Opinion
D081400
09-17-2024
LING HE, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Ling He, in pro. per., for Plaintiff and Appellant. Lagasse Branch Bell Kinkead, Michael W. Healy and Shelby K. Craven, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2020-00013524-CU-OE-CTL James A. Mangione, Judge. Affirmed.
Ling He, in pro. per., for Plaintiff and Appellant.
Lagasse Branch Bell Kinkead, Michael W. Healy and Shelby K. Craven, for Defendant and Respondent.
MEMORANDUM OPINION
BUCHANAN, J.
Plaintiff Ling He appeals from a judgment entered against her after the trial court granted the Regents of the University of California's (University) motion for summary judgment.
Ling He was employed by the University in its Information Technology Services department from 2008 until she was terminated in 2018. During her first few years of employment with the University, Ling He received generally positive performance reviews. That began to change in 2016, when Ling He's supervisor noted issues centered around her lack of communication. In May 2017, Ling He's new supervisor, Lori Barry, completed and issued Ling He's 2016-2017 annual performance evaluation, in which Barry rated her performance as "Improvement Needed." In July 2017, Barry put Ling He on a performance improvement plan (PIP), which identified several areas in which her performance was deficient. After the PIP was issued, Ling He continued to struggle to satisfactorily perform her job duties, and she was not meeting the goals of the PIP. In September 2017, Barry provided Ling He with a post-PIP performance evaluation and informed her that her performance still needed improvement.
By February 2018, Ling He's performance still had not improved, and the University decided to terminate her employment. The University issued a Notice of Intent to Terminate, which identified the following reasons for her termination: (1) failure to submit time entries despite several directives and training sessions to do so; (2) lack of commitment to work schedules; (3) failure to provide estimates of completion dates; and (4) disrespectful and argumentative attitude. One week later, Ling He submitted a response to the notice. In March 2018, the University terminated Ling He's employment.
In April 2018, Ling He filed an internal complaint with the University's Office for the Prevention of Harassment and Discrimination, alleging that Barry had discriminated and retaliated against her. The University conducted three investigations at Ling He's request but found no evidence to support her allegations. Ling He also filed a complaint with the Department of Fair Employment and Housing, which also investigated her allegations and concluded there was insufficient information from which to establish any statutory violation.
In 2020, Ling He sued the University, asserting claims of race and marital status discrimination, retaliation, and failure to prevent harassment and discrimination under the Fair Employment and Housing Act (FEHA).
In 2022, the University filed a motion for summary judgment. Ling He filed an "opposition package" in response, as well as various iterations of other oppositions to the summary judgment motion. The University filed a reply. After hearing oral argument, the trial court issued an order granting the University's summary judgment motion. The court entered judgment in favor of the University in January 2023.
Representing herself, Ling He has appealed from the judgment. Although the exact scope of Ling He's appeal is unclear, she seeks reversal of the trial court's grant of summary judgment, an order requiring the University to temporarily reinstate her employment, reversal of the trial court's order earlier in the litigation imposing monetary sanctions on her due to her discovery misconduct, the imposition of monetary sanctions on the University, and declaratory relief in the form of apology letters from the University and its counsel.
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) If the appellant cannot show error in the record, the presumption of correctness requires us to affirm the judgment. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)" '[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).) Ling He has not provided cogent argument supported by legal analysis and citation to the record, and we therefore conclude she has forfeited any claim of error.
Rule 8.204, subdivision (a)(1)(C) of the California Rules of Court requires a party to support any reference to a matter in the record by a citation to the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).) An appellant is also required to" 'provide a summary of the significant facts limited to matters in the record.'" (Ibid.; Cal. Rules of Court, rule 8.204, subd. (a)(2)(C), italics added.) Ling He's opening brief presents her view of the facts with very few citations to the record and even fewer that support the statements she makes. It is also unclear what relevance many of the topics in her briefing have to the trial court's purported errors or to her case. She has not identified or cited evidence in the record creating a triable issue of material fact on any of her claims. We are not required to search the record seeking error, and where a party fails to support their arguments with necessary citations to the record, it will be deemed forfeited. (Nwosu, at p. 1246.) Because Ling He failed to recite the relevant facts and appropriately cite the record, she forfeited any argument that the challenged order and subsequent judgment were erroneously issued. (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620.)
Moreover, although Ling He cites to some statutes and case law in her briefing, she does not adequately explain how the legal authorities she cites support a finding that the trial court committed reversible error. "When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary." (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Ling He's briefing renders it impossible to evaluate her arguments, and it is not our "role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness." (Dilbert v. Newsom (2024) 101 Cal.App.5th 317, 323 (Dilbert); see also Hernandez, supra, 37 Cal.App.5th at p. 277 [a reviewing court is not obliged to make arguments for appellant or speculate about which issues they intended to raise].) We therefore conclude for this additional reason that Ling He has forfeited any claim of error.
We recognize that Ling He is self-represented, but that does not allow for preferential consideration. (Dilbert, supra, 101 Cal.App.5th at p. 323.) A party proceeding in propria persona must be treated like any other party and follow the same procedural rules as an attorney. (Ibid.)
By failing to provide adequate record citations or make any cognizable claims of error, Ling He has forfeited her appellate contentions. (Hernandez, supra, 37 Cal.App.5th at p. 277.) We therefore presume the trial court's order and ensuing judgment are correct and affirm on that basis.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: McCONNELL, P. J. O'ROURKE, J.