Judge: Donald F. Gaffney, Case: Albert v. California State Bar, Date: 2023-05-24 Tentative Ruling

TENTATIVE RULING:

Demurrer

Respondent California State Bar demurs to the Petition for Writ of Administrative Mandamus and Damages filed on July 19, 2021, by Petitioner Lenore Albert. For the following reasons, Respondent’s demurrer is SUSTAINED, without leave to amend.

REQUESTS FOR JUDICIAL NOTICE: ROA 29 (Respondent’s RJN) and ROA 53 (Petitioner’s RJN)

Respondent requests judicial notice of the following:

• Exhibit B: The January 9, 2019, State Bar Court of California Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-O-12958-YDR (16-O-10548);
• Exhibit C: The January 9, 2019, State Bar Court of California Hearing Department Decision from In the Matter of Lenore Luann Albert, Case No. 16-O-12958-YDR (16-O-10548);
• Exhibit D: The July 10, 2019, Order of the California Supreme Court from In the Matter of Lenore Luann Albert on Discipline, Case No. SD254967, State Bar Court Case Nos. 16-O12958, 16-O-10548;
• Exhibit E: The March 26, 2020, Tentative Decision of the Client Security Fund Commission of the State Bar of California in Application of Nira Schwartz-Woods, Lenore Luann Albert, Respondent, Case No.16-F-12555;
• Exhibit F: The State Bar Member Address Change History for Lenore L. Albert, State Bar No. 210876, printed on April 20, 2021;
• Exhibit G: The December 18, 2020, Final Decision of the Client Security Fund Commission of the State Bar of California in Application of Nira Schwartz-Woods, Lenore Luann Albert, Respondent, Case No.16-F-12555;
• Exhibit H: The October 15, 2020, Petition for Writ of Certiorari filed by Petitioner in Lenore L. Albert-Sheridan v. State Bar of California, United States Supreme Court Case No. 20-6081; and
• Exhibit I: The First Amended Consolidated Complaint in Lenore Luann Albert-Sheridan v. Maricruz Farfan, et al., (C.D. Cal. Bankr. filed April 28, 2021), Case No. SA 8:18-bk-10548- ES, Adversary No. 18-ap-01065-SC, 20-ap-01095-SC.

The court takes judicial notice of Exhibits B-D and Exhibits H-I to the extent that the documents exist in their respective court files. However, judicial notice may not be taken of the truth of the matters in Exhibits B-D and Exhibits H-I. (Evid. Code, §§ 452(d)(1) and 452(d)(2).)

The court takes judicial notice of Exhibits E and G. These documents are official acts of California’s judicial department. (Evid. Code, § 452(c).)

The court takes judicial notice of Exhibit F. (People v. Vigil (2008) 169 Cal.App.4th 8, 12, fn.2 [judicial notice of State Bar membership records is appropriate]; In re Sodersten (2007) 146 Cal.App.4th 1163, 1171, fn.1 [same]; In re White (2004) 121 Cal.App.4th 1453, 1469, fn. 14 [same].)

Petitioner requests judicial notice of the following:

• Exhibit 1: Notice of filing petition for cert in the Adversary proceeding captioned Lenore Albert Sheridan v Farfan (California State Bar), Case No. 18-ap-1065-SC sitting before the Hon. Scott C. Clarkson of the U.S. Bankruptcy Court dated October 11, 2020;
• Exhibit 2: Notice of Change of Address in the State Bar Court, in the Matter of Lenore Albert 20-N00044, dated October 26, 2020;
• Exhibit 3: Joint Status Report, filed by the California State Bar in the Adversary proceeding captioned Lenore Albert- Sheridan v Farfan (California State Bar), Case No. 18-ap-1065-SC sitting before the Hon. Scott C. Clarkson of the U.S. Bankruptcy Court on January 5, 2021;
• Exhibit 4: Letter submitting the State Bar documents identified in its Initial Disclosures by the California State Bar and State Bar Document with the Return to Sender stamped 1-04-2021, signed on October 1, 2021, in the Adversary proceeding captioned Lenore Albert- Sheridan v Farfan (California State Bar), Case No. 18-ap-1065-SC sitting before the Hon. Scott C. Clarkson of the U.S. Bankruptcy Court;
• Exhibit 5: Email to/from Betty Yung, administrator of the Client Security Fund on April 20, 2021; and
• Exhibit 6: Response to the Request for Production of Documents, Set No.3 by the California State Bar and State Bar Document BS #, signed on January 11, 2022, in the Adversary proceeding captioned Lenore Albert- Sheridan v Farfan (California State Bar), Case No. 18-ap-1065-SC sitting before the Hon. Scott C. Clarkson of the U.S. Bankruptcy Court; and
• Cal. Penal Code § 135.

