Hirschfield v. Santa Monica Rent Control Bd.

Hirschfield v. Santa Monica Rent Control Bd.

Filed 8/17/06 Hirschfield v. Santa Monica Rent Control Bd. CA2/3


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.





Plaintiffs and Appellants,



Defendant and Respondent.


(Los Angeles County

Super. Ct. No. SS012563)

APPEAL from a judgment of the Superior Court of Los Angeles County, Valerie Baker, Judge. Affirmed.

Law Office of Robert Ferguson, Robert Ferguson for Plaintiffs and Appellants.

Santa Monica Rent Control Board, David R. Daniels, General Counsel, Keith J. Kresge, Staff Attorney for Defendant and Respondent.



Plaintiffs and appellants Richard Hirschfield and Barbara Taub as Trustee of the Barbara Taub Trust (collectively, Hirschfield) own an apartment building. One of their tenants petitioned defendant and respondent the Santa Monica Rent Control Board (the Board) for a rent decrease based on, among other things, an alleged loss of parking. A hearing officer granted the tenant a $75 decrease in rent. Hirschfield appealed the decision to the Board, and the Board affirmed the decision. Hirschfield then filed a petition for a writ of administrative mandamus in the superior court based on the argument that the Board failed to consider equitable defenses. The trial court held that equitable defenses were not applicable to the proceeding before the Board, and it therefore denied the writ. We hold that the trial court properly denied the writ, but for a different reason: Hirschfield did not adequately raise the equitable defenses during the administrative process. We therefore affirm the judgment.


I. Alison Hammond petitions for a rent decrease.

In 1997, Alison Hammond rented an apartment, unit D, in Santa Monica. She did not receive a parking space, although other units received a parking space. The original 1979 registration for the apartment building did not list parking as an amenity for unit D. In November 2001, Hammond informed her then landlord that she intended to file a petition for a rent decrease based on the landlord’s failure to give her the next available parking space.

Thereafter, Hirschfield purchased the property in mid-2002. In July, Hammond offered to negotiate an agreement with Hirschfield for the voluntary vacancy of her unit based on electrical problems. In November, Hammond notified Hirschfield of her intent to file a petition for a rent decrease based on “restor[ing] the parking space belonging to this unit.”

Hammond thereafter filed, in January 2003, a petition for a rent decrease based on, among other things, the landlord’s failure to provide her a parking space. After a hearing on the petition, the hearing examiner, in a decision dated June 30, 2003, found that the apartment building had 11 units, but only 10 parking spaces. Parking was allocated on a seniority basis. A prior tenant of unit D who lived there from 1977 to 1996 said he got a parking space about six months after moving in, and that he never paid extra for parking. The officer ordered a decrease of $75 in monthly rent for the loss of parking. The decision did not address estoppel.

II. Hirschfield appeals the hearing officer’s decision to the Board.

Hirschfield appealed the decision to the Board.[1] He set forth as a ground for the appeal the hearing officer’s refusal to receive evidence on and to consider the issue of estoppel. The Board’s staff report stated, “Nowhere did the hearing officer refuse to allow the landlord to present evidence concerning a potential defense of estoppel. Nowhere did the hearing officer rule that estoppel would not be a consideration in the hearing as is claimed in the appeal. The only comment the hearing officer made concerning the issue of estoppel was that such a defense ‘might not work here.’ ” The report therefore found that Hirschfield had failed to clearly articulate a defense of estoppel before the hearing officer. The report further noted that equitable remedies are not available in administrative hearings, which allow only those remedies set forth in the authorizing statute and regulations. The report then recommended that the $75 rent decrease be affirmed.

The Board adopted the recommendation and issued its notice of decision on September 11, 2003.[2]

III. The petition for writ of administrative mandamus.

Hirschfield filed a petition for writ of administrative mandamus on April 28, 2004. In his motion for a writ, Hirschfield argued he had not been allowed to fully address and to prove the issues of estoppel or waiver at the administrative hearing. He cited as evidence for these defenses Hammond’s knowledge of her claim of equity in 1997, her refusal to complete an estoppel certificate, and her failure to mention to Hirschfield the parking issue. The Board opposed the motion by arguing that equitable defenses of estoppel and laches are not applicable to Board proceedings.

The trial court issued a tentative ruling initially granting the writ, but took the matter under submission.[3] After further consideration, the court denied the motion for a writ of mandamus on the ground that equitable remedies are not applicable to the Board’s administrative proceedings. The court issued its statement of decision on April 5, 2005, and its judgment on May 18, 2005. Hirschfield filed a notice of appeal on June 3, 2005.


I. The trial court properly denied the petition for writ of mandate because Hirschfield failed to raise equitable defenses at the administrative hearing.

