Opinion
No. A102476.
10-16-2003
LUIS M., a Minor, etc., Plaintiff and Appellant, v. FLORENCE CRITTENDON SERVICES INFANT DAY CARE CENTER, Defendant and Respondent.
Luis M., through his guardian ad litem, appeals from a judgment awarding only special damages in his personal injury action against respondent Florence Crittendon Services Infant Day Care Center (Day Care Center). Appellant contends the trial court should have granted his motion for new trial because the jury failed to award general, or non-economic, damages. He also contends the trial court abused its discretion by failing to order an additur pursuant to Code of Civil Procedure section 662.5. We affirm because appellant has failed to provide us with a reporters transcript of the trial.
I. BACKGROUND
Appellant filed a complaint alleging that he suffered a broken leg at the Day Care Center when another child jumped off a "climbing apparatus" onto his leg. At the time of the injury he was two years old. He sued the Day Care Center for premises liability and general negligence.
According to the trial courts docket sheet, included in the clerks transcript, the matter was tried from February 11 to February 14, 2003. Witnesses testified for both sides. On February 14, the jury returned special verdicts, finding liability for both negligence and premises liability, and awarding $16, 533.71 of economic damages on the latter theory. The jury expressly awarded no non-economic damages.
The trial court entered judgment for appellant for $16,533.71, based on the special verdicts. Appellant moved for a new trial, or in the alternative for an additur, arguing that the damages were inadequate and the jury should have awarded non-economic damages. The moving papers suggested there had been evidence at trial of appellants pain and suffering. The Day Care Center opposed the motion.
The trial court denied the motion for new trial. The court weighed the evidence of the entire record and was "not convinced from the entire record that the jury clearly should have made an award for non-economic damages." The court found the special verdicts "fully supported by the fair weight of the evidence."
II. DISCUSSION
Appellant contends the court should have granted his new trial motion, or ordered an additur, because the jury verdict was inadequate due to the "uncontraverted [sic] evidence that there was . . . trauma, pain and suffering." Appellant has failed to provide us with an adequate record.
Appellant has appealed only on the clerks transcript and the reporters transcript of the hearing on his new trial motion. He does not provide a reporters transcript of the trial. As such, he is precluded from raising any evidentiary issues. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Under these circumstances we must presume the evidence supports the judgment. "To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522.)
Appellant failed to designate the reporters transcript of the trial as part of the record on appeal. He has failed to provide us with that transcript despite the argument of the respondents brief that the record is deficient. Under these circumstances we cannot entertain appellants assignments of error.
III. DISPOSITION
The judgment is affirmed.
We concur Stein, J., Margulies, J. --------------- Notes: Although it is not entirely clear from the record before us, apparently the parties stipulated to economic damages of $5,533.71 for past medical services and the remaining $11,000 may have been for medical monitoring.