Kresich v. Stolpman, Krissman, Elber & Silver

Filed 6/2/08 Kresich v. Stolpman, Krissman, Elber & Silver CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Wade, Judge. Affirmed.

C. Brent Scott for Plaintiff and Appellant.

Hinshaw & Culbertson, Frances M. OMeara and Filomena E. Meyer for Defendant and Respondent.

I. INTRODUCTION

Defendant Stolpman, Krissman, Elber & Silver, LLP (SKE&S) represented plaintiff Tona Kresich in a lawsuit against the San Bernardino County Superintendent of Schools (SBCSS). Kresich had sued SBCSS for claims arising from alleged sexual harassment, gender discrimination, and retaliation (the SBCSS action). SBCSS prevailed in that action. Kresich then sued SKE&S for malpractice. Kresich claimed that new claims arose against SBCSS after the underlying case was filed, and that SKE&S failed to assert these claims or advise her as to statutes of limitations. As a result, she was denied the opportunity to recover damages for such claims. During trial, the court granted SKE&Ss motion for judgment pursuant to section 631.8 of the Code of Civil Procedure. In essence, the court found that while SKE&S was negligent in failing to advise Kresich of the applicable statutes of limitations, Kresich would not have prevailed on the new claims if they had been litigated. Therefore, she suffered no harm.

On appeal, Kresich argues that the court erred in entering judgment for SKE&S because she presented substantial evidence to support her new claims of discrimination. She also contends that the trial judge belatedly disclosed his friendship with a witness and made certain erroneous evidentiary rulings. We reject these arguments and affirm the judgment.

II. Summary of Facts

At the relevant times, Kresich was a principal in the San Bernardino County School District. In October 1998, she commenced the SBCSS action against SBCSS and other defendants. Kresich alleged causes of action for defamation, sexual harassment, sex and age discrimination, and retaliation in violation of public policy. Her claims were based upon alleged conduct occurring between September 1993 and the filing of the SBCSS action.

Kresich was originally represented in the SBCSS action by the firm of J.D. Rowell & Associates. In May 2001, Kresich retained SKE&S to represent her and substitute into the SBCSS action. The retainer agreement between Kresich and SKE&S provides that the law firm is retained to represent [Kresich] in all claims for damages arising out of the incidents alleged in [the SBCSS action]. SKE&S also represented Kresich and other individuals in connection with a qui tam action against SBCSS.

In August 2003, the trial court granted SBCSSs motion for summary adjudication as to her defamation, harassment, and discrimination causes of action. The case proceeded to trial on the remaining cause of action for retaliation. In October 2003, the court granted SBCSSs motion for nonsuit. SKE&S assisted Kresich with filing a notice of appeal in pro. per. in November 2003, but did not thereafter represent her in connection with the SBCSS action. The firm continued to represent her in the qui tam action until late 2004 or early 2005.

In August 2004, Kresich sued SKE&S for legal malpractice. In her complaint, Kresich described conduct by SBCSS and its administrators that occurred after the filing of the SBCSS action and prior to the trial of that case. As is relevant here, this conduct included the denial of interviews for area director positions, the failure to promote her, and an incident in which a supervisor, Steven Bell, grabbed her from behind, fondled her breasts, and slammed her into a counter. Such conduct, Kresich alleged, supported new claims for discrimination and retaliation, as well as assault and battery. (We will refer to the allegations of conduct occurring after the commencement of the SBCSS action as the new claims.) Kresich further alleged that (among other acts of malpractice) SKE&S failed to file (1) an amended Department of Fair Employment and Housing (DFEH) complaint and an amended pleading in the SBCSS action to include the new claims, and (2) a government tort claim regarding the alleged assault and battery by Bell.^[1] Because of these failures, the claims were barred. She further alleged that the new claims were viable and, if SKE&S had not failed to file the necessary amendments and tort claim, she would have prevailed against SBCSS.

The case was tried to the court. Regarding the alleged denial of interviews and failure to promote her, Kresich presented evidence of four openings for area director positions in 2000, 2001, 2002, and 2004. Kresich made no effort to apply for the first three of these positions. The fourth position, announced in October 2003, had an application deadline of November 4, 2003. Interviews for this position were held on November 17, 2003. Kresich did not timely apply and was not interviewed for the position. On November 21, 2003, Kresich requested permission to submit a late application. The opening was subsequently closed without being filled. The position was reopened in August 2004. Kresich applied for the position and was among several candidates interviewed. The potential candidates were narrowed after the first round of interviews to two candidates: Susan Condrey and Donald Nute. The position was ultimately filled by Donald Nute.

