1 Filed 5/16/13 Sears v. Water Employees Services Auth. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

JOEL SEARS, Plaintiff and Appellant,

v. WATER EMPLOYEES SERVICES AUTHORITY, Defendant and Respondent. E055113 (Super.Ct.No . RIC10011133) OPINION

APPEAL from the Superior Court of Rive rside County. Sharon J. Waters, Judge. Affirmed. Law Offices of Alexandria C. Phillips a nd Alexandria C. Phillips for Plaintiff and Appellant. Best Best & Krieger and Cynthia M. Germano for Defendant and Respondent.
I INTRODUCTION Joel Sears was terminated from his em ployment by the Water Employee Services2 Authority (WESA) in Ju ly 2009 for not notifying his supe rvisors when he was late or absent for work and for submitting false time records. Sears appeals from an order and judgment denying his petition fo r writ of administrative manda te seeking to reverse the termination and reinstate his employment. The standard of review requires us to uphold the trial court’s judgment if any substantial evidence supports the tria l court’s statement of decision. ( Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 134.) We have thoroughly viewed the record and determined that substantial evidence supports th e judgment, which we affirm.
II STATEMENT OF FACT UAL AND PROCEDUR AL BACKGROUND
We derive the material facts from the administ rative record. 1
A. The Facts Rela ted to May 25, 2009 WESA employees are subject to a Memo randum of Understandi ng (MOU) and the WESA Administrative Code (WESA Code). An employee must arrive at work promptly. If an employee is late, he must give notic e within 15 minutes of his starting time by contacting a supervisor. The failure to do so is considered an “unauthorized absence.” If an employee has an unauthorized absence or “continuing tardiness,” he is subject to disciplinary action or dismissal.

1 We grant Sears’s motion to augment. (Cal. Rules of Court, rule 8.155(a)(1)(A).)3 Employees operate on the honor system a nd are expected to record their time accurately. The time reported by an empl oyee includes regular time, overtime, and standby hours, the latter being time spent on- call. If an employee reports his time falsely, he is subject to being discharged for dishonesty. Sears was employed for 16 years by WESA as a wastewater treatment supervisor for the Elsinore Valley Municipal Water Distri ct. When he was terminated, he was an acting supervisor III at the regi onal plant. Sears worked from 7:00 a.m. to 4:30 p.m. on a 9/80 schedule, Sunday throug h Thursday, with alternate Th ursdays off. He supervised three employees. Sears’s duties included a ssigning work to his subordinate employees, inspecting the plant, and coordina ting maintenance and contractors. Sears’s immediate supervisor was Mitch Pi erson, the chief plant operator. In ascending order, the other supervisors were Ted Eich, John Vega, and Ronald Young. WESA’s policy was that Sears was required to notify Pierson, his immediate supervisor, if he was late. If he could not reach Pier son, he had to cont act one of the other supervisors. Notifying a subordinate empl oyee about being late was not considered sufficient notice of being late because a supervisor needed to be at the plant at all times. Sears lived about one mile fr om the work site. On Me morial Day, May 25, 2009, he called a subordinate employee to say he w ould be late. He did not call any of his supervisors to notify them he would be late . He worked from 11:30 a.m. to 4:30 p.m. Later the same day, he had to return to the re gional plant to respond to an alarm, which he noted in the log book and for which he was entitled to receive a minimum credit of two and one half hours. In add ition to responding to the alarm when off duty, he had also4 worked for several hours as part of an interview panel on his day off the preceding Thursday. Sears did not report that he was late on May 25 and he claimed he had worked nine hours. Because it was the Memorial Da y holiday, he was also paid an additional nine hours at the rate of time and one half. According to Sears, it had been a longstanding practi ce to allow WESA employees to exchange overtime hours fo r time off work. On some oc casions, when he had worked long hours, he was offered co mpensatory time off. Sears ex ercised discretion in how he recorded his time accordin g to his convenience. Sears admitted that he was “burnt out” and he may have exercised “liberty” in reporting his time. He was eith er late by a few minutes 70 percent of the time or on time 70 percent of the time. 2 He remembered only two Sundays in which he did not come in at all. According to WESA, there is no polic y, written or informal, allowing an employee, at his discretion, to trade unreco rded overtime or standby hours as a substitute for regular hours an employee chooses not to wo rk. In fact, Sears had reported and been paid for many hours of overtime a nd standby work in 2008 and 2009. Sears had been disciplined in 2005 for engaging in personal activity–painting car parts–outside the scope of employment duri ng work hours. In 2 006, he was demoted from supervisor to operator III for disobedience, insubordina tion, dishonesty, and altering