The court takes judicial notice of Exhibits 1-3 to the extent that the documents exist in their respective court files. However, judicial notice may not be taken of the truth of the matters in Exhibits 1-3. (Evid. Code, §§ 452(d)(1) and 452(d)(2).)

The court denies Petitioner’s request for judicial notice of Exhibits 4-6. Petitioner has not provided any legal authority that would allow the Court to take judicial notice of these documents.

The court takes judicial notice of Penal Code section 135 as a statutory law of the State of California. (Evid. Code, § 452(a).)

ANALYSIS: 

A.   Relevant Background Facts

1.    Dr. Nira Schwartz-Woods’ Complaint

In September 2014, Dr. Nira Schwartz-Woods (“Dr. Woods”) asked Petitioner Lenore Albert [Petitioner is referred to as “Respondent” in Exhibit 1 – Client Security Fund’s Tentative Decision] to represent Dr. Woods in a patent litigation matter. Petitioner asked Dr. Woods to pay a $20,000.00 retainer fee. Dr. Woods paid Petitioner the $20,000.00 fee by check. There was no valid, written fee agreement signed by both parties. (ROA No. 2, Petition, Ex. A [Chang Decl. ¶ 7, Ex. 1, State Bar CSF Tentative Decision].) By the end of March 2015, Dr. Woods had grown frustrated with Petitioner’s lack of involvement in Dr. Woods’ patent infringement litigation. On April 1, 2016, Dr. Woods emailed Petitioner and asked Petitioner to return the $20,000.00 retainer fee Dr. Woods paid Petitioner. On April 5, 2016, Dr. Woods reiterated her decision to terminate Petitioner’s representation in the patent infringement matter and again requested return of the $20,000.00 fee. (Id.) That same day [April 5, 2016], Petitioner replied, stating that Petitioner had spent months researching various issues, Petitioner gave Woods advice on venue and she had spent multiple hours consulting with attorneys at Dr. Woods’ request. (Id.) Petitioner did not return any of the $20,000.00 fee paid by Dr. Woods. (Id.)

Dr. Woods submitted a complaint to the State Bar. The State Bar forwarded a letter dated June 3, 2016, to Petitioner’s membership records address. (ROA No. 2, Petition, Ex. A [Chang Decl. ¶ 7, Ex. 1].) The June 3, 2016, letter sought a response from Petitioner addressing information and supporting documentation regarding Petitioner’s view of Dr. Woods’ allegations.

2.    The Client Security Fund’s Tentative Decision

On March 26, 2020, the State Bar’s Client Security Fund Commission (“CSF Commission”) issued a Tentative Decision. [Chang Decl. ¶ 7, Ex. 1].) The CSF Commission found, among other things:

• There was no indication that the advance fee was a true retainer. There was no evidence that the fee was paid solely for the purpose of ensuring Petitioner’s availability for the patent litigation matter.
• Petitioner did not perform any services of value on behalf of Dr. Woods, did not earn any portion of the fees, and thus, had an obligation to return the unearned amount [i.e. the entire fee].
• Petitioner willfully violated Rule 3-700(D)(2) when, upon termination of Petitioner’s employment on April 1, 2016, Petitioner failed to refund to Dr. Woods the unearned fee of $20,000.00.

[Chang Decl. ¶ 7, Ex. 1].)

The CSF Commission also made the following conclusions of law, among others:

• Dr. Woods established that Petitioner received $20,000.00 in advance fees within the meaning of Rule 3.430(A). The failure of Petitioner to refund to Dr. Woods the $20,000.00 falls within the scope of Rule 3.431(8).

[Chang Decl. ¶ 7, Ex. 1].)

The Client Security Fund directed that Dr. Woods be reimbursed $20,000.00 from the Client Security Fund. [Chang Decl. ¶ 7, Ex. 1].)

