Opinion
G051651
11-13-2017
NAGUI MANKARUSE, Plaintiff and Appellant, v. RAYTHEON COMPANY et al., Defendants and Respondents.
Nagui Mankaruse, in pro. per., for Plaintiff and Appellant. Manatt, Phelps & Phillips, Robert H. Platt, Donald R. Brown and Benjamin G. Shatz for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00625080) OPINION Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Nagui Mankaruse, in pro. per., for Plaintiff and Appellant. Manatt, Phelps & Phillips, Robert H. Platt, Donald R. Brown and Benjamin G. Shatz for Defendants and Respondents.
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Plaintiff and appellant Nagui Mankaruse sued defendants Raytheon Company (Raytheon), James Weber (Weber), and Kenneth Gillette (Gillette; all three collectively defendants) alleging 10 employment-related causes of action arising out of his termination due to a reduction in force. After defendants prevailed on some of the claims pursuant to a summary adjudication, the jury returned a verdict against plaintiff on the remaining causes of action.
Plaintiff essentially argues the court and the jury erred because they did not find in his favor. He maintains there was substantial evidence to support his causes of action and he should have prevailed.
As to the causes of action which were summarily adjudicated, the record reflects plaintiff failed to provide evidence showing a triable issue of material fact. As to the causes of action that were tried there was substantial evidence to support the judgment. Therefore, we affirm.
DEFICIENCIES IN PLAINTIFF'S BRIEFS
It is impossible to decide the substance of plaintiff's claims without first addressing the problems with his briefs, which do not comply with the California Rules of Court (all further references to rules are to the California Rules of Court).
Plaintiff failed to "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).) Instead he set out only a one-sided version of the facts in his favor. Further, he included facts that are not in the record. His explanation he had to "expand on" evidence presented to the jury due to the complexity of the case is invalid. Contrary to plaintiff's argument, we do not have discretion to consider evidence outside of the record. "'[I]f it is not in the record, it did not happen.'" (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1.) We are limited to what is in the record.
In the same vein, even as to facts contained in the record, usually plaintiff failed to provide a record reference with "a citation to the volume and page number of the record where the matter appears." (Rule 8.204(a)(1)(C).) At times when plaintiff did include a record reference, it was to large portions of the record, e.g., the entire 120-page plus testimony of a witness, without directing us to specific statements. (People v. Dougherty (1982) 138 Cal.App.3d 278, 281 ["all-inclusive reference to 116 reporter's transcript pages is not within the spirit of the rules"].) We are not required to search the record to find support of plaintiff's claims. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 ["'It is neither practical nor appropriate for us to comb the record on [a party's] behalf'"].) We may disregard any facts or arguments not supported by adequate citations to the record. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294 (Provost).)
This includes plaintiff's citations to motions in limine. The contents of those motions were not part of the motion for summary judgment and were not admitted in trial. Thus we cannot consider them in connection with plaintiff's evidentiary claims.
In addition, each issue in a brief must have its own discrete heading summarizing the point and must be supported by reasoned legal argument. (Rule 8.204(a)(1)(B).) Although plaintiff included headings, he mixed facts and argument indiscriminately throughout the brief, many repeated a number of times under various headings, significantly hindering our review.
Furthermore, plaintiff failed to provide authority or make reasoned legal argument to support his claims. (Rule 8.204(a)(1)(B).) Instead he merely listed cases and statutes in his table of authorities and never discussed their applicability. Moreover, he made essentially the same pro forma argument for each issue. On that basis we could consider the issues forfeited. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)
A party appearing in propria persona is held to the same standards as a party represented by counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [appellant's issues forfeited due to defects in opening brief].) A self-represented litigant is not entitled to "special treatment." (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524.)
Contrary to plaintiff's argument, we are not affirming because he is representing himself. Rather, it is because, as to the issues summarily adjudicated there were no triable issues of material fact, and as to those claims tried the evidence supports the judgment
Nevertheless we will do out best to address plaintiff's arguments on the merits. To the extent we are unable to do so they are rejected for the reasons set forth above and below.
FACTS AND PROCEDURAL HISTORY
Raytheon hired plaintiff in 2004 to work in its TRS division. A year later plaintiff was transferred to the Hardware Center (Center) in the NCS division to work as a mechanical engineer. Defendant Weber became plaintiff's section manager in 2008, and beginning in 2010 defendant Gillette was his department manager.
