Wong v. Lee CA2/5

Filed 8/12/14 Wong v. Lee CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

LINA WONG, B251401

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. KC062916) v.

THOMAS LEE,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Affirmed. Lina Wong, in Pro. Per., for Plaintiff and Appellant Wong & Mak, Steven W. Hashimoto, Fred A. Wong, for Defendant and Respondent.

The present case involves the purchase of a medical center by appellant Lina Wong (“Wong”) from respondent Thomas Lee (“Lee”). Subsequent to the purchase, Wong sued Lee alleging breach of a written contract and fraud. Both parties having waived their right to a jury trial, the case proceeded as a court trial. After Wong rested her case in chief, Lee moved for a judgment pursuant to Code of Civil Procedure section 631.8. The court granted the motion and on July 10, 2013, entered judgment in favor of Lee. A motion for leave to amend the complaint to conform to proof was heard after judgment was entered and was denied. A motion for new trial was also denied by the court. No reporter’s transcript or an authorized substitute was provided to this reviewing court.

Inadequacy of the Record on Appeal Wong, as the appellant, has the responsibility to ensure that an adequate record of the trial is presented to the reviewing court. The failure to present an adequate record precludes an appellant from raising any evidentiary issues on appeal. (Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102.) In other words, absent an adequate record, the appellate court cannot reach the merits of any claim of error which requires a review of the evidence. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) In numerous situations, appellate courts have declined to reach the merits of an appeal because the lack of a reporter’s transcript or an authorized substitute made it impossible to do so. (See, e.g., Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [hearing on motion for attorney’s fees]; Ballard v. Uribe, supra, 41 Cal.3d at pp. 574-575 [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and minor consented to informal adjudication]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [ruling on a requested jury instruction]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney’s fees sought]; In re Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge