Filed 1/4/18 Cooper v. American West Termite Co., Inc. CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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




JAMES GORDON COOPER,

Plaintiff and Appellant,

v.

AMERICAN WEST TERMITE CO., INC.,

Defendant and Respondent.


G053422

(Super. Ct. No. 30-2013-00679703)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.
Bunt & Shaver and David N. Shaver for Plaintiff and Appellant.
Donna Bader for Defendant and Respondent.

* * *

A commissioned sales employee sued his former employer. The jurors found that the employer did not owe the employee for any unpaid wages. On appeal, the employee claims that there was insufficient evidence to support the jury’s verdict. He also argues that the trial court improperly instructed the jury.
We affirm the judgment. There was sufficient evidence to support the jury’s factual finding regarding the employee’s commission wages. The employee’s instructional claims fail to establish any prejudicial errors.

I
FACTUAL AND PROCEDURAL BACKGROUND
James Gordon Cooper worked as a termite inspector for America West Termite Company Inc. (America West) from approximately January 1999 to September 2013. Cooper’s duties were generally to inspect residential homes for termites, and then set up any follow-up work, including fumigations and wood repair. America West paid Cooper on a commission basis according to a signed “Commission Rate Agreement.” In general terms, America West agreed to pay Cooper one-half of the inspection fees, plus a 30 percent commission on any follow-up work, minus the costs of fumigation and other materials.
America West set aside Cooper’s commission fees in a designated account; each commission fee was recorded on a “commission sheet.” Cooper designated his own weekly draw amounts, which America West then deducted from his total earned commissions. America West paid Cooper the amount of the draw in the form of a weekly paycheck. America West used an outside service to process the paychecks, which included the normal deductions for taxes, social security, disability, etc.
At various times, Cooper questioned the accuracy of his commission fees and addressed his concerns with his boss Paul Ellis, as well as Pauls’ daughter Christa Ellis (Christa), who were officers of America West. On one occasion, Ellis and Cooper had a heated discussion regarding the disputed commission fees. Cooper told Ellis that he had hired a lawyer. According to Cooper, Ellis said, “‘You need to go clean out your desk. Your employment here at this company is now terminated.’” According to Ellis, he did not fire Cooper. Ellis said that he thought Cooper would return to work the following Monday. When Cooper did not return to work, Ellis determined that Cooper “wasn’t coming back.”
On October 7, 2013, Cooper filed a complaint against America West and Ellis alleging breach of contract, failure to pay commissions upon termination, willful failure to pay wages, failure to produce documents showing how the commissions were calculated and paid, breach of implied covenant of good faith and fair dealing, unfair business practices, a request for accounting, and fraud. A few weeks later, America West filed a cross-complaint.
On December 14, 2015, a jury trial began. When it concluded, the jury was asked in a verdict form, “Does [America West] owe [Cooper] any wages under the terms of employment?” The jury answered, “No.” Cooper later filed a motion for a new trial and a motion for a judgment notwithstanding the verdict (JNOV). The trial court denied both motions.

II
DISCUSSION
Cooper contends that the jury’s verdict was not supported by substantial evidence and that the trial court committed three instructional errors. Cooper also makes unspecified claims as to the trial court’s denials of his postjudgment motions for new trial and for JNOV. We shall address these contentions and claims.
Cooper also asks this court to direct “a finding of liability” as to America West for several alleged Labor Code violations, and to impose “appropriate penalties and interest owed, for illegal gas and other deductions.” We will not be addressing these requests. Cooper appears to somewhat misapprehend our role as an appellate court. An appeal is not a retrial; generally, our task is to review the lower court’s record for errors and either affirm or reverse the judgment. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
Here, we find no prejudicial errors and affirm the judgment.

