Opinion
E051381
08-03-2011
RICHARD McCRACKEN, Plaintiff, Cross-defendant and Respondent, v. DUMITRU PIRVULETE, Defendant, Cross-complainant and Appellant.
Dumitru Pirvulete, in pro. per., for Defendant, Cross-complainant and Appellant. No appearance for Plaintiff, Cross-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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC509916)
OPINION
APPEAL from the Superior Court of Riverside County. H. Morgan Dougherty, Judge. Affirmed.
Dumitru Pirvulete, in pro. per., for Defendant, Cross-complainant and Appellant.
No appearance for Plaintiff, Cross-defendant and Respondent.
Defendant, cross-complainant and appellant Dumitru Pirvulete (the owner) hired plaintiff, cross-defendant and respondent Richard McCracken (the contractor) to build an addition to the owner's home. Disputes over the completion and quality of construction of the project, on the one hand, and payment for the addition, on the other, led the contractor to file a mechanic's lien, and the owner to file complaints with the Contractors State License Board. Eventually, the disputes led to litigation: the contractor filed a lis pendens and a complaint seeking to foreclose the mechanic's lien; the owner filed a cross-complaint.
The owner appeals from the judgment in favor of the contractor on both the complaint and the cross-complaint. The owner contends, among other things, that the trial court erred in its rulings on discovery, in the admission and exclusion of evidence, and in its treatment of the mechanic's lien, which the owner claims was filed prematurely, before the contractor had fulfilled all the obligations of the contract. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The record provided for review consists of the exhibits admitted at trial, the owner's motion for a new trial, the judgment, the owner's notice of appeal, the owner's designation (and amended designation) of the record on appeal, and the register of actions. Otherwise, the record is devoid of any pleadings, minute orders, reporter's transcripts of the trial proceedings, or other documents. Consequently, it is difficult, if not impossible, to discern precisely what was claimed below, or what testimonial evidence was heard by the court, and thus to compose a coherent and accurate statement of facts and procedural history of the case.
Nevertheless, it appears that the owner and the contractor entered into a construction contract on or about June 9, 2007, for a 338-square-foot freestanding room addition to the owner's home. The contract specifically contemplated the installation of a fiberglass shower with a seat. The contract called for the project to begin on June 15, 2007, and to be completed within six months after securing the construction permit from the city. The contract price was $42,000, and the document included a progress payment schedule as various phases of the work were completed.
Exhibit 2 consisted of plans and plan checks from the City of Riverside for the project. The project was described in the plan documents as a detached storage building, or an accessory building. One of the drawings showed a small bathroom with shower, and a locked storage room, at one end of the building. The rest of the space was open, and included a notation, "non habitable / not to be used for sleeping."
Exhibit 3 was a document entitled "Contract," on the contractor's letterhead. The typed or printed portion of the document contained the date of June 9, 2007, but the handwritten signatures of the owner and the contractor bore the handwritten date of November 19, 2007. This contract consisted of one paragraph, stating, "This contract is between [the owner] and [the contractor] for the duration of the contract to build a storage building or habitable room at [the owner's] address," and was an agreement by the contractor to hold the owner harmless for any accidental injuries to the contractor during construction. The contractor agreed that "if a dispute over any injury to me occurs I agree to binding arbitration with the maximum award to be one dollar ($1.00)."
On the same date, November 19, 2007, the parties also agreed that the owner would provide labor for four days on the project, and would be compensated at the rate of $100 per day.
In a document entitled "Addition to Contract," apparently prepared by the contractor and dated January 12, 2008, but signed by each party on January 14, 2008, the parties agreed to an addition to the construction contract. The completion date for the project was set at March 1, 2008. "This completion date is contingent on [the owner] not stopping the work for any reason. If [the owner] stops work on the project for any reason the contract is extended by the amount of time of his delay." The owner was also to act promptly, within one day, to make any decisions required to carry on and complete the work. Any of the owner's decisions that required additional work would be considered a change order. If the owner stopped any "'in progress'" work, such as drywalling or stucco, he would not be allowed to deduct the cost of completion (i.e., with another vendor), as the contractor would still be liable to pay his subcontractors whose work was stopped.
