Judge: Curtis A. Kin, Case: 22STCP02031, Date: 2023-08-22 Tentative Ruling

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

Case Number: 22STCP02031    Hearing Date: August 22, 2023    Dept: 82

Petitioner Queen O H Anieze-Smith petitions for a writ of mandate directing respondent to California Department of Real Estate to set aside its April 8, 2022 decision to revoke petitioner’s real estate broker license, effective May 9, 2022.

I.       Factual Background

            This proceeding pertains to respondent California Department of Real Estate’s rejection of the findings of an administrative law judge’s decision and subsequent revocation of petitioner Queen O H Anieze-Smith’s real estate broker license.

            According to the petitioner, on July 7, 2010, petitioner was issued License No. 01703070 to practice as a real estate broker. (Pet. ¶ 1.) On August 23, 2021, respondent filed an Accusation against petitioner. (Pet. ¶ 5.) Respondent sought to discipline petitioner for sustaining a felony conviction that was substantially related to the qualifications, functions, or duties of a real estate licensee. (Pet. ¶ 5.) After a request from petitioner, an administrative law judge (“ALJ”) held a hearing on the merits of the Accusation. (Pet. ¶ 7.)

            During the hearing, the ADJ received evidence regarding petitioner’s underlying criminal conviction. (Pet. ¶¶ 8-10.)

            On May 31, 2016, in the United States District Court for the Central District of California, a jury convicted petitioner of five felony counts of violating 18 U.S.C. §§ 1347 (Health Care Fraud). (Pet. ¶ 8.) Petitioner was a 50% owner of a company that received payments from private individuals, insurance carriers, and Medicare from the sale of durable medical equipment. (Pet. ¶ 9.) Petitioner maintained her innocence during the administrative hearing, insisting that she was not responsible for the company’s billing functions. (Pet. ¶ 9.) The ALJ determined that, due to the convictions, petitioner was placed on home detention and probation, which petitioner completed. (Pet. ¶ 10.) Petitioner was also ordered to pay $814,445.95, which she had not finished paying. (Pet. ¶ 10.)

The ALJ found that cause existed to discipline petitioner’s license but that mitigating circumstances warranted the issuance of a restricted salesperson license to petitioner. (Pet. ¶¶ 13, 18.) The ALJ found that petitioner did not have the opportunity to demonstrate full rehabilitation because her criminal probation had terminated less than a year from the date of the administrative hearing and petitioner had a strong incentive to obey the law while on probation. (Pet. ¶ 17.) The ALJ also found, however, that petitioner was active in her church and community and that she had strong familial relationships. (Pet. ¶¶ 11, 15.) The ALJ also noted that petitioner’s criminal convictions were more than five years old. (Pet. ¶ 15.)

            On April 8, 2022, respondent issued a decision to reject the ALJ’s order to issue a restricted license to petitioner. (Pet. ¶ 20.) Respondent argued that the real estate consuming public would be at risk if petitioner were allowed to have a license. (Pet. ¶ 21.)

Respondent allegedly placed significant weight on plaintiff’s failure to fully pay restitution, the convictions not having been expunged, and petitioner’s insistence that she was innocent. (Pet. ¶ 22.) Petitioner argues that respondent’s decision was arbitrary, because she cannot fully pay restitution due to her financial circumstances, because a federal conviction cannot be expunged except in extraordinary circumstances, and because she should not have to falsely express remorse. (Pet. ¶¶ 23, 24.)

On May 27, 2022, petitioner filed a Verified Petition for Writ of Administrative Mandate and Request for Immediate Stay. Petitioner seeks a writ of mandate directing respondent to set aside its decision or remanding the case for reconsideration of the penalty.[1] (Prayer ¶ 2.) On September 21, 2022, respondent filed an Answer.

On May 26, 2023, petitioner filed an opening brief. On June 23, 2023, respondent filed an opposition. No reply has been filed. Nor has an administrative record been lodged.

II.      Analysis

The petition is brought under CCP § 1094.5. (Pet. ¶¶ 3, 26.) 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].)

On October 18, 2022, the Court set the petition for hearing on July 27, 2023, and set a briefing schedule.[2] (10/18/22 Minute Order.) Petitioner was ordered to file and serve the opening brief 60 days prior to the hearing date. Petitioner filed an opening brief. The opening brief largely focuses on the request for a stay of the administrative decision under CCP § 1094.5(h)(1) and not the petition for a writ of mandate, which is the subject of the instant hearing. (OB at 4:23-8:16.)  The opening brief fails to cite to the administrative record. (See Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)  To the extent the opening brief argues that a writ of mandate should issue because the penalty was based on impermissible factors, that argument fails to recognize that the applicable regulations explicitly permit consideration of restitution paid, expungement of the applicable conviction (or lack thereof), and petitioner’s attitude and lack of remorse.  (See Cal. Code Regs., tit. 10 § 2912(b), (c), (m).)

Petitioner was ordered to lodge the administrative record 15 days prior to the hearing date. (10/18/22 Minute Order.) Petitioner has not presented an administrative record. Neither the petition nor the opening brief provides any exhibits which could be deemed the complete administrative record or part of the administrative record.

Because petitioner has not presented an administrative record or sufficiently set forth any argument why the Court should issue a writ of mandate, petitioner has not satisfied the burden of proof under CCP § 1094.5.

III.     Conclusion

            The petition is DENIED.