Waszczuk v. Regents of the University of Cal. CA3 ( 2023 )

Filed 7/28/23 Waszczuk v. Regents of the University of Cal. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
JAROSLAW WASZCZUK,
Plaintiff and Appellant, C095488
v. (Super. Ct. No. 34-2013-
00155479-CU-WT-GDS)
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Defendant and Respondent.
Plaintiff Jaroslaw Waszczuk sued the Regents of the University of California (UC
Regents) asserting causes of action related to his termination of employment. The trial
court granted UC Regents’s motion for summary judgment and entered judgment in favor
of UC Regents. (Code Civ. Proc., § 437c.)1
Representing himself on appeal as he did for most of the proceedings in the trial
court, Waszczuk now contends the trial court (1) improperly granted summary judgment
because UC Regents’s documents submitted in support of the motion for summary
judgment were fabricated, (2) abused its discretion by not granting Waszczuk more time
to file an opposition to the motion for summary judgment, and (3) did not allow
Waszczuk enough time to argue at the hearing on the motion for summary judgment.
Finding no error, we will affirm.
1 Undesignated statutory references are to the Code of Civil Procedure.
1
APPLICABLE LAW
The purpose of summary judgment is to determine whether trial is in fact
necessary to resolve a dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) A plaintiff may contend there is no defense to an action or a defendant may
contend the action has no merit. (Ibid.) The court must grant the motion if the papers
show there is no triable issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. (Ibid; § 437c, subd. (c).) The moving party must
support the motion with evidence including affidavits, declarations, admissions, answers
to interrogatories, depositions, and matters of which judicial notice must or may be taken.
(Aguilar, at p. 843; § 437c, subd. (b).)
In response to a motion for summary judgment, the opposing party must file
“a separate statement that responds to each of the material facts contended by the moving
party to be undisputed, indicating if the opposing party agrees or disagrees that those
facts are undisputed. . . . Failure to comply with this requirement of a separate statement
may constitute a sufficient ground, in the court’s discretion, for granting the motion.”
(§ 437c, subd. (b)(3).) When “reviewing a motion for summary judgment, the relevant
facts are limited to those set forth in the parties’ statements of undisputed facts, supported
by affidavits and declarations, filed in support of and opposition to the motion in the
present case, to the extent those facts have evidentiary support. [Citations.] Facts not
contained in the separate statements do not exist. [Citation.]” (Lewis v. County of
Sacramento (2001) 93 Cal.App.4th 107, 112 (Lewis).)
The required separate statement serves an additional function: to aid the trial court
in discharging its statutory duties. (North Coast Business Park v. Nielsen Construction
Co. (1993) 17 Cal.App.4th 22, 31.) Trial courts are obliged to explain the reasons for
rulings with specific reference to the evidence which indicates the existence or
nonexistence of a triable issue of fact. (Ibid; § 437c, subd. (g).) A court should insist on
strict compliance with the required separate statement because the court’s ability to focus
2
on and articulate the evidentiary basis for its ruling will be found in the separate
statement. (North Coast Business Park, at p. 31.)
Self-represented litigants are “entitled to the same, but no greater, consideration
than other litigants and attorneys. [Citations.] Further, the in propria persona litigant is
held to the same restrictive rules of procedure as an attorney.” (Nelson v. Gaunt (1981)
125 Cal.App.3d 623, 638-639, questioned on another ground in Dumas v. Stocker (1989)
213 Cal.App.3d 1262, 1268, fn. 13.)2
Points raised in the opening brief on appeal must be set forth separately under an
appropriate heading, showing the nature of the question to be presented and the point to
be made. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing
Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 (Opdyk).) Litigants must present their
contentions systematically and arrange them so the reviewing court can ascertain the
exact question under consideration. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The
heading is not merely an outline label but must constitute a contention of legal error.
Failure to set forth arguments under an appropriate heading forfeits consideration of the
issue on appeal. (Opdyk, at p. 1830, fn. 4.)
BACKGROUND
We draw the facts relevant to this appeal from the statement of undisputed facts
filed by UC Regents in the trial court because Waszczuk did not file a response to the
statement of undisputed facts and because the trial court relied on UC Regents’s
statement of undisputed facts in ruling on the motion for summary judgment. Having
failed to file a separate statement of undisputed facts, Waszczuk effectively admitted
2 Waszczuk claims this principle violates the law and is discriminatory. He does not
support the argument with citation to authority.
