Pollution Control Dist.
Filed 4/26/13 Davis v. County of San Diego Air Pollution Control Dist. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
EARNEST A. DAVIS,
Plaintiff and Appellant,
v.
COUNTY
OF SAN DIEGO AIR POLLUTION CONTROL DISTRICT et al.,
Defendants and Respondents.
D061232
(Super. Ct. No. 37-2010-00095336- CU-OE-CTL)
APPEAL from
a judgment of the Superior Court of San
Diego County, Richard E.L. Strauss, Judge.
Affirmed.
Plaintiff
and appellant Earnest A. Davis, in propria persona, appeals the defense summary
judgment granted for defendants and respondents, the County of San Diego Air
Pollution Control District, John Annicchiarico, Robert Kard and Tom Weeks (the
County) in his action on employment discrimination theories under the Fair
Proc., § 437c; all further statutory references are to the Code of Civ.
Proc. unless noted.) After receiving
opposition, including documents lodged by Davis,
the trial court ruled that as a matter of law, the two prior administrative
adjudications on claims arising out of the same circumstances, both resolved
unfavorably to Davis at the
administrative and judicial levels, barred these same FEHA-based claims. (Johnson
v. City of Loma
Linda (2000) 24 Cal.4th 61 (Johnson); Castillo v. City of
Los Angeles
(2001) 92 Cal.App.4th 477 (Castillo).)
On appeal,
Davis argues that the trial court's grant of
substantively flawed, or that he was deprived of due process regarding the
pursuit of additional allegations he now seeks to add to his previous claims
(e.g., claims naming several individual coworkers, not an institutional
defendant), and because he, a nonlawyer, was forced for economic reasons to
represent himself. Davis further
contends that he successfully identified triable issues of fact about
representation by his previous retained counsel, who handled the prior
litigation of the mandamus petitions, and who, when withdrawing as counsel,
allegedly engaged in some kind of collusion with defense counsel and the trial
courts that heard those matters.
Based on
the inadequacies of Davis's
briefing and record preparation, which failed to comply with basic principles
of appellate practice, he has arguably forfeited any challenge to the summary
judgment ruling. In any case, as a
matter of law, this record discloses that the trial court correctly determined
that the final orders, after unsuccessful appeals on the two prior
administrative adjudications and related lawsuits, precluded these FEHA
claims. (
Davis v. Civil Service Commission (Nov. 15, 2012, D060468) [nonpub. opn.] (No. D060468); together, our prior
opinions.) All three of Davis's
actions arose out of and were pursued on the same basic set of facts, and the
trial court properly ruled, as a matter of law, that Davis's
current complaint reframing those allegations lacks merit. We affirm the summary judgment.
I
BACKGROUND AND
FACTS
A. Previous
Mandate Proceedings
We take
some of the background facts from our prior opinions. Until 2009, Davis
held several positions in County employment, most recently as an associate air
pollution control engineer with the Vapor Recovery/Chemical Engineering section
of the Air Pollution Control District (the District). In July 2008, the District provided him with
a Performance Improvement Plan (PIP) to assist him in correcting several areas
of deficiency. Davis
did not complete the 2008 PIP, and took a nine-month leave of absence because
of an injury.
In July
2008, Davis filed a complaint of
sex and race discrimination and retaliation under FEHA. In April 2009, he filed a FEHA complaint for
disability and racial discrimination .
He received right-to-sue letters.
Davis
returned to work in June 2009 "with a 25 [percent] reduction in
keyboarding work restriction." The
District provided him with a second PIP and accommodated his work
restriction. Davis
understood the District "generates revenue based upon charging time to
projects." Further, he was expected
to process at least four applications for a permit to operate (PO)
per day and submit them to his supervisor for approval, and to enumerate his
tasks on his daily time sheets.
Davis
reported to work between June 16 and August 4, 2009, and he was paid for a
total of 213.7 hours, but his time sheets for that period listed only two hours
(less than one percent of his time), for work on any projects (instead he
reported work on "interactive process" and "personnel
matters"). He submitted no PO's
for approval, and provided no acceptable explanation.
In
September 2009, the District terminated Davis's
employment on the ground he produced "virtually no work" and
"failed to demonstrate even the slightest
effort . . . to perform."
