Judge Mitchell L. Beckloff, Case Number: 22STCP00098, Date: 2024-01-24 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00098, Date: 2024-01-24 Tentative Ruling

Petitioner, Diane Albertoni, a school psychologist, seeks a writ of mandate directing Respondent, Los Angeles Unified School District (LAUSD), to set aside its July 27, 2021 decision denying Petitioner’s request to work remotely as a reasonable accommodation.

LAUSD’s request for judicial notice of Exhibits A and B is granted. Petitioner’s objection is overruled.

For those reasons discussed below in the court’s Analysis section, Petitioner’s request to augment the administrative record is denied.

The court’s order of April 26, 2023 staying the second cause of action for negligence is lifted. The matter is transferred to Department 1 for reassignment of this matter (the second cause of action) to an independent calendar court.

As noted in the court’s April 26, 2023 order, LAUSD may calendar for hearing, if it chooses to do so, its demurrer and motion to strike the second cause of action after this matter is reassigned to an independent calendar court.

Petitioner is employed by LAUSD as a school psychologist. (Second Amended Petition (SAP) ¶ 1; Answer (Ans.) ¶ 1.)

In June 2021, Petitioner requested of her supervisor that she be permitted to continue to work remotely as a reasonable accommodation for certain medical conditions and concerns regarding exposure to variants of COVID-19 in the workplace. (SAP ¶ 2 and Exh. 2-3; Ans. ¶ 2.)

On July 27, 2021, LAUSD denied Petitioner’s request for a reasonable accommodation. (SAP

Petitioner appealed the denial of the request for a reasonable accommodation. On or about November 9, 2021, LAUSD’s Reasonable Accommodation Appeal Committee (Appeal Committee) denied the appeal. (SAP ¶ 8 and Exh. 3; Ans. ¶ 8.)

Petitioner thereafter obtained a right to sue letter from the Department of Fair Employment and Housing (DFEH). (SAP ¶ 91, Exh. 4.)

Petitioner contends that this writ action is governed by Code of Civil Procedure section 1094.5.[2]

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

“The courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights and thus requires independent judgment review.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) “ ‘In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.’ ” (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.)

Petitioner has not cited any case suggesting or holding that a government employer’s denial of a request for a reasonable accommodation related to a medical condition or disability necessarily affects a fundamental vested right. As summarized in the opposition brief, none of those cases cited by Petitioner address that issue. (See Opposition 7-10.) That said, Respondent also has not cited any case suggesting or holding that denial of a request for a reasonable accommodation does not impact a fundamental right.

In any event, the court need not decide the issue because, as discussed below, the SAP raises purely legal questions concerning the fairness of LAUSD’s procedures, bias of the adjudicators, and LAUSD’s jurisdiction. Petitioner has not challenged any specific factual determination made by LAUSD. Accordingly, the court reaches the same result on the SAP regardless of whether the independent judgment or substantial evidence test applies to the review of factual findings.

Under either standard, “a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court” that the agency committed a prejudicial abuse of discretion. (See Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) Significantly, a reviewing court “will not act as counsel for either party . . . 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.) “When [a petitioner] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends Code of Civil Procedure section 1094.5 applies to LAUSD’s decision and therefore this proceeding. LAUSD disagrees. LAUSD argues administrative mandamus is inapplicable because the decision did not result after a hearing required by law.[3]

“The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate. [Citation.] Statutes provide for two

types of review by mandate: ordinary mandate and administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The nature of the administrative action or decision to be reviewed determines the applicable type of mandate. [Citation.] In general, quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate. [Citation.] But judicial review via administrative mandate is available ‘only if the decision[] resulted from a ‘proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]’ [Citation.] . . . . Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.)

“Section 1094.5 expressly provides that it is the requirement of a hearing and taking of evidence—not whether a hearing is actually held and evidence actually taken—that triggers the availability of mandamus review.” (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1729 [Code of Civil Procedure section 1094.5 applied because “Pomona's Handbook requires both a hearing and the taking of evidence in reaching its initial tenure decision, and provides for a ‘formal hearing’ upon the filing of a grievance complaint by the dissatisfied faculty member”]; compare Wasko v. Department of Corrections (1989) 211 Cal.App.3d 996, 1000-1002 [a regulation giving inmates the “right to appeal decisions, conditions, or policies affecting [their] welfare,” and requiring a system for “administrative review” of problems or complaints, did not entail a “hearing” for purposes of Code of Civil Procedure section 1094.5].)

