Filed 3/16/20 Arambula v. Irvine Unified School District CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALLEN ARAMBULA,

Plaintiff and Appellant,

v.

IRVINE UNIFIED SCHOOL DISTRICT et al.,

Defendants and Respondents.

G057121

(Super. Ct. No. 30-2016-00859803)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed.

Allen Arambula, in pro. per., for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Sharon J. Ormond and Jacquelyn T. Morenz for Defendants and Respondents.

* * *

 

Plaintiff Allen Arambula, an employee of the Irvine Unified School District and its Board of Education (collectively the District), sued the District for, among other things, allegedly forcing him to perform out-of-classification duties without additional compensation in violation of the Education Code.

First, Arambula asks this court to take additional evidence pursuant to Code of Civil Procedure section 909, but this request is improper, and we shall, accordingly, deny it.

As to his substantive claims, Arambula argues the court should not have dismissed his claim for intentional infliction of emotional distress prior to trial, but the record supports the trial court’s findings as to this cause of action. He also asserts the statement of decision is inadequate, which is really a backdoor argument about whether there was substantial evidence to support the judgment. We find no error on either score. Arambula further contends the outcome of his case must have been the result of judicial bias, but this claim is not supported by the record in any respect. We affirm the judgment.

I

FACTS

Arambula’s opening brief, while purporting to include a “Summary of Material Facts,” includes only a procedural history and not a summary of facts relevant to the case. He includes some relevant facts supporting his positions in his arguments, but this is insufficient. His failure to include a statement of relevant facts violates the California Rules of Court, rule 8.204(a)(2)(C), which states that an appellant’s opening brief must include “a summary of the significant facts limited to matters in the record.” Indeed, when an appellant argues there is not substantial evidence to support the trial court’s decision, he or she is required not only to set forth his or her own evidence, but the respondent’s as well. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

“Because it is not our responsibility to scour the appellate record for evidence to support a party’s position, we consider only evidence cited by the parties . . . .” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1270.) To the extent Arambula has omitted facts from his opening brief by failing to comply with California Rules of Court, rule 8.204(a)(2)(C), we need not consider them.

We draw the facts from the District’s brief and the trial court’s statement of decision. Arambula was hired by the District in February 2013 as a “Clerk II” in the Language Minority Program (the Program). Administering the California English Language Development Test (CELDT), the state-mandated test for assessing proficiency by those learning English, was one of the Program’s primary responsibilities.

The description for the Clerk II position lists a variety of clerical duties “and to perform related work as required.” The description also states that “[o]ther duties may be assigned.” Lisa Mennes, Arambula’s supervisor, testified that during the interview process, it was made clear to applicants that CELDT administration was part of the position. Samira Kassouni, a teacher who worked in the Program, also testified that administrating the CELDT was within the duties of the Clerk II position. The employee who preceded Arambula in the Clerk II position administered the test without complaint. After his hiring, Arambula received state-mandated education regarding the CELDT. He and other employees were required to administer the test on an as-needed basis in addition to other duties.

Arambula eventually filed the instant lawsuit, claiming that administration of the CELDT was outside his classification and he was entitled to additional compensation. The operative complaint alleged causes of action for (1) nonpayment of wages under the Fair Labor Standards Act; (2) nonpayment of wages under section 45101, subdivision (f); (3) nonpayment of wages under section 45110; and (4) intentional infliction of emotional distress. In due course, the trial court granted summary adjudication as to all causes of action except the claim under section 45110.

The case proceeded to a bench trial. After Arambula rested his case-in-chief, the District moved for judgment. The court, after offering Arambula the opportunity to present additional evidence, which he declined, granted the motion. The trial court issued a statement of decision and entered judgment for the District.

Arambula now appeals.

II

DISCUSSION

General Principles of Appellate Review

“The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.” (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) The “‘lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.’” (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.)

Code of Civil Procedure section 909 Motion

Arambula requests this court make additional factual findings to, essentially, support his version of events and completely overturn the trial court’s factual determinations.

