Filed 9/18/26 Bramham v. Los Angeles Unified School District CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GRISELDA BRAMHAM, B344397
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
20STCV49464)
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin C. Brazile, Judge. Reversed in part and
remanded with directions.
Tully Rinckey and Ryan C. Nerney for Plaintiff and
Appellant.
Artiano Shioff and Paul V. Carelli, IV for Defendant and
Respondent.
Plaintiff Griselda Bramham, a former teacher at Los
Angeles Unified School District (LAUSD) and an officer in the
Army Reserves, sued LAUSD for various violations of the
Uniformed Services Employment and Reemployment Rights Act
(38 U.S.C. § 4301, et seq.; USERRA) and the California Military
and Veterans Code. By the time of trial, three claims remained:
failure to reemploy Bramham in 2012 in violation of 38 U.S.C.
§§ 4312 and 4313 (count 1); failure to reemploy Bramham in 2019
in violation of 38 U.S.C. § 4312 (count 5); and discrimination in
violation of 38 U.S.C. § 4311(a) (count 7).1
The trial court granted LAUSD’s motion for nonsuit on
counts 1 and 7. On count 5, the jury returned a special verdict
finding LAUSD terminated Bramham’s employment as a
substitute teacher with LAUSD in 2019, but not “because [she]
was in the Military.” The court then entered judgment in favor of
LAUSD.
On appeal, Bramham argues the trial court erred by
(1) incorrectly instructing the jury regarding the elements of a
claim under 38 U.S.C. § 4312 (section 4312); (2) submitting a
special verdict form to the jury with improper law; and
(3) granting nonsuit on counts 1 and 7.
We reject Bramham’s arguments with respect to counts 1
and 7. Bramham has not met her burden of showing the trial
court erred in granting LAUSD’s nonsuit motion on those counts.
1 Because Bramham used the term “count” rather than “cause of
action” in her complaint, and the trial court adopted the same
convention, we also refer to the claims as “counts” for consistency
purposes.
2
We agree with Bramham, however, that the special verdict
form was fatally defective because it did not require the jury to
make factual findings on the elements of plaintiff’s section 4312
claim.2 The jury’s finding that LAUSD terminated Bramham for
a reason other than that she was in the military did not resolve
the issue of whether LAUSD violated section 4312. Thus, the
trial court’s judgment based on the special verdict was in error.
Accordingly, we affirm the judgment as to counts 1 and 7,
reverse the judgment as to count 5, and remand the matter to the
trial court for retrial on count 5.
BACKGROUND
Bramham is an officer in the Army Reserves. She began
working for LAUSD in 1997 as an office assistant in an
elementary school. After three years, she was promoted to an
administrative assistant. She continued in that position until
she was deployed to Iraq in 2003. In 2005, Bramham returned to
work as an administrative assistant, until she became a teacher
in 2007.
For the 2007 to 2008 and 2009 to 2010 school years,
Bramham worked as a probationary teacher at an LAUSD middle
school. During the 2009 to 2010 school year, however, LAUSD
laid off thousands of teachers due to severe budget cuts.
Specifically, in February 2009, the LAUSD Board proposed laying
off 2,392 non-permanent certificated personnel. The Board also
2 Under section 4312, a returning servicemember is entitled to
reemployment if: (1) he or she notifies the employer of his or her
deployment; (2) his or her cumulative length of absence does not
exceed five years (subject to exceptions); and (3) the person reapplied
for the position.
3
proposed laying off additional certificated personnel in March
2010.
On March 12, 2009, LAUSD sent a layoff notice to
Bramham, stating the layoff would be effective on the last day of
the school year, June 30, 2009. Because she was laid off,
Bramham did not become a permanent teacher as she did not
start her third year as a certificated employee. The layoff notice
offered Bramham a position as a substitute teacher, which she
accepted, and notified her that she would be placed on a District
Reemployment/Reassignment list for a full-time position for a
period of 39 months “from the last date of paid contract service
with the District.” The notice explained that the order of
reassignment from the list “shall be based on seniority within
status.”
