Opinion
F073011
06-28-2017
ROBERT MENA, Plaintiff and Appellant, v. KERN HIGH SCHOOL DISTRICT et al., Defendants and Respondents.
Law Office of Randy Rumph and Randall M. Rumph for Plaintiff and Appellant. Clifford & Brown, Arnold J. Anchordoquy, John R. Szewczyk, and T. Mark Smith for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-275683)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Law Office of Randy Rumph and Randall M. Rumph for Plaintiff and Appellant. Clifford & Brown, Arnold J. Anchordoquy, John R. Szewczyk, and T. Mark Smith for Defendants and Respondents.
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Plaintiff sued his former employer and two of its personnel after they declined to offer him an employment contract for the next school year. Plaintiff alleged causes of action for violation of his civil and statutory rights, asserting defendants' decision not to rehire him was made in retaliation for reports he made to Child Protective Services (CPS) and a district police officer, which were based on information he received from a student. All but one of plaintiff's causes of action were disposed of by demurrer or motion for nonsuit. The remaining cause of action resulted in a jury verdict in favor of the former employer. Plaintiff challenges the rulings on the demurrer and motions for nonsuit, as well as the jury verdict. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Robert Mena was employed as a speech pathologist by defendant Kern High School District (District). He was not fully credentialed and was hired on a one-year contract. He was assigned to work at Arvin High School three days a week. Plaintiff was also a former law enforcement officer.
On April 4, 2011, while working at Arvin High School, plaintiff had a speech therapy session with an 18-year-old developmentally disabled student, who functioned at around a kindergarten level (John Doe or J.D.). J.D. looked morose and began sobbing. Plaintiff asked what was wrong, and J.D. said his girlfriend was pregnant. Plaintiff asked, "[W]hat, is she ten?" J.D. said she was 13, but it was okay because his mom brought her from Mexico so he could have a girlfriend. J.D. also said the girl was his cousin. Plaintiff questioned J.D. further, and J.D. explained how he had had sex with the girl. Plaintiff asked if J.D. wanted to talk to someone, thinking he might want to talk to a counselor or police officer; J.D. shook his head yes.
The counselor was not on campus that week, so plaintiff made a telephone call to Jack Stovall, a police officer with the Kern High School District Police Department. In J.D.'s presence, plaintiff described what J.D. had told him, then asked if Stovall wanted to investigate or to arrest J.D. Stovall told plaintiff to file a report with CPS or contact local law enforcement in the area of J.D.'s residence. Stovall could hear J.D. in the background, crying and saying, "I don't want to go to jail. I'm not bad." After ending the telephone call, plaintiff calmed J.D. and sent him to lunch.
Plaintiff unsuccessfully attempted to contact John Eldridge, the program specialist who oversaw the special education department, and defendant Melissa Boatman, assistant principal of instruction. Plaintiff emailed Eldridge about the situation, under the heading "Statutory Rape 13 year old report." Boatman later went to plaintiff's office; according to plaintiff, she appeared angry. They discussed the incident. Boatman recalled that plaintiff and J.D.'s classroom teacher, who was also present, asserted J.D. was a sexual predator. Later that afternoon, plaintiff talked with CPS by telephone, then prepared a written report, which he sent the next day.
Boatman identified herself at trial as Melissa Donez, her married name. For consistency and clarity, because most of the references to her in the record are to her maiden name, Melissa Boatman, we use that name. No disrespect is intended.
On April 5, 2011, plaintiff's supervisor, who was District's lead speech pathologist, told plaintiff he was being moved from Arvin High School to Highland High School. Plaintiff spoke with Eldridge, who said the management at Arvin High School felt plaintiff was no longer a good fit at Arvin High School. In May 2011, plaintiff met with defendant John Ferguson, District's manager of special education, who told plaintiff he would recommend to District's personnel department that plaintiff not be offered a new contract for the next school year. Ferguson testified he explained that the administration at Arvin High School did not want plaintiff back on its campus because of his interaction with J.D. Plaintiff testified Ferguson told him management at Arvin High School felt he was not a good fit for the school because he was more interested in getting someone arrested than in doing his job; Ferguson also said he should have just left it alone, and he went beyond what was necessary. Plaintiff continued to work for District during summer school, until he was involved in an automobile accident. He found a job in another school district and began working there in August 2011.