As relevant here, Code of Civil Procedure section 909 gives appellate courts the power to “make factual determinations contrary to or in addition to those made by the trial court” after a bench trial. As case after case that has considered this statute has stated, this power is to be exercised sparingly and only in extraordinary circumstances. (See, e.g., In re B.D. (2019) 35 Cal.App.5th 803, 815; Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048.) Further, except in truly rare cases, such evidence should only be taken to affirm the judgment, not reverse it. (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1227, fn. 4.) “The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record and substantial evidence supports the trial court’s findings.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.) As we shall discuss post, substantial evidence supports the judgment.

Arambula has not established that taking additional evidence to reverse the judgment is appropriate in this case. He simply argues the trial court was wrong about certain facts and this court should remedy matters. The motion is denied.

Summary Adjudication of Intentional Infliction of Emotional Distress Claim

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850.)

This court reviews the trial court’s decision to grant summary judgment or adjudication de novo. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) We accept as true “the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn” from them. (Ibid.)

We need not belabor this issue. In addition to concluding that any cause of action for intentional infliction of emotional distress fell within the ambit of worker’s compensation, the trial court also found no triable issue of fact as to extreme and outrageous conduct as a matter of law. The trial court was correct on both counts. Because summary adjudication was properly granted on the extreme and outrageous conduct issue, we need not consider the worker’s compensation question.

To state a claim for intentional infliction of emotional distress, a plaintiff must establish: (1) extreme and outrageous conduct; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Extreme and outrageous conduct is a high bar. The behavior must “‘go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.) Arambula has not, either in the trial court or on appeal, provided specific examples of extreme and outrageous conduct. He merely states he proffered sufficient evidence without telling us what that evidence was or why it was sufficient.

In his reply brief, Arambula seems to imply that he does not have to establish extreme and outrageous conduct because he suffered emotional distress due to alleged acts of misrepresentation in the employment environment. He is incorrect and offers no authority for that proposition. He pleaded a cause of action for intentional infliction of emotional distress, and regardless of where the conduct occurred or in what context, he must still establish all the elements of a prima facie case. Because he failed to do so, the court correctly granted summary adjudication.

Arambula also claims the court erred by failing to issue the proper type of order with respect to the intentional infliction of emotional distress claim. Even if this were true (and we do not reach any such conclusion) it does not constitute reversible error.

Court’s Interpretation of Section 45110

Arambula argues the trial court misinterpreted section 45110, a legal error. Although we generally review such claims de novo (John v. Superior Court (2016) 63 Cal.4th 91, 95-96), in this instance there is really nothing to review. His very brief argument on this point includes no serious legal analysis or citations to case law supporting his position. His entire argument in the opening brief is as follows:

“The trial court’s interpretation of Education Code section 45110 is objectionable on grounds that the interpretation of the statute is not consistent with the intended meaning of the same statute. California Education Code section 45109, which requires governing school boards to fix and prescribe duties performed by classified employees, must be read in conjunction with Education Code section 45110, the subsequent statute.

“Education Code section 45110, while acknowledging section 45109 provides that classified employees are not required to perform duties which are not fixed and prescribed for their positions, specifically allows performance of tasks reasonably related to the fixed ones for a limited time, no more than five working days within a 15 calendar day period.

“Education Code section 45110 also provides that employees may be required to perform duties inconsistent with those assigned to their positions for more than five workdays, if their salary is adjusted upward for the entire period the employee performs of out of classification work.

“The same statute also permits governing boards to enact written rules providing upward salary adjustments for any classified employee required to work out-of-class for a lesser period. Finally, the last paragraph declares the statutory intent to permit school districts to temporarily work employees outside of their normal duties, so long as they receive additional compensation during the temporary assignments.

“The trial court’s interpretation of Education Code section 45110 has resulted in a miscarriage of justice where on the basis of its interpretation of the statute and in reference to the number days that a classified employee must establish to have worked out of classification to be entitled to an upward salary adjustment, the trial court erroneously asserts that appellant failed to establish sufficient facts to prove that a time frame was established at trial that indicates when appellant worked out of classification.”

This is not really a statutory interpretation argument at all; it merely claims the trial court did not accept the evidence Arambula purportedly presented. To the extent this is a substantial evidence argument, we shall discuss it post.

In his reply brief, Arambula does include generic citations to principles of statutory interpretation, but his analysis of section 45110 continues to lack substance. His opposition to the trial court’s interpretation amounts to mere disagreement, and that is insufficient. The appellant must “present argument and authority on each point made” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)), and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115). It is not our responsibility to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Arambula has failed to establish legal error.

