Filed 10/29/19 Selim v. Pham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

MOUSTAFA SELIM et al.,

Plaintiffs and Appellants,

v.

TAI DUC PHAM,

Defendant and Respondent.

G056812

(Super. Ct. No. 30-2015-00773886)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed.

Shahnaz Hussain for Plaintiffs and Appellants.

Horton, Oberrecht, Kirkpatrick & Martha, Cheryl A. Kirkpatrick and Fang Li for Defendant and Respondent.

* * *

 

The Selim family sued their landlord, defendant Tai Duc Pham, for breach of implied warranty of habitability, personal injuries, and other claims related to alleged pest infestations of the home they rented from Pham for six years. Essentially, the Selims claimed Pham belatedly treated the infestations himself, rather than hire a professional exterminator, and his use of toxic chemicals inside the house caused them to suffer personal injuries and failed to cure the infestations.

After a jury rendered a defense verdict on all counts, the Selims moved for a new trial, arguing the trial court abused its discretion in making three evidentiary rulings which rendered the trial fundamentally unfair. The trial court denied the motion for new trial. The Selims appeal that order, but their appeal fails for lack of an adequate record. Consequently, we affirm the judgment.

I

BACKGROUND

The Selims proceed on appeal without a reporter’s transcript and with only a partial clerk’s transcript. Their opening brief includes no statement of facts and provides no record citations for the factual summary included in the “Introduction.” We provide the following facts, gleaned from both sides’ appellate briefs, for context only.

For about six years, the Selim family –– four adults and a minor child –– rented a home owned by Pham. At the end of their tenancy, the Selims sued Pham for breach of contract, breach of implied warranty of habitability, premises liability, negligence, and negligent and intentional infliction of emotional distress. At trial, the Selims sought to prove the home was infested with pests, especially cockroaches, throughout their tenancy. They further asserted their landlord Pham refused to hire a professional exterminator and, instead, personally sprayed the inside of the house repeatedly with “Raid sprays and foggers” and other similar products containing toxic chemicals. Plaintiffs contended Pham’s repeated use of these products culminated in an incident in which every family member got sick, and one family member, Hanan Selim, suffered a serious injury to her lungs.

At trial, Pham blamed the vermin infestation on the Selims’ own lack of cleanliness in the kitchen where cooking grease pooled in various spots, and on their generally poor housekeeping. Pham contended he responded to his tenants’ complaints by repeatedly calling in a professional pest company to treat the pest problem. Moreover, Pham’s medical expert testified Hanan Selim’s symptoms resulted from her preexisting and unrelated medical problems, including pneumonia, rather than from chemical exposure.

The nearly month-long jury trial ended in a defense verdict on all counts. Plaintiffs moved for a new trial on grounds of irregularity in the proceedings and abuses of discretion preventing them from obtaining a fair trial. (Code Civ. Proc., § 657, subd. 1.) Along with various “irregularities” detailed in the motion, the Selims contended the trial court abused its discretion in making three evidentiary rulings that kept crucial evidence from the jury. The excluded evidence consisted of: (1) photographs of different brands of pesticides plaintiffs claimed Pham used in the house, (2) expert testimony from a physician’s assistant on the cause of Hanan Selim’s respiratory condition, and (3) rebuttal testimony from an exterminator who already had testified for plaintiffs during their case-in-chief. The trial court denied the motion for new trial.

The Selims did not provide us a reporter’s transcript of the hearing on the new trial motion. Nor does the record include a written order stating the grounds for the trial court’s ruling. The partial clerk’s transcript contains only a minute order that references a posted tentative ruling and states the motion for new trial “is DENIED.”

 

II

DISCUSSION

The Selims argue the trial court erred in denying their new trial motion because the three evidentiary rulings challenged rendered the trial fundamentally unfair. Their appeal cannot succeed, however, because they failed to provide an adequate record.

Error is never presumed on appeal. To the contrary, we presume appealed judgments and orders are correct and task appellants with the burden of overcoming this presumption by affirmatively showing reversible error on an adequate record. (Jameson v. Deesta (2018) 5 Cal.5th 594, 609.) ‘““[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.”‘ [Citation.]” (Id. at p. 609; In re Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [appellant’s claim considered abandoned where appellant failed to provide reporter’s transcript of relevant proceeding].)

In reviewing the denial of a motion for new trial, we review “the entire record, including the evidence,” to determine independently whether there was prejudicial error justifying a new trial. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161 (Sherman).) “Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’ [Citation.]” (Ibid.; see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [court declined to reach merits of cross-appeal from order denying motion for new trial because, with no reporter’s transcript or settled statement of pertinent proceedings, “we have no way of ascertaining whether it is reasonably probable that either the alleged juror misconduct or the instructional error affected” the judgment].)

In this case, an “adequate record” necessarily included a reporter’s transcript. That is because the only errors asserted on appeal concern the trial court’s discretionary rulings excluding evidence proffered by the Selims. Case law recognizes a reporter’s transcript is often “indispensable” in an appeal involving abuse of discretion. As the court explained in Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476 (Flannery): “‘[I]t is appellant’s burden to provide a reporter’s transcript if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court[]” (Cal. Rules of Court, rule 8.120(b)) . . . .’ [Citation.] A reporter’s transcript may not be necessary if the appeal involves legal issues requiring de novo review. (See, e.g., Chodos v. Cole (2012) 210 Cal.App.4th 692, 698-700 [transcript not necessary for de novo review of order granting an anti-SLAPP motion].) In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter’s transcript or an agreed or settled statement of the proceedings will be indispensible. (See, e.g., . . . Vo. v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440 (Vo) [‘The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion’].” (Flannery, supra, 5 Cal.App.5th at p. 483.)

The Selims complain of three evidentiary orders: the order excluding five photographs of pesticide products (“sprays and foggers” they purchased after moving out of the house) which they contended were “very similar” to the products Pham used inside their home; the order preventing physician’s assistant Suheir Kilani from stating her opinion pesticide exposure caused Hanan Selim’s respiratory condition; and the order precluding rebuttal testimony from an exterminator who already had testified for plaintiffs on their case-in-chief.

As to each of these challenged evidentiary rulings, Pham argues in his respondent’s brief the trial court acted within its discretion and, moreover, even if the rulings were erroneous, none prejudiced plaintiffs’ case. To determine the merits of plaintiffs’ claims of prejudicial error, we must independently review “the entire record, including the evidence[.]” (Sherman, supra, 67 Cal.App.4th at pp. 1160-1161.) We cannot perform that necessary review, however, because the Selims chose not to designate a reporter’s transcript of the trial.

Without knowing the evidence before the jury, we cannot conclude the three rulings excluding other evidence prejudicially impacted plaintiffs’ case. It is the appellant’s burden “to provide a record sufficient to determine whether the result would have been different in the absence of error, and since it did not do so, the trial court’s discretion cannot be disturbed. [Citation.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136.) Because the Selims did not meet their burden to demonstrate prejudicial error in light of “the entire case, including the evidence,” we affirm the order denying the motion for new trial.

 

III

DISPOSITION

The judgment is affirmed. In the interests of justice, each side shall bear its own costs on appeal.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.