Davis
applied for unemployment compensation benefits.
The Employment Development Department determined he was ineligible for
benefits. On discrimination theories, he
administratively appealed the denial to the Unemployment Insurance Appeals
Board (the Board). He argued he had been
subject to sexual harassment, discrimination, ethnic and disability
discrimination and retaliation. That
appeal was unsuccessful.
In May
2010, Davis filed a superior court
petition for writ of administrative mandamus, challenging the Board's
decision. (§ 1094.5.) The court denied the petition after
independently examining the administrative record. That ruling was upheld by this court November 14, 2012, in No.
D060471. We found he had forfeited his
appeal by his inadequate briefing, but that even without any reliance on forfeiture,
his claims were unsupported on the merits, and the order denying his petition
was affirmed.
Separately,
Davis challenged the County's
employment decisions administratively by appeal to the County Civil Service
Commission (the Commission). He claimed
that he had been the victim of discrimination and retaliation. In March 2010, the Commission affirmed the
County's termination of Davis's
employment on the basis that Davis
was guilty of inefficiency, insubordination and acts incompatible with or inimical
to the public service.
In June
2010, Davis brought an amended
petition for a writ of administrative mandamus under section 1094.5, requesting
that the Commission's decision be set aside.
The court denied the petition after independently examining the
administrative record. The court found
substantial evidence supported the Commission's findings.
That ruling
was upheld November 15, 2012,
in No. D060468. We found he had
forfeited his appeal by not timely submitting the administrative record, and we
affirmed the order denying his petition.
Both of our prior opinions have now become final.
B. Current FEHA
Complaint and Summary Judgment Proceedings
In June
2010, Davis was represented by a
law firm, which filed his FEHA complaint in seven causes of action: (1) race discrimination; (2) harassment
because of race; (3) sex discrimination; (4) sexual harassment; (5) disability
discrimination; (6) disability harassment; and (7) retaliation.
By January
2011, Davis had retained Mr. Pride
as new counsel in this case, as well as in his two pending administrative
mandamus writ petitions. As of a May 6, 2011, hearing in one of the
administrative writ cases, Mr. Pride notified the court (Judge Randa Trapp)
that Mr. Pride was attempting to negotiate a settlement of all three cases with
the representative of county counsel's office, Mr. Songer. At that time, Mr. Pride had not filed any
moving papers to advance his petition, because he thought there was a
settlement of all three cases, but it had fallen through. The court discussed the matter with both
counsel and granted a continuance. This
court granted Davis's motion to
augment the record to add the reporter's partial transcript of that May 6, 2011, motion hearing, since it
pertained to matters within the current record.
According
to Davis, he was not notified by
Mr. Pride that Mr. Pride was withdrawing as counsel until very shortly before a
scheduled hearing date. Davis
then signed three substitution of attorney forms on August 10, 2011, corresponding to his three then
pending lawsuits, to appear in propria persona.
In his briefs on appeal, he now claims that he only meant to sign two,
and only understood the writ cases were involved (not including the third one
he signed, for this discrimination lawsuit).
The County
defendants moved for summary judgment in this case on August 18, 2011, asserting that the prior
administrative adjudications barred Davis's
FEHA claims.
Davis
filed opposition to the County's motion for summary judgment. He submitted a separate statement of
undisputed facts and 56 loose documents in support of his opposition to the
summary judgment motion. He attacked the
merits of the prior administrative adjudications and not the legal arguments raised
by the County.
At argument
before the trial court on November
10, 2011, Davis argued
that the two administrative adjudications and mandamus petitions were not final
yet, because they were still on appeal to this court. He also argued that he had raised some new
issues, such as his addition of allegations about an individual defendant,
County management employee John Annicchiarico, whose conduct toward Davis
had been investigated during Davis's
prior litigation. Davis
also claimed that his prior attorney had somehow colluded with defense counsel
regarding the substitution of attorney that had occurred, only shortly before
the summary judgment motion was filed.