The Proof of Service for the CSF’s Tentative Decision indicates that the Notice of Tentative Decision, Tentative Decision, and Notice to Application Regarding Funds Already Received Case No. 16-F-12555 was served on March 26, 2020, by mail to:

LENORE L. ALBERT

14272 HOOVER STREET SPC 69

WESTMINSTER, CA 92683

[Chang Decl. ¶ 7, Ex. 1].)

3.    The CSF’s Final Decision

On April 17, 2020, Petitioner sent an email to the State Bar objecting to the Tentative Decision that was served on March 26, 2020. Petitioner made the following claims:

• Petitioner and Dr. Woods never agreed to obtain financing for Dr. Woods’ patent litigation matter.
• Dr. Woods blackmailed/attempted to extort $20,000.00 from Petitioner when Petitioner refused to pursue Dr. Woods’ husband’s organs from the UC Regents and when Petitioner refused to pursue the licenses of several doctors and nurses.
• Dr. Woods stated in writing that she wanted Petitioner to take the $20,000.00 and use it in the fraud matter against the UC Regents. When Petitioner refused to pursue the doctors and nurses and organs, Dr. Woods demanded $20,000.00 and threatened to file a State Bar complaint, knowing Petitioner was already under investigation.
• Dr. Woods suffered no pecuniary loss because Dr. Woods got everything that was agreed to. Thus, Dr. Woods’ claim should be denied.
• Petitioner worked hundreds of hours on both the patent litigation matter and the UC Regents matter for Dr. Woods.
• Petitioner declared bankruptcy under Chapter 7 in 2018, listed Dr. Woods’ demand for $20,000.00 in that petition, and that the demand was discharged in February 2019 without objection. Petitioner states that Dr. Woods’ complaint and the CSF’s decision is an unlawful attempt to collect a debt discharged in bankruptcy.

(ROA No. 2, Petition, Ex. A [Chang Decl. ¶ 9, Ex. 2, State Bar CSF Final Decision].)

Petitioner complained that the State Bar did not bring in an expert to opine on whether Petitioner’s actions were legally competent. (Chang Decl. ¶ 2, Ex. 2.) Petitioner also requested an oral hearing or an allowance of additional declarations, but did not describe any reasons for an oral hearing or additional declarations. (Id.)

In its Final Decision, dated December 18, 2020, the CSF Commission considered the record and Petitioner’s objections and found:

• The UC Regents matter was entirely separate from the $20,000.00 engagement. The $20,000.00 engagement was a patent litigation matter.
• Petitioner was compensated for her work on the UC Regents matter and obtained a positive result for Dr. Woods.
• No portion of the $20,000.00 Petitioner received for the patent litigation matter was given to Petitioner for the UC Regents matter.
• Nothing in the record, including Petitioner’s objections, show that Petitioner performed more than an insignificant portion of the work for the $20,000.00 in advance fees Dr. Woods gave Petitioner for the patent matter.
• The failure of Petitioner to refund to Dr. Woods the $20,000.00 Respondent received for the patent matter falls within the scope of Rule 3.431(8).
• Petitioner cited no authority suggesting that a bankruptcy discharge prevents a client protection fund, such as the State Bar’s CSF, from using its money as it sees fit under its rules.
• Pursuant to Rule 3.440(F), Dr. Woods is not required to exhaust other remedies prior to seeking reimbursement from the CSF. Thus, Petitioner’s assertion that Dr. Woods did not object to the bankruptcy discharge or pursue fee arbitration does not prevent the CSF from providing reimbursement to Dr. Woods.

(Chang Decl. ¶ 9, Ex. 2.)

The CSF Commission directed that Dr. Woods be granted reimbursement of $20,000.00 from the CSF. (Chang Decl. ¶ 9, Ex. 2.)

The Final Decision included a Notice which states:

• Rule 3.450 of the Client Security Fund states that the final decision of the Commission to grant or deny reimbursement may be reviewed in California’s superior courts pursuant to Code of Civil Procedure section 1094.5.
• Any amount reimbursed from the Client Security Fund shall be owed to the State Bar by the attorney.
• Repayment of the reimbursed amount, along with applicable interest and costs, shall be due and payable to the State Bar by the attorney within ninety (90) days of the date of the Final Decision.
• If Superior Court review is sought pursuant to Client Security Fund Rule 3.450, payment is due thirty (30) days after the Superior Court’s final order affirming the Final 16-F-12555.

