Judge Mitchell L. Beckloff, Case 20STCP04173 2023-03-29 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP04173, Date: 2023-03-29 Tentative Ruling

K.I., through her guardian ad litem, Petitioner, Jovan Ivosevic, moves for leave to file a first amended petition. This motion is unopposed. The motion is granted.

Petitioner also moves to seal certain records. The motion is unopposed. The motion is denied without prejudice.

Finally, Petitioner moves to augment the administrative record. Respondents, California Department of Social Services and its Director, Kimberly Johnson (Respondents), oppose the motion. Given the court’s ruling on the motion to seal, the motion to augment must be continued.

Petitioner requests leave to amend the petition to remove the second cause of action seeking a writ of mandate under Code of Civil Procedure section 1085.

“[G]enerally courts will liberally allow amendments at any stage of the proceeding.” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280; Code Civ. Proc., § 473, subd. (a)(1).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

Petitioner seeks leave because K.I.’s “interests will adequately be protected by proceeding on the sole basis of the administrative mandamus cause of action (CCP section 1094.5).” (Ivosevic Decl., ¶ 4.)

Petitioner’s request for leave is proper. The unopposed motion is granted. Petitioner must file his amended petition as a stand alone document. (Respondents shall advise the court whether they intend to stand on their answer filed January 14, 2022 even with the amended petition.)

Petitioner moves to seal certain post-decision medical and school assessment records for K.I. To wit:

3. K.I.’s initial Individualized Education Plan (IEP) dated June 20, 2020 (Exhibit C);

11. Special Education Assessment Notification dated October 21, 2022 (Exhibit K);

12. Special Education Assessment Notification dated November 17, 2022 (Exhibit L);

13. Special Education Assessment Notification dated November 28, 2022 (Exhibit M);

14. Special Education Assessment Notification dated December 6, 2022 (Exhibit N);

15. Special Education Assessment Notification dated December 9, 2022 (Exhibit O); and

“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (California Rules of Court [CRC], Rule 2.551, subd. (b)(1).)

The court must make express findings to support sealing under CRC, Rule 2.550. Specifically, CRC, Rule 2.550, subdivision (d) provides:

“The court may order that a record be filed under seal only if it expressly finds that:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

K.I. is a developmentally delayed minor. The records will assist at trial as they support of K.I.’s claims under Code of Civil Procedure section 1094.5. The records for which sealing is sought will be used to augment the record if the court allows the record to be augmented.

Petitioner contends K.I. is entitled to privacy regarding her medical condition and developmental impairment—such records are of a highly personal nature. The court agrees K.I.’s privacy interest overrides the public’s interest in accessing these records; K.I.’s heightened privacy interests given the nature of the records supports a request to seal the records.

Petitioner does not address, however, the requirement that no less restrictive means exist to achieve this overriding interest. Petitioner has requested the court seal each record completely and without consideration of whether the records could be redacted (as appropriate) and then filed. It appears to the court that certain records could be redacted sufficiently to protect K.I.’s privacy while still allowing appropriate public access. While it may be that all records should be sealed in their entirety, as requested by Petitioner, the court cannot make that determination today because (apparently) there has been no consideration of how the records might be sealed in a manner less than in their entirety to balance K.I.’s privacy interests with the public’s constitutional right to access.

The motion is seal is denied without prejudice. Petitioner has not demonstrated that wholesale sealing of all the records is a narrowly-tailored order.

[Assuming the court does not adopt its tentative decision on the sealing motion, and the court proceeds with the motion to augment.]

Petitioner moves to augment the record by adding post-hearing and post decision medical and school records. As the court has not granted Petitioner’s motion to seal, the records are not before the court, and the court has nothing before it to use to augment the record.

Augmentation of the administrative record is strictly controlled by statutory guidelines set forth in Code of Civil Procedure section 1094.5, subdivision (e). (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Governing augmentation, Code of Civil Procedure section 1094.5, subdivision (e) provides:

“Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”

The burden to make either of these showings lies with the proponent of the additional evidence. (Armondo v. Department of Motor Vehicles (1993) 15 Cal.App.4th 1174, 1180-1181.)

Relevant evidence is “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)

As argued by Respondents, the general rule for administrative mandamus provides judicial review is conducted “solely” on the record of the proceeding then before the administrative agency. (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. [“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.”] See also Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1144 [“a “fundamental rule of administrative law is that a court’s review is confined to an examination of the record before the administrative agency at the time it takes the action being challenged”].)

Of course, Code of Civil Procedure section 1094.5, subdivision (e), does provide a limited exception to the general rule where “there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced.” (Code Civ. Proc., § 1094.5, subd. (e).)

As a preliminary matter, it is uncontested the records (not yet before the court based on the motion to seal ruling)—which post-date the administrative hearing and decision—could not have been provided during the hearing; that is, they did not yet exist. Thus, the records satisfy Code of Civil Procedure section 1094.5, subdivision (e).

Nonetheless, that the records post-date the administrative proceedings and decision raises questions about relevance. That is, the nexus between the alleged error by Respondents in the administrative proceedings and records not yet in existence is unclear. Whether Respondents improperly denied certain benefits to K.I. when she was two—based on the information then presented to Respondents—is the sole issue in these proceedings. That issue defines the relevancy of the records for which augmentation is sought.

The court finds Respondent’s argument persuasive; the proffered records are not relevant because they do not pertain to Petitioner’s condition as a two-year-old child. The proferred records cannot inform on Respondent’s decision when K.I. was two years old. According to Respondents, records discussing and evaluating K.I.’s impairment at a later date and at a later stage of childhood development are not relevant to Respondents’ assessment of K.I.’s eligibility for services at the time of her initial application for benefits—when she was two years old. (Manual of Policies and Procedures (MPP) §§ 30-755.21; 30-757.173(a).)[1]

Here, Respondents note the oldest documents Petitioner seeks to add to the record are from May 2020, which is more than a year after Petitioner applied for benefits as well as the effective date of the benefits at issue. Respondents adopted their decision on December 18, 2019 well before the oldest record was created.

Moreover, the documents Petitioner seeks to add to the administrative record do not appear to specifically address Petitioner’s need for services at the time of her initial assessment. Instead, the records document events and assessments that occurred between 2020 and 2022. Thus, they can have no relevance to the single issue before the court—whether Respondents improperly denied certain benefits to K.I. when she was two years old.

The court agrees with Respondents on the issue—although the documents may be relevant to the applicant’s eligibility at the time these records were created,[2] the records do not inform on K.I.’s benefit eligibility before that time.

To determine whether Respondents erred, as claimed by Petitioner, the court cannot rely on evidence and developments that did not exist at the time Respondents made their decision. Evidence created about events and assessments occurring months or years after Respondents made their decision is not appropriate considered here. Information not yet existing when Respondents they made their decision in 2019 cannot be used to find error today.

For the foregoing reasons, the court will grant the motion for leave, deny the motion to seal and continue the motion to augment the record.

[1] While the parties have not provided the relevant section of the MPP, it is referenced and quoted in the decision attached to the petition.

[2] Respondents advise despite K.I.’s later assessments, K.I. has not reapplied for benefits.