Filed 12/17/19 Empasis v. County of Monterey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JENNIFER EMPASIS,

Plaintiff and Appellant,

v.

COUNTY OF MONTEREY et al.,

Defendants and Respondents.

H046003

(Monterey County

Super. Ct. No. 16CV002944)

This dispute arises out of the October 2015 termination of plaintiff and appellant Jennifer Empasis (plaintiff) by defendant and respondent County of Monterey (County). Plaintiff had been employed in the public guardian’s office of the County Health Department (County Health) since October 2007. After plaintiff’s termination, she filed suit against the County and Ray Bullick (Bullick) alleging a claim under 42 United States Code section 1983 (section 1983) for violation of her due process rights during the employee discipline process leading up to her termination. (Hereafter County and Bullick are sometimes collectively referred to as defendants.) After a three-day court trial in April 2018, judgment was entered in favor of defendants.

Plaintiff on appeal asserts that the trial court erred. She contends that defendants deprived her of her due process rights by failing to comply with the requirements of Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly) that she be provided adequate notice of the allegations of misconduct that were the bases for the proposed disciplinary action (employment termination). More specifically, she contends that defendants, in giving her written notice of the proposed discipline, improperly redacted investigative materials from the notice that prevented her from adequately responding to the charges. Plaintiff asserts that she suffered financial harm as a result of defendants’ conduct that constituted a violation of section 1983.

We conclude that the trial court did not err, and we will therefore affirm the judgment.

I. PLAINTIFF’S NONCOMPLIANT APPELLATE BRIEFS

We first note plaintiff’s material noncompliance with rules of appellate procedure which impacts our consideration of the merits of this appeal. This noncompliance includes plaintiff’s failure in her opening brief to (1) provide a summary of the procedural history of this case (2) provide an adequate statement of significant facts, and (3) include proper citations to the record.

A. No Statement of Procedural History; Inadequate Summary of Facts

The opening brief of plaintiff is not in compliance with the California Rules of Court. The brief does not include a requisite summary of the relevant procedural history of the case, including a plain statement of “the nature of the action, the relief sought in the trial court, and the judgment or order appealed from,” all as required by rule 8.204(a)(2)(A) of the California Rules of Court. Plaintiff’s one-paragraph “statement of the case” (capitalization and emphasis omitted) generally describes her complaint, the trial, and judgment; it, however, contains no citations to the record. (See rule 8.204(a)(1)(C).) Significantly, although plaintiff makes three general references to the judgment in her opening brief, she provides no detail concerning the substance of that judgment. Nor does plaintiff mention in her brief the trial court’s announcement of its conclusions at the end of the trial consistent with the formal judgment later entered. This noncompliance with the California Rules of Court by failing to provide an adequate procedural background of the case impairs this court’s ability to consider this appeal. (See William Jefferson & Co., Inc. v. Orange County Assessment Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 6, fn. 2 [finding “opening brief ‘seriously defective’ because it fails to provide either a statement of facts or a summary of the relevant procedural history”].)

In addition, an appellant is required in its opening brief to “[p]rovide a summary of the significant facts limited to matters in the record.” (Rule 8.204(a)(2)(C).) Plaintiff provides a statement of facts, but it is one that is entirely inadequate. Plaintiff’s opening brief includes a two-page statement of facts, discussing what transpired procedurally before suit was filed. But nowhere in the opening brief does plaintiff present the facts relevant to this appeal by referring to the testimonial evidence presented at trial. Likewise, no such presentation of facts is made in plaintiff’s reply brief. In fact, the statement of facts section of her opening brief includes no citations to the reporter’s transcript. This does not satisfy rule 8.204(a)(2)(C)’s requirement that appellant provide this court with “a summary of the significant facts limited to matters in the record.” (Italics added; see also Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 [summary of facts in opening brief noncompliant because “recitation was not in summary style, was overly lengthy, and included irrelevant information and argument”].)

B. Failure to Include Proper Record Citations

As noted above, plaintiff’s “statement of the case” (capitalization and emphasis omitted) in her opening brief contains no citations to the record. Further, although the portion of her opening brief captioned “statement of facts” (capitalization and emphasis omitted) contains citations to the clerk’s transcript, it contains no citations to the reporter’s transcript to any of the testimony presented by the eight witnesses at trial. Her reply brief similarly contains no discussion of the facts or testimony, and it contains no citations to the reporter’s transcript.

