Filed 7/31/17 Fisher v. San Diego Unified School Dist. Ca4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


CAROLYN FISHER,

Plaintiff and Appellant,

v.

SAN DIEGO UNIFIED SCHOOL DISTRICT,

Defendant and Respondent.
D070289



(Super. Ct. No.
37-2014-00010969-CU-WT-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.
Carolyn Fisher, in pro. per., for Plaintiff and Appellant.
Andra M. Donovan and Kari D. Sullivan for Defendant and Respondent.
Carolyn Fisher appeals a judgment of dismissal in her wrongful termination and retaliation lawsuit against her former employer, San Diego Unified School District (the District), following an order granting the District's motion for summary judgment. We affirm because Fisher has forfeited her contentions on appeal by failing to provide an adequate record for appellate review. Moreover, presuming the record would support the court's factual findings, summary judgment was properly granted because Fisher did not timely exhaust her administrative remedies under the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.), as she is required to do in order to maintain her lawsuit.
FACTUAL AND PROCEDURAL BACKGROUND
In electing to proceed on a clerk's transcript, Fisher did not designate the operative complaint or the motion for summary judgment that forms the basis of her appeal. These deficiencies prevent us from summarizing the factual and procedural background from the record. To provide background, we instead draw the following from the parties' briefs and the court's order granting summary judgment.
Fisher worked as a clerk for the District's early childhood program. She had to complete a probationary period to secure permanent employment. Fisher's April 2011 evaluation stated she was meeting expectations. That summer, however, Fisher and her supervisor clashed about the scope of her responsibilities. Fisher and her union leader met with a manager to express concerns. When Fisher's supervisor asked what they had discussed, Fisher did not inform her.
In September 2011 Fisher's supervisor gave Fisher a negative evaluation, alleging her performance had caused the District to lose revenue. Fisher asked for documentation to support that allegation, but her supervisor did not provide it. Later that month, Fisher received a letter from an interim human resources manager stating the District recommended terminating her employment. Fisher met with the interim human resources manager and tried unsuccessfully to obtain documentation for the allegations made in her evaluation. On September 28, 2011, Fisher was placed on administrative leave through October 7, 2011.
On October 10 Fisher returned to work and was told it would be her last week. Later that morning, a director told Fisher she was no longer a District employee. Fisher claims the chief human resources officer promised to reinstate her employment but did not follow through.
Fisher filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH) on November 2, 2012.
In 2014 Fisher sued the District for discrimination, wrongful termination, and retaliation. She amended her complaint twice following demurrers. In the operative second amended complaint, Fisher alleged causes of action for wrongful termination, harassment, and retaliation under FEHA. The District filed its answer in April 2015. The parties appeared for a case management conference in September 2015, and the court set trial for April 2016.
In December 2015 the District filed a motion for summary judgment or, alternatively, for summary adjudication. It argued (1) Fisher's claims were barred because she did not timely exhaust her administrative remedies, (2) the District had a legitimate nondiscriminatory reason for her termination, and (3) there was no evidence Fisher was harassed or terminated based on her race.
Fisher did not file an opposition to the District's motion. In February 2016 the District filed a notice indicating that Fisher had not opposed its summary judgment motion. Fisher then filed a document titled, "Response (to non-opposition re motion for summary judgment)."
Following oral argument, the court granted the District's motion for summary judgment. It concluded that Fisher failed to timely exhaust her administrative remedies. It also found Fisher had not met her initial burden to show a prima facie case of discrimination, whereas the District had proffered a legitimate, nondiscriminatory reason for her termination. A judgment of dismissal was entered and Fisher appealed.
DISCUSSION
Fisher filed only an opening brief on appeal, in which she appears to challenge the judgment on grounds that (1) the court dismissed her case without giving her a chance to respond to the summary judgment motion, and (2) the District did not provide documentation to support the allegation in her evaluation that she had caused the District to lose revenue. In its respondent's brief, the District argues Fisher forfeited her claims by failing to provide an adequate record for appellate review. The District further contends the trial court properly granted summary judgment given Fisher's failure to timely exhaust her administrative remedies.
As we explain, Fisher's failure to provide an adequate record is dispositive of her contentions on appeal. She challenges a grant of summary judgment but did not designate the summary judgment motion or related filings for inclusion in the clerk's transcript. We cannot evaluate whether the trial court erred in granting summary judgment if we are unable to review the papers in support of and opposition to the motion. The lack of an adequate record also prevents us from evaluating Fisher's claim that she was not given an opportunity to respond to the District's summary judgment motion. Furthermore, presuming the record would support the trial court's factual findings, summary judgment was proper. Fisher cannot maintain a civil lawsuit under FEHA given her failure to file an administrative DFEH complaint within one year of the alleged wrongful employment action.
1. Fisher Forfeited Her Contentions by Failing to Provide an Adequate Record
Fisher challenges the court's summary judgment ruling. The purpose of summary judgment is to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is properly granted if the record demonstrates there is no triable issue of material fact such that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).)
On appeal, we independently review a summary judgment motion, "considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We apply the traditional three-step analysis to "(1) identify the pleaded issues, (2) determine if the defense has negated an element of the plaintiff's case or established a complete defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of fact." (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175.)
The fact that we apply independent review on appeal does not alter the fact that Fisher bears the burden as the appealing party to demonstrate reversible error by an adequate record. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).) It is a fundamental principle of appellate law that a trial court's judgment is presumed to be correct. (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260 (Silva).) An appellant must overcome this presumption "by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited." (Keyes, at p. 655.) "It is the appellant's responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant's behalf." (Id. at p. 656.)
Fisher elected to proceed with a clerk's transcript on appeal. (Cal. Rules of Court, rule 8.122.) Pursuant to rule 8.122(b), a clerk's transcript automatically contains certain documents, including the notice of appeal and the judgment or order being appealed. An appellant seeking to include additional documents must identify them in the notice of designation. (Rule 8.122(a)(1) & (b)(3).) Fisher designated only one additional document, a civil case management statement. She did not designate documents that would be necessary for us to consider her appeal, such as the operative pleadings, the District's summary judgment motion and supporting documents, and any documents she filed in response. (See Silva, supra, 7 Cal.App.5th at pp. 260-261 [appellant violated rules by omitting documents filed in support of defendant's summary judgment motion].) In proceeding without a reporter's transcript, Fisher also checked a box on a form expressing her understanding that "without a record of the oral proceeding in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings."
The District filed a respondent's brief arguing at length that Fisher forfeited her contentions on appeal by failing to provide an adequate record. Fisher did not respond to these contentions. She neither filed a reply brief nor sought to augment the record (rule 8.155) after the District alerted her to its deficiencies.
By failing to provide an adequate record for appellate review, Fisher forfeited her contentions on appeal. (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 (collecting cases).) We cannot say the trial court's grant of summary judgment was erroneous if we are unable to review the papers in support of and opposition to the motion. (See Ballard, supra, 41 Cal.3d at pp. 574-575.)
Fisher's failure to provide a complete record also led her to violate rule 8.204(a)(2)(C), which requires that appellants' opening briefs "[p]rovide a summary of the significant facts limited to matters in the record." Fisher's opening brief is largely devoid of record citations and makes no reference to any of the evidence submitted by the District on summary judgment. This did not satisfy her appellate burden. (Silva, supra, 7 Cal.App.5th at p. 260.)
Fisher's status as self-represented litigant does not excuse her failure to provide an adequate record. "[M]ere self-representation is not a ground for exceptionally lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Id. at p. 985.)
2. Presuming the Record Would Support the Factual Findings, Summary Judgment Was Properly Granted
In granting summary judgment, the trial court found Fisher's claims barred because she failed to timely exhaust administrative remedies. The court reasoned,
"Plaintiff was terminated on October 7, 2011. Plaintiff did not file her complaint with the DFEH until November 2, 2012, more than one year after termination. The undisputed facts demonstrate that plaintiff's causes of action are barred by plaintiff's failure to timely exhaust her administrative remedies."

