Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 448734
Haerle, J.
I. INTRODUCTION
Plaintiff and appellant Brian Ahmadzai, proceeding in pro per, appeals from a judgment entered against him following a court trial of his breach of contract claims against defendants and respondents Thomas Bryant and Mark Bryant. He contends the trial court erred because it (1) would not allow him to introduce evidence from a handwriting expert; (2) denied his request for a jury trial; (3) granted the Bryants a nonsuit; and (4) denied his attempts to introduce other evidence. We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves the sale of the assets of a trucking business owned by appellant. The buyer of these assets was a corporation called Continental Transport, Inc. In addition to the asset sale, appellant and Continental Transport also entered into a consulting agreement.
We take these facts from the augmented record provided by respondents, appellant having failed to file anything other than a reporter’s transcript from a single day of this five-day court trial.
Appellant sued the Bryants for breach of contract. He did not sue Continental Transport, Inc. After a five-day court trial, the court held that appellant could not prevail against Thomas Bryant on a breach of contract claim for the simple reason that he was not a party to any of the agreements that made up the asset sale. The trial court held that Continental Transport was the purchaser of these assets.
As for Mark Bryant, the trial court held that he was not liable to appellant because he was not a party to the asset purchase agreement. Nor was Mark Bryant liable as a guarantor of any of Continental Transport’s obligations. The court held that Mark Bryant’s guarantee secured Continental Transport’s performance and because appellant himself was in material breach of the consulting agreement with Continental Transport, any obligation Mark Bryant may have owed appellant under the guarantee was “extinguished by offset or was satisfied by tendered payment by CTI [Continental Transport] to Plaintiff.”
The trial court also held that appellant had failed to show that he had suffered any recoverable damages, despite three days of testimony by appellant himself.
At the close of appellant’s case, the trial court, “in accordance with the overwhelming weight of the evidence on the principal liability issues contemplated at trial, ruled that judgment be in favor of the Defendants.”
The trial court also held that appellant had waived his right to a jury trial by failing to pay statutorily required jury fees. The court would not grant appellant relief from this waiver, in part because respondents had withdrawn a request for a continuance of the trial in reliance on having a court trial. Finally, the court also held, as a matter of law, that appellant’s arbitration agreement contained in the contract with Continental Transport was a “knowing waiver of jury trial.”
A defense judgment was filed on June 13, 2006, and this timely appeal followed.
III. DISCUSSION
A. The Record
We begin by addressing the record on appeal, because the deficiencies of this record necessarily limit the scope of our review. Appellant is required to present us with a properly prepared record on appeal. This record should contain the following: (1) a record of the oral proceedings in the trial court; (2) a record of the documents filed or lodged in the trial court; and (3) the original exhibits received in evidence or rejected by the trial court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 4:11, pp. 4-4 - 4-5.)
Under the California Rules of Court, appellant was permitted to use any of five methods to provide us with an appropriate record of the documents filed in the superior court, the most common of which is the clerk’s transcript. (Cal. Rules of Court, rules 8.120 [clerk’s transcript], 8.124 [appendix], 8.128 [superior court file], 8.134 [agreed statement], & 8.137 [settled statement].) Appellant has failed to comply with any of these methods.
Appellant filed a notice designating the record on appeal on August 7, 2006, and elected to proceed with clerk’s and reporter’s transcripts. He did not, however, request any documents be included in the clerk’s transcript other than the seven documents required to be part of every clerk’s transcript and automatically included. For reasons that are unclear to us, no clerk’s transcript was ever filed with this court. In addition, although appellant elected to proceed with a reporter’s transcript, he designated only one date -- April 4, 2006 -- and, therefore, we do not have a full record of the proceedings below. Finally, although appellant attached a number of documents to his opening brief, this is not an appropriate method for providing us with a record.
Respondents have augmented the record to include the judgment in this matter, as well as the trial court’s Statement of Decision, a partial transcript of the last day of the trial (apparently the only other transcript available from this five-day trial other than that provided by appellant), the complaint in this matter, as well as what appear to be the significant documents memorializing the transaction between appellant and respondents.
