Bharji v. New United Motor Manufacturing
Filed 1/8/08 Bharji v. New United Motor Manufacturing CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
LAKHPAL BHARJI,
Plaintiff and Appellant,
A115048
v.
(AlamedaCounty
NEW UNITED MOTOR MANUFACTURING, Super. Ct. Nos.
INC., etc., et al., HG03121679, HG05199973,
HG05226315)
Defendants and Respondents.
________________________________________/
Lakhpal Bharji appeals from a judgment entered after jurors rejected his civil causes of action alleging workplace retaliation. He contends several errors were committed prior to and during his trial. We reject appellants arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Securitas Security Services, Inc., provides security to companies and private individuals. In May 2002, Securitas hired appellant to work as a security guard and assigned him to the New United Motor Manufacturing, Inc., (NUMMI) car manufacturing plant in Fremont. As a security guard, appellants duties included monitoring vehicles as they entered and exited the plant, and patrolling the plant to identify security concerns and safety hazards. Appellant was assigned to the graveyard shift where he reported to a Securitas supervisor named Douglas Turner.
Soon after appellant was hired, it became apparent that he held some unique views. Appellant described himself as having been given powers by God to heal persons afflicted with disease, disability, and addiction. Although appellant claimed to have lost some of his powers, he explained that they were returning, and that in the near future he was expecting more powers. Appellant offered to provide healing services to his colleagues. Most declined.
Securitas was generally pleased with appellants work; however, managers at NUMMI began receiving complaints from their employees that appellant was engaging in disruptive conversations about religion and his healing powers. On October 16, 2002, Tom Sana, NUMMIs director of security, discussed the issue with Shannon Warner, Securitass manager for the NUMMI account. Sana described the problematic behavior to Warner without identifying the officer. Warner recognized that appellant was the employee in question, having received reports from his own people regarding the same behavior. Sana expressed disappointment with Securitass failure to assign quality officers to his plant and asked that appellant be reassigned. Warner agreed.
Shortly thereafter, Turner told appellant he was being reassigned. Within a month, appellant was placed at another worksite in San Jose, Equity Office Properties (EOP), where Securitas also provided security. In March 2003, Securitas lost that account to a competitor. Appellant liked working at EOP; he resigned from Securitas and went to work for the competitor who had won the EOP account.
Several months later, appellant began writing letters to Securitas and NUMMI complaining that his removal from the NUMMI plant was retaliatory. He claimed he has been reassigned because he had reported safety problems and because of his high blood pressure. Appellant also alleged that his supervisor, Turner, had received a backrub from another Securitas employee, and that this act constituted sexual harassment. Securitas investigated appellants complaints and found them to be groundless.
In October 2003, appellant acting on his own behalf, filed the first of what ultimately became three complaints against Securitas, NUMMI, Turner, and Warner. The complaints were lengthy and set forth various factual and legal theories. However, the primary focus of all three was that defendants violated appellants rights when they reassigned him from the NUMMI plant.
Initially, defendants successfully demurred to various causes of action of appellants first, second, and third amended complaints. However, when appellant responded by filing entirely new actions and amended complaints in the new actions, defendants apparently made the tactical decision to try the cases to a judgment.
All three cases were consolidated and the matter proceeded to a jury trial. A joint statement of the case helped define the issues the jurors would be required to decide. [Appellant] alleges that he was removed from the NUMMI account by Securitas (1) in retaliation for complaining about safety issues at the NUMMI plant; or (2) because he had a physical disability; or (3) because he was perceived to have a mental disability; or (4) in retaliation for his complaining about a supervisors sexual harassment and/or taking a medical leave. [Appellant] has also made claims relating to an alleged slip and fall accident while he was at NUMMI, an alleged failure to accommodate his disability, and an alleged failure to accommodate his medical leave, as well as various claims of harassment. He also claims he suffered emotional distress as a result of these alleged acts or omissions.
