Filed 9/13/17 McGuire v. California State Personnel Bd. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Kelly McGuire was fired from her position with respondent California Department of Social Services (CDSS) and appealed her termination to respondent California State Personnel Board (the Board), which affirmed the dismissal. McGuire then filed a petition for writ of administrative mandamus in the trial court, which denied the petition. McGuire appealed and claims that she is the victim of “huge statewide guerilla warfare retaliatory tactics,” but does not meet her burden of demonstrating that the Board or the trial court erred. (Bold typeface omitted.) We therefore affirm.

I.
Factual and Procedural
Background

Starting in October 2004, McGuire worked for CDSS at a Rohnert Park office as a licensing program analyst. She was responsible for evaluating community-care facilities that operate child daycare programs. CDSS counseled and disciplined McGuire for her failure to meet expectations.

CDSS suspended McGuire for 30 days in March 2009 after several violations of office procedures. The Board first became involved in this employment dispute when it adopted a settlement between McGuire and CDSS in case No. 09-1168 (the 2009 Board case) that reduced McGuire’s suspension. After McGuire continued to commit misconduct at work, CDSS in December 2010 fired her and served her with notice of adverse action under Government Code section 19574. McGuire appealed the dismissal to the Board with the help of a union representative, which initiated case No. 10-5027 (the 2010 Board case).

The Board notified the parties that an evidentiary hearing on McGuire’s appeal would be held in April 2011. McGuire requested, and was granted, three continuances, and the hearing was scheduled to start on September 26, 2011. McGuire on September 22 asked for another continuance, stating she needed more time to prepare and that she was waiting for documents in response to a public-records request. The Board denied the request for lack of good cause.

At the September 26 hearing, McGuire’s attorney told the administrative law judge (ALJ) that he and McGuire disagreed over strategy and that McGuire had told him she no longer wanted the attorney to represent her. The attorney requested a further continuance on McGuire’s behalf so that she could seek a different attorney. CDSS’s attorney objected to putting off the hearing yet again, but McGuire’s attorney stated that McGuire believed she was not “medically able” to proceed on her own. The ALJ first denied the request for a continuance, McGuire’s attorney left, and the ALJ and CDSS’s attorney discussed the presentation of evidence. When the judge asked for McGuire’s input, McGuire responded that she believed she was “being forced” to proceed, that she had “been threatened to be here and to continue,” that she “did not request to be in pro per,” and that she was “not able” to continue. After further discussions, the ALJ continued the hearing because of concerns that McGuire’s attorney apparently had not prepared for the hearing and thus McGuire was unable to proceed.

The evidentiary hearing started on November 28, 2011, and was held over four days. The ALJ ruled in CDSS’s favor. The ALJ found that CDSS had proved misconduct allegations against McGuire by a preponderance of the evidence; that McGuire’s misconduct amounted to inefficiency, inexcusable neglect of duty, insubordination, dishonesty, discourteous treatment of the public or other employees, willful disobedience, and failure of good behavior under Government Code section 19572, subdivisions (c) through (f), (m), (o), and (t); and that the penalty of dismissal was just and proper. The five-member State Personnel Board adopted the ALJ’s proposed decision at its meeting on March 6, 2012.

Still proceeding without an attorney, McGuire filed a petition for writ of administrative mandamus in the trial court challenging the Board’s decision sustaining her dismissal. (Code Civ. Proc., § 1094.5.) Before ever reaching the merits of McGuire’s petition, the parties extensively litigated McGuire’s discovery requests and conflicts over the administrative record. While litigation was proceeding in the trial court, McGuire filed a writ of mandamus in this court that was denied. (McGuire v. Superior Court (A146076, petn. den. Sept. 2, 2015).)

The trial court ultimately denied McGuire’s petition for administrative mandamus. It concluded that substantial evidence supported the Board’s findings that McGuire violated her professional duties to CDSS and the public. The trial court also rejected McGuire’s various challenges to the proceedings before the Board. The court also awarded costs to CDSS in the amount of $3,484.95 and to the Board in the amount of $1,808.75. McGuire appealed.

During the pendency of McGuire’s appeal, she filed another petition for writ of mandate in this court, which we denied. (McGuire v. Superior Court (A148952, petn. den. Aug. 10, 2016).) McGuire filed three motions in this court requesting that the record be augmented with 89 documents, and the court denied all of them.

II.
Discussion

A.Overview of Board Proceedings and McGuire’s Burden on Appeal.

