Chepel v. Swinney CA3 ( 2013 )

Filed 9/3/13 Chepel v. Swinney CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
IGOR CHEPEL, C069535
Plaintiff and Appellant, (Super. Ct. No.
34200800006391CUNPGDS)
v.
CHRIS SWINNEY,
Defendant and Respondent.
Plaintiff Igor Chepel, representing himself on appeal as he did in the trial court,
urges us to reverse a jury verdict in which he lost each of the three causes of action he
asserted against his ex-wife’s boyfriend, defendant Chris Swinney. Plaintiff asks us to
disregard defendant’s appellate brief for violating filing deadlines. Even if we were to
grant plaintiff’s request, it would not solve the fatal deficiency in his appeal—the absence
of a sufficient record to support his claims. Without a reporter’s transcript and with only
a skeletal clerk’s transcript, we must affirm the judgment.
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FACTS
We would normally begin with a recitation of the relevant facts upon which the
appeal is predicated. In this case, however, not even the complaint is included in the
clerk’s transcript. The judgment states that the jury found against plaintiff on his causes
of action for assault, for the intentional infliction of emotional distress, and for slander.
The judgment reflects the only facts we can use to evaluate plaintiff’s allegations on
appeal.
The clerk’s transcript also includes the parties’ trial briefs and an assortment of
declarations. These documents suggest that the parties were embroiled in a protracted
dispute involving the custody of plaintiff’s children. Plaintiff may not appreciate that
trial briefs do not constitute evidence. We must, however, presume the existence of all
facts in support of the jury verdict where, as here, there is an appeal of the judgment roll.
(Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen).)
DISCUSSION
Plaintiff raises four issues on appeal: the trial court erred by allowing defendant to
produce witnesses at trial he had not disclosed in advance, he was denied the opportunity
to present evidence of his medical damages, the trial court should have ordered sua
sponte a judgment notwithstanding the verdict in his favor, and defendant was not
entitled to costs. He fails to sustain his burden of showing that any of these allegations
constitute reversible error by failing to produce a record and provide citations to support
his assignments of error.
As to his complaint about the tardy disclosure of witnesses, he does not produce
the court’s ruling, name the witnesses he objected to, or demonstrate how he was
prejudiced by the late disclosure. We are at a loss to determine who they were, what the
court ruled, and how the ruling mandates reversal. Left blind, we cannot determine
whether the ruling was in error and, if so, if it prejudiced plaintiff’s case. Moreover,
apparently plaintiff does not understand that the trial court retains broad discretion to
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control the admission of evidence, and therefore he fails to sustain his burden of
demonstrating an abuse of discretion. (Santillan v. Roman Catholic Bishop of Fresno
(2012) 202 Cal.App.4th 708, 727.)
Plaintiff’s complaint about the denial of his request to exclude Officer Devries’
testimony suffers the same deficiency. Plaintiff provides only the minute order, noting
that his motion was denied. He does not provide a record to demonstrate what testimony
he provided or if the officer’s police report was admitted into evidence and, if it was, why
the admission of the evidence was an abuse of discretion. Nor did plaintiff demonstrate
how the testimony or the report resulted in his substantial prejudice.
The pattern continues. He complains he was not allowed to introduce evidence of
his damages. First, the jury absolved defendant of liability as to each of the causes of
damages. As a result, the exclusion of evidence of damages did not prejudice defendant.
But second, the lack of a record precludes our review. Plaintiff fails to include in the
record the list of medical records, evidence they were marked as an exhibit for admission,
the objections he made at trial, and the court’s ruling. In the absence of a record,
plaintiff’s complaint fails.
Without either factual or legal support, plaintiff asserts the trial court had a sua
sponte obligation to grant judgment in his favor notwithstanding a jury verdict to the
contrary. Since plaintiff fails to provide a record of the oral proceedings, we must
conclusively presume that sufficient evidence supports the jury’s factual findings.
(Nielsen, supra, 178 Cal.App.4th at p. 324.)
Finally, plaintiff contends defendant was not entitled to costs because the
memorandum of costs was not verified. It was, however, verified by defendant’s counsel
as allowed by rule 3.1700(a)(1) of the California Rules of Court. In his reply brief, he
adds that defendant did not show that the costs he claimed were reasonably necessary,
and from his point of view, the reporter’s transcript was a mere convenience, not a
necessity. We have no record to assess whether the costs were reasonable, although we
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have no trouble advising plaintiff that the cost of a reporter’s transcript is not only
reasonable but, if included in the record on appeal, would have allowed us to review the
record for the errors he asserts justify a reversal. On the bare bones presented to us, we
must affirm.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
HULL , J.
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