Following the initial round of interviews, Chris Sherman, one of the interviewers, suggested to another interviewer that the process was rigged to give Nute the job. Other members of the selection committee testified that Nute was hired over Kresich because he was the better candidate for the job and performed better in the interview. They testified that age, race, gender, and disability were not factors they considered in the hiring process.

At trial, Stolpman testified that Kresich first told him in late 2002 or early 2003 that the district had filled area director positions. Stolpman told her that if she did not apply for the positions, she could not claim that they discriminated or retaliated against her for failing to promote her. SKE&S did not file a DFEH complaint regarding the alleged denial of promotional opportunities on Kresichs behalf; nor did the firm advise Kresich of statutes of limitations applicable to claims arising from such denial.

Following the presentation of evidence by Kresich, the court granted SKE&Ss motion for judgment pursuant to Code of Civil Procedure section 631.8. In its statement of decision, the court found: (1) SKE&S had a duty to inform and advise Kresich of the limitations periods pertaining to the new claims and failed to fulfill that duty; and (2) there is a causal connection between SKE&Ss breach of the duty to inform and advise Kresich of the limitations periods and the loss of Kresichs right to pursue the new claims. The court then turned to what it described as the deciding element of this case. Based on all the evidence presented, the court was unconvinced that [Kresich] has suffered any loss or damage. In particular, the court found that she failed to apply for the first three of the four openings, and the fact that she was not chosen for the fourth opening was unpersuasive evidence of retaliation or discrimination. Moreover, Kresich had not suffered an adverse employment action, such as termination, demotion, reduction in pay or status, lost benefits, reduction of responsibilities, or anything else which would corroborate her allegations of retaliation or discrimination.

The court also rejected Kresichs evidence of a hostile work environment as insufficient and unpersuasive. The court concluded: Had [Kresich] perfected her claims of discrimination, retaliation, hostile work environment[,] and battery[,] she would not have been successful in any trial on those issues. Her evidence is too unpersuasive on any of those claims. Having failed to prove she suffered actual loss or damage[,] she has lost this case.

III. ANALYSIS

A. Standard of Review

Code of Civil Procedure section 631.8 provides, in relevant part: After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in [Code of Civil Procedure] Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. (Code Civ. Proc.,  631.8, subd. (a).) The purpose of this statute is to enable the court, when it finds at the completion of plaintiffs case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact. [Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain [her] burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence. [Citations.] (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012.) Indeed, the court may refuse to believe witnesses and draw conclusions at odds with expert opinion. (Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200; Miller v. Dussault (1972) 26 Cal.App.3d 311, 316.)

The standard of review of a judgment and its underlying findings entered pursuant to [Code of Civil Procedure] section 631.8 is the same as a judgment granted after a trial in which evidence was produced by both sides. In other words, the findings supporting such a judgment are entitled to the same respect on appeal as are any other findings of a trial court, and are not erroneous if supported by substantial evidence. [Citations.] Consequently, where a trial courts factual finding is challenged on the ground there is no substantial evidence to sustain it, the power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial courts determination. [Citation.] [] The appellate court views the evidence in the light most favorable to the respondents [citation], resolves all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial courts findings [citation]. However, when the decisive facts are undisputed, the reviewing court is confronted with a question of law and is not bound by the findings of the trial court. [Citation.] In other words, the appellate court is not bound by a trial courts interpretation of the law based on undisputed facts, but rather is free to draw its own conclusion of law. [Citation.] (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.)

B. Background

In a legal malpractice action arising from a civil proceeding, the elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorneys negligence. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) To establish harm or damage, the plaintiff must show more than a mere probability that she would have prevailed if the breach had not occurred; she must show to a legal certainty that the damages resulted from her lawyers negligence. (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461; Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 663.)

Here, the court found that SKE&S breached its standard of care by failing to inform and advise Kresich of statutes of limitations pertaining to her new claims. The court further found that a causal connection existed between SKE&Ss breach of duty and the loss of the right to pursue the new claims. These findings are not disputed on appeal. The issues in this appeal arise from the courts findings that Kresich failed to prove that she was harmed as a result of the loss of her right to pursue the new claims; that is, because Kresich would probably not have prevailed on her new claims if they had been litigated, the loss of the right to pursue them caused her no harm.

