Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC352854, Edward A. Ferns, Judge.
James J. Filicia for Plaintiff and Appellant.
Wheatley Bingham & Baker, Roger P. Bingham and Mark Baker for Defendants and Respondents.
WILLHITE, Acting P. J.
Plaintiff Richard Shirley sued defendants AMTRAK and CUSA CC, LLC, (erroneously named as Progressive Transportation Services, Inc., dba Coach U.S.A. Transit Services) for negligence. According to plaintiff’s opening brief on appeal (his complaint is not part of the record before us), plaintiff, who is quadriplegic, alleged that his wheelchair was not properly tied down by the driver of a bus under contract to defendants, and that as a result plaintiff suffered personal injuries. A jury returned a verdict finding defendants not negligent. Plaintiff appeals from the resulting judgment in favor of defendants. Because plaintiff has not presented an adequate record on appeal, we affirm.
DISCUSSION
Plaintiff elected to proceed on appeal without a record of the oral proceedings in the trial court. Thus, the record before us does not contain a reporter’s transcript of the trial. As relevant to the trial, the record contains only the jury instructions given by the court, those that were withdrawn, and those that were refused.
In his designation of the record on appeal, plaintiff checked the box stating: “I elect to proceed... WITHOUT a record of the oral proceeding in the trial court. I understand that without a record of the oral proceedings in the trial court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether the trial court made an error.”
On appeal, plaintiff contends that the trial court erred when it refused to read Plaintiff’s Special Jury Instruction No. 1, which stated: “A common carrier owes a duty to its passengers to investigate accidents and preserve evidence which will enable the passengers to file an action against the persons responsible for the accident.” In particular, he asserts: “This instruction is clearly applicable inasmuch as the bus driver... owed Appellant, a quadriplegic, who was injured at the scene, a duty to preserve the evidence which included the names and agencies of the paramedics who came to the scene. Appellant was without the names or agencies of the paramedics at trial which resulted in a factual dispute between the Plaintiff and Defendant as to what really took place at the scene. If Appellant had the benefit of the paramedics’ testimony he could have convinced the jury that his version of the incident was what took place.” Plaintiff also refers to the declarations of two jurors (neither of which is in the record on appeal) that were appended to his motion for a new trial, in which the jurors stated, according to plaintiff’s opening brief, that “the jury wrongfully concluded that Appellant had the responsibility to preserve this evidence and his failure to do so caused the jury to wrongfully conclude that Appellant had not met his burden of proof.”
In the absence of a reporter’s transcript of the trial, we are unable to evaluate plaintiff’s contention, and must affirm the judgment. Appellant has the burden of overcoming the presumption of correctness and, for this purpose, must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)If the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed. (See Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [argument that trial court erred forfeited by failing to include transcript of relevant hearing].)
In their respondents’ brief, defendants pointed out the deficiency of the appellate record. However, plaintiff did not thereafter seek to augment the record, and did not file a reply brief. Because the record on appeal is inadequate, we conclude that plaintiff has failed in his burden to demonstrate that the trial court erred. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.)
DISPOSITION
The judgment is affirmed. Respondents shall be entitled to their costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.