The opinion
Filed 6/25/15 Tuckwell v. State Personnel Board 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
ELIZABETH TUCKWELL,
Plaintiffand Appellant,
A140865
v.
STATE PERSONNEL BOARD, (Alameda County
Super. Ct. No. RG12660493)
Defendant and Respondent,
DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest and Appellant.
The California Department of Social Services (DSS) appeals from a judgment
granting plaintiff Elizabeth Tuckwell’s petition for writ of mandate directing the State
Personnel Board (SPB) to set aside its order sustaining the decision of the DSS to place
her on a 60-day suspension. The trial court concluded plaintiff was denied due process at
her SPB hearing when the administrative law judge (ALJ) elected to terminate the
proceeding before she had finished presenting her case-in-chief. The court also denied
plaintiff’s request for attorney fees, and she has filed a cross-appeal from that denial.1
We affirm.
1
Plaintiff also purports to cross-appeal from the judgment granting her writ petition,
asserting the trial judge erred in failing to rule in her favor on various alternative grounds.
Having cross-appealed, she then took advantage of the rule allowing a larger, combined
respondent’s and cross-appellant’s opening brief, and she also filed a cross-appellant’s
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff has been an attorney for the State of California for over 20 years, working
for various agencies. She began working as staff counsel for the Community Care
Licensing Division of the DSS in December 2003.
On February 28, 2011, the DSS served plaintiff with a 26-page Notice of Adverse
Action (NOAA), imposing a 60-day suspension for conduct alleged to be in violation of
Government Code section 19572.2 The NOAA sets forth 13 charges involving seven
different administrative proceedings in which she represented the DSS. Many of the
charges are based on her handling of a case called Chanticleer (the name of the
respondent residential care facility). The charges center largely on her alleged failure to
comply with a prehearing order requiring her to have prepared five sets of exhibit
binders, as well as on her unprofessional conduct during the hearing. The remaining
charges were based on six other cases involving individual respondents—Vinarao,
Butler, Rosa, Cueneca,3 Anderson, and Carpenter.
The specific acts of misconduct pertaining to Chanticleer allege that plaintiff:
(1) failed to comply with the order to prepare the exhibit binders, (2) arrived late to the
administrative hearing, (3) failed to timely secure and prepare witnesses, (4) was
unprepared at the hearing, and (5) asked secretarial staff to do paralegal work.
reply brief, thus getting the last word. Her briefing on cross-appeal should have been
limited to the issue of attorney fees only, since only a “party aggrieved” can prosecute an
appeal (Code Civ. Proc., § 902). A party is legally “aggrieved” for appeal purposes only
if its “rights or interests are injuriously affected by the judgment.” (County of Alameda v.
Carleson (1971) 5 Cal.3d 730, 737.) If a respondent to an appeal desires to raise
additional reasons as to why the result below was correct, she can use her responding
brief to point out that in addition to all the reasons given by the trial court, its judgment
was correct for other reasons as well. We exercise our discretion to accept the filing of
plaintiff’s oversized briefs; however, we admonish her counsel to refrain from filing such
briefs in the future.
2
Government Code section 19572 sets forth the grounds for imposing discipline on state
employees.
3
Erroneously referred to as Constantino in the NOAA.
2
With respect to Vinarao, plaintiff allegedly showed a lack of competence in
getting documents admitted into evidence during an administrative hearing. Butler
concerned a certified foster parent who had appealed the denial of his request for a
criminal record exemption. Without consulting with the DSS’s client agency, plaintiff
told the ALJ the request was unopposed. In Rosa, another case involving criminal
records, she refused to provide her supervisor with a recommendation on how to proceed.
In Cueneca, plaintiff filed a request to disqualify an ALJ without asking for
authorization. She thereafter failed to provide her supervisor with a list of all the cases in
which she had filed such requests. In Anderson, she contacted the respondent’s spouse
on his behalf, in violation of a domestic violence restraining order.4 Finally, in
Carpenter, plaintiff allegedly advocated for the respondent in seeking relief from a
training requirement.
On April 8, 2011, plaintiff filed a notice of appeal of the 60-day suspension with
the SPB. The SPB hearing was conducted over eight calendar days before ALJ Barbara
Allen-Brecher, commencing at 3:30 p.m. on Monday, March 12, 2012. Because
resolution of this appeal turns on whether the hearing resulted in a denial of due process,
we summarize the proceedings in some detail.
March 12, 2012—Day One
The DSS put on its case-in-chief first. Following preliminary motions, Greta
Wallace, Chief Counsel for the DSS, testified until 5:02 p.m. that afternoon.
In October 2010, Wallace learned plaintiff had entered peremptory challenges
against ALJs at the Office of Administrative Hearings (OAH) without first obtaining
approval from her supervisor, in contravention of DSS policy. Thereafter, plaintiff failed
to comply with her supervisor’s request to document the instances in which she had
issued the challenges.
4
The NOAA indicates she was given a corrective memo regarding this incident on
March 11, 2008. Shortly after filing her appeal to the SPB, plaintiff filed a motion to
strike the Anderson allegation, arguing the cause for discipline occurred outside the three-
year period allowed by Government Code section 19635.
3
March 13, 2012—Day Two
On March 13, 2012, the hearing commenced at 11:10 a.m., following an
unsuccessful settlement discussion. ALJ Allen-Brecher granted a motion under Evidence
Code section 703.5 to quash plaintiff’s subpoenas of two OAH ALJs, David Benjamin
and Diane Schneider.5 As Wallace’s testimony resumed, plaintiff was admonished for
talking to her attorney. This would not be the last such admonishment.
Wallace became concerned when plaintiff failed to reveal the ALJs she had
challenged. Plaintiff had sent an e-mail stating she would be unable to supply this
information. This was a concern because plaintiff had been with the DSS for years and
Wallace had no idea how many peremptory challenges she could have issued. Plaintiff
never did comply with the request to provide a list of her challenges.
After a break, the hearing resumed at 1:03 p.m. ALJ Allen-Brecher asked
plaintiff’s counsel to tie her cross-examination to the charges in the NOAA.6 Wallace
conceded the DSS does not have a centralized reporting system that would list all the
cases in which plaintiff appeared. She explained plaintiff’s supervisor, Darryl East, had
assigned plaintiff to Criminal Background Check Bureau (CBCB) cases after the
Chanticleer case, as part of a disciplinary action. CBCB cases are not included in DSS
case status reports.7 Wallace did not think plaintiff would need a list of cases to prompt
her memory because peremptory challenges are so infrequently filed. She admitted the
DSS does not have a written policy regarding the procedures for filing such challenges.
As plaintiff’s counsel began questioning Wallace about an e-mail relating to
another attorney’s open case status report, ALJ Allen-Brecher said she was unable to see
the relevance of the line of questioning. She also stated: “Counsel, I’m just going to put
5
ALJ Benjamin presided over Chanticleer. It appears ALJ Schneider was involved in
the Butler case. Another subpoenaed ALJ, Perry Johnson, did not join the motion to
quash.
6
After a few more minutes of questioning, the judge asked counsel to identify the offer
of proof. The judge indicated her questions were confusing.
7
At this point, plaintiff was reminded not to speak to her counsel during the hearing.
4
you on notice now, both parties, that—because I’m very concerned about us even being
able to finish this case by Friday, we’re only going to have examination limited to direct,
cross and redirect, period. And that means in both Respondent’s case in chief and the
Appellant’s case in chief, so it will be evenhanded.”