“The [Board] is an agency of constitutional authority; hence, once the [Board] renders a decision, its determination regarding whether the facts justify discipline and, if so, what the appropriate penalty should be, will not be disturbed in a mandamus proceeding unless the [Board] patently abused its exercise of discretion by acting arbitrarily, capriciously, or beyond the bounds of reason.” (County of Siskiyou v. State Personnel Bd., 188 Cal.App.4th 1606, 1615.) Although there are limited exceptions under Code of Civil Procedure section 1094.5, “[t]he general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.)

“In reviewing a decision of the [Board], a court must view the record in the light most favorable to the [Board]’s decision and uphold its factual findings if supported by substantial evidence. [Citation.] ‘ “ ‘Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.’ [Citations.]” [Citation.]’ [Citation.] Thus, if reasonable minds may differ as to the propriety of the penalty, there is no abuse of discretion.” (County of Siskiyou v. State Personnel Bd., supra, 188 Cal.App.4th at p. 1615; see also California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584 [scope of review from judgment under Code Civ. Proc., § 1094.5 identical to that of trial court].)

In addition to McGuire’s specific duty to show that the Board erred, she has a general duty to follow the California Rules of Court and settled principles of appellate review. “In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal when it is not supported by accurate citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); [citations].) Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions [s]he wants us to adopt. [Citations]; Cal. Rules of Court, rule 8.204(a)(1)(B).)” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287.) Stated differently, McGuire has a duty to “make coherent legal arguments.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524.) Although McGuire appears in this court without counsel, that does not entitle her to special treatment. (Ibid.)

B.McGuire Fails to Demonstrate Error.

Faced with a high burden on appeal to show that the Board and the trial court erred, McGuire submitted a 59-page opening brief that is difficult to follow and that falls far short of demonstrating error. The administrative record in this case spans around 1,900 pages and the clerk’s transcript spans 762 pages, yet McGuire’s brief often lacks citations to the record to guide our review. And when McGuire does cite to the record, the citation is often to her own trial-court briefs, which of course are not evidence. Other times, she focuses on issues that are not relevant to this appeal, such as instances when the trial court disagreed with CDSS’s arguments in interim discovery motions. Compounding this lack of clarity is McGuire’s failure to provide proper headings to arguments, and the “lack of clarity and coherence continues with [her] failure to give proper due to the [Board]’s factual determinations.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)

For example, McGuire argues, without citation to the record, that she was “subjected twice to an avalanche of fabricated, complex, single incident allegations were [sic] Respondents’ [sic] solicited a gang of approximately a dozen State and city employees of uncorroborated hearsay non-credible testimony resulting in being largely barred from substantial employment due to Respondents’ wrongful dismissal where I was bias an [sic], prejudicially, denied my rights to due process in malicious prosecutorial hearings, I have been given no choice other than to proceed with an appeal of the Writ of Mandate SCV-252108 = A148408 of the unfair SPB hearings and filed a complaint with the SCSC, SCV-250405 due to being barred from substantial employment.” (Emphasis omitted.) Later, again without citation to the record, McGuire contends that she “disputes to the untrue, altered transcripts of the unfair hearings at CDSS and SPB involving SPB09-1168 [the 2009 Board case] and SPB10-5027 [the 2010 Board case] wrongful discharge of the fabricated, inaccurate, malicious prosecution, in bad faith retaliatory personnel actions [sic].” McGuire’s lengthy arguments largely lack citations to the record or legal authority and do not acknowledge the deference to which we review alleged error. We consider them forfeited.

We would do our best to address McGuire’s arguments if they were adequately articulated and supported, but they are not. When she provides citations to the record, she mostly quotes the record out of context and then makes arguments that are irrelevant to reviewing the Board’s decision or process. An example is her reference to the Board hearing where she claims that her “rights were excessively violated as AFSCME [McGuire’s union] failed to adhere to their ‘Duty to Provide Fair Representation’ to [her], which is in violation of 3519.5 Unlawful actions by employees’ organizations, the Ralph C. Dills Act (Dills Act).” Later, McGuire claims that she has a cause of action for intentional or reckless infliction of emotional distress, which is not at issue in these writ proceedings.

Despite the deficiencies in McGuire’s opening brief, respondents CDSS and the Board both responded with well-written and well-reasoned briefs setting forth all the evidence supporting the Board’s decision, explaining why McGuire’s due process rights were not violated in Board proceedings, and explaining that the trial court did not err in its handling of the administrative record. Rather than respond in her reply brief to the issues respondents raise, McGuire submitted a 75-reply brief that mostly repeats the deficiencies in her opening brief. She has wholly failed to demonstrate error.

III.
Disposition

The judgment is affirmed. Respondents shall recover their costs on appeal.

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Humes, P.J.

We concur:

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Margulies, J.

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Dondero, J.

McGuire v. California State Personnel Board A148408