Davis v. County of San Diego Air Pollution Control Dist. CA4/1 (2013) · DecisionDepot
Davis v. County of San Diego Air Pollution Control Dist. CA4/1
California Court of Appeal Apr 26, 2013 No. D061232Unpublished
Filed 4/26/13 Davis v. County of San Diego Air Pollution Control Dist. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EARNEST A. DAVIS, D061232
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00095336- CU-OE-CTL) COUNTY OF SAN DIEGO AIR POLLUTION CONTROL DISTRICT et al.,
Defendants and Respondents.
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 Employment and Housing Act
(FEHA). (Gov. Code, § 12900 et seq.; Code Civ. 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.
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
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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
ISSUE PRECLUSION RULES
"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 (Lucido); Castillo, supra,
92 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
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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.' " (Ibid.)
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 (Basurto), and Davis 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.
10
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. (Id. at p. 884.)
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
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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. (Sutphin v. Speik (1940) 15 Cal.2d
195, 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." (Ibid.)
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.
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IV
DUE PROCESS ARGUMENTS
Even if issue preclusion may properly be applied in Davis's case, we also consider
whether the public policy considerations enumerated in Lucido, supra, 51 Cal.3d at page 343,
should nevertheless permit his 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, supra, 92 Cal.App.4th at pp. 483-484.)
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.
13
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 Palo Alto (2007) 157 Cal.App.4th 728, 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.
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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 Johnson, supra, 24 Cal.4th at p. 76.) We affirm the summary judgment.
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DISPOSITION
Summary judgment affirmed. Defendants and respondents shall recover their costs on
appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
MCINTYRE, J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiff's FEHA employment discrimination claims were barred by the doctrine of issue preclusion because they arose from the same facts as two prior administrative adjudications that were resolved against the plaintiff and upheld in subsequent mandamus proceedings.
Issues
Whether the trial court correctly granted summary judgment based on the preclusive effect of prior administrative and judicial adjudications.
Whether the plaintiff's due process rights were violated during the litigation process.
Whether the plaintiff's claims against individual defendants were distinct enough to avoid the preclusive effect of prior proceedings.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”
“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.”
“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.”