Filed 11/15/19 McGuire v. State of California CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KELLY McGUIRE,

Plaintiff and Appellant,

v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

A154927

(Sonoma County

Super. Ct. No. SCV250405)

After respondent California Department of Social Services (CDSS) fired appellant Kelly McGuire in December 2010, McGuire challenged the termination before respondent California State Personnel Board (the Board). The board affirmed the dismissal, the trial court denied a petition for a writ of administrative mandamus, and this court affirmed. McGuire also filed a separate lawsuit that is the subject of this appeal. The trial court sustained demurrers to McGuire’s complaint on various grounds, including that it was barred by the doctrines of res judicata and collateral estoppel. Because McGuire fails to meet her appellate burden to establish error, we affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

We previously summarized the background of McGuire’s employment dispute in our unpublished opinion in McGuire v. Cal. State Personnel Bd. (Sept. 13, 2017, A148408) (McGuire I). In brief, McGuire was fired in December 2010 from her position with respondent CDSS for misconduct. She appealed her dismissal to the Board, and an administrative law judge (ALJ) ruled in CDSS’s favor after an evidentiary hearing. The Board adopted the ALJ’s decision at a meeting in March 2012. McGuire filed a petition for writ of administrative mandamus in the trial court (Code Civ. Proc., § 1094.5), which the trial court denied. This court affirmed. (McGuire I, supra, A148408.)

When McGuire first initiated Board proceedings, she was assisted by a union representative, and she secured legal representation. But McGuire said she no longer wanted the attorney to represent her, and she represented herself at the evidentiary hearing. Around the time that the conflict was arising over her legal representation, McGuire initiated these proceedings pro per by filing a complaint alleging wrongful termination and other causes of action arising from her employment with CDSS. McGuire ultimately named as defendants the State of California, CDSS, and the Board. She also listed 15 individuals as defendants, including Board ALJ’s, CDSS employees, and her former union representative. As amended, the complaint purported to allege causes of action for wrongful termination, breach of contract, breach of the implied covenant of good faith and fair dealing, assault and false imprisonment (against a coworker), negligent and intentional infliction of emotional distress because of threats (against a supervisor), false imprisonment (against an ALJ), retaliation with actual malice, and interfering with the public workforce.

CDSS and an individual defendant who had testified at McGuire’s Board hearing demurred to the complaint in October 2012 (the CDSS demurrer), and the Board and three ALJ’s separately demurred that same month (the Board demurrer). All but of one of the other individual defendants later joined the CDSS or Board demurrers. The trial court in November 2012 granted McGuire’s ex parte application to stay the hearing on the defendants’ motions until after the hearing on McGuire’s petition for a writ of administrative mandate (the subject of McGuire I, supra, A148408). The court later further stayed the action until after this court decided McGuire I.

After this court decided McGuire I and the Supreme Court denied review in December 2017 (S244980), the Board and CDSS both filed supplemental memorandums to support their demurrers. The defendants argued that McGuire’s complaint was barred by the doctrine of res judicata because the issue of McGuire’s termination had been fully and finally litigated in McGuire I.

The trial court sustained both demurrers without leave to amend. The court concluded that the action against CDSS, the Board, and the 14 individual defendants was barred by res judicata and collateral estoppel because McGuire had fully litigated her petition to overturn her termination. The court further concluded that McGuire’s claims against the three individual ALJ’s for actions taken in their judicial capacities were barred by judicial immunity. Finally, the court concluded that the Board was also immune from suit because McGuire’s claims against it were based on the immune acts of its employees. McGuire timely appealed from the judgment.

II.
DISCUSSION

Still proceeding without an attorney, McGuire filed an opening brief in this court that repeats many of the arguments she has raised over her many years of litigation with the parties: The administrative record was not properly prepared in her prior administrative writ proceedings, CDSS improperly terminated her in violation of various statutes, she received ineffective assistance of counsel from her union representative, and both the trial court and this court are biased against her. McGuire devotes most of her lengthy brief to complaining about how she was treated by her former employer. For example, she asserts she was “subjected to years of retaliatory egregiously hostile work environment for blowing-whistle regarding violations against health and safety of children in violation of CGC § 8547 et seq., Title 22 regulations, multiple assaults, threats, holding me prisoner for years in unfair, unwarranted, malicious judicial proceedings, den[y]ing me effective assistance of counsel, inexplicably been subjected to unreasonable aggressive judicial misconduct.” She asks this court to grant her various remedies, including “[r]etraining with fully funded scholarship of college and program of her choice.” But the sole subject of this appeal is whether the trial court erred in sustaining respondents’ demurrers without leave to amend. McGuire hints at this issue but wholly fails to present a cogent argument.

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] 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.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) But we need not address issues that appellant does not raise on appeal or legal arguments that are not made coherently. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 273-274 [it is appellant’s duty to make “cognizable argument on appeal” to avoid forfeiture]; Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9, fn. 2 [in appeal from sustaining of demurrer, court deemed abandoned causes of action not addressed in opening brief]; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524 [court addressed only the two “coherent legal issues” presented on appeal].) We are not required to search the record on our own seeking error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) “Although [McGuire] appear[s] in this court without counsel, that does not entitle [her] to special treatment.” (Stebley, at p. 524.)

We have scoured the more than 60 pages of the rambling, substantive portions of McGuire’s opening brief and have found only a single paragraph devoted to one of the three bases for the trial court’s ruling. This paragraph states, “Neither res judicata nor collateral estoppel apply as the matter has not been decided as Courts and Respondents have a conflict of interest in the matter as they are employees of State [sic] California Courts v. State of California[.] If a party is not given an adequate opportunity to fully litigate his/her/ claims, collateral estoppel will not bar a second action [citations]. A fair hearing is required for collateral estoppel to apply. [Citations.] ‘it is well established rule that only judgments which are free from direct attack are final and may not be litigated.[’]” (Bold omitted.) McGuire does not explain the holdings of the cases cited, nor does she explain why the cases have “any relevance to her claims on appeal, to the extent we can decipher them.” (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 949 [affirming judgment without discussing merits because appellate brief did not meet basic standards to establish why trial court erred in granted summary judgment].) McGuire’s argument falls far short of establishing error. We treat McGuire’s arguments as forfeited for failure to properly brief them. (Loranger v. Jones (2010) 184 Cal.App.4th 847, 858.)

III.
DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

McGuire v. State of California et al. A154927