Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 352354. David G. Vanderwall, Judge.
McClaugherty & Associates and Jay S. McClaugherty for Plaintiffs and Appellants, Paul Johnson and Thomas Johnson.
Alderlaw and C. Michael Alder for Plaintiff and Appellant, Katherine Johnson.
Ericksen, Arbuthnot and Michael D. Ott for Tiffany Ann Groza, Defendant and Respondent.
No appearance on behalf of Virginia Groza, Defendant and Respondent.
Appellants state in their opening brief: “Virginia Groza was named as a defendant in the action based on allegations of negligent entrustment. Appellants do not appeal the judgment in her favor.” Although appellants expressly decline to challenge the judgment as to Virginia Groza, they have not formally dismissed her as a party to this appeal. In light of appellants’ apparent concession, we will refer to her as “Virginia Groza” or “Mrs. Groza,” for the sake of clarity.
OPINION
Poochigian, J.
INTRODUCTION
The children of a passenger in a single vehicle accident appeal from a judgment in favor of respondent teenage driver and driver’s mother in an action for passenger’s wrongful death.
STATEMENT OF THE CASE
On December 3, 2004, appellants Katherine Johnson, Paul Johnson, and Thomas Johnson filed an unverified complaint for wrongful death, personal injury, and motor vehicle property damage in Stanislaus County Superior Court. The appellants named respondents Tiffany Ann Groza and Virginia Groza as defendants and alleged causes of action for general negligence resulting in the death of appellants’ mother, Barbara Johnson.
On January 19, 2005, respondents filed an answer generally denying the material allegations of the complaint and setting forth three affirmative defenses.
On June 3, 2008, jury trial commenced.
On June 12, 2008, the jury returned special verdicts finding respondents not negligent.
On November 20, 2008, the court filed a judgment in favor of respondents and awarding them $7,699.25 in costs.
On December 31, 2008, appellants filed a motion for new trial.
On March 23, 2009, the court filed an order denying appellants’ motions for new trial.
On April 1, 2009, appellants Paul and Thomas Johnson filed a notice of appeal from the judgment, the order denying motion for new trial, and “[f]rom all other orders that are independently appealable.” On May 6, 2009, appellant Katherine Johnson filed a notice of appeal from the judgment, the order denying motion for new trial and “[f]rom all other orders that are independently appealable.”
An order denying a motion for new trial is nonappealable. Such an order may be reviewed on appeal from the underlying judgment. (Code Civ. Proc., § 906; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)
On June 4, 2009, this court dismissed appellant Katherine Johnson’s appeal for failure to procure the record. On June 15, 2009, this court vacated its June 4, 2009, order and reinstated Katherine Johnson’s appeal to active status.
On November 4, 2009, respondents moved for dismissal of the appeal of all three appellants because of appellants’ noncompliance with California Rules of Court, rule 8.130(a)(2) [failure to state points to be raised on appeal where appellant designates less than all testimony to be included in a reporter’s transcript].
On November 19, 2009, appellants filed written opposition to respondents’ motion to dismiss.
On November 30, 2009, this court denied respondents’ motion to dismiss.
STATEMENT OF FACTS
Virginia Groza met appellants’ mother, Barbara Johnson, when their children were still in junior high school. Both mothers had children in special education programs. Johnson had expertise with regard to special education and special needs children. Johnson mentored Virginia and helped with the education programs for Virginia’s daughters, Crystal and 17-year-old Tiffany. Virginia explained that “Tiffany is communicatively handicapped, she is a visual learner.” In October 2003, Tiffany had a provisional driving permit and had been driving under adult supervision for about three months.
In the fall of 2003, Johnson had prepared an individual educational plan (IEP) entailing a visit to museums and sites in Southern California, among other places. According to Tiffany, Barbara “traveled everywhere to help as many kids as she possibly could.” Johnson apparently planned to take Crystal Groza alone. When Tiffany’s travel plans for that same time period fell through, Crystal asked Virginia whether Tiffany could also go. Before the trip, Johnson asked Virginia if they could use the Groza family’s Mercury Villager van and whether Tiffany could drive. Virginia gave her permission subject to certain “stipulations.” Virginia said she told Barbara that Tiffany could drive “ ‘a little bit on the straightaways,’ ” but not on windy or curvy roads.
