Judge: Stephen I. Goorvitch, Case: 23STCP02832, Date: 2024-09-11 Tentative Ruling
Case Number: 23STCP02832 Hearing Date: September 11, 2024 Dept: 82
Ramaul Rush Case No. 23STCP02832
v.
Hearing:
September 11, 2024
Location:
Stanley Mosk Courthouse
Department:
82
Civil Service Commission Judge: Stephen I. Goorvitch
[Tentative] Order Denying Petition for Writ
of Mandate
INTRODUCTION
Ramaul Rush (“Petitioner”) has been
a children’s social worker for the County of Los Angeles since 1984. On or about February 4, 2020, Petitioner received
a 15-day suspension for allegedly failing to investigate and document an
incident of child abuse. Petitioner filed
a timely administrative appeal of his suspension to the Civil Service
Commission (“Respondent” or the “Commission”).
Petitioner did not appear at the hearing as required by civil service
rules and the “Notice of Hearing,” which ordered him to appear. Civil Service Rule 4.08(B) states that
“[u]nexcused absence of the petitioner at such a hearing shall be
deemed a withdrawal of the petition and consent to the action or ruling from
which the appeal was taken.” (AR 216,
emphasis added.) Therefore, the hearing
officer recommended that the appeal be deemed to have been withdrawn, and the
Commission adopted that decision after considering Petitioner’s
objections.
Now, Petitioner challenges the
Commission’s decision, arguing among other things that he did not receive
notice of the hearing before the hearing officer and sufficient due process
before the Commission. As an initial
matter, the petition is governed by Code of Civil Procedure section 1094.5, not
section 1085, and therefore is untimely.
The petition is further defective because Petitioner did not lodge the
complete administrative record. Reaching
the merits, however, the petition would be denied even under section 1085. Petitioner received notice of the hearing
before the hearing officer (and seemingly elected not to appear because he
objected to a remote appearance).
Petitioner received notice of the Commission’s intention to adopt the
hearing officer’s recommendation and submitted written objections, which were
reviewed and considered. Moreover,
Petitioner forfeited many of the arguments raised in this petition. Therefore, the petition for writ of mandate
is denied.
BACKGROUND
Petitioner
is employed by the Los Angeles County Department of Children and Family
Services (the “real party in interest” or “DCSF”) in the permanent position of
Children’s Social Worker III. (AR
3.) On January 28, 2020, DCFS provided
Petitioner a written “Notice of Suspension” imposing a 15-day suspension for
failing to investigate and report an incident of child abuse. (AR 3-10.)
According to the notice, Petitioner did not appear at the due process Skelly
meeting. (AR 3.)
Pursuant
to Civil Service Rule 4.03(A), civil service employees have a right to an administrative
appeal for, among other disciplinary actions, suspensions of more than five
days. On or about February 11, 2020, Petitioner
appealed his suspension and sought a hearing before Commission. (AR 1-2; see Petitioner’s Opening Brief
(“OB”) 1:17-18.) In his appeal notice,
Petitioner claimed that he did not receive the “Notice of Intent” to suspend
him and, therefore, he did not appear at the Skelly meeting on January
15, 2020. (AR 1.) His appeal letter to the Commission included
his email address, “Rushra@DCFS.lacounty.gov.” (AR 1.)
Following delays stemming from the
pandemic, the Commission served a “Notice of Hearing” via email on July 8,
2022, providing the dates of Petitioner’s hearing. (AR 29; see also Martinez Decl. ¶ 9, Exh. 1 at 2.) The notice designated that the “place” of the
hearing would be “Cisco WebEx,” i.e., the hearing would be conducted
remotely. (AR 29.) Three days later, on July 11, 2022,
Petitioner replied to the email from his email address (Rushra@dcfs.lacounty.gov) stating: “I have
not agreed or waived an ‘In Person hearing.’”
(Martinez Decl. ¶ 10, Exh. 2.) On
July 12 and 21, 2022, the Commission staff informed Petitioner, by email, that
an in-person hearing was not available at that time pursuant to Civil Service
Procedural Rule 5.11. (Id. ¶¶ 11,
13 & Exhs. 3, 5.)
The
first day of the administrative hearing was held on August 8, 2022, as noticed. (Martinez Decl. ¶ 14.) Neither Petitioner nor his representative
appeared at the hearing. (Ibid.;
see also AR 216.) Accordingly, the hearing
officer issued a proposed decision recommending that Petitioner’s
administrative appeal be “deemed withdrawn due to the unexcused absence of the
petitioner” pursuant to Civil Service Rule 4.08(B). (AR 216.)
