Judge: Mary H. Strobel, Case: 21STCP02676, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCP02676    Hearing Date: January 19, 2023    Dept: 82

CSC Auto Salvage and Dismantling, Inc., dba Express Metals Recycling, et al., v. Office of Administrative Hearings, et al., Respondent Department of Toxic Substances Control, Real Party in Interest Judge Mary Strobel Hearing: January 19, 2023

21STCP02676

Tentative Decision on Petition for Writ of Mandate

Petitioners CSC Auto Salvage and Dismantling, Inc., dba Express Metals Recycling (“Express”) and Scott Sakajian (“Sakajian”; collectively “Petitioners”) petition for a writ of mandate directing Respondents Office of Administrative Hearings (“OAH” and Matthew Goldsby, in his official capacity as administrative law judge (“Goldsby”; collectively “Respondents”) “to set aside the decision denying Express’s Motion to Continue and grant said continuance.” (Pet. Prayer ¶ a).) Real Party in Interest Department of Toxic Substances Control (“Real Party” or “DTSC”) opposes the petition. No opposition has been received from Respondents.

Background

The Enforcement Order; and Sakajian’s Notice of Defense

Express is a scrap metal recycling corporation that operates a facility in Sun Valley, CA. (Pet. ¶ 5.) Sakajian is an officer of the corporation. (Ibid.; see also Oppo. 7.)1

In 2012, DTSC inspected the Express facility, located at 12207 Branford Street, Sun Valley, California (“Facility”), identified areas that were out of compliance with the California Hazardous Waste Control Law (Health & Saf. Code, § 25100 et seq.), and its implementing regulations in Title 22 of the California Code of Regulations, applicable to the Facility and the Facility’s operations, and subsequently issued a Summary of Violations on November 1, 2012. (Pet. ¶¶ 13, 5.) DTSC conducted additional inspections of the Facility between 2014 and 2017. (Id. at ¶ 15; see also Oppo. 7 and AR 15.)

On April 6, 2021, DTSC issued an Enforcement Order for Corrective Action (“Enforcement Order”) “with requires extensive cleanup and remedial work by Express.” (Pet. at ¶ 18.) The Enforcement Order named twelve (12) Respondents, including “CSC

Auto Salvage & Dismantling, Inc., dba Express Metals Recycling” and “Scott B. Sakajian, as an individual and as a tenant in common.” (Id. at Exh. A, at pp. 6, 7, 13 and 15-16.) The Enforcement Order and related/associated documents (“Package”) were sent to Maureen Gorsen, counsel for Express, at her law firm’s address in Sacramento, California. (Id. at ¶ 19; see also, id. at Exh. A at p. 1.) In addition to sending the Package to Express’ attorney, it also was sent to Caroline Kay Denny, Express’ agent for service of process, in Valencia, California. (Pet., Exh. A at pp. 1, 4.) The Package was sent separately to Scott Sakajian. (Id. at Exh. A at pp. 2, 4; AR 25-28.)

The Enforcement Order stated that a written request for a hearing must be delivered to DTSC or postmarked within 20 days of the date of the April 6, 2021, letter or the respondent will waive its right to a hearing. (AR 27.) A Statement to Respondent was enclosed with the Enforcement Order. The Statement to Respondent specified the appeal procedure, warned the respondents about the 20-day deadline to deliver a signed request for hearing, and stated that the request for hearing may be made by delivering the enclosed Notice of Defense. (AR 27, 125-126.)

On April 15, 2021, Mr. Sakajian signed a Notice of Defense in response to the Enforcement Order. (Pet., Exh. C at p. 2; AR 152.) The “Name” of the “Respondent” on the Notice of Defense is “Scott Sakajian” (not Express), and the Notice of Defense does not state or otherwise indicate that it was made on behalf of any person or entity other than Scott Sakajian. (Ibid.) In addition, the street address listed on the Notice of Defense that Scott Sakajian signed is not the Facility’s address. (Ibid.) The Notice of Defense was not signed by attorney Gorsen (counsel for Express) and did not state that Sakajian was filing the Notice of Defense in his capacity as an officer of Express. (Ibid.)

