Judge: Curtis A. Kin, Case: 21STCP02591, Date: 2023-08-15 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02591    Hearing Date: August 15, 2023    Dept: 82

Petitioner Arthur Lopez seeks to appeal respondent Department of Motor Vehicle’s suspension of petitioner’s driving privileges.

I.       Factual Background

             On August 10, 2021, petitioner filed a document entitled “Administrative Hearing with CA Dept. of Motor Vehicles Appeal.” Petitioner was arrested for suspicion of driving under the influence of alcohol on December 17, 2020. On or about July 23, 2021, after an administrative hearing, respondent reimposed the suspension of petitioner’s driving privileges to be effective from August 11, 2021, to December 10, 2021. (Pet. Ex. A.) Respondent found that the peace officer who arrested petitioner had reasonable cause to believe petitioner was driving a motor vehicle, that petitioner was lawfully arrested for driving under the influence of alcohol, and that petitioner was driving a motor vehicle when petitioner had 0.08% or more by weight of alcohol in petitioner’s blood. Petitioner alleges that respondent committed errors in the administrative hearing and decision, including by not continuing the administrative hearing to allow petitioner to consult an attorney.

On April 21, 2022, at a trial setting conference, the Court (Hon. Mary H. Strobel) set the petition for hearing on February 21, 2023. On December 7, 2022, Judge Strobel granted petitioner’s ex parte application in part and continued the hearing on the petition for writ of mandate to June 6, 2023.

On April 12, 2023, Judge Strobel granted petitioner’s ex parte application to continue the hearing on the petition of writ of mandate and extend the time to file an opening brief. Petitioner was ordered to file and serve the opening brief 60 days before the hearing and the administrative record and reply brief 15 days before the hearing. Respondent gave notice of the Court’s ruling at the trial setting conference on April 12, 2023.

No opening brief or reply has been filed with the Court. The opening brief was due 60 days prior to the hearing, or June 16, 2023. No administrative record has been lodged with the Court.

II.      Analysis

CCP § 1094.5 allows a party to seek review of the “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.” (CCP § 1094.5(a).) Here, petitioner seeks review of respondent’s decision to suspend driving privileges after an administrative hearing on July 23, 2021.

Under CCP § 1094.5, “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 (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “ ‘prejudicial abuse of discretion.’ ” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CCP § 1094; Cal. Rule of Court 3.1113(a), (b).) The absence of a memorandum is an admission that the motion is not meritorious and may be denied. (Cal. Rule of Court 3.1113(a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rule of Court 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

Here, on April 12, 2023, pursuant to petitioner’s ex parte application, the Court set the petition for hearing on August 15, 2023, and set a briefing schedule. (4/12/23 Minute Order.) Petitioner was present at the April 12, 2023 hearing. After the hearing, respondent provided notice of the continuance of the hearing and briefing schedule. (See Notice of Order on Ex Parte Application Request for Second Continuance of Hearing of Petition for the Writ of Mandate filed 4/12/23.)

Petitioner was required to serve the opening brief 60 days prior to the hearing. No opening brief has been received by the Court. Petitioner has not presented an administrative record. The petition itself does not provide a complete administrative record. Because petitioner has not presented an administrative record or an opening brief, petitioner has not satisfied the burden of proof under CCP § 1094.5.

III.     Conclusion

            The petition is DENIED.