The questioning shifted to the Chanticleer matter. That case was a license
revocation proceeding involving a senior residential care facility. Plaintiff’s counsel
questioned Wallace about Kathi Gilmour-Benner, another DSS attorney who worked on
Chanticleer. ALJ Allen-Brecher again directed her to focus on the charges in the NOAA,
rather than “dancing around the charges.” On redirect, Wallace said plaintiff could have
been provided with a list of all the CBCB cases she had worked on. Wallace also
revealed that Gilmour-Benner was assigned to assist in Chanticleer because plaintiff was
not handling the case well. This was a very large, high-profile case, and it was critical for
the DSS to prevail.
Wallace spoke with the OAH Presiding ALJ Cheryl Tompkins before approving
the NOAA. At this point, plaintiff’s counsel made a hearsay objection, noting the DSS
had filed a motion to quash the original declarant’s subpoena. Wallace testified ALJ
Tompkins told her ALJ Benjamin had told ALJ Tompkins that plaintiff was unprepared
in Chanticleer. Plaintiff was also “oppositional and argumentative,” and had arrived late
on two occasions. ALJ Allen-Brecher admitted the hearsay, finding it went to the issue
of the harm to the DSS’s reputation. She again reprimanded plaintiff for talking to her
counsel.
Wallace expanded on the hearsay, saying ALJ Tompkins had also relayed that the
DSS’s witnesses were not properly lined up. There was also a “huge problem” with the
exhibits. Plaintiff had been instructed to prepare five sets of exhibit binders, but failed to
do so. Finally, ALJ Benjamin became so “exasperated” that he offered to prepare his
own set. The opposition also offered to assemble their two sets. In addition, plaintiff’s
argumentativeness was seen as “troubling” and “disrespectful.”
Trish DeBaun testified next for the DSS. She is a senior legal analyst. Her
primary job is to assist her assigned attorneys in preparing administrative cases. Each
5
DSS attorney is assigned a legal analyst and a secretary. They work together as a team to
ready cases for hearing.
In January 2010, plaintiff called DeBaun and told her all of the Chanticleer
exhibits needed to be put in three-ring binders by the following Tuesday morning.
DeBaun told plaintiff she could not authorize the request.8 East then spoke to plaintiff
and he became upset. Later, several people had to help her with the project, which
disrupted DeBaun’s regular work. It was a very large task, with the exhibits covering
four conference tables.
DeBaun stated that senior legal typists do not contact witnesses. Mary Ann David
is a typist. She told DeBaun plaintiff had asked her to contact two witnesses, which made
David very uncomfortable. DeBaun advised David to tell her superior. DeBaun had
never heard of an attorney asking a typist to contact witnesses.9
March 14, 2012—Day Three
On March 14, 2012, the hearing started at 9:10 a.m. with East’s testimony. East is
an assistant chief counsel with the DSS and had been plaintiff’s supervisor for the
previous four years. Plaintiff’s job was to work up her assigned cases by obtaining
documents and preparing witnesses for hearings. She was currently assigned to do
criminal background check cases. He assigned her to CBCB cases after Chanticleer
because he felt she needed to improve her trial skills. Leslie Evans is the lead attorney
for these cases. Attorneys on CBCB cases have at least two weeks to review the case file
prior to the hearing. CBCB hearings are not complex and rarely require testimony.
In late September 2010, East learned plaintiff had exercised a peremptory
challenge against ALJ Benjamin in the Cuenca case. The DSS has a “long-standing
policy” that an assistant chief counsel needs to authorize such challenges before they are
made. Challenges create scheduling problems for the presiding ALJ. They can also
create ill-will towards the DSS amongst other ALJs. East did not think ALJ Benjamin
8
DeBaun was not the legal analyst assigned to work with plaintiff in the Chanticleer
case.
9
The hearing went off the record at 4:50 p.m.
6
was biased against the DSS in the Chanticleer case. When East learned plaintiff had filed
the challenge he was “stunned.” He approached ALJ Tompkins, who told him she
thought plaintiff had challenged Benjamin three or four times. He asked plaintiff several
times to give him a list of the cases in which she had made these peremptory challenges.
She never complied with this request.
The DSS has an internal tracking system for CBCB cases. There is also another
database that tracks case documents electronically. East estimated plaintiff would have
had to review approximately 28 CBCB cases to comply with his request. Instead of
complying, she responded by questioning the policy. As her boss, he expected her to
follow his order.
In Vinarao, the respondent had signed a document admitting she had sustained
three criminal convictions. The convictions involved seven documents, which should
have taken 10 to 15 minutes to admit into evidence. East went to the hearing to observe
plaintiff. It took her about an hour and 15 minutes to get the exhibits admitted. She also
appeared to be unfamiliar with the file. East was concerned because the task should not
have been very difficult.
The Carpenter case was an “exclusion” case assigned to plaintiff. The respondent
had failed to complete anger management training within a specified period of time. Her
counsel contacted plaintiff to request an extension. Plaintiff then contacted the licensing
agency’s regional manager. East believed this was inappropriate. Normally, such
requests are not handled by the legal division. The regional manager called East to
express concern because it appeared plaintiff was advocating on behalf of the respondent
and not the agency.
The Butler case involved a foster parent who had sustained a conviction for
pointing a rifle at his brother. The respondent was seeking an exemption so he could
continue to be a foster parent. An accusation was prepared and filed at the request of the
client agency. The case was assigned to plaintiff. After the hearing, East reviewed the
ALJ’s proposed decision. East was considering alternating (rejecting) the ruling.
However, when he read the decision it reflected plaintiff had not opposed the foster
7
parent’s request. Even though the client wanted to reject the decision, East decided they
could not because plaintiff had already conceded the issue. When he questioned her, she
indicated she did not know she had to consult with the client in these kinds of cases. This
was a theme with plaintiff. She did not represent the client’s position but instead did
what she thought was right. In this case, the client was upset with the result.
In Rosa, East asked plaintiff to make a recommendation and she responded, “I
don’t care.” When he asked her again, she said, “I’ll do whatever you say.” He was
concerned about her preparedness, professionalism, and her judgment.
In the Anderson case, the respondent had been arrested for spousal abuse and was
seeking an exemption. The case went to a hearing. The abuse victim called East,
complaining plaintiff had contacted her on behalf of the respondent to ask her about some
overdue electric bills. Plaintiff then started commiserating with her about her
relationship, which was upsetting. East was very concerned because plaintiff assisted in
violating a domestic violence restraining order. Plaintiff admitted she made a mistake
and said she had been tired.
East assigned Chanticleer to plaintiff in March 2009. He admitted it was a
mistake to give her such a big case, but at the time it seemed likely to settle. Plaintiff had
done revocation cases like this before. The hearing was continued several times, and
commenced on January 4, 2010. In late 2009 she did not request help to prepare the trial
documents. If he had known she needed more help, he would have assigned someone to
her.
One day in the first week of January 2010, DeBaun told him plaintiff wanted
approval to ship files overnight from San Jose to the Oakland DSS office. He questioned
this because he knew DeBaun had not been assigned to work with plaintiff. He spoke by
telephone with plaintiff that day (a Wednesday) and she said she needed three copies of
3,000 pages of exhibits by the following Monday or the judge could impose sanctions.
East was concerned because that Friday was a furlough day. Plaintiff suggested he call
the judge himself. East responded that she was the attorney representing the DSS, not
8
him. At the time, East did not know ALJ Benjamin had issued an order in November
2009 requiring the exhibits to be placed in binders.10
East coordinated with a private carrier to get the documents from San Jose to the
Oakland office. That Thursday, a group of about four workers copied the documents and
put them in binders. Plaintiff picked up the binders that afternoon. The task disrupted
the office. When he learned of ALJ Benjamin’s November order, he asked her why she
had not complied. She said she did not think the office had enough binders. He was
troubled by her lack of organizational skills and believed the delay cast the legal division
in a bad light.