On April 16, 2021, attorney Gorsen – the attorney for Express – emailed Brooke Selzer of DTSC and asked whether DTSC had received a Notice of Defense. Selzer responded that DTSC had received the “attached” notice. (Pet. Exh. B at 10-12; AR 147.)

DTSC Issues “Final and Effective Enforcement Order” Against Express, After Express Did Not File Notice of Defense

On May 6, 2021, DTSC, through Javier Hinojosa, Chief of the Brownfields Restoration and School Evaluation Branch of DTSC’s Site Mitigation and Restoration Program, sent a letter to Express to both Ms. Gorsen and Express’ Agent for Service of Process informing them that no Notice of Defense had been filed on behalf of Express. The May 6, 2021, letter is titled a “Final and Effective Enforcement Order” and states as follows:

As explained in the cover letter that accompanied the Order, each Respondent had a right to a hearing, if requested within twenty (20) days from the date of the cover letter (i.e., April 6, 2021). Since DTSC did not receive a request for a hearing from you in the form of a Notice of Defense within the 20-day period, you

waived your right to a hearing and the Order became final and effective as of April 26, 2021 pursuant to Paragraph 6 of the Order.

….[¶]

You are required to comply with the deadlines specified in the Order. Failure to comply with the Order may subject you to costs, civil and administrative penalties, and/or punitive damages for any costs incurred by DTC or other government agencies … as provided by Health and Safety Code section 25188 and other applicable provisions of law.

(AR 448-449.)

OAH Sets Hearing Date for Sakajian’s Notice of Defense; and ALJ Denies Express’s Motion to Continue

On June 24, 2021, OAH set a start date of October 11, 2021, for the hearing on the Enforcement Order that was triggered by the Notice of Defense signed by Scott Sakajian. (AR 166.)

On July 9, 2021, Express filed a motion to continue dates for the administrative hearing on the Enforcement Order. The motion was made on behalf of Express only. (AR 168-173.) On July 22, 2021, DTSC filed an opposition to Express’ motion, which argued that Express waived its right to participate in the administrative hearing on the Enforcement Order because it failed to return a timely Notice of Defense on behalf of Express. (AR 175-194.) On August 3, 2021, ALJ Goldsby issued an order denying Express’ motion. ALJ Goldsby found that Express lacked standing to make the request and failed to show cause to justify the continuance. (AR 197.)

Express Files Writ Petition Challenging ALJ Goldsby’s Denial of the Motion to Continue

On August 17, 2021, Petitioners filed their verified petition for writ of mandate seeking judicial relief from the ALJ’s denial of the motion for continuance. The petition seeks a writ directing Respondents, i.e. OAH and ALJ Goldbsy, “to set aside Respondents’ decision that Express lacked standing to move for a hearing continuance and failed to show cause for same, and grant the continuance.” (Pet. 1-2 and Prayer.) In the writ petition, Petitioners challenge only ALJ Goldsby’s August 3, 2021, ruling that denied Express’s motion to continue. (See Pet. ¶¶ 1-3, 7, 31-37 and Prayer.)

As pleaded, the petition does not challenge any administrative decisions of DTCS, including the May 6, 2021, Final and Effective Enforcement Order against Express. Nor does the petition seek a writ directed at DTSC.

DTC’s Denies Express’ Motion for Reconsideration

On September 28, 2021, after the writ petition was filed, Express filed with DTSC a motion for reconsideration of DTSC’s legal position that Express waived its right to participate in the administrative hearing, as set forth in DTSC’s July 22, 2021, opposition to Express’ motion to continue. (AR 200-229.) On October 1, 2021, DTSC, through Peter Garcia, Chief of the Southern California Division of DTSC’s Site Mitigation and Restoration Program, issued an Order Denying Motion for Reconsideration Regarding Notice of Defense, denying Express’ motion, and so informing OAH. (AR 232-240.)

