Winslow v. King's Townhouses Homeowners Assoc. CA2/5 ( 2016 )


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  • Filed 2/17/16 Winslow v. King’s Townhouses Homeowners Assoc. CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    GREGORY WINSLOW,                                                     B263104
    Plaintiff and Appellant,                                    (Los Angeles County
    Super. Ct. No. BC493053)
    v.
    KING’S TOWNHOUSES
    HOMEOWNERS ASSOCIATION,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Los Angeles County, Steven J.
    Kleifield, Judge. Affirmed.
    Melvin Teitelbaum for Plaintiff and Appellant.
    Slaughter, Reagan & Cole, Barry J. Reagan and Gabriele M. Lashly for Defendant
    and Respondent.
    ____________________________
    Plaintiff Greg Winslow appeals from the judgment entered in favor of defendant
    King’s Townhouses Homeowners Association (the Homeowners Association),1 in his
    action for negligence, violation of the California Common Interest Development Law,
    and breach of fiduciary duty. Winslow argues the trial court committed reversible error
    by ruling inadmissible the reports of plaintiff’s expert, Dr. Kaye Kilburn, and omitting a
    finding of liability as to damage to plaintiff’s property. Due to the absence of a reporter’s
    transcript of the trial and motion proceedings, or a suitable substitute such as a settled or
    agreed statement, Winslow has not established error or prejudice. We therefore affirm.
    PROCEDURAL BACKGROUND
    Winslow’s operative first amended complaint alleged he is a resident of a
    condominium project in Granada Hills. Defendants are the Homeowners Association and
    board members, directors, and officers of the association. Winslow alleged that
    defendants failed and refused to protect his residential unit from water damage. Injury
    resulted from mold, diminution of property value, loss of use, and property damage. The
    mold contamination caused personal injury to Winslow, including neurological and
    physical injuries. Defendants’ conduct violated statutory duties under the California
    Common Interest Development Law (Civ. Code, § 1365 et seq.) and breached their
    fiduciary duties to Winslow. Defendants filed an answer.
    Defendants filed six motions in limine prior to a bench trial. In limine motion No.
    3 sought to exclude any reference to the reports or opinions of Dr. Kilburn, on the
    grounds Dr. Kilburn was unavailable to testify at trial due to his death, he had not been
    made available for deposition and had not been subjected to cross-examination, and any
    reference to his reports or opinions would be highly prejudicial. Winslow filed an
    opposition, arguing that Dr. Wu, another one of his witnesses, testified at deposition that
    1
    Also named as defendants were Edward Goldstein, Steve Hipsman, James
    Kolberg, Joyce Kolberg, and Nora Kuwamura, who are apparently officers or directors of
    the Homeowners Association. The individual defendants are not parties to this appeal.
    2
    he relied on the report of Dr. Kilburn in forming his opinions. Defendants filed a reply to
    the opposition, contending the opposition was not timely filed. On the merits, defendants
    argued Dr. Kilburn’s report constitutes inadmissible hearsay, and Winslow’s expert
    witness at trial may state he relied on other experts, but he is not permitted to reveal the
    contents of the other expert opinions.
    The appellate record does not disclose the trial court’s ruling on in limine motion
    No. 3. During trial, Winslow filed a brief urging admission of Dr. Kilburn’s report. The
    record contains no indication of a midtrial ruling on Winslow’s request to admit the
    report.
    After several days of trial, the court granted defendants’ motion for judgment
    pursuant to Code of Civil Procedure section 631.8.2 A minute order issued reflects the
    following ruling: “The court finds no evidence of diagnosed or diagnosable injury, and
    no testimony that the plaintiff has a brain injury. [¶] The full ruling is better reflected in
    the notes of the official court reporter pro tem.”
    After denying Winslow’s untimely request for a statement of decision, the trial
    court entered a signed judgment in favor of defendants. Winslow filed a timely notice of
    appeal.
    2
    Section 631.8 provides in pertinent part as follows: “(a) After a party has
    completed his presentation of evidence in a trial by the court, the other party, without
    waiving his right to offer evidence in support of his defense or in rebuttal in the event the
    motion is not granted, may move for a judgment. The court as trier of the facts shall
    weigh the evidence and may render a judgment in favor of the moving party, in which
    case the court shall make a statement of decision as provided in Sections 632 and 634, or
    may decline to render any judgment until the close of all the evidence. The court may
    consider all evidence received, provided, however, that the party against whom the
    motion for judgment has been made shall have had an opportunity to present additional
    evidence to rebut evidence received during the presentation of evidence deemed by the
    presenting party to have been adverse to him, and to rehabilitate the testimony of a
    witness whose credibility has been attacked by the moving party. Such motion may also
    be made and granted as to any cross-complaint.”
    3
    DISCUSSION
    This court directed the parties to brief whether Winslow’s failure to provide a
    reporter’s transcript, or a suitable substitute such as a settled or agreed statement,
    warrants affirmance based on the inadequacy of the record. Winslow’s opening brief,
    which contains no statement of facts from the trial, takes the position the issues raised on
    appeal were briefed in the trial court “without any factual dispute as to those issues,” and
    no reporter’s transcript on appeal is necessary. The Homeowners Association argues in
    the respondent’s brief that the issues raised by Winslow involve discretionary rulings on
    the admissibility of evidence, and Winslow cannot establish an abuse of discretion
    without an adequate record. The Homeowners Association further argue that without a
    reporter’s transcript Winslow cannot establish that any error is prejudicial. We agree
    with the Homeowners Association that the record is inadequate for appellate review. We
    hold Winslow has not carried his burden on appeal of establishing error and prejudice.
    The numerous situations in which appellate courts have refused to reach the merits
    of an appellant’s claims because no reporter’s transcript or a suitable substitute of a
    pertinent proceeding was provided are set forth in Foust v. San Jose Construction Co.,
    Inc. (2011) 
    198 Cal.App.4th 181
    , 186-187 (Foust). (See, e.g., In re Kathy P. (1979) 
    25 Cal.3d 91
    , 102 [hearing to determine whether counsel was waived and the minor
    consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 
    79 Cal.App.4th 440
    , 447 [trial transcript when attorney fees sought]; Hodges v. Mark (1996)
    
