Judge: Mary H. Strobel, Case: 22STCP00021, Date: 2023-02-21 Tentative Ruling

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

Case Number: 22STCP00021    Hearing Date: February 21, 2023    Dept: 82

            Petitioner Andrew H. Kramer (“Petitioner”) petitions for a writ of mandate  directing Respondent Los Angeles County Sheriff’s Department (“Respondent”) “to produce requested documents under the California Public Records Act.”  (Pet. 1.) 

Procedural History

             On January 4, 2022, Petitioner, in pro per, filed a petition for writ of mandate pursuant to the California Public Records Act (“CPRA”).  The petition states that Petitioner mailed and emailed a CPRA request to Respondent on December 9, 2019, and Respondent refused to process or acknowledge the process.  The CPRA request and proof of mailing or emailing are not attached to the petition. 

            On March 16, 2022, Respondent filed and served an answer, which denies the allegations of the petition and asserts affirmative defenses. 

            On April 14, 2022, the court held a trial setting conference (“TSC”), which was attended by Petitioner and counsel for Respondent.  The court set the petition for hearing on February 21, 2023, and set a briefing schedule.  The court ordered Petitioner to file and serve his opening brief 60 days prior to the hearing, and any reply 15 days before the hearing.

At the TSC, Petitioner advised the court that he may need to file an amended petition.  The court advised the parties that they could either stipulate to the filing of an amended petition or Petitioner could file a motion for leave to amend the petition.  The parties have not filed a stipulation to amend the petition and Petitioner has not moved for leave to amend. 

Petitioner has not filed an opening brief, a reply, or any evidence in support of the petition.  No opposition has been received.

Analysis

Pursuant to the CPRA (Gov. Code § 7921.000, et seq.)[1], individual citizens have a right to access government records.  In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.”  (Gov. Code, § 7921.000; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)  In addition, an agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)   “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that: (1) the record ‘qualif[ies] as [a] ‘public record[ ]’ …; and (2) the record is ‘in the possession of the agency.’”  (Anderson-Barker v Sup.Ct. (2019) 31 Cal.App.5th 528, 538.) 

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”].)

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.) 

Here, the petition seeks a writ compelling Respondent “to produce requested documents under the California Public Records Act.”  (Pet. 1.)  Petitioner has not filed an opening brief or any evidence in support of the petition, including a copy of the CPRA request.  Accordingly, Petitioner has not met his burden of proof under the CPRA and CCP section 1085. 

Conclusion

            The petition is DENIED.