The motion for reconsideration and DTSC’s ruling on the motion both occurred after the writ petition were filed, and neither is pleaded as a basis for writ relief in the petition. Petitioners did not file a supplemental petition addressing DTSC’s ruling on the motion for reconsideration or seeking any relief related to that ruling.

Hearing and Decision on Sakajian’s Notice of Defense

On September 6, 7, 8, and 23, 2022, the administrative hearing on Sakajian’s Notice of Defense was held. The parties presented documentary evidence and witness testimony. (AR 456.) In its opposition writ brief, DTSC represents that the hearing had been continued several times by OAH, and also by joint request of Sakajian and DTSC, from October 2021. (Oppo. 10:21-26.) DTSC does not cite to the record in support of that assertion, but Petitioners also have not disputed that the administrative hearing was continued several times.

On October 14, 2022, the ALJ reopened the record for briefing on a legal issue. (AR 456.) Additional briefing was submitted by both parties. On December 12, 2022, OAH issued a proposed decision affirming the Enforcement Order against Sakajian. (AR 455-475.)

The hearing on Sakajian’s Notice of Defense, and the December 12, 2022, proposed decision, both occurred after the writ petition were filed, and neither is pleaded as a basis for writ relief in the petition.

Additional Procedural History for Writ Action

On October 6, 2021, the court denied Petitioners’ ex parte application to stay proceedings for improper notice.

On January 11, 2022, the court overruled Real Party’s demurrer to the petition, and set the petition for hearing.

On January 21, 2022, Real Party filed an answer.

On September 22, 2022, Petitioners filed their opening brief in support of the petition. The court has received Real Party’s opposition, Petitioners’ reply, and the

administrative record. No answer or opposition brief has been received from Respondents.

Standard of Review

Petitioners seek a writ of administrative mandate pursuant to CCP section 1094.5. Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

In cases reviewing decisions that do not affect a fundamental vested right, the court is directed to review the record for substantial evidence supporting the administrative findings. (JKH Enterprises, Inc. v. Dept. of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.) “Administrative decisions which result in restricting a property owner's return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights.” (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325.) “[T]here is no vested right to conduct a business free of reasonable governmental rules and regulations.” (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 23.) Here, the enforcement proceedings against Petitioners do not implicate a fundamental vest right. Accordingly, the substantial evidence test applies to any factual findings made by the Respondents for which Petitioners seek writ review.

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) Under the substantial evidence test, [c]ourts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.) Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; see Local Rule 3.231(i)(2).) A reviewing court “will not act as counsel for either party to an appeal 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.)

The petition is pleaded, in the alternative, as a petition for writ of ordinary mandate pursuant to CCP section 1085. However, Petitioners do not develop any argument that section 1085 applies. “[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Because an evidentiary hearing was required by law for each respondent that filed a notice of defense to the enforcement order (See AR 27), and because the agency has discretion in the determination of facts (see AR 455-475), the writ petition appears to be governed by section 1094.5. While Express was not named in Sakajian’s Notice of Defense, Express contends that it was entitled to an evidentiary hearing. The parties appear to agree that section 1094.5 governs in such circumstances. (See Oppo. 11-12; Reply 4-7.)

Alternatively, to the extent CCP section 1094.5 does not apply because Express did not file a Notice of Defense in its own name, the court reaches the same result on the petition even if it is governed by CCP section 1085. The petition raises a purely legal issue of mootness based on undisputed facts, which the court decides independently under both CCP sections 1094.5 and 1085. “‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Analysis

The Writ Petition is Moot

DTSC contends that the petition should be denied as moot because the underlying hearing has been completed and a proposed decision has been submitted. (Oppo. 13.) This argument is persuasive.

