Vidor v. City of Oakland Comm. and Econ. Dev. Agency

Filed 10/6/09 Vidor v. City of Oakland Comm. and Econ. Dev. Agency CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

RICHARD VIDOR,

Plaintiff and Appellant,

v. A120973

CITY OF OAKLAND COMMUNITY (Alameda County

AND ECONOMIC DEVELOPMENT Super. Ct. No. RG06287844)

AGENCY,

Defendant and Respondent;

VULCAN PROPERTIES, LLP, et al.,

Real Parties in Interest and Respondents.

__________________________________________/

Appellant Richard Vidor filed a petition for writ of administrative mandamus challenging a decision by the City of Oaklands rent board to deny his request for a decrease in rent. The trial court denied the petition ruling the rent board had not prejudicially abused its discretion and Vidor had not been denied a fair hearing. Vidor now appeals contending (1) certain aspects of the rent boards decision are not supported by substantial evidence, and (2) he was not given a fair hearing. We reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 1985, J.R. Orton and James Alexander purchased what formerly was the Vulcan Foundry located on San Leandro Street in Oakland. Operating through a partnership known as Vulcan Properties, L.P., Orton and Alexander then converted the foundry into 59 residential artist live/work units in three different buildings.

In March 1998, appellant Richard Vidor rented a unit in Building C of the property. In the years that followed, Vulcan Properties increased Vidors rent from $900 per month in 1998 to $1,266 per month in 2005.

In May 2005, Vidor filed a petition with the City of Oaklands rent board alleging his rent had been increased illegally. The petition was consolidated with similar petitions that had been filed by three other tenants who lived in units at the Vulcan property.

A hearing on the petitions was conducted on June 22, 2005. The primary issue was whether the units at the Vulcan property were exempt from Oaklands rent control ordinance. Section 8.22.030(A)(5) of the ordinance states that the rent restrictions set forth therein do not apply to Dwelling units which were newly constructed and received a certificate of occupancy on or after January 1, 1983. . . . To qualify as a newly constructed dwelling unit, the dwelling unit must be entirely newly constructed or created from space that was formerly entirely non-residential. The parties disagreed whether the Vulcan property ever received a certificate of occupancy and whether the property was formerly entirely non-residential.

The officer conducting the hearing received documentary evidence and heard testimony from witnesses. There was considerable dispute about the authenticity of some of the documents and whether Oaklands building department had provided the parties with full and accurate records. At the conclusion of the hearing, the parties agreed the hearing officer could go to the building department and independently review the documents located there.

On August 11, 2005, the hearing officer served notice that a second hearing was needed. The notice stated as follows: Following a review of the testimony and documentary evidence presented at the hearing, it has become apparent that, in order to render a proper Decision, further evidence must be developed in two respects: [] (1) Pertinent history of the subject property, including use and construction projects undertaken, from 1985 to date; and [] (2) The authenticity and significance, or lack of authenticity and significance, of certain Exhibits introduced by the parties at the June [22] hearing, as follows: Building Permit Applications; Certificates of Occupancy; Temporary Certificates of Occupancy; letters and other documents contained in the files of the Oakland Building Services Department.

Then on August 22, 2005, the hearing officer sent a letter to the director of the Community and Economic Development Agency asking that she arrange to have the person most knowledgeable concerning the practices of the Building Services Department in the mid-and late-1980s appear to testify at the second hearing.

A second day of hearings was conducted on September 29, 2005. Ray Derania, the interim building official for the City of Oakland, appeared as the person most knowledgeable about practices of the building department. After hearing the additional evidence presented, the hearing officer rendered a lengthy written decision. As is relevant here, he rejected the rent petitions, ruling Vulcan had proven by a preponderance of the evidence that the tenants units were created from space that was formerly entirely non-residential, and that the units either did or should have received Certificates of Occupancy after January 1, 1983.

Vidor and the other tenants filed an appeal to Oaklands rent board. The rent board conducted a public hearing and denied the appeal unanimously.

