Oghogho v. Teichert Constr. Co.
Filed 12/22/08 Oghogho v. Teichert Constr. Co. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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IDOWU O. OGHOGHO Plaintiff and Appellant, v. TEICHERT CONSTRUCTION COMPANY WOODLAND DISTRICT, Defendant and Respondent. | C058036 (Super. Ct. No. 07AS03071) |
In this pro se judgment roll appeal, appellant Idowu O. Oghogho contends the trial court erred in dismissing his employment-related action after it granted the motion to strike the complaint by respondent Teichert Construction Company Woodland District (Teichert).
Oghogho has failed to show the trial court erred, and we shall affirm the judgment.
BACKGROUND
Because Oghogho has provided us only a select few documents from the clerks transcript, it is difficult to summarize the factual basis and procedural history of this dispute.
Oghogho was a construction equipment operator and an advanced apprentice pursuant to an apprentice agreement with the Northern California Joint Apprenticeship Committee.[1] Teichert agreed to train Oghogho pursuant to a written agreement in accordance with Paragraph 10 of the Amended Consent Decree for the Operating Engineers Joint Apprenticeship Committee for the 46 Northern Counties in California and the Apprenticeship Agreement, and to comply with the provisions thereof.[2] Oghogho was employed by Teichert around June through August 2006 to operate construction equipment.
Oghogho initiated this action against Teichert and unnamed Doe defendants, claiming Teichert breached its agreement to train and employ him; unlawfully discriminated against him because he is black and because he is from Africa; and terminated him in retaliation for a prior complaint about his lack of working hours while others are working.
Teichert successfully moved to strike portions of the original complaint; that motion is not in the record.
Oghogho then filed the operative (first amended) complaint, which alleges breach of contract and employment discrimination by Teichert.
Teichert moved to strike specified portions of the first amended complaint; its motion is not in the record. Oghogho filed written opposition to the motion.
The court conducted a hearing, at which both Oghogho and Teicherts representative appeared and argued.
It then granted Teicherts motion to strike without leave to amend. The order and judgment states that Plaintiff has failed to plead facts sufficient to show that he has exhausted administrative remedies, applicable to his apprentice agreement, thus the motion to strike his breach of contract claim is granted. Cal. Lab. Code 3085. His opposition concedes that he failed to file a grievance complaint and therefore no arbitration took place. [] Plaintiff has failed to oppose the remainder of the motion to strike, which is taken as a concession to the merits, on the grounds set forth in the moving papers. [] The action is hereby dismissed.
Oghogho appeals.[3]
DISCUSSION
Oghogho has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.120.) No reporters transcript of the hearing in this contested matter, or of any other proceeding, appears in the record on appeal.
I
Standards Of Review
On appeal, we must presume the trial courts judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)
It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he or she must support arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Oghogho is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the the same restrictive procedural rules as an attorney].)
Because Oghogho provides us with only a partial clerks transcript -- and no transcript of the hearing on Teicherts motion to strike the complaint -- we must treat this as an appeal on the judgment roll, to which the following rules apply: Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation]. (Ford v. State of California (1981) 116 Cal.App.3d 507, 514, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 177-179; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Cal. Rules of Court, rule 8.163.)
In sum, our review of a judgment roll appeal is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) This is not a case, as Oghogho asserts in his brief, in which this court may undertake de novo review.
Finally, we note that no respondents brief was filed by Teichert. In such a case we examine the record and consider the opening brief and oral argument, if any, to determine whether the trial courts ruling constitutes prejudicial error. (See Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3; Cal. Rules of Court, rule 8.220(a)(2).)
II
Appellant Has Failed To Show Reversible Error
Although much of Oghoghos appellate brief contains general principles of law quoted extensively from (chiefly federal) cases, the arguments which appear to pertain directly to this case may be distilled to two: his employment was governed by a collective bargaining agreement to which the trial court failed to give proper deference and which may have led the court to apply the wrong law; and the lower court dissected and separated the evidence presented by plaintiff instead of considering all of the evidence as a whole.
Unfortunately, none of these arguments provides grounds for reversal on appeal.
First, Oghogho fails to provide a single citation to the record in his 25-page brief on appeal. For that reason alone, his arguments are forfeited. (See County of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th at p. 1274.)
Second, neither his contention the trial court erred in failing to acknowledge his collective bargaining agreement nor that it failed to apply the correct law are among the category of error that can be said to appear[] on the face of the record. (National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.) No collective bargaining agreement is alleged in either complaint, and no such agreement otherwise appears in the record before us. The record on appeal lacks both a copy of Teicherts moving papers and a reporters transcript of the hearing on the motion to strike from which Oghogho appeals. Under these circumstances, we cannot evaluate whether the trial court properly considered that agreement.
Indeed, on this record, we cannot evaluate Oghoghos claims, generally, that the court failed to consider the evidence before it or, specifically, that it failed to consider that his employment was governed by a collective bargaining agreement. In fact, the law requires that we presume on appeal that official duties have been regularly performed (Evid. Code,
664) and this presumption extends to the actions of trial judges (People v. Duran (2002) 97 Cal.App.4th 1448, 1461; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 [If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done]). This means we must assume -- contrary to Oghoghos argument on appeal -- that the trial court properly considered all relevant evidence and correctly concluded from that evidence that the complaint must be dismissed because he failed to exhaust administrative remedies applicable to his apprentice agreement.
Finally, there is nothing in the record to mitigate or contradict the legal presumptions we are obliged to follow. Because this is a judgment roll appeal, we presume there was sufficient evidence before the trial court to support its finding that the first amended complaint should be dismissed. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
MORRISON , J.
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[1] Oghogho had apparently previously been employed by Teichert in 2002, 2003, and 2005, but that employment does not appear to be the subject of the instant complaint.
[2] Neither complete, fully executed versions of these agreements nor the consent degree are in the record. We understand, generally, that joint apprenticeship programs are collaborative ventures between unions and employers; [j]oint apprenticeship programs train a larger proportion of Californias registered apprentices enrolling close to 44,000 apprentices in the building and construction trades; and the majority of unionized apprentices in state-approved programs are represented by the unions affiliated with the State Building and Construction Trades Council of California, AFL-CIO. (Associated Buil. and Contrac., Sout. Cal. v. Nunn (9th Cir. 2004) 356 F.3d 979, 983.)
[3] In addition to the order dismissing his complaint, Oghogho also purports to appeal from a judgment after court trial and from the courts tentative ruling to dismiss the complaint. The latter two choices do not apply: there was no court trial, and tentative decisions are not appealable. (E.g., Bianco v. California HighwayPatrol (1994) 24 Cal.App.4th 1113, 1121.)
