Judge: Mitchell L. Beckloff, Case: 22STCP03997, Date: 2023-12-13 Tentative Ruling
Case Number: 22STCP03997 Hearing Date: December 13, 2023 Dept: 86
FRAME v. GORDON (DMV)
Case No. 22STCP03997
Hearing Date: December 13, 2023
[Tentative] ORDER
DENYING PETITION FOR WRIT OF MANDATE
Petitioner, Lisa Frame, filed her unverified petition
for writ of mandate on November 8, 2022. The petition includes an exhibit—the agency’s
decision.
On March 24, 2023, the court conducted a trial setting
conference in this proceeding. The court discussed the administrative record.
As Petitioner had not yet requested Respondent, the Department of Motor Vehicles
(DMV), to prepare the administrative record, the court continued the trial
setting conference.
On April 26, 2023, at the continued trial setting
conference, the DMV represented Petitioner had not requested the administrative
record, and it had not yet been prepared. Nonetheless, the court set trial for
today’s date. The court ordered Petitioner to file her opening brief at least
60 calendar days before trial and lodge the administrative record with the
court at least 15 days prior to today’s date. The court also ordered Petitioner
to give notice.
Petitioner has not filed an opening brief with the
court, and she has not lodged the certified administrative record as ordered on
April 26, 2023. Petitioner also has not provided a proof of service indicating
she complied with the court’s order to give notice to the DMV.
It is Petitioner’s burden to demonstrate error by the DMV.
Without a certified administrative record, Petitioner cannot meet her burden.
The court may not grant a petition for a writ of mandate where a petitioner
fails to produce an adequate administrative record. (See Elizabeth D. v.
Zolin (1993) 21 Cal.App.4th 347, 350 and Hothem v. City and County of
San Francisco I1986) 186 Cal.App.3d 702, 705.) Where no administrative
record has been provided, “ ‘the presumption of regularity will prevail, since
the burden falls on the petitioner attacking the administrative decision to
demonstrate to the trial court where the administrative proceedings were
unfair, were in excess of jurisdiction, or showed prejudicial abuse of
discretion.’ ” (Elizabeth D. v. Zolin, supra, 21 Cal.App.4th at 354 [cleaned
up].)
As noted, Petitioner also failed to file an opening
brief. Petitioner has therefore 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 . . .
.” ’ ”] See also City of South San
Francisco v. Board of Equalization (2014) 232 Cal.App.4th 707, 720 [“in
mandate proceeding brought
under Code Civ. Proc. § 1085, petitioner always
bears burden of proof”]; South Orange County
Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th
1604, 1612. [“Pursuant to Code of Civil Procedure section 1085, review of quasi-legislative
actions is limited to an inquiry into whether the action was arbitrary,
capricious or entirely lacking in evidentiary support, . . . [and] [t]he
petitioner has the burden of proof to show that the decision is unreasonable or
invalid as a matter of law.” (Cleaned up.)])
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 her
burden—that is, she has not overcome the presumption of regularity contained in
Evidence Code section 664—where she 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, the petition
is denied. The court finds Petitioner failed to demonstrate agency error.
December
13, 2023 ________________________________
Hon.
Mitchell Beckloff
Judge of the Superior Court