Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BS092216, David P. Yaffee, Judge. Affirmed.
Akhi Raheem Muhammad, in pro. per., for Plaintiff and Appellant.
Ann M. Maurer, Senior Assistant City Attorney and Scott H. Howard, City Attorney, for for Defendants and Respondents.
CROSKEY, J.
Raheem Muhammad, proceeding in propria persona, filed a petition for writ of administrative mandate challenging the decision of the Housing Authority of the City of Glendale denying his request for a two-bedroom apartment under the Glendale’s Section 8 housing program. The trial court denied the petition on the basis that Muhammad failed to procure and lodge a copy of the administrative record with the court, thus rendering it impossible for the trial court to review the record for error. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Muhammad previously lived in Pittsburgh, Pennsylvania, where he obtained housing assistance from Pittsburgh’s housing authority. He sought to relocate to Glendale. Although Muhammad is the sole member of his household, he sought assistance for a two-bedroom apartment, on the basis of disability. Muhammad is visually impaired and alleged that he needed the second bedroom to house substantial equipment used to enhance his vision (including, for example, a computer with a large monitor). Both the City of Pittsburgh and the City of Los Angeles gave Muhammad vouchers for a two-bedroom apartment. The Housing Authority of the City of Glendale initially denied Muhammad’s request.
Muhammad requested an administrative hearing. On May 25, 2004, a hearing was held where evidence was taken. Ultimately, the hearing officer issued a decision upholding the Housing Authority’s denial. The hearing officer concluded that Muhammad did not yet possess the equipment he needed to accommodate his disability, and it was speculative whether he ultimately would do so. The hearing officer further concluded that the equipment Muhammad sought could be accommodated on a large desk, which could fit in the living room or bedroom of a one-bedroom apartment.
Muhammad’s brief on appeal effectively concedes this point. He argues that he testified at the administrative hearing that the equipment was in his home in Pittsburgh, and much of it was being returned to the Pennsylvania Office of Vocational Rehabilitation. While Muhammad expected to obtain similar equipment from the California Department of Rehabilitation, it does not appear that he presented any evidence from the California Department of Rehabilitation indicating that such equipment would be provided.
On June 1, 2004, Muhammad received notice of the hearing officer’s decision. On August 30, 2004, Muhammad filed a petition for writ of administrative mandate against the City of Glendale, the Housing Authority, and various related individuals (collectively “respondents”). Prior to filing his writ petition, Muhammad wrote respondents, requesting them to prepare a transcript of the administrative hearing.
In June 2005, Muhammad sought additional time in which to file his brief in support of his writ petition, on the basis that he had not yet received the transcript. A hearing was held on June 3, 2005. At the hearing, counsel for respondents stated, “The transcript was completed this week. I brought a copy of it along with the original tapes, and gave it to Mr. Muhammad this morning.” The court asked, “Is that true, Mr. Muhammad?” Muhammad stated, “That’s true, your honor.” The court then asked Muhammad how long he needed to prepare his brief in light of “the belated receipt of the administrative record.” The court set a briefing schedule in accordance with Muhammad’s wishes. After a discussion of whether Muhammad was seeking administrative mandate or traditional mandate, the court stated, “The parties agree this proceeding was under [Code of Civil Procedure section] 1094.5. That means that the only evidence that I will consider is the evidence in an administrative record. It is to be lodged in this department by petitioner ten court days before the hearing.”
Muhammad did not lodge the administrative record, although he may have provided the trial court with certain documents that had been before the hearing officer. On August 3, 2005, Muhammad filed a brief which challenged the merits of the hearing officer’s decision. Respondents filed a brief in opposition in which they argued that Muhammad had failed to lodge the administrative record with the court. Muhammad filed a reply in which he stated, for the first time, that he was unable to submit a copy of the “entire” administrative record, because respondents had failed to transmit the “entire” administrative record to him. This prompted respondents to submit the declaration of their attorney to the effect that Muhammad had been personally served on June 3, 2005 with audiotapes of the hearing and a copy of the transcript.
At one point, the court noted that a letter on which Muhammad relied had been “attached to his pleadings.”
The respondents’ brief in opposition to the petition for writ of administrative mandate is not part of the record on appeal.
The trial court issued a tentative ruling denying the petition for writ of mandate on the basis of Muhammad’s failure to supply the court with the administrative record necessary for review. The court’s tentative decision noted that Muhammad “refuses to state what he contends is missing from the administrative record furnished to him, and he fails to explain his failure to provide the court with the portion of the administrative record that he has in his possession.”
At the hearing on the writ petition, Muhammad explained that he had been given only the audiotapes, not a transcript. He represented, “I stated on the record if there was a transcript in front of me on that day in June, I stated on the record that I was handed an envelope. And because of my visual impairment I do not know whether or not this is the complete administrative record. . . . [¶] When they handed me that envelope back in June, . . . I was able to feel that manila envelope that it was like two audio tapes. And when I got home it was only two audio tapes in the envelop[e]. There was no transcript. [¶] And when I was here in court I stated on the record that I was handed an envelope, but I do not – because of my visual impairment, I do not know what’s in that envelope.” When asked by the trial court if the tapes themselves were complete, Muhammad stated, “For me to verbatim tell you what’s missing from the tape, I would have to take notes and state what is missing.” The court then asked why Muhammad had not done so. Muhammad responded, “I have done that, but I don’t have that information in front of me.”