Bramham continued serving in the military after she was
laid off from LAUSD: she was on active duty attending officer
school from August 2, 2009 through December 3, 2009; she
trained in early 2010; and she served on active duty from June
15, 2010 through September 30, 2012.
On September 20, 2012, Bramham sent a letter to LAUSD
stating that she was honorably released from active duty on June
30, 2012, and requesting that she be reinstated in her “former
position.” Bramham testified at trial that by “former position”
she meant a full-time teaching position. She remained on the 39-
month rehire list as of the date of the letter—the rehire window
was set to expire 10 days later on September 30, 2012.
On September 30, 2012, LAUSD sent a letter to Bramham
stating that the 39-month rehire list had expired, and that
Bramham was not “reappointed because we did not reach your
seniority date to be rehired.” At that point, Bramham could
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reapply for a full-time teaching position, just like other laid-off
teachers in her cohort. She applied for positions and received
interviews, but was ultimately not hired.
Bramham then had multiple deployments over the next six
years. She also had medical issues making her unavailable for
substitute-teaching work in 2017 and 2019.
In the beginning of 2019, Bramham was still employed by
LAUSD as a substitute teacher, as she had been since 2009. In
February 2019, she signed a “Statement of Day-to-Day Substitute
Availability” to work two days per week. Between March 5 and
May 23, 2019, however, LAUSD’s call records show that LAUSD
could not reach Bramham by phone. Then, Bramham accepted
work on May 24 and May 30, 2019, but from May 31 through
November 13, 2019, LAUSD again could not reach Bramham by
phone.
On November 13, 2019, LAUSD sent Bramham a letter
notifying her that, effective November 18, 2019, she would be
“separated from service as a day-to-day K-12 Certificated
Substitute Teacher.” The letter explained that LAUSD’s records
indicated she had “not accepted a substitute assignment in the
past five months or more.” The letter further stated that if
Bramham believed she was receiving the letter in error, she
should contact the Substitute office immediately.
When Bramham received the letter, she was still on active
duty. Bramham contacted Jorge Amador, the Assistant Director
of the Certificated Substitute Unit, by phone and then met with
him in person to voice her concerns. She told Amador that she
was still on active duty and that she had not received any
substitute teaching assignments. Amador replied that he was
still going “forward with her termination.”
5
In early December 2019, Bramham contacted Amador’s
supervisor, Leanne Hannah. Bramham and Hannah had two
conversations on the phone. During the first conversation,
Bramham explained she had been deployed and that her phone
number was incorrect in LAUSD’s system. Hannah replied that
she would look into the issue. Hannah followed up with
Bramham by phone and told Bramham she was “still going
forward with the termination” and if Bramham felt there were
any violations of her employment rights, she could contact her
union. Hannah told Bramham she could reapply for a substitute
position and offered to assist Bramham with the reapplication
process.
Hannah also followed up on her phone conversations with
Bramham with an email on December 16, 2019. Hannah
explained: “Based on my research with both the Substitute Unit
and the Smart Find Express programmers, there was no
indication of a system error causing the change of your phone
number. On one occasion, you made a request via an ITD service
ticket on April 25, 2019 to have your phone number changed and
your phone number was updated. You indicated that one of the
phone numbers in the system was for your former school site
(Broadacres Elementary), however, I was not able to confirm any
of your phone numbers matched that of Broadacres Elementary.”
The email also provided Bramham with a link to reapply for a
substitute teacher position.
On December 29, 2020, Bramham filed this lawsuit against
LAUSD asserting eight claims under the USERRA and the
California Military and Veterans Code. The trial court granted
LAUSD’s motion for judgment on the pleadings on counts 2, 4, 6,
and 8, and LAUSD’s motion for summary adjudication of count 3.
