Filed 11/5/20 Jackson v. Employment Development Dept. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

TINA JACKSON,

 Plaintiff and Appellant,

 v.

EMPLOYMENT DEVELOPMENT 

DEPARTMENT,

 Defendant and Respondent.

F078685

(Super. Ct. No. 16CECG01569)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Donald S. 

Black, Judge.

Tina Jackson, in pro. per., for Plaintiff and Appellant. 

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, 

and Andrea R. Austin, Deputy Attorney General, for Defendant and Respondent. 

-ooOooPlaintiff Tina Jackson sued her former employer, alleging she was discharged due 

to discrimination and retaliation. A bench trial was held, plaintiff presented her evidence, 

and the employer made a motion for judgment under Code of Civil Procedure section 

* Before Franson, Acting P.J., Peña, J. and Snauffer, J.
2.

631.8.

1

 The trial court evaluated plaintiff’s evidence and granted the motion for 

judgment. Plaintiff appealed. 

The appellant’s notice of designation of record on appeal completed by plaintiff 

indicated she chose to proceed without a record of the oral proceedings in the trial court. 

Without a reporter’s transcript of the testimony presented at trial, or an agreed or settled 

statement, this court cannot evaluate the evidence and determine if the trial court erred in 

finding plaintiff failed to present sufficient evidence to prove her claims. Under the rules 

of appellate procedure, it is well established 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.) Applying 

this rule, we conclude plaintiff has failed to present an adequate record and, as a result, 

has failed to demonstrate the trial court erred. 

We therefore affirm the judgment. 

FACTS

Plaintiff was hired by defendant Employment Development Department, a state 

agency (EDD), in October 2012. Her employment was terminated on April 4, 2016. 

In September 2014, plaintiff filed a charge of discrimination with the United 

States Equal Employment Opportunity Commission (EEOC) against EDD. The charged 

alleged sexual harassment and retaliation. 

On February 25, 2015, plaintiff provided EDD with a certification form completed 

by her healthcare provider addressing her serious medical condition—hypertensive heart 

disease. The form was submitted under the Family Medical Leave Act (FMLA; 29 

U.S.C. § 2601 et seq.) and the California Family Rights Act (CFRA; Gov. Code, § 

12945.1 et seq.). Two days later, plaintiff was orally informed her request was denied. 

In response to the denial, plaintiff filed a complaint with the United States Department of 

1 All unlabeled statutory references are to the Code of Civil Procedure. 
3.

Labor, alleging discrimination based on a serious permanent preexisting medical 

condition. 

Plaintiff alleges that on March 4, 2015, she was informed that her work hours 

would be reduced from 40 hours per week to 32 hours per week effective April 1, 2015. 

When not on leave, plaintiff worked this reduced schedule until her employment was 

terminated. 

In September 2015, an investigator for the United States Department of Labor 

issued a written report finding EDD committed five violations of the FMLA in handling 

plaintiff’s February 2015 request for leave. The report states: “In the 2015 FMLA leave 

year the employer denied the employee [her] right to take protected leave under the 

FMLA when it failed to provide the employee with a written designation notice after 

having received an FMLA packet on 02/25/15 (Ex. D-15, E-3).” The report states the 

investigator met with EDD, explained the violations, and EDD “agreed to future 

compliance and to remedy the violation by providing the employee with a new FMLA 

packet and designating her related absences for the FMLA 2015 year.” The report also 

states the investigator phoned plaintiff, informed her that some of the violations were 

substantiated, and informed her EDD “agreed to remedy the violations by approving her 

FMLA leave and retroactively designating protected absences as FMLA.” 

Plaintiff alleges that in January 2016 and March 2016 she submitted certification 

forms under the FMLA and CFRA to take care of her own serious medical condition. 

Plaintiff alleges both requests were denied orally by EDD and, contrary to federal and 

state law, EDD failed to provide her with written notifications responding to her requests. 

PROCEEDINGS

In May 2016, after her discharge, plaintiff sued EDD and her former supervisors. 

In March 2017, plaintiff filed a third amended complaint, which is the operative pleading 

in this appeal. Plaintiff’s third amended complaint asserted multiple claims of 

discrimination, retaliation and defamation. 
4.

On October 22, 2018, a bench trial began. The claims against EDD remaining for 

trial alleged (1) violations of the CFRA ; (2) retaliation prohibited by the CFRA; (3) 

retaliation prohibited by the California Fair Employment and Housing Act (FEHA; Gov. 

