NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RYLAARSDAM, ACTING P. J.

In our prior opinion (Smith v. Teague (June 24, 2009, G040723 [nonpub. opn.]), we reversed the judgment in plaintiff's Teri Smith's favor after concluding the evidence was insufficient to support the trial court's determination the terms of the premarital agreement between decedent Clarence Teague and defendant Linda Teague were invalid. After the remittitur issued, Smith filed a motion for new trial while Teague moved for entry of judgment consistent with the opinion. The court denied Smith's new trial motion, granted Teague's motion for entry of judgment, and entered judgment in Teague's favor. Smith argues this was error because the opinion was "an unqualified reversal." (Italics omitted.) The contention lacks merit.

Although an unqualified reversal, i.e., without direction to the trial court, ordinarily remands the cause for a new trial with the parties in the same position as if no trial had occurred except that the appellate court's opinion must be followed to the extent applicable (Hall v. Superior Court (1955) 45 Cal.2d 377, 381), the rule is a general one subject to limitations (Stromer v. Browning (1968) 268 Cal.App.2d 513, 518). "One limitation is that a case is to be set . . . for retrial only when that is the intent of the appellate court." (Ibid.) Another is "[w]hen the plaintiff has had full and fair opportunity to present the case, and the evidence is insufficient as a matter of law to support plaintiff's cause of action . . . ." (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661, fn. omitted.) In that event, "a judgment for defendant is required and no new trial is ordinarily allowed, save for newly discovered evidence. [Citation.] . . . [¶] . . . [A] reversal of a judgment for the plaintiff based on insufficiency of the evidence should place the parties, at most, in the position they were in after all the evidence was in and both sides had rested. A judgment for the defendant would then be entered, and a new trial permitted only for newly discovered evidence. [Citation.]" (Ibid.)

Smith contends McCoy is not controlling because it reversed the trial court's denial of a motion for judgment notwithstanding the verdict under Code of Civil Procedure section 629 (all statutory references are to this code), which applies only to jury trials, whereas this case involved a bench trial. But as McCoy explained, "[w]hen a judgment for the plaintiff is reversed for insufficiency of the evidence the appellate court is, in effect, advising the trial court that a nonsuit, directed verdict or JNOV should have been entered. [¶] . . . When trial courts grant nonsuits or judgments notwithstanding the verdict based on insufficiency of the evidence and are affirmed on appeal, new trials do not follow as a matter of course. Certainly, where the plaintiff's evidence is insufficient as a matter of law to support a judgment for plaintiff, a reversal with directions to enter judgment for the defendant is proper. [Citations.] It is anomalous to end the case when the trial court correctly enters a nonsuit or JNOV on the ground that the plaintiff has, as a matter of law, failed to prove a cause of action, but to allow plaintiff another trial when the appellate court makes the same determination, since the standard applied by the respective courts is virtually identical. [Citations.]" (McCoy v. Hearst Corp., supra, 227 Cal.App.3d at p. 1661.) This rationale applies equally well here.

Smith had a full and fair opportunity to present her evidence, which was insufficient as a matter of law. Having stipulated to the matter being tried to the court on the briefs, she is not now entitled to a second opportunity to prove her case with live testimony.

Nor has Smith shown entitlement to a new trial based on new evidence. Section 657, subdivision (4) authorizes the trial court to grant a motion for new trial on the ground of "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at trial." A new trial motion based on newly discovered evidence must be supported by affidavits (§ 658) demonstrating "`(1) the evidence is newly discovered; (2) [the moving party] exercised reasonable diligence in discovering and producing it; and (3) it is material to the [] party's case.' [Citation.]" (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192.) "`Material' in this context means `"likely to produce a different result." [Citation.]' [Citation.]" (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.)

Here, although Smith apparently filed a supporting affidavit as required by section 658, she failed to include it in the record on appeal. It was her burden as the appellant to provide an adequate record that allows us to review her claims of error. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [appellant has burden of overcoming presumption of correctness by affirmatively showing error based on adequate record].) "[C]ounsel's arguments are not evidence" (Maudlin v. Pacific Decisions Sciences Corp. (2006) 137 Cal.App.4th 1001, 1015) and without the affidavit we have no actual evidence from which to determine if Smith satisfied the statutory requirements of establishing newly discovered material evidence that could not with reasonable diligence have been discovered and produced at trial. Given that dearth, we must presume Smith failed to make that showing. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["`All intendments and presumptions are indulged to support [an appealed judgment] on matters as to which the record is silent, and error must be affirmatively shown'"].)

Even if we were to consider counsel's arguments, reasonable diligence and materiality have not been demonstrated. Smith claims the letter Clarence sent to Northern Trust Bank that he requested be inserted "into the 1992 trust `so that its content will become an addendum to that trust'" (Smith v. Teague, supra, G040723, p. 8) "was not produced in discovery and came as a surprise to [her]." She subsequently discovered the bank had "no record of any account under Clarence's name or the name of the trust" and did not discover this evidence during the first "trial partly because of the nature of a trial on brief[s] and partly because the letter was not disclosed until it was attached as an exhibit to [Teague's] brief (at which time it was impossible to obtain information from the bank for a timely rebuttal.)" But although the trial may have been on the briefs, Smith cites nothing that precluded her from timely objecting to the letter, seeking a continuance to conduct further discovery, or otherwise bringing the matter to the court's attention, none of which is reflected in the record. She has not shown she exercised reasonable diligence.

Smith also sought a new trial to address "evidence concerning a residence that was introduced for the first time [on] appeal and . . . forms a significant basis for the opinion of the court." The evidence she refers to apparently are two grant deeds of which Teague requested judicial notice from this court. But we denied the request for judicial notice "as being unnecessary to our decision." (Smith v. Teague, supra, G040723, p. 10.) Thus, any new evidence in this regard would have been immaterial.

As to the other evidence she cites, Smith essentially concedes she cannot show materiality by arguing "`if there is a difference in the evidence, for example, on testimony the court finds [defendant] unreliable, . . . or that none of the financial assets were transferred to the exemption trust, or that trust funds were used to purchase the real property, or that `many issues' did not include pertinent information necessary to satisfy the Bonds requirements, . . . or that other factual matters that may be uncovered in subsequent discovery,' the outcome could be favorable to [her.]" (Italics added.) "If" and "could be" do not establish a likelihood of a different outcome. Moreover, Smith fails to make any showing that she exercised reasonable diligence to discover and produce this evidence, all of which existed at the time of the original trial.

The trial court did not abuse its discretion in denying Smith's new trial motion and granting Teague's motion for judgment.

DISPOSITION

The judgment is affirmed. Respondent shall recover her costs on appeal.

WE CONCUR:

ARONSON, J.

FYBEL, J.