Mnyandu v. L.A. Unified Sch. Dist.

• Decision Date: 01 May 2013
• Docket Number: B239104
• Parties: PAMELA TINKY MNYANDU, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

PAMELA TINKY MNYANDU, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

B239104

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Filed May 1, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. EC053872)

APPEAL from a judgment of the Superior Court of Los Angeles County, Donna Fields Goldstein, Judge. Affirmed.

Pamela Tinky Mnyandu, in pro. per., for Plaintiff and Appellant.

Charlie L. Hill and Alexander Molina for Defendants and Respondents.

In the underlying action, the trial court granted summary judgment against appellant Pamela Tinky Mnyandu in her action against her employer, respondent Los Angeles Unified School District (LAUSD), and respondent John McLaughlin. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

There are no material disputes about the following facts: Mnyandu is a black female from South Africa. In 2004, LAUSD hired Mnyandu as a special education teacher. During the 2009-2010 school year, she worked at Roy Romer Middle School, whose principal was respondent John McLaughlin.

In August 2010, Mnyandu initiated the underlying action. Her first amended complaint (FAC), filed December 9, 2010, asserted claims against LAUSD under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for discrimination based on national origin, harassment, and retaliation; in addition, it asserted claims for assault, civil battery, and intentional infliction of emotional distress against both respondents.¹ The FAC alleged, inter alia, that McLaughlin made false and derogatory criticisms of Mnyandu's work, harassed her, and grabbed her hand, causing her physical injury.

In April 2011, the trial court sustained LAUSD's demurrer to Mnyandu's claims for assault, civil battery, and intentional infliction of emotional distress, with leave to amend. Mnyandu never filed an amended complaint reasserting those claims against LAUSD. On July 8, 2011, the trial court permitted Mnyandu's attorneys to withdraw as her counsel, and she represented herselfduring the remaining proceedings. In August 2011, the trial court denied McLaughlin's motion for judgment on the pleadings with respect to the claims for assault, civil battery, and intentional infliction of emotional distress.

On October 28, 2011, respondents filed a motion for summary judgment or adjudication on Mnyandu's claims. Mnyandu's opposition was filed by attorney Andrew Wyatt, who was permitted to associate with Mnyandu as her co-counsel. On January 13, 2012, in a 27-page order, the trial court granted respondents' motion for summary judgment on the FAC. On February 1, 2012, the trial court entered judgment in respondents' favor and against Mnyandu.

DISCUSSION

Mnyandu challenges the grant of summary judgment on several grounds. She argues that the evidence she presented in opposition to the motion for summary judgment established triable issues of fact. In addition, she maintains that summary judgment must be reversed due to the existence of evidence not presented to the trial court. In this regard, she argues that the trial court improperly denied her request for a continuance, and that she is entitled to relief from summary judgment. Furthermore, in a supplemental brief, she argues that the grant of summary judgment must be reversed under the doctrines of judicial and collateral estoppel. For the reasons discussed below, we disagree.

A. Standard of Review

"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Thus, we apply "'the same three-step process required of the trial court.[Citation.]'" (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.)

Generally, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) Furthermore, in moving for summary judgment, "all that the defendant need do is show that the plaintiff cannot establish at least one element of the cause of action -- for example, that the plaintiff cannot prove element X." (Id. at p. 853.)

Although we independently assess the grant of summary judgment (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819), our inquiry is subject to several constraints. Under the summary judgment statute, we examine the evidence submitted in connection with the summary judgment motion, with the exception of evidence to which objections have been appropriately sustained. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711; Code Civ. Proc., § 437c, subd. (c).) Furthermore, our review is governed by a fundamental principle of appellate procedure, namely, that "'[a] judgment or order of the lower court is presumed correct,'" and thus, "'error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted, quoting 3 Witkin, Cal. Procedure (1954) Appeal, § 79, pp. 2238-2239.) Under this principle, Mnyandu bears the burden of establishing error on appeal, even though respondents had the burden of proving their right to summary judgment before thetrial court. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) For this reason, our review is limited to contentions adequately raised in Mnyandu's briefs. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.) In addition, to overcome the presumption of correctness, Mnyandu is required to provide a record sufficient to show error. (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003, fn. 1.)

B. Propriety of Trial Court's Ruling

Mnyandu maintains that the trial court erred in granting summary judgment on the basis of the evidence submitted in connection with respondents' motion. As explained below, this contention fails in light of the limited record she has submitted on appeal.

1. FAC

In assessing the trial court's grant of summary judgment, we look first at Mnyandu's allegations in the FAC, which frame the issues pertinent to a motion for summary judgment.² (Bostrom v. County of San Bernardino, supra, 35 Cal.App.4th at p. 1662.) The FAC asserts FEHA claims against LAUSD for discrimination, harassment, and retaliation. Generally, FEHA prohibits employers from engaging in discrimination and harassment that targets an employee on the basis of his or her national origin (Gov. Code, § 12940, subds. (a), (j)(1)); in addition, FEHA bars an employer from retaliating against an employee foropposing such practices (Gov. Code, § 12940, subd. (h)).³ The FAC also asserts claims against respondents for assault, civil battery, and intentional infliction of emotional distress. However, as Mnyandu never amended the FAC following the LAUSD's successful demurrer attacking those claims, they are effectively directed solely at McLaughlin.

The FAC alleges that Mnyandu was assigned to the individualized education program for special education students at the Roy Romer Middle School. LAUSD policies required Mnyandu to draft an individualized education plan (IEP) for a student after meeting with the student's parents. According to the FAC, in October and November 2009, McLaughlin falsely stated that Mnyandu misbehaved during IEP meetings with students, and ordered her to submit IEPs to him in advance of meetings, contrary to LAUSD policy. In addition, he yelled at her, directed other LAUSD employees to yell at her, and fabricated student complaints regarding her. On November 18, 2009, after McLaughlin ordered her to meet with him and threatened "disciplinary action" if she did not attend, Mnyandu filed a discrimination complaint with LAUSD. In retaliation, McLaughlin sent her a memorandum inviting her to another meeting and accusing her of not doing her work.

The FAC further alleges that in early December 2009, McLaughlin arranged for an LAUSD employee to ask Mnyandu to sign an IEP for a student, even though she had not attended the pertinent parent meeting. When Mnyandu refused, McLaughlin wrote a memorandum that contained false accusations regarding her, and described her native language as "gibberish." Mnyandu filed grievances with United Teachers Los Angeles (UTLA) and a discrimination charge with the United States Equal Employment Opportunity Commission. Nonetheless, throughout December 2009, McLaughlin yelled at her and criticized her for failing to submit her IEP plans to him four days in advance of meetings.

The FAC further alleges that in January 2010, the LAUSD Division of Special Education Compliance determined that McLaughlin had incorrectly asked Mnyandu to sign an IEP arising from a meeting she did not attend. Nonetheless, from February to April 2010, McLaughlin sent Mnyandu a letter of reprimand, made false accusations regarding her performance during...