Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV116327
McAdams, J.
Appellant Sak Onkvisit was temporarily demoted by his employer, respondent Board of Trustees of California State University. Appellant challenged that disciplinary action by an unsuccessful administrative appeal to the State Personnel Board, followed by an unsuccessful petition for writ of mandamus in the superior court.
Appellant now appeals in this court. As explained in detail below, we find no basis for reversing the trial court judgment denying appellant’s writ petition. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following background summary is drawn from the limited appellate record before us, which does not include the full administrative record.
Representing himself in this appeal, appellant proceeded by appendix, which contains only documents from the clerk’s file. (See Cal. Rules of Court, rule 8.124; Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404.) His notice designating the record, filed July 9, 2009, did not identify any record of administrative proceeding. The parties signed a stipulation concerning the joint appendix, dated September 24, 2009. Among other things, the stipulation provides for appellant “to give notice to the Superior Court to transmit” identified portions of the administrative record, which had been the subject of judicial notice in the trial court.
Events Leading to Discipline
In the spring of 2003, appellant was a full professor teaching a marketing class in the College of Business at the San Jose campus of California State University (CSU).
In April 2003, a student in appellant’s class failed to show up for the second of three required tests, having been injured in a motorcycle accident. The student requested a make-up examination. Appellant refused. The student remained in the course and took the final examination. Appellant gave him a failing grade for the course.
The student petitioned the Student Fairness Committee for a grade change. In October 2003, the committee recommended that the student be allowed to make up the missed examination and that his grade be recalculated based on his score on the make-up exam. Appellant rejected the recommendations.
In December 2003, the matter was forwarded to the university’s Office for Equity & Diversity, which consulted with the university’s Disability Resource Center.
In March 2004, the university’s Manager of Compliance sent a letter to the Associate Dean of the College of Business, advising her that continued failure to accommodate the injured student by providing a make-up examination was “not in compliance with applicable law” and directing her to provide the student “with an opportunity to retake the midterm examination in Business 133-A and to have his grade calculated into his final average for the course.”
At the end of the 2004 spring semester, the Associate Dean administered a make-up examination for the student, which he passed with a score of 82. Starting in July 2004, the Associate Dean made numerous contacts with appellant, demanding the student’s other two grades in the course so that his final grade could be recalculated. Appellant refused, even after being threatened with discipline.
In November 2004, the Faculty Ad Hoc Committee met to consider the matter. It concurred with the decision requiring appellant “to release the student’s other grades in the course” and it supported “the Dean in taking disciplinary action if the grades are not released.” The ad hoc committee set a deadline of November 29, 2004, for appellant to provide the grades.
Appellant did not release the student’s grades.
Discipline
By letter dated April 8, 2005, appellant was given notice of pending disciplinary action. The notice described the pending sanction as demotion to associate professor for one academic year, with a salary reduction of $1,000 per month. The notice cited the cause for discipline as “unprofessional conduct, and failure or refusal to perform the normal duties of the position, as those terms are used in subdivisions (b) and (f) of Education Code §89535.” Attached to the notice was Article 19 of the collective bargaining agreement between appellant’s union, the California Faculty Association, and respondent; that article provides for disciplinary action procedures. The notice advised appellant of his right to meet with the provost’s designee (the review officer) to discuss the matter. On April 15, 2005, appellant and his representative met with the review officer.
The review officer thereafter issued his report, in the form of a letter dated April 22, 2005. Having considered materials provided by appellant and by the university, the review officer stated: “There are reasonable grounds to conclude that the misconduct alleged in the Notice of Discipline occurred. Furthermore, there are reasonable grounds to conclude that the misconduct supports the proposed sanction. I recommend that the disciplinary action be sustained and that the University proceed with the proposed discipline.”
A week later, by letter dated April 29, 2005, the interim provost issued a final decision imposing the proposed discipline.
Administrative Review at CSU
In May 2005, appellant initiated a grievance procedure, which involved two levels of review. The discipline was affirmed at the first level in October 2005 and at the second level in November 2005. In April 2006, appellant’s union declined to take appellant’s grievance to arbitration. Appellant appealed that decision, without success.
Administrative Review at the State Personnel Board
Appellant filed a timely administrative appeal of the disciplinary action with the State Personnel Board (Board). The matter was heard before an administrative law judge in 2006, over the course of seven hearing days in April, September, and October. Briefs were filed thereafter, and the matter was submitted in January 2007.
The administrative law judge issued a proposed decision, which is dated November 26, 2007. The decision affirms the imposition of discipline on appellant, based on a determination that his “refusal to turn over the student’s grades to the ad hoc committee constituted unprofessional conduct and a failure or refusal to perform the normal and reasonable duties of his position” under the relevant statutory provisions.
At its meeting in early December 2007, the State Personnel Board adopted the proposed decision. Appellant filed a petition for rehearing, which the Board denied in February 2008.
Proceedings in the Trial Court
In June 2008, appellant filed a petition for writ of administrative mandamus in superior court. Respondent opposed the petition. Both parties submitted written briefing.
Following a hearing in February 2009, the court denied the petition. A week later, appellant filed a request for statement of decision. The court denied that request in March 2009. In April 2009, appellant filed a motion for new trial. The court denied that motion in June 2009.
Appeal
Appellant filed a notice of appeal on July 9, 2009. In this court, appellant asserts claims of error directed at all three levels of review: the administrative proceedings at CSU, the administrative proceedings before the State Personnel Board, and the proceedings in the trial court.
Legal PRINCIPLES
I. Administrative Proceedings
A. Imposition of Discipline
The grounds for discipline of CSU employees are set forth in Education Code section 89535. Under the relevant portion of that provision, “any employee who works for the Trustees, whether tenured or not, ‘may be dismissed, demoted, or suspended for’ ‘[u]nprofessional conduct’ or for ‘[f]ailure or refusal to perform the normal and reasonable duties of the position.’ ” (Moosa v. State Personnel Bd. (2002) 102 Cal.App.4th 1379, 1385, quoting Ed. Code, § 89535, subds. (b) & (f).)
