Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS04161
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on May 28, 2009, be modified as follows:
On page 1, delete all quotation marks and italics from the first paragraph.
On page 2, replace the second paragraph beginning “A court trial was conducted,” with the following:
A jury trial was conducted on April 7, 2008. Thereafter, an amended judgment was entered in Agard’s favor on the complaint’s cause of action for breach of contract in the amount of $10,000, plus interest and costs. The amended judgment also reflects that the trial court entered judgment in Miller’s favor on Agard’s remaining two causes of action, for breach of the right of privacy and for fraud based upon a false promise.
On page 2, replace the first paragraph after the Discussion beginning “At the outset,” with the following:
At the outset, we note that the May 6, 2008 judgment signed by the trial judge one month after trial and entered in the superior court file is entitled “Judgment after Court Trial” and states at paragraph No. 3 of the judgment that “The jury was waived. The court considered the evidence.” Although Agard insisted in his appellate brief and during oral argument that the matter was tried to a jury, we were bound by the record before us to characterize the proceeding as a court trial. However, an “Amended Judgment” signed by the trial judge and filed in the superior court on June 5, 2009 states--contrary to the original judgment--that the matter was in fact tried to a jury. Agard has submitted a copy of the amended judgment in support of his petition for rehearing.
On page 5, replace Part II of the Discussion with the following:
II
Appellant Has Failed to Show Reversible Error
Agard contends on appeal that the trial court failed to explain the law clearly to the jury, and that the jury disregarded the law in its refusal to award him damages on his breach of privacy and false promise claims. He argues that the evidence adduced at trial proved that Miller reneged on an express agreement to pay him a finders fee, and that Miller “misappropriated” Agard’s name by using it in a fax transmission. In his petition for rehearing, Agard also admits he did not prevail on his non-contract claims because he failed to persuade the jury: although the jury awarded him $10,000 on his breach of contract claim, jury members “failed to be moved emotionally in their comprehension of the tort and malice behind the Defendants’ intentions from the very beginning....”
Unfortunately, none of these errors can be said to “appear on the face of the record.” (National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.)
Lacking a reporter’s transcript of the trial, we cannot entertain Agard’s claims that the jury was improperly instructed or that it disregarded the evidence. Nor can we entertain any contentions that the evidence adduced at trial should have compelled a different result. Because this is a judgment roll appeal, we presume that there was sufficient evidence before the jury to support its conclusion that Agard was entitled to judgment only on his breach of contract claim. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
RAYE, Acting P. J., HULL, J., BUTZ, J.