C. Courts Understanding of the Relevance of Kresichs Underlying Discrimination Claims to This Malpractice Action

Kresich contends that the trial court did not understand the relevance of proving Kresichs new claims of gender discrimination and retaliation against SBCSS. She relies upon certain statements made by the court during the course of the trial that allegedly show that the court was confused and misunderstood the law. For example, when Kresichs counsel asked Bell about facts pertaining to her claim of retaliation by SBCSS, the court interjected: Ive been giving you a lot of latitude about all this, but were really far afield here now. Whether or not Miss Kresich was discriminated against really doesnt make any difference in this lawsuit. So were going through all this testimony and all this evidence about whether or not she should have been promoted, and Ive been giving you a lot of room about this. [] . . . [] . . . But I dont care whether she should have been. I dont even care whether she was discriminated against or not. So were going through all this stuff, and it doesnt make any difference whether she was discriminated against in this lawsuit because she could have been treated very shabbily. There could have been gender discrimination. She could have even been sexually harassed on the job, which I think is despicable conduct, but the evidence from Mr. Bell is not going to the issue of whether or not Mr. Stolpman was negligent.^[2]

Kresichs counsel then explained why such evidence is relevant: The reason is that the plaintiff has the burden to show that she actually incurred damages as a result of Mr. Stolpmans actions. We have to show that she was denied promotion or some adverse action was taken in order to establish the damages, your Honor.

Kresichs counsel was correct: Evidence supporting the new claims of unlawful discrimination and retaliation was relevant to show that she had incurred damages as a result of SKE&Ss failure to advise her about the new claims. And we agree with Kresich that the courts statement that it did not care whether she was discriminated against or not, reflects a misunderstanding of the relationship between such evidence and her claim of damages in this case.

What happened next, however, altered the course of the proceedings and is critical to our review. After Kresichs trial counsel explained how the evidence of discrimination was relevant, the court responded: Thats true. Ill grant you that. The court then allowed Kresichs counsel to question Bell and other witnesses about the underlying discrimination and retaliation claims. In light of this clear and unqualified acceptance of counsels argument, we find no error. Indeed, Kresich does not assert that the court made any particular evidentiary ruling that requires reversal.

Kresich appears to argue that the courts initial misunderstanding regarding the relevance of discrimination evidence continued to taint its understanding of the law and rendered the courts judgment flawed. We disagree. Even if the court did not initially understand the relevance of discrimination evidence to the element of causation in this case, the courts statement of decision makes clear that it did so when it mattered. Regarding causation, the court stated: Although the evidence is sparse as to this fact, it is inferred the Plaintiff lost her ability to file claims and lawsuits regarding age, sex and gender discrimination in employment, and retaliation, and for sexual battery, and hostile work environment since she was not advised on how to file such claims and the applicable limitations periods, and the time lapsed. [] Such is the causal connection between the failure to advise and the Plaintiffs failure to act. Plaintiff lost her right to sue due to Defendants failure to advise her of her rights and the necessary procedures to perfect such rights. Regarding damages, the court addressed the merits of the discrimination claims in determining whether Kresich suffered actual damages. Although Kresich disagrees with the courts conclusion, the courts treatment of the claims indicates that the court understood the relevance of the evidence of the underlying discrimination claims to this malpractice case.

With respect to the courts findings on the merits of Kresichs discrimination and retaliation claims, Kresichs principal argument is that the court erred in concluding that her failure to apply for Area Director positions in 2000, 2001, and 2002 precludes the new claims related to these positions.^[3] We find no error. Courts have repeatedly held that applying for an employment position is generally required to prove discrimination based upon a failure to hire. (See, e.g., McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 [93 S.Ct. 1817, 36 L.Ed.2d 668]; Tagupa v. Board of Directors (9th Cir. 1980) 633 F.2d 1309, 1312; Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1329.)

Kresich argues, however, that it would have been futile for her to apply for the first three Area Director positions and, therefore, she was excused from the application requirement. She relies upon International Bro. of Teamsters v. United States (1977) 431 U.S. 324 [97 S.Ct. 1843, 52 L.Ed.2d 396] (International Bro.). In International Bro., the United States brought an action under the Civil Rights Act of 1964 against an employer alleging that the employer engaged in discriminatory hiring patterns or practices against minorities. (Id. at pp. 328-329.) The Supreme Court held that the government had established that the employer engaged in a pattern of discriminatory hiring, assignment, transfer, and promotion policies. (Id. at p. 347.) The court then turned to the remedy available to individuals who suffered from such discrimination. The employer argued that each individual who was purportedly harmed by such discrimination must prove that he actually applied for a position. (Id. at p. 363.) The court rejected this argument, stating: When a persons desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application. (Id. at pp. 365-366.) The court explained, however, that this holding is a far cry . . . from holding that nonapplicants are always entitled to such relief. A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily claiming that he was deterred from applying for the job by the employers discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices. (Id. at pp. 367-368.) In International Bro., the government failed to satisfy this burden. (Id. at p. 371.)