(Chang Decl. ¶ 9, Ex. 2.)

The Proof of Service for the CSF’s Final Decision indicates that the Final Decision Case No. 16-F-12555 was served on December 18, 2020, by mail to:

LENORE L. ALBERT

14272 HOOVER STREET SPC 69

WESTMINSTER, CA 92683

[Chang Decl. ¶ 8, Ex. 2].)

4.    Payment to Dr. Woods and Petitioner’s Payment

On April 8, 2021, the CSF Commission issued a Notice of Payment confirming that the CSF reimbursed Dr. Woods $20,000.00 on or about December 29, 2020, and assessed $182.00 in processing costs. (ROA No. 2, Petition, Ex. A [Chang Decl. ¶ 10, Ex. 3, CSF Notice of Payment].)

The Proof of Service for the CSF’s Notice of Payment indicates that the Notice of Payment Case No. 16-F-12555 was served on April 8, 2021, by mail to:

LENORE L. ALBERT

14272 HOOVER STREET SPC 69

WESTMINSTER, CA 92683

[Chang Decl. ¶ 10, Ex. 3].)

The State bar received a payment from Petitioner in the amount of $20,801.18, representing the total amount due to CSF from Petitioner. (ROA No. 2, Petition, Ex. A [Chang Decl. ¶ 11, Ex. 4, CSF Ledger].)

5.    The Instant Petition

Petitioner filed the Petition at issue on July 29, 2021. (ROA No. 2.) On December 18, 2020, Respondent issued a Final Order directing Petitioner to reimburse Petitioner’s former client, Dr. Woods, $20,000.00 from the State Bar Client Security Fund. Petitioner alleges that the Final Decision was not served on Petitioner at her last known address registered with the California State Bar and was instead sent to an old address. Petitioner also alleges that: (1) the debt owed to Dr. Woods was discharged in connection with Chapter 7 Bankruptcy Case No. 18-bk-10548-ES on February 26, 2019; (2) Respondent failed to give Petitioner notice or opportunity to be heard, (3) Petitioner was not shown Dr. Woods’s Complaint/Claim to the Client Security Fund; (4) Dr. Woods was using the complaint for an ulterior motive and was less than truthful; (5) the CSF’s decision was not supported by the findings; and (6) the CSF failed to proceed in a timely manner. (Id.)

The instant Petition seeks a Peremptory Writ of Mandate compelling Respondent State Bar to set aside the CSF Commission’s Final Decision, dated December 18, 2020. (ROA No. 2.)

B.   Demurrer

1.    Legal Authority

Petitioner seeks a writ of mandate pursuant to Code of Civil Procedure section 1094.5. Section 1094.5 provides for the issuance of a writ of mandate where the writ is issued for the purpose of inquiring into 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, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer. Section 1094.5 requires that reviewing court not speculate as to the administrative agency’s basis for its decision but determine both whether substantial evidence supports the administrative agency’s findings and whether the findings support the agency’s decision. (Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal. App. 4th 117, 122 [citation omitted].)

A proceeding in mandamus, including one seeking a writ of administrative mandate under Code of Civil Procedure section 1094.5, “is subject to the general rules of pleading applicable to civil actions.” (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271; Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 573; see Code Civ. Proc., § 1109.)

“[T]he ‘demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.’ ” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864.) Specifically, documents in the administrative record are not considered in ruling on a demurrer unless they are “by appropriate reference made a part of the complaint or petition.” (Saint Francis Memorial Hospital v. State Department of Public Health (2021) 59 Cal.App.5th 965, 974 [citations omitted].) “By the same token, portions of the administrative record that the petition does not incorporate cannot be used to cure deficiencies in the petition.” (Id.)

2.    Merits

In its demurrer, Respondent contends the Petition is untimely because CSF Rule 3.450 directs that any Superior Court challenge to the Commission’s Final Decision must be filed no more than ninety days after the date the decision was served. The Final Decision was served by mail on December 18, 2020. Petitioner served Respondent with the Petition on August 2, 2021, more than 200 days [213, to be exact] after Respondent served Petitioner with the Final Decision. (See ROA No. 2 [Petition, Ex. A (Chang Decl. ¶ 9, Ex. 2, State Bar CSF Final Decision)] and ROA No. 7 [Proof of Service of Summons].)