Plaintiff’s failure to include citations to the record in her appellate briefs constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 [factual statements in briefs “not supported by references to the record may be disregarded” by the reviewing court].)

II. PROCEDURAL BACKGROUND

Plaintiff filed a complaint for damages, declaratory, and injunctive relief against defendants on September 22, 2016, under section 1983. Plaintiff alleged that she was employed by the County from December 1997 until October 2, 2015. Plaintiff alleged that Bullick was at all relevant times a County employee, was in charge of the County Health Department, and was “the Firing Authority for Plaintiff.” Plaintiff alleged that she was a civil service employee working as a deputy public guardian in the County’s Public Guardian’s Office; she had “vested due process rights” and “a vested property and liberty interest in her continuing employment.”

In her complaint, plaintiff alleged further that the County had commenced an investigation in spring 2015, and she was placed on paid administrative leave on or about April 7, 2015, where she remained until her termination on October 2, 2015. Plaintiff was provided by the County with a notice of proposed discipline, signed by Bullick, on July 31, 2015. She alleged further that, despite her written request, the County refused to provide her “with the evidence relied upon by the firing authority in determining whether to discipline her for the alleged violations in the Notice of Proposed Discipline.” Plaintiff alleged that the County’s failure to provide such evidence “was done as a standard operating practice or procedure of both . . . [the] County . . . and . . . Bullick.” She alleged that the failure to provide this evidence denied and abridged her rights under the Fifth and Fourteenth Amendments of the United States Constitution and interfered with her ability to defend herself or respond to the charges levied by the County, resulting in ultimately in the loss of her employment. After a Skelly hearing in August 2015, plaintiff was terminated on October 2, 2015, thereby losing her income and benefits arising from such employment.

Plaintiff alleged in a single cause of action under section 1983, captioned “Violation of Due Process/Monell Violation” (emphasis and underscoring omitted), that the actions of the County and Bullick violated her due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. She sought an award of damages, a mandatory injunction reinstating her to her prior position, and a declaration that defendants’ policy and practice of withholding evidence relied upon by the firing authority when determining whether to discipline employees violated section 1983 and California law.

The case proceeded to a three-day court trial in April 2018. The court announced its decision from the bench, finding in favor of defendants. On May 4, 2018, the court filed the judgment in favor of defendants. The court specifically found that (1) plaintiff had failed to meet her burden of proving that any alleged constitutional deprivation was the result of an official policy or custom of the County, (2) plaintiff had failed to meet her burden of proving that any alleged wrongful act by defendants was a substantial factor in causing her harm, and (3) plaintiff’s claim against Bullick in his personal capacity for damages under section 1983 was barred by statutory immunities.

Plaintiff filed a timely notice of appeal from the judgment.

III. DISCUSSION

A. Applicable Law

1. Actions Under 42 U.S. § 1983

Section 1983 states: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . .” The “primary purposes [of an action brought under section 1983] are compensation and deterrence ‘for violations of federal rights committed by persons acting under color of state law.’ [Citations.]” (Pitts v. County of Kern (1998) 17 Cal.4th 340, 348 (Pitts).) Actions brought under section 1983 may be filed in federal or state court. (Pitts, supra, at p. 348.)

In analyzing a claim under section 1983 against a governmental entity, the court considers “two interrelated issues, namely, ‘(1) whether plaintiff’s harm was caused by a [federal] constitutional violation, and (2) if so, whether the [entity] is responsible for that violation.’ [Citation.]” (Manta Management Corp. v. City of San Bernardino (2008) 43 Cal.4th 400, 407 (Manta Management); see also CACI No. 3000 [elements plaintiff must prove to establish § 1983 claim are that defendant committed the wrongful act either actually or purportedly in the performance of his or her official duties, defendant’s conduct violated plaintiff’s rights, plaintiff was harmed, and defendant’s wrongful act was a substantial factor in causing the harm].) “ ‘[T]he fact that a § 1983 claimant has demonstrated a violation of [his or] her federally protected rights under color of state law does not necessarily mean that a named defendant will be found liable under § 1983. The liability of a § 1983 defendant depends upon (1) the rules governing culpability and responsibility, including principles of causation and the rule against respondeat superior liability; (2) whether individual or governmental liability is at issue; and (3) the available immunities from liability.’ [Citation.]” (Manta Management, supra, at p. 407.)

