Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCV23801
HOCH, J.Plaintiff Dawn Schevola brought this action against her former employer, defendant King Chiropractic Clinic, Inc. (Clinic) alleging Clinic failed to pay her overtime wages earned, and failed to timely pay overtime wages when due. Following an unreported court trial, the court found Schevola had not met her burden of proof as to either cause of action because, “based upon the courts [sic] evaluation of the evidence and the credibility of the witnesses, ” it did “not find enough credible evidence supporting that [Schevola] should be credited with any overtime hours.”
Schevola challenges these findings in this judgment roll appeal from the judgment in favor of Clinic. We find no error and affirm the judgment.
BACKGROUND
Schevola has elected to proceed on an appellant’s appendix (Cal. Rules of Court, rule 8.124; further rule references are to the California Rules of Court), and without a record of the oral proceedings in the trial court.
The appellate record is limited. The operative, first amended, complaint is not in the record. The original complaint alleges that Schevola was employed by Clinic between approximately April 2004 and January 2007 and, during that time, she regularly worked overtime for which she was not compensated.
The matter was tried to the court over three days in March 2010. The parties were represented by counsel. Witnesses were sworn, evidence was presented, and post-trial briefing was submitted.
According to the court’s “Ruling after Court Trial, ” Schevola testified and “estimated her hours of overtime worked from the time she was employed until she quit to be over 1400 hours” but she “kept absolutely no notes or logs to evidence the hours she actually worked or the overtime she herein claims.” At no time until the service of this lawsuit, which was filed over a year after she left Clinic’s employ, did Schevola inform Clinic of her concern that she was not being paid overtime. She also “admitted to a serious memory problem, which she termed a short-term memory loss, or a disability. She further stated that her disability required her to engage in much repetition and to make notes at work in order to properly do any job.”
Dr. King, President of Clinic, testified that, when Schevola was hired, she elected to be a salaried employee. His records, which the court noted “were not discredited by other testimony or evidence, ” showed by “credible evidence” that most weeks Schevola “worked less than 40 hours but received full salary.”
The trial court rejected Schevola’s claim that she is owed overtime pay “for weekend work, both seminars and exhibitions that she participated in” for the purpose of signing up new patients. The trial court credited the testimony of coworkers and Dr. King that Schevola had rejected hourly pay for this exhibition work, electing instead to receive “incentive pay” for the exhibitions. Several witnesses also testified that the seminars for which she claimed overtime pay were in fact voluntary events “aimed at personal growth and dealing with life experiences” for which Dr. King paid all Schevola’s expenses.
After determining Schevola’s overtime claims are generally governed by a three-year statute of limitations under Code of Civil Procedure section 338, subdivision (a), the trial court found that “in calculating possible overtime worked based upon all of the credible evidence, the maximum number of possible overtime [hours] worked by [Schevola] in periods of from one quarter to one and one half hours maximum, is approximately 15 hours in the entire three year period.
“Notwithstanding the dictates of the [L]abor [C]ode, this court does not find enough credible evidence supporting that [Schevola] should be credited with any overtime hours. This is based upon the courts [sic] evaluation of the evidence and the credibility of the witnesses.
“The plaintiff [Schevola] has not met [her] burden of proof as to either cause of action.” It entered judgment for Clinic.
DISCUSSION
I.
Standard of Review
On appeal, a judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. Thus, an appellant has the burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.)
Because Schevola has provided only a partial clerk’s transcript of the proceedings in her appendix, we treat this as an appeal “on the judgment roll.” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) When an appeal is on the judgment roll, we must conclusively presume evidence was presented that is sufficient to support the court’s findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error “appears on the face of the record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; rule 8.163.)
II.
Reversible Error
Schevola argues on appeal that the trial court erred in “ruling that [Clinic] appropriately failed to pay [her] wages for overtime work performed... during weekend seminars and exhibitions” and “failing to ‘credit’ [her] with overtime hours worked.” In her view, these arguments require us to interpret the Labor Code and present “pure questions of law” that we should review independently, without deference to the trial court’s findings.
Schevola is mistaken. We cannot consider whether Schevola’s “overtime work” performed on weekends should be treated differently under the Labor Code, or whether she should have been properly “credited with any overtime hours.” Underlying both assertions is an assumption that she in fact performed overtime work; that assumption is undermined by the trial court’s threshold factual finding that Schevola in fact failed to produce “enough credible evidence” to prove she “should be credited with any overtime hours.” As we have explained, when an appeal is based upon the clerk’s transcript, we defer to the trial court’s findings and assume that they are supported by substantial evidence (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154), just as we must defer to the trial court’s assessment of credibility. We presume the trial court’s implicit conclusion to disfavor Schevola’s credibility was based not only on her lack of “notes or logs to evidence” her overtime claim and her admitted serious memory problem, but also on its evaluation of Schevola’s demeanor at the trial. Under such circumstances, the trial court is the sole judge of credibility, and we do not upset its findings on appeal.
Accordingly, when the trial court has concluded, “based upon [its] evaluation of the evidence and the credibility of the witnesses, ” there was “not... enough credible evidence” to support the conclusion “that [Schevola] should be credited with any overtime hours, ” we defer to the trier of fact on issues of credibility and conclude for the purpose of this appeal that Schevola worked no overtime hours. (E.g., Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
Schevola argues that Clinic’s “own calendar” shows that “there were numerous dates during the relevant statute of limitations period... in which [she] worked more than eight hours per day.” Several pages of a month-to-month calendar are included in appellant’s appendix. But it is not clear that these pages were included among the exhibits introduced at trial, and we do not know what testimony, if any, was given concerning these pages. In sum, Schevola has not demonstrated error “on the face of the record” sufficient to warrant reversing the judgment. (Cf. rule 8.163.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., HULL, J.