Case Number: BS132471    Hearing Date: September 09, 2014    Dept: 82

Colony Cove Properties, LLC
v.
City of Carson, et al.

Tentative Order Discharging OSC, Denying Writ of Mandate, and Judgment of Dismissal

This lawsuit was filed on June 20, 2011. In its verified petition, Colony Cove Properties, LLC, seeks a writ of mandate directing the City of Carson and other respondents to vacate their March 23, 2011 decision with respect to Colony Cove’s “general and fair return rent increases.” Petition, p. 13. The matter was called for trial on September 9, 2014. The administrative record lodged in this action is admitted into evidence. The Court rules as follows:

OSC, Request for Judicial Notice, and Declaration of Kevin Yopp

The order to show cause for sanctions is discharged.

Petitioner’s request for judicial notice is granted.

The Court disregards the declaration of Kevin Yopp in support of Petitioner’s motion for writ of administrative mandate. Petitioner may not circumvent its obligation to cite to the administrative record, or to file a duly noticed motion to augment the record under Code of Civil Procedure § 1094.5(e), by relying on a declaration outside of the administrative record.

Standard of Review

Petitioner seeks a writ of mandate under California Code of Civil Procedure (“CCP”) section 1094.5. Section 1094.5 is the administrative mandamus provision providing the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 514-15. Section 1094.5(a) states, in pertinent part, that “[w]here the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the 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 of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.”

Under CCP § 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 respondent 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. CCP § 1094.5(b).

Analysis

An agency is presumed to have regularly performed its official duties. Evidence Code § 664. Therefore, a petitioner seeking administrative mandamus has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; Afford 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.”). Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, the existence of substantial evidence in support of Petitioner’s position. South Orange County Wastewater Authority v. City of Dana Point, (2011) 196 Cal.App.4th 1604, 1612. Moreover, Rule 3.231(i), Los Angeles County Court Rules, explicitly states that each material fact in the parties’ briefs “must be supported by a citation to a page or pages from the administrative record as follows: (AR 23).” Whether a petitioner is seeking administrative or traditional mandamus, a party’s opening brief must contain, among other things, “a statement of facts which fairly and comprehensively sets forth the pertinent facts.” Rule 3.231(i)(2), Los Angeles County Court Rules.

Here, Petitioner has lodged an administrative record consisting of 17 volumes and 4,263 pages. However, Petitioner fails to offer a single citation to the administrative record in its opening brief. The only reference to the administrative record is the citation to the challenged administrative decision in the notice of motion. Further, Petitioner’s brief does not even contain a statement of facts. Without referencing the administrative record, or setting forth a statement of facts, the Court cannot determine the basis upon or the weight of the evidence in support of Petitioner’s claims. By failing to point the Court to any evidence in the administrative record to support its claims, the presumption of regularity prevails and the petition is denied. See Elizabeth D. v. Zolin, (1993) 21 Cal.App. 4th 347, 354; Foster v. Civil Service Comm’n, (1993) 142 Cal.App. 3d 444, 453. It is not the Court’s duty to review the 4,263-page record and consider the merits when, as here, Petitioner makes no effort to do so. See Fox v. Erickson, (1950) 99 Cal.App.2d 740, 742 (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 the purpose of discovering errors not pointed out in the briefs.”)

Disposition

For these reasons, the petition is denied and the lawsuit is dismissed with prejudice. This order constitutes a judgment of dismissal under CCP Section 581d. The clerk shall provide notice of entry of judgment to counsel of record.

IT IS SO ORDERED