Both parties rely on a LAUSD Policy Bulletin titled Reasonable Accommodation for Individuals with Disabilities (Bulletin) to argue their position on the applicability of Code of Civil Procedure section 1094.5. (SAP Exh. 1; Resp. RJN Exh. A.)

In sections entitled “Interactive Process” and “Reasonable Accommodation Process,” the Bulletin describes interactive processes for “site administrators” to evaluate and respond to employees’ requests for reasonable accommodations. In a section entitled “Formal Process,” the Bulletin states in pertinent part:

In addition, the disability coordinator may convene a Reasonable Accommodation Committee. The Reasonable Accommodation Committee shall be comprised of certificated and classified District employees who convene to consider requests for reasonable accommodation where an accommodation cannot be made at the local work site. The employee/applicant requesting an accommodation shall participate in person or by telephone to address the Committee and may provide additional material and documents relevant to his/her accommodation request. The site administrator may also be invited to address the Committee where appropriate. (RJN Exh. A at 4-5 [emphasis added].)

In a section entitled “Appeal Process,” the Bulletin also states in pertinent part:

An employee/applicant who disagrees with the Reasonable Accommodation Committee’s decision may file a written appeal . . . . [¶]

The Committee will meet within forty-five (45) calendar days of receipt of the request for appeal. The employee/applicant requesting an appeal shall participate in person or by telephone to personally address the Committee, and may provide additional materials and documents relative to the appeal. (RJN Exh. A at 5 [emphasis added].)

“Ordinarily, the word ‘may’ connotes a discretionary or permissive act; the word ‘shall’ connotes a mandatory or directory duty. This distinction is particularly acute when both words are used in the same statute.” (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433.)

Here, there are colorable arguments both that a “hearing” was required by law, such that Code of Civil Procedure section 1094.5 applies, or that a “hearing” was not required by law, such that Code of Civil Procedure section 1094.5 does not apply. Specifically, as LAUSD contends, the Bulletin provides the disability coordinator “may” convene a Reasonable Accommodation Committee, which suggests that the hearing procedure is optional and not required by law. On the other hand, as Petitioner points out, primarily in her Reply Brief, the Bulletin also includes some mandatory language (i.e., “shall”) to describe certain parts of the “Formal Process” and “Appeal Process,” which could arguably imply that an evidentiary hearing is required by LAUSD’s policies in certain cases, such as this one, in which a Reasonable Accommodation Committee is convened.

Ultimately, this court concludes Petitioner has raised purely legal questions the court may address without resolving whether section 1085 or section 1094.5 of the Code of Civil Procedure governs here.[4] That is, the result is the same under either statute.

The respondent's letters and record do not indicate that there was any transcript of any of the hearing, nor was anyone sworn, nor does it indicate that there was any opportunity for petitioner to question the quasi-evidence against her, nor was petitioner notified of the time of the presentation of the quasi-evidence against petitioner, nor was any opportunity afforded to petitioner to rebut or reply, as required by the due process clause. (Opening Brief 2:16-21.)[5]

“Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “Notice of the charges sufficient to provide a reasonable opportunity to respond is basic to the constitutional right to due process and the common law right to fair procedure.” (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445 [quoted by Doe v. University of Southern California, supra, 246 Cal.App.4th at 240].) A government agency “is bound by its own policies and procedures.” (See Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.)

“[P]rocedural due process errors, even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Petitioner does not demonstrate under the circumstances here she was entitled to a transcript of the meeting with the Reasonable Accommodation Committee (RA Committee), the use of sworn statements by the RA Committee, and/or an opportunity to question any witnesses pursuant to LAUSD policies, including the Bulletin. Consistent with the procedures outlined in the Bulletin, Respondent’s August 16, 2021 letter reveals Petitioner was given an opportunity to present her reasons for requesting a reasonable accommodation to the RA Committee during a Zoom conference. The letter also refers to written materials submitted by Petitioner and statements of an administrative coordinator (Mary Susan Kapamaci) considered by the RA Committee. (Albertoni Decl. Exh. 1.) The November 9, 2021 appeal decision shows that the Appeal Committee considered the same information presented to the RA Committee. (Albertoni Decl. Exh. 1.)

