Jones-Gentry v. Department of Corrections and Rehabilitation CA3 ( 2024 )

Filed 4/2/24 Jones-Gentry v. Department of Corrections and Rehabilitation CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
DANETTE JONES-GENTRY, C095008
Plaintiff and Appellant, (Super. Ct. No. 62519)
v.
DEPARTMENT OF CORRECTIONS AND
REHABILITATION et al.,
Defendants and Respondents.
Danette Jones-Gentry was hired by the Department of Corrections and
Rehabilitation (CDCR) to serve a one-year probationary period as a teacher in one of
their facilities. Jones-Gentry was rejected during that probationary period, and she
elected to challenge her rejection via an administrative proceeding before the State
Personnel Board (Board). In that proceeding, Jones-Gentry argued the reasons for the
rejection were not supported by substantial evidence and were made in “bad faith,” as
evidenced by respondents’ failure to respond to her complaint of disability
1
discrimination. The Board rejected Jones-Gentry’s appeal, finding that her rejection was
in fact supported by substantial evidence and was not motivated by bad faith or based on
any discriminatory motive. Jones-Gentry did not seek judicial review of the Board’s
ruling in superior court. Instead, she filed a civil action against CDCR and two of her
former supervisors (collectively, respondents) asserting six causes of action under the
California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)1
including disability discrimination and failure to provide reasonable accommodations.
The trial court granted respondents’ motion for judgment on the pleadings, concluding
collateral estoppel bars Jones-Gentry’s FEHA action because of the preclusive effect of
the Board’s unchallenged prior ruling. Jones-Gentry appeals the trial court’s ruling, and
we affirm.
BACKGROUND
When reviewing an order granting a motion for judgment on the pleadings, we
accept as true all material allegations in the complaint. (National Shooting Sports
Foundation, Inc. v. State of California (2018) 5 Cal.5th 428, 432.)
In July 2016, Jones-Gentry began working for CDCR as a teacher for prison
inmates. While walking to a prison classroom in November 2016, she tore a meniscus in
her knee. When she tried to return to work in early December 2016 with a doctor’s work
restriction that she limit walking, CDCR told her it would not accommodate her. In a late
December 2016 letter, CDCR told her there were no reasonable accommodations for her
and that she could return to work without work restrictions or “provide a clear doctor’s
note requesting accommodations.”
Later, Jones-Gentry claimed her supervisors made her work life “miserable.” One
supervisor yelled at her, prohibited her from using shorter walking routes on prison
1 Undesignated statutory references are to the Government Code.
2
grounds that other employees were allowed to use, moved her workstation without
explanation, and did not provide her with necessary equipment and supplies. Another
supervisor told her she was “ ‘a very expensive employee,’ ” that he “ ‘would write . . .
[her] up’ ” if they were in the private sector, and wrote false performance reviews stating
she often left work early. Jones-Gentry filed grievances with her union complaining
about her supervisors’ conduct, but “[n]othing ever came of it.”
In July 2017, CDCR gave Jones-Gentry a “Notice of Rejection” during her one-
year probationary period, the grounds for which included (1) being late for work, leaving
work early, or being absent from work 55 times; (2) bringing an unauthorized cell phone
into her classroom; (3) using her state-issued “personal alarm” whistle to get the attention
of an inmate, prompting custody staff to respond to her classroom; and (4) dozens of data
entry errors. The prison warden refused to investigate her complaints “regarding
disability discrimination and [the] accuracy of her performance evaluations.”
Jones-Gentry challenged her rejection before the Board. CDCR argued Jones-
Gentry failed to meet her burden of proof to show either (1) a lack of substantial evidence
supporting the reasons it rejected her or (2) that the rejection was based on fraud or bad
faith. In December 2017, an administrative law judge (ALJ) affirmed the rejection in a
written decision that included factual findings.