Rule 4.08(B) states: “Unexcused absence of the petitioner at such a
hearing shall be deemed a withdrawal of the petition and consent to the action
or ruling from which the appeal was taken.”
On
September 12, 2022, the Commission issued “Notice of Civil Service Commission
Agenda Item” indicating that it would consider Petitioner’s matter at the
meeting on September 28, 2022. (AR
217.) On October 4, 2022, the Commission
issued a “Notice of Proposed Decision” providing notice that its proposed
decision is to accept the recommendation of the hearing officer. (AR 218.)
The Commission authorized Petitioner to file written objections. (Ibid.) Petitioner concedes in the operative First
Amended Petition that he did so. (First
Amended Petition (“FAP”) ¶ 10 & Exh. C.)
At its meeting on February 22, 2023, the Commission overruled
Petitioner’s objections and adopted the hearing officer’s proposed decision to
deem the appeal withdrawn as the final decision of the Commission. (FAP ¶¶ 11-14, Exh. D-E; Answer ¶¶ 11-14.)
STANDARD OF REVIEW
The petition, as
pleaded, seeks a writ of traditional mandate pursuant to Code of Civil
Procedure section 1085. The petition is
limited to a purely legal question.
Specifically, Petitioner contends that his due process rights were
violated because Commission never gave him notice and an opportunity to be
heard regarding his suspension. (See OB
5:22-25.) On questions of law arising in
mandate proceedings, the court exercises independent judgment. (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.)
EVIDENTIARY ISSUES
In his reply brief, Petitioner objects to the declaration of
Anthony Martinez, which was submitted with DCFS’s opposition. (Reply 1:15-16.) Although Petitioner’s objection is not
clearly stated, Petitioner appears to argue that the declaration contains
information and exhibits that falls outside the administrative record. Petitioner’s objection is overruled. Petitioner seeks a traditional writ of
mandate under section 1085. (See generally
FAP.) Accordingly, DCFS was not
precluded by any court rule or statute from submitting a declaration in
opposition to this petition. (See, e.g., LASC
Local Rule 3.231(h) [in traditional mandamus action, the evidence is generally
“presented by way of declarations, deposition testimony, and documentary evidence”].)
Alternatively, even
if the court construed the petition as seeking a writ of administrative
mandate, the exhibits to Martinez’s declaration appear to be “other papers in
the case” that are relevant to the procedural history. They should have been included in the certified
administrative record. (Code Civ. Proc.
§ 1094.6(c).) As will be discussed,
Petitioner did not lodge the entire administrative record with the court. Nor did the table of contents reference the
entire administrative record.
Finally, in the
alternative, the court overrules Petitioner’s objection as moot. The court would reach the same result even if
the court did not consider this declaration and exhibits. Simply, as will be discussed, the record
suggests that he received notice of the relevant hearings and sufficient due
process, and Petitioner does not demonstrate otherwise.
DISCUSSION
A. Petitioner Has Not Lodged
the Complete Administrative Record
Petitioner
did not lodge the entire administrative record with the court. The declaration from Lupe Castellanos, the
custodian of records of the Los Angeles County Civil Service Commission, states
that the administrative record is Bates stamped from 0001 to 0457. However, the administrative record lodged
with the court only goes to page 0220, making clear that numerous documents
were omitted (including some between 0221 and 0280, which are listed in the
table of contents). The table of
contents does not reference 0280 to 0457, so the court cannot determine what is
missing.
It
is Petitioner’s responsibility to produce a sufficient record of the
administrative proceedings. (See Elizabeth D. v. Zolin (1993) 21
Cal.App.4th 347, 354.) In the absence of
a complete evidentiary record, the court presumes that the findings were
supported by substantial evidence. (See Caveness
v. State Personnel Board (1980) 113 Cal.App.3d 617, 630.) Petitioner was only required to lodge the
administrative record with his reply brief, which is why this issue has arisen
now. (See Court’s Minute Order, dated
February 2, 2024.)
B. The Petition Is Governed by Section 1094.5 and Therefore Is Untimely
Although Petitioner styles his petition as one seeking a traditional
writ of mandate under Code of Civil Procedure section 1085, in fact, this
petition should be governed by section 1094.5.
