Filed 1/13/16 Tuckwell v. State Personnel Board CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


ELIZABETH TUCKWELL,
         Plaintiff and Appellant,
                                                                     A140815
v.
STATE PERSONNEL BOARD et al.,                                        (Alameda County
                                                                     Super. Ct. No. RG13672995)
         Defendants and Respondents,


CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES,
            Real Party in Interest.


         Elizabeth Tuckwell purports to appeal from a judgment denying her petition for a
writ of mandamus. She brought her petition in the trial court seeking review of an order
of the State Personnel Board (the Personnel Board or Board) to the extent it denied her
motion to compel further discovery from the California Department of Social Services
(DSS) and limited the scope of evidence she could present at an administrative hearing.
We shall dismiss the appeal because it is from a nonappealable order; construed as a writ
petition in this court, it is untimely.
                                                 I.   BACKGROUND
         Tuckwell worked as an attorney for DSS. After she was dismissed from her
employment, she filed an appeal with the Personnel Board. She served DSS with a
request for production of documents in October 2012. She filed a motion to compel



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discovery on November 2012, and on the same day, DSS served a response to her
discovery request in which it asserted a number of objections and agreed to produce some
documents.1
       The parties filed prehearing/settlement conference statements (prehearing
statements) in late November 2012, which were required to list all witnesses and
documents the parties might present at the hearing. (Cal. Code Regs., tit. 2, § 57.1,
subd. (f)(5) & (8) (Rule 57.1).) In her prehearing statement, Tuckwell averred that she
had been “severely impeded by [DSS’s] failure to respond to [her] Discovery Request in
a constructive fashion” and that as a result she was unable to list all witnesses and
documents favorable to her. Her prehearing statement included a request to file an
amended list of witnesses and documents after she received additional documents
pursuant to her petition to compel.
       DSS filed an objection to Tuckwell’s prehearing statement, arguing it did not
comply with Rule 57.1 and asking to have Tuckwell barred from introducing
documentary evidence or calling witnesses other than herself. On January 11, 2013, DSS
filed a motion to strike Tuckwell’s prehearing statement.
       At a prehearing/settlement conference on February 7, 2013, an administrative law
judge (ALJ) issued an order barring Tuckwell from calling certain witnesses based on her
failure to provide summaries of their expected testimony in her prehearing statement.
       The parties met and conferred about outstanding discovery issues in early
February 2013. DSS made additional documents available to Tuckwell at its office in
Sacramento, and Tuckwell reviewed the documents on March 8 and March 15, 2013.
       An ALJ ruled on several outstanding motions on March 21, 2013, shortly before
the evidentiary hearing was scheduled to begin. As pertinent to this appeal, the rulings
were the following:




       1
           Tuckwell served a revised petition to compel discovery in early December 2012.

                                              2
       (1) The ALJ denied Tuckwell’s petition to compel discovery. The ALJ noted that
Government Code2 section 19574.2, subdivision (a), required a petition to compel
discovery to “state facts showing that the respondent party failed or refused to comply
with Section 19574.1, a description of the matters sought to be discovered, the reason or
reasons why the matter is discoverable under Section 19574.1, and the ground or grounds
of the respondent’s refusal so far as known to the petitioner.” The ALJ concluded the
petition and revised petition “failed to adequately describe the matters sought to be
discovered and the grounds of Respondent’s refusal,” that in a March 8, 2013
“Addendum to, and Re-filing of Appellant’s Revised Petition to Compel Discovery,”
Tuckwell “failed to adequately and completely describe why the matters were
discoverable,” and that the petition therefore did not comply with the requirements of
section 19574.2.
       (2) The ALJ denied Tuckwell’s request for leave to amend her prehearing
statement to include additional documents she intended to offer into evidence.
Tuckwell’s motion was made on the ground that DSS had not responded fully to her
discovery requests. The ALJ concluded that Tuckwell’s petitions to compel had not
complied with the statutory requirements and that she had not shown good cause for
failing to submit a prehearing statement that complied with the requirements of
Rule 57.1, subdivision (f)(8). The ALJ accordingly ruled that Tuckwell was limited to
introducing into evidence in her case in chief only certain enumerated documents.
(Rule 57.1, subd. (g).)
       (3) The ALJ denied DSS’s motion to strike Tuckwell’s prehearing statement.
       (4) The ALJ denied Tuckwell’s motion to continue the March 25, 2013
evidentiary hearing.
       Tuckwell brought a petition for writ of mandamus in the trial court, challenging
the ALJ’s March 21, 2013 order (the discovery order) on the grounds that the order
denying her petition to compel further evidence and limiting the scope of the evidence

