Judge James C. Chalfant, Case Number: 23STCP04390, Date: 2025-02-13 Tentative Ruling

Petitioner Avery Jarrel Allen Johnson (“Johnson”) seeks a writ of mandate compelling to set aside the Department of Real Estate’s (“DRE”) decision denying his application for a real estate salesperson license.

The court has read and considered the moving papers and opposition (no reply was filed) and renders the following tentative decision.

Petitioner Johnson filed the Petition for Writ of Mandate under CCP section 1094.5 against Respondent Los Angeles Office of Administrative Hearings Appeals Board[1] on December 5, 2023. The Petition alleges in pertinent part as follows.

Johnson as not received due process as suspicion of racial discrimination by the DRE’s Los Angeles Office and Administrative Law Judge Julie Cabos-Owen (the “ALJ”), who also systematically omitted material facts from a recorded administrative hearing on August 30^th, 2023. Pet., pp. 1-2.

The ALJ abused her discretion as there are material facts to support licensure. Pet., pp. 2-3.

Johnson has dedicated two years to obtaining his real estate salesperson license. Pet., p. 4. He has more than five years of experience working in Class A commercial and retail developments and business logistics. Pet., pp. 4-5. He accomplished what many in the real estate industry have not by passing his licensure test on the first attempt. Pet., p. 6. Petitioner was not given due process in the review of his application. Pet., p. 6.

Johnson prays for mandamus to set aside the denial of his license, costs of suit, damages, and such other and further relief as the court deems proper. Pet., p. 7.

Proofs of service on file show that DRE was personally served with the Petition on April 17, 2024 and that Los Angeles Office of Administrative Hearings was personally served with the Petition on May 8, 2024.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). An application for a professional license is not vested or fundamental and is therefore reviewed under the substantial evidence standard. Bixby v. Pierno, supra, 4 Cal.3d at 139.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, supra, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The DRE Commissioner is authorized to deny a real estate license to an applicant who has been convicted of a crime “substantially related” to the qualifications, functions, or duties of a real estate licensee within seven years of the application. Bus. & Prof. Code §§ 480(a)(1), 10177(b). A crime is “substantially related” to the qualifications, functions, or duties of a real estate licensee if it involves “[t]wo or more convictions involving the consumption or use of alcohol or drugs when at least one of the convictions involve driving and the use or consumption of alcohol or drugs.” 10 California Code of Regulations (“CCR”) §2910(a)(11).

The DRE is required to consider whether an applicant has made a showing of rehabilitation. Bus. & Prof. Code §482. The factors relevant in determining whether an applicant is rehabilitated for purposes of issuing a license include: (a) the time that has passed since commission of the wrongful act; (b) restitution to persons who suffered monetary damages through substantially related wrongful acts; (c) expungement of convictions; (d) successful completion or early discharge from probation; (e) payment of fines; (f) stability of family life; (g) education or vocational training; (h) significant community involvement; (i) formation of new social and business relationships; and (j) change in attitude from that which existed at the time of the criminal act. 10 CCR §2911.

The regulations are designed to ensure that the public will have licensees who are not only honest and truthful but will also have the integrity to handle the enormous fiduciary responsibility the salesperson will bear. Harrington v. Dept. of Real Estate, (1989) 214 Cal.App.3d 394, 402 (citations omitted). Remorse for one's conduct and the acceptance of responsibility are the cornerstones of rehabilitation. See In the Matter of Brown, (1993) 2 Cal. State Bar Ct. Rptr. 309. Fully acknowledging the wrongfulness of past actions is an essential step towards rehabilitation. See Seide v. Committee of Bar Examiners, (1989) 49 Cal.3d 933.

The applicant for a license has the burden of proof in application proceedings. Martin v. Alcoholic Beverage Control Appeals Bd. of Cal., (1959) 52 Cal.2d 259, 265. "[T]he more serious the misconduct and the bad character evidence, the stronger the applicant's showing of rehabilitation must be." In re Gossage, (2000) 23 Cal.4th 1080, 1096.