The ALJ determined the rejection was supported by substantial evidence and was
not motivated by bad faith. Regarding the second determination, the ALJ explained that
Jones-Gentry “argue[d] that [CDCR] engaged in bad faith because it failed to respond to
the disability discrimination complaint she raised” in response to the notice of rejection.
The argument was “specious,” the ALJ explained, in part because Jones-Gentry
“submitted no evidence to establish that she ever filed a discrimination complaint” with
CDCR.
In a February 2018 resolution and order, the Board adopted the ALJ’s decision.
Jones-Gentry did not seek judicial review of the Board’s order by means of a mandate
3
action in superior court. (See Code Civ. Proc., § 1094.5.) Instead, she filed a lawsuit
against CDCR and her supervisors in July 2019 raising six causes of action under the
FEHA: (1) disability discrimination, (2) failure to provide reasonable accommodation,
(3) failure to engage in a good faith interactive process; (4) harassment/hostile work
environment, (5) failure to prevent harassment/hostile work environment, and (6)
retaliation. All causes of action were against CDCR and the harassment/hostile work
environment cause of action was also against Jones-Gentry’s supervisors.
Ultimately, the trial court granted respondents’ motion for judgment on the
pleadings, ruling principles of collateral estoppel barred Jones-Gentry’s FEHA action
because she (1) elected to challenge her rejection with the Board, (2) “was afforded the
opportunity to prove her case and raise all of her claims of bad faith and discrimination,”
and (3) “failed to prove her case or have the adverse determination set aside.” Citing
Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860 (Murray), the trial court
emphasized the importance of Jones-Gentry having the opportunity to litigate her
discrimination claims with the Board.
The trial court denied leave to amend and dismissed Jones-Gentry’s action with
prejudice. Jones-Gentry filed a timely notice of appeal in September 2021. Her opening
brief was filed in February 2023, this case was fully briefed on December 12, 2023, and
the matter was argued on March 19, 2024.
DISCUSSION
I
Principles of Collateral Estoppel and Judicial Exhaustion Bar the FEHA Action
A. Collateral Estoppel and Judicial Exhaustion
Collateral estoppel or issue preclusion is a “distinct aspect of res judicata,” a
doctrine that “ ‘ “gives conclusive effect to a former judgment in subsequent litigation
between the same parties involving the same cause of action. . . . Collateral estoppel . . .
involves a second action between the same parties on a different cause of action. The
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first action . . . operates as an estoppel or conclusive adjudication as to such issues in the
second action which were actually litigated and determined in the first action.” ’ ”
(Murray, supra, 50 Cal.4th at pp. 864, 866-867, italics added.)
“But the rule goes further. If the matter was within the scope of the action, related
to the subject-matter and relevant to the issues, so that it could have been raised, the
judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or
otherwise urged.” (Interinsurance Exchange of the Auto. Club v. Superior Court (1989)
209 Cal.App.3d 177, 182, italics omitted.)
“ ‘Judicial exhaustion’ ” is a “corollary” of the collateral estoppel doctrine,
whereby final decisions of administrative agencies acting in a judicial or quasi-judicial
capacity have preclusive effect. (Murray, supra, 50 Cal.4th at p. 867.) Judicial
exhaustion “ ‘may arise when a party initiates and takes to decision an administrative
process—whether or not the party was required, as a matter of administrative exhaustion,
to even begin the administrative process in the first place. Once a decision has been
issued . . . respect for the administrative decisionmaking process requires that the
prospective plaintiff . . . exhaust[] any available judicial avenues for reversal of adverse
findings. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-72 [(Johnson)].)
Failure to do so will result in any quasi-judicial administrative findings achieving
binding, preclusive effect and may bar further relief on the same claims.’ ” (Murray, at p.
867; Johnson, at pp. 69-70 [“unless a party to a quasi-judicial proceeding challenges the
agency’s adverse findings made in that proceeding, by means of a mandate action in
superior court, those findings are binding in later civil action”].)
