Fyfe v. California Consortium of Addiction Programs etc. CA3

Filed 7/31/23 Fyfe v. California Consortium of Addiction Programs etc. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

ALASTAIR COLIN FYFE,

Plaintiff and Appellant, C095315

v. (Super. Ct. No. 34-2020- 80003515-CU-WM-GDS) CALIFORNIA CONSORTIUM OF ADDICTION PROGRAMS AND PROFESSIONALS,

Defendant and Respondent.

Individuals providing counseling services in certain alcohol and drug programs must be certified. (Cal. Code of Regs., tit. 9, §§ 13000, 13005, 13010 et seq.) The California Consortium of Addiction Programs and Professionals (Consortium) is approved to certify alcohol and drug counselors. It certified Alastair Colin Fyfe as an alcohol and drug counselor.

1

Consortium’s Ethics Committee and Credentialing Board subsequently determined that allegations against Fyfe had been corroborated and that a suspension was proper. Consortium’s Appeals Panel affirmed the findings and increased the suspension. The trial court denied Fyfe’s petition for writ of mandate. Fyfe now contends (1) he was denied due process and fair proceedings, and (2) the adverse findings are not supported by a factual record. We conclude Fyfe received adequate notice of the allegations, he had an opportunity to defend against them, and he has not established prejudice requiring reversal.1 We will affirm the trial court order denying Fyfe’s petition for writ of mandate.

1 Consortium moved to strike Fyfe’s appellate reply brief as untimely and because it raised new facts and arguments. We exercise our discretion to deny the motion, but we have not considered factual assertions or arguments raised for the first time in the reply brief. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

Fyfe’s motion to correct and augment the record is denied. Fyfe asked to augment the record to include his declaration in support of ex parte application for stay filed in the trial court and the trial court’s order denying the stay application. Fyfe argued the declaration should be included in the record because it is one of only two declarations by Fyfe in this matter and the minute order shows Fyfe’s stay application was denied. But Fyfe did not demonstrate how the declaration and order are relevant to the issues on appeal. Fyfe also asked to augment the record to include a 17-page document he claims was attached to a September 1 e-mail from Fyfe to Kimberly Elkins. Fyfe suggested the attachment was inadvertently omitted from the clerk’s transcript. He added that even if the document was not inadvertently omitted, we should exercise our discretion to admit it under Code of Civil Procedure section 909. He asserted that because the Appeals Panel considered the attachment it should be part of the administrative record. However, it has not been established that the 17-page document was attached to the September 1 e-mail to Kimberly Elkins and was considered by the Appeals Panel. And Code of Civil Procedure section 909 does not apply because we are not making independent factual determinations in this matter. Fyfe’s request for judicial notice is also denied. Fyfe asked this Court to take judicial notice of the docket in a criminal case against his client A.M. He argued the docket is relevant to the timeline for the attachment to the September 1 e-mail to Kimberly Elkins. But Fyfe did not explain which part of the 15- page docket is relevant to this matter.