In her Opening Brief, Petitioner develops no argument LAUSD failed to follow any specific procedures set forth in the Bulletin or any other LAUSD policy. As noted earlier, this court’s role is not to “act as counsel for either party . . . 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.)

Further, even if Code of Civil Procedure section 1094.5 applies under these circumstances, Petitioner has not developed an argument of how the procedures used by LAUSD denied her a fair hearing. “The ‘fair trial’ requirement of section 1094.5 is not synonymous with constitutional due process and does not mandate ‘a formal hearing under the due process clause.’ [Citation.] What is required is simply a ‘fair administrative hearing’, which affords the appellant a ‘reasonable opportunity to be heard.’ ” (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463 [addressing due process/fair trial claim].) “[T]he precise procedures necessary to provide a complainant with a meaningful opportunity to be heard ‘depend[ ] largely on ‘the nature of the tendered issue.’ ” (Boermeester v. Carry (2023) 15 Cal.5th 72, 87.) Here, the record shows LAUSD provided Petitioner with a full and fair opportunity to present her reasons for the request for reasonable accommodation, both in writing and in a Zoom conference, with the RA Committee. The Appeal Committee considered this same information in response to Petitioner’s 19-page appeal letter.[6]

there is no indication that petitioner ever had an opportunity to respond to what was purportedly stated by Mary Susan Capamaci, who was the only witness for respondent. Nor does the administrative record indicate that the petitioner was even present, nor notified of the time of the testimony of Mary Susan Capamaci, Administrative Coordinator. (Opening Brief 3:10-16.)

LAUSD’s August 16, 2021 letter indicates the RA Committee convened a meeting “to further engage in the interactive process regarding [Petitioner’s] request for an accommodation.” (Albertoni Decl. Exh. 1.) The letter indicates Petitioner participated in the meeting as did the administrative coordinator. (Albertoni Decl. Exh. 1.) That LAUSD’s letter does not constitute a transcript of the meeting or is not more formal does not constitute error. The absence of evidence that does not answer the innuendo of error asserted above by Petitioner does not demonstrate prejudicial error. (Pinheiro v. Civil Service Com. for County of Fresno, supra, 245 Cal.App.4th at 1464. [“Generally, we reverse only if the alleged error prejudicially affected the appellant’s substantial rights.”])

Moreover, Petitioner’s 19-page appeal letter does not address her concerns about the RA Committee hearing process or what the administrative record (at that point the RA Committee’s letter) does not show. In fact, to the extent Petitioner disagreed with the RA Committee’s narrative of the Zoom conference, the appeal letter makes that disagreement clear. (See, e.g., Albertoni Decl., Exh. 1, October 6, 2021 appeal letter at p. 19 [Ms. Albertoni does not recall stating that she would prefer preschool”].) Finally, Petitioner has also not introduced (or attempted to introduce) evidence summarizing her version of the RA Committee meeting to support her error innuendo. (See Evid. Code, §§ 412, 413.)[7]

Petitioner also asserts “[t]he due process clauses require a fair hearing for the subject disability.” (Opening Brief 4:28:5:14; see also Reply 4-5.) In her Opening Brief, Petitioner relies on Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564 [Roth], where the United States Supreme Court held that a non-tenured professor did not have a property interest in continued employment and was not entitled to a hearing when the university declined to renew his contract of employment. Roth does not suggest denial of a request for reasonable accommodation by a government employer implicates a fundamental interest and requires any specific type of hearing. “An opinion is not authority for propositions not considered.” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)[8] Through her briefing, Petitioner does not demonstrate she was entitled to a more formal evidentiary hearing pursuant to the 14^th Amendment and constitutional due process principles. Petitioner cites no authority on point, and her argument that the denial of her request had an impact on a property interest is not fully or sufficiently developed to be persuasive.

For the first time in her Reply Brief, Petitioner argues LAUSD did not complete certain actions required by the Interactive Process set forth in the Bulletin. For instance, Petitioner states “there is supposed to be documented results of the interactive process done before the formal process even begins” and that “the opposition does not state nor argue that any these required actions were done.” (Reply 3:27-28, 4:5-6.) In reply, Petitioner also argues, again for the first time, that LAUSD failed to comply with the Appeal Process set forth in the Bulletin because the Appeal Committee conducted a “paper review,” did not hold a de novo hearing, and did not allow Petitioner to participate in the appeal meeting or provide additional materials. (Reply 5-8.)

