Wednesday, September 14, 2022

Arega v. BART (Cal. Ct. App. - Sept. 14, 2022)

Sometimes the Court of Appeal gets incredibly angry with a particular attorney and says very harsh things. Other times, the Court of Appeal simply lets the facts speak for themselves.

This is one of the latter occasions.

Appellant's attorney is Dow Patten from San Francisco. It's an employment discrimination suit brought against BART. Here's a sample of the kind of lawyering with which the Court of Appeal (and trial court) had to deal:

"On June 17, Plaintiffs filed their motion pursuant to Code of Civil Procedure section 473(b) (“section 473(b)”) to set aside the judgment entered in BART’s favor. The motion was based on inadvertence, surprise, mistake or excusable neglect. Plaintiffs’ counsel asserted that on April 6, the day before the hearing on the summary judgment motion, he was out of the office due to ill health (flu-like symptoms) and was unable to review the court’s tentative ruling, which was “inadvertently not contested.”

On July 7, the trial court issued an order denying the motion to set aside the judgment, noting that a motion for relief under section 473(b) must be made within a reasonable time and the moving party must show it acted diligently in seeking such relief. The court found Plaintiffs’ counsel failed to offer any reason why the motion for relief was not filed until more than 60 days after entry of judgment for BART, and more than 70 days after BART’s summary judgment motion was granted. The court found counsel’s lack of diligence barred Plaintiffs from any discretionary relief under section 473(b). . . .

[On appeal] Plaintiffs argue that “controlling California authority mandates that the court continue a hearing on summary judgment where a [party’s] attorney is unavailable due to health reasons.” As Plaintiffs do not cite to any controlling authority that mandates such health-related continuances, we disregard this argument. (See Badie, supra, 67 Cal.App.4th at pp. 784– 785.) . . .

When a litigant repeatedly provides no citations to the record, the rule violation is egregious. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166–167.) “We may disregard a [party’s] statements of fact when those statements are unsupported by citations to the record. [Citation.] And we will not scour the record on our own in search of supporting evidence.” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 (Sharabianlou).) Here, Plaintiffs’ citations to Smith’s declaration take the following form: “(CT ____, See Appellants’ Evidence Submitted in Support of Summary Judgment Alena Smith Decl. ¶2),” providing no volume or page number citation to the record in none of the multiple references to the declaration. We disregard Plaintiffs’ arguments of direct evidence because of their consistent failure to provide volume and page number record citations to such evidence.

Moreover, the Smith declaration is not in the record. On appeal, we presume the judgment to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham, supra, 2 Cal.3d at p. 564.) An appellant bears the burden of 21 overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859– 860.) The failure to provide this court with an adequate record not only fails to satisfy an appellant’s burden to demonstrate error, it also precludes review of any asserted error. . . .

[Footnote:] In their reply brief, Plaintiffs claim without detail or explanation that “[t]he manner in which [BART] filed its Motion for Summary Judgment has caused several problems with preparation of the record.” Plaintiffs state that the “clerk’s record in this appeal contains errors and several of the documents identified in [their] Notice of Designation of Record have yet to be filed with the Court of Appeals.” They state that they “anticipate filing a corrected Opening Brief once the record is corrected;” “have requested the trial court cure the defects in the record on appeal;” and “respectfully request that oral argument be stayed until a corrected record is provided to the Court and Appellants have provided amended briefs with cites to the corrected record.” They ask that we direct the trial court to correct the record on remand.

We decline all of Plaintiffs’ requests and will not delay resolution of this appeal. Plaintiffs filed their opening brief in December 2021. At that point, given counsel’s inability to cite to the record, it was apparent that essential evidence was missing from the record. In the nine months since this appeal has been pending, Plaintiffs’ counsel has not asked this court to augment the record in any way, despite its awareness of its shortcomings. Neither the respondent nor the appellate court has a duty to augment an inadequate record. It is the appellant’s burden to provide an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) In the absence of one, we presume the trial court determination under review is correct. (Jade Fashion, supra, 229 Cal.App.4th at p. 644.)

We also reject Plaintiffs’ request to stay oral argument until there is a corrected record and amended briefs. The day after Plaintiffs filed their reply brief, we issued a “Notice of Oral Argument Election” to the parties, indicating that to proceed with oral argument, the party seeking to proceed with oral argument must file a request and proof of service within 10 calendar days of the notice. No such request was received by this court by any party, and oral argument on this appeal has therefore been waived. . . .

Plaintiffs argue they established BART’s reasons were pretextual with evidence of the following: (1) Plaintiffs’ qualifications for the promotions; (2) Evaluation Committee members’ collaboration on applicant scores to remove evidence of bias; and (3) BART’s failure to take steps to ensure race was not a factor in Foreworker selection process. Not so.

Again, Plaintiffs’ briefing includes no citations to the record. In three pages of argument with over a dozen citations to evidence, there is not a single citation to “the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) While there are multiple references to “CT,” or the clerk’s transcript, every one is left blank. We disregard any fact unaccompanied by a proper record citation. (Sharabianlou, supra, 181 Cal.App.4th at p. 1149.)

Further, none of the proffered evidence appears in the record. Plaintiffs’ arguments refer to deposition testimony of Eric Thomas, who Plaintiffs’ explain was a non-African American promoted over them for the 2012 Foreworker position; the declaration of Alena Smith, the Chief Steward and silent observer discussed supra; and two witnesses testifying as BART’s persons most knowledgeable (Conteh and Moore). We have located none of this evidence in the record."

When the facts say everything you need to say, vitriol is sometimes entirely unnecessary.