Filed 11/14/18 Hicks v. Goodwill Retail Services CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Affirmed.

Eric T. Hicks, Plaintiff and Appellant in pro. per.

Ford & Harrison, Lyne Ann Richardson, and Catherine Louise Hazany for Defendant and Respondent.

In this employment discrimination action, the trial court granted summary judgment against plaintiff Eric T. Hicks and in favor of defendant Goodwill Retail Services (Goodwill). Hicks appeals, claiming the trial judge was biased. We will hold that he has not preserved this or any other claim of error and, alternatively, he has not demonstrated bias or any other error.

I

PROCEDURAL BACKGROUND

In 2015, Hicks filed this action against Goodwill, asserting causes of action for employment discrimination and retaliation.

Goodwill filed a motion for summary judgment, on the ground that Hicks could not prove a prima facie case of discrimination or retaliation.

Hicks filed a separate statement and a volume of exhibits. The following documents in connection with the summary judgment motion were also filed, but Hicks has not included them in the appellate record:

1. Hicks’ opposition to the motion.

2. Goodwill’s reply and surreply.

3. Goodwill’s objections to Hicks’ exhibits.

After hearing argument, the trial court sustained all of Goodwill’s evidentiary objections and granted the motion. It therefore entered judgment against Hicks and in favor of Goodwill.

II

JUDICIAL BIAS

Hicks contends that the trial judge displayed “actual bias” or at least “an appearance of bias.”

He forfeited this contention by failing to raise it below. (People v. Farley (2009) 46 Cal.4th 1053, 1110.) “It is axiomatic that arguments not raised in the trial court are forfeited on appeal. [Citations.]” (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.) In particular, a claim that a judge is disqualified for bias must be raised “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Code Civ. Proc., § 170.3, subd. (c)(1).) The failure to do so forfeits the claim. (Kern County Dept. of Child Support Services v. Camacho, supra, at p. 1038.)

He additionally forfeited any claim of bias by failing to file a prompt writ petition. A statutory claim that a judge was disqualified for bias under Code of Civil Procedure section 170.1 can be raised in an appellate court only by writ; it cannot be raised on appeal. (Code Civ. Proc., § 170.3, subd. (d); Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 300.) Moreover, a nonstatutory, constitutional claim that a judge was biased cannot be raised on appeal unless the appellant has raised a statutory claim by writ. “[A] litigant should seek to resolve such issues by the required statutory means and ‘his negligent failure to do so may constitute a forfeiture of his constitutional claim.’ [Citation.] This is particularly true in civil cases where ‘a constitutional question must be raised at the earliest opportunity or it will be considered to be waived.’ [Citations.]” (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1339.)

In any event, Hicks has not shown bias.

His claim of bias is based on the fact that the trial judge supposedly made erroneous rulings against him and in favor of Goodwill. It is not clear exactly what rulings he is referring to. He does not cite the portion of the record at which the rulings were made.^[1] (See Cal. Rules of Court, rule 8.204(a)(1)(C) [a brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”].) He also does not clearly explain why the rulings were erroneous. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [a brief must “support each point by argument and, if possible, by citation of authority”].)

In any event, “mere judicial error is not conclusive evidence of bias or grounds for disqualification . . . .” (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1231.) “‘[A] trial court’s numerous rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review.’ [Citation.]” (People v. Farley, supra, 46 Cal.4th at p. 1110.)

III

POSSIBLE OTHER CONTENTIONS

As far as we can tell, Hicks is not raising any contentions other than that the trial judge was biased. In a section of his brief entitled “Issues Presented” (capitalization altered), this is the only issue that he identifies. In addition, this is the only issue that he identifies in the headings of his brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [a brief must “[s]tate each point under a separate heading or subheading summarizing the point”].)

Admittedly, in a section entitled “Introduction,” he argues that, for a number of reasons, it was error to grant the motion for summary judgment. We deem these arguments forfeited for failure to raise them under a proper heading. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.”].)

Even absent forfeiture, however, we would reject these arguments, for at least two reasons.

First, Hicks has not given us an adequate record. Most significantly, he has not given us his opposition to the motion; thus, aside from the arguments that he raised orally at the hearing, we cannot tell whether he raised his present arguments below. Indeed, for all we know, he made damaging concessions.

“‘It is the duty of an appellant to provide an adequate record to the court establishing error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citation.]’ [Citation.] This principle stems from the well-established rule of appellate review that a judgment or order is presumed correct and the appellant has the burden of demonstrating prejudicial error. [Citations.] By failing to provide an adequate record, appellant cannot meet his burden to show error and we must resolve any challenge to the order against him. [Citation.]” (Hotels Nevada v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)

Second, Hicks’ declaration in opposition to the motion was not signed under penalty of perjury, as required. (Code Civ. Proc., § 2015.5.)^[2] Although we do not know exactly what evidentiary objections Goodwill raised (because Hicks has not included them in the appellate record), counsel for Goodwill stated at the hearing on the motion that it had objected to Hicks’ declaration. The trial court sustained this objection, and rightly so. Moreover, in his declaration, Hicks purported to authenticate all of his exhibits. Because his declaration was excluded, his exhibits were, too.

In other words, Hicks presented no admissible evidence in opposition to the motion. It follows that he failed to raise a triable issue of material fact.^[3]

Hicks raises only one argument that is legal rather than factual (i.e., that is not dependent on him introducing evidence). It is by no means clear. To the extent that we understand it, however, he argues that Goodwill opposed the motion on grounds it had not pleaded in its answer. But that is not true. Goodwill moved for summary judgment on the ground that Hicks could not establish essential elements of his causes of action. (Code Civ. Proc., § 437c, subd. (o)(1).) The general denial in its answer was sufficient to raise this issue. (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1545.)

If and to the extent that Hicks raises any additional contentions in his reply brief, we deem them forfeited. “We will not ordinarily consider issues raised for the first time in a reply brief.” (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275.)

Accordingly, Hicks has not shown that granting the motion for summary judgment was reversible error in any way.

IV

DISPOSITION

The judgment is affirmed. Goodwill is awarded costs on appeal against Hicks.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.