Code, § 12900 et seq.) and (4) a failure to accommodate in violation of section 504 of the 

Rehabilitation Act of 1973 (29 U.S.C. § 794). During the first day of trial, plaintiff called 

several witnesses and then took the stand to present her testimony. On October 23, 2018, 

plaintiff retook the stand and continued her testimony. That afternoon, after plaintiff 

finished her testimony, EDD made a motion for judgment under section 631.8. The 

parties argued the motion, and the court advised them that a decision on the motion 

would be made the following morning in open court. 

On October 24, 2018, the trial court issued an order granting EDD’s motion for 

judgment. A written order setting forth the court’s legal conclusions, findings of fact, 

and determinations as to the sufficiency of the evidence was signed and filed on 

December 5, 2018. After EDD filed a notice of entry of the order, plaintiff filed a timely 

appeal. 

In March 2019, plaintiff filed an appellant’s notice designating record on appeal 

using Judicial Council form APP-003 (rev. Jan. 1, 2019). Plaintiff requested the 

preparation of a clerk’s transcript and, with respect to oral proceedings, chose to proceed 

without a record of what was said at trial. 

DISCUSSION

I. MOTIONS FOR JUDGMENT 

A. Trial Court’s Authority

The procedural context for this appeal is established by section 631.8, subdivision 

(a), which authorizes a party in a nonjury trial to move for a judgment after the opposing 

party has presented his or her evidence. Here, the EDD moved for judgment after 

plaintiff presented her case-in-chief. When a motion for judgment has been made, “[t]he 
5.

court as trier of the facts shall weigh the evidence and may render a judgment in favor of 

the moving party” or, alternatively, “may decline to render any judgment until the close 

of all the evidence.” (§ 631.8, subd. (a).) If a judgment is rendered, the court is required 

to issue a statement of decision. (Ibid.) A motion for judgment is not the equivalent of a 

motion for nonsuit because it is not limited to challenging the legal sufficiency of the 

opposing party’s evidence.

Where a defendant moves for judgment under section 631.8, the statute enables 

the trial court, “ ‘when it finds at the completion of plaintiff’s case that the evidence does 

not justify requiring the defense to produce evidence, to weigh evidence and make 

findings of fact.’ [Citation.] Under the statute, a court acting as trier of fact may enter 

judgment in favor of the defendant if the court concludes that the plaintiff failed to 

sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses 

witness credibility and resolves conflicts in the evidence.” (People ex rel. Dept. of Motor 

Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012.) In other words, because 

the trial court evaluates the evidence as a trier of fact, it may disbelieve some of the 

testimony presented while crediting other testimony. (Orange County Water Dist. v. 

MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239.)

B. Standards of Appellate Review

When a trial court issues a judgment pursuant to section 631.8, the standards of 

appellate review are the same as if the court had rendered a judgment after a completed 

bench trial. (Orange County Water Dist. v. MAG Aerospace Industries, Inc., supra, 12 

Cal.App.5th at p. 239.) The trial court’s resolution of questions of law are subject to 

independent review. (Id. at p. 240.) In comparison, its findings of fact are reviewed 

under the deferential substantial evidence standard. (Ibid.)

However, when the trial court resolves questions of fact by determining a party did 

not carry its burden of proof, “it is misleading to characterize the failure-of-proof issue as 
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whether substantial evidence supports the judgment.... [¶] [W]here the issue on appeal 

turns on a failure of proof at trial, the question for a reviewing court becomes whether the 

evidence compels a finding in favor of the appellant as a matter of law. [Citations.] 

Specifically, the question becomes whether the appellant’s evidence was (1) 

‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no 

room for a judicial determination that it was insufficient to support a finding.’ ” (In re 

I.W. (2009) 180 Cal.App.4th 1517, 1528; see Dreyer’s Grand Ice Cream, Inc. v. County 

of Kern (2013) 218 Cal.App.4th 828, 838.) Thus, the finding-compelled-as-a-matter-oflaw standard applies to the trial court’s determinations that plaintiff failed to prove a 

particular element of a cause of action.

II. RECORD ON APPEAL

A. Legal Principles

California appellate courts begin their evaluation of an appeal by presuming the 

trial court’s judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; 

see Cal. Const., art. VI, § 13.) “[T]he 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, 609 

(Jameson).) This allocation of the burden to appellants is a fundamental principle of 

appellate procedure and derived from the constitutional doctrine of reversible error. 

(Ibid.)