After many days of trial testimony, the jurors returned a special verdict against appellant and in favor of the defendants. Subsequently, the trial court entered a judgment in favor of defendants. Appellant, still acting on his own behalf, now appeals.
II. DISCUSSION
A. General Principles of Appellate Review
Before we turn to the specific arguments appellant has advanced, we must make some general comments. The record in this case is large and complex. The clerks transcript covers more than 1,700 pages, while the reporters transcript is more than 1,100 pages. Appellant asked the jurors to consider whether the defendants were liable under many different causes of action, and the jurors in fact rendered a complex special verdict that rejected all the causes of action appellant had alleged.
Appellants brief on appeal does not acknowledge any of this. Appellant has not provided a statement of facts that explains the basis for his suits, and he has made no attempt to set forth the procedural history of the case. Indeed, appellant has not even described the causes of action he alleged.
Furthermore, many of the arguments appellant has made are presented in an improper way. In many cases, appellant does not explain his argument or provide any authority to support his points. In other instances, appellant does not cite to the record, seriously impairing our ability to evaluate his arguments. Accordingly, before we discuss appellants claims of error, we set forth several fundamental principles of appellate review, which will govern our analysis.
First, A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.] (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellants duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 518, p. 562.)
Second, an appellants failure to register a proper and timely objection to a ruling or occurrence in the trial court will result in loss of the appellants right to attack that ruling or occurrence on appeal. (E.g., Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers).)
Third, It is incumbent upon the parties to an appeal to cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a partys position. (Williams v. Williams (1971) 14 Cal.App.3d 560, 565 (Williams).)
Fourth, every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 (Berger).) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
Fifth, a party who contends that a particular finding is not supported by substantial evidence is obligated to set forth in his brief all the material evidence on the point and not merely his own evidence. If this is not done, the error is deemed to be waived. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
We will have occasion to refer to each of these principles of appellate practice.
B. Whether the Trial Court Committed Irregularities
Appellant contends the trial court committed several errors that prevented him from having a fair trial. For example, appellant argues it was improper for the defendants Turner and Warner to be present in court while others testified, that the court improperly allowed the defendants to present an exhibit to the jurors, and that the court erred when it declined or failed to take action against witnesses who testified differently than appellant expected. We decline to address these or any of the other arguments appellant has advanced on this point because appellant has not cited any authority that indicates the acts he has identified were improper. The issues are waived. (Berger, supra, 128 Cal.App.4th at p. 1007.)
Next, appellant raises a category of issues that he describes as Nonsuit and Legal Issues to be Decided for Ruling of Causes of Action. Appellant raises a variety of arguments such as: the trial court erred when it granted nonsuit on various causes of action, including constructive discharge, intentional infliction of emotional distress, and negligent infliction of emotional distress; it erred when it mentioned the damages appellant was seeking; the court erred when it expressed some difficulty understanding the legal theories appellant had advanced; and that the court erred when it only provided him three days to prepare for final argument. Appellant further contends the trial court erred in dismissing his claims for the aiding and abetting cause of action and striking his punitive damages demand.With one exception, appellant has not cited any legal authority that indicates the acts and rulings appellant has identified are improper. We reject his arguments on that basis. (Berger, supra, 128 Cal.App.4th at p. 1007.) The one argument for which appellant has cited authority is his claim that the court erred when it refused to allow him to mention during final argument the causes of action and theories that had been dismissed. Appellant contends this was error under Evidence Code section 352, because the trial court did not impose a similar restriction on defense counsel. In fact, the record shows defense counsel was placed under the same restriction, but the point is academic. Appellant never raised a section 352 argument in the court below. He cannot raise that argument on appeal. (See Evid. Code, 353, subd. (a).)
Appellant contends the court [Departed] . . . from Due and Orderly Method when it failed to decide certain issues that the defendants had submitted prior to the start of trial. Appellant has not directed our attention to the portion of the record where the trial court committed this alleged error. It is not our obligation to find it. The issue is waived. (Williams, supra, 14 Cal.App.3d at p. 565.)
