Smittick v. Santa ClaraCountyOffice of Education

Filed 3/28/07 Smittick v. Santa Clara County Office of Education CA6

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Roland Smittick sued respondents the Santa Clara County Office of Education (SCCOE), David Wong, and Eleanor Wiener (hereafter collectively Defendants) for constructive termination. The case went to judicial arbitration and the arbitrator found for Defendants. Smittick appeals the judgment entered on the arbitration award. Since the judgment is not appealable, we shall dismiss Smitticks appeal. We also conclude that Smittick has waived any argument on appeal due to defects in his briefs.

Factual and Procedural History

Smittick filed his complaint for constructive termination against Defendants in October 2005. At all times during the litigation and on appeal, Smittick has represented himself.

The unverified complaint alleged that Wiener, a teacher at Foothill ADT overly scrutinized Smitticks work to the point of continuous acts of harassment and thus created a hostile work environment. The complaint alleged that Wong, a principal at East Valley, treated Smittick as a secondary employee by neglecting to talk to teachers aides first hand and acting on hearsay statements by Wiener. Smittick alleged that Wongs actions violated his First, Fourth, Fifth, and Eighth Amendment rights. He alleged that after an inaccurate investigation by Wong, he was placed on administrative leave and that based on the advice of the human resources department and communications by Wong, he felt compelled and pressured to resign his employment with SCCOE two months before his retirement date. He claims emotional distress and prays for monetary, compensatory, and punitive damages.

In November 2005, Defendants filed an answer that contained a general denial and asserted a variety of affirmative defenses.

The case was referred to non-binding judicial arbitration. The court appointed an arbitrator and the parties appeared for the arbitration hearing on June 21, 2006. The arbitrator filed an award on June 28, 2006, that denied Smitticks claims as to all defendants. Smittick did not request a trial de novo and the court entered judgment on the arbitration award on August 1, 2006.

Smittick filed a timely notice of appeal.[1]

Contentions on Appeal

Smittick contends that Defendants violated his constitutional rights under the First, Fourth, Fifth, and Eighth Amendments and that these violations led to his constructive termination with the added environmental harassment of Wong and Wiener. He asserts he was 55 days short of retirement benefits for five years of service and would not have quit if he had not been pressured by Defendants. He argues the Department of Justice granted him the right to sue and attaches a copy of a right to sue letter as an exhibit to his brief.[2] He asserts he has the right to a trial under the Seventh Amendment. Smittick argues that the arbitrator did not hear his entire case or evidence and that he (Smittick) did not know the arbitrators decision was binding.

Defendants contend the appeal should be dismissed for two reasons. First, they argue a judgment on an arbitration award is not appealable. Second, they assert that Smittick has waived or abandoned any argument he might have on appeal by failing to comply with the appellate rules of procedure because his brief does not contain a single citation to the record and does not contain legal arguments that are supported by citation to authority.

Discussion

Judgment on Arbitration Award is Not Appealable

There is no right to appeal from a judgment entered on a judicial arbitration award. (Karamzai v. Digitcom (1996) 51 Cal.App.4th 547, citing Code Civ. Proc.,  1141.23; Cal. Rules of Court, rule 3.827, subd. (c).)

Code of Civil Procedure section 1141.23 provides: The arbitration award shall be in writing, signed by the arbitrator and filed in the court in which the action is pending. If there is no request for a de novo trial and the award is not vacated, the award shall be entered in the judgment book in the amount of the award. Such award shall have the same force and effect as a judgment in any civil action or proceeding, except that it is not subject to appeal and it may not be attacked or set aside except as provided by Section 473, 1286.2, or Judicial Council rule.

Smittick did not take any action in the trial court to set aside the arbitration award. He did not file a request for trial de novo or any of the motions to attack or set aside the award that are authorized by section 1141.23. The judgment entered on the arbitration award in this case is therefore not appealable and the appeal will be dismissed.

Adequacy of Smitticks Brief

On appeal, the judgment is presumed to be correct. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) 8:15, pp. 8-4 to 8-5, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant, Smittick, has the burden of overcoming the presumption of correctness. To meet that burden, he must provide this court with reasoned argument and legal authority on each point raised. (Eisenberg et al., at 8:17, 8:17.1, pp. 8-5 to 8-6.) This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate courts role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. (Id. at 8:17.1, p. 8-5.) When the appellant asserts a point but fails to support it with reasoned argument and citations to authority, the appellate court may treat it as waived and pass it without consideration. (Ibid., citing People v. Stanley (1995) 10 Cal.4th 764, 793.) Smitticks briefs consist of bare assertions of error that are not supported by reasoned argument or citations to legal authority. We therefore consider the points raised in his briefs waived.

Disposition

The appeal is dismissed.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] Although his notice of appeal states it is from the motion seeking factual determination or production of additional evidence 45.51, there is no such motion or any order on such a motion in the record. We shall therefore construe the appeal as being taken from the judgment on the arbitration award.

[2] The right to sue letter is not in the record on appeal and Smittick has not asked us to take judicial notice of the right to sue letter. Documents and facts that were not presented to the trial court and which, therefore, are not part of the record on appeal generally will not be considered by this court absent a proper request for judicial notice. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 719.) We shall therefore disregard the right to sue letter.