“Notice of dismissal, demotion, or suspension for cause of an employee shall be in writing, signed by the chancellor or his or her designee and be served on the employee. The notice shall set forth a statement of causes, the events or transactions upon which the causes are based, the nature of the penalty and the effective date, and a statement of the employee’s right to answer within 30 days and request a hearing before the State Personnel Board.” (Ed. Code, § 89538, subd. (a).)
“Discipline imposed on [public] employees affects their fundamental vested right in their employment.” (McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 129; accord, Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572-573.)
B. Administrative Review
“Review of disciplinary action... is directed in the first instance to the [State Personnel] Board. The Board acts as an adjudicatory body, weighing the evidence to determine the facts and exercising discretion to ascertain whether the charges sustained are sufficient for the discipline imposed.” (Moosa v. State Personnel Bd., supra, 102 Cal.App.4th at p. 1384, internal quotation marks omitted.)
1. Statutory Provisions
Specific rules for administrative review are contained in Education Code section 89539. As provided therein, disciplined employees may request a hearing before the State Personnel Board on these grounds: “(A) The required procedure was not followed. [¶] (B) There is no ground for dismissal, suspension, or demotion. [¶] (C) The penalty is excessive, unreasonable, or discriminatory. [¶] (D) The employee did not do the acts or omissions alleged as the events or transactions upon which the causes are based. [¶] (E) The acts or omissions alleged as the events or transactions upon which the causes are based were justified.” (Ed. Code, § 89539, subd. (a)(2).) The statute describes the required process for hearing and decision as follows: “The State Personnel Board shall hold a hearing, following the same procedure as in state civil service proceedings, and shall render a decision affirming, modifying, or revoking the action taken. In a hearing, the burden of proof shall be on the party taking the dismissal action.” (Id., subd. (b).)
Beyond the specific requirements of the Education Code, adjudicatory hearings must comply with applicable provisions of the Administrative Procedure Act. (See Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419; Usher v. County of Monterey (1998) 65 Cal.App.4th 210, 216.) Among the act’s procedural requirements are the following: “Every hearing in a contested case shall be presided over by an administrative law judge.” (Gov. Code, § 11512, subd. (a).) “Each party shall have these rights: to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her.” (Id., § 11513, subd. (b).)
2. Due Process Requirements
“The protections of procedural due process apply to administrative proceedings [citation]; the question is simply what process is due in a given circumstance.” (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.) “No firm rule can be established to ascertain what protections are necessary in a particular situation. Rather the relief to be afforded depends upon balancing the various interests involved.” (Saleeby v. State Bar (1985) 39 Cal.3d 547, 565.) “Thus, due process is a flexible concept that requires protections appropriate to the particular situation.” (Rondon v. Alcoholic Beverage Control Appeals Bd. (2007) 151 Cal.App.4th 1274, 1284.)
The fundamental due process requirements are adequate notice and a reasonable opportunity to be heard before an impartial tribunal. (See Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219.) “Due process does not require any particular form of notice or method of procedure.” (Drummey v. State Board of Funeral Directors and Embalmers (1939) 13 Cal.2d 75, 80; accord, Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215; Bockover v. Perko (1994) 28 Cal.App.4th 479, 486.)
II. Judicial Proceedings
A. Trial Court Review
1. The Statute
Administrative mandamus proceedings are authorized by Code of Civil Procedure section 1094.5. “Administrative mandamus lies to review decisions which result from evidentiary administrative hearings which are required by law to be held.” (Coelho v. State Personnel Bd. (1989) 209 Cal.App.3d 968, 970-971.) The statute permits the issuance of a writ “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal....” (Code Civ. Proc., § 1094.5, subd. (a).)
“The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
In administrative mandamus proceedings, the petitioner bears the burden of showing prejudicial abuse of discretion by the agency. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17, 25.)
2. Trial Court Review Standards
Where the question before the trial court “is whether a fair administrative hearing was conducted, the petitioner is entitled to an independent judicial determination of the issue.” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) “This independent review is not a ‘trial de novo.’ ” (Ibid.) “Instead, the court renders its independent judgment on the basis of the administrative record plus such additional evidence as may be admitted under section 1094.5, subdivision (e).” (Ibid.)
Similarly, the trial court is “required to exercise its independent judgment, while examining the administrative record for any errors of law committed by the [agency].” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1076.)
Where the issue is sufficiency of the evidence to support the administrative findings, the review standard in the trial court depends on the nature of the right at issue. Where “the order or decision does not substantially affect a fundamental vested right, the trial court’s inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) But where “the order or decision of the agency substantially affects a fundamental vested right, the trial court... must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.” (Ibid.; see also, e.g., JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056-1057; Boctor v. Los Angeles County Metropolitan Transit Authority, supra, 48 Cal.App.4th at p. 572.)
“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 817.) “The record must be viewed in a light most favorable to the decision of the Board and its factual findings must be upheld if they are supported by substantial evidence.” (Moosa v. State Personnel Bd., supra, 102 Cal.App.4th at p. 1384, internal quotation marks omitted.)
B. Appellate Review
1. Review Standards
Where “the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court’s determination is the substantial evidence test.” (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824; accord, Jaramillo v. State Bd. for Geologists and Geophysicists (2006) 136 Cal.App.4th 880, 889.) We thus “review the findings of the trial court to determine whether they are supported by substantial evidence on the whole record. If they are, the trial court’s judgment must be upheld on appeal.” (Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 134.)
“Applying the substantial evidence test on appeal, we may not reweigh the evidence, but consider that evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial court’s findings and resolving all conflicts in its favor.” (Breslin v. City and County of San Francisco, supra, 146 Cal.App.4th at p. 1078.) “The question on appeal is whether the evidence reveals substantial support – contradicted or uncontradicted – for the trial court’s conclusion that the weight of the evidence supports the [agency’s] findings of fact.” (Ibid.) “We uphold the trial court’s findings unless they so lack evidentiary support that they are unreasonable. We may not uphold a finding based on inherently improbable evidence or evidence that is irrelevant to the issues before us.” (Ibid.) “This standard of review reflects the respect” that courts have “traditionally afforded public employers’ internal reviewing board decisions.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1083.)
