Judge: Curtis A. Kin, Case: 23STCP00549, Date: 2024-06-27 Tentative Ruling

Case Number: 23STCP00549    Hearing Date: June 27, 2024    Dept: 86

Petitioner Ismael Diaz petitions for a writ of administrative mandate directing respondent Director, Department of Motor Vehicles to set aside an administrative decision and reinstate his occupational license and business partner automation permit. Petitioner alleges that the Administrative Law Judge revoked his occupational license because petitioner had pled nolo contendere to a felony. The felony was allegedly reduced to a misdemeanor, but the court docket reflecting the reduction was purportedly not available during the administrative hearing.

II.      Procedural History

            On February 24, 2023, petitioner filed a Petition for Writ of Administrative Mandamus. On June 18, 2024, respondent filed an Answer.

            On February 13, 2024, the Court heard the instant petition for writ of mandate. No opening brief had been filed at the time of the hearing. The Court continued the hearing to June 20, 2024. The Court ordered petitioner’s opening brief to be filed and served 60 days prior to the hearing date, i.e., April 22, 2024, as April 21 was a Sunday. The Court ordered respondent’s opposition to be filed and served 30 days prior to the hearing date, i.e., May 21, 2024. The Court ordered petitioner’s reply to be filed and served 15 days prior to the hearing date, i.e., June 5, 2024.

Both petitioner and respondent were present at the February 13, 2024 hearing when the Court continued the hearing on the writ petition and ordered a new briefing schedule based on the continued hearing date. Respondent also provided written notice of the briefing schedule to petitioner. (See Notice of Ruling filed 2/22/24.) The hearing was later continued on the Court’s own motion to June 27, 2024, with the briefing schedule based on the June 20, 2024 hearing date. (6/5/24 Minute Order.)

            On April 19, 2024, petitioner timely filed an opening brief. On June 20, 2024, respondent served and filed an untimely opposition and lodged the administrative record. No reply brief has been received.

III.     Analysis

A.           Untimely Opposition

As recounted above, on June 20, 2024, respondent filed and served an opposition brief. The opposition was due on May 21, 2024, thirty days before the June 20, 2024 hearing date. Respondent was present at the hearing when the briefing schedule was set. (2/13/24 Minute Order.) Respondent also provided notice of the briefing schedule to petitioner. (Notice of Ruling filed 2/22/24.) Though the Court continued the hearing to June 27, 2024, the briefing schedule remained pursuant to the June 20, 2024 hearing date. (6/5/24 Minute Order.)

“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765, emphasis added; see also CRC 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

Prior to the filing of the opposition, respondent did not attempt to obtain leave, such as through an ex parte application or otherwise, to file a late opposition. In the opposition, respondent does not attempt to provide any justification for the blatantly and unquestionably late filing. Respondent seemingly expects this Court to countenance the filing of the opposition nearly one-month late and only one week prior to the hearing. Considering the Court’s already full schedule and the absence of any good cause, the Court declines to accommodate respondent’s lack of professionalism or respect for the schedule ordered by this Court through any continuance. Rather, the Court exercises its discretion to refuse to consider respondent’s opposition. Respondent’s opposition filed on June 20, 2024 is accordingly STRICKEN.

B.           Merits

The petition for writ of mandate is brought pursuant to Code of Civil Procedure (“CCP”) § 1094.5. (Pet. at 1:14-15.) 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…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.)

Petitioner argues in the opening brief that, during a November 2, 2022 administrative hearing concerning the revocation of his occupational license, the Administrative Law Judge decided to revoke the license based on petitioner having been convicted of a felony. However, petitioner asserts that, on October 24, 2022, his conviction was reduced to a misdemeanor. Petitioner contends that he was unable to obtain a copy of the court docket reflecting the reduction to a misdemeanor prior to the administrative hearing.  

With respect to the administrative record relating to the instant petition, during the February 13, 2024 hearing before this Court, petitioner stated that the administrative record had been completed. (2/13/24 Minute Order.) “[A] person challenging in the trial court the orders of a licensing board in a disciplinary proceeding cannot simply present the court with the administrative record and assert, without analysis or specific citations to the record, that the board’s orders were against the weight of the evidence. Instead, the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging and demonstrate (with citations to the record) why those factual findings were against the weight of the evidence.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.) Here, in neither the opening brief nor the petition does petitioner provide any citation or reference to the administrative record. The Court will not engage in a search of the record and attempt to meet petitioner’s initial burden for him.  

Further, petitioner’s “memorandum [of points and authorities] 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.” (California Rules of Court, rule 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].)

Neither petitioner’s opening brief nor the petition contain any citation to authority supporting issuance of a writ of mandate. Petitioner generally references the Department of Motor Vehicle’s Disciplinary Guidelines, but he does not explain how, in light of the purported reduction of his conviction from a felony to a misdemeanor, the Guidelines would have allowed the Administrative Law Judge to consider imposing less severe discipline other than revocation of his license. The Court cannot develop petitioner’s arguments for him.

Further, with respect to petitioner’s contention that evidence demonstrating that his conviction was reduced to a misdemeanor was not available for the administrative hearing, “[t]he general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Petitioner has not moved to augment the administrative record under CCP § 1094.5(e). “Augmentation of the administrative record is permitted only within the strict limits set forth in section 1094.5, subdivision (e)….” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) “In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented.” (Ibid.) Insofar as petitioner’s conviction was reduced from a felony to a misdemeanor, because petitioner failed to demonstrate in any motion why the administrative record should be augmented, the Court cannot consider evidence to this effect.

For the foregoing reasons, petitioner has not met his burden of proof under CCP § 1094.5 to show a prejudicial abuse of discretion or a denial of a fair trial, or that respondent proceeded without or in excess of jurisdiction.

IV.     Conclusion

            The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent Director, Department of Motor Vehicles shall prepare, serve, and ultimately file a proposed judgment.