“California courts will decide only justiciable controversies. [Citations.] The concept of justiciability is a tenet of common law jurisprudence and embodies ‘[t]he principle that courts will not entertain an action which is not founded on an actual controversy....’” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’” (Id. at 1574.) “The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief.” (Ibid.)

A petition for writ of mandate is properly dismissed if the action is moot. (Messenger v. Kingsbury (1910) 158 Cal. 611, 618; California Teachers Assn. v. Ingwerson (1996) 46 Cal.App.4th 860, 874; Ogunsalu v. Sup.Ct. (2017) 12 Cal.App.5th 107, 111.)

Here, the petition names the respondents as OAH and ALJ Goldsby. Petitioners pray for a writ of mandate directing Respondents OAH and Goldsby “to set aside the decision denying Express’s Motion to Continue and grant said continuance.” (Pet. Prayer ¶ a).) Petitioners make clear in the petition that they challenge ALJ Goldsby’s August 3, 2021, ruling that denied Express’s motion to continue. (See Pet. ¶¶ 1-3, 7, 31-37 and Prayer.) Thus, as one example, paragraph 31 of the petition summarizes the ALJ’s August 3, 2021, ruling that denied the continuance and states that “Express seeks judicial relief of the denial.”

However, the court cannot grant a writ compelling Respondents to set aside the August 3, 2021, ruling and continue the administrative hearing because the hearing was completed on September 23, 2022. Subsequent briefing was accepted on a limited legal issue and all briefing was submitted to OAH by November 10, 2022. On December 12, 2022, OAH issued a proposed decision. (AR 455-475.) DTSC now will determine whether to adopt the proposed decision. (See Oppo. 6:10-11; AR 126-127; Health and Safety Code § 25187.) Petitioners cite no statutory or regulatory authority under which OAH or the ALJ could continue a hearing that has already occurred and after a proposed decision has been issued. There are no further actions for OAH or its ALJ to undertake in connection with Sakajian’s Notice of Defense. Because the court cannot grant Petitioners the continuance they seek in the petition, the petition is moot. (See Ogunsalu v. Sup.Ct. (2017) 12 Cal.App.5th 107, 111 [“this court cannot grant Ogunsalu any meaningful relief on his writ petition, because the administrative hearing he sought to continue has already concluded, and the petition is therefore moot”].)

Petitioners failed to pursue a stay of the administrative proceedings or similar provisional relief from this court that could have potentially enabled Petitioners to obtain a ruling on this writ petition before the completion of the OAH hearing. On October 6, 2021, the court denied Petitioners’ ex parte application to stay proceedings for improper notice. Petitioners did not refile that application after giving proper notice or any other application or motion seeking similar interim relief.

While the petition also seeks “such other relief as the Court finds just and proper,” that generalized prayer does not authorize the court to issue writ relief not connected to the issues pleaded in the petition. Furthermore, it is entirely unclear from Petitioners’ writ briefs and petition what “other relief” Petitioners against OAH and ALJ Goldsby might seek and that would be effectual.

The petition does not challenge any actions of DTCS, including the May 6, 2021, Final and Effective Enforcement Order against Express. Nor does the petition seek a writ directed at DTSC. In addition, Express’ motion for reconsideration and DTSC’s ruling on the motion both occurred after the writ petition were filed, and neither is pleaded as a basis for writ relief in the petition.

Petitioners’ arguments in opposition to the mootness defense are not persuasive. (See Reply 3-4.) Petitioners first state that Sakajian “will be appealing any decision that is adverse to him in the OAH unless the department works out a reasonable settlement

with specifics.” (Reply 3.) However, Sakajian’s right to appeal a final administrative decision in the future does not change the mootness analysis. Even if Sakajian eventually appeals an adverse administrative decision, the court (Department 82) cannot grant Petitioners the continuance of the administrative hearing that they seek in the petition. Based on present briefing, it appears DTSC has not issued a final administrative order or decision on Sakajian’s Notice of Defense. Nor has Petitioners sought any writ relief against DTSC or Respondents with respect to any final administrative decision. The court rules on the petition as so framed and pleaded.

