Judge Mitchell L. Beckloff, Case 21STCP01508 2023-05-10 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP01508, Date: 2023-05-10 Tentative Ruling

Petitioners, Nick Rowin, Sean Weber and Jeff Martin, filed their Petition for Writ of Mandate and Complaint for Injunctive Relief Re: Violations of the Ralph M. Brown Act, the California Public Records Act and the California Constitution on May 11, 2021.[1] The petition alleged four causes of action—violation of the California Public Records Act (CPRA) (Gov. Code, § 7921.000 et seq.), violation of the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950) declaratory relief (derivative of the “constitutional, statutory, and administrative provisions”) and injunctive relief.

Respondent, William S. Hart Union High School District, demurrered to the petition.

On July 12, 2022, the court sustained the demurrer to the first (CPRA) and fourth (injunction) causes of action. The court granted 21 days leave to amend as to the first cause of action only.[2] The court found Petitioners’ second (Brown Act) and third (derivative claim) causes of action survived demurrer. (See Order filed July 12, 2022.)

After Petitioners failed to amend the first cause of action, on August 16, 2022, the court granted Respondent’s ex parte application to dismiss the petition’s first cause of action. (See Minute Order filed August 16, 2022.) The court denied Respondent’s request to dismiss the petition in its entirety. Instead, the court ordered the petition proceed to trial on the second and third causes of action.[3]

On September 2, 2022, the court set this matter for trial on May 10, 2023 at a trial setting conference attended by all parties. The court ordered Petitioners to file and serve their combined opening brief 60 calendar days in advance of the trial. The court ordered Respondent to serve and file any opposition brief 30 calendar days in advance of the trial. Finally, the court ordered Petitioners to file and serve their reply brief 15 calendar days in advance of the hearing. (See Minute Order dated September 2, 2022.)

As instructed by the court, Respondent provided notice of the court’s September 2, 2022 rulings. In fact, Respondent’s notice of trial and the briefing schedule repeated the language in the court’s minute order verbatim. (Notice of Rulings filed September 6, 2022.)

Based on the court’s orders, Petitioners were required to file their combined opening brief on or about March 13, 2023. Petitioners did not file an opening brief.[4]

On April 7, 2023, 33 days prior to trial, Respondent filed Respondent’s Opposition to the Petition for Writ of Mandate and Request for Denial of Petition Based on Failure to File Opening Brief. Respondent served its brief on Petitioners on April 7, 2023 by mail and email.

Ten days later, 23 days before trial, on April 17, 2023, (former) Petitioner Denise Maryniak, filed her ex parte application to continue trial. Respondent opposed the application. On April 19, 2023, the court denied the application finding (former) Petitioner Denise Maryniak had not established good cause to continue the trial. (See Minute Order dated April 19, 2023.)

During the hearing on (former) Petitioner Denise Maryniak’s application, the court noted the evidence submitted was overly general concerning any inability to prepare for trial based on medical issues. The evidence also established (former) Petitioner Denis Maryniak’s counsel had known of the trial date since September 2, 2022 and had been provided with notice of the trial. It was unclear to the court how (former) Petitioner Denise Maryniak’s counsel could have been “unaware of the upcoming trial date” given his appearance at the trial setting conference and Respondent’s notice of trial. (See Bernard Decl., ¶ 5 in Application filed April 17, 2023.)

The day following the hearing on (former) Petitioner Denise Maryniak’s ex parte application, on April 20, 2023, 20 days before trial, Petitioners Rowin and Weber, filed their ex parte application to continue trial. Their application reported Respondent had provided “over ten thousand documents [], hundreds of hours of video, at least 59 sessions of school district council meetings” in a “disorganized” manner that “hinder[ed] resolution of this matter.” (Application filed April 20, 2023 5:4-6.) Petitioners explained “the overwhelming amount of discovery produced” necessitated additional time to prepare for trial. (Application filed April 20, 2023 5:15.) Petitioners further explained:

“Counsel’s motion for Ex Parte application for a continuance of the trial is necessitated by delays due to Defendant's deliberate obstruction of discovery efforts, which have made it impossible to adequately prepare for trial. Defense counsel has delayed the provision of discovery for several months, produced over ten thousand disorganized and duplicative documents, made piecemeal responses to discovery requests, and intentionally deleted discovery links, among other things. These tactics have violated the Discovery Act, obstructed the discovery process, and caused undue prejudice to Plaintiff, thereby impinging on their due process rights under both the Federal Constitution and California Constitution.” (Application filed April 20, 2023 6:16-23.)