By contrast, “we are not bound by any legal interpretation made by the [agency] or the trial court. Instead, we make an independent review of any questions of law necessary to the resolution of this matter on appeal.” (Breslin v. City and County of San Francisco, supra, 146 Cal.App.4th at p. 1077; Gaytan v. Workers’ Comp. Appeals Bd. (2003) 109 Cal.App.4th 200, 214 [“interpretation of governing statutes is decided de novo by the appellate court”]; Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1092 [“reviewing court is free to determine independently the application of laws, regulations, or procedures”].)
“Further, there is authority that a challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal, since the ultimate question of procedural fairness amounts to a question of law.” (Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 205, citing Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443-1444, & Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170; see also Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1140.) “It may as easily be said that the substantial evidence standard is more suitable in this context, based on the fact intensive nature of the trial court’s findings on the procedure used and the fairness of it.” (Anserv Insurance Services, Inc. v. Kelso, at p. 205.) “In an abundance of caution, ” courts “should use the more protective de novo standard, where [fundamental vested] rights are involved.” (Ibid.)
2. Rules on Appeal
On appeal from an adverse trial court decision, “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, 557.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408; see Cal. Rules of Court, rule 8.204 (a)(1)(B), (C).) These principles apply with equal force to parties representing themselves. (In re S.C, at p. 408; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.) A party challenging a judgment who fails to comply with the rules on appeal risks forfeiture of the claimed error. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
As a fundamental first step, the appellant must provide an adequate record for review. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 363, fn. 7.) “It is the appellant’s affirmative duty to show error by an adequate record.” (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) On appeal in mandamus proceedings, it is the appellant’s responsibility “to make available to the court an adequate record of the administrative proceedings; if he fails to do this the presumption of regularity will prevail.” (Huntington Park Redevelopment Agency v. Duncan, supra, 142 Cal.App.3d at p. 25, internal quotation marks omitted; cf. Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 254-255 [requirement satisfied where the appellant “lodged the administrative record” with the reviewing court].)
DISCUSSION
We first discuss the scope and limits of our review. We then address appellant’s specific contentions, grouping them forum by forum, starting with the challenged administrative proceedings and ending with the challenged judicial proceeding.
I. Appellate Review
A. Review on the Merits
At the threshold, respondent asks us to summarily affirm the judgment based on appellant’s failure to provide an adequate record of the administrative proceedings.
We decline to do so. However, as will become apparent in our analysis below, the lack of a sufficient record necessarily limits our review.
B. Applicable Review Standards
Urging independent review, appellant contends: “Because the issues in the instant case are entirely or predominantly legal, they should be decided ‘de novo’ as a question of law.”
We reject that contention. As the discussion below makes clear, the questions before us are not questions of law. For the most part, they turn on assessments of the reasonableness of the challenged actions by respondent and by the Board.
As a reviewing court, “we are not free to indulge in an independent reconstruction of the events....” (Apte v. Regents of University of California, supra, 198 Cal.App.3d at p. 1090.) Our task is to “review the findings of the trial court to determine whether they are supported by substantial evidence on the whole record.” (Bledsoe v. Biggs Unified School Dist., supra, 170 Cal.App.4th at p. 134.) With respect to contested evidentiary issues, we consider only “whether the evidence reveals substantial support – contradicted or uncontradicted – for the trial court’s conclusion that the weight of the evidence supports the [Board’s] findings of fact.” (Breslin v. City and County of San Francisco, supra, 146 Cal.App.4th at p. 1078.)
To the extent that appellant has placed the fundamental fairness of the administrative hearing at issue, however, we will adopt the cautious approach of reviewing those challenges independently, record permitting. (Anserv Insurance Services, Inc. v. Kelso, supra, 83 Cal.App.4th at p. 205.)
II. Administrative Proceedings
Appellant asserts claims of error directed at both levels of the administrative proceedings: (A) the initial discipline by respondent CSU and (B) the administrative hearing before the State Personnel Board. We consider each set of claims in turn.
A. CSU Proceedings
1. Contentions
Appellant attacks the disciplinary proceedings at CSU on these grounds: (a) failure to meet discipline deadlines (appellant’s opening brief, argument II.A); (b) violations of grading policy (II.B – II. E); (c) impropriety of respondent’s demands (II.F); (d) deprivation of appellant’s arbitration rights (III.A); (e) violation of the collective bargaining agreement (III.B); (f) imposition of an excessive penalty (III.C); and (g) bias on the part of respondent’s reviewofficer (VII.A).
Respondent first counters that appellant has forfeited these claims by failing to provide citations to the record. Respondent also argues that appellant’s claims lack merit.
2. Analysis
To the extent that the record permits, we shall address appellant’s claims on the merits. (See Goehring v. Chapman University, supra, 121 Cal.App.4th at p. 363, fn. 7 [discretionary review on the merits where the respondent “submitted an adequate record”].) But we do so deferentially, from a vantage point several times removed from the disputed events, which have already been reviewed by CSU, the State Personnel Board, and the trial court.
a. Time limits for disciplinary action report and notice
Appellant attacks the timeliness of two documents issued by respondent: the review officer’s report, dated April 22, 2005, and the interim provost’s final decision regarding the pending disciplinary action, dated April 29, 2005. He maintains that both documents were untimely and thus violative of the collective bargaining agreement, sections 19.8 and 19.9. In his grievance, appellant asserted that these and other claimed violations of the collective bargaining agreement rendered the disciplinary action “null and void” and required its rescission.