6
The case, therefore, proceeded to trial on count 1 (failure to
reemploy Bramham in 2012 in violation of 38 U.S.C. §§ 4312 and
4313); count 5 (failure to reemploy Bramham in 2019 in violation
of 38 U.S.C. § 4312); and count 7 (discrimination in violation of 38
U.S.C. § 4311(a)).
At the close of evidence, LAUSD moved for nonsuit on all
three claims. The trial court granted partial nonsuit as to counts
1 and 7. The remaining count 5 went to the jury. The jury
returned a special verdict finding LAUSD terminated Bramham’s
employment as a substitute teacher, but the termination was not
because she was in the military. The trial court entered
judgment in favor of LAUSD, and Bramham timely appealed.
DISCUSSION
I. Special Verdict Form
The sole claim that went to the jury was count 5 for failure
to reemploy Bramham in 2019 in violation of section 4312.
Section 4312 provides, in relevant part, that a person whose
absence from employment is necessitated by reason of service in
the military “shall be entitled” to reemployment if: (1) the person
notifies the employer of his or her deployment; (2) his or her
cumulative length of absence does not exceed five years (subject
to exceptions); and (3) the person reapplied for the position.
The special verdict form here asked the jury: “In November
2019, did LAUSD terminate Plaintiff’s employment as a
substitute teacher for the School District?” The jury answered
“Yes.” Because the jury answered in the affirmative, it was then
instructed to answer the second question: “Was the reason that
LAUSD terminated Plaintiff’s employment because Plaintiff was
in the Military (Army)?” The jury answered “No” and was,
therefore, instructed to stop there and sign and return the form.
7
Bramham contends the special verdict form incorrectly
implied that plaintiff needed to show discriminatory animus on
the part of LAUSD despite the clear language of the statute
mandating reemployment if the employee meets the three
criteria listed in the statute. LAUSD agrees that if Bramham
satisfies the conditions for reemployment under section 4312,
“then she must be reemployed.” But LAUSD asserts that “[t]he
only issue is whether the jury verdict Question Number 2
captures that issue, and the answer is that it does.” We are
unpersuaded.
“A special verdict’s correctness is analyzed as a matter of
law and therefore subject to de novo review.” (Jackson v. AEG
Live, LLC (2015) 233 Cal.App.4th 1156, 1187.) Unlike a general
verdict (which implies finding on all issues in favor of the
plaintiff or defendant), “a special verdict is that by which the jury
find the facts only, leaving the judgment to the Court. The
special verdict must present the conclusions of fact as established
by the evidence, and not the evidence to prove them; and those
conclusions of fact must be so presented as that nothing shall
remain to the Court but to draw from them conclusions of law.”
(Code Civ. Proc., § 624.)
Here, the special verdict form asked if the reason LAUSD
terminated Bramham was because she was in the miliary. But
whether LAUSD terminated Bramham because she was in the
military does not answer the different question of whether
LAUSD violated section 4312. That section provides a right to
reemployment to members of the armed services as long as three
criteria are met; showing discriminatory animus is not a
criterion. Contrary to LAUSD’s assertion, Question No. 2 of the
special verdict form did not “capture” the elements of a section
8
4312 claim. Thus, the special verdict was fatally deficient in that
the jury was neither requested to, nor did it, make the necessary
findings for a violation of section 4312. Instead, the jury
answered a different question regarding discriminatory animus.
LAUSD argues any error would be harmless because
Bramham cannot prove two elements of section 4312—that she
satisfied the five-year rule and that she reapplied as a substitute
teacher. We are unconvinced. With respect to the five-year rule,
LAUSD merely argues that “on the face of the evidence,
Bramham served more than five cumulative years” and she did
not provide any “expert testimony” to assist the jury in
determining whether any of the exceptions to the five-year rule
would apply. This is insufficient to show that none of the
exceptions apply as a matter of law.