Plaintiff alleged a single cause of action under section 1983 for “Violation of Due Process/Monell Violation” (emphasis and underscoring omitted). We discuss briefly claims made pursuant to Monell, supra, 436 U.S. 658.

As a general rule, “[l]ocal governments have no liability under 42 United States Code section 1983 simply because their employees may have violated a plaintiff’s constitutional rights; the doctrine of respondeat superior does not apply. [Citation.]” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 (Choate).) But in Monell, supra, 436 U.S. 658, the United States Supreme Court recognized an exception to this principle, holding that local governmental entities—which include counties (McMillian v. Monroe County (1997) 520 U.S. 781, 783)—may “be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, . . . local governments . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” (Monell, supra, at pp. 690-691.)

Thus, under the exception recognized in Monell, supra, 436 U.S. 658, local entity liability under section 1983 may arise in one of two instances. “The [entity] may itself have directed the deprivation of federal rights through an express government policy.” (Choate, supra, 86 Cal.App.4th at p. 328.) “Alternatively, the [entity] may have in place a custom or practice so widespread in usage as to constitute the functional equivalent of an express policy.” (Ibid.)

2. Due Process Under Skelly

The United States Supreme Court has held that a tenured public employee is “entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing.” (Gilbert v. Homar (1997) 520 U.S. 924, 929.) In Skelly, supra, 15 Cal.3d 194 at page 206, the California Supreme Court held that a civil service employee whose status is that of a “ ‘permanent employee’ ” has a property interest in his or her continued employment protected by due process. Accordingly, before a decision to terminate such employment becomes effective, the employee is entitled to certain preremoval safeguards, including “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Id. at p. 215.)

B. Standard of Review

The parties offer divergent views on the appropriate standard of review governing this appeal.

Plaintiff contends that this court should independently review the judgment herein. Citing Ornelas v. United States (1996) 517 U.S. 690 (Ornelas), and Thompson v. Keohane (1995) 516 U.S. 99 (Thompson), she argues that because there are mixed questions of fact and law going “to the heart of a federal constitutional right,” independent review of such mixed questions is proper. Plaintiff asserts that in this case, there “is a dispute over a Fifth/Fourteenth Amendment right and as such, [this] Court should apply independent or de novo review.”

We disagree with plaintiff’s contention and conclude that Ornelas and Thompson are inapposite. The United States Supreme Court’s discussion of appellate review in the Fourth Amendment case of Ornelas was grounded upon whether an appellate court should defer to the trial court’s determinations of reasonable suspicion and probable cause based upon the historical facts of the case; it concluded that independent review was the appropriate standard. (Ornelas, supra, 517 U.S. at pp. 696-699.) The court in Thompson was concerned with the standard of review of a trial court’s determination of whether a suspect who confessed to a crime was “ ‘in custody’ ” for purposes of the police being required to give the suspect warnings under Miranda v. Arizona (1966) 384 U.S. 436 prior to his interrogation. (Thompson, supra, 516 U.S. at p. 102.) The high court concluded that the matter was a mixed question of fact and law that warranted independent review. (Id. at pp. 112-113.) Because, as discussed below, the primary issues at trial—and which were the grounds upon which the court found in favor of defendants—were whether plaintiff had satisfied the required elements of a section 1983 claim based upon the evidence presented and not whether defendants had deprived plaintiff of her due process rights, independent review under Ornelas and Thompson is not appropriate.

Defendants argue that our review of the trial court’s judgment here is governed by the abuse of discretion standard. They assert, citing Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 774 (Almanor Lakeside) that “[a]n appellate court reviews a trial court’s determination of the prevailing party for abuse of discretion.” We also disagree with defendants’ position.

Almanor Lakeside, supra, 246 Cal.App.4th 761, does not support defendants’ position concerning the applicable standard of review here. That case did not involve a section 1983 action that proceeded to trial and judgment. Rather, Almanor Lakeside concerned a dispute regarding the claimed wrongful assessment of fines and fees by a homeowner’s association for alleged rule violations. (Id. at p. 765.) The trial court rejected many of the fines claimed by the homeowner’s association, and it also rejected the claims asserted by the owners in their cross-complaint. (Ibid.) The owners on appeal challenged, inter alia, the trial court’s determination that the homeowner’s association was the prevailing party as the basis for the court’s award of attorney fees and costs. (Id. at pp. 765, 773-776.) In that context, a panel of this court applied the abuse of discretion standard of review. (Id. at p. 774.)