In May 2022, Johnson submitted his application for a real estate salesperson license to the DRE. AR 156-59. Johnson also submitted an interview information statement (AR 244-48) and six different conviction detail reports in support of his application. AR 250-55. Johnson disclosed his two prior DUI convictions with his explanation of what had happened. AR 250-55.

On June 30, 2022, the DRE informed Johnson that additional information was required before it could act on his application. AR 160.

Subsequently, the DRE requested and received certified copies of the police reports and court records concerning Johnson’s DUI arrests and convictions. AR 161-242.

In July 2023, the DRE found cause to deny Johnson’s application for a salesperson license based, in part, on the two DUI convictions. A Statement of Issues setting forth the grounds to deny Johnson’s application was served on Johnson along with other relevant documents. AR 146-52.

Johnson completed the Notice of Defense form and returned it to the DRE requesting a hearing. AR 145.

On August 10, 2023, the DRE provided notice to Johnson of the date and time of the hearing. AR 132-36. The notice informed Johnson that he had burden to prove his entitlement to a salesperson license. AR 133. It also advised Johnson that he had the right to present evidence, to cross-examine witnesses, and to issue subpoenas to compel the attendance of witnesses and/or to produce documents. AR 133.

On August 30, 2023, the ALJ conducted the hearing. AR 1-40. At the hearing, the ALJ received in evidence the DRE’s exhibits, including: (1) the DRE’s hearing file (Ex. 1 )(AR 132-54, 156-60]); (2) the DRE’s custodian of records declaration (Ex. 2)(AR 155); (3) certified court records related to Johnson’s first DUI conviction (Ex. 3); (4) certified police investigation report related to the first DUI arrest (Ex. 4); (5) certified court records related to the second DUI conviction (Ex. 5); (6) certified police investigation report related to the second DUI arrest (Ex. 6); and (7) Johnson’s conviction detail reports and interview information statement (Ex. 7). AR 9-11, 13-17.

The ALJ also received in evidence Johnson’s resume (Ex. A). AR 35. Johnson proffered no other exhibits.

The DUI arrest report related to his first conviction stated that a sergeant found Johnson “in his vehicle passed out behind the wheel, obstructing multiple vehicles at a steady green light.” AR 186. Upon contact, the sergeant observed Johnson’s “eyes were almost all the way closed. They seemed unnaturally heavy, as if [Johnson] was having a hard time keeping them open. There was a strong odor of marijuana emanating” from Johnson and his clothes. AR 186.

The sergeant also observed Johnson “was extremely disoriented” and after exiting the vehicle Johnson “was extremely unsteady on his feet” and “[t]wice he nearly fell, catching himself on the side of his car.” AR 186. Johnson failed the field sobriety tests. AR 177 (e.g., “OLS - … couldn’t stand up and fell over. He caught himself on the side of his car. Stopped exercise for his safety.”).

Johnson testified about this first DUI conviction. AR 19-20, 23-27. Johnson admitted to the conviction but testified that he was going through a severe amount of stress and depression. AR 19. His mother was battling COPD, and he was working two jobs trying to support himself and her, and also trying to get through college. AR 19. It was a mistake to have “pled out” and he did it “solely out of fear of losing [his] job.” AR 20, 23–24. Johnson testified he believed he could have won at trial if he had gotten a lawyer to fight it. AR 20, 24. See also AR 249 (“marijuana DUI case [had] no solid evidence” and “would most likely have been dismissed as a possession charge.”). When asked at the hearing if he deserved the conviction, Johnson replied, that he believed a group of cops targeted him. AR 23-24.

The court placed Johnson on probation and suspended his license for nine months, he served 50 hours of community service, and he paid fines and fees. AR 24, 25. This conviction caused a snowball effect with his driving privileges and driver’s license (AR 20), apparently meaning that he subsequently incurred driving with a suspended license and driving under a false name convictions. AR 252-53.

The arrest report for the second DUI conviction stated that police found Johnson “unconscious in the driver seat of his vehicle. The engine was running, and the vehicle was in drive.” AR 195. The officer smelled the strong odor of an alcoholic beverage coming from Johnson’s breath. AR 196. The officer observed that Johnson’s eyes were bloodshot and watery and his speech slurred. AR 196. A witness interviewed at the scene stated that he had parked his car and, after walking away, heard Johnson’s vehicle crash into his car. AR 196, 239. Johnson failed field sobriety tests. AR 197, 240. Johnson was arrested. AR 240.

