Ngo v. Northrup Grumman Federal Credit Union CA2/8

Opinion

Filed 9/24/26 Ngo v. Northrup Grumman Federal Credit Union CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PHAT NGO, B346588

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 24STCV09785) v.

NORTHRUP GRUMMAN FEDERAL CREDIT UNION

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steve Cochran, Judge. Affirmed.

The Law Offices of Craig T. Byrnes and Craig T. Byrnes for Plaintiff and Appellant.

Fisher & Phillips, Cheryl L. Schreck, Aalia Taufiq and Danielle S. Zobel for Defendant and Respondent.

_______________________ MEMORANDUM OPINION In this employment dispute, plaintiff and appellant Phat Ngo contends the trial court erred in granting summary judgment in favor of his former employer, Northrup Grumman Federal Credit Union (Credit Union). We find this matter appropriate for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions].) “ ‘[O]ur 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.’ ” [Citation.] Under this principle, [the nonmoving] plaintiff bears the burden of establishing error on appeal, even though [the moving] defendant[ ] had the burden of proving [its] right to summary judgment before the trial court.’ ” (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.) Ngo has failed to comply with California Rules of Court, rule 8.204(a)(2)(C), which requires appellants to include “a summary of the significant facts limited to matters in the record” in their opening briefs. (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260 (Silva), disapproved on another ground in Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58.) “A summary judgment motion triggers a procedure in which the parties pierce the pleadings to determine whether there are disputed facts and thus whether a trial is necessary to resolve the dispute. [Citation.] Thus, when a summary judgment is challenged, a reviewing court must examine the facts presented by the parties to determine whether summary judgment or 2 summary adjudication was warranted.” (Ibid.) Appellants who “fail[] to describe all of the evidence proffered in the proceedings” fail to satisfy their appellate burden. (Ibid.) In his opening brief Ngo made no effort whatsoever to summarize all the evidence presented to the trial court at summary judgment. There is no statement of facts. The facts that are scattered through Ngo’s arguments reflect a wholly one- sided presentation of the evidence: nearly every record citation in the opening brief is to evidence Ngo submitted in opposition to the motion for summary judgment or to his first amended complaint, and he ignores any evidence presented by the Credit Union that does not support his position. Because Ngo has failed to describe all the evidence proffered in the proceedings, he has not satisfied his burden to establish error on appeal. (See Silva, supra, 7 Cal.App.5th at p. 260.) While that deficiency is dispositive of the appeal, it is not the only problem in the opening brief. “ ‘Though summary judgment review is de novo, review is limited to issues adequately raised and supported in the appellant’s brief.’ ” (Jackson v. Lara (2024) 100 Cal.App.5th 337, 343.) Not even the scope of the appeal is clear from the muddled and inconsistent opening brief. The trial court separately discussed and summarily adjudicated each of Ngo’s six causes of action and granted summary judgment. Ngo repeatedly claims it was error to grant summary judgment, but then he states that the court’s rulings as to his claims under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) “are not on appeal here.” Despite disavowing challenges to some portions of the court’s ruling, however, Ngo subsequently reverts to arguing the trial court erred by granting summary judgment and contending 3 the judgment should be reversed in its entirety. Additionally, Ngo fails to identify with specificity to which of his causes of action his substantive arguments pertain, and as respondent notes, he does not appear to include any developed arguments demonstrating error with respect to causes of action other than his retaliation claim under the California Family Rights Act (Gov. Code, § 12945.2) and wrongful termination cause of action despite claiming summary judgment was granted in error. “ ‘We are not obliged . . . to speculate about which issues counsel intend to raise.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) “ ‘It is the duty of counsel by argument and citation of authority to show in what manner rulings complained of are erroneous. We are not obliged to perform the duty resting on counsel.’ ” (Givens v. Southern Pacific Co. (1961) 194 Cal.App.2d 39, 48.) Ngo also has violated California Rules of Court, rule 8.204(a)(1)(B) by raising a legal argument in a footnote rather than under a separate heading summarizing the point. Footnotes are not the appropriate vehicle for stating contentions on appeal (West v. Solar Mosaic LLC (2024) 105 Cal.App.5th 985, 996), and points in footnotes “are not headed as arguments and are waived.” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) It is not lost on this court that this footnote, which asserts it was an abuse of discretion to sustain the Credit Union’s evidentiary objections to Ngo’s declaration, does not appear until after the fifth time Ngo relies on and cites to that declaration in the opening brief—and the first four references fail to acknowledge this evidence was excluded by the 4 trial court.1 “Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings.” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.)

1 To some extent this may be due to the fact that large swaths of Ngo’s opening brief consist of excerpts from his trial court opposition to the motion for summary judgment that are reproduced verbatim or nearly verbatim. Appellate counsel’s task is not “merely to ‘simply change the trial points and authorities into an appellate format,’ ” and an appellate brief should not “rehash” the arguments made below. (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 410.) “The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product.” (Ibid.) It is important for “attorneys who use material from trial memoranda to take care in adapting the material to the altered focus of appellate review. Points that are irrelevant to the appeal should be omitted. Subsequent pertinent legal authorities should be addressed. Arguments should be tailored according to the applicable standard of appellate review.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1387–1388, fn. omitted.)

5 DISPOSITION The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.