Filed 2/29/24 Samuel v. L.A. County Metropolitan Transportation Auth. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARLIN D. SAMUEL,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN 

TRANSPORTATION 

AUTHORITY,

Defendant and Respondent.

 B324906

 Los Angeles County

 Super. Ct. No. 21STCV23881

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Upinder S. Kalra, Judge. Affirmed.

Marlin D. Samuel, in pro. per., for Plaintiff and Appellant. 

Gutierrez, Preciado & House and Calvin House for 

Defendant and Respondent.
2

____________________

Bus operator Marlin D. Samuel sued his employer, the Los 

Angeles County Metropolitan Transportation Authority (the 

Authority) for breach of contract. Samuel says the Authority 

entered a contract with him when, during a disciplinary hearing 

against him, he made an unintelligible statement and the 

hearing officer responded, “Okay. Noted. Anything else?” As a 

matter of law there was no breach of contract, for there was no 

contract. Samuel makes other unavailing arguments. The trial 

court properly granted judgment on the pleadings and denied his 

request to amend the complaint. We affirm.

We outline the facts and turn to Samuel’s arguments.

The Authority held a disciplinary hearing about Samuel’s 

alleged use of a cell phone while driving a bus. The hearing 

lasted about 40 minutes and 20 transcript pages. Samuel’s union 

representative challenged the Authority’s video evidence. 

Samuel then said he “just ha[d] a couple of questions” for the 

hearing officer. For about six transcript pages, Samuel asked 

questions and made statements about the Authority’s 

disciplinary procedures. For example, he said the Authority 

should have given him more notice before it put him on 

administrative leave and the hearing officer said, “Okay. It’s 

noted.”

Then Samuel and the hearing officer had an exchange 

Samuel says created a contract. Samuel read two sentences of 

his union contract and said to the hearing officer, “So any 

unacknowledgement of the contract would be a willful breach of 

contract. And if it’s a willful breach of contract knowing the rules 

and regulations set forth, then you subjugate yourself to state 

and federal penalties and fines outside the contractual agreement 
3

between [the Authority] and [the] Union. And that’s my 

conclusion.”

The hearing officer said, “Okay. Noted. Anything else? Do 

you want to review the video?”

They went on to watch and discuss a video that showed 

Samuel talking aloud while driving. Then they discussed 

reporter fees and the hearing ended.

The Authority suspended Samuel for 30 days.

Samuel sued the Authority. His complaint had one cause of 

action: breach of contract. The complaint summarized the 

alleged contractual exchange we quoted above and said the 

Authority “[a]ccepted. And [n]ow [h]as [d]efaulted.” Samuel 

attached a transcript of the disciplinary hearing and several 

other exhibits to the complaint.

On August 16, 2022, the Authority moved for judgment on 

the pleadings. It mailed the motion to Samuel’s old address. It 

also emailed the motion to Samuel, who saw this email on August 

23, 2022.

Samuel filed an opposition on August 29, 2022. In one 

paragraph at the end of the opposition, he requested leave to 

amend. The Authority filed a reply on September 7, 2022. 

Samuel filed a “Response” to the reply the same day.

The trial court heard the motion on September 12, 2022. 

Samuel proceeded without a reporter. In its ruling, the court 

explained that it asked Samuel whether the notice issue 

prejudiced him and whether he needed a continuance and 

Samuel “acknowledged that although he felt rushed to respond, 

there was no additional evidence or argument that he would 

present.”
4

The trial court granted the motion for judgment on the 

pleadings and denied leave to amend. The court entered 

judgment on September 19, 2022. Samuel’s notice of appeal says 

he appeals this September 19, 2022 judgment.

We independently review a judgment on the pleadings. 

(People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 

Cal.4th 772, 777.) We review denial of leave to amend after a 

judgment on the pleadings for abuse of discretion. 

(Environmental Health Advocates, Inc. v. Sream, Inc. (2022) 83 

Cal.App.5th 721, 729.)

We begin by emphasizing several principles of appellate 

review. We presume judgments are correct and it is the 

appellant’s burden to prove error. (Bullock v. Philip Morris USA, 

Inc. (2008) 159 Cal.App.4th 655, 685.) Appellate briefs must 

support points by argument. (Cal. Rules of Court, rule 

8.204(a)(1)(B).) And briefs must support references to matters in 

the record by citing the volume and page number of the record. 

(Id. at subd. (a)(1)(C).) We may disregard unsupported or 

conclusory legal arguments and we may disregard factual 

contentions that are not supported by citations to the record. 

(Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.)

Samuel’s briefing is deficient and we disregard his 

unsupported factual assertions. His opening brief is devoid of 

citations to the appellate record. His reply brief sometimes 

directs us to pages within trial court motions and exhibits or to 

the “Notice of record on appeal” without a page number. These 

are not citations to volumes and page numbers of the appellate 

record. We disregard Samuel’s unsupported factual assertions.

