Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05CV023
SIMS, Acting P. J.Appellants Richard Martin Cain and Curtis G. Cortopassi appeal from a judgment awarding respondent Julie Anne Eaker economic and non-economic damages for personal injuries sustained when she attempted to provide paramedic services following an accident in a remote area.
Cain contends that (1) the wage loss expert’s testimony lacked sufficient foundation to be admissible, (2) Eaker was contributorily negligent because she decided to catch a ride on Cain’s all-terrain vehicle (ATV) when she knew or should have known him to be intoxicated, and (3) Eaker’s post-accident negligence compounded her injuries so that Cain’s portion of the damages should be reduced. The lack of a reporter’s transcript for nearly half of the two-day trial precludes review of Cain’s evidentiary arguments.
Cortopassi argues that (1) he cannot be liable for negligence because Cain’s drunk driving was the intervening and superseding cause of Eaker’s injuries, (2) the trial court misapplied the rescue doctrine, (3) the firefighter’s rule precludes his liability, (4) insufficient evidence supported the award of damages, (5) the trial court erred in finding Eaker had no fault in causing her injuries, and (6) the court erroneously determined Cortopassi and Cain to be equally at fault. As with Cain’s appeal, we find that the lack of a complete reporter’s transcript bars Cortopassi’s evidentiary arguments. We also reject Cortopassi’s remaining claims because he cannot undermine the judgment on the basis of reasons articulated by the trial court in a tentative decision.
Accordingly, we shall affirm the judgment.
BACKGROUND
Following a bench trial, the trial court issued a tentative decision, finding that “[o]n the evening of June 20, 2003, Cortopassi was operating his ATV on unimproved land on or near that owned by Sierra Pacific Lumber Company while his ability to do so safely was impaired by his alcoholic intoxication and his vehicle’s under-inflated tire. His ATV overturned and cast him to the ground, landing on top of him. He was seriously injured and, after being rescued, spent seven days in the hospital.
“News of his plight was reported to the Trinity County Sheriff’s Department which, in turn, relayed the report to the Coffee Creek Volunteer Fire Department, a publically funded entity which plaintiff served without compensation.
“[Eaker] was a paramedic and was on duty at the time the report came in to the Fire Department. Upon receipt of the report, she and an ambulance crew traveled by public road to the site of a private road which provided access to the site where Cortopassi was on the ground. A locked gate on the private road prevented driving the ambulance to where Cortopassi lay.
“From a by-stander who had been riding his ATV with Cortopassi, [Eaker] acquired information that suggested that Cortopassi had received a number of life-threatening injuries. [Eaker], with her paramedic training, was mindful that the successful rescue of Cortopassi urgently required that he receive medical treatment within one hour after traumatic injury.
“Cain, another by-stander with an ATV, offered to drive [Eaker] to Cortopassi up the private road. She accepted the offer and mounted Cain’s ATV in back of Cain who was seated in the driver’s seat. Unknown to [Eaker], Cain’s ability to safely operate his ATV was impaired by his alcoholic intoxication.
“When Cain’s ATV arrived at a spot about 30 to 40 feet from the locked gate, Cain stopped the ATV. The ground immediately to the side of the gate was an embankment. Cain asked [Eaker] if she wanted to get off. [Eaker] asked Cain if he could make it around the gate and Cain said that he could. [Eaker] decided to get off anyway and started to do so, when Cain started the ATV again. That maneuver caused [Eaker] to lose her balance and she grabbed Cain from the rear in order to stay mounted on the ATV. Cain completed the pass around the gate and the ATV overturned and landed on top of [Eaker]. She received severe and persistent injuries.”
Eaker brought a tort action against Cain and Cortopassi, which resulted in a two-day bench trial. The reporter’s transcript, however, omits most of the first day’s testimony. Although opening statements began at 9:15 a.m., transcription did not begin until 3:30 p.m. The record indicates that the untranscribed testimony includes Cortopassi’s direct and cross-examination as well as Eaker’s direct and some part of her cross-examination.
The trial court entered judgment against Cain and Cortopassi, holding them jointly and severally liable for the economic damages and making each responsible for half of the non-economic damages. Cain and Cortopassi each filed a notice of appeal. Neither Cain nor Cortopassi moved for a settled statement of the untranscribed testimony. (Cf. Cal. Rules of Court, rule 8.137(a)(2)(B).
