(Super. Ct. No. 34-2008-00008321-CU-WM-GDS)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
About to be rejected from probation in his new position, an attorney working for the State Board of Equalization (BOE), petitioner Sukhdev Rye, took a notebook from the desk of another attorney in the office and used notes found in that notebook concerning confidential attorney-client communications to try to prove that the BOE was not giving him a fair chance in his new position. Dismissed for his conduct, Rye sought a writ of administrative mandate in the trial court. The court upheld the dismissal, and Rye appeals.
On appeal, Rye raises a multitude of issues concerning his hearing before the State Personnel Board (SPB), including, most extensively, a contention that the SPB violated a privilege attaching to Rye's communications with his union representative. We conclude that Rye fails to establish prejudicial error. Accordingly, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Rye began working for the state in 1997 in the position of Tax Counsel on the staff of BOE member Johan Klehs. He was promoted to Tax Counsel III in July 2004, on a probationary basis, and was assigned as one of the two employees in the Sacramento office of then-BOE member John Chiang, whose primary office was in Los Angeles. The other employee in the Sacramento office was Sylvia Tang, who oversaw the office.
In late September 2004, Rye received from Tang and Audrey Noda, Chiang's chief deputy, an unfavorable probation report.
On October 7, 2004, Tang met with BOE Senior Tax Counsel Brian Branine and discussed the process for rejecting Rye on probation. In her notebook, Tang devoted one page to this discussion and, on a second page, noted the name of the attorney who would temporarily replace Rye.
The next day, October 8, 2004, Tang, Noda and Rye met. Tang explained to Rye that his work had not shown enough improvement, but she proposed that if he voluntarily returned to his former position as Tax Counsel, Range D, in the BOE's legal division, she would remove his unfavorable probation report from his personnel file. Rye declined.
Rye met with Roberta Battle, a non-attorney labor representative employed by Rye's union, CASE,*fn1 and discussed his unfavorable probation report and the October 8 meeting.
In early January 2005, Rye was served with a probation rejection notice. He received a Skelly*fn2 hearing on this rejection on January 10. Attempting to prove that Tang denied him a fair opportunity to succeed on probation, Rye showed Skelly hearing officer Randie Henry copies of the two pages of Tang's notes described above, and provided Henry with a copy of the first page. Henry upheld Rye's probation rejection, and notified the BOE's personnel department about the notes.
On January 13, 2005, the BOE placed Rye on paid leave while it investigated how he obtained Tang's notes. BOE personnel formally interviewed Rye on three occasions. During the first interview, on January 18, 2005, Rye was represented by Battle, his non-attorney union representative (apparently, Battle left her employment with CASE prior to Rye's second BOE interview). During this first interview with the BOE on January 18, 2005, Battle advocated Rye's position that the copies of Tang's notes had been left on Rye's desk and were therefore not confidential.
In March 2005, after completing its investigation, the BOE dismissed Rye from his position as Tax Counsel, Range D. The BOE maintained that Rye took his supervisor's confidential notes (i.e., Tang's notes) concerning her discussion with BOE counsel about Rye's job performance, and failed to return those notes when ordered to do so.
In a dismissal hearing, an administrative law judge (the ALJ) upheld Rye's dismissal. The BOE subpoenaed Battle to testify at this hearing regarding what Rye had told her concerning Tang's notes (this testimony did not support Rye's position that copies of Tang's notes had been left on his desk). The ALJ, however, ultimately found that these Rye-Battle communications were privileged, and the ALJ did not use Battle's testimony in upholding Rye's dismissal.
The SPB initially adopted the ALJ's decision, but then granted Rye's petition for rehearing to decide the case itself (on the administrative record) and to consider the privilege issue. With one member dissenting on the issue of privilege, the SPB found that no evidentiary privilege applied to Rye's conversations with Battle. On January 8, 2008, the SPB concluded unanimously: "[A]fter reading [Battle's] testimony, the [SPB] concludes that [Rye] not only took the [Tang] notes as alleged by the [BOE], but also breached his ethical and confidentiality duties as an attorney and employee. The [SPB] therefore sustains [Rye's] dismissal."
Rye unsuccessfully petitioned the trial court for a writ of administrative mandate to overturn the SPB decision. The trial court, too, found no evidentiary privilege covering Rye's conversations with Battle.
Allegedly Binding Admission
Rye contends that a statement made by a BOE investigator during the investigation now binds the BOE. The contention is frivolous.*fn3
Rye contends that a BOE investigator stated "at the conclusion of eight hours of interviewing Rye over three days that 'we don't know who . . . has gone through [Tang's notebook] and taken a photocopy of it and provided it to [Rye].'" Rye has taken this passage out of context. This was not an admission by the BOE, but simply a technique the investigator used in questioning Rye. No authority supports the contention that a statement made by a government employee during an investigation is binding on the government.