Plaintiff took a medical leave of absence for a heart problem in August 2010. Shortly after he returned to work in November 2010, he went on vacation and then took another medical leave of absence until March 2012.
In April 2012 plaintiff was laid off as part of a Raytheon reduction in force (RIF). Plaintiff was laid off based on Raytheon's decreased need for mechanical engineers and plaintiff's comparative skills. The decision was not due to plaintiff's age, national origin, claimed disability, or leave of absence.
Raytheon had five RIF's in 2012, laying off almost 250 employees, and more in 2013 as a result of the recession.
There had been a steady decrease in work for mechanical engineers in Center since 2010. A 2012 Center workload projection showed there would be a surfeit of mechanical engineers for years to come. Based on the projection senior management determined one mechanical engineer should be laid off.
Raytheon's engineers had been ranked annually for years using a variety of criteria. The ranking process used was complex, designed to ensure fairness and accuracy. Initially, there was a peer rating, with the employee having the opportunity to seek feedback from coworkers. The section manager collected and complied the workers' ratings and then ranked the engineers, submitting the information to the department manager. The department manager and all department section managers met and completed the rankings for all engineers in the department. All department managers then met with the manager of Center, Russ Romero, to create a "master ranking" for all engineers. Romero then conferred with senior management to complete the ranking process.
Between 2007 and 2010 plaintiff had one of the lowest employee rankings and was less skilled relative to the other three mechanical engineers. In 2007 he was 84th out of 89. He was tied for last in 2008 and was ranked last in 2009 and 2010.
Engineers were required to bill their time to either a specific project or to overhead. In 2010 an investigation revealed plaintiff had overbilled his time. This led to a two-week suspension.
Plaintiff was repeatedly told to learn Pro-E, a CAD program that was important to performing usual mechanical engineering tasks. He was given the time and tools needed to become proficient with Pro-E, but refused to do so. The three other mechanical engineers used Pro-E.
The lack of this Pro-E qualification made it more difficult to find assignments for plaintiff, especially given the reduced number of projects. In addition, when plaintiff was given work he often did not perform competently.
According to plaintiff's largely unsubstantiated version of the facts, he was terminated based on age (67 at the time he was laid off), disability, and national origin. He explains he had strong performance reviews for the years 2005 through 2009. He claims he made a "valuable contribution" to projects in 2008 but it was not reflected on that year's performance review, the first by Weber, which instead contained many negative comments. Plaintiff refused to sign the review believing he would be fired if he did. According to plaintiff, Weber told him he wanted plaintiff to be fired or demoted. Plaintiff also asserts Weber said he thought plaintiff was too old and should retire. Weber testified he never said these things and denied making any statements about plaintiff's age or claimed disability.
After that, plaintiff maintains, he was not given his typical assignments but began being tasked by Weber and Gillette to act as a "lab rat" (bold, underscoring & capitalization omitted) by performing "demeaning" "menial," and "janitorial tasks" such as cleaning labs, building cabinets, and labelling containers. (Boldface omitted.) This so-called "psychological lynch[ing]" caused permanent physical disabilities and led to his leave of absence, which required surgery. Plaintiff argued that on the day he returned from his first leave of absence, Gillette told him he should retire because he was old and ill. Gillette denied making any such statements.
Plaintiff never reported or complained about alleged statements by Weber or Gillette to anyone at Raytheon.
Moreover, there was testimony by several witnesses that other engineers performed "lab rat" chores too. The tasks were not merely janitorial but were important to prevent hazards and to ensure compliance when audited by the government.
Plaintiff also challenged the workload projection, claiming there was a larger surplus of mechanical engineers in the TRS division, and thus there was no need to reduce the number of mechanical engineers at Center. But in addition to the projections that showed a surplus, there were no openings for mechanical engineers in the TRS or NCS divisions during 2012. Moreover, no one filled in for plaintiff during his leaves of absence and he was never replaced. Further the NCS division closed in 2013.
After the RIF, plaintiff filed a complaint alleging age discrimination; discrimination based on race and national origin; discrimination based on medical condition and disability; failure to provide reasonable accommodation; failure to engage in the interactive process; harassment based on medical condition, disability, age, and national origin; retaliation; failure to prevent discrimination, harassment, and retaliation; wrongful termination in violation of public policy; and intentional infliction of emotional distress.
Plaintiff had previously filed a discrimination action against the same defendants in January 2012, a few months before his termination.