With respect to Cain’s appeal, we asked the parties to file supplemental briefing to address the following: “Appellant Cain has apparently failed to supply the court with a complete record of the testimonial evidence adduced at trial. What is the consequence of this lacuna in the appellate record?” We have received and considered the supplemental briefs on this issue filed by Eaker and Cain. The effect of the incomplete reporter’s transcript on our review was also addressed in subsequent briefing filed by Cortopassi.
DISCUSSION
I
PRINCIPLES OF APPELLATE REVIEW
On appeal, we begin with the presumption that the trial court’s judgment is correct and supported by substantial evidence. (Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Consistent with this presumption, we draw all inferences in favor of the judgment unless the record expressly contradicts them. (Ibid.)An appellant must affirmatively demonstrate grounds for reversal because trial court error will not be assumed. (People v. Sullivan (2007) (Sullivan).)
In addition to shouldering the burden of demonstrating error, an appellant “further bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the [appellant].” (Sullivan, supra, 151 Cal.App.4th 524, 549; accord People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) An incomplete reporter’s transcript precludes review of trial testimony for evidentiary error because the missing portions will be presumed to support the judgment. (In re Silva (1931) 213 Cal. 446, 448.)
Even if the extant portion of an incomplete reporter’s transcript indicated evidentiary error, we would nonetheless be compelled to affirm. A reversal of the judgment may not be made except after a review of the entire record. (Cal. Const., art. VI, § 13.) “Appellate inquiry into prejudice is not a process of subtracting the invalid elements to ascertain whether the remaining record is adequate to sustain [the judgment]. Rather, the process entails scrutiny of the entire record to determine the error's influence.” (People v. Hopper (1969) 268 Cal.App.2d 774, 778, italics added.) Appeals made on inadequate records preclude review. With these principles in mind, we turn to Cain’s contentions.
II
APPEAL BY RICHARD M. CAIN
Wage Loss
Cain first argues that the trial court erred in admitting testimony from Eaker’s wage loss expert because the expert’s opinion amounted to speculation. In so arguing, Cain asserts that Eaker failed to provide her expert with sufficient evidence that she could have obtained full time employment if she had not been injured. The reporter’s transcript, however, omits most of Eaker’s testimony. The extant transcript does indicate that Eaker’s wage loss expert relied, at least in part, on information supplied by Eaker in calculating her lost wages.
We may not speculate as to whether Eaker’s untranscribed testimony established that, if uninjured, she could have secured full-time employment with Mercy Hospital and also taught two semesters per year at the local community college. (People v. Sullivan, supra, 151 Cal.App.4th at p. 549.) Without the bulk of Eaker’s testimony, we are unable to assess whether Cain correctly claims that “there is no competent evidence that [Eaker] would have had full-time work at Mercy Hospital or anywhere else in the future, for that matter.” Eaker’s untranscribed testimony might have provided more than adequate support for the judgment because “[t]he testimony of a single credible witness may constitute substantial evidence.” (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; see also Armstrong v. Ford (1939) 30 Cal.App.2d 347, 352-353 [rejecting defendant’s hearsay objection to wage loss testimony by concluding that plaintiff’s testimony established his previous wages and earning capacity].)
The entirety of Eaker’s testimony is also a necessary prerequisite for reviewing Cain’s argument that “[t]here was no evidence [Eaker] ever taught two semesters per year.” (Emphasis omitted.) “Without the benefit of the entire record, we cannot say that the evidence is insufficient to support the finding of [the trial court]. Every intendment is in favor of the findings and judgment of the court below, and in support thereof it will be presumed that the omitted evidence authorized the same unless there is something in the record to overcome the presumption.” (In re Silva, supra, 213 Cal. at p. 448.) Here, the incomplete record cannot serve to cast aside the presumption that the judgment is correct and supported by substantial evidence.
Assumption of Risk
Cain next challenges the trial court’s finding that Eaker did not know about his intoxication before getting on his ATV. He argues that Eaker’s knowledge of the risks should be inferred from the circumstances and her statements at the time of the accident.
