Dept. of Corporations v. Cal State Personeel Bd.

Filed 4/1/08 Dept. of Corporations v. Cal State Personeel Bd. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

Real party in interest Ernestine Forrest (an attorney representing herself on appeal) appeals from a portion of a trial court judgment granting in part a petition for writ of administrative mandamus (Code Civ. Proc., 1094.5^[1]) filed by Forrests employer, California Department of Corporations (the Department). The Department challenged an administrative decision by the State Personnel Board (SPB) determining that the Departments dismissal of Forrest from her job as Corporations Counsel was an excessive penalty for her deficient job performance. The trial court determined that certain SPB factual findings in favor of Forrest were unsupported by the evidence, but the court upheld the SPBs determination that Forrest be reinstated to her job.^[2]

Forrest contends (1) the portion of the judgment favorable to the Department relates to issues forfeited by the Department and subject to laches; (2) the evidence does not support the trial courts setting aside of SPB findings; and (3) SPBs post-judgment action exceeded the scope of the judgment. We shall conclude Forrest failed to provide an adequate record for review of evidentiary contentions and fails to show grounds for reversal. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The nature of Forrests appellate contentions does not require an extensive recitation of facts.

In March 2000, the Department terminated Forrests employment as Corporations Counsel for misconduct (signing Securities Regulation Division abandonment orders without authority, neglect of duty, dishonesty, discourteous treatment of the public and other employees, willful disobedience, and other failure of good behavior under Government Code section 19572). Forrest (represented by counsel at the time) pursued an administrative appeal. In December 2002, the SPB, adopting the proposed decision of an administrative law judge (ALJ), determined that some but not all of the charges against Forrest had merit, but dismissal was an excessive penalty that should be modified to a formal reprimand.^[3] In March 2003, SPB denied Forrests request for reconsideration.

On February 24, 2004, the Department filed in the trial court a petition for writ of administrative mandate (Case No. 04CS00221), asking the court to direct SPB to set aside its decision in SPB Case No. 00-1274 (Dismissal Decision) and uphold the Departments dismissal of Forrest. The Department argued no substantial evidence supported the following findings by SPB:

1. That Forrest was not dishonest or misleading with respect to her reinstatement to the Department;

2. That Forrest was not responsible for files being lost; and

3. That Forrest did not file a fraudulent claim for unemployment benefits.

The petition argued generally that SPBs findings, especially concerning mitigating circumstances, were inadequate because they failed to state a factual basis and failed to cite record references.

The Departments memorandum of points and authorities added another specific point:

4. That no substantial evidence supported SPBs findings that Forrest was relegated to the library for five months (October 1996 to February 1997) without assignments and without signing authority, as retaliation for filing discrimination claims against the Department.

Before any judicial disposition of this first writ petition, the Department on October 22, 2004, filed a second petition for writ of administrative mandate (Case No. 04CS01424), challenging the SPBs decision regarding Forrests back pay in SPB Case No. 00-1274B (Back Pay Decision).^[4] The Back Pay Decision is not at issue in this appeal.

The trial court consolidated the two petitions.

Forrest filed an opposition brief, arguing (1) she was not provided with a copy of the administrative record; (2) the petitions were barred by the statute of limitations or laches; and (3) the petitions misstated the evidence; and (4) some of SPBs findings were unsupported by substantial evidence.

The trial court, noting Forrest failed to explain her failure to seek the courts help in obtaining a copy of the administrative record before filing her opposition brief, nevertheless allowed Forrest an opportunity to review the administrative record lodged with the court and to submit a supplemental brief with citations to the administrative record. Forrest submitted a supplemental brief, and the trial court considered it (though the court denied her leave to augment the administrative record).

The trial court denied the petition to set aside the Back Pay Decision.

As to the Dismissal Decision, the trial court granted the Departments petition in part and denied it in part, as follows: All SPB findings and conclusions were sustained and upheld, except the findings and conclusions that the Department relegated Forrest to the library without signing authority in retaliation for her discrimination claims against the Department (the retaliation findings/conclusions). The court ordered issuance of a writ to direct SPB to set aside the retaliation findings/conclusions in the Dismissal Decision. The court added that, because SPBs decision to reduce the penalty imposed on Forrest was based, in part, on the retaliation findings, the case was to be remanded to SPB for re-evaluation of the penalty in light of the trial courts ruling.