As to the issue of whether Bramham reapplied for a
substitute teaching position, LAUSD cites Bramham’s testimony
that she “went to [the] link to reapply” and “it’s the same
application process” for both full time and substitute teaching.
LAUSD claims this testimony proves Bramham only reapplied
for a full-time position and not the substitute teacher position.
The cited testimony, however, was ambiguous and does not
conclusively prove Bramham never reapplied for a substitute
teaching position. This was a jury question.
We cannot conclude the erroneous special verdict form was
harmless because the jury did not make any of the necessary
findings for a violation of section 4312, and we will not speculate
what the jury would have decided. Indeed, not only did the jury
not make the necessary findings for a violation of section 4312,
but the verdict form effectively required Bramham to prove an
element she did not need to prove. Thus, on these facts, we
9
cannot “conclude that the judgment is ‘clearly right’.” (Taylor v.
Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246.)
II. Jury Instruction on Section 4312
Bramham contends the trial court erred by incorrectly
instructing the jury regarding the elements of a claim under
section 4312.3 As discussed above, under section 4312, employees
are entitled to reemployment if they meet the three criteria listed
in that section. The second criterion is that the cumulative
length of their absence due to military service must not exceed
five years, absent certain exceptions. (38 U.S.C. § 4312(a)(2).)
Those exceptions, which are complicated and include several
subparts, are detailed in section 4312, subdivision (c).
Bramham asserts the trial erred by failing to include the
enumerated exceptions to the five-year rule. Bramham
acknowledges her cumulative absences exceeded five years, but
argues three exceptions apply: (1) section 4312(c)(3), which
provides the five-year calculation shall not include any service “to
fulfill additional training requirements determined and certified
in writing by the Secretary concerned, to be necessary for
professional development, or for completion of skill training or
retraining”; (2) section 4312(c)(4)(C), which excludes time from
the five-year calculation in which the servicemember was
“ordered to active duty (other than for training) in support, as
determined by the Secretary concerned, of an operational mission
3 Bramham’s counsel claims the trial court “deliberately and
intentionally misstated the law on the jury special instructions.” Such
a serious accusation regarding the integrity of the trial court,
unsupported by any evidence in the record, is a violation of counsel’s
ethical duties. (See A Company Hungary KFT v. Bespalov (2026) 122
Cal.App.5th 341.) We caution counsel to refrain from this unethical
conduct in the future.
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for which personnel have been ordered to active duty
under section 12304 of title 10;” and (3) section 4312(c)(3)(B),
which excludes time from the five-year calculation in which the
servicemember was “ordered to or retained on active duty (other
than for training) under any provision of law because of a war or
national emergency declared by the President or the Congress, as
determined by the Secretary concerned.”
Although there may be some merit to Bramham’s
contention of instructional error, we cannot reverse the judgment
on this basis. As the appellant, Bramham has the burden on
appeal to show error. (Byars v. SCME Mortgage Bankers, Inc.
(2003) 109 Cal.App.4th 1134, 1140.) To meet her burden, she
must support her points with reasoned argument, authority, and
record citations, or they may be deemed forfeited. (Coziahr v.
Otay Water Dist. (2024) 103 Cal.App.5th 785, 799.)
Here, Bramham forfeited her argument regarding
instructional error because she does not cite the full instruction
given at trial. Nor does she provide us with a record citation to
her proposed instruction, or state the proposed instruction in her
appellate brief. Rather, Bramham merely argues the court erred
by omitting “these” exceptions from the special instruction, and it
is unclear whether she is referring to all the exceptions or the
three identified in her appellate brief. Braham’s citation to the
Federal Rules of Civil Procedure is unhelpful because they do not
apply to these state court proceedings. (Simmons v. Ware (2013)
213 Cal.App.4th 1035, 1047; see also Erie R.R. v. Tompkins
(1938) 304 U.S. 64.)
Assuming we excuse Bramham’s forfeiture, on this record,
Bramham has not met her burden on appeal to show error.
