Basic Appellate Principles: Presumption of Correctness and Burden of Appellant

Basic Appellate Principles:

 

Presumption of Correctness and Burden of Appellant

 

“A judgment or order of the lower 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 affirmatively be shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics in the original.)

 

“Appellant has the burden of overcoming the presumption of correctness and for this purpose, must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citations.]” (Eisenberg, Horvitz & Wiener, California Practice Guide, Civil Appeals and Writs, The Rutter Group, ¶8:17, p. 8-5, italics in original.)

 

“Appellant’s burden also includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. [¶] When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. [Citations.]” (Id., ¶8:17.1, p. 8-5. italics in original.)

 

It is the burden of appellant to prove prejudicial error. The California Constitution, article VI, §13 provides: “No judgment shall be set aside, or new trial granted, in any cause on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

 

In a civil case, the standard is applied as follows: “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Citation.]” (Pool V. City of Oakland (1986) 42 Cal.3d 1051, 1069.)