On December 23, 2005, the trial court entered the JUDGMENT DENYING IN PART AND GRANTING IN PART PETITION FOR WRIT OF MANDATE.

Forrest filed a notice of appeal from the judgment.

DISCUSSION

I. Administrative Record

We begin with the consequences of Forrests failure to meet her burden as appellant to provide an adequate record for her substantial evidence argument (that the evidence does not support the trial courts setting aside of SPB findings that the Department retaliated against and/or discriminated against Forrest). We shall explain Forrest has forfeited this issue by failing to make the administrative record a part of the record on appeal.

The rules applicable to appeals require that appellants bear the burden of affirmatively showing error by an adequate record. (Forrest v. Dept. of Corporations (2007) 150 Cal.App.4th 183, 195.^[5]) We hold pro per appellants to the same standards as appellants represented by counsel. (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.) Moreover, Forrest, though acting in propria persona, is herself a lawyer.

The administrative record is not part of the record on appeal.

After Forrest filed her notice of appeal, we sent her a form letter on March 15, 2006, which included a reminder that [i]f an administrative record was lodged in the above case, it is appellants responsibility to make arrangements with the trial court clerk for its transmittal to this court with the record on appeal.

On April 3, 2006, the Department moved to dismiss the appeal on the ground that Forrest was declared a vexatious litigant in 1994 and failed to obtain permission before filing this appeal, and Forrest filed this appeal for improper purposes of delay and harassment. The Department noted Forrest was already in default of the requirement that she designate the record for appeal.

On April 19, 2006, Forrest filed an opposition to the motion to dismiss and a request that this court order the Department to provide the administrative record to this court.

On July 31, 2006, we denied the motion to dismiss the appeal, because the appeal was not new litigation for which a vexatious litigant must obtain approval before filing. In the same letter, we denied as moot a motion filed by Forrest to vacate dismissal if any. We granted Forrest relief from the tardy designation of the record on appeal, on the condition that she file one by August 11, 2006. We also said, [Forrests] request, contained within her opposition to the motion to dismiss, filed on April 19, 2006, to require the Respondent [the Department] to provide the administrative record to the court for the purposes of this appeal . . . is denied. (Cal. Rules of Court, [former] rules 41(a)^[[6]]and 42(b)^[[7]][see now, rules 8.54 and 8.57]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

Thus, even though we are not required to tutor appellants on rules of appellate procedure, we gave Forrest notice that she had not proceeded in the appropriate manner.

On August 24, 2006, Forrest filed her notice designating the record on appeal. She did not designate the administrative record to be part of the record on appeal but rather stated: IF NECESSARY, [FORREST] WILL REQUEST THAT THE ADMINISTRATIVE RECORD LODGED WITH THE SUPERIOR COURT AND DESCRIBED IN THE ATTACHED 9 PAGE DOCUMENT BE TRANSMITTED TO THE COURT OF APPEAL WITH THE RECORD ON APPEAL PER THE LETTER FROM THE COURT OF APPEAL, DATED March 15, 2006.

Thus, Forrest never designated the administrative record to be included in the record on appeal (though the record on appeal happens to contain excerpts of the administrative hearing, which Forrest submitted to the trial court with a request for reconsideration).

On June 5, 2007, Forrest filed her opening brief on appeal, which says in a footnote that A.R. refers to the administrative record, but the brief contains no page citations to the absent administrative record.

On September 5, 2007, the Department filed its respondents brief, arguing in part that Forrest had forfeited her appellate claims by failing to submit the full administrative record.