Statement of Decision

Arambula contends the court’s statement of decision was defective. He is incorrect.

Statements of decision are governed by Code of Civil Procedure section 632, which provides, in relevant part: “The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.”

“A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.” (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125.) Further, “[i]t is settled that ‘[i]n rendering a statement of decision . . . a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.’” (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.)

Arambula contends that the statement of decision states he failed to carry his burden on the section 45110 violation, and further, that administering the CELDT test was within the job duties of that classification. He then asserts that the evidence does not support the factual finding regarding the CELDT test: “[T]he court does not point to any factual support nor is there substantial evidence to sustain it and, thus, violates the substantial evidence standard.”

Arambula misses the distinction between evidentiary and ultimate fact. The ultimate fact is the fact stated, specifically, that administering the test was within his classification’s job duties. The court was not required to indicate the evidentiary facts that support this conclusion. As long as those facts are in the record, nothing “violates the substantial evidence standard.”

Indeed, all of Arambula’s claims of a deficient statement of decision relate not to the form or substance of it, but to his disagreement with the court’s conclusions. For example, his first objection was to the statement of decision’s conclusion that Arambula failed to meet his burden as to all the elements of his section 45110 claim with the exception of being an employee. “The trial court was wrong in making this assertion, where the documentary evidence and testimony of more than one witness at trial support the fact that more than one element of a cause of action pursuant to Education Code section 45110 was established at trial as asserted in appellant’s objections to the statement of decision. . . . In this manner, the trial court’s judgment and supporting statement of decision do not satisfy the substantial evidence standard.”

This is not an objection to the form or completeness of the statement of decision, but to the court’s substantive conclusions. The rest of Arambula’s objections to the statement of decision are similar. We find no deficiency in the statement of decision.

To the extent this is a backdoor attack on the sufficiency of the evidence, we reject it. He argues, for example, that he “raised substantial evidence on the fact that work related to the administration of the CELDT did not reasonably relate to the standard duties of the Clerk II job position.” But this simply shows that Arambula does not fully understand the relevant burdens at trial or on appeal, or how they apply.

At trial, Arambula was required to show by a preponderance of the evidence all of the facts necessary to prove each element of his cause of action. The trial court ruled he failed to meet this burden. The only grounds for reversing the trial court’s decision are that “‘an 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.”’” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.)

Arambula’s evidence was neither, and the trial court’s conclusions were amply supported by substantial evidence. “We do not review the evidence to see if there is substantial evidence to support the losing party’s version of events, but only to see if substantial evidence exists to support the verdict in favor of the prevailing party. Thus, we only look at the evidence offered in [defendant’s] favor and determine if it was sufficient.” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.)

When deciding an appeal based on a purported lack of substantial evidence, “we are bound by the familiar principle that ‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We view the evidence most favorably to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.] Substantial evidence is evidence of ponderable legal significance, reasonable, credible and of solid value.” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)

“In applying [the substantial evidence] standard of review, we ‘view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .’” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096.) We do not “reweigh the credibility of witnesses or resolve conflicts in the evidence.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622.) The party “raising a claim of insufficiency of the evidence assumes a ‘daunting burden.’” (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 678.)

The key factual determination here is the trial court’s finding that the CELDT duties were reasonably related to or within the Clerk II job classification. Given this record, we find this conclusion was supported by substantial evidence. In addition to the broad scope of the job description, which required the Clerk II position to conduct a variety of clerical tasks and “perform related work as required,” the court considered the testimony of Mennes, Arambula’s supervisor, who testified the Clerk II position was added to the Program to support the “huge task” of administering the CELDT. She worked with Human Resources to choose a job description, and felt the Clerk II position, despite the “pretty generic” description, was the best fit. After the position was created, the first person to hold the job administered the test without complaint. At the time of the interview process, Mennes testified, it was made clear to applicants that CELDT administration was part of the role. After his hiring, Arambula received state-mandated education regarding the test. Other witnesses provided similar testimony regarding the nature, scope, and administration of the test, all of which supported the court’s conclusion that administering the test was reasonably within the Clerk II classification. The court’s findings regarding the number of days Arambula administered the test and his damages were similarly supported. In sum, the court’s conclusions were supported by substantial evidence.

