Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. BC380232, Anthony J. Mohr, Judge.
John F. Mounier, Jr. for Plaintiff and Appellant.
Anderson, McPharlin & Conners, Eric A. Schneider for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiff and appellant Gary Sornborger (plaintiff) appeals from a judgment entered following an order granting summary judgment. According to plaintiff, the trial court erred in granting summary judgment because the moving party, defendant and respondent Water & Power Community Credit Union (defendant), failed to carry its initial burden of production on the motion and, in any event, plaintiff’s evidence showed that there was a triable issue of fact.
We hold that plaintiff has failed to overcome the presumption of correctness that attaches to the judgment and failed to demonstrate any prejudicial error on appeal. We therefore affirm the judgment.
PROCEDURAL BACKGROUND
Plaintiff sued defendant and R.G. Insurance Agency, Inc. asserting causes of action for violation of Business and Professions Code section 17200, breach of contract, fraud, and violation of Insurance Code sections 790.02 and 790.03. Plaintiff premised each of these causes of action on the alleged failure of defendant to provide accidental death and dismemberment coverage insurance as allegedly promised years earlier in a promotional brochure. Plaintiff incorporated and attached two exhibits to the complaint: a one-page, undated letter on defendant’s letterhead signed by manager Robert Rose and a two-page copy of a document entitled “Group Accident Insurance.”
Defendant filed a notice of motion and motion for summary judgment that recited in the caption page that it was filed concurrently with a separate statement of undisputed material facts, a “volume of evidence in support of motion, ” and a request for judicial notice. Plaintiff opposed the motion and included a declaration from his counsel attaching three exhibits: plaintiff’s verified responses to defendant’s special interrogatories, excerpts from the transcript of the deposition of defendant’s person most knowledgeable, and a January 4, 2005, minute order from a Superior Court of Los Angeles County civil action entitled Gary Sornborger v. UNUM Life Insurance Company of America, case number BC269958.
As discussed below, although plaintiff’s motion and separate statement are included in the record, the “volume of evidence” in the record contains only one of 17 exhibits submitted to the trial court-exhibit Q, the 1996-1997 accidental death and dismemberment policy (1996-1997 policy).
The trial court entered an order granting defendant’s summary judgment motion in which it sustained defendant’s objections to the three exhibits submitted by plaintiff in opposition to the motion. The trial court thereafter entered a judgment on the order granting summary judgment. Plaintiff filed a timely notice of appeal from the judgment and an election to use an appellant’s appendix pursuant to California Rules of Court, rule 8.124, as well as an election to proceed without a record of the oral proceedings in the trial court.
Plaintiff’s election to proceed without the reporter’s transcript of the hearing on the summary judgment motion raises the question of whether the record on appeal is adequate for review of the issues he has raised. California Rules of Court, rule 8.120(b) provides: “If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings....” With one exception, plaintiff raises issues concerning the evidence in support of the summary judgment motion that do not require consideration of the hearing transcript. Thus, the omission of the transcript of the hearing does not prevent us from reviewing those issues. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 4:43, p. 4-11 [record inadequate when it appears to show any need for speculation or inference in determining whether error occurred]; see also Schein v. Holbrook (1952) 111 Cal.App.2d Supp. 972, 973 [“There are many points which can be made on appeal without consideration of the oral proceedings, and this rule does not foreclose their consideration without a reporter’s transcript”].) Only plaintiff’s challenge to the ruling sustaining defendant’s objections to plaintiff’s exhibits arguably requires consideration of the hearing transcript. As explained below, however, because plaintiff does not support his challenge to that ruling with reasoned analysis or citation to authority in his opening brief, he has forfeited that challenge on appeal.
DISCUSSION
Plaintiff appeals from the judgment entered by the trial court. On appeal, a judgment of the trial court is presumed correct. “[I]t is settled that: ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ (3 Witkin, Cal. Procedure (1954) Appeal, § 79, pp. 2238-2239; Minardi v. Collopy, 49 Cal.2d 348, 353 [316 P.2d 952]; Coleman v. Farwell, 206 Cal. 740, 742 [276 P. 335].)” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, an appellant has an affirmative duty on appeal to overcome the presumption of correctness and demonstrate prejudicial error. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.)
Plaintiff has failed to overcome the presumption of correctness by demonstrating prejudicial error. Although defendant included 17 exhibits in support of its motion for summary judgment, plaintiff included only one of those exhibits in the record on appeal-a copy of the 1996-1997 policy. Moreover, the three exhibits submitted by plaintiff in opposition to the motion are not properly before us because the trial court sustained defendant’s objections to those exhibits, and plaintiff does not adequately challenge those evidentiary rulings on appeal. He merely suggests in his opening brief that those objections were “improperly sustained, ” without providing reasoned analysis or citation to authority supporting those bare assertions of error. “[O]n appeal ‘the party asserting trial court error may not... rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]’ ([Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, ] 649; see also In re S.C. (2006) 138 Cal.App.4th 396, 408 [41 Cal.Rptr.3d 453] [‘To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.’].) When an appellant raises an issue ‘but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]’ (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [79 Cal.Rptr.2d 273].)” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1207.)
Given the record on appeal, as provided by plaintiff, we must presume that the omitted evidence in support of the motion was adequate to demonstrate defendant’s entitlement to summary judgment. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“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”].) Therefore, the burden shifts to plaintiff to produce evidence sufficient to raise a triable issue of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 [if moving party carries his burden of showing a prima facie entitlement to summary judgment, opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of fact].) The only showing by plaintiff in the record is a copy of the 1996-1997 policy. There is no affirmative showing of the existence of the 1988 promotional letter upon which he relies in argument, nor is there any showing that he made a claim for benefits under the policy in issue that was denied. Without the 1988 promotional letter or evidence supporting his claims of detrimental reliance, breach of contract, and unfair business practices, plaintiff cannot make the required prima facie showing of a triable issue of fact. Thus, the evidentiary record on appeal is insufficient to overcome the presumption of correctness that attaches to defendant’s showing of entitlement to summary judgment and requires us to affirm the judgment.
Plaintiff refers to the letter attached as exhibit 1 to his complaint as the 1988 promotional letter upon which he relied in purchasing the accidental death and dismemberment coverage that is the subject of this action. But the letter attached to the complaint is undated and not authenticated anywhere in the record. As such, it is an allegation, not the proof required to oppose the summary judgment motion. (Code Civ. Proc., § 437c, subd. (p)(2) [“Once the defendant... has met [the moving party’s initial] burden, the burden shifts to the plaintiff... to show a triable issue.... The plaintiff... may not rely on the mere allegations or denials of [his] pleadings to show that a triable issue of material fact exists but, instead shall set forth... specific facts...”].)
DISPOSITION
The judgment of the trial court is affirmed. Defendant is awarded its costs on appeal.
We concur: TURNER, P. J. ARMSTRONG, J.