    49 Cal.App.4th 651
    , 657 [nonsuit motion where trial transcript not provided].) A
    plaintiff appealing an adverse judgment has the burden of providing an adequate record,
    because the judgment is presumed correct and error must be affirmatively shown. (Foust,
    supra, at p. 187; Hernandez v. California Hospital Medical Center (2000) 
    78 Cal.App.4th 498
    , 502.)
    The record on appeal is unquestionably inadequate to address the issues presented
    regarding the admissibility of Dr. Kilburn’s report, because the issues each involve
    review of the discretionary rulings of the trial court. (Sargon Enterprises, Inc. v.
    4
    University of Southern California (2012) 
    55 Cal.4th 747
    , 773 [unless trial court rules as a
    matter of law, rulings excluding or admitting expert testimony are reviewed for abuse of
    discretion]; People v. Valdez (2012) 
    55 Cal.4th 82
    , 133 [trial court’s ruling under
    Evidence Code section 352 is reviewed for abuse of discretion]; People v. Hamilton
    (2009) 
    45 Cal.4th 863
    , 940 [trial court has broad discretion in determining the relevance
    of evidence].) The absence of a reporter’s transcript, or suitable substitute, or any minute
    order reflecting the court’s rulings, precludes review of the discretionary ruling made by
    the trial court. This court has no means of identifying what arguments were made or
    abandoned in hearings on the admissibility of Dr. Kilburn’s report, nor do we have any
    insight into the reasoning employed by the trial court.
    Winslow’s opening brief contains no recitation of facts from the trial. As a result,
    this court has no way to determine whether Winslow presented any credible evidence
    sufficient to establish the Homeowners Association’s liability, whether with or without
    Dr. Kilburn’s report. Without a complete record, Winslow cannot establish that
    exclusion of Dr. Kilburn’s report had any impact on the trial court’s decision to grant the
    Homeowners Association’s motion for judgment under Code of Civil Procedure section
    631.8. Winslow has not met his burden of affirmatively establishing prejudicial error.
    (Cal. Const., art. VI, § 13; Evid. Code, § 354.)
    Winslow’s remaining argument, that the trial court erred by not making specific
    factual findings regarding property damage, is also without merit. First, Winslow did not
    make a timely request for a statement of decision, and we “must assume that the trial
    court made whatever findings are necessary to sustain the judgment and we indulge all
    presumptions in favor of the order. [Citations.]” (Tusher v. Gabrielsen (1998) 
    68 Cal.App.4th 131
    , 140; In re Marriage of Arceneaux (1990) 
    51 Cal.3d 1130
    , 1133.)
    Second, the minute order reflecting the order granting the motion under Code of Civil
    Procedure section 631.8 specifically indicates, “The full ruling is better reflected in the
    notes of the official court reporter pro tem.” Because Winslow has not provided this
    court with a reporter’s transcript or suitable substitute reflecting the full ruling of the
    5
    court, he has failed to present a complete record sufficient to sustain his burden of
    establishing error or prejudice.
    DISPOSITION
    The judgment is affirmed. Costs on appeal are awarded to King’s Townhouses
    Homeowners Association.
    KRIEGLER, J.
    We concur:
    TURNER, P. J.
    BAKER, J.
    6
    

Document Info

Docket Number: B263104

Filed Date: 2/17/2016

Precedential Status: Non-Precedential

Modified Date: 2/17/2016