Filed 4/1/20 Majidi v. Claremont Graduate University 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ARMAN MAJIDI,

Plaintiff and Appellant,

v.

CLAREMONT GRADUATE UNIVERSITY,

Defendant and Respondent.

B299597

(Los Angeles County

Super. Ct. No. BC647948)

APPEAL from the judgment of the Superior Court of Los Angeles County. Barbara A. Meiers, Judge. Affirmed.

Arman Majidi, in pro. per., for Plaintiff and Appellant.

Epstein Becker & Green, Jonathan M. Brenner and Susan Graham for Defendant and Respondent.

* * * * * * * * * *

Plaintiff and appellant Arman Majidi was a graduate student at defendant and respondent Claremont Graduate University. Plaintiff claims defendant prevented him from timely completing his Ph.D. program and obtaining his doctoral degree. Defendant filed a motion for summary judgment and demonstrated there is no material dispute that plaintiff failed to comply with its policies and procedures for Ph.D. candidates, he voluntarily withdrew from the program, and he suffered no damages. Plaintiff appeals from the judgment in favor of defendant.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s briefing and the appellate record are inadequate. As we explain in part 1 of the Discussion below, plaintiff’s briefs and appendices fail to comply with the procedural requirements set forth in the California Rules of Court. Notwithstanding these deficiencies, we have culled the facts material to our discussion and disposition from our review of the few documents provided.

In 2012, plaintiff was accepted into defendant’s graduate program for international studies. Plaintiff initially pursued a doctorate in World Politics, a department headed by Dr. Jacek Kugler. Dr. Kugler became plaintiff’s advisor, and plaintiff also worked as a paid research assistant to Dr. Kugler.

In 2014, plaintiff learned Dr. Kugler had disparaged him to other professors, including making allegations he had plagiarized some of his work. Plaintiff submitted a grievance against Dr. Kugler which defendant upheld. As a result of this grievance process, defendant notified Dr. Kugler that he would be required to recuse himself from serving as a grader for plaintiff’s qualifying examinations and that, if necessary, external graders would be arranged. Defendant took this action notwithstanding that grading of qualifying examinations is ordinarily done on a “blind” basis where the student is not identified to the grader.

In the fall of 2015, plaintiff, in consultation with certain professors and administrators, made the decision to drop World Politics as his doctoral field and severed his association with Dr. Kugler. Plaintiff obtained approval to switch to an inter-field doctoral track in both the Department of Politics and Economics and the Department of Information Systems and Technology.

A doctoral candidate must complete the required coursework in his field, maintain the requisite grade point average and sit for qualifying examinations in order to proceed to the dissertation phase of obtaining a doctorate. Plaintiff knew and understood that in order to take his qualifying examinations, he was required to submit a signed, completed form (the Ph.D. Qualifying Exam Request Form) to be approved by appropriate faculty members. In early 2016, plaintiff submitted an unsigned draft of the form to Dr. Heather Campbell, Chair of the Department of Politics and Government. Plaintiff requested Dr. Campbell’s assistance in forming a qualifying examination committee and in obtaining external graders, even though she was not the head of either of the departments in which he was pursuing his doctorate.

Dr. Campbell reviewed the form and then advised plaintiff she was willing to work with him in getting a completed form signed and approved but she requested several issues be clarified or revised. It is undisputed plaintiff did not make the clarifications and revisions requested by Dr. Campbell and never submitted a signed, completed form to any faculty member. Plaintiff instead spoke with other faculty members, including Dr. Campbell’s superior, about his inability to proceed with taking his examinations. Plaintiff did not file a new grievance claiming any breaches of policies or procedures by defendant that plaintiff believed were hindering his ability to proceed as a doctoral candidate.

It is undisputed that in May 2014, plaintiff received a Master of Arts degree in international studies and, in August 2016, received a Master of Science degree in information systems and technology. It is further undisputed plaintiff never sat for his qualifying examinations and did not enroll to continue his doctoral studies in the spring of 2018, after taking a leave of absence in the fall of 2017. Despite plaintiff’s withdrawal from the program, defendant maintains he remains in good standing at the university and is eligible to re-register to complete his studies if he is so inclined.

