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McFadden v. California State Personnel Board

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B163458 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B163458.

11-6-2003

MARY MCFADDEN, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, ET AL., Defendants and Respondents.

Mary McFadden, in propria persona, for Plaintiff and Appellant. Bill Lockyer, Attorney general, Jacob Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Lead Supervising Deputy Attorney General and Zachary D. Wechsler, Deputy Attorney General for Defendants and Respondents.


Plaintiff Mary McFadden ("plaintiff") appeals from a post-judgment order (Code Civ. Proc., § 904.1, subd. (a) (2)). By such order, the court placed off calendar plaintiffs motion to set aside the judgment in this case, a judgment which plaintiff contends was secured by the defendants by means of extrinsic fraud. In our review of the appellate record and plaintiffs brief, we find no cause to reverse the trial courts order. Therefore, the order will be affirmed.

BACKGROUND OF THE CASE

The defendants are the California State Personnel Board and the California Department of Consumer Affairs. Plaintiff filed this suit seeking administrative mandamus relief after adverse administrative action was taken against her in connection with her employment with the Department of Consumer Affairs. When such relief was denied by the trial court, she filed an appeal which was decided by this division. We affirmed the judgment, and the judgment became final in November 1999.

On August 30, 2002, plaintiff filed a motion to set aside the judgment on the ground of extrinsic fraud. At the hearing on plaintiffs motion, which was held on October 2, 2002, the court observed that plaintiff, in addition to filing such motion, has also sought relief from the judgment by means of a separate suit, which she apparently filed in February 2002. The court stated to plaintiff that the relief she is seeking by means of her motion is better handled by way of the separate suit because plaintiff would be presenting witnesses to prove the asserted fraud, and plaintiffs motion to vacate is not a normal vehicle for evidentiary hearings. On that basis, plaintiffs motion to vacate the judgment was placed off calendar. Plaintiff then filed a motion "to place motion for an order back on the record." This second motion was apparently a motion for reconsideration. It was heard on November 6, 2002, and was also ordered off calendar. On November 26, 2002, plaintiff filed a notice of appeal from the order on her motion to vacate the judgment.

Although plaintiffs notice of appeal states that her motion "was originally heard and decided on October 3, 2002," it is clear to us that she intended to appeal from the order dated October 2, 2002, and we so construe her notice of appeal.

Plaintiff has devoted a considerable portion of her appellate brief to explaining how, in her opinion, she is the victim of defendants extrinsic fraud. However, the question whether there actually was such fraud is not really before us now. The only issue in this appeal is whether the trial court committed reversible error by placing plaintiffs motion to vacate off calendar rather than hearing it on its substantive merits. If we were to find that reversible error was committed when the court placed the motion to vacate off calendar, we would order the court to hear that motion on its merits, and it would be the trial court, not this court, that would be the first court to consider such motion on its merits. In any event, however, there are at least three grounds on which to affirm the order from which plaintiff has appealed.

By the term "substantive merits," we mean the merits of plaintiffs claim of extrinsic fraud—that is, whether there is any merit to her claim that she is the victim of extrinsic fraud. By the term "substantive merits," we do not mean whether she was procedurally correct in choosing to file a motion to vacate the judgment as a means of asserting the claim of extrinsic fraud. That would be a question about the procedural merits of her motion.

First, we find that plaintiff has waived the right to complain of error since she failed to include, in the appellate record, her moving papers and the corresponding papers filed by defendant in response. In order to determine whether a trial courts order constitutes reversible error, we must review the papers filed by the parties that the trial court itself reviewed when it issued its orders.

Plaintiff states in her appellate brief that on the day of the hearing on her motion to set aside the judgment, "the Court returned all pleadings and exhibits to the parties." Perhaps plaintiff is mistaken. Courts do not give back to the parties papers that have been filed, and here, the appellate record shows that plaintiffs motion and defendants response were filed. In any event, even assuming for purposes of argument only that the court did return the papers to the parties, plaintiff should have timely moved for leave to file them with this court to augment the record so that we would have them to review.

Second, plaintiffs appellate brief does not address the propriety of the trial courts decision to rule on plaintiffs motion on the ground of another action pending. Plaintiff does not discuss whether the fact that another action was pending is a valid reason for placing her motion off calendar.

Third, plaintiff has already contested the validity of the judgment which she now seeks to set aside. Yet, she has not addressed, in her brief, the obvious question whether the law permits her to have a second bite at the apple to have the judgment reversed.

Judgments and orders are presumed to be correct, and reversible error must be affirmatively shown by the persons challenging them. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) For at least the three reasons we have discussed, plaintiff has not met this appellate burden.

DISPOSITION

The order from which plaintiff has appealed is affirmed. The parties will bear their own costs on appeal.

We Concur: KITCHING, J. and ALDRICH, J.


Summaries of

McFadden v. California State Personnel Board

Court of Appeals of California, Second District, Division Three.
Nov 6, 2003
No. B163458 (Cal. Ct. App. Nov. 6, 2003)
Case details for

McFadden v. California State Personnel Board

Case Details

Full title:MARY MCFADDEN, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL…

Court:Court of Appeals of California, Second District, Division Three.

Date published: Nov 6, 2003

Citations

No. B163458 (Cal. Ct. App. Nov. 6, 2003)