At this point in the hearing, up to two hours was spent listening to hearing
recordings to verify the accuracy of Chanticleer transcript excerpts quoted in the NOAA.
Afterwards, ALJ Allen-Brecher told the DSS attorney he had 45 minutes to complete his
examination of East. Plaintiff’s counsel estimated she would need at least two hours for
cross-examination. The judge gave her three hours. The judge stated that “it would not
be economical” to call plaintiff in the DSS’s case-in-chief. Instead the DSS’s counsel
would be allowed a “full opportunity to cross-examine.” She also asked the parties to
speed up the case because she had limited availability the following week. Plaintiff’s
counsel complained this would give her less than one day for her client to testify, whereas
the DSS would have used four days. The judge assured her she would have all the time
she would need. The hearing concluded at 5:24 p.m.
March 15, 2012—Day Four
On March 15, 2012, the hearing commenced at 9:49 a.m. After considering some
evidentiary matters, ALJ Allen-Brecher moved to whether the statute of limitations
applied to the Anderson charges. Once more, she admonished plaintiff to stop talking to
her counsel while on the record. When plaintiff did it again, she ordered her to sit in the
10
The record shows the order issued on November 24, 2009, following a prehearing
conference.
9
back of the hearing room. After deeming the Anderson charges time-barred, testimony
relating to that case was stricken from the record. East resumed testifying at 11:04 a.m.
The regional manager for the client agency in Chanticleer called East midway
through the hearing to report that two of its employees were concerned about how the
proceeding was going. ALJ Benjamin had admonished plaintiff, and one of the
employees had been there for over four days and had not yet testified. East decided to
send Gilmour-Benner to assist plaintiff. East also heard about witnesses who had been
subpoenaed late and who had not received lodging. Legal analyst Susanna Lacayo11 told
him witnesses were angry about the late subpoenas. Also, some documents were not sent
to the expert witness until December 28, 2009, even though the hearing was set for
January 4, 2010. East assumed the expert would have needed more time. He was
concerned because the hearing date was known before the end of November but it was
over a month before this witness was able to review the evidence. He admitted he should
not have given plaintiff the case because it had political potential and it did not match her
skill level.
East denied ever telling plaintiff to tell ALJ Benjamin that the DSS could not
comply with the judge’s binder order. Instead, he told her to advise the judge “that we
may not be able to do that.” In reviewing a summary of the hearing, he felt plaintiff’s
performance was significantly below what would be expected of a staff counsel. On
cross-examination, he conceded plaintiff had asked Lacayo to put the exhibits in binders
on November 23, 2009.
East also denied he asked plaintiff to provide a list of peremptory challenges in
order to commence this disciplinary proceeding. He claimed he wanted to learn
plaintiff’s reasons for filing the challenges to determine if they were justified. As to the
Vinarao case, he admitted he never received any complaint regarding plaintiff’s
presentation. In the Carpenter matter, a program manager did ultimately approve the
extension request. However, East believed plaintiff had lobbied on the respondent’s
11
Lacayo was assigned to work with plaintiff on Chanticleer in August 2009.
10
behalf when she should have deferred to the client. After about an hour and a half of
cross-examination, ALJ Perry Johnson testified out of order for plaintiff.
Johnson is an ALJ with the OAH. He decided not to join in the motion to quash
because he wanted to participate. Plaintiff has appeared before him many times. In the
Vinarao case, the evidence involved about eight different Florida criminal convictions.
He was given a large packet of bound materials. He reorganized the pages to better
reflect the respondent’s various convictions and court appearances. Plaintiff did not have
trouble laying the foundation for the documents. The records were complex and he
wanted to arrange them in a more efficient manner to correspond to how he drafts his
decisions. At the end of the hearing, East approached him and whispered he was happy
Johnson had been so patient with plaintiff. This surprised Johnson because he thinks he
is patient with all counsel. He did not think plaintiff had embarrassed the DSS. After a
short recess, the hearing resumed at 4:08 p.m. with East’s cross-examination.
East had never given plaintiff a performance review. He conceded plaintiff issued
some subpoenas for Chanticleer in early December 2009. He also acknowledged he
approved Lacayo’s vacation for December 28, 2009, through January 2, 2010. The
hearing concluded at 5:00 p.m.
March 16, 2012—Day Five
On March 16, 2012, the proceedings started at 9:15 a.m., continuing East’s cross-
examination. When he approved Lacayo’s time off, he did not assign another legal
analyst to help plaintiff. There was no request for such assistance. He did not know why
Lacayo could not get binders in November 2009, but he would have expected plaintiff to
bring any problems to his attention. While she had no supervisory powers over legal
analysts, she could have approached him. At this point, ALJ Allen-Brecher enforced the
time limit for cross-examination and limited DSS’s redirect. At 10:40 a.m. DeBaun
returned as a witness.
DeBaun knew Lacayo had been working on a big case because she saw boxes of
documents in her cubicle. Lacayo told her she was very busy preparing exhibits. If
DeBaun had needed binders, she would have looked in the storage room and if they were
11
not there she would have asked her supervisor to help her obtain them. It takes about 15
minutes for DeBaun to prepare a subpoena if she has the name and the address. If an
address is not in the file, she will ask the attorney how to find it.
At 11:22 a.m., Lacayo was called as a witness on behalf of the DSS. The
recording of her testimony cut off at 12:02 p.m. Just before the recording ended, she
testified she told plaintiff on November 23 that there were not enough binders in the
office and asked her what she should do. Plaintiff told her to do whatever she thought
would work.
April 17, 2012—Day Six
The following month, the SPB hearing resumed on Tuesday, April 17, 2012, at
10:43 a.m. ALJ Allen-Brecher had added three more hearing days to the proceeding.
Lacayo’s direct examination resumed. There is no indication the parties were aware the
recording had failed during the previous hearing day. The judge allowed about 15
minutes of direct testimony. After cross-examination and final redirect, the hearing
would move to plaintiff’s case-in-chief. The judge did not set a firm deadline for
completion of plaintiff’s portion of the case. As they broke for lunch, the ALJ gave
plaintiff two hours for cross-examination: “My concern is that we scheduled the dates for
the hearing based upon the representation that you folks gave me as to the amount of time
it was going to take. So I don’t want this to string out past the three days that we’ve
scheduled.” The hearing resumed at 1:35 p.m. A witness named Helga Wong was called
out of order for plaintiff.
Wong is a licensing program analyst. She was involved in the Chanticleer matter.
The facility committed ongoing violations, even after the case was sent to the DSS’s legal
department. The hearing itself took 16 days, which she believed is long.12 Plaintiff
presented documents and witnesses at the Chanticleer hearing. Plaintiff knew the names
of the witnesses and she appeared to be prepared. She coached Wong through the
12
During Wong’s examination, ALJ Allen-Brecher asked plaintiff’s counsel if she had
the transcript from the Chanticleer hearing. Counsel indicated she did not and that her
computer was not able to play the DSS’s recordings of that hearing.
12
process of testifying. If a question was confusing, plaintiff was able to clarify. Another
DSS attorney appeared at the hearing about halfway through. She did not take over the
case, and plaintiff was the lead attorney at all times. The facility ultimately had its
license revoked, which was an acceptable result.
Initially, Wong was concerned about plaintiff’s professionalism because she came
late on the first day and the ALJ took notice. There were issues with the exhibits not
being in binders, which also caused conversations with the judge. After the exhibits were
placed in binders, the hearing moved along. The judge’s demeanor was professional at
all times. When the second DSS attorney joined, things seemed to move forward faster.