Exhibit 6 was another "Addition to Contract," this time prepared by the owner and dated January 15, 2008, just one day after the earlier contract addition. This "Addition to Contract" recited many of the owner's complaints with the progress of the work thus far, and purported to give the owner the right to stop work if the owner felt the work was not done in a professional manner. The contractor did not sign this document.
Exhibit 7 appears to be an inspection card, indicating that inspectors had approved structural, electrical and plumbing work on the job, and had approved final inspections on the project. Exhibit 7 also included a copy of the building permit issued by the City of Riverside, noting the occupancy class as "U1" and describing the project as a "detached storage building . . . with bathroom and water heater."
Exhibit 8 was a copy of the contractor's mechanic's lien, signed June 17, 2008. The contractor's demand was for $13,000, or the balance of the contract payments.
Exhibit 9 was a worksheet with a more specific calculation of amounts apparently claimed by the contractor. The contract price was $42,000, the change orders totaled $4,802, and the amount of permits and fees was $3,672.60. The total due for all these items was $50,474.60, of which the owner had paid $42,317. The contractor gave credits for an additional $658.40 for the owner's four days of labor and some other small items. The contractor's eventual claim at trial thus appears to have been $7,499.20.
Exhibit 10, stated to be a "report of inspection and estimate," is not included in the clerk's transcript. Exhibit 11 is a "First Floor Plan" of the addition showing, instead of an open space with a bathroom and locked storage room at one end, a bedroom with two beds and a closet; the bathroom was in the same place as in the contract scheme, but the locked storage room was drawn as a compact kitchenette.
Exhibit 12 was a hand-printed list of items that were supposed to have been credited against the contract price. The list enumerated doors, fixtures, fans, electrical equipment, and other items, with an alleged total value of $1,872.26.
Exhibit 13 was a letter written by the owner, dated March 4, 2008, detailing several complaints about uncompleted work, including installing the water heater, repairs to or leveling of the concrete slab, electrical work, installation of moldings, installation of plumbing fixtures, completing the outside stucco, and other items. The letter stated the owner's view that the contractor had promised to finish all work by March 10, 2008; the owner asserted that, if all the items were not completed, he reserved the right to pay for completion from the final contract payment. Although the letter was drafted with two signature lines, it contains a notation that the contractor refused to sign.
Exhibit 14 appears to be another self-drafted "Contract" between the owner and the contractor, dated March 24, 2008, calling for the installation of a roof air conditioner on the property at a cost of $3,600. The owner apparently mailed a copy of this contract to the contractor, but there is no indication that the contractor signed it.
These documents evidence that the contractual relationship was strained and the parties disagreed over performance and payment. As Exhibit 8 evidences, the contractor filed a mechanic's lien; the register of actions shows the contractor filed a complaint on September 15, 2008. The court granted the owner's motion to file an amended answer, and a cross-complaint. The matter was referred to mediation in 2009, but no agreement was reached.
The matter came on for a court trial in May 2010. The contractor testified. The owner presented the evidence of a witness, Buddy Hawkins, and also testified in his own behalf. All the exhibits marked for identification were admitted into evidence.
The court took the matter under submission and gave "Judgment for the Plaintiff [contractor] and against the Defendants [owner] in the amount of $1,922.22, and for the Cross-defendants [contractor] and against the Cross-complainants [owner]." The court awarded costs to the contractor, but not attorney fees.
The owner, without awaiting a formal judgment, filed a notice of appeal. This court later dismissed the appeal without prejudice.
The owner then filed a motion for a new trial on June 21, 2010. The owner contended that the trial court had erred in refusing to allow the owner's daughter to act as a translator on his behalf, the court refused to allow him more time to present his case, the court should have dismissed the mechanic's lien for failure to comply with conditions precedent, the court should not have awarded damages to the contractor for additions or changes that were not properly documented with a written change order, the court did not properly credit the owner's evidence on a dispute over the air conditioning installation, the court erred in accepting the contractor's evidence of the amount due, the court improperly reduced the amount of damages for defects (to which the owner's witness had testified), and the court should have given the owner credit for more than four days of labor. The court denied the motion for a new trial.