The circumstances in Almanor Lakeside under which it was held that the abuse of discretion standard of review applied are vastly different from those presented here. Moreover, to the extent that defendants, through their argument, suggest that whenever a trial court determines that a particular party prevails in an action, the appellate court reviews the underlying judgment for abuse of discretion, they are in error. Such a proposition, if credited, would render the abuse of discretion standard generally applicable to the review of civil judgments without regard to the issue being considered on appeal.

In challenging the judgment below, plaintiff—while not plainly articulating the point—asserts that there was insufficient evidence to support the underlying findings upon which the judgment was based. Those findings, in turn, as reflected in the judgment, were that (1) plaintiff had failed to meet her burden of proving that any alleged constitutional deprivation was the result of an official policy or custom of the County, (2) plaintiff had failed to meet her burden of proving that any alleged wrongful act by respondents was a substantial factor in causing her harm, and (3) plaintiff’s claim for damages under section 1983 against Bullick in his personal capacity was barred by statutory immunities. The first two of these findings are factual findings made by the trial court after hearing the evidence presented at trial. Factual issues resolved by the trial court are reviewed on appeal “according to the substantial evidence rule. If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed. [Citation.]” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; see also Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188 [challenge that there was insufficient evidence to support jury verdict reviewed under substantial evidence standard].) We therefore conclude under the circumstances presented here that the substantial evidence standard of review applies. (See King v. State of California (2015) 242 Cal.App.4th 265, 278-280 [substantial evidence standard applied in section 1983 action where defendant contended there was insufficient evidence supporting jury finding that plaintiff was unreasonably detained].)

“ ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark).) “In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]” (Estate of Young (2008) 160 Cal.App.4th 62, 76.) We give deference to the trial court’s factual findings “because those courts generally are in a better position to evaluate and weigh the evidence. [Citation.]” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 385.)

An appellant asserting a substantial evidence challenge to a judgment has the obligation to present a fair description of the underlying evidence. (Foreman & Clark, supra, 3 Cal.3d at p. 881 [appellants must “ ‘set forth in their brief all the material evidence on the point and not merely their own evidence’ ”].) “ ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.] Where a party presents only facts and inferences favorable to his or her position, ‘the contention that the findings are not supported by substantial evidence may be deemed waived.’ [Citation.]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, original italics (Schmidlin).) And—as a point relevant here because the case involves a trial presented in a three-volume reporter’s transcript—the appellant’s burden to provide a fair summary of the evidence “grows with the complexity of the record. [Citation.]” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.)

C. No Error in the Judgment

1. Background Facts

Notwithstanding plaintiff’s failure in her appellate briefs to present an adequate statement of facts with citations to the trial record, we will endeavor to provide a brief summary of this matter to provide factual context to our discussion that follows.

Plaintiff was employed by the County since December 1997, and from October 2007 to October 2015, she worked for County Health; her last position with County Health was Deputy Public Administrator/Conservator/Guardian II. She was “responsible [for] perform[ing] case administration, estate management, and technical paralegal duties involving conservatorship and/or decedent estates.” She was responsible for “conducting investigations; consulting with medical professionals, attorneys, [conservatees’] families, and others involved in the care of the conservatee; ensuring adequate care of the conservatee; safeguarding conservatees’ personal and real property; preparing comprehensive reports for the Superior Court; and preparing case documentation, including accurate financial accountings.”

On April 8, 2015, plaintiff was notified in writing by Bullick, the director of County Health, that the County was placing plaintiff on involuntary leave with pay, pending the completion of an outside investigation. Plaintiff met with Bullick and Girard-Berry on April 8, 2015, at which time plaintiff was given the Notice of Involuntary Leave and was told that she was being placed on paid administrative leave. The completed report of the outside investigator was sent to County Counsel, who forwarded a copy to Cynthia Girard-Berry, County Health’s human resources manager.

