Filed 4/29/16 Los Angels Unified School Dist. v. Adams 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


LOS ANGELES UNIFIED SCHOOL                                           B262506
DISTRICT,
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. BC420518)
         v.
JOHN W. ADAMS,
         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
C. Edward Simpson, Judge. Affirmed.
         John W. Adams, in pro. per., for Defendant and Appellant.
         Koeller, Nebeker, Carlson & Haluck and Dennis K. Wheeler, for Plaintiff and
Respondent.
      Appellant John Adams, in propria persona, appeals from the judgment entered
for respondent Los Angeles Unified School District (LAUSD) after a court trial in
LAUSD’s action seeking to recoup overpayments of salary and benefits to Adams,
a retired LAUSD teacher. As we shall explain, appellant has failed to demonstrate
reversible error. Accordingly, we affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
      Appellant was employed as a teacher for LAUSD from 1996 until 2009. During
the 2007-2008 school year, appellant and LAUSD settled a salary dispute. The
settlement, dated November 2009, provided that appellant released the LAUSD from
all claims that exist or that “may arise in the future” against LAUSD.1 Appellant retired
from LAUSD in 2009 taking disability retirement with the California State Teachers’
Retirement System (CALSTRS).
      In 2007, LAUSD implemented a new payroll system. As a result of problems and
errors with the system, thousands of LAUSD current and former employees, including
appellant, received overpayments of salary and retirement benefits. LAUSD undertook
efforts to recoup the overpayments.
      In January 2010, after the informal collection efforts failed to obtain the
overpayments from appellant, LAUSD filed a complaint for, among various causes of
action, recovery of “Money Paid by Mistake” (Civ. Code, § 1577) and a common count
for “Money Had And Received.” (Capitalization omitted.) LAUSD alleged that
appellant was “mistakenly paid and received unearned salary payments for certain payroll
periods beginning as early as January 2007, with a current overpayment balance of
$14,134.44.”
      Appellant filed a series of cross-complaints against LAUSD asserting a number
of affirmative claims and defenses. Specifically, his eighth amended cross-complaint
included claims for breach of contract, harassment, failure to pay wages (Civ. Code,
§ 3287) and violation of wage garnishment laws. The trial court sustained LAUSD’s

      1Appellant also agreed to waive his rights under Civil Code section 1542, to all
unknown claims.

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demurrer without leave to amend all of the causes of action in the eighth amended
cross-complaint,2 except for the violation of Civil Code section 3287.3 The case
proceeded to a court trial in January 2015. Only the last day of the trial, January 13,
2005, in which the parties presented their closing arguments, was transcribed.
       The trial court entered judgment for LAUSD on the complaint, finding that as a
result of errors in LAUSD’s payroll system, appellant was overpaid during three years
(2006-2009). The court awarded LAUSD $14,134.44 plus interest. The court also
entered judgment for LAUSD on appellant’s cross-complaint, finding that the provisions
of the release in appellant’s settlement agreement with LAUSD barred the claims and that
appellant failed to present evidence to support any claim that LAUSD underpaid him.
       Appellant timely filed a notice of appeal.4



       2  Appellant filed a notice of appeal from the order sustaining the demurrer to the
eighth amended cross-complaint (B258309). This court dismissed the appeal as
prematurely filed. Although the clerk’s transcript in the current appeal does not contain a
copy of the eighth amended cross-complaint, LAUSD’s demurrer to the complaint, the
opposition to the demurrer, or the order sustaining the demurrer, those documents were
included in the clerk’s transcript in the prior appeal, and we take judicial notice on our
own motion of the appellate record in B258309. (See Evid. Code, §§ 452, subd. (c), 459;
Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37, fn. 2 [sua sponte
judicial notice].)
       3  A month before the trial, appellant sought leave to file the ninth amended
cross-complaint. In the ninth amended cross-complaint appellant alleged LAUSD
submitted “false information” in connection with its effort to correct the payroll system
errors to CALSTRS which reduced his monthly disability retirement checks, and violated
Civil Code section 3287 and wage garnishment laws. The amended complaint further
alleged a statute of limitations defense to LAUSD’s complaint, a destruction of payroll
records claim, and a duplicative recovery claim based on an allegation that LAUSD
previously recovered the overpayments from Deliotte Consulting for the faulty payroll
system. The trial court denied appellant’s request to file the amended complaint,
concluding that the same allegations had been previously dismissed, and that the effort to
amend the complaint was untimely.
       4 In addition to the clerk’s transcript, appellant filed four motions to augment the
record on appeal. We grant the motion to augment filed on April 29, 2015; we previously
granted three other motions to augment.


