Nagra v. Teng

Filed 1/2/08 Nagra v. Teng CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael R. Hoff, Judge. Affirmed.

Roy Legal Group and Raj D. Roy for Plaintiff and Appellant.

Hillings & Gross and David M. Hillings for Defendant and Respondent.

______________________________________

Plaintiff Jarnail Singh Nagra (Nagra) pursued an administrative claim before the California Labor Commissioner (Commissioner), alleging that defendant Johnny Yen‑Li Teng (Teng), his former employer, was liable for overtime pay and related penalties. A hearing officer presided over the matter and issued a written decision in favor of Teng, finding that Nagras evidence was not credible.

Nagra appealed the Commissioners decision to the trial court, seeking a trial de novo. The matter was tried to the court. In a statement of decision, the trial court also found in Tengs favor, concluding that Nagras testimony and evidence were not credible.

On appeal, Nagra contends that the trial court abused its discretion by resolving evidentiary conflicts against him. But that is not the proper standard of review. Rather, the question is whether the judgment is supported by substantial evidence. Because Nagra has not briefed the proper legal issue, he has waived it. We therefore affirm.

I

BACKGROUND

The following facts are taken from Nagras appellate briefs, which contain relatively few record citations. We ignore factual assertions in a brief that are not supported by an accurate citation to the record. (See Duarte v. ChinoCommunityHospital (1999) 72 Cal.App.4th 849, 856; Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5; Cal. Rules of Court, rule 8.204(a)(1)(C).)

Teng owns a 7‑Eleven store in Van Nuys, California. Nagra worked there from March 1996 to January 2005 as a cashier.

Less than a week after his employment ended, Nagra filed an administrative claim with the Commissioner, alleging that he was paid $9 an hour and worked 74 hours a week. According to the claim, Nagra had not been paid overtime compensation. He sought $59,280.90 in overtime compensation, covering a period of three years, plus waiting time penalties at the rate of $72 a day for the same period. (See Lab. Code,  203.) Nagra later filed a formal complaint with the Commissioner.

The Commissioner designated a hearing officer to adjudicate the claim. The hearing was held on April 11, 2006. Nagra testified, as did a friend of his. For the defense, Teng and Amrik Singh Sarai, the store manager, testified. Both sides introduced exhibits.

By written decision dated August 9, 2006, the hearing officer concluded that Nagra shall take nothing by virtue of his complaint. The officer found that Nagras testimony conflicted with that of his own witness as to the hours he worked and that two of Nagras exhibits appeared to have been altered, rendering the documents simply not credible. Further, Tengs exhibits, particularly the time and payroll records, showed an abundance of overtime wages being paid to employees. And the store managers testimony  which included, if the Plaintiff worked overtime, he was paid overtime wages  was extremely credible.

On August 24, 2006, Nagra filed a notice in the trial court, appealing the Commissioners decision and requesting a trial de novo. (See Lab. Code,  98.2, subd. (a).) The matter was tried to the court over three days in November and December 2006.

On December 4, 2006, the trial court issued a statement of decision, reciting: Mr. Jarnail Nagra was an employee of Mr. Johnny Yen-Li Tengs 7-Eleven Food Store. Mr. Nagra presented two basic claims. Claim number 1 was for unpaid regular and overtime pay for the period of January 9, 2002 to January 9, 2005. The amount claimed was $59,280.90. Claim number 2 was for waiting time penalties per Labor Code Section 203 at the rate of $72.00 per day.

Mr. Nagra and all the Punjab-speaking witnesses were assisted by an interpreter furnished by Mr. Nagra.

Mr.  Nagra testified that he worked 74 hours per week, every week for the three years in question. Mr. Nagra testified that he worked 7 days per week. He testified that he was paid for 40 hours of regular time under his own name and was paid 34 hours of straight time under the name of a non-existent employee. Mr. Nagra testified that he received two paychecks, one in his name and one in the name of the ghost employee.

Mr. Nagra produced other witnesses whose testimony tended to support Mr. Nagras contentions. Mr. Nagra also produced exhibits such as paycheck stubs, envelopes, handmade work schedules and even an uncashed check in the name of the ghost employee, Amarjit Singh.

Chessa Roth was called by Mr. Nagra. Ms. Roth qualified as an expert in the area of questioned documents. Ms. Roth testified to certain matters including her opinion that a number of signatures, work schedules and envelopes (handwritten portion) were by the same writer.

Over the objection of the defense, Mr. Nagra was allowed to fully explore his theory that the defendant had employed non-existent employees to avoid paying overtime.

Mr. Teng testified that he was the owner of the involved 7-Eleven Store. [Amrik] Singh testified that he was the store manager.[[1]] Testimony on the part of the defense was in direct contradiction to that of Mr. Nagras position. The defense produced computer generated records that included detailed payroll information and W-2 forms for the employees of the 7-Eleven Store. The computer generated records and the W-2 forms contained detailed information about each alleged ghost employee named by Mr. Nagra.