Cross-examination of Wong began around 2:35 p.m. Wong testified her manager
complained about the binders not being prepared. Witnesses had difficulty locating the
exhibits when they were loose in boxes. Wong offered to help plaintiff put them in the
binders. Plaintiff came late to the hearing more than once. Sometimes the ALJ had to
coach plaintiff on the questions she was asking. There were issues regarding how much
time it took plaintiff to formulate her questions. She was not fast on her feet, but she did
have questions written out for her witnesses. Wong was excused at 3:02 p.m.
Lacayo’s cross-examination resumed at 3:28 p.m. During one exchange, the ALJ
indicated the parties had until Thursday at 5:00 p.m. to conclude the case. Lacayo
testified she worked on the Chanticleer case prior to November 29, 2009. She was
assigned to plaintiff in August 2009. When plaintiff asked her to put the exhibits in
binders, Lacayo told her there were not enough binders and the person who ordered
binders was on vacation. This conversation occurred around November 23, 2009.
After a discussion regarding a discovery issue concerning Lacayo’s daily planner,
ALJ Allen-Brecher stated, “I’m trying to keep us on track. I would like us to get done by
the end of the day Thursday. It only hurts your client if we don’t get done because then
we don’t get a decision any sooner. And based upon the representations that everybody
gave to me as to who the witnesses were going to be, we shouldn’t have any problem
getting done. But if we start getting into evidence that isn’t in the prehearing conference
statement, that I haven’t ordered be presented, it’s going to take extra time.”
13
Cross-examination continued until 3:59 p.m. Plaintiff’s counsel stated her plan
had been for plaintiff to testify at the start of the following day, but now it was not going
to happen. ALJ Allen-Brecher encouraged plaintiff’s counsel to finish Lacayo’s cross-
examination the next day.
April 18, 2012—Day Seven
On April 18, 2012, the hearing commenced at 9:12 a.m. As the parties’ attorneys
began criticizing each other, ALJ Allen-Brecher expressed frustration with their behavior.
Lacayo’s cross-examination continued.
Lacayo stated Chanticleer exhibits were still being gathered on December 1, 2009.
ALJ Allen-Brecher noted there was confusion in the record as to when plaintiff was put
on notice about the deficient binder supplies, namely, whether it was November 23 or
December 23, 2009. Lacayo testified she sent medical records to Albee on November 12,
2009. Redirect commenced at 10:11 a.m. Lacayo said plaintiff knew there were not
enough binders at least by December 23, 2009. Thereafter, plaintiff saw the exhibits
were still in boxes and she did not tell Lacayo to do anything. Lacayo’s testimony was
completed at 10:27 a.m. After a break, plaintiff began testifying.
Plaintiff graduated from Yale Law School in 1973. She had not received a
performance evaluation at the DSS since 2005. East became her de facto supervisor in
2006.13 She received the Chanticleer file in the spring of 2009. The file contained a list
of potential witnesses. Additional witnesses could be added depending on how the case
progressed. She compiled a list of witnesses and other contacts very early in the case.
Chanticleer was originally set for hearing in October 2009. At that time it
appeared the case was likely to settle. As a settlement was being negotiated, another
major violation occurred. The accusation against the facility was amended in September.
The facility’s owners hired a new lawyer who was known for going to trial. The final
prehearing conference was held on November 23, 2009. She had never been ordered to
13
At this point she started discussing the details of how he came to become the official
supervisor of her unit. ALJ Allen-Brecher advised her to listen carefully to questions so
that her testimony could be completed by the following day.
14
prepare trial binders with as much detail as ALJ Benjamin ordered on that date. The
hearing stopped for lunch and resumed at 1:08 p.m. with plaintiff’s witness Colleen
O’Neal.
O’Neal is a private attorney who represented the subject in Carpenter. Her client
had agreed to take classes and the matter was settled. She contacted plaintiff to try to
amend the settlement agreement. O’Neal did not see anything inappropriate in plaintiff’s
conduct. She did not believe plaintiff was advocating for her client. After cross-
examination and redirect, O’Neal’s testimony concluded at 2:13 p.m. and plaintiff
resumed her testimony.
Plaintiff stated there were three settlement/prehearing conferences in the
Chanticleer case. When plaintiff’s attorney asked open-ended questions about what
happened after each settlement conference, the DSS attorney objected. ALJ Allen-
Brecher pleaded with the attorneys to “try to get through this,” and urged plaintiff’s
counsel to be more precise.
Plaintiff sent Lacayo an e-mail on November 23, 2009, telling her the case had not
settled. She told her the exhibits had to be placed in binders, paginated, and marked with
numbers. She did not think there would be a problem at the time because she saw plenty
of binders in the supply room. Lacayo’s response was, “[T]hat’s fine.” Sometime
around the beginning of December 2009, Lacayo brought her a box of exhibits. She
verbally instructed Lacayo to prepare the exhibits in conformance with the conference
statement. Over the next two weeks, plaintiff spent time in Lacayo’s cubicle working on
the exhibits. Lacayo was often out of the office due to vacation, training, working for
other attorneys, and family illnesses. The office eventually ran out of supplies like
dividers and tabs. Lacayo assured her the binders would get done.
On December 23, 2009, plaintiff was still photocopying exhibits. Lacayo
approached her and said she was not going to be able to complete the exhibits in time for
the hearing. She was leaving the office that afternoon and the following day she would
be assisting another attorney. After Christmas, she would be on vacation. She also said
the office did not have enough binders. Other attorneys had used binders for their cases
15
and very few were left. Each set of exhibits would have required four large binders,
which would mean a total of 20 were needed. They had two or three. This was the first
time plaintiff was told there were not enough binders.
Many people in the office were on vacation, including East and the office
manager, and plaintiff was “totally bewildered” as to what to do. David helped her with
photocopying and pagination. It did occur to plaintiff that she could have bought the
binders herself. The problem was she did not know how to complete this “enormous
task.” She had never been trained on creating that type of binder and she would not have
known what type of binders to buy. Also, there were other things she needed to get done
by the January 4, 2010 hearing date, such as sending records to the expert witness. She
came to the office for a few hours on Christmas day. She also came in on weekends and
furlough days, as well as on her normal tele-work day. She was in the office Monday
through Friday the week after Christmas and continued working on the exhibits. They
had to be finished by Thursday, December 30, to be picked up by the courier. The
exhibits were ready in time for the courier, but they were in boxes, not binders.
After a break, the hearing resumed at 3:24 p.m. ALJ Allen-Brecher stated she had
been thinking about how to deal with the case, which she said had to be completed by the
following afternoon. She noted the hearing had already taken three days more than the
original estimate: “So what we are doing is this: I am going to give [plaintiff’s counsel]
up until tomorrow morning at 10:00 a.m. to finish the direct examination of [plaintiff].
You’re going to have [to] be efficient. And part of the problem is there’s been a lack of
efficiency in the way the questions have been asked in this case. And there’s also been a
lack of civility which has caused a lot of unnecessary objections and unnecessary use of
time.” She then stated she would give plaintiff until 11:00 a.m. The DSS attorney would
have from 11:00 a.m. until 2:00 p.m. to cross-examine and would have until 5:00 p.m. for
rebuttal.
ALJ Allen-Brecher explained: “And you know, folks, this is eight days on an
adverse action that isn’t that long. It’s unprecedented for me to be doing this as we’ve
done it. I have so many cases, and I have not had this struggle or problems for years.
16
But you folks are making this one of the most difficult cases that I have experienced in
the way it’s being presented. And I’m not going to point my fingers at any one person.
But I can tell you that it has been extraordinary and unnecessarily problematic. So I’ve
got to set limits. I can’t let this be out of control, and that’s what I’ve got to do. I don’t
have any choice. So I don’t think any judge in a writ is going to overturn it based upon
the time limitations I’m setting forth, but you certainly can deal with that, if you want to,
on a writ.” The parties agreed to start the next day at 8:30 a.m.