Vidor alone then filed a petition for a writ of administrative mandamus. He argued the decisions issued by the rent board and the hearing officer were not supported by substantial evidence and that he had not received a fair hearing. The trial court conducted a hearing on Vidors petition and denied it.

Vidor then filed the present appeal.[1]

II. DISCUSSION[2]

A. Sufficiency of the Evidence

Vidor contends certain aspects of the ruling issued by the hearing officer are not supported by substantial evidence.

When a party files a petition for writ of administrative mandamus contending the administrative record does not support the findings, the superior court reviews the record using either an independent judgment standard or a substantial evidence standard. (Code Civ. Proc., 1094.5, subd. (c); Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811.) Where the administrative decision substantially affects a vested fundamental right, the trial court must apply the independent judgment test. (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1525-1526.) When the administrative decision involves primarily economic interests, the trial court must determine if the findings of the administrative board are supported by substantial evidence. (Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1414; Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 287.)

The petition here involves Vidors request for a decrease in rent, an economic interest that does not involve a fundamental vested right. (Cf. San Marcos Mobilehome Park Owners Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1500, holding the decision of a rent board must be reviewed under the substantial evidence standard.) Accordingly, the trial courts review of the administrative proceedings below was governed by the substantial evidence standard.

When a decision of the trial court applying the substantial evidence standard is challenged on appeal, the same substantial evidence standard applies. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335.) The issue is whether the administrative decision is based on substantial evidence in light of the entire administrative record. (Ibid.) When making that determination, the reviewing court must review the administrative record, apply the substantial evidence test, and begin with the presumption that the record contains evidence to sustain the [administrative] boards findings of fact. (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd., supra, 70 Cal.App.4th at p. 287.)

Here, Vidor challenges the sufficiency of the evidence in two primary respects. First, he argues the evidence was insufficient to support the hearing officers conclusion that the building in which he lived, (Building C) received a certificate of occupancy after January 1, 1983.

At the hearing, Vulcan presented a building permit that indicated a final inspection had been completed for Building C in 1987. The hearing officer also heard testimony from Ray Derania, Oaklands interim building official, who stated that a final inspection, once completed, is authorization to occupy the building. And, for this particular building, a change in use, a certificate of occupancy would be following from that. Derania explained further, in Oakland and many jurisdictions . . . the building permit is the last document to be final. So youre supposed to assure that the electrical permit had been final beforehand, the plumbing permit, the mechanical permit. If you have a Health Department approvals, thats been done. If you had Public Works approvals. At the conclusion of that, then, all right, and the building is okay, you final the building permit. That triggers the preparation issuance of the certificate of occupancy for new buildings and buildings of change of uses. Given the presumption that official duty has been regularly performed, (Evid. Code,  664) the hearing officer evaluating this evidence reasonably could conclude that Vulcan had in fact obtained a certificate of occupancy for Building C after January 1, 1983.[3]

Vidor also challenges the hearing officers conclusion that Building C was formerly entirely nonresidential.

Vulcan presented testimony that indicated that the property at issue formerly had been a steel foundry. Vulcan also presented documentary evidence that prior to its purchase, the buildings on the property had been in use in their entirety as a foundry and were converted in their entirety to artist loft and live/work. In addition, Vulcan presented building permits that described the proposed construction at the property as a change to R. Derania, the building official, testified that designation meant the project was adding residences to an existing non-residential use. Again, the officer evaluating this evidence reasonably could conclude that prior to Vulcans work, the property at issue was entirely non-residential.

None of the arguments Vidor makes convince us the trial court erred.[4] As to the former issue, Vidor contends the evidence was insufficient because Vulcan never produced a final certificate of occupancy for any of the buildings on the property. Vidor argues that the documents Vulcan did produce, certificates of occupancy that did not have an official stamp, and temporary certificates of occupancy that had expired, were inadequate as a matter of law. Vidor is correct that the documents he cites do not appear to be final certificates of occupancy. However, this point is not dispositive. As we have explained, the record contains substantial evidence that Vulcan in fact obtained a certificate of occupancy for Building C. If such substantial evidence be found, it is of no consequence that the [hearing officer] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.] (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.)