However, because we are remanding the matter for a new trial on
11
count 5, we instruct the court, on remand, to permit the parties to
resubmit proposed jury instructions regarding the elements of
section 4312 and the applicable exceptions. The trial court shall
reconsider the appropriate instruction based on the parties’
submissions and oral argument.
III. Nonsuit on Counts 1 and 7
Bramham lastly contends the trial court erred by granting
LAUSD’s motion for nonsuit on count 1 (failure to reemploy
Brahman in 2012 in violation of 38 U.S.C. §§ 4312 and 4313) and
count 7 (discrimination in violation of 38 U.S.C. § 4311(a)). We
conclude the trial court correctly determined that the evidence
presented by Bramham was insufficient, as a matter of law, to
permit the jury to find in her favor on either count.
A. Standard of Review
“ ‘A nonsuit in a jury case or a directed verdict may be
granted only when disregarding conflicting evidence, giving to
the plaintiffs’ evidence all the value to which it is legally entitled,
and indulging every legitimate inference which may be drawn
from the evidence in plaintiffs’ favor, it can be said that there is
no evidence to support a jury verdict in their favor. [Citations.]’ ”
(Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 669
(Hernandez).) “Nonsuit is appropriate where the plaintiff's proof
raises nothing more than speculation, suspicion or conjecture.”
(Ibid.) “A mere ‘scintilla of evidence’ does not create a conflict for
the jury’s resolution; ‘there must be substantial evidence to create
the necessary conflict.’ ” (Nally v. Grace Community Church
(1988) 47 Cal.3d 278, 291 (Nally).)
In reviewing a grant of nonsuit, we are “ ‘guided by the
same rule requiring evaluation of the evidence in the light most
favorable to the plaintiff.’ ” (Nally, supra, 47 Cal.3d at p. 291.)
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The judgment of nonsuit will be affirmed if a judgment for the
defendant is required as a matter of law, after resolving all
presumptions, inferences and doubts in favor of the
plaintiff. (Hernandez, supra, 215 Cal.App.4th at p. 669.)
B. Count 1 (failure to reemploy Bramham in 2012)
Under the USERRA, “[a]s a general rule, the employee is
entitled to reemployment in the job position that he or she would
have attained with reasonable certainty if not for the absence due
to uniformed service. This position is known as the escalator
position. The principle behind the escalator position is that, if
not for the period of uniformed service, the employee could have
been promoted (or, alternatively, demoted, transferred, or laid
off) due to intervening events. The escalator principle requires
that the employee be reemployed in a position that reflects with
reasonable certainty the pay, benefits, seniority, and other job
perquisites, that he or she would have attained if not for the
period of service.” (20 C.F.R. § 1002.191.)
“If the employee is on layoff and begins service in the
uniformed services, or is laid off while performing service, he or
she may be entitled to reemployment on return if the employer
would have recalled the employee to employment during the
period of service.” (20 C.F.R. § 1002.42(a).) However, “[i]f the
employee is laid off before or during service in the uniformed
services, and the employer would not have recalled him or her
during that period of service, the employee is not entitled to
reemployment following the period of service simply because he
or she is a covered employee. Reemployment rights under
USERRA cannot put the employee in a better position than if he
or she had remained in the civilian employment position.” (Id.,
§ 1002.42(c).)
13
Here, Bramham was laid off in 2009 and placed on the 39-
month rehire list. The most senior teachers on the list were
rehired first. Leanne Hannah, the Director of Human Resources,
testified that Bramham’s seniority date as a teacher was
September 4, 2007. Bramham was never rehired off the list
because LAUSD did not reach her seniority date (i.e., other
teachers with more seniority were still on the list). Thus, the
evidence demonstrates that whether Bramham was deployed or
not, she would have remained on the 39-month rehire list in
2012, and her name would not have been selected by the time the
39 months had expired because her seniority date was not
reached. In other words, Bramham was only entitled to
reinstatement in a substitute teaching position upon her return
from duty in September 2012, while remaining on the rehire list
until September 30, 2012. She was, therefore, treated the same
as other laid-off teachers whose seniority date was not reached to
be rehired. (20 C.F.R. § 1002.42(a) & (c).)