2 The parties disagree about whether he wa s late or on time 70 pe rcent of the time.5 or falsifying OSHA documents. He claimed he had been pun ished for telling the truth in the OSHA investigation. Sears was even tually promoted back to supervisor. B. The Administrative Proceedings On June 8, 2009, Eich and Vega met with Sears and Sears admitted he had arrived at work late on May 25, 2009, although he had not notified his s upervisors and he had reported nine hour s of work. Sears also admitted he commonly came to work on Sundays one to three hours late—and on several Sunday s he did not come to work at all—but he still reported having wo rked nine hours. Vega determined that Sears had been falsifying his time cards in violation of WESA policies. Vega issued a notice of proposed termination, which was upheld by Young, the general manager. Sears appealed. In January 2010, a grievance hearing wa s conducted before a hearing officer. Pierson and Eich testified that Sears had vi olated the MOU and th e WESA Code by not notifying a supervisor when he was late or ab sent and by submitting falsified time cards. In opposition, Sears presented testimony by other WESA employees to support his contention that WESA had a longstanding policy of disc ouraging employees from using overtime and, instead, insisted that employees use their accrued overtime to take time off work. Pierson and Eich denied the existenc e of any such policy or practice. Sears attacked the testimony of Eich and Pierson as false and untrustworthy. In April 2010, the hearing officer s ubmitted a 40-page findi ngs of fact and recommended decision in favor of terminati on. The WESA board of Directors voted unanimously to adopt the recommendation for termination.6 C. Sears’s Petition for Writ of Administrative Mandamus Sears filed his second ame nded petition in December 2010. After briefing by the parties and a hearing, the court issued its ru ling denying the petition: “. . . [Sears] argued that it was a common practice for employees of [WESA] to ‘bank’ overtime hours, and that he was merely using his bank of overtim e hours when he recorded time on his time card for hours that he was not actually at work . [Sears] claimed that his supervisors not only knew that employees banke d overtime, but that there was an unwritten policy which encouraged and/or mandated that employees not record overtime on their time sheets, but instead trade the overtime hours for time off. Sears argued that [WESA’s] employees . . . all agreed that they had been asked to take time off in lieu of overtime. “Even if the Court accepted [Sears’s] cl aim that employees were permitted or sometimes asked to take time off work in lieu of overtime, there was no support in the record for [Sears’s] claim that an employee could keep a ‘mental bank’ of overtime hours that he worked and then use those ‘banked’ hours to take time off work at his discretion without any prior notification to his supervisor. [W]itnesses . . . consistently testified that on the occasions when employees were allowed to take time off for any reason, they were required to first notify their supervisors.” The court found that Sears had admitte d violating the MOU and the WESA Code by not reporting for work on time on May 25, 2009—or not coming to work at all on other occasions—without giving notice to his supervisors a nd by claiming that he had worked a nine-hour day. Therefore, WESA acted within its discretion in terminating Sears’s employment.7 III DISCUSSION The superior court conducts an inde pendent review of the findings of the administrative agency. ( Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016.) In applying the substa ntial evidence standard of re view, the appellate court does not reweigh the evidence or question the relia bility of witness test imony or substitute our deductions for those of the superior court. ( Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968; Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 52.) Instead, this court resolves all conflicts and indulges all reasonable inferences in favor of the prevailing party in th e superior court. ( Barber v. Long Beac h Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660.) The a ppellate court will not disturb the discipline imposed unless there is a manife st abuse of discretion. ( Kazensky, at p. 54.) In view of these principles, we are not assisted by Sears’s appellate brief which devotes 33 pages to copying verb atim the testimony of witne sses favorable to his position and an additional four pages to copying the te stimony of Sears’s supe rvisors, Pierson and Eich, whom Sears accuses of being untr ustworthy and committin g perjury and fraud without offering any factual support for these assertions. Sears has the burden to show error in the judgment which is presumed to be correct. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) He has failed to meet that burden here because his conclusory argument—lacking in pertinent authority, and analysis—is presented only in the last two pages of his brief.8 As WESA clearly articulates, Sears wa s fired—not because he used overtime to substitute for time actually work ed—but because he came to work late on May 25, 2009, and also came late to work re gularly on other Sundays, or not at all, without notifying his supervisors, and then reported having worked a full nine hour s. Even if he may have been allowed to substitute time, he adm itted to violating WESA ’s MOU and WESA’s Code by acting without proper notice to hi s supervisors and submitting false reports of his time. Substantial evidence shows that Sears did not keep a written reco rd of his “mental bank” of overtime. Instead, he acted acco rding to his own convenience without seeking permission from WESA. Sears admitted th at other employees would ask for a supervisor’s approval to tr ade overtime for time off but Sears claimed he had “carte blanche” to act however he wanted. Several other employees 3 admitted to using overtime “sporadically” for time off but always with a supervisor’s permission. None of them agreed that time cards could be falsified. In summary, substantial evidence supporte d the trial court’s findings that Sears had been late or absent without telling hi s supervisors and had submitted false time records claiming to have worked nine hours . No evidence supported Sears’s contention that he could bank overtime hours to use at his convenience without notice to WESA and still claim a full day’s work.

3 Cornell Gillenwater, Denn is Hayes, and John Cauzza.9 As a supervisor, Sears was responsible for complying with the WESA MOU and WESA Code. Unless reasonabl e minds could differ, termination was the proper remedy for his conduct ( Kazensky v. City of Merced, supra, 65 Cal.App.4th at p. 53.) Where it is established a public employee has behaved dishonestly, ther e is also a reasonable basis for termination. ( Deegan v. City of Mountain View (1999) 72 Cal. App.4th 37, 50.)
IV DISPOSITION Substantial evidence supports the findings of the trial court and the penalty of termination was reasonable. We affirm the judgment. In the interests of justice, we order th e parties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:

McKINSTER Acting P. J.

KING J.