Mr. Teng and Mr. [Amrik] Singh testified about the timekeeping procedures employed by 7-Eleven and the Southland Corporation. The testimony indicated that Mr. [Amrik] Singh entered the employees work hours, both regular and overtime, into a computer at the store and the information was sent to Southlands headquarters in Texas. The headquarters would actually prepare the paychecks and courier the checks back to the individual 7-Eleven stores. The paychecks were either handed out to the employees or placed on a counter where the employees could pick them up themselves. The tax, Social Security and other such reporting was done by Southland.

Mr. Teng and Mr. [Amrik] Singh testified that there were no ghost employees and that all employees were paid all the regular and overtime wages due them.

In this matter, Mr. Nagra has the burden of proof and that burden of proof is a preponderance of evidence.

Mr. Roy[, plaintiffs counsel,] was very detailed and innovative in the presentation and his theories. Mr. Roy was limited to the facts that he had to work with and the witnesses he called.

The evidence produced by Mr. Nagra was simply not credible. This assessment attaches to Mr. Nagras testimony and the testimony of the remainder of his witnesses. The assessment also attaches to the handwritten schedules produced by Mr. Nagra. The testimony of Ms. Roth was given little weight because of the limited specimens she examined and the testimony of defense witnesses that contradicted her opinion.

In considering all of the testimony and all of the evidence, the Court finds that Mr. Nagra failed to meet his burden of proof because the testimony presented on his side was not credible, nor were the exhibits he presented.

On January 2, 2007, judgment was entered in favor of Teng, who, on motion, was subsequently awarded costs and attorney fees pursuant to statute. (See Lab. Code,  98.2, subd. (c).) Nagra appealed.

II

DISCUSSION

In his appellate briefs, Nagra sets forth the legal principles governing whether a trial court has committed an abuse of discretion. He then applies that standard in arguing that the trial court erred in resolving evidentiary conflicts against him.

When the trial court sits as the trier of fact, we do not review its findings for an abuse of discretion. Rather, we use the substantial evidence test to determine the validity of the judgment. Under that test, [t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. (Estate of Leslie (1984) 37 Cal.3d 186, 201.) [T]he focus is on the quality, not the quantity of the evidence. Very little solid evidence may be substantial, while a lot of extremely weak evidence might be insubstantial. (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589.) The testimony of a single witness, including a party, may be sufficient. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)

[W]e examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. We accept all evidence favorable to the prevailing party as true and discard contrary evidence. We do not reweigh the evidence or reconsider credibility determinations. (Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.) It is within the exclusive province of the trier of fact to determine credibility. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.) [T]he testimony of a witness whom the trier of fact believes, whether contradicted or uncontradicted, is substantial evidence, and we must defer to the trial courts determination that these witnesses were credible. (Estate of Odian (2006) 145 Cal.App.4th 152, 168.) By the same token, we defer to the trier of facts determination that a witness was not credible. (In re Hardy (2007) 41 Cal.4th 977, 1010.)

Under the substantial evidence test, Nagra gets nowhere by arguing that the defense witnesses lied and committed perjury. Similarly, we cannot second-guess the trial court for placing little weight on the testimony of the questioned document expert and for the trial courts assessment of credibility, nor may we reweigh the evidence.

Nagras reliance on the wrong standard of review, by itself, provides an adequate basis for affirming the judgment. By using an inapplicable principle of law, he has failed to present a pertinent argument on appeal. (See Alvarez-Gasparin v. County of San Bernardino (2003) 106 Cal.App.4th 183, 187189; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Nagras passing references to substantial evidence  without setting forth the appropriate principles and applying them  is insufficient.

Further, Nagra has not fully described the evidence presented at trial. (See Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521, 1531.) This obligation could be satisfied only by setting forth all of the material evidence pertaining to the challenged findings. Where an appellant claims that some particular issue of fact is not sustained, [he is] required to set forth in [his] brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be waived. (Ibid.; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Nagra tells us very little about the testimony of the defense witnesses, providing only a few snippets that, he claims, support his view of the dispute. Consequently, Nagra has not properly set forth the opposing evidence for purposes of appeal.[2]

Finally, Nagra invokes the rule that written findings are required on all material issues raised by the pleadings. (See Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 465.) He argues the trial court failed in that regard by using the wrong name  Ronak Singh  in the statement of decision to refer to Amrik Singh, the store manager. The reporters transcript leaves no doubt as to the correct name of the witness. Nor does this error have any bearing on the substance of the witnesss testimony. Nagra argues that Ronak Singh was one of the ghost employees used by Teng in violating the overtime laws. Nevertheless, we fail to see how this type of clerical mistake constituted a failure to make findings on all of the material issues.

III

DISPOSITION

The judgment is affirmed. Respondent is entitled to costs on appeal. Any request for appellate attorney fees shall be presented in the first instance to the trial court on remand. (See Cal. Rules of Court, rules 8.276(c)(2), (d) & 3.1702(c).)

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

Publication Courtesy of California attorney referral.

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[1]As indicated by the reporters transcript, the statement of decision erroneously referred to Amrik Singh, the store manager, as Ronak Singh. In quoting the decision, we have made the appropriate corrections, as shown in brackets.

[2]Even if the abuse of discretion standard were the proper test, Nagra would still be obligated to set forth all of the material evidence from the trial, not just his own evidence. Absent a description of the evidence on both sides, we could not determine whether the trial courts decision exceeded the bounds of reason. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 987.)

*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.