After the
hearing, the court granted summary judgment to the County on the grounds that
the prior administrative adjudications, which had not been overturned, barred
the FEHA claims now being asserted, under case authority such as
The court noted there were many procedural defects in the separate
statement filed by plaintiff and in the rest of plaintiff's submissions, such as
the lack of any declarations or points and authorities. However, the court ignored the procedural
deficiencies and reached the merits, after deeming Davis's
exhibits had been lodged with the court (later returned to him). The court ruled that the County had provided
evidence to meet its burden to establish that the claims at issue in the
current action were barred, as previously adjudicated in the two administrative
proceedings and subsequent mandamus actions.
This appeal
followed, with designations of the record by each side. This court denied Davis's
later motion for augmentation to add his previously lodged documents to this
record.
II
Under
section 437c, subdivision (c), a motion for summary judgment "shall be
granted if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." Summary judgment
rulings are reviewed de novo. (
Cal.4th 763, 767-768; Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1143.)
On appeal,
the court conducts an independent review of the moving and opposition papers
and applies the same standards that govern a trial court's determination of a
motion for summary judgment. (
Cal.App.4th 1117, 1121-1122; Distefano v.
Forester (2001) 85 Cal.App.4th 1249, 1258.)
"Under California's traditional rules, we determine with respect to
each cause of action whether the defendant seeking summary judgment has
conclusively negated a necessary element of the plaintiff's case, or has
demonstrated that under no hypothesis is there a material issue of fact that
requires the process of trial, such that the defendant is entitled to judgment
as a matter of law." (
Cal.4th 317, 334.)
Initially,
we observe that plaintiff, as a litigant in propria persona, is "entitled
to the same, but no greater, rights than represented litigants and [is]
presumed to know the [procedural and court] rules. [Citations.]" (Wantuch
v. Davis
Inc. (1996) 43 Cal.App.4th 1200, 1210.)
For any
appellant, "[a]ppellate briefs must provide argument and legal authority
for the positions taken. 'When an
appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived. [Citations.]' " (Nelson
v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants'
arguments for them. [Citation.] The absence of cogent legal argument or
citation to authority allows this court to treat the contention as
waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830; Dietz v. Meisenheimer & Herron (2009)
177 Cal.App.4th 771, 799.)
As we
previously pointed out in No. D060468, and as equally applicable here,
"Error is never presumed on
appeal. To the contrary, appealed
judgments and orders are presumed correct . . . and
appellant has the burden of overcoming this presumption by affirmatively
showing error on an adequate record." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2012) ¶ 4:1, p. 4-1 (Eisenberg); In re
Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must provide an adequate record
and citations to the record to support affirmative claims of error. (Bains
v. Moores
(2009) 172 Cal.App.4th 445, 455.) Even
in cases of de novo review, the court of appeal need not
" ' "cull the record for the benefit of the appellant in
order to attempt to uncover the requisite triable issues." ' " (Ibid.)
Although
this court could legitimately affirm the summary judgment on the basis that Davis
has failed to present any understandable, persuasive, or supported arguments on
appeal, we will exercise our discretion to consider the merits of the appeal,
and we next examine the record for evidentiary and legal support for this
summary judgment.
III
"Where
a public employee chooses to file an internal grievance and receives an adverse
finding, that finding binds the trial court in a subsequent FEHA action, unless
the finding is overturned in a mandamus proceeding." (3 Witkin,
Cal. Procedure (5th ed. 2008) Actions,
§ 225, pp. 304, 303, relying on Johnson,
supra, 24 Cal.4th at p. 69.) Here, Davis's
administrative appeals to the Board and the Commission were unsuccessful, and
so were his mandamus petitions to challenge those denials of his claims.
Issue
preclusion prevents "relitigation of issues argued and decided in prior
proceedings." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 (
Cal.App.4th at p. 481.) To apply this
issue preclusion doctrine in a given case, the courts inquire if (1) the issue
was identical to that decided in the former proceeding, (2) the issue was
actually litigated previously, (3) the issue was necessarily decided previously,
(4) the previous decision has become final and was on the merits, and (5) the
person previously involved was a party or in privity with a party to the former
proceeding. (Id. at p. 481.)
An
additional consideration for applying the doctrine of issue preclusion is
whether it will further the public policies of " 'preservation of the
integrity of the judicial system, promotion of judicial economy, and protection
of litigants from harassment by vexatious litigation.' " (Castillo,
supra, 92 Cal.App.4th at p.