The court did issue a formal judgment on July 20, 2010. The judgment stated that "On the Plaintiff [the contractor's] Complaint: Judgment for [the contractor] and against [the owner]. [¶] On the Cross-Complaint of [the owner] for (1) Breach of Contract, (2) Violation of Bus. & Prof. Code section 7160 [penalty for contract induced by falsity or fraud], (3) Nonpayment of wages, and (4) Violation of Lab. Code section 203 [penalty for nonpayment of wages to an employee]: Judgment for Cross-Defendant [contractor] and against Cross-Complainant [the owner]." The judgment therefore awarded the contractor $1,922.22 plus costs of suit.
The owner filed a new notice of appeal, and designated the items to be included in the record, consisting primarily of the trial exhibits and the motion for a new trial, as outlined above. He elected not to provide a reporter's transcript of the trial proceedings. No pleadings are included in the record on appeal.
ANALYSIS
I. The Record Is Inadequate for Review
It is the burden of an appellant to affirmatively show error by an adequate record. (Cypress Security, L.L.C., v. City and County of San Francisco (2010) 184 Cal.App.4th 1003, 1014; see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) The record here consists, as noted, of the exhibits admitted into evidence at trial, and little else. We have no pleadings, and no reporter's transcript. Thus, it is impossible for us to know very much, if anything, concerning the matters about which the owner complains on appeal.
Likewise, the briefing is inadequate. The owner has placed many of his substantive contentions and arguments in the "Statement of Facts," and the "Argument" consists of a single summary paragraph. "A court need not consider an issue where reasoned, substantial argument and citation to supporting authorities are lacking. [Citations.] The mere assertion of a statutory or constitutional violation, followed by simply a citation to the statute or constitutional provision, does not merit a judicial response. [Citation.]" (Woods v. Horton (2008) 167 Cal.App.4th 658, 677.)
Nevertheless, to the extent possible on the record and argument provided, we briefly examine the owner's claims.
II. No Motion to Compel Discovery Is Included in the Record on Appeal, and the Clerk's Certification of Record Indicates No Such Motion Is Found in the Trial Court Record
The owner complains that he made a motion to compel discovery below, but the motion was vacated by the trial court without explanation, thus violating the owner's discovery rights. He appears to argue that he was surprised at trial by the documents presented by the contractor. He claims that he requested an itemized account from the contractor but was refused, and so was surprised by the amounts claimed at trial.
The owner's designation, and amended designation, of the record on appeal included a request to include the owner's "Motion to compel," with a filing date of "5-610," or May 6, 2010. The clerk's transcript includes the Clerk's Certificate, which states that the "Motion to Compel, date of filing May 6, 2010," would not be included in the record on appeal, because "The clerk of this court researched the record and found no document filed on the requested date."
It appears that the owner gave the wrong date of filing for the document he wished to be included in the record on appeal. The register of actions indicates that the owner filed a motion to compel discovery on March 18, 2010, not May 6, 2010. May 6, 2010, was the first day of the court trial of the action. The owner's motion to compel, which was apparently scheduled to be heard on that date, was vacated, not for no reason, as the owner asserts, but because the trial was starting on the same day.
The statutory provisions for pretrial discovery include time limits by which discovery is to be completed. "Most discovery proceedings must be completed on or before the 30th day before the initial trial date and motions must be heard on or before the 15th day before that date." (2 Witkin, Cal. Evidence (4th ed. 2000) Discovery, § 23, p. 879, citing Code Civ. Proc., § 2024, subd. (a); see now Code Civ. Proc., §§ 2024.010, 2024.020, subd. (a), 2016.060.) While the owner apparently filed his motion more than 30 days before the trial date, that motion was set to be heard on the day of trial, not 15 days before. Thus, the motion was vacated as untimely.
Whether or not the owner had written the correct date of filing of the motion to compel, and whether or not the clerk had found and included the document in the record on appeal, the motion was untimely because it was not heard before trial began.
In addition, the owner fails to identify or make any argument about what additional evidence, if any, he might have been able to present had he had the discovery he sought. The register of actions, synopsizing the court's minutes, show that the owner was able to present his own evidence, by virtue of his own testimony and that of the witness, Buddy Hawkins. Again, the burden is on the appellant to affirmatively show error. (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1183 ["An appealed judgment is presumed correct, and the appellant must affirmatively show error."].)
