An v. Trade Union International
Filed 3/13/07 An v. Trade Union International CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
LAN FANG AN, Plaintiff and Appellant, v. TRADE UNION INTERNATIONAL, INC., Defendant and Respondent. | B191670 (Los Angeles County Super. Ct. No. BS089121) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Dzintra Janavs, Judge. Affirmed.
Lan Fang An, in pro. per., for Plaintiff and Appellant.
Laughlin, Falbo, Levy & Moresi, LLP, and Peter C. Flanderka.
______________________________
Lan Fang An filed a petition for writ of mandate in the trial court challenging the ruling of the California Unemployment Insurance Appeals Board (the Board) denying her claim for unemployment insurance benefits from her former employer, Trade Union International, Inc. (Trade Union). The trial court denied Ans petition after a hearing, finding that An voluntarily left employment when there was work available, without good cause for doing so. An appeals from the judgment denying the petition.
An contends that substantial evidence does not support the judgment. An failed to designate the reporters transcript of the trial court proceedings for purposes of the record on appeal. This court advised the parties by letter of the apparent inadequacy of the appellate record. An responded to the court with a supplemental brief, but has not filed a motion to augment the record. Without a transcript of the oral proceedings, we are required to presume the judgment is correct. Accordingly, we affirm on the basis the record does not establish reversible error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [in the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed].)
STATEMENT OF FACTS AND PROCEDURE[1]
An worked as a live-in housekeeper for Mr. and Mrs. Chang, the owners of Trade Union, from January 1, 2002, to December 6, 2002. She was left alone during most of the day to perform her tasks unsupervised. An was sometimes required to work in the evening hours. During the weeks before December 6, 2002, An began complaining that her work hours were excessive. On December 6, 2002, she complained again to Mrs. Chang and quit the employment.
Administrative Proceedings
On January 5, 2003, An filed a claim for unemployment insurance benefits with the California Employment Development Department (EDD). She alleged that, on December 6, 2002, she was fired because she complained that she had to work an excessive number of hours. On January 25, 2003, EDD ruled Trade Union had discharged An without good cause for complaining and An was eligible for benefits. (Unemp. Ins. Code, 1256)[2]
Trade Union appealed the decision 25 days after the deadline to appeal had passed. An administrative law judge (ALJ) found good cause to allow the late filing of the appeal. Following a contested evidentiary hearing resulting in conflicting testimony, the ALJ reversed EDDs decision. An testified she worked excessive hours without additional pay and was terminated when she complained about her excessive hours to Mrs. Chang. Mrs. Chang testified that An repeatedly complained about her employment and that An quit on December 6. The ALJ concluded Ans testimony that she was discharged was not credible and An quit her employment without good cause. Thus, under section 1256, An was disqualified for benefits, and EDDs determination that An qualified for benefits was reversed. The ALJs formal findings against An were set forth in the statement of facts, reasons for decision, and decision.
An appealed the ALJs decision to the Board. The Board adopted the ALJs statement of facts and reasons for decision as its own and affirmed the ALJs rulings that Trade Union had good cause for filing the late appeal and An was disqualified for unemployment insurance benefits under section 1256. The Board found no material errors in the statement of facts and the reasons for decision properly applied the law to the facts.
Proceedings in the Superior Court
An filed a petition for writ of mandate in the superior court on March 23, 2004, for review of the decision of the Board (March 23, 2004 petition). The petition alleged the ALJ and the Board should have found her testimony credible and Mrs. Changs testimony not credible.
On July 28, 2005, An filed another petition for writ of mandate (July 28, 2005 petition) in the same docket. The July 28, 2005 petition is twice as long as the March 23, 2004 petition and has seven exhibits attached to it. Some of those exhibits had not been admitted in evidence at the contested hearing before the ALJ. On or about September 29, 2005, the certified official administrative record was lodged in the trial court.
On November 30, 2005, An filed a petitioners brief, contending the denial of Ans claim for unemployment insurance benefits was an abuse of discretion because substantial evidence did not support the order. In Trade Unions brief in response to petitioners brief, filed February 14, 2006, it objected to the July 28, 2005 petition on the ground it was filed beyond the six-month period for seeking review of a decision of the Board and An had not obtained leave to file a second or amended petition.Trade Unions responsive pleadings included a response to the exhibits attached to Ans July 28, 2005 petition in the event the trial court deemed that petition the operative petition.
