Filed 7/25/17 Washington v. Rite Aid CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

ANTHONIA WASHINGTON,

Plaintiff and Appellant,

v.

RITE AID CORPORATION,

Defendant and Respondent.

F073213

(Super. Ct. No. 15CECG01813)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Dale Ikeda, Judge.
Anthonia Washington, in pro. per., for Plaintiff and Appellant.
Kelly, Hockel & Klein, Klein, Hockel Iezza & Patel, Jonathan Allan Klein and Thomas K. Hockel for Defendant and Respondent.
-ooOoo-



Appellant Anthonia Washington filed this appeal after both the Labor Commissioner’s office and the Fresno Superior Court separately denied her claim for damages under the Labor Code resulting from her termination by respondent, Rite Aid. Appellant filed an initial appeal after the Labor Commissioner’s office denied her claim, resulting in a de novo trial at the Fresno Superior Court. Appellant now claims the trial court improperly denied her request for a discovery extension and asks this court to grant the extension and “reset the trial date.” For the reasons set forth below, we affirm the judgement against appellant.
FACTUAL AND PROCEDURAL BACKGROUND
On or around January 15, 2015, respondent fired appellant from her position at a Fresno Rite Aid. According to appellant, she was not offered her final paycheck unless she signed an exit form that stated she had received her full and complete final payment. Appellant claims she refused to sign the document because respondent did not permit her to verify that the check was, in fact, for the full amount owed.
According to respondent, appellant’s supervisor, Walter Wilson, offered her the check even if she did not sign the exit document. When appellant refused and left without her check, her supervisor immediately attempted to mail the check to appellant’s last known address. The post office initially returned the envelope to respondent, who immediately resent it, resulting in a successful delivery and cashing of the check. Both appellant’s supervisor and respondent’s Human Resources District Manager, Kristin Davi, testified to this chain of events, supporting their testimony with contemporaneous internal documents and records of the mailing efforts.
Following her termination, appellant filed a complaint with the Labor Commissioner’s office, which was denied. Appellant then filed an appeal and received a de novo trial in the Fresno Superior Court. In her notice of appeal, appellant alleged that respondent follows an illegal policy with respect to final check payments and stated she intended to subpoena other potential plaintiffs illegally fired by respondent.
The trial was originally set for August 19, 2015. However, on August 13, appellant requested a three-month continuance, claiming she was not ready for trial and asking for a discovery extension. Respondent stipulated to extending the trial date, but did so “without waiving any right to oppose any proposed discovery.” The trial court granted an extension until November 18, 2015, but denied appellant’s request to extend discovery without prejudice.
The record does not reflect that appellant filed any discovery requests. Rather, on October 19, 2015, appellant filed a motion to reopen or extend discovery for 180 days. Appellant’s motion noted her desire to refile the matter as a class action lawsuit and stated the extension was necessary to “subpoena the name address, phone number, all emergency contact information, all email addresses, race, age, Rite Aid district, and date of termination of all employees terminated by Rite Aid Corporation in California the last 5 years so that I can send out a questionnaire to identify potential witnesses who may have experienced the same type of illegal activity during termination.” (Emphasis & underscore omitted.) Appellant’s motion further explained her view that her supervisor had intentionally refused to allow a witness to be present at her termination in order to enforce an illegal policy requiring one to sign documents in order to obtain one’s final paycheck. Respondent opposed this motion and, on November 18, 2015, the trial court denied the request and proceeded to conduct the de novo trial.
Following the de novo trial, the trial court rejected appellant’s claims. In its statement of decision the trial court recounted the testimony taken at the trial and found “that [respondent] did not willfully withhold [appellant’s] pay upon separation of employment as Mr. Wilson and Ms. Davi were credible witnesses. Their testimony was support [sic] by documentation of Mr. Wilson’s prompt mailing of payment, even though the first attempt was unsuccessful. If Mr. Wilson did not intend to make timely payment of [appellant’s] wages, the Court would expect that mailing payment would have been delayed or not attempted.”
This appeal timely followed.
DISCUSSION
In the present appeal, which appellant is conducting pro se, appellant contests the denial of her request to reopen discovery and suggests we reset the trial date. Giving appellant the benefit of the doubt, we interpret that request, as respondent did, as a contention that the trial court erred in finding for respondent on appellant’s claims. We do not agree with appellant that the trial court acted improperly.
We first consider appellant’s argument that the trial court wrongly denied her request to reopen discovery. We review a trial court’s ruling on a motion to reopen discovery for an abuse of discretion. (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531.) “ ‘ “ ‘The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.’ [Fn. omitted.]” [Citations.] “The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.” ’ ” (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)
Under the Code of Civil Procedure, when ruling on a motion to reopen discovery, a trial court should consider factors such as (1) “[t]he necessity and the reasons for the discovery;” (2) “[t]he diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier;” (3) the “likelihood that ... hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party;” and (4) “[t]he length of time that has elapsed between any date previously set, and the date presently set, for” trial. (Code Civ. Proc., § 2024.050, subd. (b).)
Before the trial court, appellant argued she needed additional time for discovery in order to subpoena witnesses that she might wish to include in a class action lawsuit. On those grounds, we see no abuse of discretion in the trial court’s ruling. Appellant’s case was not initially filed as a class action, no classwide claims were asserted or pending, and no motion had been made to certify the action for class action status. As such, appellant’s discovery plans were unlikely to produce any admissible evidence. Moreover, appellant had already received a lengthy extension and had failed to proffer any requests for discovery in that time. As such, the trial court was within reason to deny appellant’s request.
Now, on appeal, appellant raises a new basis for alleging error. Appellant contends her asthma makes her disabled and, therefore, it was a violation of the Americans with Disabilities Act to deny her request for a continuance while she dealt with side effects from her condition. We note that it is not proper to raise new arguments for the first time on appeal. (C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1491 [“An appellate court ordinarily will not consider arguments made for the first time on appeal”].) In our review of the record, we see no indication appellant raised this argument before the trial court. In her requests for extensions, appellant argued she was unemployed and under extreme financial stress while pursuing her case as a basis for extending time. However, even if she had raised her health concerns, the record does not provide any explanation why appellant failed to serve any discovery at all when previously granted the extension she requested nor how the proposed discovery would lead to admissible evidence. Under such facts, the trial court would have been acting within its discretion in denying appellant’s motion.
Accordingly, we find no error in the trial court’s decision not to reopen discovery.
We next turn to whether the trial court properly found for respondent on appellant’s claims. When judgment follows a bench trial, we review issues of fact for substantial evidence. (See Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) “It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility.” (Ibid.)
Appellant argues extensively that it was improper for the trial court to find Wilson and Davi credible witnesses. As noted, on appeal we do not weigh credibility issues. We only consider whether the evidence could support the trial court’s findings. Here, the trial court determined respondent offered appellant her check, that she did not need to sign any documents to obtain it, and that appellant refused the check. It supported this finding through the testimony of Wilson and Davi, along with the records demonstrating Wilson immediately attempted to mail appellant her check. Although appellant argues these witnesses were not telling the truth, the trial court determined otherwise and the independent evidence admitted at the trial is sufficient to support the trial court’s conclusion that respondent did not withhold appellant’s check unless she signed an exit document. As such, we find no basis to overturn the trial court’s judgment.
DISPOSITION
The judgment is affirmed.