Even more so than with the wage loss issue, the lack of a full transcript of Eaker’s testimony prevents review of Cain’s argument. We will not speculate as to whether her untranscribed testimony supports the trial court’s factual finding regarding her knowledge or the circumstances of the accident. (In re Silva, supra, 213 Cal. at p. 448.) Even with a full reporter’s transcript, attacks on trial court factual findings rarely warrant reversal because we do not reweigh the evidence or second-guess witness credibility. (People v. De Paula (1954) 43 Cal.2d 643, 649) Without a reporter’s transcript of Eaker’s complete testimony, Cain’s evidentiary challenge is impossible to sustain on appeal.
Recoverable Medical Expenses
Finally, Cain argues that Eaker’s own negligence in failing to wear ankle support after the ATV accident compels reduction of the damages awarded. The argument is not presented under a separate heading as required by California Rules of Court, rule 8.204(a)(1)(B). We have discretion to ignore arguments not presented under separate headings. (Heavenly Valley Ski Resort v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17.) We do not, however, have discretion to speculate as to what Eaker’s untranscribed testimony would have established regarding her post-accident conduct. (Sullivan, supra, 151 Cal.App.4th at p. 549.) The incompleteness of the reporter’s transcript prevents review of Cain’s contention.
III
APPEAL BY CURTIS G. CORTOPASSI
Claims of Legal Error
Cortopassi contends that he should not be held liable because Cain’s drunk driving was the intervening and superseding cause of Eaker’s injuries. Cortopassi next argues that the rescue doctrine does not apply because Eaker was not “prompted by spontaneous human motive to save human life.” Cortopassi also asserts that the firefighter’s rule bars recovery by emergency medical personnel such as Eaker. We shall reject these arguments.
At the outset, we note that Cortopassi’s opening brief provides only three citations to the record in support of the analysis for his legal arguments. These citations inform us of nothing more than that Eaker undertook the rescue by order of the Fire Chief as an experienced paramedic who received worker’s compensation for the injuries she sustained. The opening brief fails to provide a single citation by which we might compare his arguments to the trial court’s reasoning. His reply brief copies the opening brief citations with the addition of a single citation for the fact that the fire department served by Eaker was publicly funded. For lack of adequate citation to the record, we would be justified in deeming Cortopassi’s legal arguments forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849 [failure to adequately cite to the record forfeits the claim of error].)
Even apart from the lack of adequate citation, we must nonethelessreject Cortopassi’s arguments because they rest on the mistaken assumption that a judgment can be impeached by the contents of a tentative decision. Cortopassi must rely solely on the trial court’s tentative decision to identify the legal conclusions reached by the trial court because the parties failed to request a statement of decision. The judgment itself is silent about the court's reasoning; it merely holds Cortopassi and Cain jointly liable for economic damages and separately responsible for Eaker’s noneconomic damages.
A tentative decision cannot be used by an appellant to cast doubt on a judgment. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647 (Ditto).) In Ditto, appellant sought reversal of a judgment by attacking the trial court’s memorandum of intended decision. (Id. at p. 645.) The Ditto court affirmed the judgment, rejecting appellant’s attempt to employ the memorandum of intended decision to impeach the judgment. The Ditto court explained, “‘[A] court is not bound by its statement of intended decision and may enter a wholly different judgment than that announced.’ (Canal-Randolph Anaheim, Inc. v. Willkoski (1978) 78 Cal.App.3d 477, 494.) ‘Neither an oral expression nor a written opinion can restrict the power of the judge to declare his [or her] final conclusion in his [or her] findings of fact and conclusions of law. [Citation.] The findings and conclusions constitute the final decision of the court and an oral or written opinion cannot be resorted to for the purpose of impeaching or gainsaying the findings and judgment. [Citation.]... [W]e are concerned with the correctness of the decision and judgment rather than with the reasons, as expressed in the opinion, which motivated the trial court in reaching its conclusions. [Citations.]’ (Buckhantz v. R. G. Hamilton & Co. (1945) 71 Cal.App.2d 777, 781, italics added.)” (Ditto, supra, 206 Cal.App.3d at pp. 646-647.)
A tentative decision is the same as a memorandum of intended decision, and the terms are used interchangeably. (See In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789; Filipino Accountants' Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1032, fn. 7.)
The Ditto court went on to explain that an appellant “may not rely solely on the memorandum of intended decision. ‘The memorandum decision cannot be relied upon to fill the interstices in the findings and conclusions left void by the failure to find pursuant to a properly filed request under [Code of Civil Procedure] section 634. [Citations.]’ (Morris v. Thogmartin (1973) 29 Cal.App.3d 922, 930.) The proper procedure, after the trial court issues its memorandum of decision, is to request a Code of Civil Procedure section 632 statement of decision.