The petition was heard on March 17, 2006. The certified administrative record, including a transcript of the parties testimony before the ALJ, was admitted in evidence, and the matter was argued. The trial court denied the petition for writ of mandate. The minute order of the proceedings on March 17, 2006, states: Petitioner complained repeatedly about her job in the weeks leading to her separation. She also made it clear she wanted to quit on terms to collect unemployment benefits. The decision found properly Petitioners testimony that she was discharged not credible. The employer had had no complaints about the claimants performance as their housekeeper. Rather, it was the claimant who started expressing dissatisfaction with her job, after 10 months of service, just weeks preceding her separation from employment. [Citation.] Furthermore, it is indeed unlikely that the employer would have allowed the claimant to use the employers car to move from the premises and to stay on after firing if the employer had discharged claimant. [Citation.] The weight of the evidence in the record shows that petitioner voluntarily left employment when there was work available, without good cause for doing so. UIC1256; 22 Cal. Administrative Code 1256.1.
DISCUSSION
An contends substantial evidence does not support the trial courts rulings that she voluntarily quit when work was available without good cause for doing so and that good cause existed to late-file the appeal of EDDs decision. We conclude the record on appeal is inadequate to demonstrate error on the part of the trial court.
Standard of Review
When reviewing a decision of the the Board on a petition for writ of mandate, . . . the superior court must exercise its independent judgment on the evidence in the administrative record. (Code Civ. Proc., 1094.5; [citation].)[[3]] The court may make its own findings and conclusions based on the evidence before it. [Citation.] These conclusions will be upheld on appeal if they are supported by substantial evidence. [Citation.] (MacGregor v. Unemployment Ins. Appeals Bd. (1984) 37 Cal.3d 205, 211-212.)
Inadequate Record On Appeal
It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; see also Davenportv. Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695, 1700.) The [appellant] must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.] . . . A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent. . . . (Orig. italics.) [Citation.] (Rossiterv.Benoit (1979) 88 Cal.App.3d 706, 712.) A proper record includes a reporters transcript of any hearing leading to the order being challenged on appeal. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532; Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 817-818; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806-807.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)
A court reporter was present in the trial court at the hearings in this matter, but An did not designate the reporters transcript in the designation of the record on appeal. This courts letter to the parties identified the inadequacy of the record on appeal due to the lack of reporters transcripts of trial proceedings. We specifically noted that the record does not indicate which petition the trial court adjudicated. We further observed that review of the trial courts ruling denying the petition after the March 17, 2006 hearing was not possible without a reporters transcript of that proceeding. An filed a supplemental brief and attached to it an Order to Show Cause for Failure to Prosecute the Case, filed April 8, 2005, and the minute order of September 15, 2005, which states a new petition naming Trade Union was filed July 28, 2005. An did not make a motion to augment the record with the reporters transcript of any of the proceedings. The two documents An submitted with her supplemental brief do not correct the inadequacies of the record on appeal.
A reporters transcript would reveal the parties arguments to the court and any concessions concerning the facts and issues. An did not argue in her pleadings in the trial court that no good cause existed that excused Trade Unions late-filing of its appeal of EDDs decision, and the March 17, 2006 minute order does not contain a ruling on such issue. A reporters transcript would reveal whether a ruling was made. A reporters transcript would reveal whether Trade Union pursued its February 14, 2006 objection to the July 28, 2005 petition to a ruling, and which petition the trial court adjudicated. A reporters transcript would reveal whether the trial court considered the exhibits An attached to her July 28, 2005 petition and Trade Unions response to the exhibits. An has failed to sustain her burden to produce an adequate record affirmatively demonstrating that substantial evidence does not support the rulings and that she preserved her objection to the finding that good cause existed for Trade Union to late-file its appeal. In the absence of the reporters transcript, we must indulge all inferences to support the order as to which the record is silent, and presume the trial court properly concluded that An voluntarily left the employment without good cause when work was available.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
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[1] We have taken judicial notice of the superior court file.
[2] Hereinafter, all statutory references are to the Unemployment Insurance Code unless otherwise indicated.
Pursuant to section 1256, An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work.
[3] Code of Civil Procedure section 1094.5 provides in pertinent part the standard of review by the superior court of a final administrative decision: (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [] (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
