Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC301608, Brett C. Klein, Judge.
George Baltaxe for Plaintiffs and Appellants.
KRIEGLER, J.
Tharpe & Howell, Paul V. Wayne and Gregory W. Bayless for Defendant and Respondent.
Plaintiffs and appellants Tamara Grigoryan and Rima Manasserian appeal from the judgment entered in favor of defendant and respondent Sarkis Sarkissian in their action alleging breach of the warranties of habitability and quiet enjoyment, negligent maintenance, violation of the Fair Housing Act (42 U.S.C. § 3601), sexual harassment, intentional infliction of emotional distress, and violation of Business and Professions Code section 17200.
Plaintiffs’ sole contention on appeal is that the trial court committed prejudicial error by overruling their in limine motion seeking to bar introduction of evidence of prior litigation instituted by Grigoryan. For the reasons set forth below, we affirm.
DISCUSSION
In their opening brief, plaintiffs argue the trial court erred in denying their in limine motion to exclude evidence of prior litigation filed by Grigoryan. In respondent’s brief, defendant argues plaintiffs had not presented this court with an adequate record to review the merits of the issue due to the absence of a reporter’s transcript of the hearing on the in limine motion. Defendant also points out that the jury instructions are not included in the record on appeal, and as a result, this court would be unable to determine if a limiting instruction had been given. Plaintiffs’ reply brief does not respond to defendant’s argument that the appellate record is inadequate. Defendant is correct – the record on appeal is insufficient for appellate review.
The joint appendix includes plaintiffs’ one page motion in limine to preclude introduction of evidence of other litigation filed Grigoryan. The motion states that Grigoryan was involved in unrelated litigation before the events occurring in this action, and “[t]o mention such lawsuits would be extremely prejudicial and would violate Evidence Code [sections]1101, 1104 and 352.” The motion is not supported by a declaration or exhibits explaining the nature of Grigoryan’s other litigation. The record on appeal does not contain a reporter’s transcript of the hearing on the motion in limine.
Failure to present an adequate record on appeal “precludes an adequate review and results in affirmance of the trial court’s determination.” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) The law is settled that a party challenging a judgment has the burden of providing an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Lincoln Fountain Villas Homeowners Assn v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, fn. 1, 1003; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574-1575.) Error is never presumed on appeal. (Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448; Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th at p. 1575; People v. Fabricant (1979) 91 Cal.App.3d 706, 711.) “It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.] . . . ‘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. . . .’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
The absence of a reporter’s transcript of the hearing on the in limine motion requires affirmance of the judgment. A reporter’s transcript of the hearing on any motion involving factual issues or discretionary rulings is required in order to obtain relief on appeal. (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 156-157 [lack of record of pretrial discovery hearing precludes reversal on appeal because judgment is presumed to be correct]; People v. Fahy (1970) 13 Cal.App.3d 808, 815-816 [lack of reporter’s transcript of motion to suppress precludes appellate review].) We have no means of determining what oral arguments were made to the trial court on the in limine motion, what concessions or stipulations were made, whether a limiting instruction was contemplated by the trial court, or whether the trial court abused its discretion in ruling under Evidence Code section 352. As noted above, we presume the judgment is correct unless the record affirmatively demonstrates otherwise, and no showing of an abuse of discretion has been made on appeal.
Moreover, plaintiffs’ briefs do not set forth the precise nature of the other litigation filed by Grigoryan, nor do their briefs explain how that evidence was prejudicial. (See McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 299, fn. 6 [failure to include a discussion of legal arguments and facts raised in support of a motion results in waiver of the issue on appeal].) “In order to assert a claim of error, appellant must demonstrate that she was aggrieved by the alleged error.” (In re S.C. (2006) 138 Cal.App.4th 396, 414.) “As a general rule, ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular point, the court may treat it as waived.’ [Citation.]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
As defendant points out, the record does not contain the jury instructions. It is not possible for this court to assess the issue of prejudice without knowing if the jury received a limiting instruction on the proper use of the evidence in question. (See People v. Ackles (1956) 147 Cal.App.2d 40, 42-43 [reviewing court presumes jury was properly instructed when the instructions are not included in the record on appeal].) The record also does not contain a reporter’s transcript of the arguments of counsel to the jury or an oral or written version of the jury verdict, all of which preclude any determination that error, if any, was prejudicial to plaintiffs. A judgment may not be reversed on the ground of erroneous admission of evidence unless we find the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) Plaintiffs have failed to demonstrate error or prejudice.
DISPOSITION
The judgment is affirmed. Defendant Sarkis Sarkissian is awarded his costs on appeal.
We concur: TURNER, P. J., MOSK, J.