Judicial Bias

Next, Arambula contends that “given the trial court’s adverse judgment entered against appellant combined with a number of irregularities occurring during the litigation of the civil action in the Superior Court, it can be inferred that one reason for this was that the trial judge was impartial [sic] to appellant.” He requests we review the record for judicial bias – apparently suggesting that we scour the entire record for any such indication. We decline this request. The burden is on Arambula to point out specific instances of bias, and the relevant standard is whether a reasonable person would entertain doubts about the court’s impartiality. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 389.)

The scant examples Arambula offers come nowhere near this standard. First, he suggests that because he is self-represented and the court denied a fee waiver, “it is possible that the trial court’s judgment and supporting statement of decision that is not in harmony with the evidence on the record was the result of judicial bias against appellant who was unrepresented by counsel and is indigent.” He offers no other examples of judicial conduct that support such an inference, and admits that errors in law alone (if there was one with respect to the fee waiver, which is not an issue in this appeal) are insufficient to demonstrate prejudice.

Arambula next cites a criminal case for the proposition “that the cumulative impact of the judge’s consistent and unjustified abuse of defense counsel before the jury, combined with a number of mistaken legal rulings in favor of the prosecution, deprived the defendant of the basic right to a fair trial,” and claims this situation is similar. We have rejected Arambula’s claims that the court made any mistaken legal rulings, much less “a number” of them, and he offers no evidence that he was abused by the trial court.

The next purported example of judicial bias is that the court allowed a representative of the District to be present during the trial proceedings despite also being a witness. Arambula claims this was error because the trial court had previously granted his motion to exclude witnesses. Even if this was error, which Arambula has not come anywhere close to establishing with citations to legal authority, it does not establish bias by the court.

Finally, Arambula broadly asserts that because the trial court “denied a number of appellant’s motions and entered more than one legal ruling in favor of respondents in a manner that was questionably prejudicial and thereby deprived appellant of a fair assessment of the application of law to the matters raised by appellant” we should, somehow, infer bias. He points to the court’s denial of a motion to vacate the judgment, which Arambula claims was erroneous. Again, as Arambula admits, error (which Arambula has not established) does not equal bias.

In its brief, the District points out a number of examples of impartial conduct, which we need not go into here. The burden is on Arambula to establish bias, not on the District to prove its absence. Arambula contends the District’s examples are wrong, but ultimately, again, at worst, and if Arambula could establish the court made such errors, they would demonstrate ordinary legal error, not bias.

Arambula has not managed to point to a single incident where the court even arguably violated the Canons of Judicial Ethics or demonstrated, by words or conduct, that it harbored bias against him. Judicial bias is an extremely serious accusation. The record indicates the judge in this matter was an example of calm temperament and even-handed judicial conduct. To accuse the court of bias on such a flimsy record is highly improper. It does a disservice to those who have genuinely suffered bias to have such accusations made against a judicial officer without any supporting evidence. Arambula’s assertion that he is entitled to a new trial based on judicial bias is rejected.

 

Appellate Costs

Arambula asserts he is entitled to his prejudgment and appellate costs upon a determination that he prevailed in this appeal. Given that every point he offered was rejected, we decline the invitation to declare him a prevailing party.

III

DISPOSITION

The judgment is affirmed. The District is entitled to its costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

GOETHALS, J.

Parties and Attorneys
Arambula v. Irvine Unified School District et al.
Case Number G057121
Party Attorney

Allen Arambula : Plaintiff and Appellant
616 E. 87th Place
Los Angeles, CA 90002 Pro Per

Irvine Unified School District : Defendant and Respondent
Sharon J Ormond
Atkinson, Andelson, Loya, Ruud & Romo
20 Pacifica
Ste 1100
Irvine, CA 92618-3398

Jacquelyn Lindsay Morenz
Atkinson Andelson Loya Ruud & Romo
20 Pacifica Suite 1100
Irvine, CA 92618-3371

Irvine Unified School District Board of Education : Defendant and Respondent
Sharon J Ormond
Atkinson, Andelson, Loya, Ruud & Romo
20 Pacifica
Ste 1100
Irvine, CA 92618-3398

Jacquelyn Lindsay Morenz
Atkinson Andelson Loya Ruud & Romo
20 Pacifica Suite 1100
Irvine, CA 92618-3371