Filed 5/5/21 Harding v. Tehachapi Unified School Dist. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RAJA HARDING,
Consolidated Cases Nos.
Plaintiff and Appellant, F077708, F078127
v. (Super. Ct. No. BCV16102557)
TEHACHAPI UNIFIED SCHOOL DISTRICT,
OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Raja Harding, in pro. per., for Plaintiff and Appellant.
Zimmer & Melton, T. Mark Smith and Dennis P. Gallagher II; Clifford & Brown
and Arnold J. Anchordoquy for Defendant and Respondent.
-ooOoo-
This is a consolidated appeal from an April 26, 2018 judgment and a June 27,
2018 postjudgment order of the Kern County Superior Court.
Plaintiff Raja Harding filed a lawsuit against defendant Tehachapi Unified School
District (District). She alleged four causes of action: (1) discrimination based on
disability; (2) unlawful denial of reasonable accommodation for disability; (3) failure to
engage in a timely good faith interactive process; and (4) failure to prevent
discrimination. During a pretrial hearing, plaintiff’s motion to dismiss the second and
fourth causes of action was granted. Following the trial, the jury rendered a verdict in
defendant’s favor. Plaintiff filed a motion to tax costs, which was subsequently denied
by the superior court.
Plaintiff, representing herself on appeal, appears to contend: (1) the superior court
erroneously granted defendant’s motion to preclude some of her expert witness’s
testimony; (2) the superior court erroneously excluded from evidence an unredacted
version of an e-mail she sent to District’s superintendent; and (3) the verdict was not
supported by the evidence.1 She does not challenge the court’s denial of her motion to
tax costs.
We affirm the judgment and the postjudgment order.
FACTUAL AND PROCEDURAL BACKGROUND
The following background is taken from the appellate record, which consists of
the clerk’s transcript only.
1 Plaintiff makes other contentions in her briefs that are not listed “under a separate
heading or subheading,” in violation of California Rules of Court, rule 8.204(a)(1)(B).
We decline to address them. (See, e.g., Silverado Modjeska Recreation & Park Dist. v.
County of Orange (2011) 197 Cal.App.4th 282, 314, fn. 24; Sierra Club v. City of
Orange (2008) 163 Cal.App.4th 523, 542.)
In addition, at oral argument, plaintiff raised other issues for the first time. “An
appellate court is not required to consider any point made for the first time at oral
argument, and it will be deemed waived.” (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-
357, fn. 6.)
2.
District hired plaintiff as a French language instructor at Tehachapi High School
starting in the Fall of 2015. Plaintiff, who did not have a teaching credential, obtained a
temporary waiver that was set to expire on December 10, 2015. On that date, plaintiff
met with several Tehachapi High School officials. She purportedly informed them she
was dyslexic and requested reasonable accommodations.
A letter dated December 11, 2015, from Timothy Beard—District’s director of
personnel services—to plaintiff read:
“It has come to [District’s] attention that the credential which currently
authorizes your service as a French teacher has expired. You do not
possess any other certificate authorizing service as a teacher. As a result,
you are ineligible for service as a certificated employee as of December 10,
2015.
“Based on the foregoing, effective immediately, you will be placed on
unpaid status for the remainder of the 2015/2016 school year.
“If the District’s records are incorrect, it is your responsibility to promptly
notify me and to provide copies of certificates issued by the California
Commission on Teacher Credentialing and registered with the Kern County
Office of Education authorizing service in your current assignment of
French Teacher.
“This letter also constitutes notice of your non-reelection for the ensuing
school year pursuant to Education Code section 44929.21, subdivision (b).”
A letter dated March 1, 2016, from Beard to plaintiff regarding “Notice of Non-
Reelection” read:
“Pursuant to Education Code section 44929.21, a copy of which is attached
hereto, you are hereby notified that [District’s governing board] took action
on February 9, 2016, to non-reelect you from your certificated position. As
such, you will not be reemployed by the District for the 2016-2017 school
year and your employment with the District will terminate at the conclusion
of the current school year.”
A letter dated March 22, 2016, from Beard to plaintiff regarding “Notice of
Unprofessional Conduct: Failure to Report for Duty” read:
3.
“As you know, you were employed for the 2015/2016 school year to teach
French. However, the credential authorizing you to teach French expired
on December 10, 2015. Consequently, you were ineligible to serve as a
teacher and [District] had no alternative but to place you on unpaid status.
On or about December 11, 2015, you were given written notice of your
placement on unpaid leave pending renewal of your credential and you
were further notified that you are nonreelected for employment for the
ensuing 2016/2017 school year.