As support for his contention, Rye cites two cases involving summary judgment. (See Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1060, fn. 12; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 396 ["The admissions of a party receive an unusual deference in summary judgment proceedings."].) However, Rye offers no reasoning for applying summary judgment principles to this case, which does not involve a summary judgment. That leaves his contention with no authoritative support and renders the contention unpersuasive. (See Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228 [contention without authoritative support is meritless].)
Despite the fragility of Rye's contention, he claims that the BOE forfeited its opposition to the contention because the BOE responded to it in a footnote in its respondent's brief. This claim is not only frivolous but requires a discussion, at the outset, to dispel Rye's mistaken notions and assertions about appellate procedure.
On appeal, the appellant bears the burden of establishing prejudicial error. The California Constitution provides: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
Under this standard, the appellant bears the burden to show error and to establish that it is reasonably probable that the appellant would have received a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.) "Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. 'But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice."' [Citation.]" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).)
Even if a respondent fails to file a brief, "we do not treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found. [Citations.]" (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203.)
In this perspective, Rye's arguments concerning the BOE's supposed forfeiture of its opposition to his binding-admission contention are nonsensical. He claims that the BOE's placement of its argument on this issue in a footnote constitutes forfeiture. For this proposition, he cites a criminal case in which the appellant made a contention in a footnote and did not clearly indicate that it was intended to be a separate contention. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) Rye also faults the BOE for not making the argument under "a separate heading or subheading summarizing the point." (Cal. Rules of Court, rule 8.204(a)(1)(B).) These arguments fail to relieve Rye of the burden of establishing prejudicial error.
Asserted Union Representative Privilege
Rye contends the SPB denied him a fair hearing by erroneously determining that no evidentiary privilege exists for communications between a state civil service employee and his non-attorney union representative. We conclude the contention is without merit because Rye has failed to establish prejudice. We need not, therefore, consider the merits of his contention.
In his opening brief, Rye argued that the testimony of Battle, his non-attorney union representative, should have been excluded based on an implied privilege. He claimed that the SPB "erroneously and prejudicially" considered Battle's testimony concerning what Rye told her -- that is, that he took Tang's notebook from her desk. While Rye, in his opening brief, discussed at length his argument that considering Battle's testimony was erroneous, which argument we need not recount at length here, he did not "'spell out in his brief exactly how the error caused a "miscarriage of justice."' [Citation.]" (McLaughlin, supra, 82 Cal.App.4th at p. 337.)
As we noted, establishing error is not enough to prevail on appeal. Because he failed to also establish prejudice, his argument does not require reversal, even assuming for the purpose of argument that error occurred. Based on Rye's opening brief, we could have concluded, without more, that the purported error did not require reversal because of an absence of argued prejudice; however, we exercised our discretion to give Rye a chance to establish prejudice through supplemental briefing after oral argument. In the letter soliciting supplemental briefing, we cited article VI, section 13 of the California Constitution and Leal v. Gourley (2002) 100 Cal.App.4th 963, which held that a party filing a petition for writ of administrative mandate must show not only error in the agency proceedings but also prejudice resulting from that error, using the state constitutional standard. (Id. at p. 968.)
Once again, in Rye's supplemental opening brief, he failed to assert prejudice. Instead, he argued that the purported error was reversible per se -- that is, reversible without a finding of prejudice. That argument, however, is without merit.
The standard of review for prejudice resulting from admission of privileged information is whether it is reasonably probable that the appellant would have obtained a more favorable result absent the error. (People v. Canfield (1974) 12 Cal.3d 699, 707; Leal v. Gourley, supra, 100 Cal.App.4th 963.) Yet Rye ignores this standard and argues instead that the admission of the privileged information was some kind of structural or similar error requiring reversal without determining prejudice. He is wrong, and the cases he cites for this proposition are distinguishable. (See In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 291-293 (Carlsson); American Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal.App.3d 983, 993 (American Motors).)
In Carlsson, the trial judge abruptly ended the trial, preventing a party from putting on its case. We held that this was a violation of the party's fundamental right to a fair trial. Because the party was not allowed to present its evidence, prejudice could not be assessed and reversal was required without a finding of prejudice. We relied on precedent stating that "'[d]enying a party the right to testify or to offer evidence is reversible per se.' [Citations.]" (Carlsson, supra, 163 Cal.App.4th at p. 291.)
Rye's case does not feature the fundamental denial of the right to a fair trial found in Carlsson. He was afforded a full hearing. The proceedings were not ended prematurely. Unlike the circumstances of Carlsson, there is nothing here stopping us from determining whether actual prejudice occurred. Indeed, it is not uncommon for us, and constitutionally required, to determine from the entire record whether an error in the admission of evidence caused prejudice. (Cal. Const., art. VI, § 13.)
In American Motors, we affirmed the trial court's nullification of a New Motor Vehicle Board adjudication without regard to actual prejudice because the composition of the board was fundamentally flawed, necessarily biased in favor of one of the parties by its structure. (American Motors, supra, 69 Cal.App.3d at p. 993.) ...