Turning to Samuel’s appellate arguments, the trial court 

correctly granted judgment on the pleadings because there was 
5

no contract. Judgment on the pleadings is proper if the 

complaint does not state facts sufficient to constitute a cause of 

action. (Code Civ. Proc., §438, subd. (c).) Where material facts 

are certain or undisputed, the existence of a contract is a 

question of law. (Bustamante v. Intuit, Inc. (2006) 141 

Cal.App.4th 199, 208.) Samuel submitted the transcript of the 

disciplinary hearing with his complaint and relied on it for the 

facts of the alleged contract formation. We use this certain and 

undisputed source to answer the legal issue in this case.

Contracts require mutual assent, which is absent here. 

(Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270 (Donovan); 

Civ. Code, §§ 1550, 1565.) Contracting typically consists of the 

familiar steps of offer and acceptance. (Donovan, at p. 271.) A 

party’s objective manifestation controls. (Ibid.) Objectively, 

Samuel’s statement about “unacknowledgement” of another 

contract that ended with, “And that’s my conclusion,” gave no 

reason to believe this was an offer. Nor did the hearing officer’s 

attempt to move things along by saying, “Okay. Noted. Anything 

else?” give reason to believe the hearing officer was accepting 

anything. There was no mutual assent. Judgment on the 

pleadings was proper.

The trial court did not abuse its discretion by denying leave 

to amend. Samuel has the burden to demonstrate a reasonable 

possibility he could cure his complaint’s defects by amending it. 

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) His appellate 

briefing focuses on whether amendment would prejudice the 

Authority. This is irrelevant to whether he has a reasonable 

possibility of curing the complaint’s defects by amending it. The 

end of Samuel’s opening brief seemingly quotes (without 

quotation marks) several statutes and lists elements of 
6

intentional infliction of emotional distress. This portion of the 

brief has a paragraph of facts that we disregard because there 

are no record citations. Samuel does not explain the connection 

between the laws he lists and his brief or his case. He has not 

proven the court abused its discretion by denying leave to amend.

There is no prejudicial notice issue. Unless a defect in the 

proceedings is prejudicial, it does not constitute reversible error. 

(Code Civ. Proc., § 475; Reedy v. Bussell (2007) 148 Cal.App.4th 

1272, 1289 [applying rule to issue of defective notice] (Reedy).) 

The appellant has the burden to demonstrate prejudice. (Reedy, 

at p. 1289.) Samuel says the Authority violated notice 

procedures, but he fails to explain how this prejudiced him. He 

received actual notice of the motion weeks before the hearing and 

responded with not one, but two written filings. According to the 

trial court’s ruling, Samuel said there was no additional evidence 

or argument he would present. Samuel quibbles with the trial 

court’s account of the hearing and says the court “briefly 

interrupted” him when he was “explaining that procedurally [the 

Authority] failed to give proper notice.” Because he has not 

provided a reporter’s transcript, we presume what happened at 

the hearing supports the judgment. (Hearn v. Howard (2009) 177 

Cal.App.4th 1193, 1201.) Samuel has not demonstrated 

prejudice.

Samuel complains the Authority did not follow meet and 

confer requirements, but he does not explain the effect of this. 

An insufficient meet and confer process is not grounds to deny a 

motion for judgment on the pleadings. (Code Civ. Proc., § 439, 

subd. (a)(4).) Samuel does not explain how the meet and confer 

issue prejudiced him. This argument fails.
7

Despite his complaint having only one cause of action, 

Samuel’s reply brief claims he had seven causes of action. We do 

not address this or any other new argument Samuel failed to 

present in his opening brief. (REO Broadcasting Consultants v. 

Martin (1999) 69 Cal.App.4th 489, 500.)

This appeal is not about a reconsideration ruling that 

postdates Samuel’s notice of appeal. Samuel has included in the 

appellate record dozens of pages related to his motion for 

reconsideration, which the trial court denied on December 21, 

2022. Before that, on November 16, 2022, Samuel filed the notice 

of appeal in this case. Samuel’s notice of appeal therefore did not 

encompass the ruling on the motion for reconsideration, nor did 

he include the relevant ruling in the appellate record. This 

opinion does not and cannot address this ruling.

We grant the Authority’s August 7, 2023 request for 

judicial notice of excerpts of the Authority’s administrative code 

and ordinances. The trial court properly noticed these excerpts, 

so we notice them as well. (Evid. Code, § 459.)

DISPOSITION

The judgment is affirmed. We award costs to the Los 

Angeles County Metropolitan Transportation Authority.

WILEY, J.

We concur: 

STRATTON, P. J. VIRAMONTES, J.