No error appears with respect to the owner's motion to compel discovery.
III. The Owner Was Not Prevented From Having a Romanian Translator at Trial
The owner complains that the trial court erred in refusing to allow the owner's daughter to act as a Romanian translator for him at the trial proceedings. Again, there is no record of the reported proceedings or any documents to support this claim. So far as we can glean from the record provided, the Register of Actions states, "Trial to proceed without Romanian Interpreter for Defendant; Daughter present to interpret if needed." Thus, the record, such as it exists, flatly contradicts the owner's assertion. Further, the owner has apparently written many documents in English, including documents obviously intended to have legal significance, such as several contract documents that appear in the record, and the present brief on appeal; there has been no showing that his facility with the English language is or was impaired in any way, or that there was any portion of any proceeding, which he did not understand. The owner has shown no error with respect to the presence, or lack thereof, of an interpreter.
IV. The Owner Has Not Demonstrated Any Error in the Denial of the Motion for New Trial
The owner filed a motion for new trial below. The trial court found that the owner had filed a notice of appeal, but took the new trial motion under submission. The court later denied the motion for new trial.
A motion for new trial must be based solely on the grounds allowable in the statute: irregularity in the proceedings that prevents a party from having a fair trial; misconduct of the jury; accident or surprise, which could not have been guarded against; newly discovered evidence, which is material, and which could not have been discovered with due diligence; excessive or inadequate damages; insufficiency of the evidence; and an error in law that was objected to by the party seeking a new trial. (Code Civ. Proc., § 657.)
The owner's motion for new trial raised the following issues:
1. The trial court improperly refused to allow the owner's daughter to translate on his behalf.
2. The trial court did not allow enough time for the owner to present his evidence.
3. The trial court should have dismissed any claim under the mechanic's lien; Code of Civil Procedure section 3115 requires as a precondition to filing a mechanic's lien that a contractor have completed all obligations under the contract, but here the work was not complete. Therefore, the mechanic's lien was improperly (prematurely) filed, and the contractor's action on the mechanic's lien should have been dismissed.
4. The trial court erred in awarding any amount to the contractor for additional work done, which was not specified in the contract, because all change orders must be in writing signed by both parties.
5. The owner had obtained or would obtain new evidence to show that the contractor's testimony at trial (i.e., that the contractor had obtained approval from the city with respect to the air conditioning unit) was false, and that the city had not issued any approvals for the air conditioning unit.
6. The trial court erred in accepting the contractor's claim of the amount of damages without documentary proof and written calculations.
7. The trial court erred in reducing the amount of construction defect damages testified to by the owner's expert, Buddy Hawkins.
8. The trial court erred in holding that the owner failed to meet his burden of proof of showing that the owner was entitled to more than four days of wages for work he performed under the direction of the contractor. The contractor had agreed to hire the owner at the rate of $100 per day for four days; the owner worked more than the four days, but the contractor had apparently testified that such work was without the contractor's approval.
9. The owner had filed a notice of appeal, but that appeal had been dismissed without prejudice because the notice had been filed before entry of judgment. There was as yet no judgment filed. (Evidently, this argument was intended to forestall the trial court's denial of the new trial motion on the ground that the notice of appeal had transferred jurisdiction to the reviewing court.)
The denial of a motion for new trial is not directly appealable; rather, on an appeal from the judgment, the ruling denying a motion for new trial may be reviewed. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) On review of an order denying a motion for new trial, the appellate court reviews the entire record, including the evidence, so as to make an independent determination whether any alleged error was prejudicial. (See Los Angeles v. Decker (1977) 18 Cal.3d 860, 871, 872.)
By and large, the owner here has not provided a record adequate to such a review. We do not have the operative pleadings, or the testimony of the witnesses at trial.
Issue No. 1, denial of a translator, comes within the ground of irregularity in the proceedings that prevented the moving party from having a fair trial. The owner has raised the same substantive issue on appeal, which we have resolved as stated above. No error appears.
