Filed 11/16/15 Qin v. Xu CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


JACK QIN,                                                            B258136

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KC061503)
         v.

JENNY GY XU,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Donna
Fields Goldstein, Judge. Affirmed.
         Jenny Xu, in pro. per., for Defendant and Appellant.
         Ecoff Law and Lawrence C. Ecoff for Plaintiff and Respondent.




                                  ________________________________
       Defendant and Appellant Jenny Xu appeals from the judgment entered against her
after a jury trial. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On June 20, 2011, Plaintiff/Respondent Jack Qin filed a complaint suing Jenny Xu
for defamation. Qin filed a first amended complaint on November 4, 2011, adding a
cause of action for intentional infliction of emotional distress. The matter came to trial
before a jury on March 24, 2014 and the jury returned its verdict for Qin. The parties
then tried the issue of punitive damages to the court, and the court entered judgment in
the amount of $250,000, with a cost award of $15,620.56 on June 18, 2014. Xu moved
for a new trial; the court heard and denied the motion on August 8, 2014. Xu timely
appealed the judgment.
       The complaint in this matter followed earlier proceedings in which Qin had sued
Xu for defamation and abuse of process (LASC GC046007) and Xu had separately
sought a restraining order for sexual harassment (LASC GS012743). Xu filed a motion
to dismiss in GC046007 pursuant to Code of Civil Procedure section 425.161; the court
granted that motion and awarded Xu fees and costs as the prevailing party in the sum of
$8,690.50.
       On appeal, Xu now asserts that the current proceeding was also barred by section
425.16, and the litigation privilege (Civ. Code, § 47, sub. (b).); that Qin’s evidence was
improperly admitted; that Qin committed discovery abuse; that the action was per se
malicious prosecution; that hearsay was improperly admitted at trial; that the judge
violated the American Bar Association Rules of Professional Conduct; and that there was
insufficient evidence to support the verdict. As explained below, the record on appeal
does not support any of the claimed grounds for appeal, and we affirm.




1     All further statutory references, unless otherwise noted, are to the Code of Civil
Procedure.

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                                       DISCUSSION
         The Failure to Provide A Record of the Trial Proceedings Precludes
         Review

         On appeal, we presume that the judgment was correct; it is appellant’s burden to
demonstrate error by providing a record sufficient to do so. We begin with the
presumption that the orders and judgment below are correct and “‘all intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown.’” (Denham v. Superior Court of Los Angeles County
(1970) 2 Cal.3d 557, 564; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296
[failure to provide adequate record requires appellant’s claims to be resolved against
them]; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [court presumes judgment
is correct based on appellant’s failure to provide reporter’s transcript and to include
necessary documents in the record on appeal].) On appeal, Xu has provided only two
limited portions of the record of the proceeding: a portion of the examination of Qin, and
the hearing on the motion for new trial. The remainder of the testimony was not made
part of the record before this court. Similarly, only small portions of the proceedings
were included in the appellant’s appendix provided in lieu of a clerk’s transcript.

         Sufficiency of the Evidence
         We cannot consider Xu’s argument that the evidence was not sufficient to support
the verdict. The failure to provide a full transcript of the trial proceedings precludes this
court from evaluating the sufficiency of the evidence introduced at trial; Xu has failed to
meet her affirmative duty to demonstrate the error she claims. (Aguilar v. Avis Rent A
Car System, Inc. (1999) 21 Cal.4th 121, 132 [failure to present transcript leaves no basis
to argue insufficiency of evidence]; Parker v. Harbert (2012) 212 Cal.App.4th 1172,
1178.)




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       Evidentiary Rulings
       For the same reason, we cannot address Xu’s assertions that evidence was
improperly admitted. Trial court rulings on the admissibility of evidence, whether in
limine or during trial, are generally reviewed for abuse of discretion. (People v. Williams
(1997) 16 Cal.4th 153, 196-197 [“In determining the admissibility of evidence, the trial
court has broad discretion…. On appeal, a trial court’s decision to admit or not admit
evidence, whether made in limine or following a hearing pursuant to Evidence Code
section 402, is reviewed for abuse of discretion.”]; accord, People v. Alvarez (1996) 14
Cal.4th 155, 203 [“appellate court reviews any ruling by a trial court as to the
admissibility of evidence for abuse of discretion”]; Zhou v. Unisource Worldwide, Inc.
(2007) 157 Cal.App.4th 1471, 1476. “The trial court’s error in excluding evidence is
grounds for reversing a judgment only if the party appealing demonstrates a ‘miscarriage
of justice’—that is, that a different result would have been probable if the error had not
occurred.” Zhou, at p. 1480, see Evid. Code, § 354; Code Civ. Proc., § 475. Pannu v.
Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.)
       In this case, Xu claims two evidentiary errors. As to the first, the admission of an
American Express statement introduced in support of Qin’s testimony that he was in Las
Vegas at the time of the asserted sexual encounter in Los Angeles; the testimony in the
record before us demonstrates that Qin testified without objection to the information
contained in the credit card statement; Xu objected only to the statement itself.
Accordingly, even if the statement should not have been admitted, there can be no
prejudice, as the information contained in the statement would have been before the jury
in any event. Moreover, we cannot evaluate the impact of the statement on the jury in the
absence of the other evidence.2 (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136



2      In an apparently related claim, Xu asserts sanctionable abuse of the discovery
process with respect to the failure to produce the American Express statement to which
she objected. The record contains no discovery motions, nor any indication that motions
were filed at any time. Xu has provided no record establishing a basis for asserting this
argument on appeal. Xu asserted at oral argument that this matter should be continued

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[burden on appellant to provide sufficient record of proceedings in the trial court to
demonstrate result would have been different in the absence of claimed error].)
       The other evidentiary objection cited on appeal was the admission of hearsay
testimony from witness Lily Fang. Xu provided no transcript of this portion of the
proceedings; we cannot determine what the testimony was; whether objections were
made; or the basis for any rulings by the court. On this record, for the reasons stated
above, we presume the trial court’s rulings were correct.