The sole issue Hirschfield raises on appeal is whether equitable defenses (estoppel, laches, and unclean hands) are available in actions concerning rent reductions before the Board. The trial court held that the defenses are not available in such proceedings, and it therefore denied Hirschfield’s writ. We need not, however, decide whether equitable defenses are available in proceedings before the Board. Rather, although we agree that the trial court properly denied the writ, we do so for a different reason: Hirschfield failed to put equitable defenses at issue during the administrative proceedings. Therefore, the writ petition was properly denied.

In order for issues to be subject to judicial review, they must generally have first been raised in the administrative proceeding. A public agency must be given the opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198; see also Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894.) “In administrative mandamus actions brought under section 1094.5 of the Code of Civil Procedure, appellate review is limited to issues in the record at the administrative level. ‘It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. [Citation.] It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or “skeleton” showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.’ ” (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020.)

Here, the record does not show that Hirschfield adequately raised any equitable defenses in the administrative proceedings below. The record from the administrative proceedings contains no mention of unclean hands or laches, and the only time Hirschfield’s counsel, Robert Ferguson, mentioned estoppel at the hearing before the examiner on the second day of hearings was as follows:

“[Hirschfield’s counsel]: I don’t recall if Mr. Hirschfield completely covered the issue of estoppel.

“[Hearing officer]: Estoppel?

“[Hirschfield’s counsel]: Yes. He had conversations with Mrs. Hammond. She testified to them, but I don’t think Mr. Hirschfield had an opportunity to testify as to what she said to him, at the time.

“[Hearing officer]: Well, I don’t know.

“[Hirschfield’s counsel]: It’s a legal defense. It may not work here.

“[Hearing officer]: No. Probably not.

“[Hirschfield’s counsel]: We’ll soon find out, maybe.

“[Hearing officer]: Okay. Let’s do the parking issue first so we can let our witness go. Ms. Hammond, I’m going to let you go ahead and begin questioning and I probably will have some questions. Then of course, Mr. Ferguson, you’ll have an opportunity to ask questions. . . .”

We do not see how this brief exchange either raises the issue of estoppel or shows that the hearing examiner refused to take evidence on the issue. To the contrary, Hirschfield’s counsel said the estoppel defense “may not work here.” The hearing officer merely replied that the defense probably would not work. But the hearing officer did not preclude consideration or introduction of evidence on that issue. Instead, the hearing officer said they would address the parking issue “first,” thereby implying that Hirschfield was not precluded from raising estoppel. In fact, Hirschfield then did testify about the tenant’s failure to return an estoppel certificate and his conversation with the tenant during which she failed to tell him about her parking concerns. Hirschfield did not, however, make any closing or other argument about estoppel to the hearing officer or otherwise alert the hearing officer that it was an issue. Nor did Hirschfield, at least on the record before us, make any written submission, such as a response to the tenant’s petition, raising estoppel or unclean hands and laches as defenses. (See, e.g., Reg. 4004 [“Accompanying the notice of filing of the petition, a form shall be provided to the parties affected by the petition to respond to the petition in writing”].)

The staff report[4] regarding Hirschfield’s appeal to the Board also took note of Hirschfield’s failure to raise estoppel. “The review of the hearing tapes showed that the landlords failed to clearly articulate a defense of estoppel before the hearing officer. While vague reference is made to the landlord’s reliance on information in Board records and petitioner’s silence concerning parking in the decision to purchase the property, nowhere do the landlords discuss the elements of the defense of equitable estoppel or attempt to establish how those elements are met in this case. In fact, the landlords made no closing argument at the end of the hearing, where defenses to the petition are usually discussed in detail. In the absence of a fully articulated argument, the hearing officer did not err in failing to address the defense.”[5]

Hirschfield is therefore complaining that the Board failed to consider defenses that he never properly raised. That being the case, we cannot fault the hearing examiner for failing to consider an issue she did not know was before her. By the same token, the Board did not err in affirming the decision. Although the trial court found that

equitable defenses are inapplicable to rent proceedings before the Board, it need not have gone that far. Rather, Hirschfield never properly raised those defenses in the administrative proceedings, and therefore the issue is waived.


The judgment is affirmed. Respondent Santa Monica Rent Control Board is to recover its costs on appeal.



We concur:



Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] Under Santa Monica City Rent Board Regulation 4028, “the Board’s decision shall be based upon the hearing record before the hearing examiner, any information submitted in connection with appeal, and any testimony by the Board,” unless the Board determines it should hold a de novo hearing.

[2] The Board partially reversed the decision on a ground not relevant to this appeal.

[3] Hirschfield has not submitted the reporter’s transcript from the hearing on the writ.

[4] The staff report was served on all parties.

[5] The report further stated that Hirschfield’s appeal to the Board also similarly failed to fully articulate an equitable estoppel defense, but it nonetheless suffices to “say that equitable remedies are not available in administrative hearings that provide only remedies provided in the authorizing statute and regulations. Equitable remedies are limited to courts sitting in equity.” We make no comment on that holding.

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