Next, appellant contends the trial court erred because it prejudged the case before the end of the trial. The only evidence appellant cites to support this allegation is the courts observation that NUMMI had asked Securitas to reassign him to another workplace. However, the court was simply stating a fact that appellant had admitted:
[The Court]: Who testified that it was not NUMMIs decision [to remove you from the NUMMI plant?]
[Appellant]: Nobody say thats not NUMMI. But NUMMI give order to Securitas to terminate my employment assignment . . . .
We find no error on this ground.
Appellants next argument requires some background. After many days of testimony, the case was submitted to the jurors. The jurors deliberated briefly and then told the court they had deadlocked on one of the questions in the special verdict form. The jury foreman characterized it as a stalemate. The trial court disagreed:
No, you dont. No, you dont. Im not prepared to accept that at this point. That may be the final result, I dont know. But we have spent days here and Im not prepared to say after an hour of deliberation or even two or three, or if you feel you need to break for the day, its been a long day, have you come back tomorrow, Im certainly happy to do that. No, Im not prepared at this point after the many, many days weve spent to say after an hour or two, that you cant come to a meeting of the minds.
Appellant now contends the trial court erred because it rushed [the] proceeding[s] and influenc[ed] the [jurors to] continue deliberation[s]. The court did not rush the proceedings. The court simply told the jurors they should continue to deliberate. The court specifically said that if the jurors needed to break for the day, it would grant that request. The court did tell the jurors that they should continue to deliberate; however, this was not improper. A trial court has wide discretion to determine how much time jurors should deliberate before discharging them. (Bertolozzi v. Progressive Concrete Co. (1949) 95 Cal.App.2d 332, 338.) The court here did not abuse its discretion.
Finally on this point, appellant contends the trial court erred by Preventing of [sic] Full Presentation of Evidence. He raises two arguments. First, appellant contends defense counsel erred by failing to call Tom Sana, who was NUMMIs director of security, as a defense witness. According to appellant, this violated a pretrial verbal agreement between parties. Appellant has not cited any portion of the record to support his argument. The issue is waived. (Williams, supra, 14 Cal.App.3d at p. 565.)
Second, appellant contends the trial court erred because it declined to allow him to introduce various exhibits after he had rested his case. Appellant has not cited any authority that indicates this was error and the general rule is that a trial court has broad discretion to determine whether to permit a party to reopen a case for further evidence. (Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776, 793.) The court did not abuse its discretion here.
C. Irregularities By the Defendants
Appellant contends the defendants committed several errors that prevented him from having a fair trial. His first allegations are based on what appellant describes as intentional misconduct by the defendants. With one exception, appellant has not cited to the portion of the record where the errors he has identified allegedly occurred. We decline to address appellants arguments on that basis. (Williams, supra, 14 Cal.App.3d at p. 565.) The one exception is appellants claim that defense counsel allegedly erred by mentioning the high cost of litigation as a means of gaining sympathy from the jurors. The portion of the record appellant cites does not support his characterization. In any event, appellant did not raise an objection in the court below. He cannot raise the issue on appeal. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
Appellant contends defense counsel and a witness for the defense made Improper Comments Concerning [the] Relative Wealth and Poverty of [the] Litigants. We decline to address the issue because appellant has not cited to the portion of the record where this allegedly occurred. (Williams, supra, 14 Cal.App.3d at p. 565.)
Appellant claims defense counsel erred by making personal attacks against his character and motives. With one exception, appellant failed to object to the comments about which he now complains. He cannot challenge those comments for the first time on appeal. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.) The sole exception involves defense counsels attempt to examine appellant about a lawsuit he filed previously against a different employer in which appellant sought damage for emotional distress. Appellant objected to counsels inquiry on relevance grounds. The court ruled the evidence to be relevant.
Since appellant was seeking damages for emotional distress in this case, the prior action was relevant. In any event, counsels questioning on this issue does not constitute a personal attack. We see no error on this ground.
