Filed 2/18/21 Lee v. Justin Auto Repair, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KINGSTON LEE,

 Plaintiff and Appellant,

v.

JUSTIN AUTO REPAIR, INC.,

 Defendant and Respondent.

 G058589

 (Super. Ct. No. 30-2018-01023971)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. 

Hoffer, Judge. Affirmed.

Kingston Lee, in pro. per., for Plaintiff and Appellant.

Park Law and Daniel M. Park for Defendant and Respondent.
2

INTRODUCTION

Appellant Kingston Lee, who is representing himself, labors under the twin 

disabilities of an imperfect command of English, which is not his first language, and 

unfamiliarity with the law. While we admire his determination to soldier on regardless, 

the law requires us to make no distinction between self-represented parties and those 

represented by attorneys. The rules must be the same for all, so a party who represents

himself must abide by the same rules that apply to lawyers. 

In this case, the rules restrict us to reviewing the same issues that the trial 

court considered and to reviewing only those documents included in the written record on 

appeal. Lee cannot introduce new issues in an appeal, and we cannot review anything 

that is not part of the written record.

The trial court entered judgment against Lee after granting without leave to 

amend the second of two motions for judgment on the pleadings brought by respondent 

Justin Auto Repair, Inc. Lee complained that he had been subjected to harassment by 

fellow employees and that Justin Auto Repair, his employer, wrongfully terminated him. 

The court ruled that Lee had not alleged harassment based on one of the protected 

categories of Government Code section 12940 and had failed to exhaust his 

administrative remedies.

We affirm the judgment. Lee’s second amended complaint alleges two 

altercations with coemployees, neither of which constituted harassment as defined by the 

Government Code. In addition, Lee appears to have been an at-will employee, who could 

be fired at any time, so long as the reason was not a prohibited one. This was the basis of 

the trial court’s ruling, and it was correct. We cannot consider the other issues raised in 

Lee’s opening brief.
3

FACTS

Lee filed a complaint against Justin Auto Repair on October 10, 2018. He 

filed an amended complaint on January 7, 2019. 1 Justin Auto Repair moved for 

judgment on the pleadings in June 2019, which motion was granted with leave to amend. 

In its minute order of July 22, 2019, the court ruled that Lee had failed to state a cause of 

action for harassment under any of the protected categories listed in Government Code 

section 12940, subdivision (j)(1), and had failed to exhaust administrative remedies by 

first filing a complaint with the Department of Fair Employment and Housing. Finally, a 

work-related claim of emotional distress must be dealt with through the workers’

compensation system. 

Lee’s second amended complaint alleged two altercations with 

coemployees at the auto repair shop. No cause is attributed to the first one; the employee 

just asked Lee if he wanted to fight. The second altercation was over some tools that 

another employee claimed were his. This employee asked the manager to fire Lee, and 

he was fired. Lee also alleged that Justin Auto Repair did not withhold taxes, social 

security, and Medicare payments from his paycheck. 

The court granted the second motion for judgment on the pleadings without 

leave to amend. Once again, the court held that the complaint included no allegations of

harassment based on protected categories or an allegation regarding exhaustion of 

remedies. The court reiterated its finding regarding emotional distress. Finally, the court 

stated Lee had not received permission to amend the complaint to state a completely

different cause of action, one regarding taxes, social security and Medicare payments. 

Judgment was entered on October 23, 2019. 

1

Neither the complaint nor the first amended complaint is in the record.
4

DISCUSSION

We independently review a judgment entered after the granting of a motion 

for judgment on the pleadings. (City and County of San Francisco v. All Persons 

Interested in Matter of Proposition C (2020) 51 Cal.App.5th 703, 714.)

Lee’s opening brief is not clear about whether he claims to be an 

independent contractor or a Justin Auto Repair employee, misclassified as an independent 

contractor.

2

 For purposes of a harassment claim, however, his classification does not 

matter. Government Code section 12940, subdivision (j)(1), which prohibits harassment

“because of race, religious creed, color, national origin, ancestry, physical disability, 

mental disability, medical condition, genetic information, marital status, sex, gender, 

gender identity, gender expression, age, sexual orientation, or military and veteran 

status,” protects both an employee and “a person providing services pursuant to a 

contract.” (Gov. Code, § 12940, subds. (j)(1), (j)(5).) Lee therefore had to exhaust his 

administrative remedies before he could bring a harassment claim in court, regardless of 

his status. (See Gov. Code, § 12960, subd. (a) [“This article governs the procedure for 

the prevention and elimination of practices made unlawful pursuant to Article 1 

(commencing with Section 12940). . .”])

Moreover, the harassment alleged in the second amended complaint is not 

the kind the Government Code covers. Nothing indicates the harassment was motivated 

by race, religion, or the other protected categories. As alleged, both incidents were 

simply workplace disagreements based on personal animosities.

If the basis of Lee’s complaint is that he was wrongfully fired, he still has 

not stated a cause of action. Perhaps Justin Auto Repair did not have a good reason for 

firing him, but nothing alleged in the complaint indicates Lee was anything but an at-will 

2

Lee’s complaint that Justin Auto Repair wrongfully failed to withhold taxes, social security, and 

Medicare payments from his paycheck suggests he claims to be an employee. His claim he did not have to exhaust 

administrative remedies suggests he believed himself to be an independent contractor.
5

employee (if he was an employee), who can be fired for any reason or no reason, so long 

as it is not a prohibited reason. (Lab. Code, § 2922.) According to the second amended 

complaint, Lee was fired at the request of another employee, and not because of his “race, 

religious creed, color, national origin, ancestry, physical disability, mental disability, 

medical condition, genetic information, marital status, sex, gender, gender identity,

gender expression, age, sexual orientation, or military and veteran status,” which, under 

the Government Code, are the prohibited reasons for firing someone. (Gov. Code, § 

12940, subd. (a).) 

Lee also has a complaint about the Korean interpreter who assisted him at 

the hearing on the motion for judgment on the pleadings. Lee did not include a reporter’s 

transcript of the hearing in the record, so we have no means of reviewing this issue. We 

can review only matters in the written record submitted to us. (See Pipitone v. Williams

(2016) 244 Cal.App.4th 1437, 1440, fn. 2; Roman v. BRE Properties, Inc. (2015) 237 

Cal.App.4th 1040, 1054; Cal. Rules of Court, rule 8.204(a)(1)(C).)

Lee also complains, we believe, that discovery propounded by Justin Auto 

Repair was too burdensome. Nothing regarding discovery is included in the record, and 

we cannot review anything that is not part of the written record.3In addition, a complaint 

of this kind must first be submitted to the trial court by means of a motion for a protective 

order. (See Code Civ. Proc., § 2017.020.) It cannot be raised for the first time as part of 

an appeal. (See Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 334; 

Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113.)

3

Lee refers to a motion to compel, but there is no motion to compel in the record and no reference 

to one in the register of actions.
6

DISPOSITION

The judgment is affirmed. Respondent’s request for judicial notice is 

denied. Respondent is to recover its costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.