Judge Carolyn M. Caietti, Case 37-2020-00043959-CU-WM-CTL 2024-01-26 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2020-00043959-CU-WM-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024 01:30:00 PM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Writ of Mandate Discovery Hearing 37-2020-00043959-CU-WM-CTL LATHAM VS CA DEPT OF CORRECTIONS AND REHABILITATION AND WARDEN MARCUS POLLARD RJ DONOVAN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Petitioner's Joshua Latham's Motion for Order Compelling Response to Demand for Production of Documents and Tangible Things for Inspection, Copying and Photographing is DENIED.

As described by Petitioner, this case concerns 'a writ of mandate challenging CDCR's March 20, 2020 final administrative order to force me into an involuntary psychiatric transfer to the Department of State Hospital Atascadero.' Petitioner further maintains, 'CDCR recently made admissions that its officers are in fact operating the illegal microwave weapon described in my complaints...' According to the motion, Petitioner served a demand for production on November 10, 2022, and CDCR failed to respond.

Petitioner seeks to compel production and sanctions of $4.90 (copying and pen costs).

Procedurally, the motion is defective. The motion does not include a memorandum in violation of California Rules of Court, rule 3.1113(b). Petitioner only filed an 'amended' motion after Respondent opposed. (ROA 181.) The Court reviewed and considered the amended motion. Substantively, Petitioner has not met his burden. Generally, evidence admitted in a writ action can only include the administrative record. (C.C.P., § 1094.5(e).) Evidence outside the administrative record is admissible only when the court determines relevant evidence exists that 'in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing...' (Ibid; see also, City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 774-75, fn. 6 (explaining the administrative record should contain all evidence the parties consider necessary to the resolution of contested issues and, consequently, post-hearing discovery may reasonably be limited to inquiries calculated to yield evidence which through no fault of the offeror does not appear in the administrative record).) For additional evidence not available at the hearing, specific allegations must be set forth in the petition that the evidence sought to be discovered is relevant and falls within the discovery exception of C.C.P.

section 1094.5(e). (Board of Dental Exam'rs v. Superior Court (1976) 55 Cal.App.3d 811, 813 (ruling a dentist's allegation, on information and belief, that the respondent-board considered evidence outside the administrative record in reaching its decision to revoke his license was insufficient to warrant discovery orders where the 'information and belief' allegation was factually unsupported supplying foundation for belief).) Here, in the original motion, Petitioner alleges without any supporting facts that 'investigative files regarding the officers misconduct with the microwave weapon, and name and capabilities of the microwave weapon were unavailable at the administrative hearing because hearing officer F. Armonta committed fraud and deceit and dishonesty.' Explanation of the alleged fraud is not provided.

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3000050 48 CASE NUMBER: CASE TITLE: LATHAM VS CA DEPT OF CORRECTIONS AND 37-2020-00043959-CU-WM-CTL In the amended motion, Petitioner argues investigation reports into the officers' misconduct were not available at the administrative hearing because CDCR's 'chief office of appeals in Sacramento ordered the investigations after the administrative hearing' and CDCR admitted its officers are operating illegal microwave weapon because it made findings of 'exonerated.' There are several administrative hearings alleged and Petitioner does not pinpoint this timing. Further, the fact CDCR exonerated officers does not show it admitted to anything. The amended motion also repeats Petitioner's unexplained fraud claim.

For improperly excluded evidence, the petitioner must have made the necessary offer of the evidence at the hearing and exercised reasonable diligence in doing so; failure to do so waives any right to assert the issue on judicial review. (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 773 ; Metropolitan Water Dist. of S. Cal. v. Winograd (2018) 24 Cal.App.5th 881, 897 (ruling trial court did not err in denying motion to augment the administrative record when moving party did not attempt to show the evidence could not have been submitted at the hearing in the exercise of reasonable diligence).) Here, Petitioner's original motion declares Officer Armonta, 'improperly denied me the opportunity to cross-examine Lt. R.

Calvert regarding his falsified CDCR 128-MHS 'Mental Health Referral Chrono' and the name and capabilities of the microwave weapon installed in the computers in the Investigative services unit office at every CDCR institution statewide.' Petitioner does not sufficiently explain how he offered this evidence, exercised reasonable diligence and what he actually seeks to discover as his complaints concerns denying him the opportunity to cross-examine and not evidence he sought to introduce. The amended motion does not discuss any improperly excluded evidence.

Without an affirmative showing the documents Petitioner seeks are relevant under C.C.P. section 1094.5, were presented at the administrative hearing but improperly excluded or could not have been produced in the exercise of reasonable diligence, the Court cannot grant leave to seek discovery beyond the scope of the administrative record.

For these reasons, the motion is DENIED.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Respondent is ordered to serve written notice of the Court's final order on all parties by January 26, 2024.

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