Judge Peter A. Hernandez, Case 22PSCP00250 2022-12-08 Tentative Ruling

Respondent City of Baldwin Park’s Motion to Set Aside/Vacate Entry of Default is DENIED.

Petitioner is a tenured Sergeant with the Baldwin Park Police Department (“Department”); at the time of the incident, Petitioner was in a position of acting Lieutenant in charge of Professional Standards Unit. On or about October 7, 2019, Petitioner was contacted by then-acting Chief of Police Johnny Patino (“Patino”) and told to contact Officer Tuan Le (“Le”) to obtain a memorandum from Le regarding an incident where a third officer (i.e., Sergeant Joseph Meister) hit a minor in police custody. The Department subsequently opened an investigation into whether Petitioner ordered Le to include false information on Le’s report, the results of which were submitted to acting Commander Velebil (“Vebeil”) for review and for purposes of recommending discipline. Velebil should have been recused because Petitioner had testified in case styled Herrera v. City of Baldwin Park, Case No. 20STCV11521 that Velebil had sexually harassed and retaliated against another employee, Martin Herrera. Velebil recommended that Petitioner be demoted from the rank of Sergeant and receive 30 days without pay. Petitioner was served with the Intent of Discipline on December 17, 2020, over one year after the Department knew of the facts arising to this investigation. Petitioner was thereafter denied a fair Skelly hearing and arbitration. The Personnel Commission of the City of Baldwin Park then upheld the finding of the arbitrator.

On May 31, 2022, Petitioner filed a Verified Petition for Administrative Writ against Respondent City of Baldwin Park (“City”).

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

City moves the court, pursuant to Code of Civil Procedure § 473, subdivision (d), to set aside the October 10, 2022 entry of default against it.

The court denies Petitioner’s Request for Judicial Notice in full as irrelevant.

City first asserts that inasmuch as Petitioner has not requested, prepared, or otherwise delivered an administrative record for this action to City, City’s time to respond to the “Verified Petition for Administrative Writ [Civil Code[1] Section 1094.5 and Govt. Code Section 3309.5]” filed May 31, 2022 has not begun under Code of Civil Procedure § 1089.5 and the entry of default is void. The court disagrees.

In this case, Petitioner is requesting that the court review and reverse the Baldwin Park personnel Commission’s upholding of the arbitrator’s finding that Petitioner engaged in dishonest behavior. (Petition, ¶¶ 17 and 18 and 6:5-8.) Judicial review of public agency decisions is conducted through administrative mandamus, which is governed by Code of Civil Procedure § 1094.5.

Code of Civil Procedure § 1094.5, subdivision (a) provides, in pertinent part, as follows:

final administrative order or decision made as the result of a proceeding in which

corporation, board, or officer, the case shall be heard by the court sitting without

a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court. . .

Where a petition for writ of mandate is filed in the trial court pursuant to Section

1088.5, and where a record of the proceedings to be reviewed has been filed with

the petition or where no record of a proceeding is required, the respondent shall

answer or otherwise respond within 30 days after service of the petition. However,

where a record of the proceeding to be reviewed has been requested pursuant to

Section 11523 of the Government Code, or otherwise, and has not been filed with

“A proceeding in mandamus, including one seeking a writ of administrative mandate under Code of Civil Procedure section 1094.5, is subject to the general rules of pleading applicable to civil actions.” (Saint Francis Memorial Hospital v. State Department of Public Health (2021) 59 Cal.App.5th 965, 973; see also Los Angeles Superior Court Local Rule No. 3.231, subdivision (f) [“The rules of practice governing civil actions are generally applicable to writ proceedings. (Code Civ., Proc., § 1109.). . .”].) A respondent in writ practice, then, has 30 days from service of the summons to respond to the petition. (Code Civ. Proc., § 412,20, subd. (a)(3); Code Civ. Proc., § 1089.5). With that said, where a record of the proceedings to be reviewed has been requested but has not been filed with the petition, the 30-day answer period runs from respondent’s receipt of a copy of the record. (Code Civ. Proc., § 1089.5; Asimow, et al., CAL. PRAC. GUIDE: ADMINISTRATIVE LAW (The Rutter Group 2022) § 18:310).

Here, there is no indication that a record of the proceedings to be reviewed has been requested or received; as such, City’s responsive pleading was due within 30 days.

City next asserts that petitions for writ of administrative mandate cannot be decided by default pursuant to Code of Civil Procedure § 1088 (“[T]he writ cannot be granted by default. . . “). This is true. However, “[i]n the absence of a return, all proper allegations of the petition are deemed admitted and only legal issues remain for decision.” (Coppinger v. Superior Court (1982) 134 Cal.App.3d 883, 885.) “A hearing on the petition must be held and evidence establishing a prima facie case must be introduced, even if there is no opposition. See CCP § 1088.” Cal. Judges Benchbook Civ. Proc. After Trial (2021) § 4.28.

[1] The court presumes that Petitioner’s reference to the Civil Code was made in error and hat Petitioner intended to reference the Code of Civil Procedure.