Kelton v.
Coverning Bd. Educ. Nuview Union School Dist.





















Filed 7/10/13
Kelton v. Coverning Bd. Educ.
Nuview Union School Dist. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes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




>

JAMES KELTON, Plaintiff and Appellant, v. GOVERNING BOARD OF EDUCATION OF NUVIEW UNION SCHOOL DISTRICT et al., Defendants and Respondents.

E054391 (Super.Ct.No. RIC501338) OPINION

APPEAL from the Superior
Court of Riverside
County. Paulette Durand-Barkley,
Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.

Aviles & Associates and
Moises A. Aviles for Plaintiff and Appellant.

Atkinson, Andelson, Loya,
Ruud & Romo, Mark W. Thompson and Brooke E. Jimenez for Defendants and
Respondents.

Defendants, the Governing Board of Education of
Nuview Union School District and the Nuview Union School District (collectively
the District), terminated plaintiff James Kelton, a teacher. The District allegedly selected him for
termination because he lacked authorization to teach English learners, even though
he had emergency authorization, and even though the District retained at least
one younger teacher who likewise had only emergency authorization.

Kelton filed this action against the District,
asserting one cause of action for a writ of administrative mandate and a second
cause of action for age discrimination. These causes of action were bifurcated. The trial court denied Kelton’s mandate
claim. The case was then set for a jury
trial on his age discrimination claim.

The District filed a motion for summary
judgment. The earliest available hearing
date for the motion, however, was after the trial date. The District therefore brought an ex parte
application to specially set the hearing on the motion, which the trial court
granted. Later, Kelton brought an ex
parte application to continue the hearing on the motion for summary judgment,
which the trial court denied. The trial
court then proceeded to grant the motion for summary judgment.

Kelton appeals, contending the trial court erred
by:

1. Granting
the District’s application to specially set the hearing on the motion for
summary judgment.

2. Denying
Kelton’s application for a continuance of the hearing on the motion for summary
judgment.

3.
Granting summary judgment.

Kelton has failed to demonstrate any prejudicial
error. Accordingly, we will affirm.

I

FACTUAL AND PROCEDURAL
BACKGROUND

On February 3, 2011, there was a trial setting
conference. It was held in Department 1
before Judge Mac R. Fisher. Both sides
requested a trial date in August 2011.
Nevertheless, Judge Fisher set a trial date of June 17, 2011. He apparently commentedhref="#_ftn1" name="_ftnref1" title="">^[1] that the court was not going to allow any
additional time for a motion for summary judgment because the District had been
“dilatory” and “did nothing on this case for two
years . . . .”

On March 2, 2011, the District filed a motion for
summary judgment. It had to give at
least 75 days’ notice. (Code Civ. Proc.,
§ 437c, subd. (a).) Also, the
motion had to be heard at least 30 days before the trial date, unless the trial
court “for good cause” ordered otherwise.
(Ibid.) Both conditions could have been met, provided
the hearing was set for either May 16, 17, or 18. When the District filed the motion, however,
the court clerk informed the District that the earliest available date was June
22, 2011. That meant that the motion
would not be heard before trial.

Accordingly, on March 4, 2011, the District filed
an ex parte application to specially set the hearing on the motion for summary
judgment.

Kelton filed a written opposition. He argued that Judge Fisher had already
decided not to allow any more time for a motion for summary judgment.

On March 7, 2011, the ex parte application was
heard in Department 2 before Commissioner Paulette Durand-Barkley. She granted the application and reset the
hearing for May 25, 2011.

At that point, Kelton’s opposition to the motion
for summary judgment was due by May 11, 2011 (i.e., 14 days before the hearing
on May 25). (Code Civ. Proc.,
§ 437c, subd. (b)(2).) However,
Kelton did not actually file his opposition until May 23, 2011.

On the same date, Kelton also brought an ex parte
application to continue the hearing date on the motion for summary judgment as
well as the trial date.

In support of the application, Kelton’s counsel’s
paralegal testified that on May 6, he had mistakenly calendared the hearing for
the original date (June 22) rather than the new date (May 25).

Kelton’s counsel himself also testified that his
uncle had died of a heart attack “early last week, which he suffered a few days
earlier.”href="#_ftn2" name="_ftnref2" title="">^[2] Because counsel was attending his uncle while
he was on life support and was “involved” with the funeral arrangements, he
“was not able to devote much time to” opposing the summary judgment motion.

The trial court denied the application. It accepted Kelton’s late-filed opposition;
the District waived its right to file a reply.

Accordingly, the hearing on the motion for
summary judgment went forward on May 25, 2011, as scheduled. The trial court heard argument and took the
matter under submission. Thereafter, it
granted the motion and entered judgment against Kelton and in favor of the
District.

II

SPECIALLY SETTING THE MOTION
FOR SUMMARY JUDGMENT

Kelton contends that the trial court erred by
specially setting the hearing on the motion for summary judgment. He relies on the principle of priority of
jurisdiction.