After the arrest, Johnson’s breath test results for blood alcohol content (“BAC”) were .203 and .206, more than two and a half times the legal limit (.08 BAC). AR 198, 231, 240. The traffic crash report concluded that Johnson’s vehicle veered to the right, “sideswiped” a parked vehicle, and that Johnson was the “contributing cause of [the] collision. AR 234, 235 [diagram].

Johnson testified about this second DUI conviction. AR 27-31. He admitted the conviction (AR 27) and stated he should have used better judgment by getting a taxi. AR 27–28. As to the property damage, Johnson claimed another driver cut in front of him and caused the collision. AR 28-29.

In the conviction detail report concerning the second DUI conviction, Johnson wrote that he was driving when “hit by [an] Uber.” AR 254. He was placed on probation for 12 months, his driver’s license was suspended for five years, and he paid fines and fees. AR 29-30.

Johnson admitted that he violated his probation two times in 2016 and 2019 by driving on suspended license in 2016 and 2019. AR 26, 30-31. Johnson testified that he does not have a problem with alcohol, but at the time of his DUIs he used alcohol to cope with stress. AR 31; see AR 249 (“I admittedly turned to marijuana and alcohol to cope …”).

He initially testified that he had been sober for “four years” (AR 22) and later testified it was “about two years” (AR 31). When asked for his date of sobriety, he did not have an exact date but it was during COVID. AR 31-32.

Johnson testified that he had been “actively in therapy every week for about two years.” AR 31. He received a high school diploma and attended college courses online but has not finished college. AR 34. He had a small business consulting firm and had worked in real estate in Florida. AR 34. He has been doing that about ten years, but a self-employed consultant is not as financially lucrative as real estate would be. AR 34.

On September 8, 2023, the ALJ issued a proposed decision to deny Johnson’s application for a real estate salesperson license. AR 118-30.

The ALJ stated that Johnson’s denial of his marijuana DUI was contrary to the documented observations of the police officers. Moreover, his plea and conviction mean that he is guilty of DUI. Arneson v. Fox, (1980) 28 Cal.3d 440, 449. AR 121. Johnson admitted that he violated this probation when he drove on a suspended license in 2016. He explained that he was working two jobs and was focused on getting financial resources instead of the impact of driving on a suspended license. AR 121.

Johnson was again convicted of DUI in 2018. AR 121. He testified that he was looking for the nearest shopping center when the collision occurred, and he should have called a taxi instead of driving. AR 122. He admitted that he drove with a suspended license in 2019, testifying that he made another mistake when trying to help his intoxicated sister get home. AR 122.

The ALJ discussed Johnson’s mitigation/rehabilitation, including his testimony that he used alcohol at the time of his convictions to cope with stress, he has been sober for two years, he has been in active therapy for two years and attended classes to deal with stress, attended DUI schools and AA meetings as required by his probation. AR 123. He assured that he will not revert to bad decision-making and has given up everything and everyone to come to California and have a career in real estate. AR 124. Johnson previously worked for a property management company and did not have any letters of reference from prior employers or a sponsoring broker in California. AR 124. He has his own small business consulting firm and is taking college classes online. AR 124.

The ALJ concluded that Johnson “sustained two DUI convictions within a three-year span and violated his probation in both of his criminal matters” and “[t]hese behaviors evidence a disregard of the law which is antithetical to the functions and duties of a real estate licensee.” AR 129. Johnson “expressed little remorse for his crimes, and he has failed to fully acknowledge responsibility for his actions, particularly regarding his first DUI. AR 129. Although Johnson established compliance with a few of the DRE’s rehabilitation criteria, he (1) failed to provide testimony or documentary evidence of sustained sobriety for the past two years, (2) did not establish that he had a support system in place for continued sobriety, (3) did not provide corroborating evidence of sustained enrollment in formal education courses, (4) did not provide corroborating evidence of his self-professed change of attitude (i.e., testimony or letters from family, friends, AA colleagues, or therapists), and (5) failed to provide letters from prior employers. AR 129-30.