A. Substantial Evidence Claim
Cooper argues, “The jury found in favor of America West that no wages were owed . . . despite undisputed evidence to the contrary.” We disagree. The evidence was, in fact, disputed. More importantly, there was substantial evidence to support the jury’s factual finding.
When a jury’s factual finding is challenged on appeal, we review the record under the highly deferential substantial evidence standard of review. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.) If there is any substantial evidence in the record to support the jury’s factual determinations, we must uphold that finding, even if we would have made a different decision. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613.) Substantial evidence “is not synonymous with ‘any’ evidence,” the evidence must be “reasonable, credible and of solid value.” (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282-1283.) However, “the testimony of a single witness may be sufficient” to sustain the verdict. (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589.)
When conducting a substantial evidence review, we view the whole record in a light most favorable to the judgment, we resolve all evidentiary conflicts in favor of the decision of the jury, and we draw all reasonable inferences in favor of the jury’s determination. (CADC/RADC Venture 2011-1 LLC v. Bradley (2015) 235 Cal.App.4th 775, 787 (CADC/RADC Venture).) “The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
At trial, Cooper presented 748 job files and two summary spreadsheets that purported to show that America West owed him a total of $132,872 in commission wages for the years 2009 to 2013. Cooper claimed that for some of the 748 jobs America West had paid him no commissions, while as to the remainder, America West had only paid him a partial amount of the commissions he was due.
America West countered each of these 748 claims, primarily through the testimony of Christa, the company’s accountant and the person who had initially calculated Cooper’s commissions. Christa testified that she had reviewed all of the contested job files, recalculated the commissions, and concluded “that these commissions are paid correct and in full.” She presented her own summary spreadsheet, which disputed each of Cooper’s allegations. She testified that of the 748 challenged commissions, Cooper had miscalculated 276 of them. She said that in two instances, Cooper had either transposed or added numbers that resulted in $6,977 in overstated claims. She testified that Cooper had also duplicated 22 of the claims.
Christa also said, “I found 46 jobs totaling $23,458.95 earned while he was still collecting disability.” She testified that in one instance, Cooper had claimed commission for a job that had been handled by a different salesperson. She said that in some instances America West had deducted personal expenses from Cooper’s commission account at his direction.
Christa said that as to many of the jobs in which Cooper claimed that America West had not paid him any commission, Cooper had taken a cash payment directly from the customer. America West presented copies of several checks that had been made payable to “Jim Cooper,” as well as the associated customer invoices. She also said that as to many of the commissions, America West charged Cooper for “gas overages.” She explained that each inspector had a company credit card with a designated “gas allowance per month. And when they go over their gas allowance, then its deducted from their commissions.”
Here, there is substantial evidence to support the jury’s factual finding that America West did not owe Cooper any wages. Again, Cooper had claimed that America West had either not paid him commission at all, or had underpaid his commission for hundreds of jobs, with damages totaling $132,872. But Christa’s testimony, and the exhibits that supported her testimony, essentially eviscerated each of Cooper’s 748 individual claims of error. Thus, the jury’s verdict is supported by substantial evidence.
Cooper appears to concede at least part of his substantial evidence claim. He states that as to “the correct amount of commissions” he is “no longer pursuing this part of his claim, with the exception of deductions made from inspection fees, for gas and other expenses.” That is, Cooper is apparently not challenging the factual accuracy of Christa’s testimony. To the extent that he is, Christa provided evidentiary support for each deduction. Further, Christa testified that Cooper’s assertions regarding his commission amounts were in several cases either overstated or false. Thus, we infer that the jury accepted Christa’s testimony when it found that Cooper was not owed any unpaid wages (in total), even after allowing for America West’s deductions. (See CADC/RADC Venture, supra, 235 Cal.App.4th at p. 787 [we must draw all reasonable inferences in favor of the jury’s determination].)






B. Instructional Error Claims
Cooper argues that the trial court erred by failing to provide the jury with three special jury instructions he had requested. (Labor Code, §§ 2802, 221/224, 226.) We disagree.
“‘A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.’ [Citation.] However, ‘“[i]nstructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]” [Citation.] Finally, “[e]rror cannot be predicated on the trial court’s refusal to give a requested instruction if the subject matter is substantially covered by the instructions given.”’” (Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 742-743 (Uriell).)
When reviewing the propriety of jury instructions, we apply a de novo standard of review. (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) In the event the trial court erred, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’” (Ibid.)