Preliminarily, we note that this is a different
argument than Kelton raised below. In
the trial court, he merely argued that Commissioner Durand-Barkley could not reverse
or overrule Judge Fisher. However, as
the District points out, there was no actual conflict between the two
rulings. First, Judge Fisher ruled that
the trial would start on June 27, 2011.
Commissioner Durand-Barkley then moved up the date of the hearing on the
motion for summary judgment so that it could be heard before that trial
date. Even assuming Judge Fisher made
some comment about not giving the District more time for a motion for summary
judgment, he did not make any ruling
to that effect. Moreover, Commissioner
Durand-Barkley’s ruling did not actually give the District any more time.

Kelton’s present argument, however, is more
sweeping. It is not that the two rulings
conflicted; rather, it is that Judge Fisher had exclusive jurisdiction of the
entire case, so that “any attempt to advance the [h]earing on [s]ummary
[j]udgment should have been heard before Judge Fisher
. . . .” We conclude,
however, that that is incorrect, because the case was assigned to Judge Fisher
solely for the limited purpose of assigning a trial date and a trial
department.

“ . . . ‘“[W]here a
proceeding has been duly assigned for hearing and determination to one
department of the superior court by the presiding judge of said court in
conformity with the rules thereof, and the proceeding so assigned has not been
finally disposed of therein or legally removed therefrom, it is beyond the
jurisdictional authority of another department of the same court to interfere
with the exercise of the power of the department to which the proceeding has
been so assigned. [Citation.] In other words, while one department is exercising the jurisdiction vested by the
Constitution in the superior court of that county, the other departments
thereof are as distinct therefrom as other superior courts. [Citation.]
If such were not the law, conflicting adjudications of the same
subject-matter by different departments of the one court would bring about an
anomalous situation and doubtless lead to much confusion.”’ [Citation.]”
(Wozniak v. Lucutz (2002) 102
Cal.App.4th 1031, 1040-1041, italics added, disapproved on other grounds in >Le Francois v. Goel (2005) 35
Cal.4th 1094, 1107, fn. 5.)

Nevertheless, “[t]he system of distribution of
business among departments, particularly in the larger counties, often results
in different departments properly hearing and determining different parts of an
action or proceeding. Thus, one
department may try an action or proceeding, and another may hear motions after
judgment. [Citations.] May the judge in the second department make a
determination inconsistent with that of the judge of the first department? Clearly so.

“There is no
jurisdictional conflict if the cause has actually been transferred to the
second department, so that the first department is no longer exercising
continuing jurisdiction. And the first
determination of a preliminary or interlocutory matter, e.g., an intermediate
ruling on pleadings, is not res judicata.
The judge who made the ruling may reverse himself or herself [citation],
and it necessarily follows that another judge of the same court exercising the
jurisdiction over the cause may likewise reverse or modify the prior
ruling. [Citations.]” (2 Witkin, Cal. Proc. 5th (2008) Courts,
§ 233, p. 321.)

Under the Riverside local rules: “Upon the filing of a complaint, or other
initial pleading, the Court shall assign the action to a Case Management
Department. At any time thereafter, the
Court may reassign the case to another judge, commissioner, temporary judge, or
referee for any purpose authorized by law.
Unless otherwise reassigned, the Case Management Department will hear
pretrial law and motion matters. For
purposes of trial, the Master Trial Calendar Department shall assign the case a
trial date and trial department.” (Super.
Ct. Riverside County, Local Rules, former Rule 11.0060(A); see now Super. Ct.
Riverside County, Local Rules, Rule 3120(A).)

Here, Judge Fisher was in Department 1, the
Master Calendar Department. Thus, he was
authorized to assign the case for trial, and he did so. However, he was not authorized to hear
pretrial law and motion matters. When
the ex parte application was filed, it was duly assigned to Commissioner
Durand-Barkley in Department 2.
Accordingly, the matter was properly before Commissioner Durand-Barkley. Moreover, she was free to reverse, modify, or
redetermine any ruling by Judge Fisher (with the possible exception of setting
the trial date and department).

Kelton also argues that the trial court abused
its discretion, because “[t]he District was not prejudiced by a [m]otion for
[s]ummary [j]udgment that was set for [h]earing after the [t]rial.” This is absurd. Of course the District was prejudiced. “‘The policy underlying motions for summary
judgment and summary adjudication of issues is to “‘promote and protect the
administration of justice, and to expedite litigation by the elimination of
needless trials.’” [Citations.]’ [Citation.]”
(Cole v. California Ins. Guar.
Assn. (2004) 122 Cal.App.4th 552, 556.)
Here, the motion for summary judgment, if granted, would obviate the
need for any trial at all.

The District’s motion was timely. Moreover, when it was filed, there was still
time for it to be heard within the statutory timeframe. The only problem was that the trial court’s
calendar was full. Under these
circumstances, the trial court would have erred if it had denied the application to specially set. (Sentry
Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529-530.) “A trial court may not refuse to hear a
summary judgment motion filed within the time limits of section 437c. [Citation.]
Local rules and practices may not be applied so as to prevent the filing
and hearing of such a motion.
[Citation.]” (>Id. at p. 529.)

