Filed 11/21/14 Lindsey v. The County of Riverside CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MICHELLE D. LINDSEY,

         Plaintiff and Appellant,                                        E057335

v.                                                                       (Super.Ct.No. RIC472794)

THE COUNTY OF RIVERSIDE et al.,                                          OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. John Vineyard, Judge.

Affirmed.

         Michelle D. Lindsey, in pro. per., for Plaintiff and Appellant.

         Smith Mitchellweiler and Douglas C. Smith; Arias & Lockwood and

Christopher D. Lockwood for Defendants and Respondents.




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        Plaintiff and appellant Michelle D. Lindsey, who represents herself in pro. per.,1

brought suit against her former employer and various managers or supervisors, claiming

discrimination, retaliation, denial of leave, and other employment-related causes of

action. On August 22, 2012, following a bench trial, the trial court entered judgment in

favor of defendants and respondents County of Riverside (County), Ron Komers, and

Tom Prescott (collectively, defendants), and against plaintiff, having granted defendants’

motion for judgment pursuant to Code of Civil Procedure section 631.8, with respect to

all causes of action.2 Plaintiff appeals from that judgment, contending it should be

reversed because she “established a prima facie case” for certain causes of action, and the

court erred by granting an “oral in limine motion” by defendants to exclude certain

“evidence and testimony as to Defendants’ denial of Lindsey’s due process appeal

claims . . . .”.

        Though the parties’ arguments are more expansive, we need discuss only a single

issue: the adequacy of the record on appeal. Although plaintiff has lodged a voluminous




        1Plaintiff identifies herself as “Michelle D. Lindsey, J.D., In Pro Per” in her
briefing on appeal. Despite the “J.D.,” she is apparently not admitted to practice law in
California; in any case, she has provided no information that might establish she is a
licensed attorney, such as a state bar number.

        2  Two other defendants, Barbara Olivier and John Mooney, were separately
granted summary judgment in their favor on April 27, 2012. But no judgment or order of
dismissal with respect to those defendants was entered by the trial court. Our order,
issued December 20, 2012, ruled that this appeal would proceed only as to the parties
listed in the judgment appealed; we name those defendants in the text above.


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clerk’s transcript,3 the record is nevertheless inadequate for this court to evaluate her

claims of error. To address plaintiff’s contentions on their merits would require review

of oral proceedings in the trial court, which are entirely absent from the record. As such,

we must presume the judgment correct.

                     I. FACTS AND PROCEDURAL BACKGROUND

       Plaintiff is a former County employee who was terminated in April 2007 after

approximately seven years of service. She brought suit on June 5, 2007. The operative

Second Amended Complaint, filed May 19, 2008, alleges discrimination, retaliation,

harassment, denial of leave, and failure to take necessary remedial action under various

legal theories.

       The trial court granted summary judgment in favor of two named defendants (see

fn. 2), as well as summary adjudication with respect to several causes of action, in an

order filed April 27, 2012. The parties stipulated to a bench trial of plaintiff’s surviving

claims. That trial took place over eight days in June 2012.

       On June 20, 2012, after plaintiff rested, defendants brought an oral motion for

judgment pursuant to Code of Civil Procedure section 631.8. The trial court granted

defendants’ motion, explaining the reasons for its ruling orally for the record. On

July 10, 2012, the court adopted a statement of decision prepared by defendants,

overruling plaintiff’s objections thereto. The judgment appealed from was filed on

August 22, 2012.


       3   The clerk’s transcript consists of 22 volumes and over 6,000 pages.

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                                     II. DISCUSSION

A. Standard of Review

       “The most fundamental rule of appellate review is that a judgment is presumed

correct, all intendments and presumptions are indulged in its favor, and ambiguities are

resolved in favor of affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th

266, 286 (City of Santa Maria).)

       “‘In general, in reviewing a judgment based upon a statement of decision

following a bench trial, “any conflict in the evidence or reasonable inferences to be

drawn from the facts will be resolved in support of the determination of the trial court

decision. [Citations.]” [Citation.] In a substantial evidence challenge to a judgment, the

appellate court will “consider all of the evidence in the light most favorable to the

prevailing party, giving it the benefit of every reasonable inference, and resolving

conflicts in support of the [findings]. [Citations.]” [Citation.] We may not reweigh the

evidence and are bound by the trial court’s credibility determinations. [Citations.]

