Filed 6/11/15 Victor Treatment Centers v. Troutman 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----



VICTOR TREATMENT CENTERS, INC.,                                                              C075103

                   Plaintiff and Respondent,                                       (Super. Ct. No. 175489)

         v.

KRISTINA TROUTMAN,

                   Defendant and Appellant.




         After the Labor Commissioner entered an award against plaintiff Victor Treatment
Centers, Inc. (VTC) and in favor of defendant Kristina Troutman for $38,741.30 in
wages, liquidated damages, and interest, VTC sought a trial de novo in the superior court.
After a court trial, the superior court entered judgment in favor of VTC, from which
Troutman appeals.
         On appeal, Troutman makes contentions that require a review of the entire record,
including the testimony presented at trial. However, she has provided no reporter’s



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transcript, agreed statement, or settled statement for us to review the testimony from trial.
This procedural failing is fatal to Troutman’s contentions on appeal. Without a proper
record to review the judgment, we must presume the judgment was correct. We therefore
affirm the judgment.
                                     BACKGROUND
       VTC runs residential treatment homes for emotionally disturbed children and
young adults. Troutman was employed by VTC as a residential services supervisor
responsible for managing one of the VTC homes.
       In 2012, Troutman filed a complaint with the Labor Commissioner’s Office,
alleging that her employer, VTC, improperly treated her as an exempt employee not
entitled to overtime pay. After a hearing, the Labor Commissioner found that Troutman
was nonexempt and thus entitled to overtime pay because Troutman “spent a majority of
her time (more than 50 percent) engaged in duties of manual work or direct care.” The
Labor Commissioner awarded Troutman $28,519.47 in wages, $8,741.60 in liquidated
damages under the Labor Code, and $1,480.23 in interest.1
       VTC filed a notice of appeal de novo in the superior court. Over the course of
several days, the superior court conducted a trial without a jury during which the parties
provided documentary and testimonial evidence. After trial, neither party requested a
statement of decision, so the trial court entered judgment. It concluded that Troutman’s
position at VTC as a residential services supervisor was exempt from overtime pay. The
court therefore vacated the Labor Commissioner’s award and entered judgment in favor
of VTC.




1      Because Troutman does not provide an adequate record for us to review the
superior court judgment, we need not discuss the law regarding exempt and nonexempt
employees.

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       Troutman filed a notice of appeal from the superior court’s judgment. In her
notice designating the record on appeal, Troutman checked the box indicating that she
elected to proceed “WITHOUT a record of the oral proceedings in the superior court. I
understand that without a record of the oral proceedings in the superior court, the Court
of Appeal will not be able to consider what was said during those proceedings in
determining whether an error was made in the superior court proceedings.”
                                         DISCUSSION
       In her opening brief, Troutman contends that, based on the evidence at trial, the
superior court committed error when it found in favor of VTC. In support, she claims the
superior court misapplied the burden of proof, misinterpreted the law, and based its
conclusion on insubstantial evidence. She also claims that, if she prevails, she is entitled
to an award of attorney fees. Each of these contentions requires us to consider the
evidence presented at trial. For example, even if we assume for the purpose of argument
that Troutman is correct that the superior court misapplied the burden of proof or
misinterpreted the law, we must determine whether those asserted errors were prejudicial,
and that requires us to consider the entire record of the trial.
       “No judgment shall be set aside, or new trial granted, in any cause, on the ground
of misdirection of the jury, or of the improper admission or rejection of evidence, or for
any error as to any matter of pleading, or for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13, italics added.)
       “It is axiomatic in appellate review that a judgment of a lower court is presumed
correct. [Citations.] This presumption has special significance when, as in the present
case, the appeal is based upon the clerk’s transcript [or the original superior court file].
‘It is elementary and fundamental that on a clerk’s transcript appeal the appellate court
must conclusively presume that the evidence is ample to sustain the findings, and that the

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only questions presented are as to the sufficiency of the pleadings and whether the
findings support the judgment.’ [Citations.]” (Ehrler v. Ehrler (1981) 126 Cal.App.3d
147, 154.)
       Even when there is no reporter’s transcript because there was no court reporter
present at trial, the appellant bears the burden of providing an adequate record for review.
To that end, the appellant may seek an agreed or settled statement. (Cal. Rules of Court,
rules 8.134 & 8.137.)
       “The reviewing court will presume that the record in an appeal includes all matters
material to deciding the issues raised. If the appeal proceeds without a reporter’s
transcript, this presumption applies only if the claimed error appears on the face of the
record.” (Cal. Rules of Court, rule 8.163.) Troutman argues that the claimed errors
appear on the face of the record. However, the necessary prejudice analysis must include
a consideration of the evidence at trial. (Cal. Const., art. VI, § 13.) And we cannot make
that analysis without a reliable record of the testimonial evidence. Therefore, even if we
assume for purpose of argument that the trial court erred, we must presume the evidence
at trial rendered any error harmless.
       As Troutman acknowledged in her briefing, this case is fact-intensive. In her
opening brief, she wrote that “[t]he determination of whether an exemption applies
requires a fact-intensive inquiry. [Citations.]” Also in her opening brief, Troutman
wrote: “VTC provided no evidence at trial, documentary or otherwise, to prove that
[Troutman] (1) was required to supervise the Clinician at her House (Curtis Barwick);
(2) actually hired or fired any other employee in the VTC organization, or (3) had
disciplinary concerns about any employee which resulted in immediate action being
taken.” (Original italics.) Without a reporter’s transcript of the trial, we cannot verify
this statement. It is an assertion with no support, in violation of the Rules of Court. (Cal.
Rules of Court, rule 8.204(a)(1)(C).) Elsewhere, Troutman claims: “[VTC] provided no
evidence that [Troutman] fully met the [requirements to be classified as an exempt

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employee].” Without a reporter’s transcript of the trial, we also cannot verify this
statement.
        Tellingly, Troutman, in her reply brief on appeal, accuses VTC of misrepresenting
trial testimony in its respondent’s brief on appeal. She asserts: “This is an outright
fabrication of the testimony at trial, and [VTC] has no ability to reference evidence to the
Appellate Court to support the same.” The last statement, that VTC cannot support its
representations about the trial evidence, is true because Troutman has failed to provide an
adequate record. If we cannot know what happened at trial, we cannot know what
representations about the testimony at trial are true or false. But Troutman tries to lay the
blame for the lack of a reporter’s transcript on VTC: “[VTC] had an opportunity to
arrange for a court reporter to record the trial testimony for use in this appeal, but failed
to do so . . . .”
        Troutman’s assertions concerning the absence of an adequate record on appeal
reveal her basic misunderstanding of appellate procedure. Because the superior court’s
judgment is presumed correct on appeal, the appellant (1) has the burden to overcome
that presumption, regardless of who had the burden of proof in the trial court, and (2) has
the corollary burden to provide a record sufficient for this court to review the proceedings
and conclude that the superior court’s judgment must be reversed. That there was no
court reporter at the trial does not relieve an appellant of this burden. Indeed, other
procedures are available to provide a record to the appellate court when there was no
court reporter, such as an agreed or settled statement. Troutman did not pursue those
alternatives here. Having failed to do so, she cannot lay the blame of an inadequate
record on anyone but herself.
        We therefore conclude that Troutman’s contentions on appeal are without merit
because she has failed to provide an adequate record for review of those contentions.




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                                    DISPOSITION
       The judgment is affirmed. VTC is awarded its costs on appeal. (Cal. Rules of
Court, rule 8.278(a).)



                                                     NICHOLSON            , Acting P. J.



We concur:



      HULL                 , J.



      MURRAY               , J.




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