Issue No. 2, failure to allow sufficient time for the owner to present his case, is touched on in the appellant's opening brief on appeal, in the owner's statement of the case and description of the trial proceedings: "[The owner's] reasons for this appeal were as follows: [¶] . . . [¶] B. The court erred [in] not giving [the owner] the opportunity to present his documents as proof against [the contractor]." Neither the motion for new trial nor the owner's opening brief provides any further detail concerning this alleged error. The Register of Actions shows, however, that every document marked for identification at trial was admitted into evidence. Otherwise, there is no record whatsoever to show what evidence was admitted or excluded at trial, or what additional evidence the owner may have wished to present, but was prevented from presenting. The owner has made no demonstration of error with respect to this issue.
As to issue No. 3, that the lawsuit should have been dismissed because the underlying mechanic's lien was improperly filed, we again have no record adequate to evaluate any such claim. We do not have the complaint, or the mechanic's lien, in the record. Moreover, the owner's assertion of error is predicated on a misunderstanding of Civil Code section 3115. Civil Code section 3115 provides: "Each original contractor, in order to enforce a lien, must record his claim of lien after he completes his contract and before the expiration of (a) 90 days after the completion of the work of improvement as defined in Section 3106 if no notice of completion or notice of cessation has been recorded, or (b) 60 days after recordation of a notice of completion or notice of cessation."
The owner reads this as if total completion of all work is a statutory precondition to filing a mechanic's lien; the work here was not completed, and therefore the contractor had no right to file a mechanic's lien. The owner is mistaken. Under California law, a work is "complete" for purposes of the statute if it is substantially complete (Hammond Lumber Co. v. Yeager (1921) 185 Cal. 355, 358), or if the owner has anticipatorily breached by refusing to make further payments (Howard S. Wright Construction Co. v. BBIC Investors, LLC (2006) 136 Cal.App.4th 228, 241-242), or otherwise when all work under the contract has either been performed, or excused, or otherwise discharged (ibid.). Strict completion of all contract construction specifications is not required.
Issue No. 4, awarding damages to the contractor for additional work performed, even though not included in a written change order, appears to come within the claim of excessive damages. However, review is once again impaired by the provision of an inadequate record. We do not have any of the evidence before us about change orders, written or otherwise. In addition, the owner's reliance on Business and Professions Code section 7159, is misplaced. Business and Professions Code section 7159 describes the provisions which should be included in a home improvement contract, including a provision for change orders, as follows: "'Extra Work and Change Orders become part of the contract once the order is prepared in writing and signed by the parties prior to the commencement of work covered by the new change order. The order must describe the scope of the extra work or change, the cost to be added or subtracted from the contract, and the effect the order will have on the schedule of progress payments.'" The owner views this provision as a fail-safe in his favor: if he refuses to sign a written change order, he can prevent the contractor from recovering for any extra work done. The owner is again mistaken. Noncompliance with Business and Professions Code section 7159 does not necessarily preclude recovery for work performed pursuant to unwritten change orders. (See Davenport & Co. v. Spieker (1988) 197 Cal.App.3d 566, 569-571.) We have no idea what these supposed "extras" are, for which the court purportedly awarded compensation to the contractor. But there is nothing inherently unlawful about awarding compensation for extra work actually performed, even if not accompanied by a written change order.
Issue No. 5, concerning the contractor's allegedly false testimony pertaining to an air conditioning unit, was not a proper ground for new trial. The owner purported to have "new evidence" to show the contractor's trial testimony was false, but made no showing that the same evidence could not, with due diligence, have been discovered earlier. The basis of the claim is also unclear. The contractor evidently testified that he had received city approval for some aspect of the project concerned with the air conditioning unit. The owner stated that someone at the city told him "that there is no approval for such item." It is entirely ambiguous what that means, however. It could mean, as the owner apparently interprets it, that the city did not issue the specific approval claimed, or it might mean that, in general, such items do not require city approval, in which case the contractor did not violate any city requirements with respect to the air conditioning unit. Again, we have no reporter's transcript of the trial testimony, so we have no way to tell what the contractor said, if anything, about any air conditioning unit. One speculation is as good as any other: the contractor may have said that he complied with all city approvals for the air conditioning unit, for example. The owner's new trial motion did not show that he had any new evidence, or that the evidence was material. Likewise, he has not shown for purposes of appeal that anything untoward took place.