Respondent opposed Petitioner Rowin and Weber’s ex parte application to continue trial. Respondent produced evidence that it last produced documents to Petitioners on December 23, 2022—four months before Petitioners Rowin and Weber filed their ex parte application to continue trial. (Frey Decl. filed April 40, 2023, ¶ 5.) Respondent also reported Petitioners had not taken any depositions during discovery. (Id., ¶ 6.) Respondent took the position Petitioners had delayed prosecution of the proceeding they brought and had not been actively engaged in discovery.

The court denied Petitioner Rowin and Weber’s request to continue trial. The court indicated during the hearing it largely agreed with the arguments made by Respondent in opposition to the application. The court noted:

“The evidence before the court demonstrates Petitioners failed to file any discovery motions in this matter. Petitioners also acknowledge Respondent last produced responses on December 23, 2022. The court denied Petitioner’s [sic] request for an informal discovery conference on October 12, 2022 just after Petitioner[s] made the request. From the court’s perspective, given the facts provided, issues with discovery do not constitute good cause to continue trial in this matter. It appears Petitioners have failed to actively prosecute their case. ¶ Finally, the difficulties presented by the COVID-19 virus are insufficient grounds to continue a trial set seven months ago.” (Minute Order dated April 21, 2023.)

Thereafter, Petitioners Rowin and Weber served notices to appear on 18 persons related to Respondent. On Respondent’s unopposed motion, the court quashed the notices after a hearing.[5] The court found Petitioners Rowin and Weber had not justified the attendance of witnesses at trial given that petitions for writs of mandate are heard as law and motion matters. (See Order filed May 5, 2023.) The court explained:

“Petitioners have not demonstrated any justification for witnesses to appear at a matter that will be conducted as a law and motion matter. (See Cal. Rules of Court, Rule 3.1103, subdivision (a)(2); Los Angeles County Court Rules, Rule 3.231, subd. (h), (m). See also California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405. [‘In a law and motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony.’])”[6] (Order filed May 5, 2023.)

The petition alleges Respondent violated the Brown Act on the following dates in 2021: January 13, January 20, February 3, February 9, February 17, February 27, March 3, March 17 and March 27. Thus, the issues before the court are limited to Respondent’s acts on those dates.

As a preliminary matter, Petitioners have failed to file a timely opening brief in this matter.[7] By failing to file a timely opening brief with evidence to support their claims, Petitioners have waived any claims alleged in the petition. Petitioners bear the burden of proof in these proceedings and the failure to file a timely opening brief in support of their claims means Petitioners have not met their burden. (See, e.g., City of South San Francisco v. Board of Equalization (2014) 232 Cal.App.4th 707, 720. See also California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153. [“In a petition for writ of mandate brought pursuant to Code of Civil Procedure section 1085, however, the petitioner always bears burden of pleading and proving the facts upon which the claim for relief is based.”])

Evidence Code section 664 also creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) Given the presumption and a petitioner’s normal burden of proof in mandamus proceedings (California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at 1154), it follows that Petitioners have not met their burden here—that is, they have not overcome the presumption of regularity contained in Evidence Code section 664—where they file no timely 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 having not demonstrated Respondent erred, the petition is properly denied.