“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre, supra, 149 Cal.App.3d at 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Petitioner initiated this proceeding on January 10, 2022, more than two years ago, and the court set this trial in April 2023. Petitioner did not raise the arguments in her short six-page Opening Brief. Petitioner does not show good cause to raise these entirely new arguments in her Reply Brief. LAUSD has not had a full and fair opportunity to respond to the claims. Accordingly, the court does not reach these new arguments.[9]

Based on the foregoing, Petitioner has not shown LAUSD denied her a fair hearing or due process. Petitioner also does not show LAUSD failed to follow its own procedures or, importantly, that she was prejudiced by the procedure used by LAUSD to decide her request for a reasonable accommodation.

[I]t appears as if all the people who decided the case were employees of respondent, and therefore likely to be biased, and even possibly subject to work related problems if they decided against there [sic] employer/ respondent. The hearing officers even all appear to be employees of the respondent in various positions as supervisors over employees. (Opening Brief 6:17-21.)

“Absent a financial interest, adjudicators are presumed impartial.” (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.) “Bias and prejudice are never implied and must be established by clear averments.” (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.) Petitioner must show “ ‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’ ” (Nasha LLC v. City of Los Angeles, supra, 125 Cal.App.4th at 483.)

Petitioner has not met her burden of demonstrating bias. The Bulletin specifically states the RA Committee and Appeal Committee shall be comprised of District employees. Petitioner cites no evidence the members of the RA Committee or Appeal Committee had any financial interest in the case or other otherwise demonstrated an unacceptable probability of actual bias. Accordingly, Petitioner’s bias claim fails.

Petitioner also contends “the committee members who decided this case indicate that they had no qualifications to do so, because none of the committee members are alleged to have any legal qualifications” or “qualifications in the legal field.” (Opening Brief 6:1-4, 12.) However, the Bulletin does not require that the RA Committee members have any “legal qualifications.” Petitioner does not show the RA Committee members lacked the qualifications required by the Bulletin and LAUSD policies. Petitioner’s arguments “the respondent failed to assign qualified people to preside at the hearing, as required to constitute a fair hearing” and, relatedly, that Respondent lacked jurisdiction are not persuasive. (Opening Brief 6:11-16 and 6:22-24.)

Petitioner Has Not Shown a Prejudicial Abuse of Discretion Under Code of Civil Procedure Section 1094.5, Subdivision (b)

After reviewing the evidence, the RA Committee denied Petitioner’s request for a reasonable accommodation. The RA Committee explained:

After reviewing and taking into consideration all the documentation you submitted as part of your request, the information you presented during the meeting, and reviewing alternate accommodations, the Committee, unfortunately, is unable to approve your request to continue to work remotely from home, while you observe students via Zoom as a proper assessment of a student needs to be done face-to-face. Your request for another psychologist to perform a part of your essential function of assessment of a student, while you observe the student and psychologist via the internet is not a reasonable accommodation. (Albertoni Decl. Exh. 1.)

Significantly, Petitioner bears the burden of proof and persuasion in this proceeding. (Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317; Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)

In her Opening Brief, Petitioner argues LAUSD’s hearing procedure was unfair or deprived her of due process; the RA Committee members were biased; and LAUSD lacked jurisdiction. Petitioner does not develop, however, any argument the reasons stated by LAUSD for denying her request for a reasonable accommodation were unsupported by evidence or otherwise constitute a prejudicial abuse of discretion.

Petitioner argues “there is not any evidence to support the decision denying the application for a reasonable accommodation.” (Opening Brief 2:23-24; see also 5:6-8.) Petitioner does not meet her burden of proof on her lack of evidence claim. The decisions of the RA Committee and Appeal Committee refer to supporting evidence. While that evidence does not appear in the record that has been certified, Petitioner does not show no evidence existed to support LAUSD’s decisions. “In 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 . . . .” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

Through her briefing, Petitioner does not show a prejudicial abuse of discretion as to LAUSD’s findings and decision. (Code Civ. Proc., § 1094.5, subd. (b); see also Cal. Rules of Court, Rule 3.1113, subd. (a) and Quantum Cooking Concepts, Inc. v. LV Associates, Inc., supra, 197 Cal.App.4th at 934.)[10] Petitioner is therefore not entitled to a writ of administrative mandate.