On the afternoon of October 11, 2003, Crystal, Tiffany, and Barbara departed the Johnson home in the Lake Camanche area of Ione in nearby Amador County. Tiffany, who had been driving for three months, drove the trio in the Groza family van. Tiffany said she departed slowly from the Lake Camanche area and “Barbara was telling me to speed up, that I needed to go faster.” Tiffany explained the road between the Johnsons’ Lake Camanche home and Highway 99 was “very windy.” Tiffany initially traveled the speed limit and would go “really slow” around each turn. Barbara would tell Tiffany to go faster. Tiffany eventually stopped at a Flying J gas station. Tiffany parked the car and Barbara handled the fuel purchase. Tiffany and Crystal cleaned the windows of the van. Tiffany said Barbara Johnson was critical of her driving. According to Tiffany, Barbara “was very rude … very snappy at me … because I didn’t do it the way that she wanted it done.” At one point, Barbara told Tiffany, “ ‘my daughter does 90, I do 80, you have to do at least 75.’ ”
After the van was fueled and cleaned, Tiffany took an onramp and got back onto the Interstate 5. At some point after entering the freeway, the van began pulling to the left. Tiffany’s van was behind a big rig on Interstate 5, and Barbara told Tiffany to pass the truck. Tiffany complied with Barbara’s directions and the car started to tug to the left. Tiffany said she expected Barbara to say something or help in some way but Barbara did not do so. Tiffany lost control of the vehicle as she finished passing the big rig. She said the front end of the van began swinging toward a hill with a straight drop-off. Tiffany said she “turned [the] wheels in the opposite direction and that’s when it rolled.” The van went down an embankment. According to Tiffany, she was “going 75 and with the cruise control on” when the accident occurred. Tiffany lost consciousness and then regained it at the scene before paramedics arrived. Barbara Johnson died in the accident.
DISCUSSION
THE JUDGMENT WAS SUPPORTED BY SUBSTANTIAL EVIDENCE
Appellant contends Tiffany Groza’s admission at trial was substantial evidence that she was at least partially at fault for the fatal accident.
A. The Testimony of Tiffany Groza
The following exchange occurred at the inception of the direct examination of Tiffany during the plaintiffs’ case-in-chief:
“BY MR. MC CLAUGHERTY [trial counsel for appellants Paul and Thomas Johnson]: Q. Ms. Groza, you understand you’re under oath, sworn to tell the truth?
“A. [by Tiffany Groza] Yes.
“Q. Okay. You have to speak up a little bit.
“A. Yes.
“Q. Okay. Let me ask you: You feel that you have some responsibility or fault for this accident, don’t you?
“MR. DRABANT [trial counsel for respondents]: Objection, Your Honor, calls for an opinion.
“THE COURT: Overruled.
“THE WITNESS: What does that mean?
“THE COURT: You can answer the question.
“THE WITNESS: Okay. Hmm, yes. I do.”
Appellants’ counsel did not ask any follow-up questions to determine whether Tiffany’s sense of responsibility or fault constituted a failure to exercise due care in operating the van on the day in question. During closing argument, counsel for Paul and Thomas Johnson asserted:
“And the question was, do you feel some responsibility or fault? And she said, I do. In the law we call that an admission. That’s an important, if not the single most important, piece of evidence in this case. In the law, we call that an admission of fault. And it’s just your job now to determine the percentage of fault.
“You can find it 100 percent, you can break out some percentage against Barbara Johnson. And I think if you do, you can find some against Virginia Groza. But Tiffany has admitted fault to you and I respect that. [¶]…[¶]
“The highest degree of importance on testimony is when a party admits fault. And the reason why that’s so credible and so important is because they’re making an admission against their own interest. And we have a rule called the hearsay rule, but this is an exception to the hearsay rule because it’s so important when a person admits fault.”
B. Appellants’ Specific Contention
Appellants argue:
“Apparently, the jury felt sorry for Respondent [Tiffany Groza]. Certainly her testimony--and the testimony of her mother--was intended to shift the blame for this accident to Decedent, and/or to suggest that their [sic] was a mechanical problem. However, by her own testimony in describing an accident that happened very quickly, Respondent admits she lost control of the van after trying to jerk it back into the lane. And Respondent admitted that she was responsible for the accident. At its best, the other testimony by Tiffany also establishes some comparative fault on the part of Decedent, but the only testimony on the issue of Tiffany’s fault establishes that she was partially at fault for this accident. There is no substantial evidence to refute that admission. [¶]... [¶]
“Appellants believe that the admission that she [Tiffany] was at fault, coming at the onset of her testimony, ‘framed’ the rest of her testimony in the context of that admission. Appellants are, of course, aware of the general rule that in determining whether there is substantial evidence, the reviewing court is to disregard evidence that is contrary to the jury’s finding [citation omitted]. However, here Appellants dispute that there was any substantial supporting evidence. Also, Appellants have not found an application of that rule that compels a reviewing court to completely ignore an admission of fault, given the substantial deference afforded to admissions.” (Emphasis in original.)
