Modification: Duran v. U.S. Bank National Association

SAMUEL DURAN et al.,

Plaintiffs and Appellants,

v.

U.S. BANK NATIONAL ASSOCIATION,

Defendant and Respondent.

No. A148817

(Alameda County

Super. Ct. No. 2001-035537)

California Courts of Appeal

First Appellate District

Division One

Filed February 9, 2018

BY THE COURT:¹

It is ordered that the published opinion filed herein on January 17, 2018, be modified as follows:

At the end of the sentence that begins at the bottom of page 23 and ends at the top of page 24 with the words "Bell, supra, 115 Cal.App.4th 715," add the following footnote number 16:

We note that we have scoured the appellate record in vain to locate plaintiffs' margin of error calculations. Factual matters that are not part of the record will not be considered on appeal and should not be referred to in a party's brief. (Cal. Rules of Court, rule 8.204(a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.) This rule applies to matters referenced at any point in the brief, not just in the statement of facts. (Lona v. Citibank, N.A. (2001) 202 Cal.App.4th 89, 96, fn. 2; see also Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1 ["[i]t is not the task of the reviewing court to search the record for evidence that supports the party's statement; it is for the party to cite the court to those references"].)

The following footnote will be renumbered as footnote 17.

The sentence that follows the new footnote, which reads, "However, the margins of error are artificially low because they are based on the total hours worked, and not overtime hours," is deleted.

The following sentence is revised slightly, to now read, "However, it is the comparison of the two surveys that reveals the inconsistency, irrespective of whether each survey is internally consistent within itself." Following this edited sentence, a new sentence is added, which will read: "Again, there is a difference of over nine hours between the two surveys' weekly overtime estimates."

This modification does not change the judgment.

The petition for rehearing is denied.

Dated:

Dondero, J.

^1. Humes, P. J., Margulies, J., Dondero, J.