At this point, the DSS attorney complained there would be an “extreme
imbalance” as to the length of time plaintiff would testify on direct compared to what he
was allowed for cross-examination. The ALJ noted he had been given much more time
than plaintiff to present his case-in-chief. She added: “And I feel like if I give you an
extra half hour, I’m going to have an extra three hours taken from me. There’s no reason
this case should have taken as long as it’s taken. I should have laid out stricter guidelines
earlier. But at this point, I have no choice. I told you we were going to be done by
Thursday afternoon, and we are going to be done by Thursday afternoon.”
Plaintiff’s testimony continued. The first day of the Chanticleer hearing was held
in San Jose. Plaintiff arrived at 9:30 a.m., which was the start time. However, she had to
arrange the exhibits, which delayed the start of the hearing. Opposing counsel noted the
lack of binders, but ALJ Benjamin elected to proceed. The following day, opposing
counsel pressed harder on the fact that the exhibits were not in binders. The ALJ ordered
her to have the exhibits ready by Monday, January 11, 2010. Plaintiff relayed the order
to Lacayo. Lacayo laughed. That Friday was a furlough day, so the work would have to
be completed that Thursday. Lacayo said she would be out of the office, so plaintiff
called DeBaun. She also spoke with East, who told her to tell the judge to give them
more time. The judge was not happy with this answer. On Thursday January 7, staff at
the DSS Oakland office finished one set of binders. The task took four people the better
part of a day. Of the five sets of exhibits, this was the only set the DSS office put in
binders. ALJ Benjamin and opposing counsel arranged to put their own binders together.
Plaintiff kept her own set in the boxes.
17
Regarding the subpoenas, plaintiff had contacted witnesses as early as
September 28, 2009. She asked Lacayo to make travel arrangements, but there were
complications. In one case, a payment authorization did not go through. Lacayo said she
had done everything she could. Plaintiff resolved the matter by going to the hotel on a
Sunday and using her personal credit card to guarantee the rooms. Plaintiff asked David
to subpoena some witnesses while Lacayo was on vacation. Plaintiff had been told by a
former supervisor that as the attorney she could not serve subpoenas herself.
As to the sending of evidence to the expert witness, Lacayo had sent medical
records on November 30, 2009. Lacayo did not send client files because she believed it
was not proper to send anything other than medical records. The expert later said she
needed the client records. Plaintiff waited until December 28, when Lacayo was out of
the office, to send them. She believed it would have been futile to ask East for assistance
because “he would always come in on the side of [Lacayo].” Plaintiff said she has no
control over getting her cases done because East does not support her. At the end of the
day, ALJ Allen-Brecher reiterated that direct examination of plaintiff would end at
11:00 a.m. the following day, “regardless of where we are.”
April 19, 2012—Day Eight
The hearing started at 8:40 a.m. Plaintiff’s counsel began questioning plaintiff for
the sole purpose of moving exhibits into evidence. Later, plaintiff clarified she asked
David to call some witnesses to get their contact information. None of these witnesses
were represented by counsel. Plaintiff asked David to call an employee at the Chanticleer
facility because the owner, who was represented by counsel, often answered the phone.
It was awkward for plaintiff to call the facility. She wanted to get an alternate contact
number so she would not have to speak with that witness in the owner’s proximity. At
one point a binder went missing and David found it in East’s office underneath his desk.
At 11:00 a.m., ALJ Allen-Brecher cut off plaintiff’s testimony. Plaintiff’s counsel
objected, complaining the DSS had taken five days for its case while she had had less
than a quarter of that time to respond. She also noted that time had been spent in
settlement talks even after plaintiff said she did not want to settle. ALJ Allen-Brecher
18
opined that a lot of time had been wasted in plaintiff’s direct examination because
counsel was not organized. The judge gave her until 11:30 a.m.
Neither East nor Wallace ever asked her to explain her side of the story on the
binders. She acknowledged ALJ Benjamin deemed her to have arrived late on at least
two hearing days. As to the Vinarao case, she asserted she was prepared. At that point,
ALJ Allen-Brecher halted direct examination. After a break, they resumed on the record
at 11:37 a.m.
On cross-examination, plaintiff did not recall the explanation she gave to ALJ
Benjamin for her lateness. She conceded she implied she was late due to having to care
for a family member. In one exchange, ALJ Allen-Brecher said she would give opposing
counsel more time because plaintiff was causing unnecessary delay by objecting to
questions. DSS’s counsel also complained plaintiff was obfuscating to cause delay. As
cross-examination continued, ALJ Allen-Brecher noted plaintiff’s testimony appeared to
be evasive. For example, she was asked: “[D]o you recall testifying—I’ve asked you this
numerous times now—about you saying words to the effect that Mr. East did not give me
a chance to explain my side of the story?” Plaintiff answered: “I did not say that.”
Plaintiff was assigned to do CBCB hearings in 2010. CBCB cases appear on open
case status reports for the attorney to whom the cases are assigned, which in the Oakland
office is Evans. Plaintiff was authorized to look at the CBCB calendar, which could have
listed at least some of the CBCB hearings she worked on. She did not know if she looked
at the calendar when she was asked about her peremptory challenges. She never asked
Evans to help her create a list of those cases.
Plaintiff did not handle the Chanticleer matter as well as she would have liked.
When she learned on December 23, 2009, that there were not enough binders, she did not
inform her superiors. She did not seek binders from other DSS offices. Nor did she ask
for help. She was not confused about what ALJ Benjamin wanted. But she would have
needed training on how to prepare the binders herself, the kind of training legal analysts
get. She would not have been able to do it on her own without a large amount of time.
19
On redirect, plaintiff said East was very condescending and sarcastic when she
asked him for help. He appeared to have already concluded she was an incompetent
employee. He never helped her resolve problems in the past and she did not believe it
would have made a difference if she had gone to him for assistance in the Chanticleer
matter. The late subpoenas did not cause any witness to fail to testify. ALJ Benjamin did
not sanction her or the DSS in the binder matter, and the outcome was not affected
because the DSS prevailed. She did not believe the outcome was influenced by the
addition of Gilmore-Benner because by the time she arrived plaintiff had already
completed the direct case. ALJ Allen-Brecher cut off plaintiff’s testimony shortly
thereafter, at 4:30 p.m. The DSS was given one hour for its rebuttal case.
At 5:30 p.m., plaintiff’s counsel sought to have evidence marked to show that ALJ
Allen-Brecher’s time limitation had deprived her of the opportunity to introduce
evidence. The judge indicated she was going to be off work for a month, and nothing
was going to get done until she came back. She ordered the parties to submit written
closing arguments by May 21, 2012.
ALJ Allen-Brecher’s Decision
In her written decision dated August 1, 2012, ALJ Allen-Brecher concluded
plaintiff’s testimony was not credible. To the extent there were inconsistencies, she
credited the testimony of the DSS’s witnesses. As to Chanticleer, she concluded plaintiff
had committed inexcusable neglect of duty by failing to comply with the prehearing order
regarding exhibit preparation, delaying service of subpoenas, arriving late to the hearing,
and being unnecessarily argumentative. Some of her statements to ALJ Benjamin also
constituted discourteous treatment. Additionally, her misconduct resulted in inefficiency
and brought discredit to the DSS. However, the charge pertaining to the alleged misuse
of secretarial staff was not proved.14
14
The decision does not contain explicit findings as to plaintiff’s alleged failure to
competently examine witnesses.