Subsequently, plaintiff filed this action against District, Ferguson, and Boatman, seeking remedies for the termination of his employment with District. He alleged causes of action for violation of Labor Code section 1102.5 (which prohibits retaliation by an employer against its employee for reporting suspected violations of law to a law enforcement agency), violation of Civil Code section 52.1 (which prohibits interference by threat, intimidation, or coercion with an individual's constitutional or statutory rights), violation of Penal Code section 11166 (which prohibits retaliation for making a mandated report of child abuse), violation of Labor Code section 1102.5 as a claim brought under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698, et seq.), and violation of plaintiff's federal civil rights (42 U.S.C. § 1983). The trial court sustained defendants' demurrer to the federal civil rights cause of action without leave to amend. It granted nonsuit in favor of defendants on the Civil Code section 52.1 and Penal Code section 11166 causes of action, and a partial nonsuit or directed verdict on the Labor Code section 1102.5 cause of action. The only claim that went to the jury was the cause of action against District for violation of Labor Code section 1102.5 by allegedly retaliating against plaintiff for disclosing suspected criminal conduct to the police officer. The jury found in favor of District on that cause of action and judgment was entered in defendants' favor. Plaintiff appeals.
Plaintiff represents that the trial court "granted a motion for nonsuit on all claims other than the 1102.5 claim." The trial court actually deferred ruling on the motion as it applied to the private attorney general claim, which the parties apparently agreed would be disposed of by the outcome of the other causes of action. Although no express ruling was made, the trial court treated the private attorney general cause of action as determined in defendants' favor because the other causes of action were determined in their favor.
DISCUSSION
I. Alleged Error in Verdict Form
Plaintiff challenges the first question on the jury verdict form, which was the only question answered by the jury. He contends the question presented an incorrect statement of law and contradicted the jury instructions given.
A. Standard of review
"An appellate court reviews de novo the issue of whether a special verdict form correctly states the law." (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1312.)
B. Verdict question
The first cause of action of plaintiff's third amended complaint alleged District's failure to rehire plaintiff for another school year violated Labor Code section 1102.5, subdivision (b), because it resulted from plaintiff's report to a police officer of activity he reasonably believed constituted a crime. In 2011, when District made its decision not to rehire plaintiff for another school year, Labor Code section 1102.5, provided, in pertinent part: "An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." (Id., former § 1102.5, subd. (b).) Labor Code section 1102.6 provided (as it does currently): "In a civil action . . . brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5."
Under these Labor Code sections, "[i]n a whistleblower retaliation lawsuit brought under Labor Code section former 1102.5, subdivision (b) . . . , the plaintiff must establish a prima facie case of retaliation. The plaintiff must show he engaged in protected activity, his employer subjected him to an adverse employment action, and there is a causal link between the two. If the plaintiff meets his prima facie burden, the defendant has the burden to prove a legitimate, nonretaliatory explanation for its actions. To prevail, the plaintiff has to show that the explanation is a pretext for the retaliation." (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540, fn. omitted (Hager).)
Plaintiff challenges the first question on the special verdict form, which asked: "Was [plaintiff's] discussion with the Arvin High School [p]olice officer on [A]pril 4, 2011[,] concerning potential criminal activity in and of itself a motivating reason for [District's] decision not to rehire [plaintiff]?" Plaintiff proposed a question that was identical, except for the omission of the words "in and of itself." He contends the inclusion of those words in the question rendered it legally incorrect.
Plaintiff contends the language of Labor Code section 1102.6 indicates the report to law enforcement is only required to be "a contributing factor" in District's decision, which is the equivalent of "a motivating reason," as that phrase was used in the special verdict form, and the report need not be the only factor in the decision. He argues the "in and of itself" language in the special verdict question inaccurately told the jury the report to the officer had to be the sole reason for the decision to not rehire plaintiff, which is a legally incorrect standard.