In October 2007, we received a copy of a letter from Forrest to the Department, dated October 19, 2007, which said in part: It is my understanding that [the administrative record] previously lodged with Judge Holzer Hersher has been returned to you. [] We are in the final stages with regard to the appeal relating to a portion of the decision of Judge Judy Holzer Hersher. It appears that you have not yet submitted to the Third District Court of Appeal [the administrative record] which the Third District Court of Appeal needs for its review in the instant appeal.^[[8]]. . . I am asking that you please immediately submit to the Third District Court of Appeal all of the evidence previously lodged with Judge Judy Holzer Hersher. As you are aware, I previously requested this evidence which relates to critical parts of this appeal.^[[9]] If any motions are required, I will be filing them with the Court of Appeal for the Third Appellate District.

Forrest did not file a motion but, on November 30, 2007, filed her reply brief, which said in a footnote that she planned to file a motion under rule 8.224(d),^[10]asking this court to order transmittal of the administrative record.

By the time this court started working on this appeal, Forrest had not filed a motion in this court seeking to add the administrative record to the record on appeal.

After this court sent the parties notice that the court was prepared to rule, and after Forrest requested oral argument, she filed a motion asking this court to obtain the administrative record. We denied the motion as untimely, noting we had already completed much of the work on the case. Additionally, Forrest would still have a problem even if the administrative record were added at this late date because, as a result of her failure to make the administrative record part of the record on appeal, her appellate brief lacks page citations to the missing administrative record.

We conclude Forrest has forfeited any contention that relies upon the administrative record.

Thus, although rule 8.224(d) allows us, in our discretion, to request an exhibit at any time, this provision is not a safety net for appellants who fail to meet their burden of presenting an adequate record for the appeal. Forrest could have and should have designated the administrative record in her notice designating the record on appeal. She opted not to do so. Her attempt to reserve the right to do so later is ineffectual; she fails to cite any authority supporting such a reservation, and she fails to offer any justifiable reason for delay, since the need for the administrative record should have been apparent all along.

We recognize Forrest claims the trial court returned the administrative record to the Department. However, had Forrest designated the administrative record in her notice designating record on appeal, the trial court would have ordered the Department to deliver it to the superior court clerk for inclusion in the record on appeal.

We conclude Forrest has forfeited any contention that turns on the contents of the administrative record. Specifically, she has forfeited her contention that substantial evidence does not support the trial courts setting aside of the SPBs retaliation/discrimination findings.

We now turn to Forrests contentions that do not depend on the contents of the administrative record.

II. Scope of Writ Petition

Forrest argues the Department forfeited the right to contest SPBs findings regarding discrimination/retaliation by failing to include them in the Departments petition for writ of administrative mandate filed in the trial court. We disagree.

Thus, the Departments writ petition, filed in the trial court on February 24, 2004, alleged SPB abused its discretion in that:

A. The finding that Forrest was not dishonest and had not engaged in misleading conduct regarding reinstatement was unsupported by substantial evidence;

B. The finding that Forrest was not responsible for files being lost was unsupported by substantial evidence;

C. The finding that Forrest did not file a fraudulent claim for unemployment insurance benefits was unsupported by substantial evidence;

D. The findings especially concerning mitigating circumstances were conclusory and did not meet the statutory requirement for a statement of factual basis, supported by a statement of underlying facts of record; and

E. The decision failed to set forth findings to bridge the analytical gap between raw evidence and the decision itself.

In its points and authorities filed in the trial court more than a year later, on July 29, 2005, the Department repeated the

foregoing allegations and added a specific lack of substantial evidence challenge to a fourth SPB finding, that Forrest was left in the library for five months between October 1996 and February 1997 and was not given signing authority as retaliation for filing complaints . . . .

However, Forrests opposition papers did not ask the trial court to disregard this fourth challenge on the ground of its omission from the writ petition. Rather, Forrest in her opposition papers filed in the trial court on August 29, 2005, simply stated: Petitioner [the Department] appears to try to add an additional error in its Points and Authorities at page 2 regarding retaliation but even if this were considered, the SPB revealed how it came to the retaliation conclusion in Case No. 00-1274 on pages [blank space in original] and its observations of and considerations of the witnesses and their actions and even the soundness of the charges. See, e.g., Case No. 00-1274---page 6 final paragraph continuing to page 7 and pages 7 through 20.