Even if Code of Civil Procedure Section 1085 Applies, Petitioner Does Not Show Grounds for Relief

There are two essential requirements for the issuance of an ordinary writ of mandate under section 1085: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)

“Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

Here, even if this action is governed by Code of Civil Procedure section 1085, Petitioner does not show any grounds for which an ordinary writ of mandate would issue. For the reasons discussed earlier, Petitioner does not demonstrate LAUSD failed to follow its procedures or give the notices required by the Bulletin, other LAUSD policies, or any statute or regulation. Petitioner’s arguments the RA Committee members were biased or lacked “jurisdiction” on this record are fundamentally legal issues based on undisputed facts. Therefore, the court’s analysis of those issues is the same as set forth above.

For the reasons discussed earlier, Petitioner also does not show LAUSD’s reasons for denying the request for reasonable accommodation were arbitrary, capricious, or entirely lacking in evidentiary support. Further, based on the reasons discussed in the court’s ruling on demurrer, Petitioner does not allege any mandatory duty compelling Respondent to grant a reasonable accommodation, and Petitioner also had an adequate remedy at law in the Fair Employment and Housing Act (FEHA). (See Demurrer Ruling 4-5; see SAP ¶ 91, Exh. 4 [DFEH right to sue letter].)

Based on the foregoing, Petitioner does not demonstrate she is entitled to an ordinary writ of mandate.

The third cause of action for declaratory relief is derivative of the writ cause of action. Accordingly, for the reasons discussed earlier, Petitioner also is not entitled to any judicial declaration. (See Hannon v. Western Title Ins. Co. (1989) 211 Cal.App.3d 1122, 1128.)

In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (Code Civ. Proc., § 1094.5, subd. (e).) A request for judicial notice cannot be used to circumvent the rules constraining the admission of extra-record evidence. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, fn. 10.)

Generally, “extra-record evidence is admissible if the proponent shows that the evidence existed before the agency made its decision, but that it was impossible in the exercise of reasonable diligence to present it to the agency before the decision was made.” (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 930.)

In her declaration dated November 24, 2023 and filed with her Opening Brief, Petitioner includes some evidence that may have existed before LAUSD’s appeal decision dated November 9, 2021. (See Albertoni Decl. ¶¶ 5-14.) Petitioner does not show the reasonable diligence required of Code of Civil Procedure section 1094.5, subdivision (e) is met such that augmentation of the record with evidence that existed before the November 9, 2021, decision is warranted.[11]

Petitioner also submits some evidence that post-dates LAUSD’s November 9, 2021 decision, including information about Petitioner’s current work assignment, Petitioner’s belief “the on-site work has become more stressful and dangerous since this case was started about two years ago,” and the reasons Petitioner would prefer to work for LAUSD’s “virtual Academy.” (See Albertoni Decl. ¶¶ 5-14.) Petitioner does not show this evidence existed before the agency made its decision. (See Saraswati v. County of San Diego, supra, 202 Cal.App.4th at 930.) Further, even if post-decision evidence could be submitted in a writ proceeding in some circumstances, Petitioner does not explain the relevance of this new evidence to this proceeding. Specifically, Petitioner does not show under the Bulletin, other LAUSD policies, or relevant statutes, regulations, or case law, this new evidence has any bearing on whether LAUSD prejudicially abused its discretion when it denied Petitioner’s request in 2021.

Similarly, LAUSD submits two declarations in support of its opposition. Like Petitioner, LAUSD has not addressed the requirements of Code of Civil Procedure section 1094.5, subdivision (e) to allow the court to consider such extra-record evidence. Accordingly, the court does not consider such evidence for purposes of this proceeding.

To the extent Petitioner properly brought this proceeding under Code of Civil Procedure section 1085, the parties’ declarations do not impact the court’s earlier analysis of the issues. The new evidence is not necessary to resolve Petitioner’s fair trial, bias, and jurisdictional arguments. Further, as stated earlier, Petitioner does not demonstrate the new evidence is relevant to whether LAUSD prejudicially abused its discretion when LAUSD denied her request in 2021.

