Opinion
A153048
06-28-2018
TERESA MAGANA, Plaintiff and Appellant, v. SAN MATEO COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17CIV02763)
On November 16, 2017, the trial court denied appellant Teresa Magana's petition for writ of mandate seeking to set aside the denial of service-connected disability retirement benefits by respondent San Mateo County Employees' Retirement Association. The trial court's order explains, "First, the Petition for Writ of Mandate is denied because petitioner has not submitted a copy of the administrative record to the court, though both parties cite to the record in their briefs. . . . In the absence of an administrative record, a court is required to presume that the findings were supported by substantial evidence. (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) [¶] Second, the March 24, 2015 Board of Retirement Denial of Application Findings, attached as Exhibit B to the Petition for Writ of Mandate and apparently comprising pages DRB TM 00043 and DRB TM 00028-34 of the administrative record contains substantial evidence that the petitioner is not permanently incapacitated and able to substantially perform her usual job duties. [¶] Third, there is no Administrative Record, and therefore no evidence that petitioner exhausted her administrative remedy by raising her due process argument at the administrative hearing. . . .[¶] Fourth, although there is no dispute that petitioner was not represented by counsel at the administrative hearings, there is no evidence before this court that respondent or its agents engaged in any inappropriate act to dissuade petitioner from exercising her right to be represented by counsel."
Although appellant was not represented by counsel at her administrative hearing, her superior court petition was prepared by an attorney, who appeared at the hearing, and she is represented by the same attorney on appeal. Despite her current representation by counsel, her attorney has failed to provide this court with an adequate record to review the denial of relief for failure to have provided the trial court with an adequate record.
The clerk's transcript contains only four documents: the notice of appeal, appellant's designation of the record on appeal, the minute order denying her petition and the register of actions. It is the appellant's burden to provide an adequate record on appeal. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 ["a party challenging a judgment has the burden of showing reversible error by an adequate record"]; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 849 [the appealing party must provide an adequate record demonstrating error].) "We cannot presume error from an incomplete record." (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) We are not permitted to speculate as to the contents of the missing portions of the record or the issues the appellant may have raised below. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) The failure to provide an adequate record on appeal "precludes an adequate review and results in affirmance of the trial court's determination." (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)
The designation of the record on appeal does not designate any additional documents. Appellant has also filed the reporter's transcript, but it contains no testimony and reflects only the argument of counsel. It does not provide any of the missing documentation. --------
Appellant argues that she was not required to lodge an administrative record because the exhibits she attached to her petition were sufficient for the trial court's review of the arguments raised. (See Elizabeth D. v. Zolin, supra, 21 Cal.App.4th 347, 355 [A petitioner can satisfy its burden by filing a partial record if that record "will allow sufficient and effective review by the court."].) However, appellant did not lodge a partial administrative record. She apparently attached some portion of the administrative record as exhibits to her petition, but she has not included her petition in the clerk's transcript. Thus, there is no evidence before this court from which we can determine the sufficiency of the administrative record, let alone the merits of appellant's contentions.
Appellant states in her opening brief, filed on March 2, 2018, that she "intends to timely file a motion to augment the record on appeal to lodge the administrative record before this tribunal." Not only has such a request not been filed as of this date, appellant did not indicate she intends to augment the clerk's transcript on appeal, and augmentation of the clerk's transcript with the administrative record that was not filed in the trial court would not be appropriate. Plaintiff's failure to file a reply brief suggests that she has abandoned her appeal.
We are concerned that counsel's failure to comply with fundamental rules of procedure has precluded judicial review of the denial of appellant's claim for disability retirement benefits, in the trial court and in this court, but we have no choice but to affirm the denial of plaintiff's petition for writ of mandate.
Disposition
The order denying plaintiff's petition for writ of mandate is affirmed. A copy of this opinion shall be sent to the State Bar.
/s/_________
Pollak, J. We concur: /s/_________
Siggins, P.J. /s/_________
Jenkins, J.