Mendones v. Bd. of Registered Nursing CA1/3

Filed 2/10/22 Mendones v. Bd. of Registered Nursing CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MARIDOL C. MENDONES,
Plaintiff and Appellant,
v. A162692
BOARD OF REGISTERED
(Alameda County
NURSING,
Super. Ct. No. HG19044092)
Defendant and Respondent.
MEMORANDUM OPINION1
Appellant Maridol C. Mendones (Mendones) filed a petition for
judicial review of the revocation of her registered nurse license (license)
by respondent Board of Registered Nursing (the Board). The superior
court denied the petition based on Mendones’ failure to file an opening
brief in support of her petition.
We affirm.
1 We resolve this case by abbreviated form of opinion as permitted
by California Rules of Court, Standard 8.1, which provides that a
memorandum opinion is appropriate when the appeal “raise[s] no
substantial issues of law or fact.”
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BACKGROUND
The Board revoked Mendones’ license, effective November 27,
2019, after adopting an administrative law judge’s recommended
findings that discipline was supported by Mendones’ unprofessional
conduct, including the making of “false or grossly incorrect” records
regarding dangerous drugs, personal misuse of controlled substances,
and mismanagement of personal health information.
Ten days before the revocation was to take effect, Mendones filed
a petition challenging the revocation of her license. The Board then
lodged the administrative record in early March 2020. The superior
court set a merits hearing for August 14, 2020, later continued to
January 22, 2021.
Before the hearing, the Board filed a “Non-Receipt of Anticipated
Pleading” asserting Mendones had not filed an “opening brief” with the
requisite citations to the administrative record lodged with the court.
The Board further asserted that her petition, standing alone, was
insufficient as it only cited to exhibits that were not shown to be part of
the administrative record. Therefore, Mendones could not show that
the Board’s findings and/or decision were not supported by the record.
Mendones then filed an opening brief, but in that brief did not cite to
any portions of the administrative record.
On January 22, 20212, the court found that Mendones’ opening
brief was untimely and lacked citations to the administrative record. It
continued the merits hearing to March 18 and set a briefing schedule,
2 All further dates occurred in 2021.
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with Mendones to serve and file a revised opening brief on or before
February 11.
When Mendones failed to timely file a revised opening brief, the
Board scheduled an ex parte hearing to request an order to show cause
directing Mendones to explain why she should not be sanctioned for
failing to either timely file a revised opening brief or request a
continuance. Following the hearing, on March 4, the court denied the
Board’s request for an order to show cause without comment.3 While
the record contains no indication that the court ever set a new briefing
schedule, on March 17 the court clerk accepted for filing a revised
opening brief submitted by Mendones. This revised brief included
references to both the administrative record and attached exhibits.
The next day, March 18, the court held the merits hearing and
then issued the following written order: “The Petition for Writ of
Mandate is DENIED. The petitioner has failed to submit an Opening
Brief in support of the Petition.”4 Thereafter, Mendones filed a motion
for reconsideration, which was opposed by the Board.
On April 22, the court held a hearing on Mendones’ motion for
reconsideration. That same day, it issued an order denying the motion
without comment and entered a judgment denying Mendones’ petition
for judicial review of the Board’s revocation of her license. Mendones’
timely appeal ensued.
3 Mendones appeared, and was self-represented, at all of the
hearings mentioned in this opinion.
4 In her opening brief, Mendones asserts that at the March 18
hearing, the superior court refused to consider the March 17 “filed
revised opening brief because it [was] supposed to be filed on February
11, 2021.”
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DISCUSSION
We note, as a preliminary matter, that while Mendones is
representing herself on appeal she is not exempt from compliance with
the rules governing appeals. (McComber v. Wells (1999) 72 Cal.App.4th
512, 523.) A self-represented party is to be treated like any other party
and is entitled to the same, but no greater, consideration than litigants
represented by counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
1245-1247.)
Our review of this appeal is governed by well settled law. “[T]he
trial court’s judgment is presumptively correct, such that error must be
affirmatively demonstrated, and where the record is silent the
reviewing court will indulge all reasonable inferences in support of the
judgment. [Citations.] This means that an appellant must do more
than assert error and leave it to the appellate court to search the record
and the law books to test his claim.” (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) “Of course this
also means that during trial, the parties must ensure that an adequate
record is made of errors by which they are or may be aggrieved;
ordinarily, errors not reflected in the trial record will not, and indeed
cannot, sustain a reversal on appeal.” (Id. at p. 557.)
Hence, to demonstrate reversible error, an appellant must
provide an adequate record and “not only present an analysis of the
facts and legal authority on each point made, but must also support
arguments with appropriate citations to the material facts in the
record. If he fails to do so, the argument is forfeited.” (Nielsen v.