To overcome this presumption, an appellant challenging a judgment must 

affirmatively demonstrate prejudicial error. (Denham v. Superior Court, supra, 2 Cal.3d 

at p. 564.) As noted earlier, a trial court might commit error in resolving a question of 

law or in its findings of fact. When an appellant contends a trial court’s findings of fact 

are wrong, the appellant must demonstrate the record does not contain substantial 

evidence to support the particular finding being challenged. (Boeken v. Philip Morris 
7.

Inc. (2005) 127 Cal.App.4th 1640, 1658.) To demonstrate the absence of substantial 

evidence, the appellant must provide the appellate court with an adequate record of the 

evidence (including oral testimony) presented in the trial court. (See Jameson, supra, 5 

Cal.5th at pp. 608–609; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [absence of a 

reporter’s transcript or settled statement meant plaintiff failed to provide an adequate 

record and, thus, failed to carry the burden of showing prejudicial error].) Similarly, an 

appellant must provide an adequate record of the evidence in order to demonstrate a 

finding in appellant’s favor was compelled as a matter of law.

In Estate of Fain, supra, 75 Cal.App.4th 973, the Second District addressed the 

importance of providing an adequate record of the evidence and, more specifically, 

providing a reporter’s transcript of the testimony presented by stating: 

“Where no reporter’s transcript has been provided and no error is apparent 

on the face of the existing appellate record, the judgment must be 

conclusively presumed correct as to all evidentiary matters. To put it 

another way, it is presumed that the unreported trial testimony would 

demonstrate the absence of error. [Citation.] The effect of this rule is 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.” (Id. at p. 992; see Foust v. San Jose Construction Co., Inc.

(2011) 198 Cal.App.4th 181, 186–187 [list of cases where absence of 

reporter’s transcript precluded appellate court from reaching merits].)

Here, although the minutes from the bench trial show a court reporter was present, 

plaintiff’s designation of record on appeal did not include a reporter’s transcript of the 

trial. 

B. Contentions

1. Health Condition

On appeal, plaintiff contends that her serious permanent health condition made her 

unable to perform the functions of her job while employed with EDD. Plaintiff supports 

this contention by arguing there was no evidence EDD introduced to the trial court to 

show she did not have a serious health condition. Plaintiff’s contention challenges the 
8.

trial court’s statement that it “finds plaintiff has introduced insufficient evidence of a 

serious health condition that made her unable to perform the functions of her job.” 

To establish the trial court erred in determining the evidence was insufficient on 

this issue,

2 plaintiff must demonstrate her “evidence was (1) ‘uncontradicted and 

unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.’ ” (In re I.W., supra, 180 

Cal.App.4th at p. 1528.) Without a reporter’s transcript, or a settled or agreed statement, 

we are unable to apply this test and determine whether plaintiff’s evidence was of such a 

character and weight as to leave no room for the trial court to determine it was 

insufficient. Consequently, plaintiff failed to present an adequate record on appeal to 

demonstrate the trial court erred in making this determination of insufficient proof. 

2. Protected Activities and Causation

Plaintiff also contends she was involved in two protected activities and established 

a causal nexus to support her retaliation claims. Again, she supports this contention by 

arguing there was no evidence EDD introduced to show that she did not experience 

retaliation and was not involved in two protected activities. 

The trial court addressed plaintiff’s claim of retaliation in violation of the CFRA 

by finding “plaintiff has not proven that she suffered an adverse employment action as a 

result of her requests for CFRA leave.” As for her claim of retaliation in violation of the 

FEHA, the court found plaintiff “failed to introduce evidence of a causal link between the 

filing of the EEOC charge and any adverse employment action.” The court also found 

“there was inadequate proof of any adverse employment action suffered by plaintiff until 

she was discharged for failing to return to work following her leave in 2016” and 

2 The determination is the equivalent of concluding plaintiff failed to carry her 

burden of proof. 
9.

“plaintiff failed to demonstrate any relationship between any FEHA protected activity 

and this discharge.” 

These determinations that plaintiff failed to prove retaliation caused by protected 

activity is subject to appellate review under the finding-compelled-as-a-matter-of-law 

standard. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) Again, without a reporter’s 

transcript, we are unable to determine that plaintiff’s evidence was of such a character 

and weight as to leave no room for the trial court to determine it was insufficient as to the 

elements of her retaliation claims. Consequently, we are required by applicable law to 

conclude plaintiff failed to present an adequate record on appeal. It necessarily follows 

that plaintiff failed to carry her burden of affirmatively demonstrating trial court error. 

(See Jameson, supra, 5 Cal.5th at p. 609.) 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.