In Johnson, our Supreme Court ruled a public employee who challenged a
dismissal on discrimination grounds through administrative civil service remedies,
received an adverse finding, and failed to have the finding set aside through judicial
review procedures, was bound by the adverse finding in a later civil action raising
discrimination claims under the FEHA. (Johnson, supra, 24 Cal.4th at pp. 65-67, 72, 76;
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see Murray, supra, 50 Cal.4th at pp. 876-877.) “ ‘The failure of a litigant to introduce
relevant available evidence on an issue does not necessarily defeat a plea of collateral
estoppel,’ ” because the important thing is that a party has “ ‘the opportunity and
incentive to present’ ” the relevant evidence in the prior proceeding. (Murray, at p. 871.)
Consider our Supreme Court’s discussion in Murray regarding Takahashi v. Board
of Education (1988) 202 Cal.App.3d 1464. There, “a public school teacher claiming she
was wrongfully terminated for incompetency was found collaterally estopped from
pursuing her civil and constitutional claims in court because she had failed to raise those
claims as defenses to the charges of incompetency at the administrative hearing
conducted before the Commission on Professional Competence . . . . [Citation.] The
Takahashi court observed, ‘There can be no justification for plaintiff’s position that she
should be permitted to fail to assert at the administrative hearing constitutional and civil
rights violations as reasons that made her termination wrongful, fail to prevail on the writ
without attempting to urge or to bring before the court those reasons, and then be allowed
to recover damages in this consolidated [court] action that resulted from termination of
her employment alleged to be wrongful based on those same reasons.’ ” (Murray, supra,
50 Cal.4th at p. 873.) Our Supreme Court explained that the relevant principle in
Takahashi was that the party against whom issue preclusion was sought was afforded a
hearing in the prior administrative proceeding, “but failed to take full advantage of the
opportunity to fully establish” the party’s claims at the hearing. (Ibid.)
B. Grounds for Challenging a Rejection During Probation
1. Relevant Government Code Provisions
Upon the written request of a “rejected probationer,” the Board “may investigate
with or without a hearing the reasons for rejection. After investigation, the board may do
any of the following: [¶] . . . [¶] (d) Restore him or her to the position from which he or
she was rejected, but this shall be done only if the board determines, after a hearing, that
there is no substantial evidence to support the reason or reasons for rejection, or that the
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rejection was made in fraud or bad faith.” (§ 19175, italics added.) A probationer may
not be rejected “for any cause constituting prohibited discrimination as set forth in
[s]ections 19700 to 19703” (§ 19173), which concern discrimination based on age (§
19700), blindness (unless normal eyesight is necessary to a position) (§ 19701), “medical
condition, mental disability, or physical disability” as those terms are defined in section
12926 (§ 19702, subd. (a)), and political or religious opinion (§ 19703). Here, we are
concerned with section 19702’s prohibition on the rejection of a probationer based on a
physical disability.2 Relatedly, section 12926 holds that “ ‘physical disability’ includes,
but is not limited to” having a physiological condition that affects the body’s
musculoskeletal system and makes “difficult” the achievement of any major life activity,
including “working.” (See § 12926, subd. (m)(1)(A), (B).)
2. Relevant Case Law
“Our state Constitution provides that, except as exempted by the Constitution,
every officer and employee of the state is within the civil service and ‘[i]n the civil
service permanent appointment and promotion shall be made under a general system
based upon merit ascertained by competitive examination.’ [Citation.] The Constitution
creates the . . . Board and vests it with jurisdiction over the merit aspects of civil service
including the enforcement of civil service statutes, the prescription of probationary
periods and classifications, and the review of disciplinary actions. [Citations.] Included
in the . . . Board’s authority is the power to review a decision of an appointing power to
2 Subdivision (b) of section 19702 provides that “harassment” is a form of prohibited
discrimination, and subdivision (f) provides that if an employee demonstrates by a
preponderance of the evidence that “opposition to any practice made an unlawful
employment practice under this section” was a “contributing factor in any adverse
employment action” taken against an employee, then the “appointing power” must
demonstrate by clear and convincing evidence that the adverse employment action
“would have occurred” for legitimate reasons independent of the employee’s opposition
to the unlawful practice.