The verdict form question, however, asked if the report to the police officer was "a" motivating reason in the district's decision, not whether it was "the" motivating reason or "the sole" motivating reason. The phrase "in and of itself served to isolate the report of suspected criminal activity from other factors, such as the manner in which plaintiff made the report and questioned J.D. The theory of the defense was that it was not the making of the report itself or the content of the report that led to the decision not to rehire plaintiff. Rather, it was plaintiff's overall handling of the situation, including the manner in which he made the report. Instead of sending J.D. to lunch and making a private telephone call to the police officer, plaintiff made the report while J.D. was present and listening. J.D. heard plaintiff ask whether the officer wanted to arrest J.D.; he became upset and fearful about going to jail. Because only the making of the report was a protected activity under the statutes, the phrase "in and of itself in the question on the verdict form focused the jury's attention on that conduct, to the exclusion of the other circumstances surrounding J.D.'s statements and plaintiff's response to them. While plaintiff's report to a law enforcement officer of a suspected violation of law was protected activity, discussing whether the officer wanted to arrest the alleged offender, a developmentally disabled high school student, while that student was present and listening was not.
A verdict form need not restate the legal principles set out in the jury instructions, although it may not state principles contrary to the instructions given. (People v. Ochoa (1998) 19 Cal.4th 353, 426-427.) The verdict form was consistent with the instructions given. The trial court instructed the jury in substantially the language of CACI former No. 2730 (now CACI No. 4603) as follows:
"Robert Mena claims that the Kern High School District made the decision not to rehire Plaintiff for the academic year 2011-2012 and thereafter in retaliation for disclosure of information of an unlawful act. In order to establish this claim, Robert Mena must prove all of the following:
"1. That Robert Mena was an employee of the Kern High School District.
"2. That Robert Mena disclosed to a government (including Kern High School District) or law enforcement agency a potential violation of the law.
"3. That Robert Mena had reasonable cause to believe that a potential violation of the law had occurred.
"4. That Kern High School District refused to rehire Plaintiff.
"5. That Robert Mena's disclosure of information was a motivating reason for Kern High School District's decision not to rehire Plaintiff.
"6. That Robert Mena was harmed; and
"7. That Kern High School District's conduct was a substantial factor in causing Robert Mena harm."
The jury was also instructed in the language of CACI former No. 2731 (now CACI No. 4604):
"If Robert Mena proves that his disclosure of information of an unlawful act was a contributing factor to the District's failure to rehire, Kern High School District is not liable if it proves by clear and convincing evidence that it would have not rehired Robert Mena anyway for legitimate, independent reasons."
The trial court further instructed the jury: "I will give you a verdict form with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully." Consequently, the jury knew it was required to apply the instructions in determining the answers to the questions on the verdict form.
The jury was instructed that, in order for plaintiff to prove his claim, he had to prove his disclosure to law enforcement of a potential violation of the law was "a motivating reason" for the district's decision not to rehire him. Consistent with this instruction, the verdict form's first question asked whether the report "in and of itself," i.e., separate from the circumstances under which it was made or any other conduct, was a motivating reason in District's decision. The jury answered that question "No." As a result, the jury never reached the issue of whether defendant proved by clear and convincing evidence that it would have made the same decision without the retaliatory reason, based on legitimate, independent reasons. Because the jury never reached that issue, we find meritless plaintiff's argument that District did not establish a "same action" defense (that the employer would have taken the same action anyway for legitimate, independent reasons) because the manner in which the report was made was not a reason "independent" of the making of the report or its content. The jury never reached the issue of District's defense, because it found plaintiff's report to law enforcement was not one of the reasons for District's decision not to rehire plaintiff.