As demonstrated by the augmented record on appeal, these arguments were rejected by respondent at both levels of the grievance proceeding. In its Level I response, dated October 26, 2005, respondent noted that appellant had “the burden to prove any prejudicial bias against” him arising from “claimed violations of time limits.” In light of the pending appeal to the State Personnel Board, respondent stated, “no remedies are necessary at this level.” In its Level II response, dated November 28, 2005, respondent confirmed its finding that no prejudice had been shown. Concerning the missed deadlines, that document noted that the “Review Officer’s report was issued two days beyond the 5-day timeline” while “the Final Decision Regarding Pending Discipline Action... was issued four days after the operative timeline.” After explaining the attendant circumstances, the Level II response found “no evidence advanced to indicate that” the claimed delays “were prejudicial” to appellant.
To warrant relief on this ground, appellant was required to show both unreasonable delay by respondent and resulting prejudice to him. (See Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67 [laches].) He has done neither. This claim thus was properly rejected by respondent, as later confirmed by the Board and by the trial court.
b. Grading policy
According to appellant, respondent violated its grade-appeal policies in several respects.
(i) First, appellant asserts, the university ignored the requirement contained in CSU Executive Order 792 that students seeking grade changes “should first seek to resolve the matter informally with the instructor of record.”
The available record belies that assertion. The petition form submitted by the student to the Student Fairness Committee indicates that he discussed his complaint with the affected faculty member (appellant). Appellant’s own e-mail of May 2, 2003, likewise reflects an unsuccessful attempt at informal resolution. As appellant recounts in that e-mail, following the missed examination and the student’s appearance at the next scheduled class, the student “came to my office later that week. When he could not get his way, he became very abusive and screamed at me. He also called me names with a racist overtone.” The e-mail continues: “I have had enough of the student’s obnoxious behavior and have made a final determination.” The pertinent grade policy is contained in CSU Executive Order 792, which is part of the augmented record. It provides: “If the matter cannot be resolved informally, the student may present his/her case to the appropriate campus entity, have it reviewed and, where justified, receive a grade correction.”
On these facts, a reasonable decision-maker could conclude either that the requirement had been satisfied or that further attempts at resolution were futile.
(ii) Next, appellant asserts, respondent violated its grade-appeal policy by processing the student’s unsigned, undated petition, and by withholding the student’s petition from appellant.
In support of this assertion, appellant proffers testimony at the administrative hearing from the ombudsman “that he might not have followed the proper procedure.”
As noted above in footnote 1, the hearing transcripts are not part of the record on appeal. Appellant thus provides no cognizable evidentiary support for this assertion, and we reject it on that ground. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141.)
(iii) Appellant next contends that respondent manipulated the process by using false or misleading information to expropriate his responsibility for assigning a grade.
As factual support for this group of contentions, appellant again quotes from the administrative hearing transcript, which is not before us. Appellant also cites CSU Executive Order 792. As appellant points out, it provides: “Faculty have the sole right and responsibility to provide careful evaluation and timely assignment of the appropriate grades.” However, as appellant neglects to mention, the order further provides: “If the instructor of record does not assign a grade, or if he/she does not change an assigned grade when the necessity to do so has been established by appropriate campus procedures, it is the responsibility of other qualified faculty to do so.”
In appellant’s view, “Once the make-up exam was given, the grade should have been given to appellant for course-grade assignment, not the other way around.” As the available appellate record reflects, however, appellant was offered that opportunity. In a May 2004 e-mail, the associate dean advised appellant that she had been directed “to give the student the [make-up] test” and that the ad hoc committee would “be charged with determining the student’s final grade – unless you agree to do so.”
This claim is therefore unavailing.
(iv) As a further argument in support of his claim of grade policy violation, appellant asserts that respondent refused his offer to provide the requested grade information.
That argument is not persuasive, either factually or legally.
Factually, the record reflects appellant’s unwavering refusal to provide the requested grade information at all relevant times – up to and beyond the ad hoc committee’s November 2004 deadline. In an August 2004 e-mail, appellant states: “Regarding your reminder that the grade book and contents are the property of SJSU, this is what I want to say. If SJSU can ignore and violate the rules and laws, then there is no reason for me to follow any rules either. If SJSU wants to initiate any action against me, I will more than welcome it.” In a letter dated October 7, 2004, the associate dean repeated her request for the student’s grades, saying: “As I explained to you in early September, the grades are owned by the state, and your refusal to provide them may lead to a disciplinary action against you.” Appellant responded by letter dated October 26, 2004, saying: “It is pure hypocrisy for you to demand the faculty to follow the rules and regulations while SJSU and your office have been ignoring and breaking so many rules and regulations.” Appellant’s letter closed by saying: “Your threat does not bother me, and I actually welcome SJSU’s attempt to take a disciplinary action. I will vigorously contest it, and that will allow the whole matter to be resolved openly and fairly once and for all.” In a document dated November 9, 2004, the ad hoc committee memorialized its decision, reiterating the requirement that appellant “release the student’s other grades in the course” and supporting “disciplinary action if the grades are not released.” Under the terms of that decision, if appellant “has not released the grades by November 29 [the student] will be given the opportunity to take two alternate exams, each covering one-third of the course not covered on the make-up exam already given.”
Despite these ultimatums, appellant persisted in his refusal to provide the student’s grades, until sometime in 2005. As reflected in the review officer’s report, at the meeting held on April 15, 2005, appellant made several points, including that the Dean of the College of Business was “engaging in selective, vindictive punishment against him. In response to a recent offer to provide the grade information under protest, the Dean declined to accept the offer, telling him that it was ‘too little, too late.’ ” At the meeting, the review officer “learned that the previous offer to provide the grade information was made in late February – approximately February 28, 2005.” Attached to the review officer’s report is a memorandum from appellant, dated April 15, 2005, which states: “All parties should follow the rules and policies to protect faculty rights. Under protest, I will provide grade information as requested.”
On this record, respondent could reasonably conclude that appellant’s offer of compliance was too little, too late.