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                                       DISCUSSION

       The burden of establishing trial court error rests solely with the appellant.
(Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) Consequently, appellant
must support his claims with proper citations to the record. (See Cal. Rules of Court,
rule 8.204(a)(1)(C) [appellate brief must support factual references by citation to volume
and page number of trial court record]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574
[the “party challenging a judgment has the burden of showing reversible error by an
adequate record]”.) Appellant is required to follow these rules even where, as here,
he represents himself. (McComber v. Wells (1999) 72 Cal.App.4th 512, 523 [holding that
although appellant “is representing [himself] in this appeal [he] is not entitled to special
treatment and is required to follow the rules”].)
       “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 way, 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 argument as to the sufficiency of the evidence.” (Estate of
Fain (1999) 75 Cal.App.4th 973, 992, italics omitted; Maria P. v. Riles (1987) 43 Cal.3d
1281, 1295-1296 [failure to provide an adequate record on an issue requires that the
appellate court resolve the matter against the appellant].)
       Here, because appellant has provided neither a reporter’s transcript nor a settled
statement5 and because no error appears in the record that he has presented, we must
presume the judgment is correct.



       5  “When oral proceedings are not reported or cannot be transcribed, an appellant
may proceed by way of a settled statement in lieu of a reporter’s transcript. (Cal. Rules
of Court, rule 8.137(a).) To do so, the appellant must file a motion in the superior
court to use a settled statement and, if the motion is granted, must serve and file . . .
‘a condensed narrative of the oral proceedings that the appellant believes necessary for
the appeal.’ (Rule 8.137(b)(1).)” (Von Nothdurft v. Steck (2014) 227 Cal.App.4th 524,

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       Appellant asserts nearly 20 arguments in his opening brief, almost all of which
concern the admission and sufficiency of the evidence or the arguments offered at trial.
For example, appellant assails the sufficiency of the evidence supporting the judgment on
the complaint and cross-complaint, asserting that LAUSD failed to prove the amount
appellant received in overpayment and that he demonstrated that the LAUSD underpaid
him. Specifically, he argues that the court permitted LAUSD to introduce contradictory,
irrelevant and incompetent evidence and allowed LAUSD to present evidence in the trial
that it had not produced during discovery. Appellant also maintains that the court erred
by overruling or ignoring his objections and arguments, and limiting his presentation
of evidence and examination of witnesses. Appellant further claims that LAUSD
mischaracterized the scope of his prior settlement and the court improperly rejected his
claim that LAUSD violated the Labor and Civil Code provisions concerning the payment
and garnishment of wages. Finally, he asserts that the court erred in awarding damages
because LAUSD and Deloitte Consulting caused the payroll errors and that any award to
LAUSD should have been offset by amounts LAUSD received from its settlement with
Deloitte Consulting.
       Appellant, however, has failed to provide an adequate appellate record to permit
us to evaluate these claims. Except for the closing arguments, the trial was not
transcribed. Absent a transcript of the proceedings or a settled statement, this court
cannot assess the merits of appellant’s contentions that relate to conduct and events that
occurred during the trial. Without a record of the trial, we cannot determine whether
sufficient evidence supports the judgment.6 For the same reason, we are unable to
ascertain whether the court foreclosed certain areas of questioning or erred in failing to
admit certain exhibits or allow certain testimony. Likewise, we cannot test the merits of


534.) Appellant did not attempt to obtain, nor is there, a settled statement of the
proceedings.
       6 Although during closing argument the court stated that appellant had failed to
prove the underpayments alleged in the cross-complaint, without a record of the trial, we
have no means to test the court’s conclusion.

