Filed 6/3/20 McElroy v. Franchise Tax Bd. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

—-

KIM MCELROY,

Plaintiff and Appellant,

v.

FRANCHISE TAX BOARD,

Defendant and Respondent.

C087710

(Super. Ct. No. 34-2017-0022098-CU-OE-GDS)

Appellant Kim McElroy appeals the trial court’s judgment sustaining the Franchise Tax Board’s (FTB) demurrer to her civil complaint for damages without leave to amend. She summarily complains the lower court erred in dismissing her case for failure to exhaust remedies. For the reasons explained herein, we will affirm the judgment.

BACKGROUND

McElroy’s January 18, 2018 first amended complaint for damages alleged causes of action for: (1) discrimination (Lab. Code, § 1102.5, subd. (c)); (2) retaliation (Lab. Code, § 12940, subd. (h)); (3) fraud; (4) negligent misrepresentation of fact; (5) negligent retention; and (6) race discrimination. McElroy had been employed by FTB from 2000 to 2015 without any “adverse actions” and with “an impeccable reputation and work ethic.” She began her position as a senior compliance representative with FTB on or about May 1, 2015, and excelled at her position, despite her limited prior experience with limited liability companies. McElroy’s supervisor Sharon Burney targeted her in a “ ‘witch hunt’ ” because: (1) McElroy’s “knowledge and success in the FTB was a threat to Ms. Burney’s future success”; (2) Burney disliked McElroy’s involvement with the “California Professional Public Employees Association” (the Union); and (3) Burney discriminated against McElroy because of her association with the Union’s president, who is Persian.

Soon after starting her position as a senior compliance officer, McElroy complained of Burney’s unrealistic demands, expectations, and the lack of mentoring. Burney’s behavior resulted in McElroy’s unprecedented failure to successfully complete the probationary period for this position and ultimate demotion, which occurred in October 2015.

On or about October 20, 2016, McElroy filed a complaint with the Department of Fair Employment and Housing and obtained a right to sue letter. McElroy filed government tort claims on or about October 18, 2017, and January 8, 2018. She initiated the instant suit on October 20, 2017.

FTB’s Demurrer

On January 30, 2018, FTB demurred to McElroy’s first amended complaint, arguing: (1) McElroy’s first, third, fourth, and fifth causes of action were barred for noncompliance with the Government Claims Act; (2) McElroy’s third, fourth, and fifth causes of action were “barred by immunities under Government Code sections 815, 818.8, 821.6 and Civil Code section 47[, subdivision] (b)”; (3) McElroy’s first, second, and sixth causes of action were “precluded by the State Personnel Board’s determinations that her rejection from probation was supported by substantial evidence and was not improperly motivated”; (4) McElroy’s second cause of action failed to allege protected conduct; and (5) McElroy’s sixth cause of action was precluded because she “did not exhaust administrative remedies for a claim based on race and by determinations by the [State Personnel Board] that her rejection from probation was not improperly motivated.”

McElroy opposed FTB’s demurrer. She argued her allegations were adequately pled given the liberal construction rule and rules on demurrer, “[FTB’s] alleged ‘failed to timely file claim’, does not include mandatory exhaustion on Administrative Remedies prior to filing a claim, which will be cleared up through discovery,” and any defects could be cured through amendment of the complaint. McElroy failed to attach a proposed amended complaint or otherwise explain how she would amend the first amended complaint to cure the alleged deficiencies.

FTB’s reply brief in support of its demurrer argued McElroy had failed to substantively oppose FTB’s demurrer on the merits and that no further attempts to amend the complaint should be granted because the complaint and facts judicially noticeable demonstrated any amendments would be futile.

The Ruling on Demurrer

On May 16, 2018, the superior court issued its order sustaining FTB’s demurrer without leave to amend, which incorporated its tentative ruling. The court granted FTB’s request for judicial notice, but clarified it was not taking judicial notice of the truth of any statements in letters. The ruling stated: “The instant lawsuit arises out of the Plaintiff, Kim McElroy’s October 2015 rejection during probationary employment as a Senior Compliance Representative, and return to her prior position as a Compliance Representative for the [FTB]. In November 2015, [McElroy] appealed the FTB’s rejection of her probationary employment to the State Personnel Board (SPB) arguing her rejection during probation was done in retaliation for her union activities, was fraudulent and in bad faith. After an evidentiary hearing, on April 19, 2016, the SPB issued findings, concluding there was substantial evidence to support the reasons given for [McElroy’s] rejection and it was not made in fraud or bad faith because there was no evidence of an improper motive. [McElroy] did not seek judicial review of the SPB’s decision.”