Accordingly, the ALJ concluded that Johnson failed to demonstrate sufficient documented rehabilitation to warrant issuance of a real estate license. AR 130.

On October 31, 2023, the DRE Commissioner adopted the ALJ’s proposed decision and denied Johnson’s application for a real estate salesperson license. AR 116. Johnson was informed that the earliest date he could reapply was one year from the effective date of the decision. AR 116.[3]

The Commissioner’s decision notified Johnson that the DRE may order reconsideration under Govt. Code section 11521 upon petition of any party. AR 116. The party shall set forth new facts, circumstances, evidence, or errors of law that show good cause for reconsideration. AR 116. If new evidence is presented, the party shall explain why it was not previously presented. AR 116.

Johnson sought reconsideration. AR 96-113. In support, Johnson new submitted documents which included reference letters from family and a treating psychologist,[4] a Florida salesperson license certificate issued on November 14, 2023, and Georgia Real Estate Commission report dated June 28, 2023. AR 107-13. Johnson’s petition did not explain why this evidence could not have been provided at the hearing if he had exercised due diligence. See AR 96-102. The DRE did not respond to the petition, and it was denied by operation of law. Govt. Code §11521(b).

Petitioner Johnson seeks to compel the DRE to set aside its denial and grant his application for a real estate salesperson license. The substantial evidence standard of review is dispositive of his claim.[5]

Johnson argues that DRE recommends at least two years since the last offense. Johnson’s second DUI conviction was in 2017, almost five years before the ALJ’s September 8, 2023 proposed decision.

The passage of less than two years is inadequate to demonstrate rehabilitation. 10 CCR §2911(a)(1). The two-year period may be increased for a history of convictions substantially related to the qualifications, functions, and duties of a real estate licensee. 10 CCR §2911(a)(1)(B). A crime is “substantially related” to the qualifications, functions, or duties of a real estate licensee if it involves “[t]wo or more convictions involving the consumption or use of alcohol or drugs when at least one of the convictions involve driving and the use or consumption of alcohol or drugs.” 10 CCR §2910(a)(11).

Johnson’s two DUI convictions meet this criterion, and the ALJ[6] was entitled to look beyond the recommended two-year period.

Expungement would be applicable if provided by Florida law as it is in California. Neither party shows that expungement is available in Florida.

4. Expungement or discontinuance of a requirement of registration pursuant to the provisions of Section 290 of the Penial Code

Johnson correctly states that Penal Code section 290 registration is not pertinent to this case.

Johnson correctly argues that all terms of his probation have been satisfied, and he was released from probationary responsibilities in 2020.

However, the ALJ noted that Johnson “violated his probation in both of his criminal matters” and that “[t]hese behaviors evidence a disregard of the law which is antithetical to the functions and duties of a real estate licensee.” AR 129.

6. Abstinence from the use of controlled substances and/or alcohol for not less than two years if conduct which is the basis to deny the Bureau action sought is attributable in part to the use of controlled substances and/or alcohol

Johnson argues that he testified that he had abstained from abusing substances since 2020. He also detailed his effort to maintain his mental well-being, including seeking psychological therapy. These efforts were subsequently absent from the proposed decision.

Johnson testified that he does not have a problem with alcohol, but at the time of his DUIs he used alcohol to cope with stress. AR 31; see AR 249 (“I admittedly turned to marijuana and alcohol to cope …”). He initially testified that he had been sober for “four years” (AR 22) and later testified it was “about two years” (AR 31). When asked for his date of sobriety, he did not have an exact date but it was during COVID. AR 31-32.

The ALJ discussed Johnson’s testimony that he used alcohol at the time of his convictions to cope with stress, he has been sober for two years, he has been in active therapy for two years and attended classes to deal with stress, attended DUI schools and AA meetings as required by his probation. AR 123. Although Johnson established compliance with a few of the DRE’s rehabilitation criteria, he failed to provide testimony or documentary evidence of sustained sobriety for the past two years and did not establish that he had a support system in place for continued sobriety. AR 129-30.