As to prior nonresidential use, Vidor argues the hearing officers conclusion was flawed because it was inconsistent with a document he submitted that showed on April 13, 1987, a tenant at the property named Peter Smith filed an application for a building permit to perform work on an existing live-work studio. The evidence Vidor cites does support an inference that on some date prior to April 1987 the property may have been used for residential purposes. But that is of no consequence. Evidence of residential use prior to April 1987 does not defeat the trial courts conclusion that the property was entirely nonresidential before it was purchased and renovated by Vulcan in December 1985. Again, the hearing officers conclusion is supported by substantial evidence even though there is other evidence in the record that might have supported a different result. (Bowers v. Bernards, supra, 150 Cal.App.3d at p. 874.)

B. Whether Vidor Received a Fair Hearing

Vidor contends the trial court should have granted his petition for a writ because he did not receive a fair hearing from the rent board.

A petition for writ of administrative mandamus may be granted if a party has not received a fair trial before an administrative body. (Code Civ. Proc.,  1094.5, subd. (b).) On appeal, the trial courts factual findings with respect to whether a party received a fair hearing will be upheld if supported by substantial evidence. However, the trial courts ultimate determination as to whether the administrative proceedings were fundamentally fair is a question of law that this court reviews de novoon appeal. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 87; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443.)

Here, Vidor presents four arguments when arguing the underlying hearing before the rent board was unfair. First, he contends the decision issued by the hearing officer was unfair because it was inconsistent with the decision issued in a prior case: Garsson v. CollinsT04-1063. We reject this argument because Vidor has not cited any authority to support his position. The issue is forfeited. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) It is also unpersuasive. In the prior case, the same hearing officer who presided over this case initially ruled that a tenant was not entitled to a decrease in rent even though the landlord had never obtained a certificate of occupancy. The decision issued by the hearing officer states the landlord credibly testified that he did not apply for a Certificate because he was informed by City representatives that the City grants such certificates only for buildings that are entirely newly constructed, and not those in which the exterior structure remains essentially intact. The tenant did not dispute this testimony. The record in this case strongly suggests that Oakland city officials misinformed the landlord in the prior case. The testimony of Derania and the documentary evidence presented indicates a certificate of occupancy can be issued for buildings where the exterior structure remains essentially intact. In any event, the mere fact that the hearing officer in the prior case rendered a different decision in a different dispute between different parties and based on different evidence does not demonstrate unfairness.

Next, Vidor contends he did not receive a fair hearing because the hearing officer sought and allowed the introduction of additional evidence after the conclusion of the first day of testimony. Vidor contends that act was inconsistent with the courts statement at the end of the first day that the record is now closed. While the hearing officer did state the record was closed, all parties knew the hearing officer would in fact receive additional evidence because they had agreed he could go to the building department and review the records there. It is apparent that after that review, the hearing officer believed additional evidence was needed. On August 11, 2005, he sent the parties notice stating, Following a review of the testimony and documentary evidence presented at the hearing, it has become apparent that, in order to render a proper Decision, further evidence must be developed . . . . Then on August 22, 2005, the hearing officer asked that the person most knowledgeable with Oaklands building department appear to present testimony. Ray Derania, Oaklands interim building official, appeared in response to that request and he testified at the second hearing. We see no unfairness in these actions. It is well settled that a trial court is granted broad discretion to determine whether it is appropriate to reopen a case and receive additional evidence. (Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1052.) It is also settled that a trial court has the discretion to call and examine a witness in furtherance of justice. (Travis v. Southern Pacific Co. (1962) 210 Cal.App.2d 410, 424-425.) An officer conducting an administrative hearing, a much less formal proceeding, (Blinder, Robinson & Co. v. Tom (1986) 181 Cal.App.3d 283, 289) would at a minimum possess similar powers. We conclude the hearing officer here did not abuse his discretion or provide an unfair hearing simply because he sought and allowed the introduction of additional evidence that he believed was necessary in order to render a fair decision.