Although respondents request that we dismiss this appeal because of these deficiencies, we conclude that the better course is to consider the appeal, utilizing the augmented record prepared by them and keeping in mind the general principle that when an appellant fails to provide an adequate record on appeal, the trial court’s order must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [to overcome presumption on appeal that an appealed judgment or order is presumed correct, appellant must provide adequate record demonstrating error]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [burden on appellant to provide accurate record on appeal to demonstrate error; failure to do so “precludes an adequate review and results in affirmance of the trial court’s determination” ]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 4:43, p. 4-11 [appellate record inadequate when it “appears to show any need for speculation or inference in determining whether error occurred”].)
B. Request for a Handwriting Expert
Appellant first contends that the trial court erred because it denied his request for a handwriting expert to “qualify or disqualify the signature of the Respondent Mark Bryant.” “We review a trial court’s decision to admit or exclude evidence under the abuse of discretion standard. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.) Any such abuse of discretion must be shown by an adequate record. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.)
There is nothing in the record that demonstrates any abuse of discretion. First of all, there is no record that appellant even made such a request. Nor is there any record of the trial court’s handling of this request. Finally, even if the trial court did abuse its discretion (a claim we simply cannot credit because we do not have a record of the entire trial) we cannot evaluate whether any such error was prejudicial. For these reasons, we conclude that appellant’s claim has no merit.
C. Jury Trial
Appellant argues that the trial court erred in denying his request for a jury trial because of his failure to pay required jury fees. We also reject this argument.
As one court has explained, “[Code of Civil Procedure] [s]ection 631 provides in pertinent part that ‘(a) Trial by jury may be waived by the several parties to an issue of fact in any of the following ways: . . . (5) By failing to deposit with the clerk, or judge, advance jury fees 25 days prior to the date set for trial, . . . [¶] (d) The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.’ [¶] Courts have held that, given the public policy favoring trial by jury, the trial court should grant a motion to be relieved of a jury waiver ‘unless, and except, where granting such a motion would work serious hardship to the objecting party.’ [Citation.] Where doubt exists concerning the propriety of granting relief from such waiver, this doubt, by reason of the constitutional guarantee of right to jury trial (Cal. Const., art. I, § 16), should be resolved in favor of the party requesting trial by jury. [Citation.] [¶] The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.] The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial. [Citation.] In exercising its discretion, the trial court may consider delay in rescheduling jury trial, lack of funds, timeliness of the request and prejudice to the litigants. [Citation.] A court does not abuse its discretion where any reasonable factors supporting denial of relief can be found even if a reviewing court, as a question of first impression, might take a different view. [Citations.]” (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703-1705.)
Similarly, we conclude that this trial court did not abuse its discretion. The court’s Statement of Decision notes that to grant a request for relief from default would prejudice respondents, who were not prepared for a jury trial. This is certainly a “reasonable factor” on which to base such a denial. Therefore, we reject appellant’s argument to the contrary.
D. Motion for Nonsuit
Appellant contends that the trial court erred in granting a nonsuit in favor of respondents. We disagree.
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff [’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.”’ [Citation.] A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ [Citation.] [¶] “In reviewing a grant of nonsuit, we are ‘guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.’ [Citation.] We will not sustain the judgment ‘ “unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
The record which appellant has supplied us, even when augmented by respondents, is inadequate to permit us to evaluate this claim. Because appellant has not provided us with reporter’s transcripts of the trial, or a clerk’s transcript (or appellant’s appendix) which would include exhibits presented by him at trial, we cannot evaluate what evidence was before the court when it granted respondents’ request for a nonsuit. Appellant, has therefore, failed to meet his burden to provide an adequate record that demonstrates error occurred. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Estrada v. Ramirez, supra, 71 Cal.App.4th at p. 620, fn. 1.)
E. Court’s Interpretation of Evidence
Appellant claims the trial court erred when it “made us do ‘offer of proof’” and also “did not interpret evidence most favorable” to appellant’s case. Because appellant does not provide us with a record of how and when the trial court made these alleged errors, he has failed to meet his burden to provide an adequate record that demonstrates error occurred. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Estrada v. Ramirez, supra, 71 Cal.App.4th at p. 620, fn. 1.) Accordingly, we reject this claim.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal to respondents.
We concur: Kline, P.J., Lambden, J.