Filed 4/10/20 Rodriguez v. FCA US LLC 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MIGDO RODRIGUEZ,

Plaintiff and Appellant,

v.

FCA US LLC,

Defendant and Respondent.

B292838

(Los Angeles County

Super. Ct. No. BC658237)

APPEAL from an order of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed.

Century Law Group, Edward O. Lear and Rizza Gonzales, for Plaintiff and Appellant.

Nixon Peabody, Jennifer A. Kuenster; Law Office of David Tennant, David H. Tennant and Kathy L. Eldredge, for Defendant and Respondent.

Appellant Migdo Rodriguez (Rodriguez) sued FCA US LLC (FCA), the manufacturer of a Chrysler vehicle he purchased. Rodriguez alleged FCA violated the Song-Beverly Consumer Warranty Act, often referred to as California’s “lemon law.” After trial on Rodriguez’s complaint, a jury rendered a defense verdict on all counts. Rodriguez then filed a motion for new trial, which the trial court denied. We are asked to consider—on the sparse record presented on appeal—whether the trial court erred in denying the new trial motion.

I. BACKGROUND

In January 2015, Rodriguez purchased a 2015 Chrysler 200. Over the next two years, he experienced various issues with the vehicle that had him repeatedly bringing it in for repairs. These repairs included replacement of the vehicle’s transmission, battery, rear camera, radio, and parts of the braking system. There were also several occasions on which Rodriguez complained of noises coming from the vehicle or a coolant smell, none of which technicians could duplicate. Frustrated with the vehicle’s issues, Rodriguez stopped making payments on the vehicle loan he obtained and his Chrysler 200 was eventually repossessed.

Rodriguez later filed a lawsuit alleging three causes of action against FCA under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.): breach of express warranty, breach of the implied warranty of merchantability, and breach of the duty to timely complete repairs to the vehicle. At the trial on the complaint that ensued, the main point of contention was whether the vehicle repairs took more than 30 days as required for Song-Beverly Act remedies to apply. (Civ. Code, § 1793.2, subd. (b).) Two expert witnesses and an FCA representative testified about various vehicle repair orders in an attempt to establish the dates the repairs were completed.

After presentation of evidence and argument over three days, the jury returned verdicts against Rodriguez on each of his claims. Rodriguez then moved for a new trial, arguing the judgment resulted in a miscarriage of justice because the evidence was insufficient to justify the verdict and the verdict was contrary to law. Rodriguez’s new trial motion specifically contended the evidence “showed unequivocally” that the repairs to his vehicle were not completed within 30 days even when interpreting “the repair orders and testimony most favorable to FCA.” The trial court denied Rodriguez’s motion for new trial at a hearing we cannot further describe because no transcript of the hearing is included in the record.

II. DISCUSSION

Rodriguez argues the trial court abused its discretion in denying his new trial motion by failing to “engage in a review of the conflicting evidence” concerning the timing of the vehicle’s repairs. His argument fails in light of the inadequate appellate record.

We presume a trial court’s judgment is correct, and “‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) An appellant has the burden to affirmatively demonstrate error through an adequate record. (Ibid.; see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (plur. opn. of Grodin, J.).)

The record before us includes the trial court’s minute order for the motion for new trial hearing, but it does not include a reporter’s transcript of the hearing (although a reporter was apparently present) or a settled or agreed statement memorializing what occurred. Without an adequate record memorializing the proceedings at the pertinent hearing, we do not know the trial court’s reasons for denying the motion, nor can we assess the merits of Rodriguez’s contention that the trial court’s rationale was an abuse of its discretion. The record is accordingly inadequate to overcome the presumption of correctness that attaches to the trial court’s motion for new trial ruling. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; see also Rhule v. WaveFront Tech., Inc. (2017) 8 Cal. App.5th 1223, 1229 & fn. 5.)

DISPOSITION

The trial court’s order is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.