Judge: Stephen I. Goorvitch, Case: 24STCP02392, Date: 2025-05-21 Tentative Ruling
Case Number: 24STCP02392 Hearing Date: May 21, 2025 Dept: 82
Pearl H. Jacobowitz, et al. Case No. 24STCP02392
v.
Hearing:
May 21, 2025
Location:
Stanley Mosk Courthouse
California
Department of Department:
82
Social Services, et al. Judge: Stephen I. Goorvitch
[Tentative] Order Denying Petition for
Writ of Mandate
NOTICE
The
court is posting this tentative order on May 14, 2025, one week in advance of
the trial date. The court provides
notice that if Petitioner does not appear at the hearing, the court will adopt
this tentative order and deny the petition for writ of mandate on the
merits.
INTRODUCTION
Petitioners Pearl H. Jacobowitz, Dakota
Zeigerman-Jacobowitz, and Arizona Jacobowitz (“Petitioners”) filed this
petition for writ of administrative mandate against Respondents California
Department of Social Services (“CDSS”) and Los Angeles County Department of
Public Social Services (the “County”) (collectively
“Respondents”). Petitioners challenge
administrative decisions pertaining to the withholding of taxes for payments
made under the In-Home Supportive Services (“IHSS”) program. On March 18, 2025, the court dismissed the
claims asserted by Petitioners Pearl Jacobowitz and Dakota Zeigerman-Jacobowitz,
who have been deemed vexatious litigants and who did not post the required
undertaking. (See Court’s Minute Order,
dated March 18, 2025.) That same date, the
court set the petition for trial as to the claim of Petitioner Arizona
Jacobowitz and ordered her to file an opening brief on or before April 18, 2025. (Ibid.) The court provided further notice that “[i]f
Petitioner Arizona Jacobowitz does not file an opening brief, absent good
cause, the petition will be denied on the merits.” (Ibid.) Petitioner Arizona Jacobowitz has not filed
an opening brief or lodged the administrative record. Nor has Petitioner shown good cause for
failing to file an opening brief or the administrative record. Therefore,
the petition is denied.
DISCUSSION
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.) Therefore, 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.”])
Here, 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. Therefore, the petition for
writ of mandate is denied.
///
///
CONCLUSION AND ORDER
Based
upon the foregoing, the court orders as follows:
1. The petition for writ of mandate is
denied.
2. Respondent shall prepare and lodge a
proposed judgment.
3. Respondent’s counsel shall provide
notice and file proof of service with the court.
IT IS SO ORDERED
Dated: May 21, 2025 ______________________
Stephen
I. Goorvitch
Superior
Court Judge