Judge: Mary H. Strobel, Case: 21STCP01912, Date: 2022-08-23 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP01912    Hearing Date: August 23, 2022    Dept: 82

            Petitioner Paul Song (“Petitioner”) petitions for a writ of mandate commanding Respondent Department of Motor Vehicles (“Respondent”) to set aside Respondent’s May 10, 2021 administrative order suspending Petitioner’s driving privileges.

Procedural History

             On June 14, 2021, Petitioner filed a verified petition for writ of administrative mandate pursuant to CCP section 1094.5.  On October 8, 2021, the court held a trial setting conference, which was attended by counsel for Petitioner and counsel for Respondent.  The court set the petition for hearing on August 23, 2022, and set a briefing schedule.  The court ordered Petitioner to file and serve the opening brief 60 days before the hearing, and any reply 15 days before the hearing.  The administrative record was to be lodged the same date the reply was filed.

            Petitioner did not file an opening brief 60 days before the hearing date set for the petition or as of August 12, 2022.

            No opposition, reply. or administrative record has been received.

Analysis

An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)   The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions.  (See Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137; see also Alford v. Pierno (1972) 27 Cal.App.3d 682, 691 [“[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.”].) 

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (See Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)   A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

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 memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”  (CRC 3.1113(b); Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [Cal. Rules of Court, Rule 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories”].) 

“In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘... otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.”  (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354; see also Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366 [“Failure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellants.”])

Petitioner has not filed an opening brief or lodged the administrative record.  Accordingly, Petitioner has not met his burden of proof under section 1094.5 to show a prejudicial abuse of discretion or a denial of a fair trial, or that Respondent proceeded without or in excess of jurisdiction.  The petition is denied. 

Conclusion

            The petition is DENIED.