Finally, Kelton also relies on >Urshan v. Musicians’ Credit Union (2004)
120 Cal.App.4th 758, which held that a trial court could not shorten the 75-day
minimum notice period applicable to a motion for summary judgment without the
consent of the parties. (>Id. at pp. 763-766.) But that is not what the trial court
did. Kelton had all the notice to which
he was entitled — indeed, more, as he filed his opposition late.

We therefore conclude that the trial court
properly granted the application to specially set.

III

REFUSING TO CONTINUE THE
MOTION FOR SUMMARY JUDGMENT

Kelton also contends that the trial court erred
by denying a continuance of the hearing on the motion for summary judgment.

“We review the trial court’s ruling denying the
continuance for abuse of discretion.
[Citations.]” (>Dailey v. Sears, Roebuck & Co.
(2013) 214 Cal.App.4th 974, 1004.)
“Under this standard, we will not reverse the trial court unless [the
appellant] persuades us the court’s decision was beyond the bounds of
reason. [Citation.]” (Futrell
v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1438.)

Here, Kelton failed to show good cause for a
continuance. Despite the death of his
counsel’s uncle, and despite the paralegal’s mistake, his counsel did manage to
file an opposition to the motion for summary judgment. At the hearing on the application for a
continuance, the trial court repeatedly asked if he had filed an opposition,
and he just as repeatedly insisted, “Everything has been filed
. . . .” Admittedly, at
one point, he did claim, “I’m not in a position to argue today.” However, the trial court asked,
incredulously, “Sir, how can you not be ready to argue if you already filed
your opposition?” He then replied,
“Okay, if the Court wants to argue.”
Thus, he forfeited any claim that he was unprepared. In any event, even as late as this appeal, he
does not suggest that, if the continuance had been granted, there was any
different or additional evidence or argument that he could have presented.

Separately and alternatively, even assuming the
trial court did err, Kelton has not shown prejudice. On this record, it appears that, even if the
continuance had been granted, the trial court ultimately would have granted the
motion for summary judgment. Certainly
Kelton does not explain how or why the outcome would have been different. Thus, the error, if any, is not
reversible. (Cal. Const., art. VI,
§ 13; Code Civ. Proc., § 475.)

IV

GRANTING SUMMARY JUDGMENT

Finally, Kelton contends that the trial court
erred by granting summary judgment.

Kelton has forfeited this contention, however, by
failing to discuss any of the evidence offered in support of and in opposition
to the motion. “An appealed-from
judgment or order is presumed correct.
[Citation.]” (>In re Sade C. (1996) 13 Cal.4th
952, 994.) “[T]he burden rests upon
appellant . . . to affirmatively demonstrate the error which it
asserts. [Citation.]” (Stevens
v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 70.) The propriety of granting summary judgment
turns on whether “the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc.,
§ 437c, subd. (c).) Thus, Kelton
cannot obtain reversal unless he can show that the evidence raised a triable
issue of fact.

Many of Kelton’s factual assertions are not cited
to the record at all. “Any reference in
an appellate brief to [a] matter in the record must be supported by a citation
to the volume and page number of the record where that matter may be
found. [Citation.]” (Sky
River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 741.) “Rather than scour the record unguided, we
may decide that the appellant has waived a point urged on appeal when it is not
supported by accurate citations to the record.
[Citations.]” (>City of Santa Maria v. Adam (2012) 211
Cal.App.4th 266, 287.)

The handful of citations that Kelton does supply
are to the allegations of his own operative complaint. However, “a party cannot rely on the
allegations of his or her own pleadings to make an evidentiary showing in
support of or in opposition to a motion for summary judgment. [Citation.]”
(Gutierrez v. Girardi (2011)
194 Cal.App.4th 925, 933.) “The basic
purpose of summary judgment is to provide a means by which the court determines
whether ‘the triable issues apparently raised by [the complaint and answer] are
real or merely the product of adept pleading.’
[Citation.] Hence, the moving
party must demonstrate the presence or absence of a genuine triable issue by
‘affidavit’ or other competent means.
[Citation.]” (>College Hospital Inc. v. Superior Court
(1994) 8 Cal.4th 704, 720, fn. 7.)

Kelton has also forfeited this contention for the
separate and alternative reason that he fails to address most of the grounds of
the District’s motion. The District moved
for summary judgment on grounds including that:
(1) the trial court’s ruling on Kelton’s first cause of action (for a
writ of mandate) barred his second cause of action (for age discrimination);
(2) Kelton could not show that he was qualified for and performing competently
in the position he held; and (3) Kelton could not show that the District acted
with a discriminatory motive.

In his opening brief, Kelton did not bother to
address any of these arguments by the District.
Moreover, even though the District reasserted these arguments in its
respondent’s brief, Kelton did not bother to file a reply brief. “‘Appellate briefs must provide argument and
legal authority for the positions taken.
“When an appellant fails to raise a point, or asserts it but fails to
support it with reasoned argument and citations to authority, we treat the
point as waived.”’ [Citation.]” (Cahill
v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Under these circumstances, Kelton has not
overcome the presumption that the trial court’s ruling was correct for each and
every one of these reasons.

V

DISPOSITION

The judgment is affirmed. The District is awarded costs on appeal
against Kelton.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We
concur:





HOLLENHORST

Acting P. J.





KING

J.