The appropriate type of
mandate is determined by the nature of the administrative action or decision
under review. In general,
“quasi-judicial” or “adjudicative acts,” that is, acts that involve the actual
application of a rule to a specific set of existing facts are reviewed by
administrative mandamus under Code of Civil Procedure section 1094.5. More specifically, a petition for
administrative mandamus under Code of Civil Procedure section 1094.5 is
appropriate when the party seeks review of a final “determination, finding, or
decision of a public agency, made as a result of a proceeding in which by law a
hearing is required to be given, evidence is required to be taken and
discretion in the determination if facts is vested in a public agency . . . .”
(California Water Impact Network v. Newhall County Water District
(2008) 16 1Cal.App.4th 1464, 1482-1483.)
This is not a case challenging ministerial action by an agency. Rather, Petitioner challenges the discretionary
decision of the Commission following a quasi-judicial proceeding before a hearing
officer and an appeal to the Commission.
Thus, the instant petition is governed by section 1094.5.
It is unclear from the
administrative record when the Commission rendered a final decision because, as
discussed, the administrative record is incomplete. The Commission issued a “Notice of Proposed
Decision” on October 4, 2022. (AR
218.) According to the First Amended
Petition, on February 22, 2023, the Commission adopted, as its final decision,
an order accepting the hearing officer’s decision to deem the appeal to have
been withdrawn. (FAP ¶ 11.) According to the First Amended Petition, the
Commission “reiterated its final commission action in approving the
recommendation and overruling Petitioner’s objections” on February 24,
2023. (FAP ¶ 14.) Respondent alleges that the final decision
was served on March 8, 2023, citing AR 237 and AR 238, pages which Petitioner
did not include in the administrative record.
However, Petitioner clearly received notice of these decisions on or
before March 10, 2023, when he “filed a request for reconsideration of the
decision to dismiss his appeal.” (FAP ¶
16.)
Under Code of Civil
Procedure section 1094.6, the instant petition for writ of mandate had to be
filed no later than 90 days after the Commission’s final decision. This petition was filed on August 7, 2023,
which was 150 days after Petitioner filed a request for reconsideration of the
final decision. Therefore, the instant
petition is untimely.
C. Petitioner Has Not Satisfied His Burden
of Proof under Section 1085
Even if the
instant petition is governed by Code of Civil Procedure section 1085,
Petitioner does not demonstrate that he was deprived of sufficient notice or
due process. An agency is presumed to
have regularly performed its official duties.
(Evid. Code § 664.) Petitioner
bears the burden of proof in a petition for writ of mandate. (See California Correctional Peace Officers Assn. v. State Personnel Bd.
(1995) 10 Cal.4th 1133, 1154.; Steele v. Los
Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; Elizabeth D. v. Zolin (1993) 21
Cal.App.4th 347, 354.) “[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.” (Alford v. Pierno (1972) 27
Cal.App.3d 682, 691.) A reviewing court
“will not act as counsel for either party to an appeal 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; see also Eureka Citizens for Responsible Government
v. City of Eureka (2007) 147 Cal.App.4th 357, 366 [“Failure to provide an
adequate record concerning an issue challenged on appeal requires that the
issue be resolved against the appellants.”].)
Petitioner argues:
“On information and belief, at a place and time unknown to Petitioner, a
hearing was held before Hearing Officer Joseph Scully; but Petitioner was never
given actual or formal notice of the same prior thereto.” (Petitioner’s Opening Brief (“OB”) at
1:24-26.) In fact, the record contains a
“Notice of Hearing,” dated July 8, 2022, setting the hearing in this matter and
designating Joseph Scully as the hearing officer. (AR 29.)
The notice contains a “cc” line indicating that this notice was sent to
Petitioner, counsel for DCFS, and the hearing officer. (Ibid.) Petitioner
has not submitted a declaration or cited any evidence in the (incomplete)
administrative record suggesting that he did not receive this notice. Nor could he do so. Petitioner replied to the email containing
the notice (objecting to a remote hearing) which proves that he received proper
notice of the hearing. (See Martinez
Decl. ¶¶ 9, 10 & Exh. 2.)
Similarly, Petitioner argues that he “never received actual
or formal notice of [the] Commission’s meeting or action, prior thereto.” (OB 2:8-9.)
There are several problems with this argument. Again, in the absence of a complete
administrative record, Petitioner cannot prove his claim. Putting that aside, however, Petitioner appears
to have received notice. On September
12, 2022, the Commission issued a “Notice of Civil Service Commission Agenda
Item” stating that it will consider “Ramaul Rush (20-22) – Proposed Decision To
Be Rendered.” (AR 217.) The notice states: “Notice of hereby given
that the Los Angeles County Civil Service Commission (‘Commission’) will
consider the above referenced matter at its regular meeting on Wednesday,
September 28, 2022.” (Ibid.) The notice contains a “cc” line referencing
both Petitioner and counsel for DCFS. (Ibid.) Petitioner does not demonstrate he did not
receive this notice.