Instead, plaintiff sued defendant. The operative second amended complaint stated three causes of action: breach of contract, negligent supervision and breach of the implied covenant of good faith and fair dealing. Plaintiff’s breach of contract and breach of implied covenant claims were based on the allegation plaintiff paid tuition in return for which defendant agreed to provide an educational environment conducive to plaintiff receiving his doctoral degree. Plaintiff alleged defendant failed to abide by its polices and thwarted his efforts to obtain his degree. The negligent supervision claim was based on allegations related to defendant’s alleged failure to properly supervise Dr. Kugler.

Defendant filed a motion for summary judgment. In addition to opposing the motion on its merits, plaintiff sought a continuance of the hearing to allow him time to take the deposition of Dean Stewart Donaldson.

The court denied plaintiff’s request to continue the hearing on the summary judgment motion on the ground that plaintiff failed to provide an offer of proof of the materiality of the expected testimony from Dean Donaldson, and failed to explain why the deposition had not been taken sooner or a motion to compel filed if defendant had failed to produce him.

After entertaining lengthy argument, the court took the motion under submission. The court then issued a written ruling granting defendant’s motion, explaining that plaintiff failed to present competent evidence raising a triable issue as to any of his three causes of action. The court sustained most of defendant’s objections to plaintiff’s opposing declaration. The ruling includes a copy of the declaration with handwritten cross-outs of those portions of plaintiff’s testimony as to which objections were sustained.

Judgment was entered in favor of defendant on June 4, 2019.

This appeal followed. After submitting his opening brief and appendix, plaintiff filed two requests for judicial notice. Defendant filed an appendix with its brief and plaintiff filed a second appendix concurrently with his reply brief. In response, defendant filed a motion to strike both the reply brief and the appendix. We denied the motion because we may consider parts of the reply brief and appendix. As explained further below, we have disregarded all of the new arguments raised for the first time in the reply brief and any documents contained in either of plaintiff’s appendices that were not before the trial court on summary judgment.

DISCUSSION

Plaintiff asks this court to reverse the grant of summary judgment in favor of defendant, arguing that triable issues of fact remain to be resolved. However, plaintiff failed to present an adequate record or briefing and has failed to show reversible error by the trial court. Accordingly, we affirm.

1. The Inadequate Record and Briefing
2.
As the appellant, it was plaintiff’s duty to present an adequate, and accurate, record upon which the claimed error or errors could be fairly assessed. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; accord, Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200-1201.) Plaintiff filed a reporter’s transcript consisting of the hearing on the summary judgment motion and an appendix in lieu of a clerk’s transcript.

Rule 8.124(b)(1) of the California Rules of Court provides, in relevant part, that the appellant’s appendix “must” contain “[a]ll items required by rule 8.122(b)(1)” and “[a]ny item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on.” At a minimum, rule 8.122(b)(1) requires the inclusion of the notice of appeal, the judgment appealed from, and the register of actions. Significantly, the filing of an appendix in lieu of a clerk’s transcript “constitutes a representation that the appendix consists of accurate copies of documents in the superior court file.” (Cal. Rules of Court, rule 8.124(g), italics added.)

Plaintiff’s appendix contained none of the documents required by California Rules of Court, rule 8.124. Plaintiff did not include any of the summary judgment filings presented to the trial court, the judgment, the notice of appeal or the register of actions. Indeed, plaintiff included only unauthenticated copies of emails and other documents bearing no indication they were ever filed with or considered by the trial court in connection with the summary judgment motion. “As a general rule, documents not before the trial court cannot be included as a part of the record on appeal.” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)

Plaintiff suggests the documents should be considered to fill in “the gaps” of what was before the trial court and because some may have been filed as evidence by defendant or were otherwise “presented” during depositions or other unspecified proceedings in the action. If the documents were not properly authenticated and presented as evidence in connection with the summary judgment motion and cited in the parties’ separate statements as required by Code of Civil Procedure section 437c, subdivision (b), they are not properly considered by this court. It is not our role to consider new evidence but to review the existing record for alleged error.

We have no means of verifying plaintiff’s claims that the documents were before the trial court. If plaintiff wanted us to consider such documents, true and correct copies of the versions actually filed and considered by the trial court should have been included in the appendix or plaintiff should have had the superior court prepare a clerk’s transcript. Because plaintiff failed to demonstrate the documents were filed in the trial court, we have disregarded plaintiff’s appendix in its entirety.

