Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. CV256185, James M. Stuart, Judge.
Dawn Miranda, in pro. per., for Plaintiff and Appellant.
Noriega & Bradshaw and Eric Bradshaw for Defendant and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J. and Hill, J.
Plaintiff appeals the judgment entered against her in consolidated actions for breach of contract and unlawful detainer. Because appellant has not identified any reviewable error in the trial court proceedings or provided an adequate record for review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff sued defendant for specific performance and damages for breach of contract, alleging the parties had entered into an oral contract pursuant to which defendant agreed to sell to plaintiff certain real property and plaintiff agreed to pay defendant $5,000 and to make the mortgage payments on the property. Prior to trial, defendant filed an unlawful detainer action against plaintiff, to obtain possession of the same real property. The two proceedings were consolidated for trial.
For convenience, we refer to Dawn Miranda as plaintiff and Carol Aldean as defendant, although they occupied different positions in the unlawful detainer proceeding.
The legal issues were tried to a jury in October 2006. The jury found that the parties had entered into a contract for defendant to sell her property to plaintiff, but plaintiff had not performed her obligations under the agreement or been excused from performance. Plaintiff’s request for specific performance and defendant’s unlawful detainer action were tried to the court. The trial court found in favor of defendant on both issues. Judgment was entered and plaintiff appeals.
Prior to the first trial date in the contract action, plaintiff requested and was granted an order shortening time to bring a motion to disqualify defense counsel. Plaintiff did not file such a motion, but moved to continue the trial date, in part so she could have more time to bring a motion to disqualify defense counsel. The court granted the motion and continued the trial date from August 21 to October 23, 2006. Shortly before the October trial date, plaintiff applied ex parte for an order shortening time for a motion to disqualify defense counsel. The court denied the application, both because it was not accompanied by any supporting declaration and because plaintiff had known about the grounds she alleged as the basis of such a motion at least since July 2006, but had not brought a motion.
DISCUSSION
The trial court’s judgment is presumed to be correct on appeal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The burden of affirmatively demonstrating error is on the appellant. (Ibid.) Appellant’s brief does not clearly identify any error she contends occurred in the trial court proceedings. She appears to contend that the evidence did not support a finding that the transaction was not a purchase of the real property. The jury, however, did not find that the transaction was something other than a purchase. It found that there was a purchase contract, but that plaintiff failed to perform her obligations under the contract. The trial court, in ruling on the specific performance and unlawful detainer issues, also found plaintiff had failed to perform and was not excused from performing her obligations under the purchase contract, and therefore she had no interest in the property. Plaintiff has neither asserted nor demonstrated any error in the findings of the jury or the court.
“Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Plaintiff provided no reporter’s transcript of the trial – either the jury trial portion or the court trial portion. To the extent she contends the judgment was not supported by the evidence, she has not presented a sufficient record to demonstrate any error and the judgment is presumed correct.
Plaintiff also appears to contend that, due to a conflict of interest involving a legal secretary who worked first for plaintiff’s counsel and later for defense counsel, defense counsel should have been disqualified from representing defendant. While plaintiff mentioned more than once that she believed a conflict of interest existed, she never presented the issue to the trial court by motion supported by evidence and argument. As a result, the trial court never ruled on the merits of the issue. “Points not raised in the trial court will not be considered on appeal. [Citation.]” (Hepner v. Franchise Tax Board (1997) 52 Cal.App.4th 1475, 1486.) Because the disqualification issue was not raised in the trial court, we will not review it on appeal.
DISPOSITION
The judgment is affirmed. Defendant Carol Aldean is awarded her costs on appeal.