Thereafter, on July 31, 2015, Bullick signed a nine-page letter to plaintiff, which had ten attachments, referenced as “Notice of Proposed Discipline” (emphasis omitted; hereafter sometimes referred to as the notice). Girard-Berry, in conjunction with County Counsel, oversaw the drafting of the notice. Supporting documents that were attached to the notice were redacted by employees of County Health’s human resources department in conjunction with discussions with County Counsel. Redactions were principally made to remove personal identifying information of employees for privacy and confidentiality reasons.

After the notice of proposed discipline was finalized, it (together with supporting attachments in redacted form), was presented to Bullick for signature. Although the report of the outside investigator was attached, Bullick did not review that report (either in redacted or unredacted form) when he signed the notice. The notice, with the redacted investigation report attached, was hand-delivered to plaintiff at her home on July 31, 2015, by County employee Jonathan Hill.

As recited in the notice, the investigation into plaintiff’s job performance stemmed from (1) a report by the Monterey County Superior Court advising of inaccuracies in an accounting performed and presented to the court concerning a public guardian client; and (2) complaints that plaintiff had “bullied and retaliated against one or more of [her] coworkers, and berated a coworker.” The County concluded in the notice that plaintiff had engaged in severe misconduct that warranted her termination. That misconduct included “falsification of records; manipulation of data; dishonesty; unprofessional conduct in court, including failure to appear in court, and leaving before [her] cases were completed; failure to act according to prior training; failure to abide by the California State Association [of Public Administrators, Public Guardians, and Public Conservatees] Code of Ethics; violations of Department expectations, and Department and County policies; rude and aggressive behavior towards [her] coworkers; and use of profanity in the workplace.”

Included among the misconduct found from the investigation as addressed in the notice were (1) matters concerning the submission of an accounting to the superior court, (2) matters concerning a declaration submitted to the superior court in February 2015 as conservator of an estate, and (3) her submission to the County of internal “client last visit reports.” As to the first matter, plaintiff submitted an accounting to the superior court for a particular conservatorship in which “many of the case notes, submitted to support a request for fees from 2010 and 2011[, were] exactly duplicative of case notes from prior years. Specifically, task notes [plaintiff] billed to the ‘third accounting’ [were] exactly duplicative of task notes billed to the ‘fourth and final accounting.’ ” Plaintiff admitted that the duplicative entries were not correct. It was stated further in the notice “that this initial data duplication was made much worse by [plaintiff], who, on November 12, 2014, revised the entries in question, without regard to the accuracy of the accounting.”

As to the second item of alleged misconduct, plaintiff submitted a declaration to the superior court in connection with a different conservatorship, in which she declared that she had visited the conservatee on two occasions in 2013 and twice in 2014, and that she had documented those visits on Targeted Case Management (TCM) reports submitted to the State of California. County records did not confirm that plaintiff had logged any client visits for the conservatee on any of the four occasions, and no TCM reports were submitted on any occasion.

As to the third item of alleged misconduct—the submission of internal reports—there was a recital in the notice that of the 46 client last visit reports submitted by plaintiff, more than one-half contained no case notes that could be used to confirm the visits. It was stated further in the notice that plaintiff prepared last visit reports—none of which containing corroborative case notes—for nine clients, with the visits all occurring on November 18, 2014, and with locations designated as Salinas, Oakland, Monterey, and Greenfield. It was stated in the notice that “it would have been almost impossible to conduct so many visits in so many different locations in one day,” and plaintiff “admitted that visiting all of those locations in the same day would have been impossible.”

The notice was presented to plaintiff on July 31, 2015. The attached investigation report contained redactions. The notice itself, however, was unredacted and provided a significant level of detail in support of the charges of misconduct.

On August 9, 2015, plaintiff, through her counsel, made a written request to the County that she be provided unredacted copies of the documents included with the notice. The County responded that “[a]ll documentation relied upon by the hiring authority was provided to [plaintiff] with the Skelly package, subject to redactions permitted under Service Employees International Union, Local 1021 v. City of Redding (2011) 2011 Cal. PERB LEXIS 40; PERB Decision No. 2190-M.” On August 11, 2015, plaintiff’s counsel renewed the request for copies of the unredacted materials. Plaintiff did not receive an unredacted copy of the investigation report before the Skelly hearing.