After the trial court issued its tentative ruling, Forrest argued at a hearing in the trial court, with no citation of authority, that she was surprised the trial court even looked at the retaliation finding because it was not expressly mentioned in the writ petition, and Forrest did not have as much time to address it as she would have, had it been mentioned in the writ petition. Forrest asserted she could have demurred or moved for summary judgment had retaliation been expressly mentioned in the

writ petition, but she did not explain how she could have eliminated the issue on demurrer or summary judgment. The trial court expressed the view that the writ petition, which essentially sought to overturn the administrative decision in its entirety, encompassed the retaliation finding, and the court was not required to disregard the substantial evidence challenge to the retaliation finding. Nevertheless, due to Forrests failure to obtain a copy of the administrative record, the trial court gave Forrest additional time to review the administrative record and submit a supplemental brief, even though the court observed she failed to explain her lack of diligence in securing a copy of the administrative record. Forrest did submit a supplemental brief, which was considered by the trial court.

On appeal, Forrest cites no authority precluding the trial court from considering the challenge to the retaliation finding. She cites Black v. State Personnel Board (1955) 136 Cal.App.2d 904, for the proposition that any finding which is not specifically attacked is to be accepted as true. (Id. at p. 909.) However, Black went on to address substantial evidence of the finding which was not specifically attacked in the writ petition (and another finding which was not specifically challenged in the employees answer to the employers notice of punitive action). (Id. at pp. 909-912.) Thus, Black does not support reversal of the judgment. Moreover, writ petitions can be amended. ( 1109 [provisions of Code of Civil Procedure,

including sections on amendment of pleadings, apply to writ petitions].)

The only other authority cited by Forrest is Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, which merely recognized a party may waive, i.e., intentionally relinquish, the advantage of a law intended for that partys benefit. Forrest argues the Department was fully aware of SPBs findings and therefore intended to relinquish any challenge to the retaliation finding. However, waiver is a question of fact for the trial court. (Bickel, supra, 16 Cal.4th at p. 1052.) Forrest did not argue or demonstrate intentional relinquishment in the trial court, and on appeal she fails to show reversible error in the trial courts consideration of the substantial evidence challenge.

In order to prevail on appeal, the appellant must support her points with reasoned argument and citations to authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Forrest fails to do so.

III. Laches

Forrest argues that, if the retaliation/discrimination findings were not forfeited, they were barred by laches. However, under this heading, she merely repeats her displeasure that the Departments writ petition did not mention a substantial evidence challenge to the SPBs retaliation/discrimination findings. She complains she would have had much longer to prepare a response had the challenge

been expressly mentioned in the writ petition. However, to the extent that she presented a laches argument to the trial court, she fails to show grounds for reversal. Laches requires both unreasonable delay by the petitioner and prejudice to the opposing party. (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1126.) Prejudice is never presumed; it must be affirmatively demonstrated. (Ibid.) Laches is generally a question of fact for the trial court, and in the absence of manifest injustice or lack of substantial support in the evidence, its determination will be sustained. (Id. at pp. 1126-1127.)

Here, even assuming Forrest adequately raised laches in the trial court, she fails to show grounds for reversal. In the trial court, Forrest filed her opposition memorandum a full month after the Department filed its memorandum of points and authorities claiming insufficient evidence to support the retaliation finding. Forrests opposition papers did not invoke the laches doctrine and did not demonstrate prejudice, but merely noted the argument was new and asserted the evidence supported the finding. In oral argument to the trial court, Forrest complained about not having had enough time, and that she would have had an additional year had the claim been presented in the writ petition, and could have demurred or sought summary judgment. However, she did not invoke the doctrine of laches, nor did she show how she could have eliminated the issue on demurrer or summary judgment. Moreover, due to Forrests failure to obtain a copy of the administrative record, the trial court gave Forrest additional time to review the administrative record and submit a supplemental brief, even though the court observed she failed to explain her lack of diligence in securing the administrative record.

We conclude Forrest fails to show grounds for reversal based on a laches argument with respect to the issue of substantial evidence of the retaliation finding.

