Judge: Marcella O. Mclaughlin, Case: 37-2023-00001218-CU-WM-CTL, Date: 2023-12-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 29, 2023

11/30/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Writ of Mandate Demurrer / Motion to Strike 37-2023-00001218-CU-WM-CTL MATTHEWS VS CITY OF IMPERIAL BEACH CODE COMPLIANCE DEPARTMENT CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/18/2023

A. The demurrer to the petition for writ of administrative mandamus is SUSTAINED with leave to amend.

'The inquiry for the issuance of a writ of administrative mandamus is whether the agency in question prejudicially abused its discretion; that is, whether the agency action was arbitrary, capricious, in excess of its jurisdiction, entirely lacking in evidentiary support, or without reasonable or rational basis as a matter of law.' Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, 1497.

In this case, insufficient facts have been pled showing an abuse of discretion by the Code Compliance Department and/or the hearing officer(s) at the administrative hearing. See Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126 ('[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.').

Petitioner is granted leave to amend the petition for writ of administrative mandamus consistent with the foregoing. See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ('Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.'). Petitioner must file and serve the first amended petition by December 11, 2023.

B. The court declines to rule on the uncalendared motion to strike as it is not properly before the court.

See SDSC Local Rule 2.1.19(A) ('Failure to reserve a date for hearing will result in the demurrer, motion, ex parte application, or order to show cause hearing not being heard.').

C. The hearing on the petition for writ of administrative mandamus is ordered OFF CALENDAR.

Petitioner has failed to file any points and authorities or lodge the administrative record. See Code Civ.

Proc. § 1094.6(c); see also Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 353 ('In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings[.]').

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