Filed 12/20/19 Drevaleva v. Dept. of Industrial Relations CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

TATYANA E. DREVALEVA,

Plaintiff and Appellant,

v.

DEPARTMENT OF INDUSTRIAL RELATIONS,

Defendant and Respondent.

A156248

(Alameda County

Super. Ct. No. RG17881790)

This is plaintiff Tatyana Drevaleva’s fourth appeal in the same litigation. In this appeal, she challenges the trial court’s denial of her motion to stay the litigation pending the outcome of a similar lawsuit she filed in federal court and the trial court’s denial of her motion requesting the court to issue a writ of mandate requiring the Department of Industrial Relations (DIR) to transfer her case to the Department of General Services (DGS). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history from the underlying litigation are set forth fully in the unpublished opinion, Drevaleva v. Department of Industrial Relations (Dec. 20, 2019, 155165, 155187, 155899) [nonpub. opn.], and we adopt and incorporate the facts in that unpublished opinion by reference.

Briefly summarized, plaintiff sued the DIR, claiming that it made libelous statements and committed negligent acts during its investigation of the retaliation and wage claims she filed with the DIR against her employer, Alameda Health System (AHS). Plaintiff filed a similar lawsuit in federal court against the DIR and AHS; she later amended her complaint in the federal case to drop the DIR and name its individual employees after learning that the DIR had Eleventh Amendment immunity.

Plaintiff filed two motions relevant to this appeal: (1) a motion to stay the litigation pursuant to Code of Civil Procedure section 404.5 pending resolution of her federal lawsuit; and (2) a motion entitled, “Notice of Petition; Petition for a Writ of Mandate and a Declaratory Relief to Compel DIR Transfer my Case to the Department of General Services” (the writ motion). The trial court denied the former as unwarranted and the latter as procedurally and substantively deficient. Plaintiff moved for reconsideration of the denial of her motion to stay and set the hearing for October 2, 2018. On October 4, 2018, the court denied this motion for lack of jurisdiction and good cause.

Meanwhile, on August 17, 2018, the trial court granted in part the DIR’s anti-SLAPP motion (§ 425.16) and sustained a demurrer to the remainder of plaintiff’s complaint without leave to amend. In its demurrer ruling, the trial court dismissed the action in its entirety.

On August 21, 2018, plaintiff filed a notice of appeal from an order or judgment under section 904.1, subdivision (a)(3)–(13). On August 29, 2018, plaintiff filed another notice of appeal, indicating that she appealed from a judgment of dismissal after an order sustaining a demurrer and an order or judgment under section 904.1, subdivision (a)(3)–(13). Plaintiff then filed a third notice of appeal from October 2018 orders from the trial court denying her attorney’s fees and costs under section 425.16, subdivision (c)(1) and Government Code section 6259, former subdivision (d). This court consolidated those three appeals.

On January 16, 2019, plaintiff filed her last notice of appeal, this time purporting to appeal a judgment of dismissal under sections 581d, 583.250, 583.360, or 583.430.

DISCUSSION

As an initial matter, plaintiff appears to have forfeited her claims in this appeal by failing to raise them in her first appeal from the final judgment. A party is entitled to one appeal from a final judgment (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21), and all issues that an appellant seeks to raise should be set forth in the opening appellate brief (see Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451–452 [points not raised in an opening brief on appeal will not be considered].) Plaintiff concedes that the trial court’s August 17, 2018 order sustaining the DIR’s demurrer without leave to amend and dismissing the entire action was the equivalent of the final judgment. (See Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699; Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590, fn. 4.) She appealed from the final judgment on August 29, 2018 and filed an opening brief in that appeal on December 6, 2018 that does not discuss the issues in this appeal. Plaintiff should not get a chance to resurrect issues that she forfeited in her earlier appeal by filing a new notice of appeal from the same final judgment.

Nonetheless, even if plaintiff has not forfeited her claims in this appeal, neither has merit. We review the trial court’s order denying a motion to stay for abuse of discretion. (In re Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1131.) Plaintiff requested to stay the litigation under section 404.5 until her federal lawsuit resolved. In actions sharing a common question of fact or law pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council. (§ 404.) Under section 404.5, “Pending any determination of whether coordination is appropriate, the judge making that determination may stay any action being considered for, or affecting an action being considered for, coordination.” Because there was no petition for coordination pending, the trial court did not abuse its discretion in denying plaintiff’s motion to stay. The trial court also properly denied plaintiff’s motion for reconsideration of this order for failure to show new or different facts or law (§ 1008), and for lack of jurisdiction after plaintiff appealed from the final judgment of dismissal. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)

On review of a trial court’s order on a petition for writ of mandate, we apply the substantial evidence standard to the trial court’s factual findings and exercise independent judgment on legal issues. (Today’s Fresh Start Charter School v. Inglewood Unified School Dist. (2018) 20 Cal.App.5th 276, 281.) The trial court ruled, among other things, that plaintiff’s writ motion was procedurally deficient because she did not file a verified petition containing the requisite factual allegations and substantively deficient for its failure to identify a duty on the part of the DIR to transfer the case to DGS. Plaintiff establishes no basis to reverse this ruling.

To initiate writ of mandate proceedings by petition, a party must file and serve a verified petition of a party beneficially interested (§ 1086) alleging facts showing that the defendant had a clear duty to act; petitioner had a beneficial interest in the defendant’s performance of the duty; the defendant had the ability to perform the duty; the defendant’s failure to perform the duty or abuse of discretion if acting; and no other plain, speedy, or adequate remedy exists. (Collins v. Thurmond (2019) 41 Cal.App.5th 879, 915.) Plaintiff does not cite to or provide a record showing that she submitted a verified petition as opposed to a motion, and her declaration in support of the writ motion does not contain the required verified factual allegations. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865 [appellant has the burden to present a record establishing error].) Plaintiff also waived her challenge to this aspect of the trial court’s ruling by merely referring us to her briefing on verification in another appeal. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Finally, the statutes cited by plaintiff, general provisions of the Administrative Procedures Act (Gov. Code, §§ 11370, 11370.2, 11370.5, subd. (a)) , and Government Code section 11501, subdivision (b) addressing adjudicatory hearings of state agencies , do not establish that the DIR had a clear legal duty to transfer its closed investigations to DGS.

DISPOSITION

The judgment is affirmed. The DIR is to recover its costs on appeal.

 

_________________________

BROWN, J.

WE CONCUR:

_________________________

STREETER, ACTING P. J.

_________________________

TUCHER, J.

Drevaleva v. Dept. of Industrial Relations (A156248)