In fact findings made after the administrative hearing before the State Personnel Board, the administrative law judge effectively so found, saying: “On three occasions the Associate Dean of the College of Business requested that appellant provide the two grades that the student had earned in his class. Appellant refused on all three occasions.” The record amply supports this finding. In his legal analysis, the administrative law judge concluded: “Appellant’s refusal to turn over the student’s grades to the ad hoc committee constituted unprofessional conduct and a failure or refusal to perform the normal and reasonable duties of his position as those terms are used in subdivisions (b) and (f) of Education Code section 89535.” The finding amply supports this conclusion.
In this court, appellant also makes the legal argument that “the dean’s refusal to accept the information demanded by him was a violation of Section 19.3 of the Article 19 (Disciplinary Action Procedure) of the Collective Bargaining Agreement that required him to engage in an attempt to informally resolve the matter before the issuance of a notice of pending disciplinary action.”
That argument is unavailing. Section 19.3 begins: “Nothing contained in this Article shall be interpreted to preclude a voluntary attempt by the parties to informally resolve potential disciplinary actions, whenever possible, prior to the notice of pending disciplinary action.” As the quoted language makes clear, Article 19 permits – but does not require – informal attempts at resolution.
In sum, appellant’s belated offer to comply with respondent’s demands to turn over the student’s grades provides no basis for setting aside the disciplinary action against him.
c. Improper demands
Appellant argues that a charge of insubordination is unwarranted when the refused order is illegal or improper. He maintains: “In spite of being told repeatedly of their irregularities, the deans kept pressing appellant to turn over grade information while refusing to address the issues.”
Though appellant offers no legal support for the point, there is case law holding that “a public employee may refuse to obey an order of his superiors if he has a ‘legitimate reason’ or ‘valid excuse’ for his refusal.” (Moosa v. State Personnel Bd., supra, 102 Cal.App.4th at pp. 1386-1387.)
That authority does not assist appellant, however, because he fails to offer any evidentiary support for his claim that respondent’s demands to turn over the student’s grades were improper. And in fact, the record supports the contrary conclusion. As discussed above, CSU Executive Order 792 makes it “the responsibility of other qualified faculty” to assign a grade where the instructor refuses to do so. The student’s other grades were needed to expedite discharge of that responsibility.
d. Deprivation of arbitration rights
According to appellant, the notice of pending disciplinary action inaccurately described arbitration, which is available under the collective bargaining agreement as an alternative to an administrative appeal to the State Personnel Board. Appellant complains that respondent included a “bogus clause” that the choice of arbitration required the concurrence of his union. In appellant’s words: “The truth is that the faculty union’s concurrence applies only to Article 10 with regard to Level II of grievance. Article 19 has a separate arbitration procedure for disciplinary action” that does not require union approval. He maintains: “It was fraudulent for CSU to use the bogus clause to refuse and deprive appellant of [the] decision to choose arbitration. Appellant was deprived of legal and competent representation that would have been provided through the arbitration process.”
As noted above, however, a copy of Article 19 of the collective bargaining agreement was attached to the notice of pending disciplinary action. Its true terms thus were provided to appellant. In any event, there is no evidence that appellant was misled by the notice’s statement about arbitration. Appellant thus fails to tie the claimed misinformation to any prejudicial decision on his part.
“By choosing to proceed in the manner in which he did, appellant must be held to have waived” the alternative arbitration remedy. (Samann v. Trustees of Cal. State University & Colleges (1983) 150 Cal.App.3d 646, 656.) “Appellant may not be permitted to elect the procedure followed and speculate upon a favorable result, while at the same time reserving objection to the proceedings.” (Ibid.)
e. Violation of the collective bargaining agreement
Appellant contends that respondent violated the collective bargaining agreement by imposing discipline during his administrative appeal.
As support for this contention, appellant quotes from a provision of the agreement (section 19.12b). But that provision relates to arbitrations, not appeals to the State Personnel Board. It thus is inapposite here. Appellant also attempts to support this contention with portions of the administrative hearing transcript and with other evidence, none of which is before us.
Lacking legal and evidentiary support, this contention is without merit.
f. Penalty
Appellant argues that respondent imposed punishment “that significantly surpassed its terms of sanction.” In his words: “The undisputed fact is that the rank reduction and pay reduction lasted 13 months, instead of 9 months.”
As support for this argument, appellant cites the provost’s final disciplinary decision, dated April 29, 2005, which states that the punishment “shall become effective August 22, 2005 and shall remain in place until May 30, 2006.”
There is nothing in the record or the briefs indicating that the letter’s date initiated or otherwise affected the term of the discipline. Nor is there any evidence – undisputed or otherwise – that supports appellant’s claim. To the contrary, appellant’s own verified pleading in this case alleges that he was demoted on August 22, 2005. We therefore reject this claim out of hand.
g. Bias
According to appellant, by designating “its own interim vice president of student affairs” as review officer, respondent “created conflicts of interest.”
As respondent points out, however, appellant failed to assert this argument below. In the trial court, appellant made no claim of bias on the part of the review officer, either in his writ petition or in his moving papers. And so far as we can tell from the limited administrative record before us, appellant likewise did not assert such a claim before the Board. Nor did appellant assert such a claim in his grievance proceedings with respondent. As a general rule, “only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
Even if this claim had been preserved for appellate review, we would reject it on the merits. “Bias and prejudice are never implied and must be established by clear averments.” (Gai v. City of Selma, supra, 68 Cal.App.4th at p. 220, internal quotation marks omitted.) Appellant has not done that here.
Having rejected appellant’s challenges to the administrative proceedings at CSU, we now consider his claims arising out of his administrative appeal before the State Personnel Board.
B. State Personnel Board Proceedings
1. Contentions
Appellant attacks the State Personnel Board’s decision on the following grounds: (a) lack of due process at the hearing (appellant’s opening brief, arguments I.A – I.C); (b) failure to render a timely decision (IV); (c) erroneous exclusion of evidence (V); (d) insufficient evidence to support the findings (VI); (e) bias on the part of the administrative law judge (VII.B); and (f) errors of law (VIII).