Plaintiff also filed two requests for judicial notice that consist of similarly improper documents. Plaintiff has not demonstrated any of the documents or the facts contained therein are the proper subject of judicial notice pursuant to Evidence Code section 452. Defendant argues we may notice one of the documents: the declaration of Dr. Campbell submitted by defendant in support of summary judgment. However, the register of actions (contained in defendant’s appendix) reflects that a notice of errata was filed as to that declaration and since we were not provided with the errata to determine what changes were made to the declaration, we decline to consider it.

We previously deferred a ruling on plaintiff’s first request for judicial notice and now deny the request in its entirety. We denied plaintiff’s second request for judicial notice by separate order on October 23, 2019.

Plaintiff also submitted a second appendix concurrently with his reply brief. The reply appendix contains a number of the pleadings, memoranda and evidence that were filed in the trial court, which we may consider. We have disregarded the balance of the documents in the reply appendix as beyond the scope of our review.

The inadequacies of the record were compounded by plaintiff’s deficient briefing. An appellant’s brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) Plaintiff’s briefs fail to make any meaningful citation to the record. This is due in no small part to the defective record, including the fact the appendices fail to include consecutive page numbering in accordance with rule 8.144(b)(2)(D). (Cal. Rules of Court, rule 8.124(d) [appendices in lieu of clerk’s transcript must conform to formatting rules for clerk’s transcripts set forth in rule 8.144].)

Plaintiff provided only occasional footnotes citing exhibits contained in the appendices, with broad references to the original page numbering of each document, but no citation to an appendix page number since no such numbering was provided. “ ‘An appellate court is not required to search the record to determine whether or not [it] supports [appellant’s] claim of error.’ ” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) It is the appellant’s duty to refer the court “ ‘ to the portions of the record which support [appellant’s] position.’ ” (Id. at p. 1141; see also Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1053 [appellate arguments “unsupported by any citation to the record” are properly disregarded]; Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1037 [same].)

Moreover, a brief must, among other things, support each contention with “argument and, if possible, by citation of authority” and “[p]rovide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(1)(B) & (2)(C).) Plaintiff’s argument consists almost entirely of the discussion of facts outside the record and of generalized, conclusory due process arguments with citation to out-of-state authority instead of relevant California law. Plaintiff fails to provide any explanation or argument demonstrating there is a lack of California law on point or other basis to consider non-California authority.

The fact plaintiff is representing himself on appeal does not exempt him from following these rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “[A] party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ ” (Id. at p. 1247.)

As for the new legal contentions raised for the first time in plaintiff’s reply brief, including new theories of liability not alleged in the operative complaint, we have not considered them. New contentions of error may not be raised for the first time in the reply brief. (Cox v. Griffin (2019) 34 Cal.App.5th 440, 453.)

With this limited record in mind, we now turn to a discussion of the merits.

3. Plaintiff Has Failed to Show Reversible Error
4.
On appeal, “ ‘[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 be affirmatively 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 of Los Angeles County (1970) 2 Cal.3d 557, 564, first italics in the original, second italics added; accord, Moreno v. City of King (2005) 127 Cal.App.4th 17, 30.) And, unless otherwise shown, it is presumed the trial court followed the applicable law. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.)

Our Supreme Court has made clear that summary judgment is no longer considered a disfavored remedy. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Perry, at p. 542.) When tasked with reviewing the grant of summary judgment, as here, our role is equally clear. “[W]e take the facts from the record that was before the trial court . . . . ‘ “We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, citations omitted & italics added.)

Plaintiff relied almost exclusively on his own declaration in opposing defendant’s motion. The trial court sustained the majority of defendant’s objections to plaintiff’s declaration, leaving little substantive evidence to raise a triable issue. Plaintiff has not challenged the court’s evidentiary rulings on appeal, nor has he provided any argument those rulings were issued in error. To the extent plaintiff suggests Dean Donaldson could have attested to facts relevant to raising a triable issue, plaintiff has not challenged the trial court’s ruling denying the continuance to allow his deposition to be taken.

Plaintiff has instead chosen to focus on purported evidence that was not presented to the trial court and new theories that were not argued in the trial court. Plaintiff has failed to overcome the presumption of correctness and has failed to show the court committed any error in granting judgment to defendant.

DISPOSITION

The judgment entered in favor of defendant and respondent Claremont Graduate University is affirmed. Defendant and respondent shall recover costs of appeal.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J.

WILEY, J.

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