More important, on October 4, 2022, the Commission issued a
“Notice of Proposed Decision” which states:
The Civil
Service Commission, at its meeting of September 28, 2022, announced as the
proposed decision of the Commission to accept the recommendation of the Hearing
Officer, Joseph Scully, [to] deem the appeal withdrawn pursuant to Civil Service
Rule 4.08(b). . . . Objections in this
matter are due by 5:00 p.m., October 25, 2022.
(AR 218.) This notice
also contains a “cc” line referencing both Petitioner and counsel for
DCFS. (Ibid.) Petitioner clearly received notice because he
filed objections, which he concedes.
(See FAP ¶¶ 10-11; see also Exh. C.)
The objections were overruled at the meeting on February 22, 2023. (See FAP Exhs. C & D.)
To the
extent Petitioner argues that he received no notice of the meeting on February
22, 2023, that is not a basis to grant this petition. Again, the administrative record is
incomplete, which is fatal to this argument.
According to Petitioner’s table of contents, though, there was a “Notice
of Civil Service Comm’n re: Findings and Objections, Jan. 11, 2023.” (See AR p. iii.) Even if this document did not provide notice
of the meeting on February 22, 2023, Petitioner received sufficient due
process. Petitioner submitted written
objections in advance of the hearing, which the Commission considered. (See FAP Exh. C.) This was sufficient due process.
The common
law requirement of a fair procedure does not compel formal proceedings with all
of the embellishments of a court trial, nor adherence to a single mode of
process. It may be satisfied by any one
of a variety of procedures which afford a fair opportunity for an applicant to
present his position.
(Pinsker v. Pacific Coast Society of Orthodontists
(1974) 12 Cal.3d 541, 555, citations omitted.)
Based upon
the foregoing, Petitioner does not satisfy his burden of establishing a lack of
notice or due process associated with the hearing before Hearing Officer Joseph
Scully or his appeal to the Commission. To
the contrary, this record demonstrates that Petitioner received sufficient due
process. “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, citing
Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 24.) Therefore, the Commission did not abuse its
discretion in deeming Petitioner to have withdrawn his appeal.
D. The
Court Cannot Determine whether Petitioner Preserved the Issues for Review
Counsel for DCFS argues that
Petitioner has waived any objection to the form of the notice, as well as other
issues raised before this court. Petitioner
did not include a copy of his objections to the hearing officer’s decision,
dated October 19, 2024, in the administrative record or as an exhibit to the
operative First Amended Petitioner. (See
FAP ¶ 10 & Exh. C.) Therefore, the
court cannot determine whether these due process issues were properly preserved
for review by this court. To the extent
Petitioner previously complained about the hearing being conducted remotely, he
does not raise that issue in this petition (and fails to address the
Commission’s Procedure Rule 5.11, which authorizes the Commission to hold
remote hearings in the event of a public health crisis such as the
pandemic).
E. The
Skelly Hearing Is Not at Issue
Petitioner suggests that he did not receive proper notice of
the Skelly hearing, which was the precursor to the hearing before
Hearing Officer Joseph Scully. (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.) The administrative record contains virtually
no documents relating to the Skelly hearing, and his failure to include
the relevant documents in the administrative record is fatal to his claim. Nevertheless, the sparse documents in the
administrative record suggest that DCFS provided notice of the Skelly
hearing by mailing the notice to Petitioner’s mailing address. (See AR 14-17.) Petitioner
has not cited any evidence from the record proving that he did not receive this
notice. Nor has Petitioner requested any
remedy for a violation of Skelly. By
failing to raise or adequately brief the issue, Petitioner has forfeited any
argument concerning violation of his rights under Skelly or Weingarten. (See Nelson v. Avondale Homeowners Assn. (2009) 172
Cal.App.4th 857, 862-863.)
CONCLUSION AND ORDER
Based
upon the foregoing, the court orders as follows:
1. Petitioner’s petition for writ of
mandate is denied.
2. Respondent’s counsel shall prepare and
lodge a proposed judgment forthwith.
3. Respondent’s counsel shall provide
notice and file proof of service with the court.
IT IS SO ORDERED
Dated: September
11, 2024
Stephen
I. Goorvitch
Superior
Court Judge