Judge: Stephen I. Goorvitch, Case: 23STCP01200, Date: 2024-05-24 Tentative Ruling

Case Number: 23STCP01200    Hearing Date: May 24, 2024    Dept: 82

Julie S. Lee,                                                              Case No. 23STCP01200

v.                                                                     Hearing Date: May 24, 2024

                                                                                    Location: Stanley Mosk Courthouse

California Unemployment                                       Department: 82        

Insurance Appeals Board                                        Judge: Stephen I. Goorvitch

[Tentative] Order Denying Petition for Writ of Mandate

            Julie S. Lee (“Petitioner”) petitions for a writ of administrative mandate against the California Unemployment Insurance Appeals Board (“Respondent”).  The Director of Employment Development found that during the pandemic, Petitioner’s normal pattern of earning a living was in commissioned sales and therefore she was ineligible for unemployment compensation benefits.  An Administrative Law Judge (“ALJ”) affirmed that decision, and Respondent adopted the ALJ’s decision.  Petitioner seeks a writ of mandate compelling Respondent to set aside that decision. 

At the trial setting conference, the court scheduled the petition for hearing on May 15, 2024, set a briefing schedule, and ordered the administrative record to be lodged 15 days prior to the hearing.  On March 7, 2024, on the court’s own motion, the court continued the hearing on the writ petition to May 24, 2024, and ordered the briefing schedule to remain as originally set.  The court mailed notice of the continuance to Petitioner’s counsel.  Petitioner did not file an opening brief pursuant to the briefing schedule set by the court.  On March 26, 2024, Respondent filed and served a notice of Petitioner’s failure to file and serve an opening brief.  On April 12, 2024, Respondent filed and served an opposition brief, which further noted that Petitioner had not filed an opening brief.  Respondent also lodged the administrative record.  To date, Petitioner has not filed an briefs in support of her petition.    

Under Code of Civil Procedure section 1094.5(b), the pertinent issues 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 agency 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(b).)

An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)  The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions.  (See Bixby v. Pierno (1971) 4 Cal. 3d 130, 143; Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; see also Alford v. Pierno (1972) 27 Cal.App.3d 682, 691 [“[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.”].) 

Under section 1094.5, “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 administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)   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.)

A memorandum of points and authorities is required for a noticed mandamus motion. (See Code Civ. Proc. § 1094; CRC 3.1113(a).)   The absence of a memorandum is an admission that the motion is not meritorious and may be denied.  (Cal. Rules of Court, Rule 3.1113(a).)  “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”  (Cal Rules of Court, Rule 3.1113(b); Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [Cal. Rules of Court, Rule 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories”].) 

Here, Petitioner has not filed an opening brief and has not met her burden under section 1094.5 to show a prejudicial abuse of discretion, a denial of a fair trial, or other reversible error in the administrative decision.  Therefore, the petition for writ of mandate is denied. 

CONCLUSION AND ORDER

            Based upon the foregoing, the court orders as follows:

            1.         Petitioner’s petition for writ of mandate is denied.   

            2.         Respondent shall lodge a proposed judgment.

            3.         Respondent shall provide notice and file proof of service with the court. 

IT IS SO ORDERED. 

Dated: May 24, 2024                                                              ___________________________

                                                                                                Stephen I. Goorvitch

                                                                                                Superior Court Judge