On August 12, 2015, plaintiff and her counsel attended a Skelly hearing over which Chief Probation Officer Marcia Parsons presided. Bullick testified that he was not responsible for selecting Chief Parsons as the Skelly hearing officer. He testified further that it is the Skelly hearing officer who is responsible for determining whether the discipline recommended in the notice of proposed discipline is appropriate. In this instance, Bullick had no communication with Chief Parsons and had no input regarding her decision.

Chief Parsons testified that a Skelly hearing is one in which the employee who is the subject of proposed discipline, after being provided “with the charges and the reasons for the discipline,” has the opportunity to respond either orally or in writing to the proposed discipline. Chief Parsons testified that there is no right to confront witnesses at the Skelly hearing. The Skelly hearing officer’s responsibility is to meet with the employee and give him or her “the opportunity to refute or mitigate the allegations.” Chief Parsons testified further that the Skelly hearing officer must then determine whether there are reasonable grounds to conclude that the employee engaged in the misconduct as alleged, and, if so, whether the level of discipline as proposed is appropriate.

Chief Parsons, in considering the matter, reviewed the notice of proposed discipline along with the redacted investigation report and other materials. The attachments to the notice that she was provided contained the same redactions as those provided to plaintiff. At no time during the process of her acting as the Skelly hearing officer did Chief Parsons request unredacted copies of the investigation report or other documents attached to the notice. Chief Parsons did not view the investigative report in unredacted form until February 2018, more than two years after the Skelly hearing.

On September 30, 2015, Chief Parsons sent a nine-page letter to plaintiff referenced as “Notice of Discipline” (emphasis omitted). In that letter, Chief Parsons found that, after giving due consideration to plaintiff’s response to the notice of proposed discipline at the Skelly hearing, plaintiff’s termination of employment, effective October 2, 2015, was appropriate. Chief Parsons recited the specific instances of misconduct as previously stated in the notice of proposed discipline in support of her decision. Chief Parsons stated that the duplication of entries might have been attributable to “an inadvertent error,” and she did not consider this “initial duplication a factor in determining the level of discipline warranted.” Chief Parsons specifically found that plaintiff’s “intentional falsification of records, by itself, warrant[ed] termination,” and that plaintiff’s “overall misconduct [was] unacceptable and [would] not be tolerated.” The notice of discipline concluded that “[plaintiff’s] failure to exercise sound judgment and to exercise [her] duties in an appropriate, honest, respectful, and professional manner constitute[d] a significant breach of the employment relationship. [Plaintiff’s] behavior . . . ha[d] created an unwarranted risk for potential legal liability to the Department and the County.”

Chief Parsons advised plaintiff in the notice of discipline that she had the right to appeal the disciplinary action and referenced the procedure required for perfecting such appeal. Such an appeal needed to be filed within 10 working days of October 2, 2015, the effective date of the disciplinary action. Chief Parsons testified that if an employee exercises his or her appeal rights, the matter proceeds to a full evidentiary hearing before an administrative law judge in which the employee has the right to confront witnesses. Investigative materials that may have been partially redacted at the Skelly hearing would be made available to the employee in unredacted form in connection with such an appeal.

Plaintiff testified that she was aware of the right to appeal the notice of discipline under which her employment was terminated, effective October 2, 2015. She chose not to appeal that decision. Instead, nearly a year later, on September 22, 2016, plaintiff filed her superior court complaint alleging a claim under section 1983. We now address her challenge to the May 4, 2018 judgment entered against her in that action.

2. Substantial Evidence Supported the Judgment

The trial court’s judgment was founded upon two principal factual findings. First, the court concluded that plaintiff had not established “that the alleged constitutional deprivation was caused by an official policy or custom of the [County].” Second, the trial court found that plaintiff had failed to prove that “[d]efendants’ purportedly wrongful act was a substantial factor in causing [p]laintiff’s harm.” We address these findings separately below.

a. No Official Policy or Custom

Plaintiff alleged in her complaint that the County’s failure to provide evidence relied on to determine whether to discipline her “was done as a standard operating practice or procedure of both . . . [the] County . . . and . . . Bullick.” Plaintiff sought in her complaint, inter alia, declaratory relief finding that defendants’ “policy and practice of withholding and refusing to provide the evidence relied upon by the firing authority in deciding whether to discipline employees and Plaintiff is violative of 42 USC § 1983, and California law.” The trial court found that plaintiff had failed to prove the existence of any policy or custom as alleged in her complaint.