       2
           All undesignated statutory references are to the Government Code.


                                              3
she could present deprived her of due process and her statutory right to inspect
documents pursuant to section 19574.1. She also sought an order staying implementation
of the discovery order. On March 29, 2013, the trial court stayed the administrative
proceeding during the pendency of the court proceedings. In doing so, the court noted
the ALJ had begun the evidentiary hearing on March 25 and that section 19574.2
provided to Tuckwell a right to seek relief from, and a stay of, the discovery order. The
court found that Tuckwell had made a sufficient showing that she had been denied access
to relevant discovery and would suffer a denial of due process of law if the proceeding
continued consistent with the discovery order, and set a briefing schedule.
       The trial court granted in part and denied in part the petition for writ of mandamus.
The court noted that the February 7, 2013 ruling excluding some of Tuckwell’s witnesses
was not at issue in the writ proceeding. The court found the ALJ did not abuse her
discretion in ruling that the March 8, 2013 petition to compel did not satisfy the statutory
requirements to describe the matter sought, why they were discoverable, and why DSS
had not provided them, and that Tuckwell had not acted diligently in inspecting the
documents. (§ 19574.2, subd. (a).) The court concluded, however, that the ALJ abused
her discretion in prohibiting Tuckwell from introducing into evidence the documents she
reviewed at DSS’s office on March 8 and 15, 2013. The court reasoned that DSS had not
satisfied its discovery obligations promptly and concluded it was an abuse of the ALJ’s
discretion “to penalize Tuckwell by denying her leave to amend her Prehearing
Conference Statement to describe with further specificity the documents on which she
intended to rely in the evidentiary hearing, based on her review of the documents made
available by DSS on March 8 and 15.” The court directed Tuckwell to prepare a
proposed writ and judgment.
       Tuckwell filed a motion for clarification of the trial court’s order, seeking
clarification of (1) whether the court’s order encompassed documents Tuckwell had
requested from DSS during her document review on March 8 and 15, 2013 but had not
yet received, and (2) whether the order encompassed “witnesses that were removed as
part of the March 21, 2013 Order and may be added to Ms. Tuckwell’s Amended


                                              4
[Prehearing] Conference Statement.” The trial court granted the motion as to the first
issue and denied it as to the second. In doing so, the court explained that the order
excluding witnesses was made on February 7, 2013; that the writ petition challenged only
the March 21, 2013 discovery order; that the discovery order addressed the exclusion of
only documentary evidence; and that Tuckwell had not adequately raised or briefed any
challenge to the February 7, 2013 order excluding witnesses.
       The court entered a judgment affirming the denial of Tuckwell’s motion to
compel, directing the Board to “exercise discretion to enter a new Order allowing
Petitioner Tuckwell a reasonable opportunity to amend her Pre-Hearing Conference
Statement to identify documents on which she will rely at the hearing from among those
made available by Respondent Department of Social Services (DSS) and reviewed by her
on March 8, 2013 and March 15, 2013, as well as those documents of which Petitioner
Tuckwell identified on her list of documents for Respondent DSS to retrieve as a result of
her review on March 8, 2013 and March 15, 2013.” The judgment also provided that the
Board “shall retain full usual range of discretion to require Petitioner Tuckwell to provide
the amended statement promptly, to evaluate the statement’s adequacy and specificity,
and to enter further Orders, and manage the litigation before it, accordingly.”
                                       II. DISCUSSION
       Tuckwell contends that the trial court failed to make findings on several issues that
were raised in her petition and that, as a result, she is unable to benefit fully from the
order. She points out that by the time the administrative hearing was stayed, several days
of the evidentiary hearing had taken place, that DSS had completed its presentation, and
that counsel for DSS had expressed his unwillingness to have its case reopened.
Therefore, she argues, she will be unable to cross-examine witnesses fully using the
documents she reviewed on March 8 and 15, 2013. In apparent support of this argument,
she argues the Personnel Board acted improperly in concluding her prehearing statement
was insufficiently specific in its description of the documents she intended to use, that the
ALJ abused her discretion in denying the third motion to compel, that the ALJ erred in
limiting Tuckwell’s use of documents, that the trial court erred in allowing her to amend