This proceeding considered LAUSD’s denial of Petitioner’s request for reasonable accommodation in 2021 only. Thus, Petitioner is not precluded by this court’s ruling from making a new request for a reasonable accommodation if her circumstances have changed. Petitioner is also not precluded by this court’s ruling from pursuing her available remedies, if any, under FEHA.[12]

The petition for writ of mandate (first cause of action) is DENIED. The third cause of action for declaratory relief is DENIED.

The court will transfer the second cause of action for negligence to Department 1 for assignment to an independent calendar court. (See LASC Rules 2.8, subd. (d) and 2.9.) The stay of the proceedings on the second cause of action is lifted.

[1] The court has considered Petitioner’s opening brief, Respondent’s “response” to the opening brief, Petitioner’s reply, and the administrative record, which is attached to Petitioner’s declaration filed with the opening brief. (See Albertoni Decl. ¶ 1, Exh 1.) The court further addresses the declarations submitted by the parties in the Analysis section below. The court notes Petitioner’s Reply Brief is 12 pages and therefore exceeds the applicable 10-page limit. (Cal. Rules of Court, Rule 3.1113, subd. (d); Los Angeles County Court (LASC) Rules, Rule 3.231, subd.(i).) The court has nonetheless exercised its discretion to consider the entire Reply Brief.

[2] In its ruling on demurrer dated April 26, 2023, the court concluded Petitioner had not stated a cause of action for ordinary mandate pursuant to Code of Civil Procedure section 1085. (See Demurrer Ruling 3-5.) Nonetheless, for the reasons discussed below in the Analysis section, the court also considers the petition under Code of Civil Procedure section 1085. The court reaches the same result here whether governed by Code of Civil Procedure section 1085 or 1094.5.

[3] While LAUSD cites the court’s ruling on its demurrer (see Opposition 7 and fn. 1), it is unclear whether LAUSD also believes Code of Civil Procedure section 1085 also does not apply.

[4] The court’s ruling is necessarily based on the arguments that have been made by Petitioner in her briefing. (See Cal. Rules of Court, Rule 3.1113, subds. (a), (d); see also Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [“trial court ha[s] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case”].)

[5] Petitioner cites Government Code section 11513 with a “see” signal for support. As LAUSD is not a state agency, the statute is inapplicable here. (Gov. Code, § 11500, subd. (a).)

[6] Petitioner’s appeal letter is not properly before the court. See fn. 11 infra.

[7] Importantly, Petitioner also cites no authority that due process or fair hearing necessarily requires under these circumstances an opportunity to confront or respond to statements of other persons. Petitioner also does not show the Bulletin, LAUSD policy, an applicable statute or regulation requiring an opportunity to cross-examine witnesses. Finally, as here, the appeal process allows the employee to present a response to evidence as summarized by the RA Committee in its letter.

[8] In her Reply Brief, Petitioner cites Goldberg v. Kelly (1970) 397 U.S. 254, which held procedural due process requires a pretermination evidentiary hearing be held when public assistance payments to a welfare recipient are discontinued. Petitioner does not show good cause to cite new authority and make new arguments in her Reply Brief. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Further, Petitioner does not show her request for a reasonable accommodation–to work remotely indefinitely–is comparable to the discontinuation of public welfare benefits that were a “matter of statutory entitlement for persons qualified to receive them.” (Goldberg v. Kelly, supra, 397 U.S. at 261-262.)

[9] Further, as noted earlier, any error is subject to harmless error analysis.

[10] To the extent Petitioner makes entirely new arguments in her Reply Brief about LAUD’s reasons for denying the request for reasonable accommodation, as with other arguments, the arguments made for the first time in reply are procedurally improper and rejected for the reasons discussed above. (See Balboa Ins. Co. v. Aguirre, supra, 149 Cal.App.3d at 1010.)

[11] To the extent Petitioner seeks to “correct” the administrative record with any evidence, including her attorney’s 19-page October 6, 2021 letter to LAUSD (see Albertoni Decl. pp. 24-45), Petitioner did not bring a timely motion to do so. (See LASC Rule 3.231, subd. (g)(3).) In any event, Petitioner does not show the letter is dispositive to any issue before this court.

[12] Because the court has denied the petition, the court need not reach the parties’ remaining contentions, including the proper remedy if the court were to grant the petition.