As noted earlier, Petitioners Rowin and Weber lodged (and it appears may have unsuccessfully attempted to file) a document entitled Administrative Record in Support of Petition for Writ of Mandate (the Document) on May 3, 2023, one week prior to trial.[8] The Document indicates Petitioners Rowin and Weber “request the Court’s discretionary relief for the untimely submission of the Administrative Record.” (1:19-20.) The Documents provides no authority to support the request the late filed brief be considered by the court.[9]

The Document appears to be a brief (legal argument)[10] with various exhibits as evidence attached to it.[11] The Document contains a “summary of arguments,” “relief sought” and “evidence of ongoing Brown Act violations.” (3-4.) Petitioners Rowin and Weber explain the evidence of ongoing violations as follows:

“In this section, we provide detailed descriptions of key pieces of evidence that stem from group text messages and emails –a prohibited form of communication by the majority of the Board yet potent source of information. These text messages and emails were procured from the defendants’ own discovery, thus reinforcing their authenticity and reliability. ¶ The messages have been meticulously examined and selected to represent a variety of alleged Brown Act violations. These include instances of discussions about official business outside of public meetings, decisions made without public input or transparency, improper closed sessions, and hinderances to public comment.” (Document 4-5.)

Respondent filed an objection to Petitioners’ Document, a late filed brief with evidence. Respondent argues: “The District is not able to prepare any defense, which includes the ability to make appropriate legal arguments or prepare declarations in response to Petitioners' claims. As discussed herein, the so-called Record is at least 50 days late.” (Notice of Objection filed May 3, 2023 1:27-2:1.)

Respondent’s objection is well taken. Petitioners Rowin and Weber failed to file an opening brief anywhere close in time to their deadline. (In fact, Petitioners Rowin and Weber filed the Document later than the date a timely reply brief would have been filed.) Filing a brief and evidence labeled an “administrative record” only seven days before trial (and eight days after the court ordered briefing to be complete) denies Respondent any ability to respond to the claims and would prejudice Respondent. It also leaves the court with little time to consider the evidence and arguments even in the absence of any opposition.

Moreover, Petitioners Rowin and Weber never sought leave of court to file the Document in advance of lodging it with the court. Petitioners cite no legal authority that would allow the court to proceed at trial with the Document when Respondent has had no opportunity to respond and has already filed its opposition brief pursuant to the briefing schedule.

Finally, the court notes the portion of the Document that constitutes legal argument (a brief) is 20 pages in length. An opening brief is limited to 15 pages. (See Cal. Rules of Court, Rule 3.1113, subd. (d).)[12] Petitioners did not seek leave of court to file an oversize brief. Therefore, the court may properly disregard it.

Based on the foregoing, the court disregards the Document as a late-filed oversized brief. Respondent’s objection to the Document is sustained.

Even assuming the court considered Petitioners’ brief, Petitioners offer no evidence to support the allegations in the petition. Instead of focusing on the nine dates Petitioners alleged in the petition that Respondent violated the Brown Act— January 13, January 20, February 3, February 9, February 17, February 27, March 3, March 17 and March 27, 2021—Petitioners address 16 different dates. Petitioners focus on purported meetings held January 5, February 4, February 26 through May 15, October 1, October 2, October 11, October 12, November 9, December 11, 2021 and January 7, January 27, February 3, February 10, May 2, May 6, and May 12, 2022.

As Petitioners filed their petition on May 11, 2021, the following alleged violations are outside the scope of the pleadings: October 1, October 2, October 11, October 12, November 9, December 11, 2021 and January 7, January 27, February 3, February 10, May 2, May 6, and May 12, 2022. Such alleged violations occurred after Petitioners filed the petition.

The petition does not allege Respondent violated the Brown Act on January 5 and/or February 4, 2021. Thus, such allegations are beyond the scope of the petition, and Petitioners Rowin and Weber are not entitled to relief based on them.

