Opinion
C086332
12-07-2018
DUANE D. REED II, Plaintiff and Appellant, v. SELVI STANISLAUS, as Executive Director, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2013-80001712-CU-WM-GDS)
Duane Reed filed a petition for writ of mandate against Selvi Stanislaus and Chris Beach, in their capacity as executive officers of the Franchise Tax Board (collectively the FTB), asserting wrongful termination, sexual harassment, retaliation, and failure to ensure a workplace free of sexual harassment. The petition sought reinstatement of employment and back pay. The trial court ultimately granted the FTB's motion to dismiss the writ petition because Reed had an adequate remedy at law and he failed to diligently prosecute the writ action.
Reed now contends the trial court erred in granting the motion to dismiss because he actively prosecuted a companion case, he sought to consolidate the two actions, and cases should be resolved on the factual merits rather than on procedural grounds. We conclude, however, that Reed has not established prejudicial error. Accordingly, we will affirm the judgment. We also deny the FTB's request for judicial notice of the complaint and related materials in Reed's companion civil matter, as consideration of those materials is unnecessary to our decision in this case. (Evid. Code, § 459, subd. (a).)
BACKGROUND
Reed filed his original petition for writ of mandate pursuant to Code of Civil Procedure section 1085 in December 2013, and he filed a first amended petition in March 2014. After the FTB filed an opposition, there was no action in the case until a substitution of attorney was filed on December 8, 2016.
Undesignated statutory references are to the Code of Civil Procedure. --------
On June 16, 2017, the FTB filed a motion to deny and, alternatively, to dismiss the writ petition on multiple grounds, including that Reed had an adequate remedy at law and had failed to diligently prosecute the writ action. Reed filed an untimely declaration in opposition to the motion, asserting the matter should be stayed pending resolution of his appeal of a companion 2015 civil action (case No. 34-2015-00184776-CU-WT-GDS) for which his request for consolidation had been denied by the trial court. The trial court granted the FTB's motion to dismiss, concluding that Reed had an adequate remedy at law, and that he did not diligently prosecute the action.
DISCUSSION
Reed contends the trial court erred in granting the motion to dismiss because he actively prosecuted his companion case, he sought to consolidate the two actions, and cases should be resolved on the factual merits rather than on procedural grounds.
Although Reed is representing himself in this appeal, he is held to the same standards and rules of procedure as a licensed attorney. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) The rules require him to include a table of contents and authorities in his appellate briefs, state each point under a separate heading, support each point with argument and citation to authority, and support any reference to a matter in the record by citation to the record. (Cal. Rules Court, rule 8.204(a)(1).) Because a judgment or order of the trial court is presumed correct on appeal, and all intendments and presumptions are indulged in favor of correctness (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133), " 'error must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In addition, an appellant must affirmatively demonstrate the asserted error was prejudicial or appellate relief will not be granted. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 367-368; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 832-833, 836; Cal. Const., art. VI §, 13.) Asserted state law errors are prejudicial if " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error.' " (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; see id. at pp. 800-804; see also § 475.)
Reed has failed to establish prejudicial error in this case. He does not provide sufficient argument or citation to authority to support his claims, and he does not even address one of the grounds for the trial court's ruling, that Reed had an adequate remedy at law. Under the circumstances, his claims fail.
DISPOSITION
The judgment is affirmed. The FTB shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
RENNER, J.