As noted, ante, appellants who raise a sufficiency-of-the-evidence challenge to a judgment must present a fair description of the underlying evidence by “ ‘set[ting] forth in their brief all the material evidence on the point and not merely their own evidence.’ ” (Foreman & Clark, supra, 3 Cal.3d at p. 881.) An appellant’s failure to present all material evidence on an issue for which it is claimed there was insufficient supporting evidence will result in the claim of error being deemed waived. (Schmidlin, supra, 157 Cal.App.4th at p. 738.)

Here, unlike in instances in which the argument is deemed waived because the appellant presented only the evidence that favored his or her position (see, e.g., Doe v. Roman Catholic Archbishop of Cashel & Emily (2009) 177 Cal.App.4th 209, 218), plaintiff has presented no evidence whatsoever on the question of whether there was an official policy or custom that caused the alleged constitutional deprivation. Plaintiff compounds the problem insofar as her only discussion of the issue at all is a one-sentence, unsupported statement in the conclusion section of her opening brief: “Contrary to the court’s ruling, [plaintiff] did show there was a Constitutional violation which was caused by an official policy or custom.” Arguments in appellate briefs raised in perfunctory fashion will be deemed by the appellate court to be abandoned. (Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018 (Nisei Farmers).) Plaintiff’s failure to recite the evidence on the question here results in its waiver (Schmidlin, supra, 157 Cal.App.4th at p. 738), and because her argument on the question is perfunctory in the extreme, we deem it abandoned (Nisei Farmers, supra, at p. 1018).

The deficiencies in plaintiff’s presentation here notwithstanding, the record demonstrates that there was substantial evidence supporting the trial court’s finding that plaintiff had failed to show a County policy or custom. (See Choate, supra, 86 Cal.App.4th at p. 328.) In fact, there was substantial, if not overwhelming, evidence that there was no such policy or custom.

There was testimony from four County employees to the effect that the County had no written policy or procedure and no practice of redacting a significant amount of supporting materials in presenting notices of proposed discipline to employees. County Health human resources manager Girard-Berry testified that in preparing notices of proposed discipline, her office worked with County Counsel to determine any redactions that would be made, and that the nature and extent of redactions were on a case-by-case basis. As Girard-Berry stated, any redactions “would depend upon the facts of the situation at hand. . . . If the recommendation [of County Counsel] is to redact, then we would typically follow that.” Girard-Berry testified that she was unaware of any written policy or procedure of the County governing redactions in notices of proposed discipline. Chief Parsons, Hill, and Carol Cuellar (an employee relations manager in the County Human Resources Department) also testified there was no County policy, practice, or procedure concerning such redactions and that redactions of materials for a Skelly hearing were done on a case-by-case basis. Further, plaintiff herself testified that she did not “have any proof” of the existence of a County policy of heavily redacting Skelly materials. And plaintiff’s own expert, Matthew Magner, testified that from his reading of the depositions, the County had no policies or procedures concerning redaction of Skelly materials.

In short, contrary to the conclusory statement in plaintiff’s opening brief, the evidence at trial did not show the existence of a County official policy or custom of redacting Skelly materials, which policy or custom was the basis for plaintiff’s claim of violation of constitutional rights. As the trial judge concluded in her remarks at the end of the trial: “The evidence is wholly lacking as to paragraph 14 [of the complaint] that the County of Monterey initiated, adopted and maintained a policy and practice of denying employees subject to workplace discipline the evidence relied upon by the hiring and firing authority. [¶] . . . [H]ere the question is . . . was there sufficient evidence of any initiated, adopted or policy [or] practice denying employees subject to workplace discipline, evidence relied upon by the hiring and firing authority. There was none. I can’t even say there was a little. There was just none.”

There was substantial evidence supporting the trial court’s finding that plaintiff had failed to show “that the alleged constitutional deprivation was caused by an official policy or custom of the [County].” Since this was a required element of plaintiff’s section 1983 claim, affirmance of the judgment on this basis alone is appropriate. We will nonetheless address the second finding of the court, namely, that plaintiff did not show that the alleged constitutional violation was a substantial factor in causing her harm.

b. Alleged Conduct Not a Substantial Factor Causing Harm

Plaintiff in her appellate briefs presents no evidence—let alone the requisite balanced presentation of all material evidence for a sufficiency-of-the-evidence challenge (Foreman & Clark, supra, 3 Cal.3d at p. 881)—supporting her claim that defendants’ alleged Skelly violations were a substantial factor causing her harm. She has thus waived the contention. (Schmidlin, supra, 157 Cal.App.4th at p. 738) Further, her only reference in her briefs in support of the argument consists of one sentence in the conclusion section of her opening brief: “Additionally, Defendants’/Respondents’ wrongful acts were a substantial factor in causing her harm.” We deem this argument asserted in perfunctory fashion abandoned. (Nisei Farmers, supra, 30 Cal.App.5th at p. 1018.)