To the extent plaintiff argues that the question whether District's decision was motivated by plaintiff's report of suspected criminal conduct could not be separated from the question whether the decision was motivated by the manner in which the report was made and other conduct, because the manner in which the report was made was not completely independent of or unrelated to the making or content of the report, we reject the argument. Labor Code former section 1102.5, subdivision (b), protected an employee from retaliation by his or her employer for disclosing information to a law enforcement agency when the employee had reasonable cause to believe that the information disclosed a violation of state or federal law. (Hager, supra, 228 Cal.App.4th at p. 1548.) " 'This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.' " (Ibid.) The purpose of the statute is to protect and encourage whistleblowers. That purpose is served by providing remedies when the employer retaliates against the employee for the making of the report itself. That purpose is not served by insulating a school employee from the consequences of his actions when, in the course of making a legitimate report of a suspected law violation to a police officer, the employee inappropriately makes statements in front of a developmentally disabled student that unnecessarily cause the student to become upset and fearful that he will go to jail.
Plaintiff cites no authority for his proposition that, if the manner in which the report was made was objectionable to the employer and was one of the reasons for the adverse employment action, even though the fact that the report was made, in and of itself, was not a factor in taking the action, the employer is nonetheless liable for retaliation because the manner of making the report was not entirely unrelated to the making or content of the report. Under the circumstances present in this case, such a rule would be unwarranted. The first question on the special verdict form did not misstate the legal question to be answered by the jury.
II. Nonsuit on Claim of Retaliation for Filing CPS Report
A. Standard of review
"We review an order granting a nonsuit de novo. [Citation.] A defendant is entitled to a nonsuit if the trial court determines the evidence presented by the plaintiff is insufficient to permit a jury to find in his or her favor as a matter of law." (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.) "A mere 'scintilla of evidence' does not create a conflict for the jury's resolution; 'there must be substantial evidence to create the necessary conflict.' " (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
B. Retaliation for filing CPS report
The first cause of action of plaintiff's third amended complaint alleged District's failure to rehire plaintiff for another school year violated Labor Code former section 1102.5, subdivision (b), because District's action was taken in retaliation for plaintiff's report filed with CPS, as well as for the report made to the police officer. The third cause of action alleged the individual defendants, in violation of Penal Code section 11166, retaliated against plaintiff for making the CPS report. After all the evidence was presented, defendants made a motion for directed verdict. The trial court partially granted nonsuit on the first cause of action, to the extent that cause of action was based on retaliation for filing the CPS report. It also granted the motion on the third cause of action. Plaintiff contends the trial court ignored a portion of plaintiff's testimony that constituted substantial evidence supporting his claims of retaliation for filing the CPS report.
Stovall testified he told plaintiff to file a CPS report. Eldridge told plaintiff to file a CPS report in the e-mail he sent plaintiff on April 4, 2011. Plaintiff admitted Stovall, Eldridge, Boatman, Danny Stamp (the administrator under Ferguson), and Kelly Records (J.D.'s special education teacher) all told him to file a CPS report.
Boatman testified she spoke with plaintiff on April 4, 2011, and he related what J.D. had told him. Plaintiff told Boatman he asked J.D., "Were you doing her doggy style?" Plaintiff also told Boatman he called Stovall in J.D.'s presence and asked if Stovall wanted to come and arrest J.D., which upset J.D. Boatman later recommended to Ferguson that plaintiff not be placed at another high school in the district for the next school year. Boatman's recommendation was not made because plaintiff filed a CPS report. Boatman explained she believed plaintiff went too far in investigating the situation and did not act in J.D.'s best interests when he called Stovall in front of J.D. The Arvin High School principal, the other Arvin High School assistant principal, and Boatman agreed it was not within plaintiff's "realm to scare the student in the manner that he did by calling the police officer in front of [J.D.]." Boatman testified plaintiff had every right to speak to Stovall, but it was improper to do it in front of the student. She recommended against reassigning plaintiff to another high school in the district because she thought his actions were not in accordance with how District did business and could have exposed District to a lawsuit by J.D.'s family.
