Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS02862
NICHOLSON, Acting P. J.
Despite the Rules of Court and repeated pronouncements by the appellate courts, some attorneys still do not submit even minimally adequate briefs. This is a case in point. The statement of facts submitted by appellant’s counsel is argumentative and does not contain all material facts, despite counsel indicating her client challenges the sufficiency of the evidence. The argument section does not identify specific errors in the trial court proceedings but instead asks us to read specified pages in the record to ascertain the existence of error. Moreover, counsel argues we are to presume the errors we discover are prejudicial and must reverse the judgment against her client on that basis. Counsel does not explain how such a presumption can be made in this instance.
Because of counsel’s failure to submit a sufficient brief from which we can ascertain her client’s claims of error and supporting arguments, we conclude plaintiff’s claims are forfeited, and we affirm the judgment on that basis.
HISTORY
Defendant City of Sacramento terminated plaintiff Parkash Narayan’s part-time seasonal employment. Plaintiff sued the City and three of its employees, claiming violations of his rights under the California Fair Employment and Housing Act (FEHA) against employment discrimination, retaliation, and failure to prevent discrimination (Gov. Code, § 12940), and also claiming wrongful termination in violation of public policy.
Following a three-week trial, a jury found in favor of defendants and against plaintiff on all causes of action. Subsequent to the verdict and entry of judgment, the trial court denied plaintiff’s motion for new trial, motion for judgment notwithstanding the verdict, and motion to strike costs. Plaintiff appeals from the judgment, the denial of the motion for judgment notwithstanding the verdict, and the denial of the motion to strike costs.
PLAINTIFF’S OPENING BRIEF
Plaintiff’s counsel outlines three grounds of appeal in the introduction to her opening brief: (1) there were errors in the proceedings that are to be presumed prejudicial; (2) the verdict cannot stand as a matter of law because the City admitted using race as a criteria in hiring; and (3) the verdict is not supported by substantial evidence, and to the extent it is supported, such evidence that exists was weakened by defendants’ own testimony at trial. Counsel contends these same grounds support reversing the court’s denial of her motion for judgment notwithstanding the verdict and her motion to strike costs.
In her statement of facts, counsel recites only those facts benefiting her client. Despite her substantial evidence ground of appeal, counsel’s statement of facts fails to include all of the material facts adduced at trial. Instead of presenting the facts favorable to defendants that went to the elements of plaintiff’s causes of action, the statement of facts contains arguments challenging the weight of some of defendants’ testimony and evidence. Then, counsel supports many of these arguments not with citations to the record, but with the following phrase: “Cites to the record are in body of brief.”
Still in her statement of facts, counsel asserts we should reverse the verdict and posttrial orders based on what she asserts was undisputed evidence that established a violation of plaintiff’s rights under FEHA as a matter of law, namely, that the City allegedly instructed plaintiff’s supervisor to consider race in future hiring decisions, and that only employees of plaintiff’s ethnicity, and all such employees, were terminated from plaintiff’s job site. Counsel also asks us to reverse based on the trial court’s limitation of witness testimony and on alleged bias by the trial judge.
Counsel admits in the brief being “cognizant” of the substantial evidence rule, but she informs us she “has no intention of rehashing yet again in this brief events and accounts which have now been disputed and aired in numerous forums for nearly six and one half (6 1/2) years.”
“When appellants challenge the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact. [Citation.]” (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.)
By the time counsel reaches her argument section, two of the grounds of appeal she outlined in her introduction, the City’s alleged admissions of using race as a hiring criteria and the lack of substantial evidence, disappear. What remains is the allegation of prejudicial error that “occurred before, during and following trial” and upon the court’s rulings on plaintiff’s in limine evidentiary motions. However, counsel does not identify any error. Counsel simply asks us to read certain portions of the clerk’s and reporter’s transcripts and to divine from our reading the existence of error such that prejudicial error should be presumed.
We will not do counsel’s work for her. We also will not disregard her incorrect understanding of the prejudicial error standard.
DISCUSSION
Counsel was required to submit a brief that stated each point under a separate heading, supported each point with argument and citation of authority, and supported any reference to a matter in the record with citations to the volume and page number of the record. (Cal. Rules of Court, rule 8.204(a)(1).) Here, counsel has failed even to identify an error of law or fact, let alone support a claim of error with argument.
We are not required to make an independent, unassisted study of the record in search of error, and we will not do so here. It was counsel’s obligation to identify in her opening brief the exact errors she claimed occurred here, and to support each claim of error with citations to controlling authorities and focused arguments illustrating the error and its prejudicial effect. Where counsel fails this responsibility, we treat her arguments as forfeited. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
“Appellate courts will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs. It is the duty of counsel to refer the reviewing court to the portion of the record to which [she] objects and to show that the appellant was prejudiced thereby. [Citations.]... The fact that it would be burdensome and cumbersome to appellant’s counsel who [is] familiar with the record is a sufficient reason for [her] assistance to the court.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742, italics added.)
Counsel’s attempt to remedy these defects in her reply brief is too little, too late. In her reply brief, she provides brief summaries of the documents and transcripts she had asked us to review in her opening brief. However, she still fails to provide legal argument identifying errors and showing injury from those errors.
Regarding prejudicial error, counsel’s weak attempt at a legal argument -- asserting the error we would find from our search of the record should be presumed prejudicial -- is an incorrect statement of law. Courts do not presume error. (Cal. Const., art. VI, § 13.) Plaintiff and plaintiff’s counsel bear the burden of showing both error and injury from the error. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.)
Counsel’s argument is based on a misapplication of the holding in Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683 (Lankster), and the holding on which Lankster relied, Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 (Hasson). Those cases concerned a rebuttable presumption of prejudice that arises upon a showing of serious juror misconduct. (In re Carpenter (1995) 9 Cal.4th 634, 652.) This presumption is “an evidentiary aid” to those parties who are able to establish serious jury misconduct but are unable to establish by a preponderance of the evidence that actual prejudice occurred because of the bar contained in Evidence Code section 1150 that prohibits admitting evidence of the effect such misconduct may have had on a juror’s decision. (Hasson, supra, 32 Cal.3d at p. 416.)
This rebuttable presumption is not so broad, as counsel implies, as to establish a presumption of prejudice upon whatever error she believes occurred here. Counsel’s argument would effectively render every error reversible per se, which, of course, is contrary to established constitutional, statutory, and case law. Moreover, the narrow presumption does not apply here because counsel has not alleged or shown jury misconduct. Lankster simply is of no worth to counsel in this instance.
Even with jury misconduct, this presumption does not operate to create reversible error per se. Rather, it establishes a presumption that can be rebutted by an affirmative evidentiary showing that prejudice does not exist or a determination that there was no reasonable probability of actual harm to the complaining party. (Hasson, supra, 32 Cal.3d at p. 417.) The presumption, even in its limited domain, simply does not operate as counsel indicates.
In short, counsel forfeited plaintiff’s claims by failing to identify and argue error and by failing to demonstrate prejudice. We affirm on this basis.
DISPOSITION
The judgment, the denial of the motion for judgment notwithstanding the verdict, and the denial of the motion to
strike costs, are all affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a).)
We concur: HULL, J., BUTZ, J.