Bramham contends she “was able to provide sufficient
evidence that she would have been rehired as a full-time teacher
with reasonable certainty from that 39-month list.” In support of
her assertion, Bramham claims that she “called into question the
rehiring of a comparator, Cecile Cho, who [LAUSD] argued was
only rehired from the 39-month list because of a bilingual
credential in Korean.” Specifically, Bramham claims that the
2010/2011 rehire list did not reflect Ms. Cho had this Korean
authorization, “thereby calling into question the legitimacy of
these claims that [Bramham] was not leapfrogged over by other
individuals for a full-time teaching position in 2012.” But
Bramham does not cite any evidence in the record for this
assertion. Rather, she cites to a page of her memorandum of
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points and authorities in opposition to LAUSD’s motion for
nonsuit. Arguments in briefs are not evidence. (See, e.g. In re
Marriage of Pasco (2019) 42 Cal.App.5th 585, 591 [“A trial brief is
not evidence, it is argument”].) Bramham has, therefore, not
carried her burden on appeal to show the trial court erred by
granting nonsuit on count 1.
C. Count 7 (discrimination based on military
service)
The USERRA prohibits discrimination against persons
because of their service in the uniformed services. Under 38
U.S.C., section 4311(a), a servicemember shall not be denied
“reemployment, retention in employment, promotion, or any
benefit of employment” on the basis of their military
membership. An employer shall be considered to have engaged
in the actions prohibited “under subsection (a), if the person’s
membership, application for membership, service, application for
service, or obligation for service in the uniformed services is a
motivating factor in the employer’s action, unless the employer
can prove that the action would have been taken in the absence of
such membership, application for membership, service,
application for service, or obligation for service.” (38 U.S.C.,
§ 4311(c)(1).)
Bramham argues the evidence at trial established the
reason for her termination as a substitute teacher in November
2019 was because she was in the military. She fails to cite
evidence in the record, however, supporting this assertion.
According to LAUSD, Bramham’s termination was because she
had not accepted a service call as a substitute between May 30,
2019, and November 18, 2019. Bramham contends this assertion
“leaves out crucial information” because LAUSD had the wrong
15
phone number in the automated call system, which was
eventually corrected by Amador but then reverted back to the
incorrect phone number shortly after June 2019. She claims that
“[a] simple review of the phone records show the incorrect phone
number from June 1, 2019 until November 2019 was the same
incorrect phone number that Jorge Amador already knew about
and corrected in April 25, 2019.” But in support of this assertion,
Bramham cites a page of her declaration submitted in support of
her opposition to LAUSD’s summary judgment motion, which
states nothing about LAUSD’s phone records.
Moreover, even if Bramham could prove that LAUSD had
the wrong phone number for a period of time, that fact alone does
not show Bramham’s membership in the military was a
motivating factor for the termination. At most, it shows LAUSD
terminated Bramham based on its mistaken belief that she was
intentionally not returning LAUSD’s phone calls. (See Guz v.
Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358 [employers may
legally terminate employees for nondiscriminatory reasons that
are unwise or incorrect].) We therefore conclude the trial court
correctly granted nonsuit after finding LAUSD had a legitimate
non-discriminatory reason for Bramham’s termination.4
DISPOSITION
The judgment is reversed in part. The matter is remanded
for retrial of count 5. On remand, the parties may submit, and
the court shall consider, the parties’ proposed special jury
4 We also note that, even if the court erred by granting nonsuit,
the error would have been harmless in light of the jury’s special verdict
finding that the reason LAUSD terminated Bramham was not because
she was in the military.
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instructions on section 4312. The trial court’s grant of LAUSD’s
motion for nonsuit on counts 1 and 7 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
DAUM, J.
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