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appellant’s contention that the court admitted evidence that LAUSD had failed to disclose
during discovery or admitted incompetent evidence. On this record, we cannot decide
whether certain defenses have merit—it is impossible, for example, to determine whether
appellant’s claim has merit that the award against him should have been offset by
LAUSD’s recovery from other entities.
       Appellant contends that review of the clerk’s transcript and the transcript of the
closing argument alone show prejudicial error. We disagree. With respect to the closing
argument, appellant complains that the trial court erred by allowing LAUSD to present
new evidence and testimony, provided LAUSD exclusive access to exhibits and allowed
LAUSD to use the majority of the time during the closing argument. The transcript of
the argument, however, does not support these contentions. Instead, the transcript reveals
that the court allowed both parties an ample opportunity to present arguments and
respond to its tentative ruling. Both parties referred to exhibits that they had provided to
the trial court. Contrary to appellant’s argument, the court did not reopen the proceedings
to allow LAUSD to admit additional evidence; the court only allowed LAUSD to present
argument on the basis of the evidence already admitted. The court gave appellant ample
opportunity to orally respond to LAUSD’s arguments, and summarize his position and
also allowed him to file a written summation. The record does not disclose that the court
showed bias against appellant or favoritism toward LAUSD.
       Appellant also contends that the three-year statute of limitations in Code of Civil
Procedure section 338, subdivision (d) barred LAUSD’s causes of action. (Code Civ.
Proc., § 338, subd. (d) [claim based on mistake must be filed no later than three years
after aggrieved party discovers facts constituting the mistake].) He argues that although
LAUSD filed the complaint in 2010, he did not know until mid-litigation in 2012 or 2013
that LAUSD alleged that they had overpaid him in 2007. Appellant’s discovery of the
claim against him did not trigger the statute of limitations—the limitations period is
triggered by LAUSD’s discovery of the mistake. In any event, based on the record
before us, the defense lacks merit. In its complaint, LAUSD specifically alleged that the
overpayment to appellant began “as early as January, 2007.” LAUSD filed its complaint


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in January 2010. Nothing in the record suggests that LAUSD was aware of the
overpayment any earlier. Thus, the complaint was timely.
       Finally, appellant’s contentions concerning the cross-complaint also fail. Contrary
to appellant’s claim, the settlement agreement release precluded appellant from recovery
of any alleged underpayment of wages.
       Appellant also asserts that the court erred in sustaining the demurrer to his eighth
amended cross-complaint. He contends that the court erred in concluding that he was
required to exhaust his administrative remedies and that, in any event, he satisfied the
requirement that he exhaust his remedies with CALSTRS before bringing a claim against
LAUSD. Based on the Education Code and Labor Code sections in effect at the time
appellant filed his complaint, and the evidence in the record in appellant’s appeal from
the order sustaining the demurrer, it appears that appellant attempted to exhaust his
remedies too late—after he filed his cross-complaint. (California Teachers’ Assn. v.
Governing Board (1985) 169 Cal.App.3d 35, 47 [administrative remedies must be
exhausted before filing a civil action].) As a result, the trial court properly sustained the
demurrer to his eight amended complaint on that ground. Moreover, having allowed
nine attempts to sufficiently allege claims against LAUSD, the court did not err in
failing to give him a tenth chance. (Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.) Accordingly, appellant has failed to carry his burden of affirmatively
demonstrating reversible trial court error.




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                                   DISPOSITION
     The judgment is affirmed. Respondent is entitled to its costs on appeal.
     NOT TO BE PUBLISHED.




                                                     ROTHSCHILD, P. J.
We concur:




                  CHANEY, J.




                  JOHNSON, J.




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