20
ALJ Allen-Brecher also found plaintiff had committed inexcusable neglect of duty
in the Vinarao and Butler cases.15 In the Rosa and Cuenca cases, plaintiff committed
insubordination and willful disobedience when she failed to respond to the requests from
her superiors. However, the charge that she violated the policy to seek authorization for
peremptory challenges was dismissed because the DSS failed to show she was on notice
of this policy. Allen-Brecher also dismissed the charge as to the Carpenter case. She
concluded there was proof of plaintiff’s incompetency, especially in the Chanticleer
matter. She found the 60-day suspension was warranted.
On September 21, 2012, plaintiff filed a petition for rehearing, claiming she was
denied due process because she was not allowed to finish her testimony and was unable
to tailor her defense due to the last-minute cutoff. Specifically, she was prevented from
introducing exhibits or testifying on the Butler and Rosa charges, and was given
insufficient time to prove up a motion to dismiss. She further asserted she was not solely
responsible for the hearing delays She also argued ALJ Allen-Brecher had made
erroneous evidentiary rulings and unsupportable factual findings, and had shown bias
against her during the proceeding. The petition was deemed denied because the next
scheduled SPB meeting was slated to occur after the expiration of the statutory 60-day
rehearing period.
On December 19, 2012, plaintiff filed a petition for writ of mandate in the trial
court, again raising her due process concerns. She filed an amended petition on April 12,
2013.
The Trial Court’s Ruling
On November 27, 2013, the trial court issued its 36-page decision granting the
petition for writ of mandate. The court concluded ALJ Allen-Brecher had abused her
discretion and had denied plaintiff due process based primarily on two incidents: (1) the
judge’s abrupt announcement of a firm time limit for the plaintiff’s case-in-chief on the
15
ALJ Allen-Brecher dismissed a charge that plaintiff had committed an act of
dishonesty in Butler.
21
afternoon of the penultimate day of the hearing; and (2) her decision to grant the motion
to quash petitioner’s subpoenas for ALJs Benjamin and Schneider, while at the same time
allowing DSS witnesses to testify as to statements allegedly made by Benjamin. The
court concluded the time limitation in conjunction with the hearsay rulings also created
an appearance of bias. The court further found the factual findings made in connection
with the Vinarao case were not supported by substantial evidence. As to the Chanticleer
matter, the SPB’s ruling could not be properly evaluated due to the missing transcript of
Lacayo’s testimony. The court also concluded the findings and legal conclusions with
respect to the Butler and Rosa cases could not be upheld because plaintiff was not given
the opportunity to present her side of the story. This appeal followed.
DISCUSSION
I. State Personnel Board Proceedings
The procedures for imposing discipline upon a state employee are well
established. In the first instance, it is the responsibility of the employing department to
determine whether cause for adverse action exists and, if so, the discipline that should be
imposed. (Gov. Code, § 19574.) In reaching such a decision, the employer must give the
employee notice of the proposed action and the reasons therefor, and must accord the
employee an opportunity to respond. (Ibid.; Skelly v. State Personnel Bd. (1975)
15 Cal.3d 194, 215 (Skelly); Department of Parks & Recreation v. State Personnel Bd.
(1991) 233 Cal.App.3d 813, 827 (Department of Parks & Recreation).) After complying
with these due process requirements, the employer may then impose the discipline it
believes is warranted by the circumstances. (Skelly, supra, at p. 215.)
Once the employer serves the requisite written notice of adverse action, the
employee may file a written answer with the SPB, which triggers the SPB’s review of the
adverse action. Such a review consists of a hearing and a decision in writing.
(Gov. Code, §§ 19575, 19578, 19582; Department of Parks & Recreation, supra,
233 Cal.App.3d at pp. 823, 827.)
In most instances, the SPB assigns an ALJ to conduct the hearing but the
responsibility for the decision remains the ultimate responsibility of the SPB. The ALJ
22
prepares a proposed decision which the Board may adopt or reject in whole or in part.
(Gov. Code, § 19582, subd. (b); California Youth Authority v. State Personnel Bd. (2002)
104 Cal.App.4th 575, 583 (State Personnel Bd.) Since the SPB derives its adjudicatory
power from our state Constitution, its decisions are entitled to judicial deference.
(Department of Parks & Recreation, supra, 233 Cal.App.3d at p. 823; see also State
Personnel Bd., supra, at p. 584.)
II. Standards of Review
“Code of Civil Procedure section 1094.5 governs judicial review of a final
decision by an administrative agency if the law required a hearing, the taking of evidence,
and the discretionary determination of facts by the agency. [Citation.] The petitioner
must show that the agency acted without or in excess of jurisdiction, did not afford a fair
trial, or prejudicially abused its discretion. [Citation.] An abuse of discretion is shown if
the agency did not proceed in the manner required by law, the decision is not supported
by the findings, or the findings are not supported by the evidence. [Citation.]” (Pedro v.
City of Los Angeles (2014) 229 Cal.App.4th 87, 98–99 (Pedro).)
“ ‘[I]n cases in which the court is authorized by law to exercise its independent
judgment on the evidence, abuse of discretion is established if the court determines that
the findings are not supported by the weight of the evidence. In all other cases, abuse of
discretion is established if the court determines that the findings are not supported by
substantial evidence in the light of the whole record.’ [Citation.] A trial court exercising
its independent judgment must afford a strong presumption of correctness to the
administrative findings. [Citation.] On appeal, we review the trial court’s factual
findings under the substantial evidence test if the trial court exercised its independent
judgment. [Citation.]” (Pedro, supra, 229 Cal.App.4th 87 at p. 99.)
“Substantial evidence is evidence that a rational trier of fact could find to be
reasonable, credible, and of solid value. We view the evidence in the light most
favorable to the judgment and accept as true all evidence tending to support the
judgment, including all facts that reasonably can be deduced from the evidence. The
evidence is sufficient to support a factual finding only if an examination of the entire
23
record viewed in this light discloses substantial evidence to support the finding.
[Citations.]” (Pedro, supra, 229 Cal.App.4th 87 at p. 99.)
“An appellate court independently determines whether the agency prejudicially
abused its discretion by failing to proceed in the manner required by law, such as by
failing to comply with required procedures, applying an incorrect legal standard, or
committing some other error of law. [Citations.]” (Pedro, supra, 229 Cal.App.4th 87 at
p. 99.)
III. Due Process
The DSS claims ALJ Allen-Brecher’s decision to cut off plaintiff’s testimony did
not violate her right to due process. “The protections of procedural due process apply to
administrative proceedings [citation]; the question is simply what process is due in a
given circumstance. [Citations.] Due process, however, always requires a relatively
level playing field, the ‘constitutional floor’ of a ‘fair trial in a fair tribunal,’ in other
words, a fair hearing before a neutral or unbiased decision-maker. [Citations.]”
(Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.)
The DSS claims the record demonstrates plaintiff was allowed sufficient time to
complete her case-in-chief. However, the trial court estimated DSS witnesses were on
the stand for 20 and one-half to 21and one-half hours, while plaintiff and her witnesses
testified for about 14 and one-half hours. This is a fairly substantial difference. Our
review of the record confirms this disparity, and the DSS does not contest the court’s
calculations. Significantly, the DSS was not subject to the same time restrictions as
plaintiff, and thus was able to proceed in accordance with its pretrial planning. While the
DSS claims due process was satisfied because plaintiff was allowed five hours from the
time of the imposition of the time limitation to the end of her testimony, it does not
contend that she was able to present a complete defense to all of the charges in the
NOAA.