Appellant contends defense counsel erred by putting into evidence an exhibit that had no standing. We decline to address this argument because appellant has not cited to the portion of the record where it occurred. (Williams, supra, 14 Cal.App.3d at p. 565.)
The next group of arguments appellant advances are based on what he describes as defense counsels attempt to mislead him. First, appellant contends that defense counsel misled him by calling Ayesha Nagshbandi as a witness at trial. Appellant later contends the testimony of Ms. Nagshbandi surprised appellant and her testimony was an improper new material issue. This was error, appellant alleges, because Nagshbandi was not on the defenses witness list. However, the record indicates Nagshbandi was called as a rebuttal witness to impeach appellants credibility. A witness presented solely for impeachment need not be disclosed on a witness list. (See Super. Ct. Alameda County, Local Rules, rule 3.35, subd. (f).)
Appellant contends defense counsel misled him by presenting witnesses who testified that appellant claimed God had given him the power to heal others. According to appellant, this was misleading because it was inconsistent with the discovery responses Securitas has provided. However, appellant himself elicited evidence on that point during his case in chief. Defense counsel cannot be faulted for presenting testimony on an issue appellant himself had raised at trial.
Appellant also contends defense counsel misled him by failing to call Tom Sana as a defense witness at trial. According to appellant, this violated an agreement he had with defense counsel to call Sana as a witness. However, the portion of the record appellant has cited does not support his argument. While it is true that other portions of the record show defense counsel planned to call Sana as a witness if necessary, that sort of equivocal statement cannot be characterized as a binding agreement.
Next, appellant contends the defendants induce[d] a witness, Ayesha Nagshbandi, to give false evidence at trial. Appellant had not provided any evidence to support this serious allegation and it is supported only by appellants information and belief. Absent evidence to the contrary, we are required to presume the judgment is correct. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.)
Appellant contends defense counsel erred by suggest[ing] matters of an evidentiary nature to a jury other than by the legitimate introduction into evidence. . . . It is not clear precisely what appellant means by this, but we need not attempt to sort it out. The portion of the record appellant cites to support his argument shows appellant failed to object. Therefore, appellant cannot validly raise the issue on appeal. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
Next, appellant contends defense counsel committed several errors during final argument. First, he argues counsel erred by suggesting appellant was trying to perpetrate a scam. The portion of the record appellant cites to support his argument shows appellant did not object. Any possible error has been waived. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
Appellant also contends defense counsel erred by mentioning during his opening statement that paramedics who were dispatched to evaluate appellant considered whether to place appellant under a 72 hour psychiatric hold. Appellant contends this was error because that fact had not been mentioned to him in pretrial discovery and was hearsay. Appellant has not cited to any portion of the record that shows he sought discovery on this point, and he has not cited any portion of the record that shows he asserted a hearsay objection in the court below. Appellants arguments are waived. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
Appellant contends defense counsel erred by suggesting to the jurors that appellant had willfully suppressed evidence. The portions of the record appellant cites to support his argument show appellant failed to object in the court below. Any possible error is waived. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
D. Irregularities in the Proceedings
Appellant contends there were irregularities in the proceedings that prevented him from having a fair trial. We have already addressed and rejected most of the arguments appellant makes on this point. We reject appellants new argument as well. Appellant contends the trial court erred because a binder that contained the trial exhibits was never viewed by the jurors before they rendered their verdict. Appellant has failed to show he objected on this point in the court below. Any possible error has been waived. (Doers, supra, 23 Cal.3d at pp. 184-185, fn. 1.)
E. Jury Misconduct
Appellant contends that comments the jury foreman made to him after the trial show that the foreman was prejudiced against him. Appellant has not cited any portion of the record that shows the jurors made the comments alleged, and the one citation appellant does provide is a comment from appellant himself. We deem the point to be waived. (Williams v. Williams, supra, 14 Cal.App.3d at p. 565.)