7
reject a probationer and to take appropriate action up to and including restoration of
employment with an award of backpay.” (Dyer v. Workers’ Comp. Appeals Bd. (1994)
22 Cal.App.4th 1376, 1383-1384.)
“Even if the board finds the reason or reasons given by the appointing power for
rejecting a probationer are supported by substantial evidence, it must still reinstate the
probationer if it finds . . . the rejection was . . . made in bad faith. (§ 19175, subd. (d).)”
(Carrasco v. State Personnel Bd. (2021) 70 Cal.App.5th 117, 148.) Bad faith “might be
demonstrated even where an employer has a range of permissible actions if the choice
were driven by animus against” the employee. (Ibid.)
C. Analysis
We review the court’s ruling de novo and must uphold it if it was correct on any
legal theory raised by the parties even if the trial court did not rely on those grounds.
(Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62
Cal.App.5th 583, 598.) Here, Jones-Gentry elected to challenge her rejection during
probation in an administrative hearing before the Board at which she had the opportunity
to present evidence and make argument.3 In that hearing, she articulated a nexus between
her rejection and disability discrimination, asserting CDCR’s failure to respond to her
complaint of disability discrimination showed that her rejection was done in bad faith.
Consistent with that assertion before the ALJ, Jones-Gentry contends in her appellate
briefing that an employee may “raise prohibited discrimination as an invalid reason for
3 Before the hearing, the Board’s chief ALJ ordered the matter be adjudicated on the
papers filed by the parties (including “all . . . competent evidence by [d]eclaration”).
Jones-Gentry does not challenge the “judicial character” of the Board’s ultimate decision.
(Cf. Murray, supra, 50 Cal.4th at p. 867 [for collateral estoppel to apply to a decision
arising out of an administrative process, the decision must be of a “sufficiently judicial
character,” indicia of which include a hearing before an impartial decision maker, a
party’s ability to introduce documentary evidence and make argument, and a written
statement of reasons for the decision].)
8
her rejection” in a challenge before the Board. We agree. Under the relevant statutory
scheme and case law, it is apparent that in the context of a rejection during probation,
“bad faith” includes (1) discriminatory animus broadly (see Carrasco v. State Personnel
Bd., supra, 70 Cal.App.5th at p. 148) and (2) more specifically, discrimination based on a
musculoskeletal condition that makes working difficult (§§ 12926, 19702, 19173). A
showing that her work environment was permeated by disability discrimination—as
reflected by, for example, CDCR’s failures to prevent her supervisors from harassing her
on account of her disability, to engage in a good faith interactive process with her in an
effort to accommodate her physical disability, and to reasonably accommodate her4—
would have been relevant to and probative of the claim that Jones-Gentry’s rejection by
CDCR was in bad faith. Likewise, a more specific showing that CDCR rejected her on
account of the torn meniscus in her knee, which made it difficult for her to work because
it was difficult to move around her workspace, would have been probative of a “bad
faith” challenge.
Thus, Jones-Gentry had the opportunity and incentive to raise before the Board all
of the interrelated claims of disability discrimination that she raised in her later FEHA
action. The Board ruled against Jones-Gentry, and she did not challenge the adverse
findings in a mandate action in the superior court. Accordingly, under our Supreme
Court’s case law, principles of collateral estoppel and judicial exhaustion preclude her
FEHA action. (See Murray, supra, 50 Cal.4th at p. 871 [importance of a party’s
“ ‘opportunity and incentive to present’ ” relevant evidence in a prior proceeding]; id. at
p. 873 [“ ‘There can be no justification for plaintiff’s position that she should be
4 See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [under the FEHA,
an employer’s failures to reasonably accommodate a disabled individual and to engage in
a good faith interactive process to determine an effective accommodation, once one is
requested, are each distinct violations of the statute].