Subsequently, defendants filed a motion for summary judgment/motion for summary adjudication. The court granted summary adjudication as to the causes of action for discrimination based on race and national origin; failure to reasonably accommodate; failure to engage in the interactive process; harassment based on age, medical condition, disability, age, and national origin; and intentional infliction of emotional distress. The remaining four causes of action were tried to a jury that returned a unanimous verdict in defendants' favor after a three-week trial.
Plaintiff dismissed the wrongful termination cause of action during trial.
DISCUSSION
1. Jury Trial
The jury decided causes of action, alleging age discrimination; disability discrimination; retaliation; and failure to prevent discrimination. Plaintiff's argument as to each of these is identical: there was substantial evidence to support his claims, there were conflicts in the facts, and "[t]he jury should have believed him over Raytheon." In support of his contentions he sets out "facts" favorable to his position and then argues they prove his claims. On this basis he seeks reversal. His argument does not persuade.
Plaintiff is challenging the sufficiency of the evidence. As such he must "'"fairly summarize all of the facts in the light most favorable to the judgment."'" (Contra Costa County v. Pinole Point Properties, LLC (2015) 235 Cal.App.4th 914, 934.) This means he must include all the material evidence, not just evidence favoring his position. Plaintiff failed to do so and we could affirm on that basis alone.
Even on the merits plaintiff's arguments fail. Because plaintiff is attacking the sufficiency of the evidence to support the verdict, "we review the record in the light most favorable to the prevailing party, resolving in favor of the prevailing party all conflicts in either the evidence or the reasonable inferences to be drawn therefrom, to determine whether the record contains substantial evidence, contradicted or uncontradicted, supporting the finding." (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045.) The jury makes factual determinations, including the credibility of witnesses. We may not reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 485.)
Plaintiff misunderstands the nature of our review. He is correct that if there is substantial evidence to support the judgment we affirm. But he is wrong when he argues that where there is conflicting evidence we reverse.
Here there was more than sufficient evidence to support the verdict. There was testimony plaintiff was terminated as part of a RIF, not due to his age, national origin, or any disability. Nor was he let go in retaliation for taking medical leaves of absence. In fact, plaintiff does not cite to any evidence he was terminated on that basis. The record reference he includes to support his claim Gillette told him he should retire because he was sick and old is Gillette's testimony adamantly denying he made any such statements.
Further, the evidence supports the verdict that defendants' criticism of plaintiff's performance and assignment of "menial and humiliating tasks," as alleged in the complaint, were not in retaliation for taking medical leave.
In his brief plaintiff raises new retaliation theories. He asserts defendants retaliated when he filed his initial discrimination action and a workers' compensation claim. He also maintains defendants retaliated after he provided a solution to an overheating problem. In addition to the other problems with these contentions, they also fail because plaintiff may not rely on new theories on appeal. (Tract No. 7260 Assn., Inc. v. Parker (2017) 10 Cal.App.5th 24, 36.)
Finally, there is no basis to reverse the judgment on the causes of action for failure to prevent harassment, discrimination, and retaliation. There was no finding of harassment, discrimination, or retaliation. As a result, there is no evidence to support the conclusion there was a failure to prevent same.
Plaintiff maintains defense witnesses lied. But the jury decides witness credibility and it had every right to believe defendants' witnesses and disbelieve plaintiff. (Moran v. Foster Wheeler Energy Corp. (2016) 246 Cal.App.4th 500, 518.) And the claim a witness lied is not a ground for reversing a judgment. (People v. Lee (2011) 51 Cal.4th 620, 632.) 2. Summary Adjudication
A defendant may move for summary adjudication of a cause of action on the ground at least one element of the cause of action cannot be proven or there is a complete affirmative defense. (Code Civ. Proc., § 437c, subd. (f)(1); Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 246 (Silva).) If the defendant makes such an initial showing, the burden shifts to the plaintiff to show there is a triable issue of material fact as to the cause of action or defense. (Silva, at p. 246.) A triable issue must be substantiated by admissible evidence. (Ibid.) It may not be raised by "'"speculation, conjecture, imagination or guess work."'" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) Nor is it created by "'"cryptic, broadly phrased, and conclusory assertions"'" or "'"mere possibilities."'" (Ibid.)
We review the grant of summary adjudication de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We affirm if the ruling is correct on any ground raised in the trial court. (Silva, supra, 7 Cal.App.5th at p. 246.)
The court granted defendants' summary adjudication on five causes of action: national origin discrimination; failure to accommodate; failure to engage in the interactive process; harassment based on age, national origin, and/or disability; and intentional infliction of emotional distress. In his brief, plaintiff failed to set out the elements of each of these causes of action. This is fatal to his claims on appeal.