C. Law Governing Substantial Evidence
When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. The power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the verdict. An appellate court must view the evidence in the light most favorable to the prevailing party giving it the benefit of every reasonable inference and resolving all conflicts in its favor. A party raising a claim of insufficiency of the evidence assumes a daunting burden. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.) If defendants contend some particular issue of fact is not sustained, they are required to set forth in their briefs a summary of the material evidence upon that issue. Defendants are required to set forth all of the material evidence on the point and not merely their own evidence. Unless this is done, the error is deemed to be waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)
In California, it is the appellant’s responsibility to include in the appellate record the portions of the reporter’s transcript relevant to the appellant’s issues on appeal. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002.) A record is inadequate, and appellant defaults, if the appellant predicates error only on part of the record but ignores or does not present to the appellate court the portions of the proceedings in the trial court which may provide grounds upon which the decision of the trial court could be affirmed. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) In determining sufficiency of the evidence, an appellate court cannot confine itself to isolated bits of evidence, but must view the whole record. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 50, fn. 11.) In reviewing for substantial evidence, the ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. (Estate of Young (2008) 160 Cal.App.4th 62, 76.)
D. Analysis
1. Procedural Considerations
Appellants designated only a portion of the reporter’s transcript for purposes of appeal. That transcript contained the purported admission of respondent Tiffany Groza, the testimony of Crystal and Virginia Groza, the closing arguments of counsel, and the jury instructions, but the testimony of no other witnesses. Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, it is presumed that the unreported trial testimony would demonstrate the absence of error. The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Appellants have provided this court with a partial reporter’s transcript. An appellate court must resolve the issue of substantial evidence in light of the whole record. (People v. Johnson (1980) 26 Cal.3d 557, 577.) Appellants have failed to provide such a record in the instant case. Where the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Appellants insist “there is no substantial evidence to refute [Tiffany’s] admission of fault, at least as to some partial fault.” Absent a full reporter’s transcript, we have no informed basis for drawing such a conclusion based on the facts known to us in the instant case. Rather, we must conclude the record is inadequate for meaningful review and the judgment upon special verdicts must be affirmed.
2. Substantive Considerations
Even if we assume the record is procedurally sufficient for purposes of substantial evidence review, appellants’ claims about the nature of Tiffany’s statement appear misplaced. At argument, appellants’ trial counsel characterized Tiffany’s statement about fault as an “admission,” an exception to the hearsay rule. Hearsay is evidence of an out-of-court statement offered by its proponent to prove what it states. (Evid. Code, § 1200, subd. (a); People v. Alvarez (1996) 14 Cal.4th 155, 185.) Because Tiffany’s statement was uttered on direct examination at trial, it does not come within the admissions exception to the hearsay rule. On appeal, appellant contends “the law places great weight on admissions” and “admissions by a party are entitled to great deference.” “While it is sometimes broadly stated that the uncontradicted testimony of a witness to a particular fact may not be disregarded, … this statement is subject to definite limitations.… Provided the trier of the facts does not act arbitrarily, he or she may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171, italics in original.)
The trial court instructed the jury pursuant to CALCRIM No. 5003: “A witness is a person who has knowledge related to this case. You will have to decide whether you believe each witness and how important each witness’s testimony is to the case. You may believe all, part, or none of a witness’s testimony.” Here, the jury could have construed Tiffany’s brief statement of “fault” as an expression of personal grief or remorse as opposed to an acknowledgment of liability under the law of negligence. An appellate court has no power to the judge effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623.) Appellants maintain “because the testimony came in the form of admission, there was no basis for the jury to disregard such testimony.” (Emphasis in original.) Appellants’ argument ignores the guidelines of CALCRIM No. 5003 for evaluating witness testimony and essentially invites this court to reweigh the testimony of Tiffany Groza. This we may not do.
Appellants’ characterization of Tiffany Groza’s statement as an “admission” does not compel reversal of the judgment upon special verdicts.
DISPOSITION
The judgment is affirmed. Costs awarded to respondents.
WE CONCUR: Hill, P.J., Wiseman, J.