California State Bar Rule 3.450 provides: “The Final Decision of the Commission to grant or deny reimbursement to an applicant may be reviewed in superior court pursuant to a request for review filed by the applicant or attorney in accordance with Code of Civil Procedure section 1094.5. The request must be filed no more than ninety days after the date the decision was served.” (Cal. State Bar Rule 3.450.)

The Petition alleges respondent failed to serve Petitioner with the papers and notices at her Trabuco Canyon address, which was on file with the California State Bar and that the State Bar was already serving her at the Trabuco Canyon address one month before the final decision was ordered. (ROA No. 2, Petition ¶ 5f.) Petitioner alleges that she did not receive the Final Order until April 27, 2021. (Id. at ¶ 3.)

“Code of Civil Procedure section 1013, which prescribes the requirements for valid mail service, requires papers to be addressed to ‘the office address as last given by that person on any document filed in the cause.’ ” (Valero Refining Company - California v. Bay Area Air Quality Management District Hearing Board (2020) 49 Cal.App.5th 618, 634.] The Petition and its attached exhibits demonstrate that the Final Decision was served on Petitioner by mail on December 18, 2020, at 14272 Hoover Street SPC 69 Westminster, CA 92683. (ROA No. 2 [Petition, Ex. A (Chang Decl. ¶ 9, Ex. 2, State Bar CSF Final Decision)].)

Judicially noticeable State Bar records indicate that Petitioner’s address on file with the State Bar on December 18, 2020, was:

14272 Hoover Street

Sp 69

Westminster CA 92683

(Resp. RNJ, Ex. F.)

Petitioner’s Trabuco Canyon address was not effectively on file with the State Bar until January 12, 2021. (Resp. RNJ, Ex. F.) Petitioner has not demonstrated that she filed documents in CSF Case No. 16-F-12555 with the Trabuco Canyon address prior to December 18, 2020. The court finds that Respondent properly served Petitioner at the Westminster address.

Petitioner next contends that the 90-day period to request review should be tolled until April 27, 2021, when Petitioner asserts she received notice of the Final Decision for the first time. Petitioner cites to Cummings v. City of Vernon (1989) 214 Cal.App.3d 919.

Cummings addressed the failure by a local agency [city council] to provide the notice required by section 1094.6(f), on the running of the 90-day statute of limitations set forth in section 1094.6(b). The Cummings court reached its conclusion that a local agency decision should not be deemed to be final for the purpose of section 1094.6(b) until the notice is given pursuant to section 1094.6(f), at least in part, because of the peculiar language used by the Legislature in section 1094.6(f): “In making a final decision ... the local agency shall provide notice ....” The Court of Appeal viewed this language as “reasonably impl[ying] that providing the notice is an essential condition for the decision to become final.” (214 Cal.App.3d at 922.) Accordingly, the Cummings court concluded that the ninety day statute of limitations of section 1094.6 does not begin to run until section 1094.6(f) notice is given. Similarly, the Court of Appeal in El Dorado Palm Springs, Ltd. v. Rent Review Com. (1991) 230 Cal.App.3d 335, determined that section 1094.6’s 90- day statute of limitations is tolled until such time as notice is given as required by section 1094.6(f). (Id. at 346.)

Cummings and El Dorado are distinguishable, however. In both cases, the Court of Appeal found that the notice requirement of Code of Civil Procedure section 1094.6(f) impacted the statute of limitations imposed by section 1094.6. Section 1094.6(f) provides: “In making a final decision as defined in subdivision (e), the local agency shall provide notice to the party that the time within which judicial review must be sought is governed by this section.” California State Bar Rule 3.450 does not have this notice requirement. Petitioner has not provided any authority that the 90-day limitations period prescribed by Rule 3.450 might otherwise be tolled.