3
the facts presented in UC Regents’s statement of undisputed facts. (Lewis, supra,
93 Cal.App.4th at p. 112.)
In 2007, Waszczuk was suspended from work for three days for creating a hostile
work environment, using intimidating and disrespectful language with coworkers, and
making derogatory comments about coworkers’ race, religion, ethnic background, and
other immutable characteristics. In 2009, Waszczuk and UC Regents executed a
settlement agreement with Waszczuk agreeing to a permanent reassignment to the
HVAC/Plumbing Shop and placement in an Associate Development Engineer position.
He was given a $13,500 salary increase and agreed that the new position was correctly
classified as an exempt position for minimum wage and overtime purposes.
In 2011, Waszczuk violated policies concerning workplace violence and hate
incidents and was insubordinate. In 2012, he sent a workplace investigator a slideshow
titled, “Welcome to Romania,” which depicted people defecating in the streets and
having sex in front of a child. After an investigation, UC Regents gave Waszczuk a
notice of intent to terminate him. Waszczuk was terminated after a hearing concerning
the misconduct.
In 2013, Waszczuk filed an internal whistleblower retaliation complaint. But he
admitted he was suspended and terminated for workplace misconduct, not for any
discriminatory reason and not based on any protected status. He further admitted he
learned of the UC Regents’s allegedly illegal sales, which formed the basis of his
whistleblower retaliation complaint, only after he was terminated.3
Waszczuk filed a second amended complaint (the operative complaint on appeal)
against UC Regents and several individual defendants alleging intentional infliction of
emotional distress, interference with economic advantage, violation of the Fair
3 The facts included in this paragraph were deemed as admissions by the trial court when
Waszczuk failed to respond to UC Regents’s request for admissions.
4
Employment and Housing Act, violation of Government Code section 8547.10, violation
of Labor Code section 1278.5, breach of contract, wage and hour misclassification, and
rescission of contract.
Some of the individual defendants filed an anti-SLAPP motion, which the trial
court granted. Waszczuk dismissed the complaint as to the remaining individual
defendants, leaving UC Regents as the sole defendant.4
On May 14, 2021, UC Regents filed a motion for summary judgment, with an
accompanying separate statement of undisputed facts. On about July 16, 2021,
Waszczuk filed an application for an extension of time to file his opposition to the motion
for summary judgment. He stated that the opposition was due on July 20, 2021, and he
requested an extension to September 15, 2021. The trial court denied the application
because Waszczuk did not file a proper ex parte application with notice to UC Regents.
On July 23, 2021, Waszczuk filed another application for extension of time to file his
opposition to the motion for summary judgment. This application sought a 15-day
extension of time, stating that the current due date for the opposition was July 22, 2021.
The trial court granted the application for extension of time on July 26, 2021, giving
Waszczuk 15 additional days until August 10, 2021 to file the opposition, and the trial
court set the hearing on the motion for September 1, 2021.
On August 13, 2021, Waszczuk filed an opposition to the motion for summary
judgment, with exhibits. He did not, however, file a separate statement of undisputed
facts.
4 This court decided two prior appeals relating to Waszczuk’s employment with UC
Regents. In Waszczuk v. California Unemployment Insurance Bd. (Dec. 27, 2018,
C079254) [nonpub. opn.], this court affirmed the Unemployment Insurance Board’s
determination that Waszczuk was not entitled to unemployment benefits because he
was terminated for misconduct. In Waszczuk v. Regents of the University of California
(Oct. 10, 2017, C079524) [nonpub. opn.], this court affirmed the granting of the anti-
SLAPP motion in favor of some of the individual defendants in this case.
5
The trial court issued a comprehensive tentative ruling granting UC Regents’s
motion for summary judgment and held a hearing on the motion on September 1, 2021.
The trial court allowed Waszczuk time to argue at the hearing, after which counsel for
UC Regents submitted without argument. The trial court affirmed its tentative ruling
granting the motion for summary judgment and later entered judgment in favor of UC
Regents.
DISCUSSION
A
Most of the headings in Waszczuk’s briefing fail to show the nature of the
question presented and the point to be made. To the extent Waszczuk has failed to make
his contentions in proper headings, those contentions are forfeited.
In many parts of Waszczuk’s briefs he makes statements about the procedure or
the facts without citing to the record on appeal to support the statement. We cannot rely
on these unsupported statements because we are confined to a review of the record on
appeal. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) Any contentions based
on these unsupported statements are forfeited because Waszczuk failed to provide proper
and accurate citations to the record on appeal to support the statements. (Cal. Rules of
Court, rule 8.204(a)(1)(C); Liberty National Enterprises, L.P. v. Chicago Title Ins. Co.
(2011) 194 Cal.App.4th 839, 846.) We must therefore disregard every statement of fact
or procedure that it not accompanied by a citation to the record on appeal supporting the
statement.
This court is not obligated to perform these functions on an appellant’s behalf.