The lack of an adequate record prevents us from determining whether the record supports the court's findings as to when the alleged wrongful employment action took place and when Fisher filed her administrative complaint. The District contends on appeal that the record supports the court's findings. Fisher does not argue otherwise in her single appellate brief. As the appealing party, Fisher bears the burden of showing reversible error by an adequate record. (Ballard, supra, 41 Cal.3d at p. 574.) We will not presume error from this incomplete record. Instead, "[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
Presuming the record would support the court's findings, summary judgment was proper. Fisher sued for discrimination and retaliation under FEHA. Prior to filing a civil action for damages under FEHA, a person alleging an unlawful employment or housing practice must exhaust his or her administrative remedies by timely filing a complaint with and obtaining a right-to-sue notice from DFEH. (Gov. Code, §§ 12960, subds. (b), (d) & 12965, subd. (b); Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 (Romano); Holland v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 945 (Holland).) "[E]xhaustion of the FEHA administrative remedy is a precondition to bringing a civil suit on a statutory cause of action." (Rojo v. Kliger (1990) 52 Cal.3d 65, 83, italics omitted (Rojo).)
The exhaustion requirement serves important policy interests of resolving disputes and eliminating unlawful practices by conciliation, while easing the burden on courts, maximizing the use of agency expertise, and providing a more economical and informal means of dispute resolution. (Rojo, supra, 52 Cal.3d at p. 83.) The scope of the administrative complaint defines the scope of the subsequent civil action. (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1122-1123.) Critically, subject to exceptions not applicable here, an administrative complaint must be filed within one year of the alleged unlawful employment practice. (Romano, supra, at p. 493; Holland, supra, at p. 945; Gov. Code, § 12960, subd. (d)(1)-(4).)
Fisher challenges employment actions that took place on or before her termination in October 2011. She filed her DFEH complaint more than a year later, on November 2, 2012. Fisher's administrative complaint was therefore untimely on its face. Although the one-year period is subject to equitable tolling in certain circumstances (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412), the record before us does not suggest a basis for equitable tolling, and Fisher has not argued equitable tolling applies.
"While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; Romano, supra, 14 Cal.4th at p. 487 [same].) Thus, presuming the record would support the trial court's findings, summary judgment was properly granted on the ground Fisher did not timely exhaust her administrative remedies with DFEH, as is required to maintain her lawsuit against the District.
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal.

DATO, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.