In Ewald v. Nationstar Mortgage, LLC, supra, 13 Cal.App.5th 947 the plaintiff appealed grant of summary judgment on two causes of action. In her brief while contending triable issues of fact remained, the plaintiff failed to set out the elements of either cause of action. The court affirmed the judgment, stating, "Without a statement of the elements of a cause of action, supported by authority, counsel cannot establish whether triable issues of fact exist as to either cause of action." (Id. at p. 949.)
Even reviewing the issues on the merits, however, the arguments fail.
a. National Origin Discrimination
To prevail on a cause of action for discrimination based on national origin, plaintiff must show: "'(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067-1068; Gov. Code, § 12940, subd. (a).)
Plaintiff claimed defendants discriminated against him because he was born in Egypt. In granting the motion for summary adjudication the court ruled there was no evidence of discrimination based on plaintiff's race or national origin. Further plaintiff failed to provide evidence Weber's and Gillette's alleged statements to him to improve his English were related to the RIF. Finally, there was no evidence the alleged statements were not "justified" or "legitimate."
Plaintiff's separate statement in opposition to the motion bears this out. In disputing defendants' undisputed fact that plaintiff's disability, national origin, and age were not factors in selecting him for the RIF plaintiff included no evidence as to national origin or race.
Additionally, although he presented evidence both Weber and Gillette told him to go back to school to learn English, and to improve his communications and his accent, as the court noted in its ruling, nowhere does plaintiff show this is why he was laid off. Although there is evidence plaintiff spoke English, he presented no evidence his communications skills did not need improving.
b. Failure to Accommodate
The elements of a cause of action for failure to accommodate are: 1) plaintiff has a disability failing within the Fair Employment and Housing Act (FEHA); 2) plaintiff is qualified to perform the essential functions of the job; and 3) the employer did not reasonably accommodate plaintiff's disability. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010.) A reasonable accommodation is defined to mean a "' modification or adjustment to the workplace that enables the employee to perform the essential functions of the job.'" (Id. at p. 1010.)
Plaintiff asserted defendants failed to accommodate him because they did not afford him time to be trained in Pro-E after he returned from his disability leave and then terminated him because he did not know the program. In granting the motion for summary adjudication, the court ruled delaying the layoff so plaintiff could learn Pro-E when he had previously refused to do so would not "qualify as a ' modification or adjustment to the workplace that enables the employee to perform the essential functions of the job.'" It also found "no nexus between [plaintiff's] disability" and his "inability . . . to complete the training."
Nothing in plaintiff's briefs refutes these findings. In fact plaintiff does not even rely on this theory. Instead he argues defendants refused to give him professional projects but assigned him "lab rat" tasks, causing him humiliation leading to a trip to the emergency room. When he returned defendants gave him the same work.
This was not the basis for plaintiff's claim in the trial court, and he may not change his position and present new grounds on appeal. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 ["'theory of the trial'" rule applies to summary judgment motions].)
c. Failure to Engage in the Interactive Process
Under the California Fair Employment and Housing Act, an employer must "engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations." (Gov. Code, § 12940, subd. (n).) Failure to do so is a violation separate from failure to accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)
In granting the motion for summary adjudication the court ruled plaintiff waived the interactive process issue because he had not addressed this cause of action or cited to any evidence to show a triable issue of fact. Plaintiff does not address the trial court waiver in his brief and thus has forfeited this claim on appeal.
Even were we to consider plaintiff's argument, it has no merit. Plaintiff cursorily argues defendants continuously disregarded his "rights, safety and wellbeing" with "willful malicious acts," causing him humiliation and distress. This has nothing to do with failing to engage in the interactive process.
d. Harassment Based on Age, National Origin and Disability
To be actionable as harassment, conduct must be "sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment." (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.) The totality of the circumstances determines whether the conduct was sufficiently severe or pervasive. (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951.)
Plaintiff's entire harassment claim was based on Weber's and Gillette's conduct: rendering an "unfair and overly harsh performance review"; telling plaintiff he was too old or too sick and should retire; telling plaintiff he should go back to school to learn English and improve his accent; remarking to plaintiff he had been riding his bicycle on the beach when he had just returned from leave for a serious medical condition; and refusing to assign plaintiff meaningful projects but instead giving him entry level or menial tasks.
