Judge Mitchell L. Beckloff, Case Number: 21STCP02377, Date: 2023-08-11 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02377, Date: 2023-08-11 Tentative Ruling

Petitioner, Happiness Garden – Kofukuen, filed its Verified Petition for Writ of Mandate; and for Declaratory Relief on July 22, 2021. Through the petition, Petitioner seeks an order requiring Respondent, the City of Gardena, to approve Petitioner’s application for a conditional use permit (CUP). Petitioner contends the City violated the Free Exercise Clause of the California Constitution and federal law, the Religious Land Use and Institutionalized Person Act (Act), when it denied its application.[1]

On June 22, 2022, the court set this matter for trial on March 24, 2023. As part of that order, the court required Petitioner’s opening brief to be filed and served 60 calendar days prior to the scheduled trial. The court also ordered the administrative record be lodged with the court 15 calendar days prior to trial. Despite both parties having been present at the trial setting conference, the court gave notice of the orders made on June 22, 2022. The clerk’s certificate of mailing reflects service upon the parties at the address provided to the court.[2]

On February 22, 2023, the City filed a Notice of No Filing or Service of Opening Brief by Plaintiff/Petitioner. The City’s notice advised Petitioner failed to file its opening brief when due on or before January 23, 2023. The City served the notice electronically (to two different email addresses) and at Petitioner’s counsel’s address of record as well as a new (third) address.

Three days prior to trial, on March 21, 2023, Petitioner’s counsel filed a notice he had been suspended by the State Bar. The notice indicated Petitioner’s counsel had been “suspended from the practice of law by order of the California Supreme Court until on or around May 24, 2023.” The address used by Petitioner’s counsel was not his address of record with the court, but the third address used by the City on February 22, 2023.

On March 24, 2023, the City advised the court (with State Bar records for support) through a declaration that Petitioner had not been suspended from the practice of law on January 23, 2023, the due date for Petitioner’s opening brief. The City’s counsel advised Petitioner’s counsel was suspended from the practice of law as of February 24, 2023 for a 90-day period if Petitioner met certain testing and other requirements.

The court continued the trial on the petition. (See Minute Order dated March 27, 2023.) The court noted in its order that it did “not have any information whether Petitioner has knowledge of its counsel’s inability to proceed in this matter for trial.” Given Petitioner’s counsel’s inability to appear at trial, the court continued the matter to July 14, 2023—50 days after Petitioner’s counsel indicated his suspension from the practice of law would terminate.

On June 14, 2023, the City advised the court (through a notice) that Petitioner had failed to file an opening brief for trial on July 14, 2023. The City also reported the State Bar’s website made it difficult to determine whether Petitioner’s counsel’s eligibility to practice law had been restored. The City served the notice by mail on June 14, 2023. The service list indicates the City served Petitioner’s counsel (at the third address) with courtesy copies to Petitioner’s agent for service of process, Petitioner (at its corporate address), and three officers of the corporation. The notice reflected the court date of July 14, 2023 at 9:30 a.m.

On July 5, 2023, the City advised the court (through a declaration) the State Bar website indicated Petitioner’s counsel had an active license to practice law as of June 24, 2023. The City also lodged the administrative record (previously provided to Petitioner’s counsel on August 22, 2022) with the court.

On July 11, 2023, Petitioner’s counsel filed his Notice of Plaintiff’s Counsel’s Health Emergency. (The notice reflects an incorrect court date of July 15, 2023 at 8:30 a.m.) The notice advises Petitioner’s counsel “suffered a major heart attack on June 29, 2023, was subsequently hospitalized for several days, has been diagnosed with heart failure and requests a short continuance.” Petitioner’s counsel included medical records to support his disclosure. (Petitioner’s counsel used his third address for his notice.)

On July 14, 2023, based on Petitioner’s counsel’s health emergency, the court continued the trial for four weeks to August 11, 2023. The City provided notice of the new trial date on July 17, 2023. The City served the notice on Petitioner electronically at two email addresses and by mail (at his third address). The City again provided courtesy copies by mail to Petitioner’s agent for service of process, Petitioner (at its corporate address), and three officers of the corporation. The notice reflected the court date of August 11, 2023 at 9:30 a.m.

Despite multiple continuances, Petitioner has failed to file an opening brief in this matter. Today is the third scheduled trial date. Despite the City having notified Petitioner’s counsel and the court on two prior occasions that Petitioner failed to file an opening brief, Petitioner has never moved the court for permission to file a late brief. Petitioner has never explained its failure to file an opening brief on the original due date of January 23, 2023.

By failing to file an opening brief in support of its petition, Petitioner has waived any claims alleged in the petition. Petitioner bears the burden of proof in these proceedings and the failure to file an opening brief means Petitioner has not met its 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 Petitioner’s burden in mandamus, it follows that Petitioner has not met its burden—that is, Petitioner has not overcome the presumption of regularity contained in Evidence Code section 664—where it files 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.” (Cal. Rules of Court, Rule 3.113, 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.” (Cal. Rules of Court, Rule 3.113, subd. (a).)

Based on the foregoing and Petitioner not having demonstrated the City erred when it denied Petitioner’s CUP application, the petition is denied.

[1] The petition does not provide a citation to the Act.

[2] In Plaintiff’s Response to Order to Show Cause Re: Dismissal, Petitioner’s counsel listed an address different than that provided to the court. Petitioner’s counsel has not filed a change of address with the court. Thus, the court has used the original address provided by Petitioner’s counsel as counsel’s address. It appears from the court’s file the notice provided to Petitioner’s counsel was returned by the post office as “not deliverable as addressed unable to forward.”