       Section 425.16 and The Litigation Privilege
       Xu argues that the complaint should have been stricken, as was the complaint in
the prior case, under section 425.16. If Xu filed such a motion in the trial court, there is
no reference to the motion, or any ruling on it, in the record. “Appealed judgments and
orders are presumed correct, and error must be affirmatively shown.” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, plaintiff has the burden of
providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure
to provide an adequate record on an issue requires that the issue be resolved against
plaintiff. (Id. at pp. 1295-1296.) “Without respondent’s motion to strike, plaintiff’s
opposition, and the court’s order, we cannot review the basis of the court’s decision.
Plaintiff has failed to carry his burden on this ruling.” (Hernandez v. California Hospital
Medical Center (2002) 78 Cal.App.4th 498, 502, fn. omitted.)
       If Xu is attempting to assert that this court should reverse the judgment on the
basis of a de novo analysis under section 425.16, we find no basis for doing so. A section
425.16 motion must be filed in the trial court, within 60 days of service of the complaint
or at a later time in the court’s discretion. (Code of Civ. Proc., § 425.16, subd. (f).)
Nothing in the language of the statute contemplates that, on appeal, appellant can assert
for the first time that a judgment should be reversed because there would have been



for the purpose of this court’s review of the trial exhibit. For the reasons stated, our
inability to evaluate the significance of this document makes such a continuance
unnecessary.

                                              5
grounds to grant a motion under 425.16, had one been properly made. Appellant cites no
authority supporting that position in her briefing. We therefore treat the argument as
waived by appellant’s failure to cite any relevant legal authority. (See Akins v. State of
California (1998) 61 Cal.App.4th 1, 50 [contention waived by failure to cite legal
authority]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [a point asserted by
appellant without argument or authority need not be discussed by reviewing court].)
       For the same reason, we treat as waived appellant’s assertion that the entire action
was barred by the litigation privilege (Civ. Code, §47, sub. (b).) Appellant has provided
to us no record that demonstrates that she raised this issue in the trial court, or objected to
the admission of any evidence on this basis. Appellant may not raise this issue for the
first time on appeal. (See People v. Valdez (2012) 55 Cal.4th 82, 122; In re Marriage of
Zimmerman (2010) 183 Cal.App.4th 900, 912 “[I]t is fundamental that a reviewing court
will ordinarily not consider claims made for the first time on appeal which could have
been but were not presented to the trial court.” Thus, “we ignore arguments, authority
and facts not presented and litigated in the trial court. Generally, issues raised for the
first time on appeal which were not litigated in the trial court are [forfeited].
[Citations.]”’” [Citation.]’ [Citation.]”.)

       Malicious Prosecution
       Xu appears to argue that the judgment should be reversed on appeal because the
entire action was a form of malicious prosecution. She cites no authority supporting her
claim that this issue can be raised as a ground for appeal by the party against who
judgment has been entered; in fact, her argument is in direct conflict with one of the
critical elements of the claim: that the action asserted to have been brought with malice
was terminated in favor of the party asserting the claim for malicious prosecution. “[I]n
order to establish a cause of action for malicious prosecution or either a criminal or civil
proceeding, a plaintiff must demonstrate ‘that the prior action (1) was commenced by or
at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s
favor, [citations]; (2) was brought without probable cause [citations]; and (3) was


                                               6
initiated with malice. [citations].’” (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th
336, 341, 9 Cal.Rptr.3d 97, 83 P.3d 497 (Casa Herrera).)” (Siebel v. Mittlesteadt (2007)
41 Cal.4th 735, 740.)

       Rules of Professional Responsibility
       Xu finally asserts that the comments by the trial court at trial, and at the motion for
new trial, amounted to improper vouching for Qin’s credibility, and that those actions
violated the American Bar Association Model Rules of Professional Conduct and People
v. Tyler (1991) 233 Cal.App.3d 1456 (Tyler). Her arguments do not support reversal.
       First, the Model Rules have not been adopted in California. In any event, those
rules govern the conduct of counsel, not the court.
       Second, Tyler does not support Xu’s claim of error. In Tyler, appellant challenged
a comment by the trial court to the jury that it was improper for counsel to express an
opinion about the innocence of the defendant. On appeal, the court concluded that the
remarks by the court were neither improper nor prejudicial and that the objection had, in
any event, been waived by the failure to object when the statements were made. (Tyler,
supra, 233 Cal.App.3d at 1460.) Here, too, no objection was made to the court’s
statements, only one of which was made when the jury was present. Such an objection
would have allowed the court to advise the jury that the remarks were not intended to
convey a conclusion by the court as to credibility.3 The failure to object, however, as set
forth above, waives the claim of error.




3       The second comment by the trial court was made during the hearing on the motion
for new trial. Appellant identified no other claims of error related to the new trial
determination until the reply brief. Assertions of error made for the first time in a reply
brief are waived. (Los Angeles Memorial Coliseum v. Insomniac, Inc. (2015) 233
Cal.App.4th 803, 822.

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                                  DISPOSITION

     The judgment is affirmed. Respondent is to recover his costs on appeal.




                                             ZELON, J.




We concur:




     PERLUSS, P. J.




     SEGAL, J.




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