Plaintiff admitted asking J.D. this question. He testified that, based on his experience as a police officer, with individuals who are developmentally disabled and those who are not, he asked such questions to throw the person off. "They are either going to give you information that you are wanting or - or something you realize they don't have the slightest idea what they are talking about." --------
Eldridge testified that, when he saw the caption of plaintiff's e-mail to him, referring to statutory rape, his "first thought was that [plaintiff] had already tried and convicted the student. It didn't say alleged. It didn't say possible. . . . [I]t was like it was a matter of fact." An instructional assistant from J.D.'s class had already called Eldridge and reported that J.D. was upset, would not eat his lunch, and said plaintiff was mean and was going to call the cops and have him arrested. Eldridge told plaintiff in his responsive e-mail that plaintiff's role as a speech pathologist was to file a CPS report, not to investigate or call police; CPS would investigate and make the decision whether to call police. Eldridge felt plaintiff was no longer a good fit at Arvin High School because of his attitude toward J.D.
Ferguson testified he asked Boatman if she would recommend rehiring plaintiff to work at another high school in the district, and she said she would not; she did not feel comfortable recommending him because of his interactions with J.D.
Plaintiff's argument that there was sufficient evidence to send to the jury the claim of retaliation for making a CPS report relies on one statement plaintiff testified Ferguson made to him. Plaintiff testified that, when he met with Ferguson and Ferguson told him he would not be rehired for the next school year, Ferguson "related that Arvin management felt [he] had gone too far and, basically, did more than what they felt justified the writing of the report, and [he] wouldn't be working there." Plaintiff asserts "the report" in this testimony referred to the CPS report.
Before plaintiff gave the quoted testimony, he refreshed his memory by referring to Exhibit R, notes he took close to the time of the events. On cross-examination, again referring to Exhibit R, plaintiff testified Ferguson told him there was no issue with actually making the report and the reason plaintiff was not being offered a contract for the next year had nothing to do with filing the CPS report. Plaintiff testified no one at the district told him he was not offered a new contract because he had filed a CPS report, although Ferguson said he "should have just left it alone."
The excerpt of testimony plaintiff relies on as sufficient evidence of retaliation for filing the CPS report does not indicate the Arvin High School management felt writing the CPS report itself was unjustified. It does not contradict the testimony that several of District's personnel advised plaintiff to file a CPS report and no one indicated that the filing of the report was the reason for the decision not to offer him a contract for the next school year. Plaintiff subsequently clarified his testimony, stating that Ferguson said the decision not to rehire him was not related to the filing of the CPS report. The cited excerpt also does not contradict, but is consistent with, the testimony that the decision not to rehire plaintiff was based on plaintiff's handling of the situation: instead of merely making a CPS report as advised, plaintiff attempted to investigate J.D.'s statements, asked J.D. inappropriate questions, discussed arresting J.D. in his presence, and sent Eldridge an e-mail headed "Statutory Rape," which suggested to Eldridge that plaintiff had already determined in his mind that J.D. was guilty of that crime.
The quoted excerpt from plaintiff's testimony, which plaintiff contends the trial court ignored, does not constitute substantial evidence supporting plaintiff's claim that District retaliated against him for filing a report with CPS. The trial court did not err in granting the motion for nonsuit on that claim.
III. Nonsuit on Claim for Violation of Civil Code Section 52.1
Under Civil Code section 52.1 (the Bane Act), "[a]ny individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with," by threat, intimidation, or coercion, may prosecute a civil action for damages and other relief. (Civ. Code, § 52.1, subd. (b).) Speech alone is not sufficient to support such an action; the plaintiff must show "that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat." (Id., subd. (j).) At least where violence or threats of violence are the basis of the claim, to establish this cause of action, a plaintiff must prove the defendants made threats of violence against him, causing him to reasonably believe that, if he exercised his civil right, the defendants would commit violence against him, the defendants had the apparent ability to carry out the threats, the plaintiff was harmed, and the defendants' conduct was a substantial factor in causing the harm. (CACI No. 3066.)