F. New Trial Issues
Appellant contends the trial court should have granted him a new trial for several reasons. First, appellant claims he was entitled to a new trial because the trial judge did not understand the legal theories he had advanced. The primary evidence appellant cites to support this argument in comments the court made when discussing appellants claim that Turner could be held responsible for physical disability discrimination under an aiding and abetting theory. We reject this argument because appellant has not cited any authority that supports the conclusion that such a cause of action exists. The trial court cannot be faulted for failing to understand a cause of action appellant did not and has not explained.
Next, appellant contends he was entitled to a new trial because evidence was erroneously admitted at his trial. Appellant bases this argument on the items of evidence that we have discussed above. Since we have concluded the court did not err when it rejected the evidence in question, we reject this argument as well.
Conversely, appellant argues he was entitled to a new trial because the trial court erroneously excluded evidence from this trial. Appellant premises this argument on the courts unwillingness to allow him to present evidence after he had rested his case. Since we have concluded the court did not err when it rejected the evidence in question, we reject this argument too.
Appellant claims he was entitled to a new trial because the trial court improperly granted a nonsuit on one of his causes of action. Appellant has not identified the cause of action for which the court granted a nonsuit, and he has not provided any authority to support the conclusion that the court erred when granting a nonsuit on that cause of action. We decline to develop an argument for appellant. The issue is waived. (Berger, supra, 128 Cal.App.4th at p. 1007.)
Appellant contends he is entitled to a new trial on the grounds of accident or surprise. The primary event appellant cites to support this claim is defense counsels failure to call Tom Sana as a witness. A party is entitled to a new trial on the ground of accident or surprise only when he is placed in a negative position as the result of conduct which ordinary prudence could not have guarded against. (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432.) If appellant believed Sana was critical to his case, he should have subpoenaed him or called him as a witness as part of his case in chief. We conclude this is not the type of accident or surprise that warrants a reversal.
Next, appellant contends he was entitled to a new trial because the defense raised two new issues at trial. The first is that the defense presented evidence that appellant had approached persons at the NUMMI plant and discussed his God-given healing powers. As we have explained, appellant himself presented evidence on this point in his case in chief. Appellant cannot reasonably characterize as new evidence that simply expanded on evidence he had presented earlier.
Second, appellant complains the defense presented new evidence that appellant had sued a former employer seeking damage for emotional distress. Appellant contends he was surprised by the evidence and that its admission was prejudicial and unfair. We fail to understand how appellant could have been surprised by documentary evidence of something he himself had done, and which was a matter of public record. Furthermore, the evidence was plainly admissible. Appellant was seeking damages for emotional distress. The defense was entitled to explore whether some of the distress appellant was experiencing may have been caused by a prior event. The court did not err.
Appellant contends he should have been granted a new trial because the defense presented evidence that paramedics who were dispatched to evaluate him after an incident at the plant considered whether to place him under a 72 hour psychiatric hold. Appellant suggests this fact should have been disclosed to him during discovery and that it was unknown and unknowable. Appellant has not cited any portion of the record that shows he submitted a discovery request that would have uncovered this fact. Furthermore, while appellant may not have known the fact, it was knowable with a reasonably formulated discovery request. We see no error on this ground.
Next, appellant argues he was entitled to a new trial because two of his witnesses testified differently than he expected. Appellant has not cited any portion of the record that indicates his witnesses testified differently, and indeed, he has not cited the record at all. The issue is waived. (Williams v. Williams, supra, 14 Cal.App.3d at p. 565.)
G. Sufficiency of the Evidence
Finally, appellant contends the judgment must be reversed because it is not supported by substantial evidence. However, a defendant who seeks to raise this type of argument must set forth all the material evidence on this point, not simply the evidence that supports his or her position. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Here, appellant had not set forth any of the evidence that was presented at this trial. The issue is waived. (Ibid.)
III. DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Gemello, J.
________________________
Needham, J.
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