Moreover, findings of fact are liberally construed to support the judgment.’” (Cuiellette

v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765, quoting Estate of Young (2008)

160 Cal.App.4th 62, 75-76.)

       “The appellant has the burden of furnishing an appellate court with a record

sufficient to consider the issues on appeal. [Citation.] An appellate court’s review is

limited to consideration of the matters contained in the appellate record.” (People v.

Neilson (2007) 154 Cal.App.4th 1529, 1534.) In the absence of an adequate record to



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support the appellant’s claim of error, “we presume the judgment is correct.” (Stasz v.

Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)

B. The Record on Appeal Is Inadequate to Address Plaintiff’s Claims of Error on

Their Merits.

       California Rules of Court, rule 8.830, provides that “[i]f an appellant wants to

raise any issue that requires consideration of the oral proceedings in the trial court, the

record on appeal must include a record of these oral proceedings . . . .” (Calif. Rules of

Court, rule 8.830(a)(2).) Most commonly, a reporter’s transcript serves as such a record,

but the rule also provides for other options, such as an agreed statement under rule 8.836,

or a statement on appeal under rule 8.837. (Calif. Rules of Court, rule 8.830(a)(2).)

       Each of plaintiff’s claims of error requires consideration of oral proceedings in the

trial court. She contends that the trial court erred by granting an “oral in limine motion”

to exclude certain evidence and testimony. She further contends that the trial court’s

findings as trier of fact—that she had failed to prove any of her asserted causes of

action—were not supported by the evidence; evidence that included days of oral

testimony by defendants Ron Komers and Tom Prescott, as well as plaintiff’s own

testimony.

       Nevertheless, the record on appeal contains no record of any oral proceedings

below. There is no transcript of the proceedings at trial, because the parties waived

having a court reporter. The trial court ordered a court reporter to transcribe the hearing

in which it orally stated the reasons for its decision on defendants’ motion for judgment.

But plaintiff did not designate that transcript as part of the record on appeal. Nor did she

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utilize any of the alternative methods for submitting a record of oral proceedings

authorized by the Rules of Court.

       We cannot review the purported “oral in limine motion” absent a transcript of

what exactly the defendants asked the court to do, any opposition that plaintiff may have

raised, and how the court ruled.4 Similarly, we cannot review whether there is substantial

evidence in support of the trial court’s findings of fact concluding that plaintiff failed to

prove her case absent a complete record of the evidence considered by the trial court. To

the extent the record we have does not reveal substantial evidence in support of the

judgment, we would have to presume such evidence was contained in the missing

portion. (See City of Santa Maria, supra, 211 Cal.App.4th at p. 286; see Buckhart v. San

Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [“‘“[I]f any

matters could have been presented to the court below which would have authorized the

order complained of, it will be presumed that such matters were presented.”’”].)

       In short, plaintiff has failed to meet her burden of submitting a record sufficient to

consider the issues she raises on appeal. On that basis alone, the judgment must be

affirmed. We therefore decline to discuss the merits of any other issues raised in the

parties’ briefing.

       4  We note that the court’s minutes do not reflect any such oral motion, or any
ruling thereon. Defendants speculate that plaintiff may mean to refer to a written motion
in limine, granted by the court without opposition from plaintiff. In the section of her
opening brief addressing the “oral motion in limine,” however, plaintiff does not cite to
that written motion, or the court’s ruling thereon. In any case, plaintiff has failed to
supply us “with some cogent argument supported by legal analysis and citation to the
record,” and thus has failed to demonstrate any error. (City of Santa Maria, supra, 211
Cal.App.4th at pp. 286-287.)

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                                   III. DISPOSITION

      The judgment appealed from is affirmed. Defendants shall recover costs on

appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                           HOLLENHORST
                                                                    Acting P. J.
We concur:

      MCKINSTER
                              J.

      CODRINGTON
                              J.




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