Issue No. 6, the argument that the trial court "erred in its decision that plaintiff's claim was accurate . . . without calculating and without any valid document," appears to come within the grounds of excessive damages, or insufficiency of the evidence. The claim betrays an entire misunderstanding of evidence: the testimony of witnesses is evidence. Documentary evidence is not the only means of proving a fact in issue. (Evid. Code, § 140.) In addition, as with the other claims of error, the owner has not provided an adequate record for review. We have no idea what the contractor testified at trial, or what evidence the trial court heard as to the contractor's claims of damage.
Issue No. 7, concerning the trial court's apparent discounting of the owner's claim of damages for construction defects, appears nominally to come within the ground of excessive or inadequate damages, or perhaps sufficiency of the evidence. However, the owner has identified merely a dispute over the credibility of the witness, or perhaps competing evidence of different witnesses, as to whether or not there were any construction defects, or the proper valuation of any such claim. Issues of credibility are confided to the discretion of the trier of fact. (In re A.M. (2010) 187 Cal.App.4th 1380, 1390.)
Issue No. 8, concerning the owner's claim that he worked, and should have been compensated for, more than the four days agreed upon by the contractor, comes at least nominally within the grounds of insufficiency of the evidence, or inadequate damages, or irregularity in the proceedings, or that the verdict was against law. Even the owner's own description of the claim, in the motion for new trial, acknowledges that the contractor testified that any work over the four agreed days was without the contractor's approval. At most, the owner has again identified a credibility dispute, which the trier of fact resolved against him. He has shown no abuse of discretion, and, more fundamentally for purposes of appeal, he has not provided a record that could be reviewed.
As to issue No. 9, whether the trial court denied the motion because of its view that the owner's premature notice of appeal divested it of jurisdiction to hear the motion, that might arguably come within the ground that outright denial of the new trial motion on that procedural ground would be against law. To the extent we have any record to review on the matter, the Register of Actions shows that, at the hearing on the motion for new trial, the court found expressly that a notice of appeal had been filed. Nevertheless, the court took the motion under submission and later issued a ruling denying the motion. We do not have the minutes or any expression from the trial court (nor, of course, the reporter's transcript of the motion proceedings) as to its reasons for denying the motion for new trial. Thus, we have no way of determining whether the motion was denied on that, or any other ground. As our examination of the new trial motion has shown here, however, the owner's motion has presented no demonstration of error or prejudice as to any of its claimed grounds. Accordingly, we have been presented with no reason to reverse the trial court's order denying the motion for new trial, either procedurally or substantively.
V. There Is No Demonstrated Error in the Contractor's Claim of Damages
The owner reiterates the argument that the trial court erred in allowing the contractor's claim of $7,499.20 in damages, because there was neither "valid documentation" nor any written change order approved by the owner. As we have indicated in the discussion above, the owner seriously misunderstands the nature of evidence; oral testimony is a valid form of evidence. Moreover, as with all the other claims, we have no record before us of the complaint, or any testimony from the trial, as to the contractor's claim or claims. All that we do have is the contract itself, and the contractor's summary of the amounts due, the amounts paid, and the claimed balance. Thus, it is simply untrue that there was no documentary evidence as to the contractor's claims. However, in the absence of the pleadings and oral testimony, there is nothing we can review that will show any error.
VI. The Record Is Inadequate to Evaluate Any Claims of Miscalculation
The owner argues that the court erred in its calculation of the judgment. He claims he was to be given credit in the court's findings for $1,200 + $3,367 + $2,210, or a total of $6,777 for construction defects, but the court forgot or omitted the $1,200 portion of the damages. Thus, the court's judgment of $1,922.20 in favor of the contractor should be reduced by $1,200, to a total of $722.20.
Again, the owner has provided us an inadequate record for review. We have no access to any information adduced at trial about damages, or construction defects, or calculations or miscalculations. All we have been provided is the ultimate judgment of $1,922.20. How that judgment was reached is not elucidated in any way, and the owner has provided us no record—documentary, testimonial or otherwise—upon which it could be challenged. The first principle of appellate review is that we must presume that the judgment is correct (Chin v. Namvar (2008) 166 Cal.App.4th 994, 1009); it is up to the appealing party affirmatively to demonstrate error (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685). This, of course, the owner cannot do, because he has not provided any record for us to examine. (See Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725, fn. 3 ["It was of course the duty of Srithong, as the appellant, to furnish an adequate record for review."].)