(Estate of Hoffman (1963) 213 Cal.App.2d 635, 639; Metzenbaum v. Metzenbaum (1950)
96 Cal.App.2d 197, 199.) This is so because it is not the province of an appellate court to
act as counsel for either party to an appeal by undertaking a search of the record for the
purpose of discovering error or grounds for appeal not pointed out clearly in the briefs.
(Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)
6
B
The only heading in Waszczuk’s opening brief that raises a question to be decided
is his argument VI(A) on page 31. The remaining headings are statements that do not
raise a question to be decided. (Opdyk, supra, 34 Cal.App.4th at p. 1830, fn. 4.)
Argument VI(A) states: “[UC Regents] did not provide any credible piece of
documentation with the motion for summary judgment to prove that [Waszczuk’s]
employment was terminated on December 7 due to misconduct or wrongdoing; for that
reason, the trial court judgment must be reversed.” (Unnecessary capitalization and bold
text omitted.) In support of this argument, Waszczuk asserts the documents submitted by
UC Regents in support of its motion for summary judgment, including declarations,
investigative reports, and correspondence, were fabricated.
Waszczuk’s argument necessarily fails because he did not file a statement of
undisputed facts in opposition to the motion for summary judgment. If he had filed an
opposing statement of undisputed facts and had responded to UC Regents’s assertion of
facts, the trial court would have had an opportunity to consider evidence submitted by the
parties as to each fact UC Regents contended was undisputed. Further, the trial court
would have determined whether Waszczuk successfully disputed UC Regents’s assertion
of facts. But Waszczuk did not file a statement of undisputed facts and was therefore not
entitled to a judicial determination of whether UC Regents’s facts were disputed. (See
§ 437c, subd. (b).)
Because his claim that UC Regents’s evidence was fabricated finds no support in
the procedural context of this record, Waszczuk’s contention lacks merit.
C
Waszczuk argues the trial court abused its discretion by not giving him enough
time to prepare his opposition to the motion for summary judgment. He claims the trial
court should have given him until September 15, 2021 to file the opposition. As
recounted above, however, the trial court properly denied the first application for an
7
extension because Waszczuk did not file a proper ex parte application with notice to UC
Regents. (Cal. Rules of Court, rule 3.1203(a).) Waszczuk then filed a second
application, seeking only a 15-day extension. That application was granted, giving
Waszczuk the full 15-day extension to August 10, 2021.
Because Waszczuk did not file a proper application for extension of time to
September 15, 2021, he cannot now complain on appeal that the trial court abused its
discretion by extending the time only to August 10, 2021.
We note that the underlying basis of Waszczuk’s argument is that the extension he
desired was not granted because of the trial court’s “notorious and malicious
discrimination, prejudice, and bias by giving green lights to white-collar organized
criminals operating in the University of California’s Office of the President and Office of
the General Counsel, and their former and present thugs from the notorious Porter Scott
law firm, who decimated Plaintiff’s life at the age of 60 and attacked his 70-year-old wife
with the help of the Court.” Waszczuk asserts that the trial court discriminated against
him and abused its power by giving a shorter extension of time than was requested.
Waszczuk’s accusations have no basis in the record.
D
Waszczuk further contends he was not given enough time to argue during the
hearing on the motion for summary judgment. He expected a one- to two-hour hearing
but the trial court denied his right to be heard, ending the hearing after five to 10 minutes.
Waszczuk offers no authority for the proposition that a five- to 10-minute hearing
on a motion for summary judgment violates a party’s right to be heard. On appeal, the
appellant must cite to authority, whether statutory or precedential, that supports the
argument. (People v. Gidney (1937) 10 Cal.2d 138, 142-143.) It is not enough to claim
the trial court violated the appellant’s rights; the appellant must establish that the trial
court’s order was erroneous under applicable laws.
8
A review of the reporter’s transcripts confirms that the hearing was not lengthy,
but nowhere does it show an objection by Waszczuk or a request to have more time to
argue. “In order to preserve an issue for appeal, a party ordinarily must raise the
objection in the trial court.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.) Waszczuk
did not object concerning the amount of time to argue at the hearing; therefore, he has
forfeited the argument.
We have reviewed Waszczuk’s opening brief and, while he makes many
accusations against UC Regents, its employees, his prior counsel, opposing counsel, and
the trial court, we perceive no further cognizable issues arguably raised on appeal. To the
extent Waszczuk may have intended to raise further issues on appeal, we conclude they
are forfeited for failure to brief them adequately and failure to abide by the rules of
procedure.
DISPOSITION
The judgment is affirmed. UC Regents is awarded its costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
RENNER, J.
9