Judge James C. Chalfant, Case 21STCP00296 2022-07-28 Tentative Ruling

Restauration LB, Inc. vs. City of Long Beach, Department of Health and Human Services, et al., 21STCP00296

Tentative decision on petition for writ of mandate: denied

Petitioner Restauration LB, Inc. (“Restauration”) petition for a writ of mandate compelling Respondents City of Long Beach, Department of Health and Human Services (“Department”) and Kelly Colospy, in her official capacity as Director of Health and Human Services for the City of Long Beach (“Colospy”) (collectively, “City”) to rescind their order revoking the health permit of the Petitioner Restauration based upon violations of the City of Long Beach’s Safer at Home Order for Control of COVID-19 (“Restaurant Closure Order”).

The court has read the opposition (no opening brief was filed), and renders the following tentative decision.

Petitioner Restauration commenced this proceeding on February 1, 2021 alleging causes of action for administrative mandamus, traditional mandamus, and declaratory relief. The verified Petition alleges in pertinent part as follows.

On January 8, 2021, Restauration submitted to a health inspection of its restaurant facility by a City health inspector. After the nearly two-hour inspection, the health inspector found no major health violations and issued Restauration its health permit.

After leaving the location, the inspector received an anonymous complaint and returned to the restaurant about an hour after originally departing. The person working at the counter advised that the manager was not there, and the inspector could not come in. The inspector stated that he saw two people in the back patio area without masks on and immediately posted a notice of closure on the door and left. The inspector said that he saw the employee take down the notice inside the restaurant, but it was posted on the door the next day when he returned.

Petitioner filed an appeal from the notice of closure with the City. On January 15, 2021, the City issued a notice of administrative hearing to be conducted pursuant to Health and Safety Code section 114405. Petitioner requested a continuance of the hearing so that it could retain counsel and the request was denied.

On January 20, 2021, the City convened a video teleconference. When Petitioner’s counsel requested a continuance, the request again was denied. When it was discovered that Petitioner’s counsel did not have all the documents the City intended to introduce, the hearing officer continued the matter to the next day.

On January 21, 2020, the City again convened a video teleconference. The City called three witnesses without providing Petitioner with the opportunity to cross-examine any of them. Petitioner’s owner invoked her right not to testify because the City had filed criminal charges against her. On suggestion of the Deputy City Attorney, the hearing officer allowed some cross-examination of the City’s initial witness. Petitioner’s counsel was not allowed to complete the cross-examination and was not permitted to cross-examine the City’s other witnesses. The hearing officer stated that the hour allotted for the hearing was up, announced that he would be rendering a decision on the matter within five days, and ended the hearing without an opportunity for argument.

The next, day, January 22, 2021, the City sent Petitioner an email announcing the decision to immediately revoke its health license. Petitioner received the decision on January 26, 2021. This was the same day that the City’s health order rescinding the restrictions Petitioner was accused of violating took effect.

On January 12, 2022, after Petitioner’s counsel submitted a declaration that she had contracted COVID-19, the parties stipulated to continue the hearing on the Petition to June 28, 2022. Brand Decl., ¶3, Ex. A.

On April 8, 2022, the court unilaterally continued the hearing to July 28, 2022. Brand Decl., ¶4, Ex. B.

On May 12, 2021, Petitioner filed a Substitution of Attorney with no proof of service.

At the September 21, 2021 trial setting conference, the court set trial for January 13, 2022 and ordered Petitioner Restauration to lodge a trial notebook, administrative record, and memory stick containing the parties’ briefs no later than January 2, 2022.

Pursuant to the stipulation and the court’s later continuance of the hearing, Restauration was required to file its opening brief by May 27, 2022, 60 days before the hearing, and lodge the trial notebook, administrative record, and memory stick by July 19, 2022. Brand Decl., ¶¶ 3-4, Ex. A-B.

Petitioner has not served or filed its opening brief. Brand Decl., ¶¶ 3, 5, Ex. A. On June 6, 2022, counsel for Respondents emailed Petitioner’s counsel to inquire about the brief and received no response. Brand Decl., ¶6, Ex. D. Petitioner also failed to lodge the trial notebook, administrative record, and memory stick. Respondents lodged the administrative record.

A petitioner has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. Petitioner’s failure to file an opening brief citing to the record means that it cannot meet this burden. Moreover, a memorandum of points and authorities is required for a noticed mandamus motion. See CCP §1094; CRC 3.1113(a). The absence of a memorandum is an admission that the motion is not meritorious and may be denied. CRC 3.1113(a).

The petition for writ of mandate will be dismissed with prejudice. See CCP §581(d). The clerk shall prepare a judgment of dismissal with prejudice with the court’s electronic signature.