Inobe v. Hino CA2/8

Filed 5/25/23 Inobe v. Hino CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SETSUKO INOBE, B306188
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19LBCP00132)
v.
NORIKO HINO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael P. Vicencia, Judge. Affirmed.
Setsuko Inobe, in pro. per., for Plaintiff and Appellant.
Noriko Hino, in pro. per., for Defendant and Respondent.
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Plaintiff and appellant Setsuko Inobe appeals from the
judgment in favor of defendant and respondent Noriko Hino
following a bench trial. Plaintiff contends the trial court abused
its discretion in refusing to admit her documentary evidence and
in admitting evidence from defendant that had been excluded as
a discovery sanction.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff worked for defendant as a babysitter for almost
one year. After she was terminated in early 2015, plaintiff filed a
claim with the Labor Commissioner’s Office seeking unpaid
wages and various penalties. A hearing was held in November
2018. The hearing officer issued a written decision finding in
favor of defendant.
Plaintiff appealed to the superior court pursuant to Labor
Code section 98.2. The superior court does not review the
hearing officer’s decision but considers the wage dispute anew in
a trial de novo. (Murphy v. Kenneth Cole Productions, Inc. (2007)
40 Cal.4th 1094, 1116.)
The bench trial took place on February 10, 2020, and lasted
less than one day. The trial was not reported. Plaintiff was
represented by counsel and testified with the assistance of a
certified Japanese interpreter. Defendant, representing herself,
also testified. Neither party called witnesses and no exhibits
were admitted into evidence. After taking the matter under
submission, the court issued a minute order finding in favor of
defendant and awarding her costs.
After trial, plaintiff substituted in as her own counsel. She
requested a settled statement from the trial court in accordance
with rule 8.137 of the California Rules of Court. The court noted
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multiple errors in plaintiff’s proposed settled statement and
requested corrections to accurately reflect the trial court
proceedings. After a hearing, the court again instructed plaintiff
to make necessary corrections. Plaintiff failed to make the
corrections identified by the court. The court filed a corrected
version of the settled statement on February 24, 2021, and
certified it by minute order the next day.
The settled statement provides the following finding by the
court: “Based upon the witnesses’ testimony, description of
events and their behavior while testifying, the Court found that
[defendant] was a credible witness and that her testimony
accurately reflected what occurred. The Court also found that
[plaintiff’s] testimony was not credible.”
This appeal followed.
DISCUSSION
On appeal from a bench trial where the appellant has
relied on a settled statement, “we are bound to assume that
enough appears in the settled statement to enable us to decide
whether reversible error was committed; and we must make our
ruling upon what is affirmatively shown by the record.” (People
ex rel. Department of Public Works v. Bond (1964) 231 Cal.App.2d
435, 437; accord, Sloan v. Stearns (1955) 137 Cal.App.2d 289,
293.) We consider only those facts included in the settled
statement approved and certified by the trial court. (McMullen v.
Saunders (1956) 138 Cal.App.2d 554, 555.)
Plaintiff contends the court abused its discretion by failing
to admit her 13 exhibits into evidence which she claims
demonstrate that defendant’s version of what happened is not
credible. However, the record establishes the trial court did not
exclude plaintiff’s exhibits. Plaintiff discussed her exhibits
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during her testimony, but she never moved the exhibits into
evidence. Paragraph 3.c. of the settled statement says “Exhibits
were marked and identified, but no party moved any exhibits into
evidence.” Plaintiff has not shown any abuse of discretion by the
court in ruling on evidence.
Plaintiff also contends the court erred by admitting
evidence from defendant that had been excluded pretrial as a
discovery sanction. Once again, the settled statement does not
support plaintiff’s argument. Assuming any documents were
included within the scope of the evidentiary sanction,
paragraph 3.a. of the statement provides that no documents were
offered or admitted during defendant’s testimony. And, if
plaintiff contends the evidentiary sanction precluded defendant
from testifying to any specific topics during trial, paragraph 3.a.
states that no objections were made to defendant’s testimony.
Therefore, any objection based on the ground the testimony was
precluded by an evidentiary sanction was forfeited.
“ ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ ” (Denham v. Superior Court of Los
Angeles County (1970) 2 Cal.3d 557, 564, first italics in the
original, second italics added.) Plaintiff has not affirmatively
shown any error, let alone a prejudicial error.
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DISPOSITION
The judgment in favor of defendant and respondent Noriko
Hino is affirmed. Noriko Hino shall recover costs of appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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