7. Payment of the fine and/or other monetary penalty imposed in connection with a criminal conviction or quasi-criminal judgment

Johnsons notes that all fines and fees associated with his convictions have been satisfied.

8. Stability of family life and fulfilment of parental and familial responsibilities subsequent to the conviction or conduct that is the basis for denial of the Bureau action sought

Johnson argues that he testified in depth about the complicated familial structure and that he seeks to be independent of his family and rebuild his life on his own. He is single with no parental responsibilities. Character letters from his mother and brother have been provided as part of a request for official reconsideration.

For his first DUI, Johnson testified that his mother was battling COPD, and he was working two jobs trying to support himself and her and also trying to get through college. AR 19. This conviction caused a snowball effect with his driving privileges and driver’s license (AR 20), apparently meaning that he subsequently incurred driving with a suspended license and driving under a false name convictions. AR 252-53.

The ALJ noted that Johnson admitted that he drove with a suspended license in 2019, testifying that he made another mistake when trying to help his intoxicated sister get home. AR 122. The ALJ discussed Johnson’s testimony that he will not revert to bad decision-making and has given up everything and everyone to come to California and have a career in real estate. AR 124. The evidence is not conclusive on this factor.

9. Completion of, or sustained enrollment in, formal education or vocational training courses for economic self-improvement

Johnson argues that he has obtained and held a Florida Salesperson Licensee and passed his California salesperson licensing test, showing a strong desire to grow his knowledge within the real estate industry. He is currently enrolled in Miami Dade College maintaining dean’s list status since enrollment.

Some of Johnson’s facts are not in evidence. Johnson testified that he received a high school diploma and attended college courses online but has not finished college. AR 34. The ALJ noted that he is taking college classes online (AR 124) but he did not provide corroborating evidence of sustained enrollment in formal education courses. AR 129-30.

10. Discharge of, or bona fide efforts toward discharging, adjudicated debts or monetary obligation to others

11. Correction of business practices resulting in injury to others or with the potential to cause such injury

12. Significant or conscientious involvement in the community, church, or privately sponsored programs designed to provide social benefits or to ameliorate social problems

Johnson argues that since 2020 he has owned and operated a small business consulting firm that specializes in financial literacy, streamlining operations, and brand management. This company has allowed him to give back to the community in the best way he knows how, helping those still recovering from the impact of COVID by making their companies profitable again. He also detailed his desire to become a luxury real estate agent and in the future a land developer to invest in low-income housing to alleviate homelessness in the greater Los Angeles area, all of which were omitted from the ALJ’s decision.

Again, Johnson presents facts not in the administrative record. He did testify that he had a small business consulting firm but said nothing about it as a business providing social benefits. AR 34. He also acknowledged that a self-employed consultant is not as financially lucrative as real estate would be. AR 34.

13. New and different social and business relationships from those which existed at the time of the conduct that is the basis for denial for the Bureau action sought

Johnson argues that the ALJ viewed his testimony as a negative that he has “given up everything and left everyone I know to start a new life in California”. Yet, his desire for a better life and opportunities are the core reason he relocated to Los Angeles and seeks to become a real estate agent. Since his last conviction he has become a licensed real estate agent, started his own company, and has removed himself from all environments that were no longer beneficial to his progress and future.

Johnson’s argument, while perhaps laudable and reflective of a pioneer spirit, does not show any new or different social and business relationships. It does show, however, the possible discontinuance of old social relationships that he contends caused the stress and depression from working two jobs trying to support himself and his mother, resulting in his first DUI conviction. AR 19.

14. Change of attitude from that which existed at the time of conduct in question as evidenced by the following

Johnson argues that he submitted character letters from the petitioner's mother, brother, and therapist were included as part of his request for reconsideration.

The ALJ expressly noted that Johnson did not provide corroborating evidence of his self-professed change of attitude (i.e., testimony or letters from family, friends, AA colleagues, or therapists) and failed to provide letters from prior employers. AR 129-30.

Johnson responded to the ALJ’s finding by submitting the above character letters in his petition for reconsideration. This submission was non-compliant with the law. The DRE may order reconsideration upon petition of any party, but the party seeking reconsideration shall explain why new evidence was not previously presented. Govt. Code §11521(b); AR 116. Johnson made no showing why he could not have presented this character evidence at the hearing before the ALJ. As a result, his petition for reconsideration was denied by operation of law and the character evidence was not considered.