481.) This doctrine applies not only to
a court's final findings, but also " 'bars the relitigating of issues
which were previously resolved in an administrative hearing by an agency acting
in a judicial capacity.' " (
A. Type of Prior Proceedings; Finality
Two former
administrative proceedings were involved here, to the Board and the
Commission. In both cases, the final
administrative decision was made as the result of a proceeding in which a
hearing was required to be given, evidence was required to be taken, and
discretion in the determination of facts was vested in the inferior tribunal,
corporation, board, or officer. As such,
the unfavorable administrative decisions were subject to section 1094.5
petitions for relief in mandamus, and Davis
brought those, but lost.
The County
submitted a supplemental authority letter referencing Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866 (
filed an objection to that letter. (Cal.
Rules of Court, rule 8.254.) In
preparation for the scheduled oral argument, we allowed the parties to submit
simultaneous supplemental letter briefing to give a brief summary of their
positions on the applicability of this recent authority. A key issue in Basurto was the adequacy of the internal grievance procedures
utilized by that plaintiff for purposes of applying the doctrine of collateral
estoppel to bar his later claims for civil damages. (Basurto,
at pp. 879-886.) No such concerns are
apparent here, because the Commission afforded the kind of quasi-judicial
decision making that was equivalent to a judicial trial that satisfied basic
due process considerations. (
For that
reason, we need not address the issue of whether the administrative decision
rendered by the Board was likewise the kind of quasi-judicial decision making
that was equivalent to a judicial trial that satisfied basic due process
considerations. (Basurto, supra, 211 Cal.App.4th at p. 884.) It is also not necessary to discuss the
authority about the options normally afforded to a public employee, to choose
between pursuit of the public agency's own internal remedies or to file an
employment discrimination complaint with the DFEH without exhausting such
internal remedies. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1085,
1092; 3 Witkin, supra, Actions, §
225, pp. 303-304.) Davis
did both. The next relevant question is
what preclusive effect the administrative decision by the Commission had,
depending on the identity of issues and parties requirements? (Lucido,
supra, 51 Cal.3d at p. 341.)
B. Type of Issues Litigated and Decided
Davis first
claims his FEHA discrimination complaint is different enough from his writ
petitions, to avoid any preclusive effect, because his discrimination complaint
"involves, not only the County of San Diego as a defendant like the other
two (2) cases, but also defendant John Annicchiarico, Robert Kard, and Tom
Weeks, as individuals, UNLIKE the other
lawsuits . . . ."
However, the same types of allegations were raised against all
defendants in their official capacities, regarding alleged unlawful or wrongful
termination of his employment, based on the conditions under which he worked
and the discipline that he received.
These were similar enough factual allegations identifying what was
actually at stake in each proceeding, for a preclusive effect. (Lucido,
supra, 51 Cal.3d at p. 342.)
Likewise,
the issues actually litigated in the administrative proceedings, as later
reviewed in the mandamus petitions, raised Davis's
allegations of unlawful discrimination based on his race, sex or disability,
culminating in his allegedly wrongful dismissal. In the current summary judgment proceedings,
the County brought forward evidence showing that the administrative decisions
about his discharge were appropriately litigated and decided upon adequate
records, and further adequately reviewed in a judicial forum, such that the
County is now entitled to summary judgment as a matter of law.
We agree,
initially, with the County that "Davis
has had ample opportunity to present all his discrimination theories
administratively," whether or not every conceivable theory was actually
raised. Res judicata or collateral
estoppel will appropriately bar those later claims that were, or could have
been, brought in the prior litigation. (
202.) "If the matter was within the
scope of the action, related to the subject-matter and relevant to the issues,
so that it could have been raised,
the judgment is conclusive on it despite the fact that it was not in fact
expressly pleaded or otherwise urged.
The reason for this is manifest.
A party cannot by negligence or design withhold issues and litigate them
in consecutive actions. Hence the rule
is that the prior judgment is res
judicata on matters which were raised or could have been raised, on matters
litigated or litigable." (
In the next
step of the analysis, we consider whether Davis's
due process arguments must change our conclusion, under applicable rules, that
issue preclusion applies and ends this case.