9
permitted to fail to assert at the administrative hearing . . . civil rights violations as
reasons that made her termination wrongful . . . and then be allowed to recover
damages’ ” in a later civil action “ ‘based on those same reasons’ ” (italics added)];
Johnson, supra, 24 Cal.4th at pp. 65-67, 72, 76 [an employee who challenges a dismissal
on discrimination grounds through administrative civil service remedies and fails to have
an adverse finding set aside through judicial review procedures is bound by the adverse
finding in a later civil action raising discrimination claims under the FEHA]; Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1090-1091 [“We . . . giv[e] collateral
estoppel effect to appropriate administrative findings” by requiring employees
challenging administrative findings “to do so in the appropriate forum, by filing a writ of
administrative mandamus petition in superior court”; “employees who choose to utilize
internal procedures are not given a second ‘bite of the procedural apple’ ”].)
D. Jones-Gentry’s Arguments
Jones-Gentry’s arguments for reversal of the trial court’s collateral estoppel ruling
are not persuasive. One line of attack includes the related contentions that (1) the
Board’s order “identifies no . . . discrimination issue actually litigated and necessarily
decided” that is “identical” to the issues in her FEHA action; (2) the scope of her
challenge before the Board was limited to the propriety of her rejection while on
probation; and (3) her FEHA causes of action are not barred by the Board’s order because
her wrongful termination is not a required element in any of those claims. This line of
attack is not persuasive because, as explained above, the dispositive consideration here is
that Jones-Gentry had the opportunity and incentive to raise all of her FEHA claims
before the Board to prove her claim that her rejection during probation was done in bad
faith.
Jones-Gentry also contends she was not required to “raise discrimination” in her
challenge before the Board. But regardless of whether Jones-Gentry was required, as a
statutory matter, to raise discrimination to prove that CDCR acted in “bad faith” when it
10
rejected her during probation, she did raise it. Having done so, she had the obligation “to
take full advantage of the opportunity to fully establish” that claim (Murray, supra, 50
Cal.4th at p. 873) by presenting all of the interrelated facets of disability discrimination
she allegedly experienced up to and including her rejection.5
Jones-Gentry next argues the Board’s characterization of her challenge to her
rejection (that CDCR “acted in bad faith because it did not investigate the discrimination
complaints she raised”) is a “factual assertion of what happened in the [Board]”
proceeding that “is not subject to judicial notice.”6 There are multiple problems with this
argument.
First, it is forfeited on appeal because the record reflects Jones-Gentry did not
raise it in the trial court. She neither opposed respondents’ request for judicial notice nor
objected to the propriety of the trial court taking judicial notice of “factual assertions” in
the Board’s order. (See J&A Mash & Barrel, LLC v. Superior Court (2022) 74
Cal.App.5th 1, 25 [because a party did not oppose a request for judicial notice or
otherwise object to the admissibility of a document, any threshold evidentiary challenges
to the document were forfeited on appeal].)7
5 Jones-Gentry cites Interinsurance for the proposition a former judgment is not
collateral estoppel on issues that might have been litigated but actually were not. But as
noted above, Interinsurance stands for the broader proposition that if a matter was
“related” to the earlier subject matter and “relevant” to the issues “ ‘so that it could have
been raised, the judgment is conclusive on it despite the fact that it was not in fact
expressly pleaded or otherwise urged.’ ” (Interinsurance Exchange of the Auto. Club v.
Superior Court, supra, 209 Cal.App.3d at p. 182, some italics omitted.)
6 The trial court granted CDCR’s unopposed request for judicial notice of the Board’s
order.
