Chepel v. Swinney
Filed 9/3/13 Chepel v. Swinney CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
IGOR CHEPEL,
Plaintiff and Appellant,
v.
CHRIS SWINNEY,
Defendant and Respondent.
C069535
(Super. Ct. No. 34200800006391CUNPGDS)
Plaintiff
Igor Chepel, representing himself on appeal as he did in the trial court, urges
us to reverse a jury verdict in which he lost each of the three causes of
action he asserted against his ex-wife’s boyfriend, defendant Chris
Swinney. Plaintiff asks us to disregard
defendant’s appellate brief for violating filing deadlines. Even if we were to grant plaintiff’s request,
it would not solve the fatal deficiency in his appeal—the absence of a
sufficient record to support his claims.
Without a reporter’s transcript and with only a skeletal clerk’s
transcript, we must affirm the judgment.
FACTS
We would
normally begin with a recitation of the relevant facts upon which the appeal is
predicated. In this case, however, not
even the complaint is included in the clerk’s transcript. The judgment states that the jury found
against plaintiff on his causes of action for assault, for the intentional
infliction of emotional distress, and for slander. The judgment reflects the only facts we can
use to evaluate plaintiff’s allegations on appeal.
The clerk’s
transcript also includes the parties’ trial briefs and an assortment of
declarations. These documents suggest
that the parties were embroiled in a protracted dispute involving the custody
of plaintiff’s children. Plaintiff may
not appreciate that trial briefs do not constitute evidence. We must, however, presume the existence of
all facts in support of the jury verdict where, as here, there is an appeal of
the judgment roll. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (
DISCUSSION
Plaintiff
raises four issues on appeal: the trial
court erred by allowing defendant to produce witnesses at trial he had not
disclosed in advance, he was denied the opportunity to present evidence of his
medical damages, the trial court should have ordered sua sponte a judgment
notwithstanding the verdict in his favor, and defendant was not entitled to
costs. He fails to sustain his burden of
showing that any of these allegations constitute reversible error by failing to
produce a record and provide citations to support his assignments of error.
As to his
complaint about the tardy disclosure of witnesses, he does not produce the
court’s ruling, name the witnesses he objected to, or demonstrate how he was
prejudiced by the late disclosure. We
are at a loss to determine who they were, what the court ruled, and how the
ruling mandates reversal. Left blind, we
cannot determine whether the ruling was in error and, if so, if it prejudiced
plaintiff’s case. Moreover, apparently
plaintiff does not understand that the trial court retains broad discretion to
control the admission of evidence, and therefore he fails to sustain his burden
of demonstrating an abuse of discretion.
(Santillan v. Roman Catholic
Bishop of Fresno (2012) 202 Cal.App.4th 708, 727.)
Plaintiff’s
complaint about the denial of his request to exclude Officer Devries’ testimony
suffers the same deficiency. Plaintiff
provides only the minute order, noting that his motion was denied. He does not provide a record to demonstrate
what testimony he provided or if the officer’s police report was admitted into
evidence and, if it was, why the admission of the evidence was an abuse of
discretion. Nor did plaintiff
demonstrate how the testimony or the report resulted in his substantial
prejudice.
The pattern
continues. He complains he was not
allowed to introduce evidence of his damages.
First, the jury absolved defendant of liability as to each of the causes
of damages. As a result, the exclusion
of evidence of damages did not prejudice defendant. But second, the lack of a record precludes
our review. Plaintiff fails to include
in the record the list of medical
records, evidence they were marked as an exhibit for admission, the
objections he made at trial, and the court’s ruling. In the absence of a record, plaintiff’s
complaint fails.
Without
either factual or legal support, plaintiff asserts the trial court had a sua
sponte obligation to grant judgment in his favor notwithstanding a jury verdict
to the contrary. Since plaintiff fails
to provide a record of the oral proceedings, we must conclusively presume that
sufficient evidence supports the jury’s factual findings. (Nielsen,
supra, 178 Cal.App.4th at p. 324.)
Finally,
plaintiff contends defendant was not entitled to costs because the memorandum
of costs was not verified. It was,
however, verified by defendant’s counsel as allowed by rule 3.1700(a)(1) of the
California Rules of Court. In his reply
brief, he adds that defendant did not show that the costs he claimed were
reasonably necessary, and from his point of view, the reporter’s transcript was
a mere convenience, not a necessity. We
have no record to assess whether the costs were reasonable, although we have no
trouble advising plaintiff that the cost of a reporter’s transcript is not only
reasonable but, if included in the record on appeal, would have allowed us to
review the record for the errors he asserts justify a reversal. On the bare bones presented to us, we must
affirm.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL ,
J.