Next, Vidor contends he should have been allowed to submit additional evidence which was not readily available to [him] at the time of the second hearing . . . . Vidors argument on this point is unclear. He tried to present additional evidence to the rent board and to the trial court and he was rebuffed on both occasions. We cannot determine whether Vidor is arguing the rent board erred, the trial court erred, or both. However, we need not try to sort the issue out because we reject Vidors argument on procedural grounds. Vidor has not cited any authority to support his argument. He has forfeited the issue. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)

Finally, Vidor contends the rent board hearing officer should have concluded the evidence presented by Vulcan was unreliable because it was not the best evidence that Vulcan could have been presented to show it had obtained certificates of compliance or that the property formerly had been entirely nonresidential. Vidor bases this argument on Evidence Code sections 412 and 413.[5] However, the technical rules of evidence do not apply in administrative hearings. (Big Boy Liquors, Ltd. v. Alcoholic Bev. Etc. Appeals Bd. (1969) 71 Cal.2d 1226, 1230.) [N]either the trier of fact nor the board was required to weigh the evidence in accordance with the provisions of sections 412 and 413 of the Evidence Code. (Ibid.)[6]

III. DISPOSITION

The judgment denying the petition for writ of administrative mandate is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.

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[1] The briefs Vidor has filed describe the other tenants who filed rent petitions as real parties in interest. In fact, none of the other tenants filed an appeal, and none has made an appearance in this action. The legal rights of the other tenants are not at issue in this appeal.

[2] While this appeal was being briefed, the parties each filed a request for judicial notice. We deferred ruling on the requests until the merits of the appeal. Having now considered the requests, we rule as follows:

On December 12, 2008, Vidor filed a request asking this court to take judicial notice of (1) the administrative decisions issued in Garsson v. Collins--T04-0163, a case involving different parties that also arose under Oaklands rent control ordinance, (2) a printout from a website that allegedly is operated by Orton Development, (3) this courts unpublished opinion in Old Mothers Cookies, LLC v. City of Oakland (Nov. 10, 2008, A117899) and (4) Oaklands ordinance No. 7248. We decline to take judicial notice of the first items because many of them are already part of the record on appeal. We decline to take judicial notice of the second and third items because they were never presented to the trial court below. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) We decline to take judicial notice of the fourth item because it is not relevant to any issue that has been properly presented to this court. (Schifando v. City of Los Angeles(2003) 31 Cal.4th 1074, 1089 fn. 4.)

On March 18, 2009, the City of Oakland filed a motion asking this court to take judicial notice of (1) its rent control ordinance, and (2) the related regulations. The unopposed request is granted. (See Cal. Rules of Court, rule 8.54(c).)

On March 18, 2009, Vulcan Properties et al. filed a motion asking this court to take judicial notice of (1) Oaklands rent control ordinance, (2) the regulations that implement Oaklands rent control ordinance, and (3) a grant deed for the subject property that was recorded on December 31, 1985. Requests one and two are granted. Request three is denied. (Brosterhous v. State Bar, supra, 12 Cal.4th at p. 325.)

[3] Having reached this conclusion, we need not decide whether the hearing officer was also correct when he ruled that Vidor was not entitled to a decrease in rent because Building C should have received a certificate of occupancy.

[4] Vidor scatters what could be interpreted as challenges to the sufficiency of the evidence throughout his briefs. As required by the California Rules of Court, we will only address those arguments that are presented correctly through appropriate headings. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)

[5] Evidence Code section 412 states: If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.

Evidence Code section 413 states: In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the partys failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.

[6] In his opening brief, and again in his reply brief, Vidor makes statements that seem to argue Vulcan was not entitled to any rent increases because its conversion of the Vulcan Foundry into residential units violated Oaklands municipal ordinances. We declined to address this issue because it is not presented properly through appropriate headings. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)