The trial court granted nonsuit on plaintiff's second cause of action for violation of the Bane Act, which was alleged against all defendants. The trial court agreed with plaintiff that the cause of action could be established by a showing of coercion, without a showing of actual violence or a threat of violence. It concluded, however, that there was no evidence any defendant instructed plaintiff not to make a report to CPS or to the police, and he did in fact exercise his right to make both reports. Further, plaintiff did not demonstrate that defendants' subsequent actions, transferring him from Arvin High School and not renewing his contract for another year, prevented or were an attempt to prevent him from exercising those rights. There was no coercion to prevent plaintiff from doing what he had already done.
" 'The Legislature enacted [Civil Code] section 52.1 to stem a tide of hate crimes.' [Citation.] Civil Code section 52.1 requires 'an attempted or completed act of interference with a legal right, accompanied by a form of coercion.' " (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882.) We agree with the trial court that there is no evidence in the record that defendants' actions interfered with or prevented plaintiff from making a report to CPS. The evidence indicated defendants and other district personnel advised or encouraged plaintiff to make such a report.
There also is no evidence in the record to support a claim that defendants interfered with plaintiff's right to report J.D.'s statements to the police. Plaintiff made his report to Stovall before defendants were even aware of J.D.'s statements. The actions defendants took subsequently did not prevent or attempt to prevent plaintiff from making that report. Further, there was no evidence defendants' subsequent actions coercively interfered with, or prevented plaintiff from exercising, plaintiff's right to make any other or further report to the police. There was no evidence that, by transferring plaintiff from Arvin High School for the remainder of the school year or declining to rehire him for the following school year, defendants attempted to or did coerce plaintiff to refrain from bringing the matter to the attention of other law enforcement officers. Accordingly, the trial court did not err in granting nonsuit on the Bane Act cause of action.
IV. Sustaining of Demurrer to Civil Rights Cause of Action
Plaintiff filed his original complaint in this action on January 20, 2012. In September 2013, he filed a motion for leave to amend his complaint, in part to add a cause of action against Boatman for violation of his civil rights under 42 United States Code section 1983. The trial court granted the motion, and plaintiff filed his third amended complaint, which contained the added civil rights claim as the fifth cause of action. Boatman demurred to the fifth cause of action on two grounds: that it was improperly alleged against Boatman in her official capacity as assistant principal of Arvin High School and that it was untimely. The trial court sustained the demurrer to the fifth cause of action without leave to amend, without stating the ground or grounds on which it was sustained. Plaintiff challenges that ruling.
Our review of an order sustaining a demurrer without leave to amend is de novo. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) "On appeal, a judgment of the trial court is presumed to be correct." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) " 'The burden of affirmatively demonstrating error is on the appellant.' " (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The appellant also must show in every case that the claimed error was prejudicial, i.e., that it caused a miscarriage of justice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) "Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. 'But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice." ' " (Ibid.) " 'The reviewing court is not required to make an independent, unassisted study of the record in search of error.' " (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
In a cursory argument in his opening brief, plaintiff asserts he filed an action based on the same conduct in federal court on May 2, 2013, exactly two years after he was informed he would not be rehired, "causing the doctrine of equitable tolling to apply." He makes no further argument in his opening brief to show how sustaining the demurrer to the civil rights cause of action constituted prejudicial error by the trial court. In his reply brief, plaintiff responds at greater length to defendants' arguments regarding timeliness, but fails to address either the alternate ground for demurrer - that the fifth cause of action was improperly alleged against Boatman in her official capacity as assistant principal - or the issue of prejudice.
The burden is on plaintiff to establish both error and prejudice. Even assuming for the sake of argument his briefs demonstrated that the fifth cause of action was timely filed, plaintiff has not shown that the trial court's ruling on the demurrer was erroneous, because he has made no attempt to show the other ground asserted in the demurrer did not support the ruling. Likewise, he has presented no argument or authority establishing prejudice from the allegedly erroneous ruling; a showing of prejudice is particularly important in light of the jury's verdict and the trial court's nonsuit on the other causes of action.
Plaintiff has not established prejudicial error in the trial court's disposition of the fifth cause of action.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
/s/_________
DETJEN, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
MEEHAN, J.