Under International Bro., the question of whether it would have been futile to apply for a position is reached only if the plaintiff establishes that the employer engaged in discriminatory practices that rendered the application futile. Whether SBCSS engaged in such practices is a question of fact for the court. Here, the trial court expressly found that there was no persuasive proof of any discrimination. And while there was some evidence of retaliation, the evidence was unpersuasive. We review these findings to determine whether they are supported by substantial evidence.

At this point, we must address an apparent misunderstanding by Kresich regarding the nature of our review. Kresich asserts that she proved by substantial evidence that SBCSS did discriminate and take adverse employment actions against her based on her gender. (Capitalization and bolding omitted.) Regarding discrimination, Kresich asserts that she presented substantial evidence of a long history and pattern of gender discrimination by male administrators at SBCSS taken against her and other female administrators for an extensive period of time, and overwhelming evidence of her superior qualifications, work history and dynamic leadership over the meager evidence and limited qualifications of the [four] males who were selected as Area Directors . . . .

Relative to retaliation, Kresich argues that she has an equally strong new claim against SBCSS for retaliation. She lists numerous examples of incidents that she asserts constitute adverse employment actions taken against her since 1993. She concludes that the trial court abused its discretion by finding unpersuasive evidence of retaliation and that [she] far exceeded her burden of proof to demonstrate that SBCSS repeatedly retaliated against her and threaten(ed) to derail her career from 2000-2004.

These arguments reflect a misunderstanding of Kresichs burden on appeal. As stated above, in determining whether a judgment is supported by sufficient evidence, we must view the evidence in a light most favorable to SBCSS and will reverse only if there is no substantial evidence to support the judgment. The issue is not, as Kresichs argument implies, whether she presented substantial evidence to support her claims, but whether there is substantial evidence to support the judgment against her. In resolving this issue, we do not reweigh the evidence or reconsider the courts credibility determinations. (Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.)

Indeed, there may well be substantial evidence to support her claims of discrimination and retaliation. That is, if the trial court found in her favor, the voluminous documentary evidence she presented and the testimony of her many witnesses would have undoubtedly provided sufficient evidence of discrimination and retaliation to support a judgment in her favor. But the court, as the factfinder in this case, did not find in her favor. Therefore, we are unconcerned with whether Kresichs evidence, if believed, would support her claims. Rather, our role is limited to determining whether there is any substantial evidence in the record to support the judgment in SKE&Ss favor.

To satisfy her burden on appeal, Kresich is required to set forth all the material evidence supporting the judgment on this point, not merely the evidence supporting her position. (See Rodriguez v. North American Rockwell Corp. (1972) 28 Cal.App.3d 441, 447-448.) Kresich does not do so. Instead, she describes at great length the evidence she presented in support of her claims, and asserts that her testimony alone was sufficient to establish substantial evidence of disparate treatment and adverse employment actions taken against her. We, however, must review not only her evidence and testimony, but the entire record to determine whether there is substantial evidence to support the judgment. By failing to tailor her argument to the appropriate standard of review, Kresich has failed to satisfy her burden of showing error on appeal. (See People v. Foss (2007) 155 Cal.App.4th 113, 126.)

Moreover, there is substantial evidence in the record to support the courts findings regarding discrimination and retaliation. Kresich relies on evidence that she had been told by school officials not to apply for positions and that she would not be promoted. However, the officials who purportedly made these statements denied them at trial; and even if they did occur, the court could reasonably conclude, as it did, that such statements were not school district policy, but at most, the expression of opinion as to her chances of promotion. Relative to the one Area Director position for which Kresich applied, members of the selection committee testified that Kresichs gender was not a factor in the hiring process. One member testified that he believed that Nute (the person hired) would do a better job [than Kresich] in the position. Another testified that Nute was more qualified than Kresich and was the best candidate for that position. Any credibility issues regarding such testimony are the sole province of the trial court. From such evidence, the court could reasonably conclude that the selection process employed by the school district for its administrators was fair and fairly applied to [Kresich].

To the extent that Kresich challenges the trial courts interpretation of law, we find no error. Her arguments directed at the courts factual findings are rejected because there is substantial evidence to support such findings.

D. Courts Disclosure of Relationship With a Witness and Ruling Regarding Chris Sherman Testimony

Kresich contends that the court abused its discretion by making late disclosures of potential bias followed by prejudicial rulings about SBCSSs selection process. (Capitalization omitted.) The argument appears to have two components: the late disclosures of potential bias refers to the courts statements concerning witness Dennis Popka; the prejudicial rulings refers to evidentiary rulings concerning the testimony of Chris Sherman.