7 The parties had the opportunity to brief forfeiture, a rule always implicated when an
argument is raised for the first time on appeal. (See People v. Alice (2007) 41 Cal.4th
668, 679 [“The parties need only have been given an opportunity to brief the issue
decided by the court, and the fact that a party does not address an issue, mode of analysis,
11
Second, we note Jones-Gentry does not challenge the propriety of the trial court
taking judicial notice of the Board’s order, per se. And as for the narrower issue of
“factual assertions” in the Board’s order that she seeks to challenge now, we reject that
argument on the merits because the dispositive question is not whether the Board’s
characterizations of her arguments were accurate, but whether those characterizations are
conclusive for purposes of her later FEHA action. They are indeed conclusive because
Jones-Gentry did not seek judicial review of the Board’s order in a mandate action. (See
Johnson, supra, 24 Cal.4th at pp. 69-70.) The alternative, an inability to consider a first
tribunal’s characterizations of a party’s arguments and theories, would hinder the second
tribunal’s ability to attain a full understanding of the issues that were and could have been
raised in the prior proceeding. Such a scenario would present an impractical barrier to
the accomplishment of the purposes of the doctrine of collateral estoppel: preserving the
integrity of the judicial system, promoting judicial economy, and protecting litigants from
harassment by vexatious litigation. (Vandenberg v. Superior Court (1999) 21 Cal.4th
815, 829.)
Accordingly, the trial court properly granted respondents’ motion for judgment on
the pleadings.8
II
The Claims Against Jones-Gentry’s Supervisors
Jones-Gentry argues collateral estoppel principles cannot bar her harassment claim
against her supervisors because “they are not in privity with” CDCR. Respondents
contend California law “allows the defensive use of issue preclusion by a party who was
or authority that is raised or fairly included within the issues raised does not implicate the
protections of section 68081”].)
8 We deny as unnecessary CDCR’s request that we take judicial notice of the Board’s
administrative records related to Jones-Gentry’s challenge of her rejection during
probation.
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a stranger to the first action.” Jones-Gentry offers no response in her reply brief to
respondents’ argument. We agree with respondents. (See DKN Holdings LLC v. Faerber
(2015) 61 Cal.4th 813, 824-825 [“issue preclusion can be raised by one who was not a
party or privy in the first suit,” because “ ‘[o]nly the party against whom the doctrine is
invoked must be bound by the prior proceeding’ ”].)
Accordingly, the trial court properly dismissed Jones-Gentry’s harassment claims
against her supervisors. This conclusion makes it unnecessary for us to consider the trial
court’s other ground for dismissing these claims.
III
Application of Collateral Estoppel Principles and Public Policy
Jones-Gentry argues application of collateral estoppel principles here “would be
inequitable and contrary to public policy,” because (1) she was not represented by
counsel in her challenge before the Board, (2) she “was not afforded an opportunity to
conduct meaningful discovery in that proceeding,” (3) and the written argument that she
filed with the Board “discloses she was completely out of her depth” and at a “gross
disadvantage.” We are not persuaded.
Collateral estoppel “preserve[s] the integrity of the judicial system, promote[s]
judicial economy, and protect[s] litigants from harassment by vexatious litigation.” But it
“ ‘ “is not an inflexible, universally applicable principle; policy considerations may limit
its use where the . . . underpinnings of the doctrine are outweighed by other factors.” ’ ”
(Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 829.) In analyzing this policy
question, “courts consider the judicial nature of the prior forum, i.e., its legal formality,
the scope of its jurisdiction, and its procedural safeguards, particularly including the
opportunity for judicial review of adverse rulings.” (Ibid., italics added.)
Jones-Gentry concedes she failed to seek judicial review of the Board’s ruling in a
mandate action, but indicates she may have been unaware of that opportunity because she
was not represented by counsel. She offers no California authority for the proposition
13
that her self-representation before the Board, by itself, is a relevant consideration to the
question whether public policy forbids application of preclusion principles here. She
cites a line of Ninth Circuit cases for support. But those cases, the earliest of which is
Thompson v. Schweiker (9th Cir. 1982) 665 F.2d 936, concern judicial review of denials
of applications for disability benefits under the federal Social Security Act after
administrative hearings that, while adjudicatory, were nonadversarial (see id. at p. 941
[citing Gold v. Secretary of HEW (2d Cir. 1972) 463 F.2d 38, 43 for the proposition that
“[w]hen a claimant is not represented by counsel, the ALJ has a duty ‘to scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts’ ”]; Gold v.
