Judge: Stephen I. Goorvitch, Case: 23STCP03982, Date: 2024-05-22 Tentative Ruling

Case Number: 23STCP03982    Hearing Date: May 22, 2024    Dept: 82

Qian Cheng, on behalf of her daughter,                 Case No. 23STCP03982

Yuan Yuan Leo        

v.                                                                     Hearing Date: May 22, 2024

                                                                                    Location: Stanley Mosk Courthouse

Kim Johnson, Director,                                            Department: 82

California Department of Social Services             Judge: Stephen I. Goorvitch

[Tentative] Order Denying Petition for Writ of Mandate

            Petitioner Qian Cheng (“Petitioner”), on behalf of her daughter Yuan Yuan Leo (“Recipient”), petitions for a writ of administrative mandate directing Respondent Kim Johnson, Director of the California Department of Social Services (“Respondent”), to set aside an administrative decision denying Petitioner’s claim for protective supervision and other services for Recipient under the In-Home Supportive Services (“IHSS”) program.  At the trial setting conference, the court scheduled the petition for hearing on May 22, 2024, set a briefing schedule, and ordered the administrative record to be lodged 15 days prior to the hearing.  Petitioner gave notice of the trial date and briefing schedule.  Nevertheless, Petitioner has not filed an opening brief or lodged the administrative record. 

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.”].)  “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (See 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; Cal. Rules of Court rule 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”].) 

“In 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, 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 (1993) 21 Cal.App.4th 347, 354, citations omitted; 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.”])

In the instant case, Petitioner has not filed an opening brief or lodged the administrative record.  Accordingly, Petitioner has not met her burden of proof 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.  Based upon the foregoing, the petition for writ of mandate is denied.  The court’s clerk shall provide notice.     

IT IS SO ORDERED. 

Dated:  May 22, 2024                                                 ___________________________ 

Stephen I. Goorvitch

                                                                                    Superior Court Judge