Petitioners’ second and third arguments regarding mootness are unclear and not sufficiently developed with citations to the record or legal authority. (Reply 3:18-4:23; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].) Petitioners seem to contend that DTSC is “reversing [its] position” that Sakajian and Express are legally separate entities for purposes of a Notice of Defense and is now asserting a mootness defense that applies to both entities. Petitioners do not cite to the record to establish DTSC’s prior position. In any event, with respect to mootness, it is irrelevant whether the Notice of Defense could apply to both Sakajian and Express or whether Respondents OAH and ALJ Goldsby may have had discretion, in the past, to grant a continuance under Government Code section 11506 or other law. The court can no longer issue a writ directing Respondents to grant the continuance that Petitioners seek. Accordingly, the petition is moot.

Based on the foregoing, the petition for writ of mandate is denied as moot.

Petitioners’ Remaining Contentions

In the opening brief, Petitioners advocate for a writ directing OAH to continue the administrative hearing based on claims that (1) DTSC should be estopped from asserting that Sakajian’s Notice of Defense did not apply to Express based on statements of DTSC agent Brooke Selzer; and (2) DTSC and OAH abused their discretion pursuant to Government Code section 11506 in not granting a hearing to Express despite its alleged failure to file a Notice of Defense. Petitioners also refer repeatedly to case law concerning relief from default pursuant to CCP section 473. (Opening Brief 4-8.)

As the petition is pleaded, these contentions are all moot and need not be decided by the court. As discussed above, Petitioners only seek a writ directing Respondents OAH and ALJ Goldsby to continue the administrative hearing. Petitioners do not seek any relief against DTSC. The court must rule on the petition as pleaded and cannot grant relief or claims that were not pleaded. Furthermore, a final administrative decision has not yet been issued, and, even if it was, the petition necessarily could not have challenged an administrative decision that had not yet been issued. As a result, Petitioners’ claims of estoppel, abuse of discretion, and relief from default are asserted only as a basis for the court to issue the writ requested in the

petition, i.e. a continuance of the hearing. Because the court cannot grant such relief, Petitioners’ contentions are all moot and need not be decided by the court.

In reply, Petitioners state that “Mandate should be granted ordering the DTSC to grant petitioner corporation standing and granting it a trial to contest the Order of Enforcement.” (Reply 7.) Petitioners did not request such relief in the opening brief or develop an argument for the court to issue a writ directed at DTSC. (See Opening Brief 8:23-26 [seeking a writ “ordering the OAH to allow [Express] to appear”].) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioners do not show good cause to raise new arguments in reply. In any event, the court cannot grant relief that was not requested in the petition or adjudicate claims that were not pleaded. As discussed at length above, the petition did not seek any relief directed at DTSC or plead a cause of action for mandate based on an administrative decision or other action of DTSC.

Petitioners’ Due Process Claims

In the second and third causes of action in the petition, Petitioners assert that “Respondent’s decision denying Express an adequate and sufficient time to present its defense also has arbitrarily violated Express’s due process rights to be heard in a meaningful manner” in violation of the due process clauses of the U.S. and California Constitutions. (Pet. ¶¶ 39-45.)

In the opening and reply briefs, Petitioners have not developed any argument in support of these due process claims. Accordingly, Petitioners have waived the claims. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].) 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.)

Furthermore, Petitioners apparently raise the due process claims as a basis for the writ relief requested in the petition, i.e., a continuance of the OAH hearing. Accordingly, the claims are moot for the same reasons discussed above.

Conclusion

The first, second, and third causes of action in the petition are DENIED.

1 For facts from the petition expressly adopted in DTSC’s opposition, the court may cite to the petition.