The court notes that the address to which the Final Decision was sent is listed as:

LENORE L. ALBERT

14272 HOOVER STREET SPC 69

WESTMINSTER, CA 92683

The address listed in the State Bar records as of December 18, 2020, is listed as:

14272 Hoover Street

Sp 69

Westminster CA 92683

“[S]trict compliance” with Code of Civil Procedure section 1013 is required (Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1967) 255 Cal.App.2d 172, 174), and therefore “ ‘[n]otice of an appealable judgment or order mailed to an incorrect address is not sufficient to constitute legal notice’ for purposes of calculating the deadline to appeal.” (Valero Refining Company - California v. Bay Area Air Quality Management District Hearing Board (2020) 49 Cal.App.5th 618, 634, citing Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288 [notice of entry of judgment addressed with wrong zip code held ineffective]; see also Triumph Precision Products, Inc. v. Insurance Co. v. North America (1979) 91 Cal.App.3d 362, 365 [notice of entry of judgment listing correct street address for appellant’s counsel but omitting law firm name]; Valley Vista Land Co., 255 Cal.App.2d at 173–174 [notice of entry of judgment with incorrect street address].)
Because “SPC” and “Sp” are both abbreviations for “Space”, the court finds that Respondent complied with section 1013 when it mailed the Final Decision.

Based on the foregoing, the court sustains, without leave to amend, Respondent’s demurrer to the Petition.

Motion to Strike

Respondent California State Bar moves to strike the Administrative Record filed by Petitioner Lenore Albert on November 1, 2021. For the following reasons, Respondent’s motion is GRANTED.

In any writ proceeding to review an administrative action, whether by way of administrative mandamus or traditional mandamus, the petitioner bears the responsibility for producing the administrative record. In the absence of the administrative record, petitioner cannot overcome the Evidence Code section 664 presumption that an “official duty has been regularly performed.” (Smith v. Regents of Univ. of Calif. (1976) 58 Cal.App.3d 397, 405 [“Where, as here, the record on appeal is silent or deficient as to the issue presented, it will be presumed that the evidence authorized the decision”].)

If the petition alleges that the administrative decision is not supported by substantial evidence, the petitioner must provide the full administrative record to demonstrate that the decision lacks evidentiary support. “[I]n the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.” (Caveness v. State Personnel Bd. (1980) 113 Cal.App.3d 617, 630; see also Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 574.)

If petitioner contends the record certified by the agency is incomplete, the appropriate remedy is a motion to augment the record. (See Consolidated Irrig. Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 197-201 [reviewing trial court’s decision on augmentation motion under substantial evidence test and augmenting the record because memoranda that were not included in record had been submitted to local government agency]; Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1144 [evidence was not improperly excluded at the hearing, motion to augment record was properly rejected].) A motion to augment the record is also appropriate if petitioner seeks to introduce evidence outside the administrative record that is nonetheless admissible. Extra-record evidence is admissible if it was improperly excluded during the administrative process or in the exercise of reasonable diligence could not have been presented at the hearing, and in certain other situations such as procedural unfairness. (Eureka Citizens for Responsible Gov’t v. City of Eureka (2007) 147 Cal.App.4th 357, 366 [motion to augment record properly rejected because it sought to introduce inadmissible evidence outside administrative record].)

The “complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case.” (Gov. Code, § 11523.)

Here, the court held a Status Conference on October 27, 2021, during which the court ordered that a “physical copy of the administrative record is to be delivered to the courts and the respondent.” (ROA 14, 10/27/21 Minute Order.)

Petitioner requested and paid for the administrative record from Respondent. In October 2021, Petitioner received the administrative record from Respondent. Petitioner concedes that she “created a chronological index, put the four records in order, and filed it in two volumes with the Court, except for the last two pages which were dated April 21, 2021.” (Opp. at 2:19-22.)

The California Practice Guide: Administrative Law notes that “[t]here is no clear authority on the proper procedural motion when petitioner contends that respondent has included improper materials in the certified record that were not in fact before the agency or available to petitioner in the agency proceedings,” but states that “[p]resumably, a motion to strike the objectionable materials from the administrative record would suffice to get the dispute before the court. (Weil & Brown, Cal. Practice Guide: Administrative Law (The Rutter Group 2021) ¶ 20:197.)

Because Petitioner unilaterally reordered the documents and omitted the last two pages from the Administrative Record provided by Respondent, Respondent’s motion to strike is granted.

Respondent to give notice.