Forrest did make a different argument about laches in the trial court, i.e., that the filing of the Departments petition was untimely. However, she does not argue this point in her opening brief on appeal. She mentions it in the STATEMENT OF THE CASE portion of her opening brief, but the argument portion of her opening brief on appeal makes no assignment of judicial error and presents no analysis on this point. She has therefore forfeited the matter (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979), and we need not discuss the arguments in the respondents brief or Forrests reply brief about the statute of limitations and laches regarding timeliness of the filing of the petitions.

IV. SPB Vacating Decision

Forrest contends SPB violated the trial court judgment when SPB vacated its decision in response to the trial court judgment instead of simply re-evaluating the penalty.

The Department responds SPBs action was consistent with the judgment and was done before Forrest filed this appeal. SPB suspended further action after Forrest filed this appeal. The Department also notes SPBs action is not within the scope of this appeal. We agree. This is an appeal from the trial courts judgment dated December 23, 2005, and does not encompass anything after entry of judgment.

Moreover, even if we were to consider the argument, it would fail due to Forrests failure to develop any factual or legal analysis. (Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.) Forrests entire argument consists of one paragraph with no citations to the record and no citation of authority other than one case for the proposition that an agency abuses its discretion if it has not proceeded in the manner required by law. Forrest says the judge required SPB to evaluate the penalty, not to automatically vacate the decision. She fails to show any grounds for relief.

In her reply brief, Forrest seeks to raise new points not raised in her opening brief, that the judgment was not in conformance with the trial courts ruling, and the proposed judgment was not submitted for Forrests approval as to form before it was submitted to the court. We decline to consider these new points which were not raised in the opening brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-766 [reviewing court may disregard new points raised in the reply brief].)

DISPOSITION

The judgment is affirmed. The Department of Corporations shall recover its costs on appeal. (Cal. Rules of Court,

rule 8.278(a)(1)-(2).)

SIMS , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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^[1]Undesignated statutory references are to the Code of Civil Procedure.

^[2]SPB has not filed a brief in this appeal.
Forrests notice of appeal indicates an appeal from the entire judgment, even though part of the judgment was favorable to her.

^[3]Forrest says a related case involved a suspension that SPB reduced from six weeks to one week.

^[4]In the statement of facts portion of her appellate brief, Forrest complains about the delay in resolution of the first petition that allowed a second petition to be filed, but she presents no assignment of error, legal analysis or authority in the discussion portion of her brief, and we therefore need not consider the matter. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard points not adequately briefed]; Cal. Rules of Court, rule 8.204 (undesignated rule references are to the California Rules of Court) [appellate brief must state each point under a separate heading and support each point].)

^[5]The plaintiff in the cited case is the same person as the appellant in this appeal. In April 2007, the Second Appellate District, based on Forrests status as a vexatious litigant, upheld dismissal of Forrests pro per suit against the Department alleging wrongful termination and discrimination. (Forrest v. Dept. of Corporations, supra, 150 Cal.App.4th 183.) Although the Second Appellate District noted appellants have the burden to provide an adequate record, Forrest failed to learn that lesson for this appeal, for which she filed her opening brief more than a month after the Second Appellate District filed its opinion.

^[6] Former rule 41(a) said: (1) . . . [A] party wanting to make a motion in a reviewing court must serve and file a written motion stating the grounds and the relief requested and identifying any documents on which the motion is based. [] (2) A motion must be accompanied by points and authorities and, if it is based on matters outside the record, by declarations or other supporting evidence. Current rule 8.54 says substantially the same thing.

^[7]Former rule 42(b) said (and current rule 8.57(b) now says): Any other motion [other than a motion to dismiss the appeal] filed before the record is filed in the reviewing court must be accompanied by a declaration or other evidence necessary to advise the court of the facts relevant to the relief requested.

^[8]We are unaware of any demand by Forrest imposing an obligation on the Department to submit the administrative record.

^[9]Again, we see no proper request by Forrest imposing an obligation on the Department.

^[10]Rule 8.224(d) says, At any time the reviewing court may direct the superior court or a party to send it an exhibit. On request, the reviewing court may return an exhibit to the superior court or to the party that sent it. When the remittitur issues, the reviewing court must return all exhibits to the superior court or to the party that sent them.