VII. Other Proceedings Are Not Within the Scope of This Appeal
The owner next complains that, because of the court's miscalculation of the judgment (a notion we reject above), the contractor later filed a new mechanic's lien against the property. Whatever the merits or demerits of this claim, it concerns matters occurring after, and not part of, the instant litigation. The owner's remedy is to apply for relief from the trial court in a new proceeding. We have no jurisdiction here over such a new, and wholly independent, proceeding; the matter is not cognizable on this appeal. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 334, p. 385 ["The appellate court is ordinarily confined in its review to the proceedings that took place in the court below and are brought up for review in a properly prepared record on appeal."].)
VIII. The Owner Has Demonstrated No Error in the Judgment for Other Claimed Items of Damage
The owner complains that the trial court failed to take account of or give proper credit to the owner, against the claims of the contractor, for various permits having to do with construction of a habitable room, as opposed to a room for storage. Although the owner claims that he "has proof for appeal," he should have presented any evidence or proof he had in the trial court. The time for the presentation of evidence is closed. (Cf. Crofoot Lumber v. Lewis (1962) 210 Cal.App.2d 678, 681 [generally, an appellate court is ill-equipped to take new evidence on appeal]; Schelling v. Thomas (1929) 96 Cal.App. 682, 686 [immaterial evidence outside the issues is inadmissible and will not be taken on appeal]; In re Marriage of Folb (1975) 53 Cal.App.3d 862, 877, overruled on another point in In re Marriage of Fonstein (1976) 17 Cal.3d 738, 749, fn. 5 [evidence on appeal is irrelevant and will not be taken for matters occurring after judgment and therefore not reviewable on appeal]; Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 87 [leave to present new evidence on appeal may properly be denied for lack of diligence in procuring the evidence].)
IX. The "Financial Abuse" Claim Is Not Cognizable on This Appeal
The owner again wishes to bring up matters which, so far as we can glean from the briefing, appear to have taken place after the current litigation. The owner complains initially that the amount claimed in the contractor's mechanic's lien is much greater than the actual recovery, and therefore the mechanic's lien claim was abusive.
We have no way to evaluate this claim. Like a broken record, we can only reiterate that the owner has failed to furnish an adequate record on appeal. The hints we can derive from the motion for new trial and the brief on appeal indicate that the parties had many claims and counter-claims below, some of which may have offset one another. Thus the contractor's claims could have been fully vindicated, but perhaps offset by other of the owner's claims. We have no way of knowing, because hints and speculation are not evidence, and are no substitute for a proper record.
The owner apparently attempted to file a separate lawsuit against the contractor for alleged abuse in filing an illegal lien against the property, which action the owner claims was dismissed by the superior court. Even if the owner "believes that the court erred again," that matter is not before us.
X. The Owner Has Not Shown Any Abuse of Discretion as to the Admission or Exclusion of Evidence, or Judgments of Credibility, Concerning the Air Conditioning Unit
The owner appears to contend that the trial court erred in believing the contractor's testimony that he had reinforced the roof for an air conditioning unit. Once again, we have no idea what anyone testified below as to any issue. The owner has voluntarily elected not to provide a reporter's transcript of the trial court proceedings. In general, however, the judgment of the credibility of witnesses is a matter for the trier of fact, and subject to deferential review on appeal. (See People v. Loewen (1983) 35 Cal.3d 117, 123.) The owner has failed in his burden to affirmatively demonstrate error.
XI. The Owner Has Not Demonstrated Any Error in the Calculation of Offset Construction Defect Damages
The owner complains here, as he did in the new trial motion below, that the trial court improperly disbelieved the evidence of his expert witness as to the amount of construction defect damages the owner had suffered, and which presumably should be offset against the contractor's claims. The failure of the owner to provide a reviewable record defeats the claim ab initio. We have no idea what the issues were at trial, what evidence was adduced, and whether or not any such evidence had substantial support or was credible in any way. Although the owner attempts to import additional evidence into his brief, that attempt is improper; review on appeal is limited to the matters presented below, and for which an adequate record on appeal is provided. There is literally, as to this issue, nothing here for us to review. The lack of an adequate record compels us to exercise the presumptions and intendments in favor of the judgment, and to reject the claim.
