Filed 8/29/14 Khan v. County of San Mateo CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


SALMA KHAN,
         Plaintiff and Appellant,
                                                                     A138743
v.
COUNTY OF SAN MATEO,                                                 (San Mateo County
                                                                     Super. Ct. No. CIV 519100)
         Defendant and Respondent.


                                            MEMORANDUM OPINION1
         In 2009, appellant Salma Khan was terminated from her employment with the
County of San Mateo (County) as a staff psychiatrist at the North County Mental Health
Clinic. Pursuant to the San Mateo County Civil Service Commission Rules, Khan’s
appeal of the termination was the subject of a lengthy hearing before a hearing officer in
August, September and October 2011. In May 2012, the hearing officer rendered a 52-
page decision upholding the termination. The decision reviewed the testimony and
exhibits submitted at the hearing and concluded the County had carried its burden with
respect to three of four charges of misconduct, including insubordination, failure to
follow work rules, and inability to work as a team.
         Khan filed a petition for writ of mandate seeking reinstatement on January 14,
2013, alleging she had not been provided a fair hearing and the hearing officer’s decision
was not supported by the evidence. The County filed an opposition to the petition
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         We resolve this case by a memorandum opinion pursuant to California Standards
of Judicial Administration, section 8.1(1), (3).
arguing it should be denied because, among other grounds, Khan had not lodged an
administrative record or any other evidence on which the trial court could base its
decision. The court’s docket sheet reflects the filing of a series of exhibits from the
administrative hearing, but there is no mention of a reporter’s transcript. On February 28,
2013, the trial court entered an order denying Khan’s writ petition without prejudice,
stating: “The petitioner has not submitted a memorandum of points and authorities, or
declaration. Also, no reporter’s transcript has been submitted. The reporter’s transcript
is essential to evaluating the petitioner[’]s arguments. In the absence of an adequate
record the petition may be denied for failure to meet the burden of proof. [Citations.] It
is petitioner[’]s responsibility to file an adequate record in order to obtain relief.
[Citation.] Denied without prejudice. Petition denied.”
       Within two weeks, Khan renoticed a hearing on the petition. Although she filed a
declaration giving her side of the story, she still did not provide the court with the
reporter’s transcript of the hearing. The County filed an opposition, again raising Khan’s
failure to file a proper administrative record. The court found the notice of hearing
inadequate and held Khan was required by the earlier denial to file either a new petition
or a motion for a new trial. The court concluded, the “petition remains denied.”
Judgment was entered on the basis of this order.
       Following the filing of her notice of appeal, Khan caused a reporter’s transcript of
the administrative hearing to be prepared, and it has been filed as part of the appellate
record. Khan has argued her appeal on the merits. She neither acknowledges, denies, nor
explains her failure to present the trial court with the reporter’s transcript.
       We are required to affirm the judgment on the basis of Khan’s failure to provide a
complete administrative record to the trial court. The trial court’s task in reviewing the
hearing officer’s decision was “ ‘to examine the entire administrative record, to
determine whether the [hearing officer’s] findings were supported by substantial
evidence.’ ” (California Science Center v. State Personnel Bd. (2013) 218 Cal.App.4th
1302, 1307.) Necessarily, that task required the submission of the “entire administrative
record,” notably including a transcript of the hearing testimony. It was Khan’s


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responsibility, as petitioner, to see that the court was provided with that record. “In a
[Code of Civil Procedure] 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 . . . .’ [Citations.] ‘[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.’ ”
(Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) Because the trial court did not
have a complete record, it was required to presume the findings were supported by
substantial evidence, and there was no evidentiary basis for Khan’s claim of an unfair
hearing. The trial court provided Khan with an opportunity to cure the defect by denying
the petition without prejudice, but she filed a new notice of motion without filing a
reporter’s transcript.
       Although Khan has provided this court with the reporter’s transcript, it is too late
in the litigation process to cure the deficiency. A litigant cannot augment the appellate
record with materials that were not before the trial court. (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) “ ‘It is an elementary rule of
appellate procedure that, when reviewing the correctness of a trial court’s judgment, an
appellate court will consider only matters which were part of the record at the time the
judgment was entered. [Citation.] This rule preserves an orderly system of [litigation] by
preventing litigants from circumventing the normal sequence of litigation.’ ” (Haworth
v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.)
                                      DISPOSITION
       The judgment of the trial court is affirmed.




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                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




      *
        Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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