Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00085304-CU-PO-CTL, Richard E. L. Strauss, Judge.
AARON, J.
I.
INTRODUCTION
Plaintiff Versa Ausler was the victim of a dog attack. Ausler sued a number of defendants, including defendant Jesse Preciado, the dog's owner. Ausler tried her claims in front of a jury, which eventually awarded her $4,500 for her pain and suffering. Ausler now appeals from that judgment, with respect to defendant Preciado only, arguing that the jury's award was inadequate based on the evidence presented at trial.
Ausler, however, did not designate the transcript of the trial as part of the record on appeal. As a result, she has not presented an adequate record that would permit this court to review the merits of her contention. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because Ausler failed to designate any reporter's transcripts as part of the record on appeal, our ability to supply the factual background pertaining to the case is severely limited. We therefore base our factual recitation on what we can glean from the documents contained in the clerk's transcript of the proceedings in the trial court.
Ausler filed a complaint against a number of defendants alleging causes of action for strict liability under Civil Code section 3342, negligence, premises liability, battery, and negligence per se. In the complaint, Ausler alleged that on November 12, 2007, she was attacked by a "pit bull bre[e]d dog named 'TORO' " on the public sidewalk near the defendants' home, where they kept the dog. Ausler further alleged that she suffered "physical and emotional upset" and that she "was violently bitten on or about the body, including the arm and shoulder."
Because this appeal was taken as to defendant Jesse Preciado only, we do not discuss the other defendants in this opinion.
Jury trial commenced on August 24, 2009. The jury heard testimony on August 24th and 25th. Photographs of Ausler's injuries and the clothing that she was wearing at the time of the attack were admitted at trial. Exhibits identified as "Jacket [that Plaintiff was] wearing [at] the time of incident" and "Sharp Hospital report" were identified, but not admitted in evidence.
The matter was submitted to the jury on August 25, 2009. The jury returned its special verdict form the following day. The jury found that Preciado was the dog's owner, and determined that he had violated "San Diego County Code of Regulatory Ordinances Section 62.601 (cc) which is incorporated by reference by San Diego City Municipal Code Section 44.0300." The jury awarded Ausler nothing in "Loss earnings, " but awarded her $4,500 in "Pain and suffering, " for a total damages award of $4,500. The jury held Preciado solely liable for the damages.
The special verdict form included the following language in reference to the local ordinance at issue:
Ausler moved for a new trial on the ground that the verdict "provided inadequate damages" and/or "was based upon an insufficiency of the evidence to justify the verdict."
The trial court entered judgment on January 12, 2010. Ausler filed a timely notice of appeal as to Preciado only.
III.
DISCUSSION
"Our review is governed by well-settled principles. As with any civil appeal, we must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment. [Citations.]" (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.)
The "party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] 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. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted.)
Ausler has the burden of establishing that the judgment is incorrect. Ausler's contention on appeal is that the damages award is inadequate, which is essentially a claim that the evidence requires an award of greater damages than the jury provided. Because this claim is necessarily predicated on the testimony and other evidence presented at trial, the reporter's transcript of the relevant proceedings is necessary to assess the merits of Ausler's contention. However, Ausler has provided no reporter's transcript, and there are insufficient citations to the record to enable us to even verify the facts that she asserts in her briefing. The lack of a reporter's transcript is fatal to Ausler's claim on appeal because we cannot sufficiently address that claim without an adequate record of the state of the evidence that was presented to the jury at trial. (See Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 ["Without the proper record, we cannot evaluate issues requiring a factual analysis"]; see also Ballard, supra, 41 Cal.3d at p. 574 ["Finally, and most significantly, plaintiff has failed to include either a transcript or a settled statement of the portion of the trial relating to the issue of damages. In the absence of such a record, we have no way of ascertaining whether it is reasonably probable that either the alleged juror misconduct or the instructional error affected the damages awarded in this case"].)
In her reply brief, Ausler states that "the issue on appeal is the inadequate sum awarded to the Plaintiff in light of the damages she proved via testimony and her graphic photos showing the dog mauling." (Italics added.)
Preciado called Ausler's attention to the fact that the record was inadequate when he argued in his brief that the insufficiency in the record required that this court affirm the judgment. Ausler has made no attempt to supplement the record.
IV.
DISPOSITION
The judgment of the trial court is affirmed. Respondent is to recover costs on appeal.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.
"Any person owning or having custody or control of a dog shall at all times prevent the dog from attacking, biting, or otherwise causing injury to any person engaged in a lawful act; from interfering with the lawful use of public or private property; or from damaging personal property which is lawfully upon public property, or upon private property with the permission of the person who owns or has the right to possess or use the private property."
However, as Preciado points out, the provision of the county ordinance cited in the special verdict form was incorrect. The correct reference is likely section 62.669.1, subdivision (a) of the San Diego County Code of Regulatory Ordinances, which provides the following similar language:
"(a) A dog's owner or custodian or other person having control of a dog shall exercise ordinary care to prevent the dog, while the dog is under the owner, custodian or other person's care, custody or control from:
"(1) Attacking, biting or otherwise causing injury to any person engaged in a lawful act.
"(2) Interfering with a person or animal legally using public or private property.
"(3) Damaging personal property that is lawfully on public property or that is on private property with the permission of the property owner or other person who has the right to possess or use the private property."