Filed 6/24/15 Litmon v. Reliant Travel CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


DAVID LITMON, JR.,
         Plaintiff and Respondent,
                                                                     A142211
v.
RELIANT TRAVEL, LLC,                                                 (Alameda County
                                                                     Super. Ct. No. RG13680040)
         Defendant and Appellant.


         Defendant Reliant Travel, LLC, appeals from a judgment awarding $9,260 in
unpaid wages to plaintiff David Litmon, Jr. Judgment was entered after a bench trial on
an appeal of an order of the Labor Commissioner that denied the wage claim. We
conclude Reliant has failed to carry its burden of affirmatively demonstrating error, and
we therefore affirm the judgment.
                                                    BACKGROUND
         In July 2012, Litmon filed a claim with the commissioner under Industrial Welfare
Commission (IWC) Wage Order 9-2001, which generally provides for weekly overtime
for hours worked in excess of 40 hours per week and daily overtime for hours worked in
excess of eight hours per day. Litmon alleged he had been employed by Reliant and was
owed overtime wages, severance pay, liquidated damages, and penalties. During his
employment, Litmon drove buses to transport patrons to gambling casinos. In August
2012, Litmon was assigned additional duties and assumed the title of safety and
compliance supervisor.



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       A hearing was held before the commissioner in April 2013. The commissioner
ruled that Litmon was exempt from overtime requirements because (1) he fell within the
executive exemption by performing duties such as conducting performance evaluations
after being promoted; (2) he fell within the administrative exemption because he was
“involved in Defendant’s general business operations, exercised discretion and
independent judgment on a regular basis, and performed his duties under only general
supervision”; and (3) his hours were governed by Title 13 of the California Code of
Regulations, not IWC Wage Order 9-200, because he was a driver of a motor vehicle
designed to carry more than 10 persons. The commissioner ordered that Litmon “take
nothing by virtue of his complaint.”
       Litmon, appearing in pro per, filed a notice of appeal of the commissioner’s order
in Alameda County Superior Court. Court minutes of April 18, 2014, show he appeared
at a hearing before Judge Frank Roesch and testified on his own behalf. Reliant also
appeared and presented two witnesses. Litmon’s exhibits A, B, D, E, and F were marked
and admitted into evidence; Reliant’s exhibits 5 through 9 and 11 through 14 were
marked and admitted into evidence. None of the testimony or exhibits, however, is
included in our appellate record.
       On April 23, 2014, Judge Roesch granted judgment in favor of Litmon in the
amount of $9,260, ruling as follows: “The court finds that [Litmon] does not qualify as
an ‘executive’ because his duties cannot be said to include the management of the
enterprise or any department or subdivision. [Litmon] did not regularly direct the work
of any employees, and did not have authority to hire or fire or promote or demote any
employees working for defendant Reliant Travel. [Litmon]’s work did not include the
regular exercise of discretion or the use of his independent judgment. Further, [Litmon]
did perform office work directly related to the business operations of his employer, but he
did not directly assist the proprietor and was not employed in a bona fide executive or
administrative capacity.” The judgment was entered on April 29, 2014.




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                                         DISCUSSION
       In its opening brief, Reliant’s statement of facts cites only to the commissioner’s
order and does not discuss the evidence submitted at the hearing before Judge Roesch. It
recites the findings of the commissioner, and it asserts those findings are supported by
substantial evidence, but it does not show, based on the evidence presented to the trial
court, that the court erred as a matter of law or made findings based on insubstantial
evidence. Rather, Reliant claims the “trial court reviewed the administrative record for
substantial evidence” and maintains that our task on appeal is to review “the entire record
to determine whether the [commissioner’s] findings were supported by substantial
evidence, resolving all conflicts in the evidence and drawing all inferences in support of
them.” Reliant is mistaken on the applicable standards of review. As we explain more
fully below, the trial court conducts a trial de novo of the commissioner’s findings, and
we review the trial court’s—not the commissioner’s—factual findings for substantial
evidence.
       The timely filing of a notice of appeal under Labor Code section 98.2,
subdivision (a)1 from a commissioner’s wage order nullifies the decision, terminates the
commissioner’s jurisdiction, and vests jurisdiction to conduct a hearing de novo in the
trial court, which hears the matter, not as an appellate court, but as a court of original
jurisdiction with full power to hear and determine it as if it had never been before the
commissioner. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094,
1117-1120 [trial court’s power to hear wage dispute extends even to consideration of
related issues not reached by commissioner]; Tabarrejo v. Superior Court (2014)
232 Cal.App.4th 849, 861 [citing Murphy, supra]; see also Arias v. Kardoulias (2012)
207 Cal.App.4th 1429, 1435 [same].) “The trial de novo, though labeled an ‘appeal,’ is
‘ “ ‘ “a trial anew in the fullest sense,” ’ ” ’ in which the administrative decision is
entitled to no weight whatsoever, and the parties may present entirely new evidence to

1
  This statute provides in pertinent part: “Within 10 days after service of notice of an
order, decision, or award the parties may seek review by filing an appeal to the superior
court, where the appeal shall be heard de novo.”

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the trial court. [Citations.]” (Eicher v. Advanced Business Integrators, Inc. (2007)
151 Cal.App.4th 1363, 1381.)
       Furthermore, “[t]he decision of the trial court, after de novo hearing, is subject to a
conventional appeal to an appropriate appellate court.” (Smith v. Rae-Venter Law Group
(2002) 29 Cal.4th 345, 357, superseded by statute on another point as acknowledged in
Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 673, fn. 2.) In such an appeal,
the trial court’s findings are reviewed under the substantial evidence rule. (See
Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561.) As we do
in other appeals, “we apply basic tenets prescribing the scope and limits of appellate
review, starting with the most fundamental—the presumption of correctness. An
appealed judgment is presumed to be correct. We will indulge all intendments and
presumptions to support the judgment on matters as to which the record is silent and
prejudicial error must be affirmatively shown. [Citations.]” (Shaw v. County of Santa
Cruz (2008) 170 Cal.App.4th 229, 267.) A “ ‘necessary corollary’ ” to this rule “ ‘is that
if the record is inadequate for meaningful review, the appellant defaults and the decision
of the trial court should be affirmed.’ [Citations.]” (Italics in original.) (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
“Consequently, [the appellant] has the burden of providing an adequate record.
[Citation.] Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].” (Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502.) “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. [Citations.]” (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992,
italics in original.)



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       Here, by not providing in the appellate record a transcript of the testimony the trial
court heard, or any other evidence it considered, Reliant failed to meet its burden to
affirmatively demonstrate error. We simply cannot conclude on the basis of the record
before us that the trial court’s findings lacked substantial evidence. Accordingly, the
judgment must be affirmed.
                                       DISPOSITION
       The judgment is affirmed. Reliant shall bear costs on appeal.




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                                _________________________
                                Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.




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