“On or about February 10, 2016, you notified the undersigned via e[-]mail
that the [California Commission on Teacher Credentialing] issued a
credential allowing you to immediately return to work. Consequently, I
directed you to return to work the following day. As of the date of this
letter, you failed to report to work as directed.
“On or about February 29, 2016, you were further advised via legal counsel
that you have the option of resigning if you do not wish to complete the
school year, but since then you have neither tendered your resignation nor
have you reported to work.
“As a certificated employee, you are subject to Education Code sections
44420 and 44433. Education Code section 44420 provides that certificated
employees who, without good cause, do not fulfill a valid contract of
employment with the District or leave without consent are subject to
discipline. Further, Education Code section 44433 provides that a teacher
who leaves [his or her] school before the expiration of a specified period of
time, without consent, is guilty of unprofessional conduct and is subject to
discipline.
“You are also subject to the Rules of Conduct for Professional Educators
codified under the California Code of Regulations, title 5, article 3, which
provides in part that, ‘[a] certificated person shall not abandon professional
employment without good cause.’ (Cal. Code Regs., tit. 5, § 80333,
subd. (a).)
“You have been absent from your position for more than one month
without excuse or authorization from the District. Such unauthorized
absence constitutes a continuing violation of California Code of
Regulations, title 5, section 80333. Your conduct is also subject to
discipline by the California Commission on Teacher Credentialing pursuant
to the above-mentioned Education Code sections 44420 and 44433.
4.
“You are directed to immediately contact the District to clarify your
intentions for the remainder of this school year and to timely comply with
all further requests from the District concerning your employment.”
On October 27, 2016, plaintiff filed her lawsuit. Plaintiff disclosed her intent to
offer at trial the testimony of Dr. Mara Tansman, a licensed psychologist, “regarding any
learning/mental disabilities [she] has including dyslexia” as well as “methods for
accommodating (in the workplace) [these] learning/mental disabilities.” In a motion in
limine, defendant asked the superior court to preclude Tansman’s testimony. The court
denied the motion without prejudice.
Jury trial commenced on April 17, 2018. On the third day of trial, defendant
renewed its motion pertaining to Tansman’s testimony. The court conducted a hearing
pursuant to Evidence Code section 402. Thereafter, it granted defendant’s motion in part.
On the fifth day of trial, the court admitted into evidence a “revised redacted”
(capitalization omitted) copy of an e-mail sent by plaintiff to Susan Andreas-Bervel—
District’s superintendent—on December 13, 2015. The unredacted portion read: “Good
Morning Mrs. Andreas-Bervel I am the the French teacher that was hired at the beginning
or the year. . . . I apologized and said I try vey hard not to let my slight disability with
numbers get in the way of my work. . . . despite my slight disability that most of the time
I catch and fix. . . . I ask to meet with you at your earliest convenience. Cordially,
Rachel Harding.” (Sic.)
In a “Special Verdict Form ‘B’ [Failure to Engage in Interactive Process]”
(boldface & some capitalization omitted), the jury concluded plaintiff had a “mental
disability that limited her ability to teach high school French courses,” but she did not ask
defendant to “make reasonable accommodations for her alleged mental disability so that
she would be able to perform the essential job requirements of a high school French
teacher.” In a “Special Verdict Form ‘A’ [Disability Discrimination]” (boldface & some
capitalization omitted), the jury concluded defendant knew plaintiff had a mental
disability, but plaintiff was unable to “perform the essential job duties of a French teacher
5.
with reasonable accommodation for her alleged mental disability.” Judgment was
entered in favor of defendant.
DISCUSSION
I. Standard of review
“On appeal, we must presume the trial court’s judgment is correct. [Citation.] In
service of that rule, we adopt all intendments and inferences to affirm the judgment or
order unless the record expressly contradicts them. [Citation.]” (Nielsen v. Gibson
(2009) 178 Cal.App.4th 318, 324.) “It is the burden of the party challenging a judgment
on appeal to provide an adequate record to assess error. [Citation.] Thus, an appellant
must not only present an analysis of the facts and legal authority on each point made, but
must also support arguments with appropriate citations to the material facts in the record.
If he fails to do so, the argument is forfeited. [Citation.]” (Ibid.)
“The California Rules of Court provide an appellant with a choice of several types
of records upon which to take an appeal. The choices include a reporter’s transcript, a
clerk’s transcript, an agreed statement and a settled statement. [Citation.]” (Nielsen v.
