Davis v. County of San Diego Air Pollution Control Dist. CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered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.

(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 summary judgment was

procedurally and 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 discrimination, regarding inadequate

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.

Unemployment Insurance Appeals Board (Nov. 14, 2012, D060471) [nonpub. opn.] (No.

D060471); 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

2
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

3
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.

4
 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.

5
 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

6
claims now being asserted, under case authority such as Johnson. 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

APPLICABLE STANDARDS

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. (Saelzler v. Advanced Group 400 (2001) 25 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. (Lopez v. University Partners (1997) 54 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

7
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." (Guz v. Bechtel

National, Inc. (2000) 24 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 (1995) 32 Cal.App.4th 786, 795;

Barton v. New United Motor Manufacturing, 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

8
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

9
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

11
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.

12
 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.

14
 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.

15
 DISPOSITION

Summary judgment affirmed. Defendants and respondents shall recover their costs on

appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

MCINTYRE, J.

16