Although the age and nature of Johnson’s DUI convictions and his successful completion of probation are favorable factors, the ALJ’s decision is supported by substantial evidence.

Johnson failed to show a change in attitude because he expressed little remorse for his past drunk driving convictions. AR 129. He did not accept responsibility for his first DUI conviction because he denied that he was under the influence of marijuana and claimed there was no solid evidence against him for DUI. Yet, the DUI investigation report showed Johnson smelled of marijuana, struggled to keep his eyes open, and failed the field sobriety tests. See Opp. at 15.

Johnson testified inconsistently with plain evidence from the DUI police reports, supporting the ALJ’s conclusion that there was not a sufficient change in attitude. Johnson testified that police targeted him for the first DUI arrest and conviction. Yet, the report showed police simply responded to the scene because Johnson passed out in the driver’s seat of his vehicle blocking traffic at an intersection. Johnson testified that his second DUI conviction stemmed from another driver crashing into his car, causing the police response. The traffic crash report showed Johnson caused the collision by veering out of his lane and sideswiping a parked car. When police responded to the traffic accident, they found Johnson unconscious in the driver’s seat with an odor of alcohol coming from his breath. His BAC results were .20, two and a half times the legal limit of .08. See Opp. at 15-16.

Johnson also testified inconsistently concerning the length of his sobriety. Johnson could not give a date when his sobriety started, which date is commonly known and tracked by AA members. Johnson initially testified that he had been sober for “four years” but later testified it was “two years.”

Finally, the ALJ properly concluded that Johnson failed to provide sufficient documentation or corroborating testimony about his rehabilitation. The ALJ’s decision is supported by substantial evidence.[7]

The Petition is denied. Johnson may reapply at any time and demonstrate to the DRE that he should be granted a real estate salesperson license. He would be wise to provide documentary and other evidence that would support such an application under 10 CCR section 2911.

The DRE’s counsel is ordered to prepare a proposed judgment, serve it on Johnson for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 20, 2025 at 9:30 a.m.

[1] Petitioner wrongly named Los Angeles Office of Administrative Hearings Appeals Board as Respondent. DRE is the decision-maker and should have been named as Respondent.

[2] DRE requests the court to judicially notice a Department of General Services custodian of record’s declaration concerning the lack of a government claim filed by Johnson against the DRE between August 30, 2023 and June 21, 2024. The request is granted. Evid. Code §452(c).

[3] According to the DRE, that date was October 26, 2024. Opp. at 10, n.3. This means that Jtohnson can reapply at any time if he has not already done so.

[4] DRE points out that Dr. Mason’s November 16, 2023 letter states that he had “provided outpatient [Johnson] psychotherapy treatment since November 2022, or for one year.” AR 110. Johnson did not provide documentation supporting his testimony he had received treatment for two years. Opp. at 11, n. 4.

[5] Johnson fails to set forth a full and fair statement of facts with citations to the administrative record as required by the court’s trial setting conference order and LASC Rule 3.231(i)(2). All citations to evidence in a memorandum must provide a citation to the record. See CRC 3.1113(k). Absent such support, the court must disregard facts contained in an unverified statement. Smith, Smith & Kring v. Superior Court, (1997) 60 Cal.App.4^th 573, 578. Additionally, when a petitioner challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the petitioner’s burden to lay out the evidence favorable to the other side and show why it is lacking. The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 119 Cal.App.4th 1261, 1266. This failure alone is reason to deny Johnson’s Petition.

[6] For convenience, the court will refer to the ALJ’s proposed decision rather than the DRE’s final decision adopting it.

[7] Although Johnson’s Petition alludes to an unfair hearing and racial bias, he presents no evidence on these issues. The DRE is correct that “[a] party must allege concrete facts that demonstrate the challenged judicial officer is contaminated with bias or prejudice. Bias and prejudice are never implied and must be established by clear averments.” Andrews v. Agricultural Labor Relations Bd., (1981) 28 Cal.3d 781, 792. Opp. at 18.