XII. The Owner Has Shown No Error Concerning Payment for Various Alleged Items of Damage
The owner claims that the trial court erred in accepting the contractor's claim for the installation of fire sprinklers in the room addition, or for ducting and venting for the air conditioner, on the ground that the contractor had no written change order signed by the owner. The owner again appears to take the view that, by refusing to sign a change order, he can unilaterally defeat payment for work actually performed. As we explained in the context of the issues on the motion for new trial, the lack of a written change order does not of itself conclusively defeat payment for the additional work done.
The owner also complains that the court erred in awarding anything to the contractor for "Title 24 for Energy Calculation." He appears to assert that this Title 24 is or should be applicable only to a habitable structure, but that the contractor successfully argued the project was for a storage room, not a habitable room. Thus, the owner appears to argue, the contractor should not have been compensated for habitability-related items, such as fire sprinklers or air conditioning, if the contractor was claiming the project was not for a habitable space.
The owner makes a similar claim with respect to the windows installed: the contractor was assertedly compensated for installing windows required of a habitable space, but instead deceived the owner by installing lower quality windows.
The owner argues that the contractor double charged for concrete, double charged for a permit, and overcharged for an electrical panel, and that the trial court erroneously allowed these items.
The owner claims that the contractor attempted to overcharge him $1,000 on the payment schedule.
The owner claims that the trial court admitted at trial the owner's list of claims that the contractor had supposedly agreed would be deducted from the last contract payment, but instead the trial court believed the contractor's trial testimony denying any such agreement.
He contends that the contractor promised to install closet doors, but did not do so; a construction expert's report allegedly estimated the cost of the closet doors at over $1,000, but the trial court did not award the owner any damages for the omitted closet doors. The owner "considers this to be a prejudicial decision."
Once again, however, we have no means of reviewing any such claims. We do not know who testified what, with respect to the work, or its authorization, which could have any effect on the validity of the judgment. We do not know who testified what, with respect to whether the project was for a habitable room or not. We do not know that the issues are mutually exclusive, i.e., that air conditioning and sprinklers are or should be precluded from a storage facility. We do not know what evidence of costs was adduced at trial, about windows, or concrete, or payment schedules, or permits, or electrical panels, or closet doors, or materials to be deducted from the contract final payment. We have no record of evidence to review. The owner's failure to provide an adequate record defeats each and every such claim.
XIII. The Owner Has Failed to Demonstrate Error Concerning Wages for Days He Worked on the Construction Project as an Employee
The owner reiterates the claim, raised below on his motion for new trial, that he worked as an employee on the project for more than the four days agreed to by the contractor, and thus should have been compensated at the agreed rate for the additional days. As we noted in our examination of the new trial motion, the owner has provided no record of testimony about the issue. However, even the owner's own brief acknowledges that the contractor testified that any additional days he had worked were not approved or agreed to by the contractor. Thus, to the extent we have access to any evidence about the issue, the evidence presumably supports the factual findings of the trial court.
The owner "requests at appeal that [the contractor] answer why he did not stop [the owner] from working," but this is a question which should have been asked at trial. We do not know whether it was or was not asked or answered, because we have no record of the trial testimony. The claim is unreviewable in the absence of a proper record. As we have also noted previously, the appellate court does not generally take new evidence on appeal, particularly when the evidence sought to be produced could and should, with due diligence, have been presented at trial. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., supra, 12 Cal.App.4th at p. 87.)
DISPOSITION
The owner has failed to provide a record adequate for review of most, if not all, of the claims of error. Some issues are not cognizable because they relate to entirely separate proceedings, and not the trial below. To the limited extent that the claims are examinable, the owner has made no showing of error. "An appellant has the burden to provide a record sufficient to support its claim of error. [Citation.] Absent an indication in the record that an error occurred, we must presume that there was no error. [Citations.]" (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 678.) The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.