Filed 12/22/15 AAA Oil, Inc. v

. F amu Corp. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

AAA OIL, INC. ,
Plaintiff , Cross

- defendant, and Respond ent ,

v.

FAMU CORPORATION ,
Defendant , Cross

- complainant, and Appellant

. B 261083
(Los Angeles County Super. Ct. No. NC059036 )

APPEAL from a judgment of the Superior Court of Los Angeles County. Ross M.
Klein , Judge. Affirmed

. Gary Eugene Beeks for Defendant , Cross

- complainant, an d Appellant

. Gaba Law Corporation
, Rodolfo Gaba and Christopher O verton for Plaintiff
, Cross

- defendant, and Respondent.

_________________________________2

Defendant and cross

- complainant Famu Corpora tion (Famu) appeals from a judgment after trial in favor of plaintiff and cross

- de fendant AAA Oil , Inc. (AAA)

. Famu contends the judgment must be reversed because it met its burden of proof on its

cross

- complaint. We disagree and affirm.
BACKGROUND
AAA sued Famu for breach of contract and several common counts based upon
Famu ’ s failure to pay for fuel products AAA delivered to F amu pursuant to a contract.
Famu cross

- complain ed , seeking damages for AAA ’ s failure to deliver the amount of fuel provided in the contract and for which AAA charged Famu , charging above

- market prices
, deliver ing “ Regular ” fuel into “ Plus ” and “ Premium ” tanks, damaging Famu ’ s turbines by dropping absorbent towels into the tanks, and abruptly stopping fuel supplies to Famu, causing it to close for three days.
The case was tried by the court, without a reporter. Two witnesses testified for
AAA and three for Famu. The trial court found in favor of AAA and against Famu on both the complaint and the cross

- complaint. I n its writ t en d ecision, the court first found that Famu had failed to pay three invoices from AAA for delivered fuel, totaling $83,436.69. The court rend ered judgment in favor of AAA in the total amount of $103,825.32. With respect to claims in the cross

- complaint, the court found Famu had not met its burden of proof and therefore rendered judgment for AAA on the cross

- complaint

. The court explained : “ The Court finds that there was no compelling direct or circumstantial evidence to prove that the Plaintiff ’ s gasoline delivery driver accidentally or intentionally put a cloth towel in Defendant ’ s underground storage tank. [¶] The
Court finds that if the Plaintiff ’ s driver transferred the delivered gasoline into the wrong tank, it was at the request of the Defendant or the Defendant ’ s employees. [¶] The Defendant claims he lost weekend gas

- sales profits because the Plaintiff refused to make further gasoline deliveries until the Defendant paid for past deliveries. This claim fails for two independent reasons: The lost profits amounts are speculative; and the Defendant3

could and should have mitigated any losses by arranging for and purchasing gasoline from another wholesale gasoline distributor. ” Famu filed a timely appeal.
DISCUSSION

“‘ A judgment or order of the lowe r court is presumed correct

. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. ’” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564 .) The “ party challenging a judgment has the burden of showing reversible error by an adequate record. ” ( Ballard v. Uribe (1986) 41 Cal.3d 5 64, 574.) Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. ( Maria P. v. Riles (19 87) 43 Cal.3d 1281, 1295

– 1296.)

“ 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. To put it another w ay, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter ’ s transcript will be precluded from raising an argumen t as to the sufficiency of the evidence. ” ( Estate of
Fain (1999) 75 Cal.App.4th 973, 992.)

“ [W] here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of th e appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant ’ s evidence was (1) ‘ uncontradicted and unimpeached ’ and (2) ‘ of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. ’” ( In re I.W. (2009) 180 Cal.App.4th 1517, 1528 .)
Famu had the burden to affirmatively prove the merit of the claims in its cross

complaint. The trial court found it did not meet that burden. On appeal, Famu has not shown, and indeed , absent a reporter’s transcript, cannot possibly show , that t he evidence4

compels a finding in its fav or as a matter of law. Famu thus fails to demonstrate
reversible error

. We further note Famu’s brief fails to meet its obligations in o ther ways, for example, it fails to cite the evidence in the record supporting the judgment and fails to cite any authority supporting its contentions

. ( Benach v . County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ; Rayii v. Gatica (2013) 218 Cal.App.4t h 1402, 1408 [“ An appellant

. . . who cites and discusses only evidence in her favor fails to demonstrate any
error and waives the contention that the evidence is insuf ficient to support the judgment”].)
DISPOSITION The judgment is affirmed . Respondent i s awarded its costs on appeal.
NOT TO BE PUBLISHED.

LUI, J.
We concur:

ROTHSCHILD, P. J.

CHANEY, J.