Secretary of HEW, at p. 43 [“Hearings under the Social Security Act are non-adversary,
[citation]; ‘rights and privileges are in issue and [when] the guiding hand of counsel is
not present to advocate their existence, a duty devolves on the hearing examiner to
scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts surrounding the alleged right or privilege’ ” (italics added)]; Moats v. Comm’r of
Soc. Sec. (6th Cir. 2022) 42 F.4th 558, 560 [“[d]isability benefits hearings before the
Social Security Administration . . . are considered adjudicative, not adversarial, in
nature,” because while a claimant has the right to designate a person to represent them
during the hearing, the Social Security Administration “has no representative before the
ALJ” (italics added)]). The nonadversarial context is a key factor in the line of federal
cases Jones-Gentry invokes.
By contrast, Jones-Gentry’s Board proceeding clearly was adversarial. Jones-
Gentry challenged her rejection during probation on two distinct grounds, and
respondents argued she failed to meet her burden of proof. California case law makes
clear that the rules of civil procedure must apply equally to parties represented by counsel
and those who forgo attorney representation. (See Rappleyea v. Campbell (1994) 8
Cal.4th 975, 984-985; id. at p. 985 [“A doctrine generally requiring or permitting
exceptional treatment of parties who represent themselves would lead to a” litigation
14
“quagmire . . . and would be unfair to the other parties to litigation”].) Thus, Jones-
Gentry’s invocation of federal case law in support of her position is not persuasive.
Also unpersuasive are the contentions she was not afforded an opportunity to
conduct meaningful discovery and that consideration of the brief she filed with the Board
shows she was “out of her depth.” Those contentions fail to persuade because they are
not supported by adequate citations to the record. (See WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894.)
For the notion she was not afforded an opportunity to conduct meaningful
discovery, Jones-Gentry cites two pages from her opposition to respondents’ motion for
judgment on the pleadings. Those two pages reflect argument, not evidence. And the
argument contained therein does not concern the question of discovery before the Board.
For the notion she was “out of her depth” at the hearing before the ALJ, Jones-
Gentry asks us to consider the brief she filed in connection with that hearing. But she
provides no citation to the appellate record where we can find that document.
Accordingly, Jones-Gentry has not persuaded us that application of collateral
estoppel and judicial exhaustion principles here would be contrary to public policy.
(See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [we presume a ruling is correct
unless an appellant carries the burden of showing otherwise].)
IV
Leave to Amend
In the case of a motion for judgment on the pleadings, leave to amend should be
granted “if there is any reasonable possibility that the plaintiff can state a good cause of
action.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)
The burden of proving such reasonable possibility is “squarely on the plaintiff.” (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
Here, Jones-Gentry contends she “can amend to allege facts that weigh against the
application of collateral estoppel” in this case on public policy grounds. She presents two
15
categories of proposed factual amendments in this regard: (1) she was not represented by
counsel before the Board and was unaware that she could challenge the Board’s ruling in
a mandate action and (2) she “had no meaningful ability to conduct discovery” in
connection with her challenge at the Board, because “defendants stonewalled her when
she tried to conduct discovery” and “she was not represented by counsel” and therefore
“ignoran[t] how to obtain discovery.”
These contentions do not demonstrate a reasonable probability of a showing that
application of collateral estoppel and judicial exhaustion principles in this case would be
against public policy. This is so because, as discussed above, Jones-Gentry’s argument
that her pro. per. status is a material factor in considering the public policy question is not
persuasive. Jones-Gentry’s contention she was unable to conduct discovery also relies on
this unpersuasive proposition: she argues she did not know how to obtain discovery
because she was not represented by counsel. Accordingly, we conclude the trial court did
not abuse its discretion in denying leave to amend.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
MESIWALA, J.
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