Opinion
H036352
12-08-2011
COLLECT ACCESS LLC, Plaintiff and Appellant, v. VICTOR M. CAMPOS, SR., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. CV164194)
Plaintiff Collect Access LLC (Collect Access) appeals from the trial court's judgment of nonsuit in Collect Access's action against defendant Victor M. Campos, Sr. The record provided by Collect Access consists of a clerk's transcript and two partial reporter's transcripts. Neither of the reporter's transcripts contains any of the trial proceedings; both concern proceedings regarding a sanctions order against Collect Access. Apparently, the trial proceedings were not reported. The clerk's transcript contains only the parties' trial briefs (including exhibits), four minute orders, three pleadings regarding the sanctions order, the judgment, and Collect Access's notice of appeal and notice designating the appellate record. The first two minute orders concern the sanctions order. The third minute order reflects that a court trial was held on October 27, 2010. This minute order states that witness Harold Galo testified. There is no indication in this minute order of the nature of Galo's testimony. This minute order states that four exhibits were "marked for identification on behalf of Plaintiff." One of these exhibits is identified as "Acknowledgement of Account Assignment." There is no indication in this minute order that any of these exhibits were admitted into evidence. This minute order also states: "Defense motion for nonsuit is GRANTED."
The trial court's judgment states: "judgment of non-suit due to lack of evidence by plaintiff." (Capitalization omitted.) Collect Access timely filed a notice of appeal from the judgment. In its notice designating the appellate record, Collect Access designated three exhibits, including the "Acknowledgement of Assignment of Account," to be included in the clerk's transcript. Collect Access acknowledged in its notice that the "Acknowledgement of Assignment of Account" had not been admitted into evidence. The superior court clerk responded to Collect Access's request for inclusion of the exhibits in the record by issuing a certificate stating that the exhibits in this case "were returned to the parties at the close of the trial."
Collect Access contends that the trial court erred in granting Campos's nonsuit motion. Due to the absence of any record of the evidence that was before the trial court when it granted the nonsuit motion, Collect Access has taken the unorthodox and improper approach of basing its appellate argument on citations to its trial brief and to statements it made in its notice designating the appellate record. Obviously, neither of these documents formed a part of the evidence that was before the trial court when it ruled on Campos's nonsuit motion. Collect Access admitted in its notice designating the record that the key exhibit it relies upon, the assignment, was not admitted into evidence at the court trial.
On the record before us, we have not the slightest idea what evidence was before the trial court when it ruled on the nonsuit motion. A witness testified; to what, we do not know. Four exhibits were marked for identification; whether they were admitted into evidence is unknown. "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.) By failing to provide any record of the evidence that was before the trial court when it ruled on the nonsuit motion, Collect Access has failed to provide a record that is adequate to permit review of its assertion of error. Consequently, we reject its appellate contention.
The judgment is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.