As it did in responding to appellant’s other claims, respondent argues that appellant has forfeited these claims by failing to provide citations to the record but it also responds on the merits.
2. Analysis
a. Due process
Appellant claims several due process violations.
(i) Appellant first asserts that the administrative law judge “arbitrarily refused to consider appellant’s arguments and evidence. At the same time, he readily accepted all of the evidence presented by CSU and its administrators, even though their evidence actually contradicts their own allegations and procedures.”
More specifically, appellant takes issue with this statement in the decision: “At the hearing, appellant pointed out what he considered to be numerous factual and legal errors committed by the University in arriving at its conclusion that he should have given the student a make-up examination. Appellant invited the Administrative Law Judge to review all of these errors and reassess the reasonableness of the University’s decision to give the student the make-up examination and recalculate his final grade. The Administrative Law Judge declines to do so.”
In support of his argument that this exclusion of evidence deprived him of due process, appellant relies on two cases. One is Gaytan v. Workers’ Comp. Appeals Bd., supra, 109 Cal.App.4th 200. As the court said there: “Due process requires a meaningful opportunity to present evidence and have it considered in explanation or rebuttal.” (Id. at p. 219.) At issue in that case was the exclusion of a report that was “critical” to determining “the nature and extent of permanent disability” – the central issue in the case. (Ibid.)
The other case cited by appellant is Sinaiko v. Superior Court, supra, 122 Cal.App.4th 1133. That case involved revocation of a doctor’s license to practice medicine. (Id. at p. 1138.) On appeal, the court found that the Board’s “wholesale disqualification of petitioner’s experts rendered the administrative proceedings unfair as a matter of law, ” since the excluded evidence, which concerned the standard of care, went to “the dispositive issue in the case.” (Id. at p. 1141.)
In contrast to both of those cases, the evidence excluded here was not central to the core issue at the administrative hearing – whether appellant’s refusal to turn over the student’s grades properly subjected him to discipline. As the administrative law judge explained: “The pertinent question before the State Personnel Board” was whether the ad hoc faculty committee had the authority to “order appellant to turn over the student’s other two grades so that it could recalculate the student’s final grade.” As the administrative law judge properly concluded, the reasonableness of respondent’s decision to give the student a make-up test was not the issue before him. Evidence on that topic thus was not germane.
Furthermore, even assuming error in excluding the evidence, prejudice must also be shown. Reversal is warranted only “if it is reasonably probable that appellants would have obtained a more favorable result absent the error. That is not the case here.” (Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 1258.) Given the ample evidence supporting discipline in this case, a different outcome would be unlikely.
(ii) In his second due process argument, appellant maintains that the administrative law judge did “nothing more than ‘go through the motions.’ ”
We reject this unsupported claim. It is not enough to “state in a general way that the proceedings have been consistently biased, prejudiced, inequitable or violative of constitutional rights.” (County of Orange v. Smith, supra, 132 Cal.App.4th at p. 1443.) Appellant first must provide an adequate record of the administrative proceedings. (Huntington Park Redevelopment Agency v. Duncan, supra, 142 Cal.App.3d at p. 25.) Additionally, he must “cite to the particular portion of the record” where each challenged “ruling is contained, and identify what particular legal authorities show error with respect to” each claim. (County of Orange v. Smith, at p. 1443.) Appellant has failed to satisfy those requirements here.
(iii) Appellant next argues that the Board violated his due process interest in being treated with dignity and respect. More specifically, appellant takes issue with the Board’s summary adoption of the administrative law judge’s proposed decision.
As appellant aptly observes, longstanding case law holds that an agency adopting the proposed decision of an administrative law judge need not “read or familiarize itself with the record.” Appellant cites one such case, Hohreiter v. Garrison (1947) 81 Cal.App.2d 384. It holds: “Due process requires a fair trial before an impartial tribunal, and that requires that the person or body who decides the case must know the evidence, but due process is not interested in mere technical formalism. It is the substance that is determinative of whether due process has been afforded.” (Id. at p. 401.) In appellant’s words: “The decision of this 1947 case should be visited because it fails to treat public employees with respect and dignity and because an agency should not be allowed to abrogate its duty of oversight.”
The principle enunciated in Hohreiter has been confirmed in the ensuing decades by numerous decisions, including several from the California Supreme Court. (See, e.g., Cooper v. State Bd. of Medical Examiners (1950) 35 Cal.2d 242, 245; Bertch v. Social Welfare Dept. of Cal. (1955) 45 Cal.2d 524, 528-529, disapproved on another point in Frink v. Prod (1982) 31 Cal.3d 166, 180; see also, e.g., Samann v. Trustees of Cal. State University & Colleges, supra, 150 Cal.App.3d at p. 661; cf. Ventimiglia v. Board of Behavioral Sciences (2008) 168 Cal.App.4th 296, 308 [where Board rejected and replaced the proposed decision, petitioner “never had an opportunity to provide either oral or written argument to the Board addressing these new findings and conclusions of law”].)
“A fair and full hearing is given where the fact finder fully reviews the record and an opportunity is given the parties to argue their contentions as to the credibility of the witnesses and the other matters involved in the proceeding.” (Bertch v. Social Welfare Dept. of Cal., supra, 45 Cal.2d at p. 528.) “In any event, procedural fairness is assured where a person is entitled to judicial review under an independent judgment test.” (Samann v. Trustees of Cal. State University & Colleges, supra, 150 Cal.App.3d at p. 661; Cooper v. State Bd. of Medical Examiners, supra, 35 Cal.2d at p. 246.)
