Glynn v. City of Long Beach

Filed 6/19/07 Glynn v. City of Long Beach CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Roy L. Paul, Judge. Affirmed.

Larry Glynn, in pro. per., for Plaintiff and Appellant.

Robert E. Shannon, City Attorney and Barry M. Meyers, Deputy City Attorney for Defendants and Respondents.

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FACTUAL AND PROCEDURAL BACKGROUND

The following facts are from the clerks transcript. Larry Glynn sued the City of Long Beach and Police Officers Ray Alexander and Sunny Shin asserting violations of Civil Code sections 51.7 and 52.1, subdivision (b). He also asserted causes of action for negligence, intentional infliction of emotional distress, and battery. Glynn alleged that on December 29, 2003, he was driving his wifes car and his preexisting back injury was exacerbated when Officers Alexander and Shin stopped him and searched him.

The City of Long Beach filed a motion in limine to exclude evidence of an internal affairs investigation on the grounds that the results of the investigation were irrelevant to any issue in the case and would prejudice the defendants. The court granted the motion to exclude testimony on internal affairs investigation . . . with the exception of the taped interview of the officers minus certain redaction to be agreed upon by counsel.

The jury found that neither officer subjected Glynn to an unreasonable search or used unreasonable force. Judgment was entered in favor of defendants. Glynn appeals from the judgment.

DISCUSSION

Glynns sole argument on appeal is that the trial court should have admitted evidence of the internal affairs investigation. Glynn has failed to provide an adequate record to review this claim of error because no reporters transcript is included in the record. The absence of a reporters transcript makes it impossible to determine whether the trial court abused its discretion in excluding portions of the internal affairs evidence. (According to the minute order, the taped interview of the officers was admitted.) It also makes it impossible to determine whether such an error, if it exists, was prejudicial. We cannot assess what effect, if any, the error had on the trial without a transcript of the trial. Therefore, we must presume that the judgment is correct. (Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Where no reporters 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. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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