November 22, 2017
Special Set Matters Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

In the Superior Court of the State of California

In and for the County of San Mateo


Special Set Calendar

Judge: Honorable Barbara j. mallach

Department 22


400 County Center, Redwood City

Courtroom 8A


Thursday, November 16, 2017


If you plan to appear on any case on this calendar,

 you must call (650) 261-5122 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).


Case                  Title / Nature of Case


Line: 1


                    RETIREMENT ASSOCIATION



TERESA MAGANA                          Alexander Lubarsky

SAN MATEO COUNTY EMPLOYEES'            jan ellard







The Petition for Writ of Mandate by Petitioner Teresa Magana seeking to set aside Respondent SAMCERA’s Denial of Service Connected Disability Benefits is DENIED.


First, the Petition for Writ of Mandate is DENIED because Petitioner has not submitted a copy of the administrative record to the court, though both parties cite to the record in their briefs.  The burden of producing an administrative record in a CCP § 1094.5 writ of mandate proceeding rests upon the Petitioner.  (CCP § 1094.5(a); Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354; Hothem v, City and County of San Francisco (1986) 186 Cal.App.3d 702, 704-704.)  In the absence of an administrative record, a court is required to presume that the findings were supported by substantial evidence.  (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)


Second, the March 24, 2015 Board of Retirement Denial of Application Findings, attached as Exhibit B to the Petition for Writ of Mandate and apparently comprising pages DRB TM 00043 and DRB TM 00028-00034 of the Administrative Record contains substantial evidence that the Petitioner is not permanently incapacitated and able to substantially perform her usual job duties.


Third, there is no administrative record, and therefore no evidence that Petitioner exhausted her administrative remedy by raising her due process argument at the administrative hearing.  In Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 892 fn 6, the court held: “The case law consistently shows that due process and bias issues must be presented to the hearing officer or tribunal itself for the issue to be preserved.” (Id. [citing Morongo Band of Mission Indians v. State Water Resource Bd. (2009) 45 Cal.4th 731, 734-735; Haas v. County of San Bernadino (2002) 27 Cal.4th 1017, 1021].) 


Fourth, although there is no dispute that Petitioner was not represented by counsel at the administrative hearings, there is no evidence before this court that respondent or its agents engaged in any inappropriate act to dissuade Petitioner from exercising her right to be represented by counsel.





POSTED:  3:00 PM

















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