                                               5
her prehearing statement to add only documents she reviewed on March 8 and 15, 2013,
that she should be allowed to amend her prehearing statement to add additional witnesses
who might be necessary to allow her to introduce and testify about the documents, and
that she acted diligently in reviewing DSS’s documents.
       Section 19574.1 authorizes an employee who has been served with a notice of
adverse employment action to inspect relevant documents in the possession or control of
the appointing power. Section 19574.2 governs petitions to compel discovery.
Subdivision (a) of that statute authorizes a party to file a petition to compel discovery
with the Board’s Hearing Office. An ALJ then reviews the petition and issues a decision.
(§ 19574.2, subd. (b).) An aggrieved party may seek judicial review of the ALJ’s
decision by filing a petition to compel discovery in the superior court. (§ 19574.2,
subd. (b).) After reading the petition, the trial court may either deny the petition or issue
an order to show cause and allow the respondent party to respond before ruling on the
petition. (§ 19574.2, subd. (c).)
       Section 19574.2 limits appellate review of the trial court’s order: “The order of
the superior court shall be final and, except for this subdivision, shall not be subject to
review by appeal. A party aggrieved by the order, or any part thereof, may within
30 days after the service of the superior court’s order serve and file in the district court of
appeal for the district in which the superior court is located, a petition for a writ of
mandamus to compel the superior court to set aside, or otherwise modify, its order.”
(§ 19574.2, subd. (h), italics added.)
       The trial court’s order granting in part and denying in part the petition was served
on September 10, 2013, and its order on the motion for clarification was served on
October 24, 2013. The judgment, which Tuckwell prepared, was entered on
November 27, 2013. Tuckwell filed her notice of appeal on January 21, 2014.
       DSS contends this appeal should be dismissed because the trial court’s order is not
appealable; that is, the matter was before the trial court pursuant to section 19574.2, and
therefore the ruling could be challenged, if at all, only through a petition for writ of
mandamus. Moreover, DSS contends, the appeal may not be saved by treating it as a writ


                                               6
petition because it was filed more than 30 days after the trial court’s order was served.
Tuckwell contends her appeal is not from the portion of the order upholding the Board’s
denial of her petition to compel, but, as we have described, is based on the contention that
she has been deprived of her due process right to use the documents she has received in a
meaningful way in order to defend her interests.
       DSS has the better of the argument. Ordinarily, a writ of mandamus may be
issued to review an administrative decision only if it is final. (Code Civ. Proc., § 1094.5,
subd. (a); Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal.App.3d 1050,
1055; and see Eight Unnamed Physicians v. Medical Executive Com. (2007)
150 Cal.App.4th 503, 510–511 [whether writ petition is brought under traditional (Code
Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus, party to
administrative proceeding must go through entire proceeding to final decision on merits
before resorting to courts for relief].) An exception to this rule is provided in
section 19574.2, which authorizes a party to a dispute regarding an adverse personnel
action to bring a petition to compel discovery in the trial court. (§ 19574.2, subd. (b).)
Although Tuckwell’s petition in the trial court was styled a petition for writ of mandamus
rather than a petition to compel discovery, it is clear that all involved understood that
Tuckwell was proceeding under section 19574.2. In its order granting Tuckwell’s
application for a stay of the discovery order, the trial court explicitly relied on
section 19574.2 to conclude that she could seek relief in the court. Moreover, the writ
petition itself invoked the statutory scheme, arguing that Tuckwell had been denied her
statutory right to inspect documents under section 19574.1 (a right which is immediately
reviewable as provided by section 19574.2), that she needed to inspect additional
documents in order to develop her defense, and that the March 21, 2013 discovery order
limiting her introduction of evidence violated her due process right to prepare her
defense.3 Having made use of section 19574.2’s authorization to bring her discovery