Gibson (2009) 178 Cal.App.4th 318, 324.) To this end, “ ‘[e]very brief
should contain a legal argument with [available] citation of authorities
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on the points made. [(see Cal. Rules of Court, rule 8.204(a)(1)(B).)] If
none is furnished on a particular point, the court may treat it as
waived, and pass it without consideration.’ ” (People v. Stanley (1995)
10 Cal.4th 764, 793.)
Based on these principles, we conclude Mendones has waived any
claim of error by failing to present any argument in her opening brief
challenging the procedural denial of her petition. (See Jones v.
Superior Court (1994) 26 Cal.App.4th 92, 99 [“[i]ssues do not have a life
of their own: if they are not raised or supported by argument or citation
to authority, we consider the issues waived”]; Kim v. Sumitomo Bank
(1993) 17 Cal.App.4th 974, 979 [an appellate court is not required to
discuss or consider points which are not argued in the opening brief].)
Here, the argument section of the opening brief, titled “memorandum of
points and authorities,” makes no mention of the procedural denial of
the petition. Instead, it focuses solely on the merits of the underlying
petition challenging the Board’s decision to revoke Mendones’ license.
We decline to address the merits of the underlying petition because the
superior court never reached the merits, instead relying on a
procedural basis to deny the petition.
We also decline to review any claim of error regarding the
procedural denial of the petition, first mentioned in the reply brief as
Mendones does not present any reason or excuse for why her
arguments were not raised in the opening brief. “ ‘Obvious
considerations of fairness in argument demand that the appellant
present all [argument] points in the opening brief. To withhold a point
until the closing brief would deprive the respondent of [an] opportunity
to answer it or require the effort and delay of an additional brief by
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permission.’ ” (Neighbours v. Buzz Oates Enterprises (1990) 217
Cal.App.3d 325, 335, fn. 8.)
Nor have we been provided with an adequate record that would
permit us to address the reply brief arguments. (Jade Fashion & Co.,
Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644.) In
seeking reversal of the judgment, Mendones makes no argument
regarding the superior court’s refusal to consider the March 17 filed
revised opening brief. Instead, she contends the judgment should be
reversed because at the April 22 hearing (on her motion for
reconsideration) the court should have accepted her explanation for her
earlier failed attempt to file a revised opening brief on March 8. In
support of her argument, Mendones asks us to consider what occurred
at the superior court hearings held on March 4, March 18, and April 22,
which lead to the entry of the judgment denying the petition.
While relying on what occurred at those hearings, Mendones does
not provide any of the transcripts or a settled statement. “If an
appellant intends to raise any issue that requires consideration of the
oral proceedings in the superior court,” the appellate record must
include a record of those oral proceedings in the form of either a
reporter’s transcript, an agreed statement, or a settled statement. (Cal.
Rules of Court, rule 8.120(b); see id., rules 8.130 [reporter’s transcript],
8.134 [agreed statement]; 8.137 [settled statement]; see Rhue v.
Superior Court (2017) 17 Cal.App.5th 892, 895, 897-898 [trial court
abused its discretion in denying motion for settled statement of
unreported hearing on motion for reconsideration].) In addition,
Mendones was alerted to the need for transcripts by the Judicial
Council Form that she completed, which states that proceedings
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without a record of the oral proceedings meant that the appellate court
“will not be able to review any issues [she] might want to raise about
what was said in the trial court during those proceedings or any claim
that there was not evidence to support the judgment” she was
appealing. (Judicial Council Forms, form APP-103, revised Jan. 1,
2021; see Cal. Rules of Court, rule 8.121.)
Because Mendones has provided neither reporter’s transcripts
nor settled statements of the March 4, March 18, and April 22
hearings, we must reject her reply brief arguments that the court
should have accepted a late opening brief filed after February 11.
Absent evidence as to what occurred at those hearings, we cannot
evaluate the arguments in her reply brief regarding the court’s
rejection of the filing of the March 8 opening revised brief and likewise
cannot conclude the superior court abused its discretion. (See Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [failure to provide an
adequate record on appeal requires issue to be resolved against the
appellant]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [the appellant’s
argument rejected as she failed to provide an adequate record for
review where, “though the proceedings were not reported, . . . the
means to perfect the record by agreed or settled statement” were
available].)
In sum, we must affirm the judgment under review as Mendones
did not present any argument in her opening brief challenging the
procedural denial of her petition and then first raised this argument in
her reply brief without furnishing an adequate record.
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DISPOSITION
The April 22, 2021 judgment is affirmed. Each party is to bear
their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
Mendones v. Board of Registered Nursing/A162692
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