In granting summary adjudication the court ruled plaintiff had not provided sufficient evidence defendants' alleged actions or statements were severe or pervasive enough to constitute harassment. The record confirms this.
In opposing the motion plaintiff cited to his additional material disputed facts. Much of the challenged conduct has to do with the lack of meaningful assignments. But harassment does not include "'commonly necessary personnel management actions such as hiring and firing, job or project assignments, . . . promotion or demotion, performance evaluations, . . . deciding who will be laid off, and the like.'" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870.) These are "'an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.'" (Id. at pp. 869-870.)
As to the allegation defendants told him he was too sick or old and should retire, although unclear, plaintiff's evidence cited in his separate statement shows this occurred four times at most. That fact supports the court's finding the comments were not pervasive.
Plaintiff also testified he was told he should retire at every meeting, often with the explanation there was not enough work. This does not create a triable material issue of fact either. First, there is no evidence of the number of times this was said, and thus no showing it was pervasive. And, more importantly, these statements are not so severe as to constitute harassment that would create an abusive working environment. The same is true for the comments about improving plaintiff's English skills
e. Intentional Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional distress are: 1) defendant's extreme and outrageous conduct with the intent to cause or reckless disregard for the likelihood of causing emotional distress; 2) plaintiff suffered extreme or severe emotional distress; and 3) defendant's extreme and outrageous conduct was the actual and proximate causation of the plaintiff's severe or extreme emotional distress. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.) To be outrageous, the conduct "'"must be so extreme as to exceed all bounds of that usually tolerated in a civilized society."'" (Ibid.)
In granting the motion the court found no triable issue of material fact that any acts or statements by defendant were extreme or outrageous.
In the opposition to the motion plaintiff explained his emotional distress claim was based on the same facts as those underlying the harassment claim. These included unfair performance evaluations and assignment of menial tasks instead of professional projects. As shown above, the alleged conduct and comments were not so severe or pervasive as to constitute harassment. For the same reasons they do not constitute outrageous or extreme conduct or statements. 3. Miscellaneous Contentions
In the statement of the case section in his opening brief plaintiff raises certain claims that are never further developed in his argument. These claims are inadequate for a variety of reasons. First they violate rule 8.204(a)(1)(B), which requires each issue to have a separate heading. Second, they are not supported by authority and reasoned legal argument. (Provost, supra, 201 Cal.App.4th at p. 1294 ["we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument"].) But even on the merits the claims must fall.
Plaintiff asserts the jury failed to properly deliberate because it took only 40 minutes to reach the verdict. But there is no minimum time a jury must consider the case (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 309), and "short jury deliberations do not show a failure by a jury to fully consider a case" (id. at p. 310). A party has no right to "'compel jurors to discuss issues which they have chosen to decide without discussion.'" (Ibid.) Plaintiff has not provided any evidence the jury failed to deliberate.
Plaintiff also challenges the jury instructions, claiming they were confusing and written so they did not "give the jury the choice [of] answers that reflect the facts." Plaintiff fails to specify which instructions were confusing. Moreover, he does not argue any instructions were legally erroneous. A party may not attack a legally correct instruction as incomplete or not sufficiently specific unless a request for an additional instruction was made. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131.) No such request appears in the record.
Plaintiff complains he "was denied the opportunities to present his full qualifications," and was "not allowed" to put in evidence about his "unique contribution to Raytheon." The only evidence he specifies is a video, a slide show presentation and correspondence with Raytheon's chairman. But plaintiff fails to direct us to where in the record he made an offer of proof as to this evidence. Thus, his argument is waived. (Evid. Code, § 354, subd. (a) [to challenge exclusion of evidence, record must show appellant informed court of "substance, purpose, and relevance" of evidence]; Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.)
Noting only four causes of action went to the jury, plaintiff observes he did not approve of his lawyer's elimination of the other six nor of their disposition by way of motions in limine or summary adjudication. Plaintiff maintains his attorney conspired with defendants to dismiss the wrongful termination cause of action without plaintiff's consent.
These claims are legally irrelevant here. Any dispute plaintiff may have with his lawyer is not before us in this appeal. We may not reverse a civil judgment based on alleged incompetency of counsel. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 979-980.) And the court did not need plaintiff's permission to dispose of causes of action by summary adjudication or motion in limine.
If plaintiff intended to make any other claims, they are forfeited for lack of separate headings, authority, or reasoned legal argument. (Provost, supra, 201 Cal.App.4th at p. 1294.)
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.