Opinion
H050123
11-07-2023
JAMES RHYS KANTOR, Plaintiff and Respondent, v. VERNON KIRK et al., Defendants and Appellants
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 19-CV-348666)
MEMORANDUM OPINION
Grover, Acting P. J.
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Plaintiff James Rhys Kantor sued defendants Vernon Kirk and San Jose Hardwood Floors, Carpet &Vinyl, Inc., alleging Labor Code violations related to plaintiff's work for defendants. The operative first amended complaint alleged plaintiff entered into an employment agreement with defendants at an agreed salary of $23,000 per month. The complaint elsewhere refers to "the contracted rate of $95 an hour."
After a bench trial, the trial court entered judgment against defendants. As relevant here, the trial court determined that plaintiff was an employee of defendant San Jose Hardwood Floors, Carpet &Vinyl, Inc., and that the parties had agreed plaintiff would receive $300 per hour for his work. Based on that figure, the judgment awarded plaintiff $54,000 in unpaid wages. The bench trial was not reported. In designating the record on appeal, defendants elected to proceed without a record of the oral proceedings in the trial court.
Defendants argue on appeal that substantial evidence does not support the trial court's finding that plaintiff's hourly rate was $300. We acknowledge that the limited record before us suggests plaintiff's hourly rate was substantially lower than the $300 per hour awarded: the operative complaint effectively references an hourly rate of either $95 ("the contracted rate" in the complaint) or about $133 (based on a $23,000 monthly salary and assuming 2,080 full time work hours in a calendar year). But it is the appellant's burden both to provide an accurate record and to demonstrate error (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8-9), and defendants failed to avail themselves of multiple alternative methods to preserve their argument for appeal. Defendants did not ensure that a court reporter was present to report the bench trial (see Gov. Code, § 68086, subd. (d)), nor did they seek an agreed or settled statement about what occurred at trial (see Cal. Rules of Court, rules 8.130(h), 8.137). Defendants did not move for a new trial based on insufficient evidence (Code Civ. Proc., §§ 657, subd. (6), 662). And defendants did not move to set aside the judgment as not supported by the facts. (Code Civ. Proc., § 663, subd. (1).) Having failed to provide an adequate record for review, defendants have not met their burden to demonstrate error and we must therefore presume that what occurred at the unreported bench trial supports the trial court's decision.
DISPOSITION
The judgment is affirmed. As the prevailing party, plaintiff is entitled to his appellate costs, if any. (Cal. Rules of Court, rule 8.278(a).)
WE CONCUR: Lie, J. Bromberg, J.