Judge: Curtis A. Kin, Case: 22STCP02310, Date: 2023-08-10 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 22STCP02310    Hearing Date: December 7, 2023    Dept: 82

            Petitioners Robert L. Warnock, Jr. and Stephenie Lucio petition for a writ of mandate declaring the April 28, 2022 meeting held by respondent Los Angeles County Metropolitan Transportation Authority Board of Directors to be null and void.

I.       Factual Background

On April 28, 2022, the Board of Directors (“Board”) of the Los Angeles County Metropolitan Transportation Authority (“MTA”) held a meeting and approved the North Hollywood to Pasadena Bus Rapid Transit Corridor Project (“BRT Project”). Under the BRT Project, one lane on each side of Colorado Boulevard from Eagle Rock Boulevard to Linda Rosa Avenue would become a dedicated bus lane.

The April 28, 2022 meeting took place by teleconference. Petitioners Robert L. Warnock, Jr. and Stephenie Lucio allege that the Board violated the Ralph M. Brown Act, Government Code §§ 54950-54963 (“Brown Act”), by holding the meeting by teleconference rather than in person. The Board allegedly failed to find by majority vote within 30 days of the April 28, 2022 meeting that a state of emergency continued to impact the ability of the members to meet in person, as purportedly required by Government Code § 54953(e).

Petitioner Warnock signed a petition against the BRT Project in August 2019. Petitioner Lucio emailed the MTA with approximately 600 petitions, including Warnock’s petition, on August 14, 2019. Warnock allegedly received no notice of the April 28, 2022 meeting at least 72 hours before the meeting, as purportedly required by Government Code § 54954.1.

The Board also allegedly violated Government Code § 54954.3 by restricting public comments to one minute.

Based on the alleged violations of the Brown Act, petitioners seek a declaration that the April 28, 2022 Board Meeting is null and void.

II.      Analysis

The Brown Act “requires the meetings of such bodies to be open to the public, held on a regular schedule, and conducted in accordance with an agenda available in advance of the meeting.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 514; see Gov. Code §§ 54950-54954.)

Government Code § 54953(e)(1) allows a legislative body to use teleconferencing without complying with subdivision (b)(3) of section 54953, pertaining to access of teleconference locations to the public, if, not later than 30 days after teleconferencing for the first time and every 30 days thereafter, the legislative body finds by majority vote that (1) the state of emergency continues to directly impact the ability of members to meet safely in person or (2) state or local officials continue to impose or recommend measures to promote social distancing.

Government Code § 54954.1 allows any person to request that a copy of the agenda of any meeting of a legislative body be mailed or emailed to that person. Government Code § 54954.2(a)(1) requires the legislative body of a local agency to post an agenda in a location that is freely accessible to the public and on the agency’s website at least 72 hours before a regular meeting.

Government Code § 54954.3 allows the legislative body of a local agency to adopt reasonable regulations which limit the total amount of time each individual speaker may provide testimony during a meeting.

Government Code §§ 54960 and 54960.1 set forth procedures for enforcing the Brown Act. Section 54960(a)(1) states: “The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2….” Section 54960.1(a) states in pertinent part: “The district attorney or any interested person may commence an action by mandamus or

injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section.”

On June 20, 2022, petitioners Robert L. Warnock, Jr. and Stephenie Lucio filed a verified petition for writ of mandate. On July 13, 2022, petitioners filed an amended verified petition for writ of mandate.

The petition for writ of mandate is brought pursuant to CCP § 1085. (FAP ¶ 5.) “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as

required by law.” (Id. at 705.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “The petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

Petitioners also refer to CCP § 1094.5 in the operative First Amended Petition. (FAP ¶ 5.) 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 CRC 3.1113(a); Local Rule 3.231(b) [describing noticed motion procedure for prerogative writs].) The absence of a memorandum is an admission that the motion is not meritorious and may be denied. (CRC 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.” (CRC 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

Rule of Court 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories”. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The Court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

On September 29, 2022, the Court (Hon. Mary H. Strobel) held a trial setting conference. (9/29/22 Minute Order.) The Court ordered petitioners to serve and file the opening brief 60 days prior to the hearing date of July 25, 2023. (Ibid.) The parties were to provide evidence either through a joint record lodged with the reply brief or, if the parties could not agree on a joint record, by appending the evidence to the parties’ respective briefs. (Ibid.)

            On August 10, 2023, the instant writ petition was heard. The Court issued a tentative ruling denying the petition because petitioners did not file an opening brief or an administrative record. (8/10/23 Minute Order at 4.) During the hearing, counsel for the parties stipulated to the continuance of the hearing to allow for full briefing. (Id. at 5.) Based on counsel for petitioners’ representation that the opening brief was prepared and could be filed forthwith, the Court ordered the opening brief to be filed and served by August 11, 2023. (Ibid.)

No administrative record was ever lodged with the Court.[1] Although evidence appears to be attached to the First Amended Petition, no opening brief with citations to evidence was timely filed, either by the deadline provided by the Court during the trial setting conference or the deadline provided by the Court during the hearing on August 10, 2023.[2]

Accordingly, petitioners fail to meet their burden to demonstrate how respondent Los Angeles County Metropolitan Transportation Authority Board of Directors violated the Brown Act. Pursuant to Rule of Court 3.1113(a), the Court exercises its discretion to deny the petition.

III.     Conclusion

            The petition is DENIED.