The DSS also claims plaintiff was not blindsided because ALJ Allen-Brecher had
issued warnings about time limitations. We observe those warnings were not all
addressed solely to plaintiff. For example, on March 13, 2012, the judge said that she
24
was putting both parties on notice that because she was concerned about being able to
finish the case by that Friday, examination for both sides was going to be limited to
direct, cross and redirect. Later, when the case stretched into its second week, she noted
she had added extra days based on both parties’ time estimates. Even when warnings
were directed at plaintiff’s counsel, the judge did not threaten an absolute cutoff: “And I
don’t want to have to restrict time, but I will if I feel that we’re really going into the
weeds in getting this information that isn’t probative to the case on a regular basis, which
is what I’m getting concerned about, honestly. So just an admonition now, I’m not doing
anything yet, but I’m concerned about the amount of time that we’re taking for things that
are not probative.”
Similarly, while we do not disagree that plaintiff’s testimony included some
narrative, nonresponsive answers and that her whispering was distracting, it is the judge’s
responsibility to maintain order in the hearing room, as she did at one point by ordering
plaintiff to sit in the back of the room. Essentially, the DSS argues that plaintiff and her
counsel are entirely responsible for the judge’s decision to impose the last-minute cutoff.
The facts are, however, that the DSS was afforded ample time to present its own case.
The primary witnesses against plaintiff, Wallace, East, and Lacayo, testified over several
days. Thus, unlike plaintiff, the DSS was allowed to fully present its case-in-chief.
The DSS also asserts petitioner’s counsel is at fault because she chose to call
defense witnesses prior to completing her own testimony on direct, notwithstanding her
“recognition early on that she was well aware that her time was limited.” It also faults
her for failing to tie her questions to the charges as set forth in the NOAA. The short
answer to this is that the time limitation was imposed by ALJ Allen Brecher on the
second to last day of the hearing. Hence, plaintiff’s counsel did not know at the outset
that the time limit would be imposed and cannot be entirely faulted for having failed to
organize her presentation to account for the deadline.
The DSS contends there is no due process requirement for a judge to set time
limits before the proceedings begin and that it is permissible to impose time limits on
testimony “at the moment it becomes apparent that testimony is running too long.” In the
25
context of a civil trial, it is established that a court has the power to rule on the
admissibility of evidence, to exclude proffered evidence that is deemed to be irrelevant,
prejudicial or cumulative, and to expedite proceedings which, in the court’s view, are
dragging on too long without significantly aiding the trier of fact. (In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, 291 (Carlsson).) However, “ ‘[d]enying a party
the right to testify or to offer evidence is reversible per se.’ [Citations.]” (Id. at p. 291.)
Here, it is not a particular witness whose testimony was running too long; it was the
entire proceeding.
“ ‘Ordinarily, parties have the right to testify in their own behalf [citation], and a
party’s opportunity to call witnesses to testify and to proffer admissible evidence is
central to having his or her day in court.’ [Citation.] . . . ‘ “One of the elements of a fair
trial is the right to offer relevant and competent evidence on a material issue. Subject to
such obvious qualifications as the court’s power to restrict cumulative and rebuttal
evidence . . ., and to exclude unduly prejudicial matter [citation], denial of this
fundamental right is almost always considered reversible error” ’ [Citations.]”
(Carlsson, supra, 163 Cal.App.4th at p. 292.)
In Carlsson, the court hearing a family law case put arbitrary time limits on the
presentation of evidence and deemed the husband’s case-in-chief concluded before he
finished presentation of the evidence. (Carlsson, supra, 163 Cal.App.4th at pp. 290–
292.) In doing so, “[t]he trial court essentially ran the trial on a stopwatch, curtailing the
parties’ right to present evidence on all material disputed issues.” Under the constant
threat of a mistrial, the judge pressured counsel into rushing through her presentation and
continuing without a break. The appellate court found reversible error most especially
because the judge abruptly ended the trial in the middle of a witness’s testimony, prior to
the completion of one side’s case and without giving the parties the opportunity to
introduce or even propose additional evidence.
As the Carlsson court explained, “ ‘ “The trial of a case should not only be fair in
fact, but it should also appear to be fair.” [Citations.] A prime corollary of the foregoing
rule is that “[a] trial judge should not prejudge the issues but should keep an open mind
26
until all the evidence is presented to him.” ’ [Citation.]” (Carlsson, supra,
163 Cal.App.4th at pp. 290–291.) Having earlier heard the DSS witnesses’ testimony in
this proceeding certainly afforded ALJ Allen-Brecher with an informed perspective upon
which to evaluate any new testimony plaintiff might have provided. But the judge could
not weigh the credibility of testimony she did not hear.
The DSS is correct that imposing a time limit that precludes a plaintiff from
completing her case-in-chief does not necessarily deprive the plaintiff of due process.
However, the case it relies on, California Crane School, Inc. v. National Com. for
Certification of Crane Operators (2014) 226 Cal.App.4th 12, is distinguishable. In that
case, the parties knew at the outset that the trial would be limited to 12 days. They also
agreed the responding party would get the case at noon on the eighth day of trial. (Id. at
pp. 17–18.) The appellate court observed specifying time limits in court hours and
applying these limits to examination of a party’s witnesses and cross-examination of the
opposing party’s witnesses can be permissible. In such cases, however, the parties are
entitled to be kept advised on a regular basis and upon request of how much time each
side has used and has remaining. (Id. at p. 22.) This suggests the parties need to know
how much time they will have so they can strategically allot their presentation between
cross-examination and direct testimony.16 Again, “the court must permit a party to have
his day in court. Denying a party the right to testify or offer evidence deprives him of a
fair trial and constitutes reversible error. [Citation.]” (Id. at pp. 22–23.) To impose a
stringent time limit at the end of a case is unfair, particularly when only one side is
adversely affected.17 Common sense holds it is unfair to change the rules in the middle
of the game.
16
We agree with the trial court that even if the parties did spend an equal time on
combined examination and cross-examination, plaintiff’s counsel had no idea as she
cross-examined the DSS witnesses that the time she spent doing so would be deducted
from the time she would be allowed to affirmatively present her client’s defense.
17
We also agree with the trial court’s conclusion that ALJ Allen-Brecher did not identify
any reason why the hearing had to end at that particular moment, other than a general
sense that the proceeding had taken longer than it should have.
27
Because plaintiff was prevented from completing her presentation, we are unable
to say how ALJ Allen-Brecher would have regarded the facts in evidence in light of
further facts which might have been elicited. That evidence supports her findings does
not cure the constitutional defect. (See Powhatan Mining Co. v. Ickes (6th Cir. 1941)
118 F.2d 105, 109 [denial of cross-examination].) The error is inherently prejudicial.
(See Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 965,
971.) A new hearing is thus required. (Sinaiko v. Superior Court (2004) 122
Cal.App.4th 1133, 1142, 1146.)
IV. Admission of Hearsay
The trial court faulted ALJ Allen-Brecher for allowing Wallace to testify about the
conversation she had with ALJ Tompkins in which the Presiding ALJ relayed comments
made to her by ALJ Benjamin concerning plaintiff’s performance in Chanticleer. The
DSS contends the trial court erroneously substituted its judgment for that of the SPB
judge in faulting this testimony. It asserts the administrative ruling did not contribute to a
denial of due process.
Government Code section 11513 governs the introduction of evidence at a formal
administrative adjudication. Subdivision (c) of that statute provides the hearing “need not
be conducted according to technical rules relating to evidence and witnesses, except as
hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence
on which responsible persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rule which might make
improper the admission of the evidence over objection in civil actions.” Subdivision (d)
of that statute provides, in pertinent part: “Hearsay evidence may be used for the purpose
of supplementing or explaining other evidence but over timely objection shall not be
sufficient in itself to support a finding unless it would be admissible over objection in
civil actions.”
