Filed 12/16/14 Griggs v. Branca CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



KIMBERLY GRIGGS,                                                     B252194

         Plaintiff and Appellant,                                    (Los Angeles County Super. Ct.
                                                                      No. BC491918)
         v.

JOHN BRANCA et al., as Co-Executors,
etc.,

         Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles, Mitchell L.
Beckloff, Judge. Affirmed.
         Kimberly Griggs, in pro. per., for Plaintiff and Appellant.
         Kinsella Weitzman Iser Kump & Aldisert, Howard Weitzman, Jeremiah T.
Reynolds, Katherine T. Kleindienst, for Defendants and Respondents.
                                  ________________________________
       Plaintiff Kimberly Griggs appeals from the June 3, 2013 order of dismissal of her
complaint against defendants and respondents John Branca and John McClain, Executors
of the Estate of Michael J. Jackson. We affirm because Griggs has failed in several
respects to present a record adequate for appellate review.
       The record on appeal contains no reporter’s transcript or suitable substitute, such
as a settled or agreed statement. The clerk’s transcript consists of the following
documents: (1) the Los Angeles Superior Court case summary; (2) notice that Griggs’s
action is transferred, apparently from the San Diego Superior Court, to the probate
department of the Los Angeles Superior Court; (3) a second amended complaint; (4) the
June 3, 2013 judgment entered after a hearing on defendants’ motion to dismiss Griggs’s
action for failure to file an amended complaint; (5) notice of entry of judgment; and (6)
the notice of appeal indicating Griggs’s intent to proceed by clerk’s transcript without a
record of oral proceedings.
       According to the briefs of the parties on appeal, the trial court on January 8, 2013,
sustained a demurrer to Griggs’s second amended complaint with leave to amend. A
hearing was held on March 27, 2013, on defendants’ motion to dismiss for failure to file
an amended complaint. The court, after considering the written motion to dismiss and
oral argument, granted the motion and dismissed the action with prejudice. The
judgment of dismissal was signed on June 3, 2013.
       “It is well settled, of course, that a party challenging a judgment has the burden of
showing reversible error by an adequate record. [Citation.]” (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 . . . .’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 712.)
       The clerk’s transcript is defective in two respects. First, it does not include the
trial court’s ruling on the demurrer to the second amended complaint. Second,
defendants’ motion to dismiss, which was granted and served as the basis for the



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dismissal, is also absent from the record. Without these essential documents, we cannot
determine if the dismissal was properly entered.
          The record is also 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 to dismiss. 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.)” (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Numerous appellate court 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 Const. 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. Costs on appeal
are awarded to defendants.




                 KRIEGLER, J.


We concur:




                 TURNER, P. J.                             GOODMAN, J. *



          *
        Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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