Judge James C. Chalfant, Case Number: 23STCP00105, Date: 2024-07-16 Tentative Ruling

Al Davar v. Kim Johson, Director of California Department of Social Services, 23STCP00105

Tentative decision on motion to continue trial: denied unless DSS waives defect

Petitioner Al Davar (“Davar”) moves to continue the trial set for September 17, 2024. The court has read and considered the moving papers (no opposition was filed), and renders the following tentative decision.

Petitioner Davar commenced this proceeding on January 12, 2023, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Davar has been a recipient of a government benefit called “CAPI”, administered by the state through its Department of Social Services (“DSS”) and at the county level by the Department of Public Social Services (“DPSS”).

On January 5, 2022, Davar had a hearing before Administrative Law Judge (“ALJ”) Allen Mason (“Mason”) concerning the termination of his CAPI benefits. ALJ Mason’s decision was adopted by the DSS director on January 10, 2022 and received by Davar on January 15, 2022.

Davar contends that the ALJ did not have authority to take action against a beneficiary on behalf of the county (DPSS) or substitute one action for another and any such action would require a Notice of Action (“NOA”). The ALJ did not have authority to substitute a suspension in lieu of DSS’ failed action of termination. There is no evidence of a NOA for a suspension. DPSS’ two NOAs were based on termination only. Nor did DSS have such authority.

ALJ Mason’s abuse of discretion apparently was motivated by avoiding a decision on an important issue of retroactive benefits for wrongful termination. Since the county’s termination is void on its face as found by ALJ Mason, and a suspension is completely unfounded, the benefits must be restored as of the date of termination.

Davar seeks administrative mandamus to set aside the wrongful decision and order DSS to restore his benefits retroactively to the date of wrongful determination.

Davar received a fee waiver on August 30, 2023 and his request for accommodation was granted on September 26, 2023.

On November 29, 2023, DSS filed an Answer. There is no proof of service on file for ALJ Mason.

To ensure the prompt disposition of civil cases, trial dates are firm. CRC 3.1332(a). A party seeking continuance of trial must make the request for continuance by noticed motion or e x parte application with supporting declarations. CRC 3.1332(b). The party must make the motion as soon as reasonably practicable once the necessity for continuance is discovered. Id.

Although trial continuances are disfavored, each request must be considered on its own merits. CRC 3.1332(c). The decision regarding a continuance request must be based upon good cause. Id. Factors that may be considered when ruling on a continuance request include: (a) the unavailability of an essential lay or expert witness, party, or trial counsel because of death, illness, or other excusable circumstances; (b) the substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interest of justice; (c) the addition oof a new party under certain circumstances; and (d) a significant and unanticipated change in the status of the case which renders it not ready for trial. CRC 3.1332(c)(1)-(7).

In ruling on the motion, the court must consider all relevant facts and circumstances, which may include (1) the proximity of the trial date, (2) whether there has been any previous continuance, (3) the length of continuance requested, (4) the availability of alternative means of addressing the problem, (5) the prejudice to parties or witnesses, (6) any preferential status of the case, (7) the impact on the court’s calendar, (8) whether trial counsel is engaged in another trial, (9) whether all parties have stipulated to a continuance, (10) whether the interests of justice are best served by a continuance, and (11) any other fact or circumstance relevant to the fair determination of the request. CRC 3.1332(d).

On March 19, 2024, the court set trial for September 10, 2024 at 1:30 p.m. Davar’s opening brief was ordered to be filed and served by June 11, 2024. The opposition was ordered to be filed and served by July 22, 2024 and Davar’s reply was ordered to be filed and served by August 21, 2024.

On April 8, 2024, the court sua sponte continued the trial for a week, to September 17, 2024 at 1:30 p.m. The briefing schedule remained the same.

Now, Davar seeks to continue the trial. His handwritten motion was filed on June 11, 2024, the date his opening brief was due. It contains no proof of service on DSS. As a result, the court cannot consider it and the motion is denied.

If Davar files a proof of service or DSS waives the defect, and the court considers the motion, it is based on a claim that Davar cannot find someone to type his opening brief. He claims that his previously approved accommodations for disability supports the need for a continuance to keep up with the pace of court proceedings.

Actually, Davar’s disability request was to hold hearings in the afternoon on at least 60 days of notice and continue them if his health problems manifest. The need for a typist is not included in this request. Nonetheless, if DSS does not object, the court will continue trial with the admonition that Davar must file his briefs by a date certain without excuses. The court will discuss the issue with both parties at hearing.