Petitioners also allege violations of the Brown Act between February 26 through May 15 in the Document. The court acknowledges the dates of certain alleged violations in the petition fall within those dates. Specifically, February 27, March 3, March 17 and March 27, 2021. Petitioners’ Exhibit C-100-13 does not contain any email dated on the dates alleged in the petition. Instead, one email dated May 15, 2021 occurred after Petitioners filed the petition. The only other email in Petitioners’ Exhibit C-100-13 is dated February 28, 2021, not a date alleged in the petition.

Petitioners’ Exhibit C-100-14, also allegedly demonstrating violations of the Brown Act from February 26 to May 15, 2021, contains only two email communications. Both communications purport to have been written in 2022, well after Petitioners filed their petition.

Finally, the court notes Petitioners lodged (and it appears may have unsuccessfully attempted to file) a document entitled Motion for Order Allowing Oral Testimony at the Writ of Mandate Hearing. Perhaps in an effort to avoid the court proceeding on the petition without any evidence, Petitioners contend “the oral testimonies can offer a more accurate, complete, and nuanced perspective on the discussions, decisions, and deliberations that transpired.” (Motion 2:16-17.)

For the reasons stated by Respondent in its opposition to the motion, Petitioners’ request to present live testimony is denied. Petitioners’ request does not comply with California Rules of Court, Rule 3.1306. Petitioners have not stated the nature and extent of evidence they intend to present at the hearing. They did not provide a time estimate. They also did not explain why such evidence could not otherwise have been presented to the court. Given that Petitioners have not submitted any opening brief, the live testimony evidence would not supplement any argument and/or evidence already received by the court.

Based on the foregoing, the petition is denied. Respondent’s objection to the court considering Petitioners’ Document is sustained. Petitioners’ motion to present live testimony at the hearing is also denied.

[1] There was an additional petitioner, Denise Maryniak, who requested to dismiss her petition with prejudice on May 4, 2023. The court entered the dismissal on May 5, 2023.

[2] The court did not grant leave to amend the fourth cause of action because an injunction is a remedy not a cause of action. (See Order filed July 12, 2022.)

[3] As the third cause of action for declaratory relief is a derivative claim, given the dismissal of the first cause of action, the declaratory relief claim is now solely focused on alleged violations of the Brown Act.

[4] One week before today’s trial, Petitioners Rowin and Weber lodged a brief with evidence labeled “Administrative Record in Support of Petition for Writ of Mandate.” That document is discussed further infra.

[5] Respondent presented the motion to quash as an ex parte application. The court granted alternative relief and set the motion for hearing on shortened time to allow Petitioners adequate time to be heard on Respondent’s request.

[6] Given that Petitioners Rowin and Weber had not filed any opening brief in this matter, the live testimony would not serve to supplement any evidence or argument before the court at the time of trial. (The court acknowledges Petitioners Rowin and Weber had lodged their brief with evidence labeled “Administrative Record in Support of Petition for Writ of Mandate” two days prior the court’s hearing on Respondent’s motion to quash.)

[7] As discussed infra, to the extent Petitioners submitted a brief, it is late and oversized. The court does not consider the late filed brief. (Cal. Rules of Court, Rule 3.1300, subdivision (d).)

[8] The court advised the parties at the hearing on May 5, 2023 that Petitioners had not successfully filed their Administrative Record in Support of Petition for Writ of Mandate or Motion for Order Allowing Oral Testimony. The court also noted Respondent’s objections to same had been filed.

[9] Petitioners Rowin and Weber had not previously requested leave to file a late brief.

[10] Indeed, Petitioners concede it is a brief. (See Document 23:16-18.)

[11] The exhibits are not authenticated.

[12] Curiously, Petitioners Rowin and Weber report: “Pursuant to California Rules of Court, rule 3.1113(d), . . . this brief contains 6,744 words, as counted by the word-processing program used to generate the brief, and is therefore compliant with the rule that limits a brief to 14,000 words.” (Document 23:16-18.) Petitioners Rowin and Weber appear to have confused the applicable rule (California Rules of Court, Rule 3.1113, subdivision (d)) with the rule in the Courts of Appeal. (California Rules of Court, Rule 8.883, subd. (b)(1).)