Judge Mitchell L. Beckloff, Case 20STCP00957 2022-12-07 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP00957, Date: 2022-12-07 Tentative Ruling

DILLON & STEVE’S AUTO BODY AND REPAIR, INC. v. BUREAU OF AUTOMOTIVE REPAIR

Petitioners, Dillon & Steve’s Auto Body and Repair, Inc., (Auto Body) and Andy Wang (Wang) (jointly, Petitioners), seek a writ of mandate pursuant to Code of Civil Procedure section 1094.5 compelling Respondents, Bureau of Automotive Repair (Bureau), Patrick Dorais, as Chief of the Bureau, Department of Consumer Affairs (Department), Denise Brown, as Director of the Department, to set aside the decision revoking Petitioner Auto Body’s smog station license and Petitioner Wang’s technician license.

Petitioners have failed to file an opening brief or lodge the administrative record with the court. (Petitioners previously failed to file an opening brief for the original trial date of May 4, 2022. The parties thereafter entered into a stipulation to continue the hearing and set a new briefing schedule; the court set a new trial date for today, December 7, 2022.)[1]

By failing to file an opening brief and the administrative record in support of their petition, Petitioners have waived any claims alleged in the petition. Petitioners bear the burden of proof in these proceedings and the failure to file an opening brief and administrative record means Petitioners have not met this burden. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233 [“[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”]; Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1107. [“Generally, ‘[i]n 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 . . . .” ’ ”])

Evidence Code section 664 also creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) Given the presumption and Petitioners’ burden in mandamus, it follows that Petitioners have not met their burden—that is, they have not overcome the presumption of regularity contained in Evidence Code section 664—where they file no opening brief demonstrating error.

Moreover, California Rules of Court, Rule 3.1103 provides writ petitions are considered law and motion matters. (Cal. Rules of Court, Rule 3.1103, subd. (a)(2).) A memorandum must be filed in support of a law and motion matter. (Cal. Rules of Court, Rule 3.112, subd. (a)(3).) A party filing a motion “must serve and file a supporting memorandum.” (Cal. Rules of Court, Rule 3.113, subd. (a).) The memorandum must set forth “a statement of facts, a concise statement of the law, evidence and arguments relief on, and a discussion of statutes, cases, and textbooks cited in support of the position advanced.” (Id. at subd. (b).) The failure to file a memorandum may be construed by the court as an admission the motion “is not meritorious and cause for its denial.” (Id. at subd. (a).)

Based on the foregoing and Petitioners not having demonstrated Respondents erred, the petition is denied.

[1] Petitioners filed no response to Respondents’ Notice of Petitioner’s Failure to File An Opening Brief served on Petitioners November 7, 2022 by first-class mail and email.