What is the burden of proving error on appeal?

California, United States of America


The following excerpt is from Deen v. Fisler, G038907 (Cal. App. 6/27/2008), G038907 (Cal. App. 2008):

"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]" (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Plaintiff, as the appellant, "has the burden of overcoming this presumption by affirmatively showing error on an adequate record . . . ." (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) "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." (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics omitted.)

In this case, plaintiff appeals only on his appellant's appendix and the reporter's transcripts of the hearings on the new trial and attorney fee motions. He failed to designate the reporter's transcript of the trial proceedings as part of the record on appeal and made no effort to provide us with that transcript even after defendant noted the deficiency in her respondent's brief. Without the transcript, it is impossible for us to evaluate plaintiff's contention the new evidence he presented in his new trial motion "was sufficient to establish the facts necessary for the trial court to enter judgment for specific performance in favor of [him]" (see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132) because there is nothing to compare it to. Under these circumstances, we must "presume[] that the unreported trial testimony would demonstrate the absence of error. [Citation.]" (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)

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