Respondents relied on the declaration of counsel that Muhammad had been handed the transcript on June 3, 2005. Respondents’ counsel also represented that Muhammad had never contacted them after that date to indicate the transcript had not been received. The court denied the petition based on Muhammad’s failure to provide an administrative record.
Muhammad filed a motion to vacate or set aside the judgment. At the hearing on that motion, Muhammad argued that “dismissal” of his writ petition was too harsh a sanction for his failure to provide an administrative record. He argued that he had never been directed by the trial court to file the administrative record. In the course of his argument, Muhammad conceded that he could have filed a partial record, but did not do so. The motion was denied. Muhammad filed a timely notice of appeal from the judgment, but did not appeal the post-judgment order.
ISSUE PRESENTED
On appeal, Muhammad argues error in the underlying hearing officer’s decision, not the trial court’s order. That is to say, at no point does Muhammad argue that the trial court erred in denying his petition for writ of mandate based on his failure to provide an adequate administrative record. Indeed, Muhammad represents that his brief on appeal is “basically” the same brief he filed before the trial court. In other words, the sole issue before us – the propriety of the trial court’s ruling – is in no way addressed by Muhammad’s brief. Given Muhammad’s failure to even argue any error in the judgment before us, we could affirm solely on that basis. However, we briefly address the controlling authority, to demonstrate there was no error.
The most the topic receives is a one sentence statement in his brief’s “introduction,” which indicates that he “still does not have a copy of the . . . transcript of the May 20, 2005 [sic] administrative hearing.” (Emphasis omitted.)
Respondents’ brief on appeal argues the trial court properly denied the writ based on Muhammad’s failure to present the administrative record. Muhammad did not file a reply brief.
DISCUSSION
Code of Civil Procedure section 1094.5 governs petitions for writ of administrative mandate. “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
“[I]t is the responsibility of the petitioner to make available to the trial court an adequate record of the administrative proceeding; 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.” ’ ” (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 453.)
“All or part of the record of the proceedings before the inferior tribunal, . . . board, or officer may be filed with the petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court.” (Code Civ. Proc., § 1094.5, subd. (a).) “Even though [Code of Civil Procedure] section 1094.5, subdivision (a) allows both parties in a mandamus proceeding to file either ‘all or part’ of the record of the administrative proceeding for review by the court, this does not mean respondent is required to file the administrative record or that petitioner is relieved from the burden of providing a sufficient enough record to establish error.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) A petitioner can satisfy its burden by filing a partial record, as long as the partial record “will allow sufficient and effective review by the court.” (Id. at p. 355.) “The [respondent] is not required to show it was right. It [is] up to [the petitioner] to supply a sufficient record to show the [respondent] was wrong.” (Ibid.) “ ‘[I]n the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.’ ” (Foster v. Civil Service Com., supra, 142 Cal.App.3d at p. 453.) A petitioner who fails to file a sufficient administrative record “runs the risk of having the petition denied.” (Hawthorne Savings & Loan Assn. v. City of Signal Hill (1993) 19 Cal.App.4th 148, 154-155, fn. 1.)
In this case, Muhammad challenged the hearing officer’s decision for insufficiency of the evidence. Although Muhammad argued that the decision was infused with bias, he inferred bias based on the premise that substantial evidence did not support the hearing officer’s decision. As the trial court did not have before it an adequate administrative record to conduct a substantial evidence review, the trial court had to assume sufficient evidence supported the hearing officer’s decision, and deny Muhammad’s petition.
Muhammad argued that the hearing officer was biased against him due to his race, religion, and disability.
Muhammad makes no argument on appeal to the effect that respondents were responsible for his failure to provide the administrative record. In any event, there was sufficient evidence from which the trial court could conclude that the failure was, in fact, Muhammad’s. On June 3, 2005, Muhammad represented, in open court, that it was “true” that he had been given the transcript and the audiotapes by respondents’ counsel. Additionally, respondents’ counsel submitted a declaration that the transcript had, in fact, been given to Muhammad. Muhammad had been directed, at the June 3, 2005 hearing, to lodge the administrative record with the court ten days prior to the hearing on his petition. He possessed a partial record, but declined to lodge it. He possessed the audiotapes, but declined to lodge those. He never informed respondents’ counsel, after the June 3, 2005 hearing, that he still lacked the transcript. He believed the audiotapes were themselves incomplete, but failed to inform the trial court of any specific omissions. His brief on the merits did not address the lack of a transcript, but instead proceeded as though he could challenge the sufficiency of the evidence in its absence. In light of this evidence, the trial court did not err in concluding Muhammad had failed to meet his burden of providing a sufficient record to enable review. We therefore affirm.
Although Muhammad later represented that he had instead stated, at the June 3, 2005 hearing, that he had received only an envelope but did not know what it contained, the record of the June 3, 2005 hearing indicates otherwise.
This is in direct contrast to Muhammad’s statements, at the hearing on his motion to vacate the judgment, that he had “never [been] told to file the administrative record in the first place other than what the Code of Civil Procedure states.”
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We Concur: KLEIN, P. J., KITCHING, J.