Even were we to consider the merits of the point, the trial court’s finding was supported by substantial evidence. The grounds for proposed dismissal stated in the notice of proposed discipline—consisting of 12 separate bullet-points—were discussed in detail in the notice. Chief Parsons testified that the allegations in the notice—which included the attachments in redacted form identical to those provided to plaintiff—were adequately supported and that “the investigative report was thorough and objective.” Chief Parsons testified further that plaintiff had a full and fair opportunity at the Skelly hearing to address the charges, plaintiff “appeared to understand . . . the allegations,” and plaintiff addressed them at the hearing. Plaintiff herself testified that she had a complete understanding of the nature and extent of the charges presented in the notice of proposed discipline.

Chief Parsons testified that, both in preparation for the Skelly hearing and after its completion, she reviewed the notice of proposed discipline and supporting investigative report as redacted in reaching her decision that all charges should be sustained and that the proposed discipline of termination was appropriate. She described the one ground of falsification of records as having been “extremely egregious,” and was, by itself, sufficient to warrant termination. The trial court, after examining the investigation report as it concerned the allegation that there were inaccuracies in plaintiff’s accounting submitted to the superior court, concluded that there were no significant redactions related to that charge. Chief Parsons did not see an unredacted version of the investigation report until February 2018, more than two years after she signed the notice of discipline. Her review of the unredacted report “confirmed [her] decision.” She testified that her conclusions in the notice of discipline would have been no different had she reviewed the unredacted materials before signing that notice. This evidence negated plaintiff’s claim of a causal connection between defendants’ alleged wrongful conduct (i.e., improper redaction of materials supporting notice of proposed discipline in violation of Skelly) and the harm she sustained (job termination and concomitant loss of salary and benefits).

There was substantial evidence supporting the trial court’s finding that plaintiff had failed to prove that “[d]efendants’ purportedly wrongful act was a substantial factor in causing [p]laintiff’s harm.” (See Pavelic v. City of Los Angeles (9th Cir. 1994) 1994 U.S. LEXIS 14730, p. *4 [nonpub. opn.] [plaintiff asserting § 1983 claim failed to establish that defendant’s adverse action was causally related to his exercise of First Amendment rights by showing such exercise was “ ‘substantial factor’ motivating” defendant’s action].) Plaintiff’s failure to establish this essential element of her section 1983 claim provided an additional ground for the court’s finding in favor of defendants.

c. Other Matters

The trial court found in addition, as recited in the judgment, that plaintiff’s claim for damages under section 1983 against Bullick in his personal capacity was barred by statutory immunities. No liability for damages under section 1983 as to either County or Bullick was found by the trial court because plaintiff failed to show (1) “that the alleged constitutional deprivation was caused by an official policy or custom of the [County],” or (2) that “[d]efendants’ purportedly wrongful act was a substantial factor in causing [p]laintiff’s harm.” It is therefore unnecessary for this court to address the propriety of the court’s finding that Bullick was statutorily immune from suit. (See Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 655 (Hiser) [in general, appellate courts “decline to decide questions not necessary to the decision”].)

Further, the trial judge’s comments at the conclusion of the trial indicate that she found that the redactions made by the County to the investigation report provided to plaintiff with the notice of proposed discipline did not constitute a violation of her due process rights under Skelly. Because we uphold the trial court’s findings concerning plaintiff’s failure to establish two required elements of plaintiff’s section 1983 claim, we need not address the trial court’s conclusion that, under Skelly the County’s redactions of the investigation report did not violate plaintiff’s due process rights. (See Hiser, supra, 111 Cal.App.4th at p. 655.)

IV. DISPOSITION

The judgment of May 4, 2018, is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

PREMO, ACTING P.J.

MIHARA, J.

Empasis v. County of Monterey

H046003