1. Section 2802
Citing section 2802, Cooper requested the following instruction: “Employees must be reimbursed for all out of [pocket] expenses incurred while performing their jobs. This includes reimbursing employers [sic] for their out of pocket expenses for driving their personal vehicles for business purposes.”
After comparing the proposed instruction to the language of the statute, the trial court said: “And so I’m not satisfied that the rather liberal language of the proposed instruction actually qualifies as being the meaning of the statutory authority. And so this instruction is not going to be given.” Cooper then asked the court, “Can we modify it to just include the actual language of [section] 2802?” The court responded, “Only if you have it in hand.” Cooper has not given us a record reference to demonstrate that he gave the court a modified instruction.
Here, the trial court’s response to Cooper’s request for consideration of an alternative instruction was tentative in nature and Cooper apparently never provided the court with a modified proposed instruction. He has therefore forfeited this argument on appeal. (See People v. Morris (1991) 53 Cal.3d 152, 195-196, disapproved on another ground by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [a party is obligated to press a trial court for a ruling in order to preserve the issue for appeal].)
Alternatively, we agree with the trial court; the language of Cooper’s proposed instruction went well beyond the scope of the statute. Section 2802, subdivision (a), does not mention an employer’s duty to reimburse its employees for vehicle expenses. Cooper’s proposed jury instruction was essentially a legal argument “‘“in the guise of a statement of law.”’” (Uriell, supra, 234 Cal.App.4th at p. 743.) The trial court committed no instructional error.
2. Sections 221 and 224
Citing sections 221 and 224, Cooper requested the following instruction: “An employer can lawfully withhold amounts from an employee’s wages only: (1) when required or empowered to do so by state or federal law, or (2) when a deduction is expressly authorized in writing by the employee to cover insurance premiums . . . or (3) when a deduction to cover health, welfare, or pension contributions is expressly authorized . . . .”
The trial court said, “I don’t think there’s evidence about withholding here. The issue is did he get paid his commissions or not.” Cooper’s counsel responded that, “They withheld money from his commissions because of gas overages. That’s a direct violation of this section.” The court later returned to the issue and refused to give the instruction.
Here, we need not address the merits of this instructional argument. Even if we were to find that the trial court committed error, which we do not, Cooper has made no showing that the alleged error affected the jury’s verdict. The proposed instruction told the jury under what circumstances an employer could “lawfully withhold amounts from an employee’s wages,” but the jury was never asked to address that specific question. Indeed, even if the jury would have found that the challenged withholding amounts were unlawful, the commissions Cooper was claiming that he was due were in several cases either overstated or false according to Christa’s testimony.
As accurately stated by the trial court, the relevant issue in this case involved whether America West had properly paid Cooper his commissions and whether, as a result, he was owed any remaining wages. As we previously addressed, there was substantial evidence supporting the jury’s finding that America West did not owe Cooper any back wages, including any back wages for any alleged withholdings. In sum, Cooper has not established a reasonable probability that the court’s alleged instructional error affected the jury’s verdict. (Soule, supra, 8 Cal.4th at p. 580.)
3. Section 226
Citing section 226, Cooper requested the following instruction: “Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check . . . or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing: [wages, hours worked, deductions, etc.]”
The trial court stated, “I don’t think that this is a case about not being provided itemized statements.” Cooper responded, “The commission sheets were not given with his paycheck.” The court said, “I don’t understand commission sheets to be the same thing as the wage statement that you usually get with your check . . . .” The court later ruled, “I think that the instruction is inapplicable because the argument here is with respect to commissions, and commissions are . . . not subject to some paystub issue. And so I don’t think that’s applicable. It will not be given.”
Again, we need not address the merits of Cooper’s argument. Even if we were to presume that the trial court committed instructional error, Cooper has made no showing that the failure to give the proposed instruction was prejudicial. The verdict form, as it was written, did not ask the jury to address the question of what information needed to be included in Cooper’s weekly paystubs.
At the conclusion of the trial, the jury was given a verdict form with 11 questions with spaces to mark either “Yes” or “No” as to each question. Question No. 1 asked, “1. Does [America West] owe [Cooper] any wages under the terms of employment?” The verdict form told the jury, “If your answer to question 1 is yes, then answer question 2. If you answered no, answer question 10.” The jury answered, “No” to question No. 1, skipped question Nos. 2 through 9, and then answered question Nos. 10 and 11, which only concerned America West’s cross-complaint.
Question No. 3 asked the jury: “3. Did [America West] fail to include all the necessary information in [Cooper’s] weekly pay stub?” In order to determine what information was legally “necessary,” the jury would presumably need to be instructed about the relevant law. However, the jurors were specifically told to skip question Nos. 2 through 9 if they answered question No. 1 in the negative. Again, the jury answered, “No” to question No. 1. That is, the jury was never asked to come to a decision concerning question No. 3: whether America West had failed to include “all the necessary information” as part of Cooper’s weekly paystubs. Cooper did not object to the verdict form. (See Keener v. Jeld–Wen, Inc. (2009) 46 Cal.4th 247, 264 [“forfeiture rule generally applies in all civil and criminal proceedings”]; see also People v. Johnson (2015) 61 Cal.4th 734, 784 [“If we were to allow the issue to be raised for the first time on appeal, a party would have an incentive not to complain about the verdict form in the trial court in order to secure the advantage of seeking a complete reversal on appeal”].)
In sum, any alleged error concerning the failure of the trial court to instruct on what information America West needed to include on Cooper’s paystubs could not have conceivably affected any portion of the jury’s verdict, which solely concerned his disputed commission wages. Thus, Cooper has not established any prejudicial errors concerning any of the proposed jury instructions.

C. Postjudgment Motions
““‘When an appellant [asserts a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived [or forfeited].’” [Citation.] ‘We are not bound to develop appellants’ arguments for them.’” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Every appellate brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) An appellant’s record on appeal must include “[a]ny order appealed from and any notice of its entry . . . .” (Cal. Rules of Court, rule 8.122(b)(1)(C).)
Here, Cooper included in his opening brief the standards of review for a trial court’s denial of a motion for JNOV and for a motion for a new trial. At two points in the text of his opening brief, Cooper stated, “The Court should have addressed this issue on JNOV . . . .” And at another point, he stated that “the court could have addressed many of the issues on JNOV . . . .” However, nowhere in his briefing did Cooper argue that the trial court had improperly denied either his motion for JNOV or his motion for a new trial. Cooper also cited no authorities that would appear to advance such arguments. Further, while Cooper included in the appellant’s appendix the trial court’s notice of its rulings on the postjudgment motions, Cooper did not include the actual rulings themselves.
To the extent that Cooper may be challenging the trial court’s denials of his two postjudgment motions on appeal, he has forfeited these claims.
















III
DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.




MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.