Appellant’s contention thus offers no basis for relief.
b. Untimely decision
Appellant maintains that the proposed decision of the administrative law judge was untimely under applicable statutes, which generally require a decision within 90 days of submission. (Gov. Code, §§ 18671.1, 19583.) “Submission occurs on the last day of the hearing, if no other documents are to be filed, or on the last day designated for the filing of briefs or other evidence necessary to complete the record.” (Gov. Code, § 18671.1.) As stated in the administrative law judge’s proposed decision, which is attached to appellant’s writ petition: “The matter was submitted for decision on January 23, 2007.” The proposed decision bears a date of November 26, 2007. Given the 11-month gap between submission and decision, appellant’s assertion of untimeliness is well-founded. As we now explain, however, the fact that the decision was late provides no basis for setting it aside.
Appellant first argues that the administrative law judge’s tardiness in rendering a decision “casts doubt on his due diligence in examining the issues and evidence.” In appellant’s view, the administrative law judge “issued a hastily prepared decision by simply copying respondent’s claims without doing reasonable analysis of the legal issues and evidence.”
We find that argument unpersuasive. A similar contention was raised and rejected in Anserv Insurance Services, Inc. v. Kelso, supra, 83 Cal.App.4th 197. The appellant there argued “that the ALJ must presumably not have had the evidence fresh in his mind 120 days after submission of the matter.” (Id. at p. 207.) The court rejected that and other procedural unfairness claims, saying “on this record, none of the procedural deficiencies shown amounted to reversible error.” (Id. at p. 209.) In this case, with no transcript of the proceedings themselves, there is no evidentiary basis whatsoever for appellant’s claims.
Appellant also suggests that the Board acted in excess of its jurisdiction by issuing the untimely decision, relying on two cases: California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, and State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512.
The 2005 case cited by appellant is inapposite; it concerned a different issue than that presented here. The question there was whether “allowing disciplined state civil service employees to bypass [State Personnel Board] review in favor of pursuing a grievance/arbitration procedure outside the Board would violate the ‘constitutional mandate’ that state civil service appointments and promotions be based solely on merit.” (State Personnel Bd. v. Department of Personnel Admin., supra, 37 Cal.4th at p. 526.) The court answered that question in the affirmative. (Id. at pp. 526-527.) No similar issue is presented in this case.
The issue here is whether the untimeliness of the Board’s decision affects its jurisdiction under the circumstances of this case, a question addressed in the 1995 decision in California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th 1133. As that case makes clear, it does not. California Correctional Peace Officers holds that “the requirement that a decision be rendered within the statutory time is directory, not mandatory. The Board retains jurisdiction over the employee’s appeal notwithstanding its failure to render a decision within the statutory time limits.” (Id. at p. 1138.) It “does not lose jurisdiction over the appeal. It may continue to process the appeal by investigation, hearing, and decision.” (Id. at p. 1156.) Thus, as recognized in an earlier Court of Appeal decision involving a welfare eligibility determination: “The 90 day rule mandates prompt administrative action but does not foreclose late administrative action.” (Westfall v. Swoap (1976) 58 Cal.App.3d 109, 118.)
Nevertheless, as “a statutory consequence” for the Board’s delay, the employee is deemed “to have exhausted administrative remedies. That consequence does not necessarily invalidate future action by the Board, however.” (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at p. 1145.) But it does allow “the employee to bypass [the administrative appeal] remedy if the administrative agency fails to render a timely decision.” (Id. at p. 1152.) Thus, “an employee who has not waived the time limit may seek a writ of mandate against the Board to compel the Board to decide the appeal by a date certain. Alternatively, ... he or she may seek a writ of mandate against the appointing authority to set aside the adverse action.” (Id. at p. 1138.) However, the employee must act “promptly when the time limit has been exceeded and the employee has no reason to anticipate that decision of the appeal is imminent. Failure to file the petition promptly is an implicit waiver of the statutory time limit. [¶] The Legislature did not intend to permit the employee to await a delayed Board decision and then seek traditional mandate rather than review by administrative mandamus if the result of the administrative appeal is unfavorable.” (Id. at p. 1156, fn. 6.)
Applying those principles to this case compels the conclusion that the Board did not lose jurisdiction as a result of its untimely decision here. The Board’s decision was followed – not preceded – by appellant’s writ petition. The fact that the Board’s decision was late thus provides no grounds for setting it aside.
c. Exclusion of evidence
Appellant asserts that the Board failed to proceed in the manner required by law because the administrative law judge “did not allow appellant to provide evidence that showed CSU’s selective and arbitrary punishments as well as retaliations.”
As factual support for this assertion, appellant first relies on the allegations of his writ petition. Those allegations are not evidence. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 376, fn. 5.) Appellant also cites to transcripts of the administrative hearing, which are not before us and thus offer no support. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141.)
Because it lacks cognizable evidentiary support, we reject this assertion.
d. Insufficient evidence
Appellant attacks the sufficiency of respondent’s evidence, arguing that it “is either ‘inherently incredible’ or not of ‘ponderable legal significance.’ ” More particularly, appellant states: “The student’s testimony lacks credibility. He was evasive when asked whether there was any medical document showing that he was seen in the hospital on the day before the exam.” Appellant quotes extensively from the transcript of the administrative hearing to support this claim.
First, as repeatedly noted above, the hearing transcript is not before us on this appeal. It thus provides no support for appellant’s claim. “We must assume the evidence to support the quoted findings was sufficient.” (Feist v. Rowe (1970) 3 Cal.App.3d 404, 426.)
Furthermore, as also explained above, the conduct giving rise to appellant’s discipline was his refusal to turn over the student’s grades. For that reason, the facts surrounding the student’s accident and hospitalization are not germane.
Appellant’s own correspondence, as contained in the augmented record, reinforces the limited relevance of those facts, albeit on different grounds. By way of example, an e-mail from appellant on May 2, 2003 states: “The student failed to show up to take the second of the three required exams on April 10 (Thursday). Apparently, he had a motorcycle accident and was hospitalized on Wednesday (and probably Thursday) of that week. But that is not the issue, and any documentation is irrelevant. The real issue is what he failed to do after being discharged from the hospital.” Other correspondence from appellant in 2003 is to the same effect, including an e-mail later that day, another e-mail on October 27th, and letters on November 10th and 26th. In his November 26th letter, appellant reiterates: “The student’s accident or injury was never an issue.”
