construction, alleging that Gerald still owed her $84,934.07, in principal and interest.   The trial court sustained Gerald's demurrers to the original complaint, and the first and second amended complaints.   In the third amended complaint, Erin alleged that Gerald owed her $118,811.60 in principal and accrued interest.   Gerald filed a motion for summary judgment which apparently was denied.   In the only document included in the clerk's transcript, Gerald asserts that Erin made him an interest-free loan and that the loan was paid in full by April 1, 2001.   The check containing the final payment included the notation “Final Payment of loan for 2400 G.W. Const.”

At the commencement of trial on February 4, 2010, the trial court granted Gerald's motion to bifurcate and to decide his statute of limitations defense.   After receiving documentary evidence and hearing the testimony of both parties, the court ruled that Erin was on inquiry notice of her claim for breach of contract no later than 2001, and that her claims were barred by the statute of limitations in either Code of Civil Procedure section 337 or section 339.

On appeal, Erin asserts the trial court erred in determining her complaint was barred by the statute of limitations because substantial evidence in the record shows that she suffered a mental breakdown in 2001, the statute of limitations was tolled by her incapacity pursuant to Code of Civil Procedure section 340.6, subdivision (a)(4) ¹ , and she was not aware that Gerald did not intend to fully repay the loan until 2005.

DISCUSSION

An Appeal Cannot be Decided on an Insufficient Record

The clerk's transcript designated by Erin and submitted to this court contains only the four versions of her complaint, her opposition to Gerald's demurrer to the second amended complaint, her opposition to Gerald's motion for summary judgment, including her declaration and separate statement of undisputed facts, her request to take judicial notice of the pleadings previously filed in the case, an order setting the case for trial, Erin and Gerald's trial briefs and the order and judgment of the trial court.

We have not been provided with a reporter's transcript, trial exhibits or any other admissible evidence supporting Erin's contention that facts exist supporting delayed discovery of her cause of action against Gerald.   In the absence of such evidence, Erin is precluded from raising any evidentiary issues, including the sole issue on this appeal-whether substantial evidence supports the trial court's factual determination that the statute of limitations began to run in 2001.  (See Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [appellant's omission of the reporter's transcript precludes the appellant from raising any evidentiary issues on appeal];  see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112[unless evidence can support only one reasonable conclusion, the question whether plaintiff discovered or reasonably should have discovered the facts for purposes of

the delayed discovery rule is a question of fact].)

The judgment is affirmed.   Respondent shall recover costs.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

Erin E. Redman, in pro. per., for Appellant.

Gerald E. Redman, in pro. per., for Respondent.

FOOTNOTES

FN1. Erin's citation to Code of Civil Procedure section 340.6, subdivision (a)(4), is erroneous.   That section is limited to actions commenced against attorneys for wrongful acts or omissions.   That issue is not involved here..  FN1. Erin's citation to Code of Civil Procedure section 340.6, subdivision (a)(4), is erroneous.   That section is limited to actions commenced against attorneys for wrongful acts or omissions.   That issue is not involved here.