1. Disclosure of Relationship With Dennis Popka

Prior to the start of trial, the court and counsel reviewed the parties witness lists. Dennis Popka was on both lists. The court commented, I know Dennis. Hes an attorney. Popka was an attorney for SBCSS in the SBCSS action. During trial, Kresich called Popka to testify as a retained expert as to the attorney fees Kresich would likely have incurred if she had successfully pursued the new claims. Over SKE&Ss objection, the court allowed Popka to testify. The court then stated: I have a disclosure to make. Mr. Popka and I went to law school together. We graduated at the same time, and Ive known Mr. Popka for a long time. He is in fact a friend of mine. We dont see each other very often[,] but we do see each other. So Im disclosing that to you. Kresichs counsel responded, Yes, your Honor. The court added: One more thing concerning the disclosure. Mr. Popka and I have not discussed this case in any regard at all. Kresichs counsel was then allowed to question Popka about his fees in the SBCSS case and his general billing rates.

Kresich did not ask the judge to recuse himself, make any motion to disqualify the judge or for mistrial; she did not file an objection pursuant to Code of Civil Procedure section 170.3, subdivision (c).^[4] Nor is there is anything in the record to indicate that Kresichs counsel was in any way concerned about the disclosure. She has thus failed to preserve the argument for review. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218; People v. Seaton (2001) 26 Cal.4th 598, 698.) Moreover, Kresich fails to explain how the late disclosure was prejudicial. (Indeed, having retained Popka to testify on Kresichs behalf, one would expect that any bias resulting from the courts friendship with Popka would be in Kresichs favor.) The argument is without merit.

2. Evidentiary Rulings Concerning Chris Sherman Testimony

The second component of Kresichs argument is based upon evidentiary rulings concerning witness Chris Sherman. Sherman is an educational assistant with SBCSS and was on the selection committee for the 2004 area director position. Kresich was one of six applicants for the position. On direct examination by Kresichs counsel, the following exchange took place:

[Kresichs counsel]: . . . Do you recall, after the interview process, the selection panel that you sat on, leaving the interview room and making a statement to the effect that the process appeared rigged to you or something to that effect?

[SKE&S counsel]: Objection, foundation, hearsay.

THE COURT: Sustained. He may not answer that question.

[Kresichs counsel]: Did you ever file any kind of complaint saying that you believed that the selection process used that day was unfair

THE COURT: Same objection sustained.

We review evidentiary rulings for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) We find no error. The questions by Kresichs counsel called for evidence of out-of-court statements (what Sherman said after leaving the interview room and in a complaint) that appear to have been offered to prove the truth of the matters asserted (that the process appeared rigged and that the selection process was unfair). The questions thus called for hearsay. (See Evid. Code,  1200, subd. (a).) Kresichs counsel made no argument that there was an applicable exception to the hearsay rule. Sustaining the objection on the basis of hearsay was thus within the courts discretion. Moreover, the evidence that Sherman made the comment that the interview process was rigged was already introduced through McLaughlins testimony. There was no offer of proof that the questions posed to Sherman would have elicited any different testimony. Accordingly, even if the challenged questions did not call for hearsay, Kresich has failed to show prejudice as a result of the exclusion.

IV. DISPOSITION

The judgment is affirmed. SKE&S is awarded its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Gaut

J.

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^[1] On appeal, Kresich does not pursue any argument based upon the alleged assault and battery by Bell.

^[2] Kresich also relies upon statements by the court at an earlier point in the trial. The court stated, for example, that [t]he issue here isnt whether the school district was discriminatory or not, and that evidence of prior complaints about the districts treatment of women was irrelevant because the districts not on trial here.

^[3] Kresich also asserts that the court made some incorrect rulings about her new claims. She challenges various statements in the courts statement of decision, including: There is no obligation on the part of school district administrators to invite or encourage a principal to apply for a higher position; There was no evidence that [Kresich] had been excluded from the school district mailing list; When [Kresich] was told that she would not be promoted within the school district . . . [s]uch a single act is not an environment of hostility . . .; and Once a candidate for any position meets the minimum qualifications then who is most qualified becomes a subjective decision. To support her contention that these statements are incorrect, Kresich asserts in a conclusionary manner that equal opportunity in itself demands equal notice, assistance and encouragement for advancement. The argument, made without citation to either legal authority or the record, is wholly unsupported and therefore waived. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [any point raised that lacks citation may, in this courts discretion, be deemed waived].)

^[4] Code of Civil Procedure section 170.3, subdivision (c), provides, in part: If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.