Judge Mitchell L. Beckloff, Case Number: 22STCP00993, Date: 2023-10-25 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP00993, Date: 2023-10-25 Tentative Ruling

Petitioner, Daniel Olmos, seeks a writ of mandate pursuant to Code of Civil Procedure sections 1094.5 compelling Respondent, California State Personnel Board, to set aside its decision finding Petitioner guilty of misconduct and dismissing him from his position as a Correctional Sergeant with Real Party, the California Department of Corrections and Rehabilitation.

The verified petition has attached to it a single-paged memorandum of points and authorities.[1] The memorandum addresses the timeliness of the petition as well as Petitioner’s right to judicial review of the administrative decision. Petitioner does not, however, discuss any of the facts related to the petition or Petitioner’s underlying discipline. Petitioner also has not attached the administrative decision or administrative record to the petition.

At the first scheduled trial setting conference, June 24, 2022, Petitioner did not appear. At that time, the court file did not reflect Petitioner had served the petition on Respondent or Real Party.

On August 10, 2022, Petitioner and Real Party appeared at the continued trial setting conference.[2] The court calendared the matter for trial on April 19, 2023 and ordered a briefing schedule. The briefing schedule required Petitioner to file and serve his opening brief 60 calendar days in advance of trial.

On March 17, 2023, Real Party filed its opposition brief. Real Party noted it could not respond to the petition because Petitioner had failed to file an opening brief as required by the court’s briefing schedule. Real Party notified the court Petitioner’s opening brief should have been served and filed by February 20, 2023.

Shortly thereafter, on March 20, 2023, Petitioner filed an ex parte application to continue trial and briefing schedule. Petitioner’s counsel explained he had health, personal and personnel issues. The court granted Petitioner’s application on March 23, 2023. The court calendared today’s date for trial and ordered a new briefing schedule. Under the new briefing schedule, Petitioner had until or about August 25, 2023—nearly five additional months—to file his opening brief.

On September 25, 2023, Real Party filed its opposition brief. Real Party advised Petitioner had failed to obtain the administrative record, adhere to the briefing schedule or prosecute this proceeding.

Petitioner has failed to file an opening brief or lodge the administrative record with the court.

By failing to file an opening brief and the administrative record in support of his 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 and administrative record means that Petitioner has 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 Petitioner’s burden in mandamus, it follows that Petitioner has not met his burden—that is, has not overcome the presumption of regularity contained in Evidence Code section 664—where he 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.” (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 Petitioner not having demonstrated Respondent erred, the petition is denied.

[1] The memorandum names Guillermo Martinez as the Petitioner.

[2] Petitioner has never filed a proof of service of the petition on Respondent. As the petition seeks relief against Respondent, Respondent is an indispensable party.