       3
         For this final point, she relied on two cases considering the right to discovery in
disciplinary proceedings, Nightingale v. State Personnel Board (1972) 7 Cal.3d 507,

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dispute to the trial courts, she may not now disown the restrictions imposed by the same
statute by claiming her dispute is really about other matters.4
       Because section 19574.2, subdivision (h), limits a party aggrieved by a trial
court’s ruling to a writ petition, we conclude this appeal is from a nonappealable order.
Nor can it be saved by treating it as a petition for writ of mandamus. (See Olson v. Cory
(1983) 35 Cal.3d 390, 400–401 [in unusual circumstances, purported appeal may be
treated as petition for writ of mandate].) Section 19574.2, subdivision (h), requires a
petition for writ of mandamus to be brought within 30 days after service of the order.
The trial court’s order granting in part and denying in part the writ petition was served on
September 10, 2013, and the order granting in part and denying in part the motion for
clarification was served on October 24, 2013. Tuckwell filed her notice of appeal on
January 21, 2014, more than 30 days later. Accordingly, even if we were to construe the
purported appeal as a writ petition, it was filed outside the statutory period.
       Tuckwell does not argue that her purported appeal was filed within the statutory
period for filing a petition under section 19574.2. Rather, she suggests that we should
treat her purported appeal as a writ petition but that we should not hold her to the
statutory deadline for filing a writ petition. According to Tuckwell, “Since she did not
file a Writ, it is not relevant whether she met the time requirements for filing a writ.” We
reject this argument. Section 19475.2, subdivision (h), provides the statutory


516–518 [§ 19574.1], and Shively v. Stewart (1966) 65 Cal.2d 475, 479–480
[nonstatutory right to discovery in disciplinary proceeding].
       4
         We note that Tuckwell was successful in persuading the trial court that she
should not be limited to introducing the documents specified in the discovery order and
that she should be allowed to amend her prehearing statement to identify additional
documents from those she reviewed on March 8 and 15, 2013 and from those she
identified and requested as a result of those reviews. While she now argues she should
not have been limited to adding the documents she requested as a result of the March 8
and 15, 2013 reviews, her arguments in the trial court were directed toward her inability
to introduce those documents, not other unspecified documents. Since she got what she
asked for, it is difficult to see how she was aggrieved as to that issue.


                                              8
authorization for Tuckwell to bring her discovery dispute to our attention, and if she is to
receive its benefits, she must meet its standards.
       We also note that even if the purported appeal raised matters outside the scope of
section 19574.2, those matters are not ripe for review. Tuckwell contends that because
part of the evidentiary hearing has already taken place, she will be unable to cross-
examine witnesses fully using the newly available documents. The trial court’s order and
judgment provide that the Personnel Board “will retain its full usual range of discretion to
require Tuckwell to provide the amended statement promptly, to evaluate the statement’s
adequacy and specificity, and to enter further orders, and manage the litigation before it,
accordingly.” Tuckwell has not yet provided an amended prehearing statement
specifying additional documents, the Board has not yet evaluated the amended statement,
Tuckwell has not sought to cross-examine witnesses using the available documents, and
the Board has not yet exercised its discretion on the question of how Tuckwell may
introduce or use any further documents. In the circumstances, we will neither presume
the Board will abuse its discretion nor direct it to exercise its discretion in a particular
way. (See County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643,
654 [“Normally, mandate will not lie to control a public agency’s discretion, that is to
say, force the exercise of discretion in a particular manner.”].)
                                     III.    DISPOSITION
       The appeal is dismissed.




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                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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