Filed 3/21/17 Ochoa v. County of San Diego CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



EDUARDO OCHOA,

Plaintiff and Appellant,

v.

COUNTY OF SAN DIEGO,

Defendant and Respondent.
D069863



(Super. Ct. No. 37-2014-00017805-
CU-PA-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed.
Eduardo Ochoa, in pro. per., for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, David Brodie, Senior Deputy County Counsel, for Defendant and Respondent.

Plaintiff Eduardo Ochoa appeals a judgment entered after a bench trial in which the court found against Ochoa on his personal injury claims against the County of San Diego (County) arising from a motor vehicle accident involving Ochoa and a County employee driving a County vehicle. On appeal, Ochoa challenges the trial court's factual findings regarding fault. However, because we presume the judgment is correct, and because Ochoa has not provided us with an appellate record sufficient to show the trial court erred, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Ochoa filed a personal injury lawsuit against County arising from a motor vehicle collision involving Ochoa and a County employee (Matthew McArdle) who was driving a County vehicle. A half-day bench trial occurred on October 8, 2015. Ochoa represented himself. No court reporter was present.
Three witnesses testified: Ochoa, McArdle, and Officer Adam Wingler of the Department of the California Highway Patrol (CHP). Officer Wingler testified first. The trial court summarized his testimony:
"He has been with CHP nearly 10 years. He was summoned to an accident site in Jamul . . . . There is a 55 mph speed limit. [Exhibits] show the roadway and the driveway from which Mr. Ochoa was emerging on the afternoon in question—a clear, warm day. . . . When Wingler arrived, Ochoa was being attended [to] by paramedics; [Wingler] took [Ochoa's] statement and then took McArdle's. [Wingler] concluded Ochoa had failed to yield and had entered the roadway in an unsafe manner. Ochoa's statement regarding the location of impact did not match the debris/fluid field. No debris in [the] westbound lane, and tire marks, and location of damage on both vehicles did not support Ochoa['s] version. Major damage on both vehicles.

"[Wingler] [s]aw Ochoa two days later, Jan. 8. Got his statement again. Statement still did not match the debris field. Later saw Ochoa's written statement; it did not change his view."

Ochoa testified next. The trial court summarized his testimony:
"He denied being the cause of the accident. He has lived in the same location 15 years and has never had a problem. Mr. Ochoa was cross-examined. Ochoa asserted McArdle was driving on the wrong side of the road, then returned to his lane, then came back across the center line. He intimated McArdle did so on purpose. Mr. Ochoa offered no evidence of physical injury or medical special damages."

McArdle testified last. The trial court summarized his testimony:
"He insisted the accident happened in front of the driveway. On friendly cross: He is a County employee, working security for the jails. He was driving the County van at the time. He described the accident. He was headed for the County fuel yard at Descanso from the East Mesa Detention Facility. He estimates his speed at 45. Ochoa's car was blocking his eastbound lane. He took evasive action. Ochoa rolled forward, and McArdle was unable to avoid a collision."

During closing argument, "Ochoa repeatedly accused McArdle of lying, and argued that McArdle hit him on purpose." Neither party requested a statement of decision before the court took the matter under submission. (See Code Civ. Proc., § 632.)
The court issued a minute order summarizing its ruling:
"Mr. Ochoa's version of the accident made no sense given the damage to the vehicles, the debris field documented by the CHP officer, and the other testimony. The court did not find Ochoa's testimony credible. The court found the other two witnesses more credible. McArdle's version of the accident made more sense. In making these credibility determinations, the court considered the factors of CACI 107. Mr. Ochoa failed to prove his case by a preponderance of the evidence. His failure to be careful in emerging from his driveway, and his violation of [Vehicle Code section 21804, subdivision (a)], was the substantial factor giving rise to this accident. Mr. Ochoa is entitled to take nothing on his complaint."

The trial court entered judgment against Ochoa. Ochoa appeals.
DISCUSSION
Ochoa challenges the trial court's factual finding that he, rather than McArdle, was at fault for the collision. We review this challenge for substantial evidence. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) As we will explain, the appellate record is insufficient to show the trial court's findings are not supported by substantial evidence.
An appeal is not a second hearing or trial. The role of an appellate court is to determine whether any error occurred, and if so, whether that error was prejudicial to the defendant. In doing so, we defer to the factfinder's credibility determinations and do not reweigh evidence. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).)
" 'It is the duty of an appellant to provide an adequate record to the court establishing error.' " (Hotels Nevada v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) In the case of an appellant's challenge to a trial court's factual findings following a bench trial, the record ordinarily must include either a reporter's transcript, or an agreed or settled statement. (Foust, supra, 198 Cal.App.4th at p. 187.) " 'Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citation.]' [Citation.] This principle stems from the well-established rule of appellate review that a judgment or order is presumed correct and the appellant has the burden of demonstrating prejudicial error." (Hotels Nevada, at p. 348; see Foust, at p. 187.) These rules of appellate procedure apply whether an appellant is represented by counsel or is self-represented. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
The trial court made express findings regarding credibility and fault based on its observation and evaluation of the witnesses' trial testimony. The appellate record before us is insufficient to establish those findings are unsupported by substantial evidence. Specifically, the record consists only of a partial clerk's transcript containing primarily pretrial minute orders. It does not include a reporter's transcript or settled statement. Without those, we cannot undertake a meaningful review of Ochoa's substantial evidence challenge to the trial court's findings.
DISPOSITION
The judgment is affirmed. Ochoa to pay County's costs on appeal.


HALLER, J.

WE CONCUR:




BENKE, Acting P. J.




NARES, J.