Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TC018668, William Barry, Judge.
Law Office of David W. Allor and David W. Allor for Plaintiff and Appellant.
The Phillips Firm, Thomas M. Phillips, Michael A. Kramer and Mitchell Ducey for Defendant and Respondent.
KRIEGLER, J.
In this action for personal injuries arising from a car accident, plaintiff and appellant Maria de la Torre appeals from a judgment following a jury trial in favor of de la Torre and against defendant and respondent Michiko Watanabe in the amount of $10,529. De la Torre contends the trial court prejudicially erred in admitting evidence of medical lien negotiations, which she contends led to the conclusion that her medical bills were contingent upon the outcome of the litigation and would not be owed by her if the jury did not award sufficient damages. She argues the evidence was irrelevant and more prejudicial than probative under Evidence Code section 352.
Watanabe argues in respondent’s brief that the judgment should be affirmed because de la Torre failed to show prejudicial error by an adequate record, in that de la Torre did not designate the complete trial record for our review. De la Torre only designated the testimony of two witnesses, her surgeon and expert, Dr. James C. Thomas, and Watanabe’s expert, Dr. Hillel Sperling, Watanabe’s argument, and the record of the hearings on de la Torre’s motion to exclude evidence of lien negotiations and new trial motion. Watanabe augmented the record with the testimony of three doctors called on behalf of the defense, de la Torre, and Watanabe, and the arguments of each party. Missing from the record on appeal are the testimony of three of de la Torre’s treating doctors, de la Torre’s brother, and the officer who investigated the accident. Also missing from the record are the complaint, answer, and minute orders of the trial proceedings.
These three treating doctors did not testify in person, but the videotapes of their depositions were played for the jury. The videotapes and transcripts of the videotapes were admitted into evidence and returned to plaintiff after the verdict. (Minute Orders of the proceedings on March 2, 3, 4, 5, and 8, 2006. The minute orders of the trial proceedings are not in the record. However, we have taken judicial notice of them.)
In her reply brief, de la Torre took the position that the record is sufficient to demonstrate that there was a “reasonable chance at a different verdict absent the offending evidence such that there was a miscarriage of justice.” She did not make a motion to augment the record with the videotape or transcript of the missing testimony, pleadings, or orders. We conclude under settled law that the record is inadequate to demonstrate error or prejudice.
“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; see also Davenport v. Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695, 1700.) “The [appellant] must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.] . . . ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent. . . .’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353.)
“Our state Constitution provides that ‘[n]o judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.) ‘The effect of this provision is to eliminate any presumption of injury from error, and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant. Thus, reversible error is a relative concept, and whether a slight or gross error is ground for reversal depends on the circumstances in each case.’ (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 1, p. 443.) [¶] The phrase ‘miscarriage of justice’ has a settled meaning in our law, having been explained in the seminal case of People v. Watson (1956) 46 Cal.2d 818 (Watson). Thus, ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (Id. at p. 836.) ‘We have made clear that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Without a complete record, it is not possible to review whether admission of the evidence was erroneous, as a complete transcript would reveal any concessions concerning the issue of lien negotiations. Even if error were established, we could not reverse the judgment on this record, because a miscarriage of justice may not be declared without an examination of the entire record.
DISPOSITION
The judgment is affirmed. Costs are awarded to Michiko Watanabe.
We concur: TURNER, P. J., MOSK, J.