The DSS first claims the statements were not hearsay because they were not
offered as proof of plaintiff’s misconduct at the Chanticleer hearing. Rather, they were
offered to explain Wallace’s state of mind and the reasons why she chose “ ‘to sign off on
28
an adverse action.’ ” The statements also established the harm caused to the DSS’s
reputation. This argument is disingenuous. As the trial court noted, Wallace’s testimony
depended on the truth of matters ALJ Tompkins asserted out of court—namely, that ALJ
Benjamin had spoken to Tompkins about plaintiff and that he had made critical
comments.
The DSS notes that if considered for the truth, hearsay evidence of misconduct is
permissible to supplement or explain other evidence in the context of the administrative
hearing. It also asserts there is no indication that ALJ Allen-Brecher relied on Wallace’s
testimony in rendering her decision. Thus it claims plaintiff was not prejudiced and the
trial court’s finding is erroneous. We disagree. The transcripts of the Chanticleer
hearing reveal what ALJ Benjamin said during the hearing, but are not evidence of his
subjective state of mind. The only evidence of his perceptions of plaintiff’s performance
was provided by Wallace’s hearsay testimony. Even if the SPB’s written findings do not
specifically mention it, we cannot presume this evidence had no influence on the
decision. In any event, due to the missing transcript of Lacayo’s testimony (discussed
below), we concur with the trial court’s view that the Chanticleer charges cannot
properly be evaluated.
V. Appearance of Bias
The DSS claims the record fails to demonstrate either the appearance of bias or
any actual bias. The trial court concluded ALJ Allen-Brecher’s imposition of a firm time
limit on the case, in conjunction with her rulings on the motion to quash while allowing
Wallace to testify as she did were “so palpably unfair as to create an appearance of bias.”
The DSS renews its arguments that these rulings were not unfair and did not result in the
deprivation of due process. Further, the agency stresses that even the court below noted
the ALJ made rulings favorable to plaintiff and appeared to be generally evenhanded in
dealing with episodes of argumentativeness.
We have read the transcript of the hearing. We agree the record does not contain
any flagrant examples of overt actual bias. However, we also agree with the trial court’s
view that the rulings in question reflect an appearance of bias. The admission of triple
29
hearsay, combined with the cutting off of plaintiff’s presentation of evidence without
informed advance notice, can reasonably be viewed as being so unfair so as to create an
appearance of bias against plaintiff.
IV. The Vinarao Charges
The trial court additionally ruled that ALJ Allen-Brecher abused her discretion by
making a factual finding unsupported by substantial evidence as to the Vinarao case, the
case involving plaintiff’s attempts to move the criminal conviction records into evidence.
The DSS claims that in so doing, the court improperly reweighed the evidence by
crediting ALJ Johnson’s testimony over East’s. We disagree.
Both East and Johnson were present at the Vinarao hearing and described
plaintiff’s presentation of the exhibits during the hearing below. The factual veracity of
East’s observations is not the issue. Instead, the trial court focused on the evidentiary
value of East’s subjective view of her performance. Along those lines, ALJ Johnson was
in the best position to offer an opinion as to whether plaintiff’s actions fell below the
standard of care. Since he testified he had no concerns about her conduct, the court
below was reasonable in concluding substantial evidence did not support ALJ Allen-
Brecher’s contrary ruling on the Vinarao charges.
VI. The Missing Transcript of Lacayo’s Testimony
The DSS claims substantial evidence supports the Chanticleer ruling
notwithstanding the missing portion of Lacayo’s testimony. We disagree. Lacayo’s
testimony was relevant as to the finding that plaintiff failed to ensure the required exhibit
binders were ready by the start of the hearing, and that she failed to issue witness
subpoenas in a timely fashion.
In Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324 (Chavez), an entire day
of the administrative hearing could not be transcribed because of a defective tape.
(Chavez, at p. 326.) The appellate court in Chavez stated that a petitioner is entitled to
have the entire administrative record reviewed. It also indicated that if a portion of the
record is missing, a rehearing is necessary only when the missing portion cannot be
30
reconstructed and the partial record is not adequate for review.18 (Id. at p. 332.) This
occurs if the missing testimony is necessary and material for the court to determine
whether the administrative decision is supported by substantial evidence. (See Aluisi v.
County of Fresno (1958) 159 Cal.App.2d 823, 825–828.)
While there is evidence of the dates subpoenas were issued in Chanticleer, the
DSS concedes it is unknown, in light of the missing portion of the record, whether a
hearsay exception applies to the document containing that evidence. And while there
may be substantial evidence supporting ALJ Allen-Brecher’s conclusion that the
subpoenas were not served in timely fashion, there is no way to confirm this finding
without all the evidence that was presented at the hearing.
As the DSS acknowledges, the NOAA was based in significant part on the
Chanticleer enforcement action. Lacayo’s testimony is critical to determining what
occurred during what the trial court deemed the “initial phase of the binder fiasco,”
namely, whether plaintiff failed to ensure the binders were ready, or that a plan was in
place to get them ready, by December 23, 2009, which was Lacayo’s last day of
significant work on the Chanticleer case.19 While it is undisputed the binders were not
prepared in accordance with ALJ Benjamin’s expectations, without a complete record it
is not possible to fairly assess plaintiff’s culpability. Accordingly, we concur with the
trial court that the missing testimony is necessary and material for the court to determine
whether the administrative decision is supported by substantial evidence.
VII. The Remedy
In general, if a party has not received a proper administrative hearing, the matter is
remanded back to the agency to provide “a full and fair hearing.” (English v. City of
Long Beach (1950) 35 Cal.2d 155, 160; see National Auto. & Cas. Ins. Co. v. Downey
(1950) 98 Cal.App.2d 586, 594 [“Where an administrative agency has not conducted a
18
On appeal, the DSS does not contend that the missing testimony can be reconstructed
from ALJ Allen-Brecher’s notes or other available resources.
19
Below, the DSS implicitly conceded that Lacayo did not warn plaintiff that the office
lacked supplies needed to create the binders until December 23, 2009.
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hearing properly, or has committed error of law, or if the evidence is insufficient to
support the findings, and it is still possible under the circumstances for the agency to
exercise its discretion, the court should remand the matter to the agency for further
consideration.”].) The DSS requests that any remand be limited to reevaluating or
retrying the “limited factual issues that were in part addressed in the missing testimony.”
Significantly, the DSS does not dispute that plaintiff was unable to testify about several
of the charges against her, primarily those involving the Butler and Rosa cases. While
we are sympathetic to the DSS’s position that judicial economy would be served by
avoiding a retrial of the entire matter, the premature termination of plaintiff’s case-in-
chief and the resulting due process violation does not allow for a limited remand.20
VIII. Attorney Fees
Finally, plaintiff cross-appeals, contending she is entitled to attorney fees to cover
the cost of a new hearing because the conduct of the SPB was arbitrary and capricious.
(See Gov. Code, § 800.) The trial court concluded the SPB’s conduct did not “sink to the
‘arbitrary and capricious’ level required for a fee award in an administrative mandamus
proceeding.” It also distinguished the instant case from Frase v. Gourley (2000)
85 Cal.App.4th 762, a case on which plaintiff relied below and in this appeal. In Frase,
the appellate court affirmed a grant of a writ of mandate in a case in which the
Department of Motor Vehicles had lost a portion of the administrative record and then
declined to pay for reconstructing it for use in the trial court’s hearing on the mandate
petition. (85 Cal.App.4th at pp. 765–767.) We agree with the trial court that a
prospective ruling on the point is speculative and unripe.
DISPOSITION
The judgment is affirmed.
20
In light of our conclusion, we need not consider the parties’ remaining arguments.
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_________________________
DONDERO, J.
We concur:
_________________________
MARGULIES, Acting P.J.
_________________________
BANKE, J.
33