The ruling then summarized: “[FTB] now demurs to the [first amended complaint] contending [McElroy’s] Government claims were untimely, that there are no facts alleged indicating any conduct occurring within the statute of limitations, the FTB is absolutely immune from suit for the claims based on the alleged misrepresentations of its employees, and [McElroy] failed to exhaust judicial and administrative remedies precluding the statutory claims under Labor Code section 1102.5 and the Fair Employment and Housing Act.”

Thereafter, the court found the January 4, 2018 government claim arose from conduct over six months old because the injury arose from McElroy’s demotion. The court went on to sustain the demurrer to all of McElroy’s causes of action without leave to amend. The court determined the first cause of action was precluded for failure to file a timely government tort claim (Gov. Code, §§ 911.2, 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240 [government claim is a condition precedent to an action for damages against a public entity]) and because it was precluded by State Personnel Board findings related to her demotion, that must be given preclusive effect (see State Board of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 974 [agency’s adverse unchallenged findings are binding in later civil action]).

The second cause of action was likewise prohibited by the preclusive effect of McElroy’s failure to appeal the State Personnel Board findings as previously explained, as well as because McElroy had not alleged protected conduct under the Fair Employment and Housing Act. (See EEOC v. Crown Zellerbach Corp. (9th Cir. 1983) 720 F.2d 1008, 1013 [use of generic terms insufficient to allege protected conduct].) The demurrer as to McElroy’s third and fourth causes of action was sustained for failure to timely file a government tort claim and because FTB was immune for liability arising from Burney’s conduct. (Gov. Code, §§ 818.8, 821.6; Civ. Code, § 47.)

McElroy’s fifth cause of action was prohibited because there was no common law tort liability against FTB for negligent retention. (Gov. Code, § 815; see, e.g., Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 [tort liability against public entities must be based in statute and not common law].) Finally, McElroy’s sixth cause of action was prohibited by her failure to exhaust her administrative remedies because her Department of Fair Employment and Housing complaint did not include a claim of racial discrimination and would also be precluded by the State Personnel Board’s findings that her demotion had not been “motivated by improper reasons.”

Thereafter, on May 31, 2018, the court entered judgment dismissing McElroy’s action with prejudice. McElroy timely appealed.

STANDARD OF REVIEW

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.]” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)

DISCUSSION

At the outset, we observe that McElroy is not entitled to special treatment by this court even though she is representing herself without the assistance of an attorney. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Rather, we are required to hold her to the same standards as a practicing attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) While the implications of this rule may be harsh, it is not intended to penalize self-represented litigants. Instead, it is necessary to maintain the stability and smooth operation of the courts.

McElroy summarily argues that the trial court’s dismissal of her action for failure to exhaust administrative remedies was in error because she exhausted all remedies she knew of and her attorney failed to inform her of any need to exhaust judicial remedies. However, McElroy has failed to comply with rules of appellate procedure mandating that she support these contentions with both meaningful argument and citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); see, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 408.) McElroy’s mere mention of the trial court’s power under Code of Civil Procedure section 473 to “vacate any ‘default judgment or dismissal’ against a party resulting from attorney mistake, inadvertence, surprise or neglect” falls far short of establishing any entitlement to this relief, which does not appear to have been requested in the lower court.

As recognized by the Supreme Court in Denham v. Superior Court (1970) 2 Cal.3d 557, “it is settled that: ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Id. at p. 564; see also Cal. Const., art. VI, § 13 [forbidding reversal of judgment absent a showing of error that “has resulted in a miscarriage of justice”].) Thus, McElroy must affirmatively demonstrate error through “meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C., supra, 138 Cal.App.4th at p. 408.) “We are not required to examine undeveloped claims or to supply arguments for the litigants. [Citations.]” (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728.) Based on these guiding principles of law, McElroy’s summary claim of error necessarily fails. (Id. at pp. 728-729; In re S.C., at p. 408; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [summary arguments are forfeited and may be passed over without consideration].)

DISPOSITION

The judgment is affirmed. FTB shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

MURRAY, J.

/s/

KRAUSE, J.