Finally, there is ample evidence – discussed in extensive detail above – that appellant improperly withheld the student’s grades. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) That evidence supports the underlying disciplinary action and thus the decision of the Board.
e. Bias
Appellant argues that the administrative law judge was biased against him. Appellant urges: “Based on appearance of neutrality alone, [the administrative law judge] should have recused himself because of his physical conditions and because of CSU’s premise for its disciplinary action... that the student had temporary disability that qualified him for the application of the Americans with Disabilities Act.” Appellant asserts that the administrative law judge’s decision “confirmed appellant’s fear of prejudice.”
As legal support for his bias claim, appellant cites statutes governing disqualification of trial judges. (Code Civ. Proc. §§ 170.1, 170.3.) That authority does not apply here. “The standard of impartiality required at an administrative hearing is less exacting than that required in a judicial proceeding.” (Gai v. City of Selma, supra, 68 Cal.App.4th at p. 219.)
Moreover, the claim is utterly lacking in evidentiary support, particularly given the absence of an administrative hearing transcript. Bias cannot be established by mere implication. (Gai v. City of Selma, supra, 68 Cal.App.4th at p. 220; Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1810.) One “seeking to show bias or prejudice on the part of an administrative decision maker” must provide “concrete facts” to prove the claim. (Gai v. City of Selma, at p. 220.) A subjective “perception of bias in an adjudicator” is not sufficient. (Imagistics Intern., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591-592; see also, e.g., Binkley v. City of Long Beach, at p. 1810.)
“Further, of course, there is no showing how any alleged bias or prejudice of the Board members affects petitioner’s present status as an appellant from a judgment of the superior court denying the issuance of a writ of mandate. The Board did not prevent him from offering any evidence which might be relevant to the judgment of that court, which was based on an independent review of the record.” (Barkin v. Board of Optometry (1969) 269 Cal.App.2d 714, 720.)
f. Errors of law
In his final challenge to the Board’s decision, appellant asserts that it “contains legal errors since it has no basis in law or fact.” In particular, appellant cites a portion of the decision that states: “The State Personnel Board has no authority to review the ad hoc committee’s decision, which is solely within the province of the Academic Senate. If appellant took issue with the committee’s decision, his remedy was to file a petition for writ of mandate to overturn the ad hoc committee’s decision. Having failed to do so, appellant was bound by that decision and was required on pain of discipline to comply with it.” Challenging that analysis, appellant states: “The California constitution mandates the State Personnel Board to review the conduct of an employing agency, not to ignore it. His refusal to review CSU’s policies, decisions, and irregularities represents an attempt to avoid having to perform due diligence as required by his legal duty.”
Appellant fails to show how the Board’s decision lacks a basis in law or fact. To the extent that appellant is renewing his claims that the administrative law judge improperly excluded evidence, we reject those claims for the reasons stated above. To the extent that appellant is attacking the particular portion of the decision quoted immediately above, we discern no legal error. As the administrative law judge correctly observed, his duty is to review the action of respondent, which imposed the discipline, not the decision of the ad hoc faculty committee.
Having considered and rejected appellant’s challenges to the administrative proceedings, we turn to his arguments that the trial court erred.
III. Trial court’s Decision
Appellant argues that the trial court abused its discretion in denying his writ petition. He offers several grounds.
First, appellant claims that the trial judge “in all likelihood did not properly review the administrative record.”
The judge’s comments at the hearing dispel that claim. At the outset of the hearing, the judge stated: “I have had the opportunity this weekend to review your respective positions as set forth in your writings. Additionally, I have a binder which contains records.” Later in the hearing, the judge said: “I have reviewed relevant portions of the administrative record. [¶] My function is to exercise my independent judgment in reviewing the record below, recognizing, as pointed out by Counsel, that there is a strong presumption of correctness. [¶] In reviewing the record, I did not find that there [were] acts in excess of jurisdiction, nor did I find that there was an unfair hearing, nor did I find that the ultimate decisions demonstrated an abuse of discretion. Therefore the petition for administrative writ of mandate is denied.” From these comments, it is apparent that the trial judge reviewed the administrative record provided to him.
Next, appellant complains that the trial judge “denied the request to explain the factual and legal bases for his decision regarding the controverted issues.” According to appellant: “Lack of findings on material issues amounts to reversible error.”
We reject that argument. As the trial judge’s comments reflect, he did explain his decision at the conclusion of the hearing. Effectively, therefore, “the trial court rendered an oral statement of decision.” (Kinney v. Overton (2007) 153 Cal.App.4th 482, 488.) No written statement of decision was required, given appellant’s tardy request: Where, as here, “the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.” (Code Civ. Proc., § 632.) Since a written statement of decision was not required in this case, all intendments favor the trial court’s decision. (Bledsoe v. Biggs Unified School Dist., supra, 170 Cal.App.4th at p. 134.)
In short, we find no basis for reversing the judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Premo, Acting P.J., Elia, J.
On November 19, 2009, after respondent’s brief was filed, appellant submitted a notice “specifying original exhibits (Administrative Record) to be transmitted” to this court. The exhibits specified in the notice were transcripts from the seven days of administrative hearing conducted before the State Personnel Board. On December 9, 2009, the superior court clerk filed a certificate in this court, which stated: “There is no record that any exhibits were admitted. I located a ‘Request for Judicial Notice of Administrative Record in Support of Writ of Administrative Mandate” filed 9/9/08; however, the courtroom clerk stated that an administrative record is lodged for the hearing and then returned to the party.” (See Cal. Rules of Court, rule 8.123(c).)
Meanwhile, on December 1, 2009, respondent filed a motion to augment the appellate record with part of the administrative record. We granted that motion on December 23, 2009. The augmented record contains some of the exhibits submitted by respondent at the administrative hearing before the State Personnel Board. But we have no documentary evidence presented by appellant at that hearing, nor do we have any hearing transcripts.