IV
Even if
issue preclusion may properly be applied in Davis's
case, we also consider whether the public policy considerations enumerated in
desired further litigation. Will
application of issue preclusion here serve to promote the public policies of
"preservation of the integrity of the judicial system, promotion of
judicial economy, and protection of litigants from harassment by vexatious
litigation"? (Ibid.; Castillo,
First, Davis
claims the result is unfair in various ways, he has a right to go to trial, and
he was somehow denied due process.
Several factors play into this argument.
These include the awkward timing of the substitution out of his previous
attorney, his difficulty in finding replacement counsel and his subsequent
propria persona status and his fears or suspicions that there was some kind of
collusion or conspiracy in those respects.
Further, Davis
seems to argue that he can continually add more allegations, such as in the
factual representations in his briefs about inappropriate conduct by one of the
individual defendants, such as in 2007 and 2008 (including indecent exposure or
a "sexual assault"). He does
not cite to this "evidence," such as pages in the record or in the
stack of exhibits he submitted to the trial court and that was deemed as lodged
with his summary judgment opposition. In
fact, Davis's briefs are mainly
unintelligible, and they ignore any evidence supporting the ruling of the trial
court, instead inappropriately focusing only on evidence he thinks is in his
favor.
Factual
representations in the briefs that are unsupported by any citation to evidence
are not properly before the court. (Cal.
Rules of Court, rule 8.204(a)(1)(C) [brief must support any reference to a
matter in the record by citation to where in the record the matter
appears].) As we earlier pointed out in
No. D060471, "[a]ny statement in a brief concerning matters in the
appellate record—whether factual or procedural and no matter where in the brief
the reference to the record occurs—must
be supported by a citation to the record." (Eisenberg et al., supra, ¶ 9:36, p. 9-12.)
" 'It is neither practical nor appropriate for us to comb the
record on [the appellant's] behalf.' "
(Schmidlin v. City of
738.) In any case, similar allegations
were put forth in the administrative proceedings about sexual harassment, race
or disability discrimination, but were not proven, and these are not new
claims. "Regardless of the forum, [Davis]
must still establish the elements of his causes of action." (Castillo,
supra, 92 Cal.App.4th at p.
486.) He has not shown he was dismissed
out of any discriminatory motives.
Davis also
claims, without support, that there was some kind of collusion at a May 6,
2011, hearing during the writ litigation, when his then-attorney, Mr. Pride,
admitted he had failed to file any moving papers to pursue the writ petition,
and the presiding judge allowed a continuance.
Read as a whole, the transcript supports a conclusion that the court was
making an effort to permit Davis's
case to be resolved on the merits, and he cannot show that instead, it was some
kind of "clandestine side deal" or "a travesty of
justice." Nor can he show that
defense counsel was somehow a party to the failure of his previous attorney to
prepare for the hearing, in any meaningful way.
To the
extent Davis claims his former counsel "unethically [substituted] out of
the discrimination lawsuit," or that he was not aware that he had signed a
substitution of attorney for himself in this case as well as the others, we
cannot transform such claims into a reason to undermine the previous
administrative and judicial adjudications, on the same issues. This is not the proper forum for such
arguments.
Moreover,
although Davis argues that the
trial court that heard the summary judgment motion acted short or impatient
with him, possibly because Davis
has a speech impediment, the reporter's transcript does not bear out such a
claim. Instead, it shows that the court
attempted to put him at his ease, told him he was doing fine, and then
thoroughly addressed the issues raised in the summary judgment moving and
opposing papers, as well as inquiring into and clarifying the procedural
history of the various stages of the litigation. Moreover, the ruling is thorough and well
reasoned.
"[M]ere
self-representation is not a ground for exceptionally lenient
treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Even without deeming Davis's
claims forfeited, and even when we consider his due process deprivation
arguments, we cannot find any indication in the record that the grant of
summary judgment was inappropriate.
Rather, as a matter of law, we conclude that since Davis
was unable to have the adverse administrative decision "set aside through
judicial review procedures," the adverse finding was binding and it
disposed of these alternatively framed, but essentially identical,
discrimination claims under FEHA. (See
76.) We affirm the summary judgment.
DISPOSITION
Summary
judgment affirmed. Defendants and
respondents shall recover their costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
