Opinion
B323041
04-23-2024
ROBERT APRAHAMIAN, Plaintiff and Appellant, v. CALIFORNIA CAPITAL INSURANCE COMPANY, Defendant and Respondent.
Keosian Law and Natalie Hairabedian Suri for Plaintiff and Appellant. GladstoneWeisberg, Caroline van Oosterom and Gene A. Weisberg for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV43232 Lia Martin, Judge. Affirmed.
Keosian Law and Natalie Hairabedian Suri for Plaintiff and Appellant.
GladstoneWeisberg, Caroline van Oosterom and Gene A. Weisberg for Defendant and Respondent.
ZUKIN, J.
INTRODUCTION
On April 20, 2020, plaintiff Robert Aprahamian died. Almost seven months later, a complaint was filed by plaintiff against defendant California Capital Insurance Company (California Capital). In May 2022, California Capital moved to dismiss the complaint based on lack of standing. After a hearing and argument by the parties, the trial court granted the motion on June 7, 2022. The court subsequently issued an order dismissing the complaint with prejudice. We affirm.
DISCUSSION
On appeal, plaintiff does not dispute he lacked standing to initiate and maintain the action. Instead, plaintiff contends the court should have allowed him to amend the complaint to substitute in a personal representative in his place. Thus, we review the trial court's order granting the motion to dismiss for an abuse of discretion. (Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 747 (Tung).)
Plaintiff has failed to present a record adequate for appellate review. The record on appeal contains no reporter's transcript of the June 7, 2022 hearing or suitable substitute, such as a settled or agreed statement. We also note that there is no minute order of the June 7, 2022 hearing or a written ruling by the trial court explaining its reasoning. "It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) "'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 ....' [Citation.]" (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
The record is defective due to the absence of a record of the oral proceedings in connection with the motion to dismiss. The trial court heard oral argument on the motion. Without a reporter's transcript, or settled or agreed statement, we cannot determine whether the trial court abused its discretion in dismissing the action. "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. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.)" (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Numerous appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. (See Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [citing various California Supreme Court and Court of Appeal opinions applying the rule].) Based on the inadequacy of the record, we affirm the judgment.
On April 2, 2024, we notified the parties of the omission of the reporter's transcript of the June 7, 2022 hearing or a suitable substitute, and directed the parties to address whether the record on appeal is adequate for appellate review. In response, both parties stated the record provided on appeal is adequate for review, as it includes the operative complaint, motion to dismiss, opposition, and reply. California Capital explained that the court's order granting the motion to dismiss raises the legal issue of "standing to sue" and is therefore subject to de novo review. Plaintiff similarly stated the court's order raises "a pure question of law" warranting de novo review, but failed to articulate the legal question presented. As previously stated, plaintiff does not argue on appeal that he has standing to sue, rather that the court should have exercised its discretion to allow him to amend the complaint to substitute a personal representative in his stead. Thus, the proper standard of review for the court's order is an abuse of discretion. (See Tung, supra, 63 Cal.App.5th at p. 747.)
Alternatively, based on the record we have, we would nevertheless affirm the challenged order on the merits. "As a general rule the authority of an attorney to act for his client normally ends with the client's death." (Estate of Lanza (1964) 229 Cal.App.2d 720, 724; Herring v. Peterson (1981) 116 Cal.App.3d 608, 612.) Following plaintiff's death, and with no substituted party in his place, plaintiff's counsel acted without a client in filing and pursuing the complaint. Albeit plaintiff's counsel expressed an intention to amend the complaint, she failed to do so. (See Code Civ. Proc., § 473, subd. (a)(1).) Plaintiff cites no authority to support a request to amend a complaint in his opposition to the motion to dismiss. As a result, we affirm the order granting the motion to dismiss the complaint with prejudice.
DISPOSITION
We affirm the judgment. Costs on appeal are awarded to California Capital.
WE CONCUR: CURREY, P. J. COLLINS, J.