Gibson, supra, 178 Cal.App.4th at p. 324.) When the reporter’s transcript is not provided
by an appellant, as is the case here, “we must treat this as an appeal ‘on the judgment
roll,’ ” “ ‘ “conclusively presume that the evidence is ample to sustain the [superior
court’s] findings,” ’ ” and limit our review “to determining whether any error ‘appears on
the face of the record.’ [Citations.]” (Id. at pp. 324-325.)
II. Analysis
Plaintiff’s election to proceed without the reporter’s transcript precludes an
evaluation of issues requiring a factual analysis. (See Pringle v. La Chapelle (1999) 73
Cal.App.4th 1000, 1003.) Additionally, her briefs do not contain any citations to the
appellate record. (See Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203,
1205 [“It is the duty of a party to support the arguments in its briefs by appropriate
reference to the record, which includes providing exact page citations.”].) Her briefs also
6.
incorporate materials that are not part of the record. (See Citizens Opposing a Dangerous
Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8 [“ ‘Factual
matters that are not part of the appellate record will not be considered on appeal and such
matters should not be referred to in the briefs.’ ”].)
A. The superior court’s ruling on defendant’s motion to preclude part of
plaintiff’s expert’s testimony.
Plaintiff argues Tansman’s testimony was limited by the court “for lack of
foundation and requisite knowledge” and because “Tansman lacked the school
experience to suggest ways of accommodations to the [plaintiff].” She asserts such a
ruling is contrary to the law.
Defendant points out that the appellate record is silent as to the basis and scope of
the trial court’s ruling, characterizes plaintiff’s legal argument as “a disjointed treatise on
expert testimony,” and notes a failure by plaintiff “to establish any prejudice based upon
the record.” Defendant’s position is persuasive.
The clerk’s transcript reflects that, on day three of the trial, “[c]ourt and counsel
discuss[ed] evidentiary matters.” The court then held an Evidence Code section 402
hearing during which Tansman testified “on behalf of the plaintiff.” After counsel
“argue[d] the issue,” “[d]efendant’s renewed motion to exclude witness testimony [was]
granted as stated.” The jury trial resumed with the testimony of two other witnesses prior
to plaintiff calling Tansman. Tansman then testified “on behalf of the plaintiff.”
Without the reporter’s transcript, we are unable to determine what the court heard,
what arguments were made, what the basis was for the court’s ruling, and what impact
the ruling had on the result of the trial.
B. The superior court’s exclusion from evidence of an unredacted version of
the December 13, 2015 e-mail sent to District’s superintendent.
Plaintiff claims the unredacted version of her e-mail to Andreas-Bervel was not
hearsay. She argues, “Non-hearsay admissible could have led to discovery of
7.
admissibility.” Plaintiff also asserts she does not believe the superintendent’s “claim[]
she never received [it].”
Defendant argues the unredacted version of the e-mail was plaintiff’s exhibit and
was an out-of-court statement by her offered to prove the truth of the matter asserted. As
such, defendant asserts, it was inadmissible hearsay. Defendant also asserts plaintiff
failed to establish any prejudice from the ruling pointing out that she testified before the
jury. Finally, defendant claims there is nothing in the record to show plaintiff objected to
the redaction.
Plaintiff responds that the e-mail would have corroborated her testimony.
“A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous exclusion of evidence unless the
court which passes upon the effect of the error or errors is of the opinion that the error or
errors complained of resulted in a miscarriage of justice and it appears of record that:
[¶] (a) The substance, purpose, and relevance of the excluded evidence was made known
to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The
rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence
was sought by questions asked during cross-examination or recross-examination.” (Evid.
Code, § 354.) It does not appear of record that subdivision (a), subdivision (b), or
subdivision (c) of Evidence Code section 354 has been satisfied.
C. The sufficiency of the evidence to support the verdict.
Sufficiency of the evidence cannot be discerned without the reporter’s transcript
because, without it, it cannot be determined what the evidence was. (Aguilar v. Avis Rent
A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Hence the rule that, “an appellant who
attacks a judgment but supplies no reporter’s transcript will be precluded from raising an
argument as to the sufficiency of the evidence.” (Estate of Fain (1999) 75 Cal.App.4th
973, 992.)
8.
D. Conclusion.
Since no error is apparent on the face of the appellate record, the judgment must
be, and therefore is, conclusively presumed correct. (Estate of Fain, supra, 75
Cal.App.4th at p. 992.)
DISPOSITION
The April 26, 2018 judgment and June 27, 2018 postjudgment order are affirmed.
Costs on appeal are awarded to defendant Tehachapi Unified School District.
DETJEN, J.
WE CONCUR:
HILL, P.J.
POOCHIGIAN, J.
9.