“A statement of decision allows the trial court to review its memorandum of intended decision and ‘to make... corrections, additions, or deletions it deems necessary or appropriate.’ (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129.) Such statement thus enables a reviewing court ‘to determine what [law] the trial court employed....’ (Roccaforte v. City of San Diego (1979) 89 Cal.App.3d 877, 887.) It is the statement of decision which allows the court to place upon the record its view of facts and law of the case. (In re Marriage of S. (1985) 171 Cal.App.3d 738.) A failure to request a Code of Civil Procedure section 632 statement results in a waiver of such findings; [appellant] cannot now be heard to complain. (University of San Francisco Faculty Assn. v. University of San Francisco (1983) 142 Cal.App.3d 942.)” (Ditto, supra, 206 Cal.App.3d at p. 647, final brackets added.)
In Ditto, the appellant cited “to the memorandum of intended decision to support her allegations of error. But such references are improper and must be disregarded. (Trustees of California State University & Colleges v. National Collegiate Athletic Assn. (1978) 82 Cal.App.3d 461.) We must therefore presume the judgment is correct. (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858.) ‘An order will not be deemed to be limited by an opinion or judicial reasoning unless the intention to limit is clearly expressed in the order.... [Citations.] The mere statement of reasons in the order is not sufficient to show such intention to limit.’ (Yarrow v. State of California, supra, 53 Cal.2d 427, 438.) In other words, we look only to the judgment to determine error.” (Ditto, supra, 206 Cal.App.3d at pp. 647-648.)
“We are mindful that in the instant case the alleged error is one of law and not one of fact. But the result is the same. In both instances, whether the trial court in its intended decision made an alleged error of law or fact, the intended decision remains only an intended decision. It is the statement of decision and judgment which allow the trial court to rectify any errors. Because a statement of decision was not requested, the trial court did not have the opportunity to amend; the judgment therefore governs.” (Ditto, supra, 206 Cal.App.3d at p. 648.)
Here, the trial court’s tentative decision indicates that Cortopassi’s liability was based on the rescue doctrine and the finding that Eaker was injured while rescuing him in the course of her duties as a paramedic. The judgment itself is silent as to the rationale for Cortopassi’s liability. California law, however, provides for numerous legal theories of negligence that can be committed by act or omission. (See, e.g., Flournoy v. State (1969) 275 Cal.App.2d 806, 811; Meschini v. Guy F. Atkinson Co. (1958) 160 Cal.App.2d 609, 613-614.)
We lack a sufficient record to ascertain whether any of the myriad theories of negligence other than the rescue doctrine might have been found by the trial court to redundantly support Cortopassi’s liability if he had requested that the trial court issue a statement of decision. The lack of statement of decision combined with the gaps in the reporter’s transcript prevent Cortopassi from establishing his claims of legal error. Certainly, we cannot rely on the trial court’s tentative decision to undermine the presumption of correctness with which we begin all appellate review. (Ditto, supra, 206 Cal.App.3d at pp. 647-648.)
Finally, we note that even if Cortopassi were able to demonstrate that the trial court erred as he claims, the incompleteness of the reporter’s transcript precludes us from undertaking an analysis of prejudice. We may reverse only if, after an examination of the entire record, we conclude that it is reasonably probable that Cortopassi suffered actual harm by the errors. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579-580.) Here, we lack a sufficient record to assess whether asserted errors resulted in prejudice.
Evidentiary Claims
Our inability to assess prejudice also compels our rejection of Cortopassi’s arguments that the award of damages to Eaker was based on inadmissible evidence, and that insufficient evidence supported the apportionment of equal fault to Cortopassi and Cain.
We may reverse a judgment for evidentiary error only when our examination of the cause, including all of the evidence, leads us to conclude that a result more favorable to the appealing party would have been reached in the absence of the error. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) Here, the lack of a complete transcript precludes us from determining whether any evidentiary error was sufficiently prejudicial in light of the other evidence at trial to warrant a reversal of the judgment.
DISPOSITION
The judgment is affirmed. Eaker shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: NICHOLSON, ROBIE, J.