Judge James C. Chalfant, Case 21STCP03622 2023-01-12 Tentative Ruling

Petitioners Cali Farms, LLC (“Cali”), doing business as Honeyspot LLC (“Honeyspot”), and Shara Gatrelle (“Gatrelle”) seeks a writ of mandate compelling Respondent City of Los Angeles (“City”) Department of Cannabis Regulation (“Department”) to reverse its decision denying Cali Proposition M (“Prop M”) Priority Processing.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioners filed the Petition on November 2, 2021, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

On December 16, 2005, Larry Kent (“Kent”) registered TMHR Collective Corporation entity number C2821425 (“TMHR”), with the Secretary of State. The City’s Department of Finance (“Finance”) issued TMHR a business tax registration certificate (“BTRC”), account number 0002767656 with a fund class of L044.

In 2007, Petitioners maintained a BTRC. On November 13, 2007, Petitioners registered with the City Clerk’s Office (“City Clerk”) in accordance with Interim Control Ordinance 179027 (“ICO”). Kent, who at the time was the officer, director, and agent for service of process for TMHR, filed the necessary Medical Marijuana Business Information Form at 4:43 p.m. He made a copy of the form stamped “RECEIVED” and “MEDICAL MARIJUANA DISPENSARY BUSINESS INFORMATION FORM 2007 NOV 13 PM 4:43 BY: CITY CLERK.”

On March 20, 2015, Cali became the parent company of TMHR and received a BTRC with a fund class of L050.

On June 28, 2016, Gatrelle registered Cali with the Secretary of State. On January 4, 2018, Gatrelle updated Cali’s Secretary of State Statement of Information and named Jeffrey J. Beckwith (“Beckwith”), Kent, and TMHR as managers or members.

On January 28, 2011, Kent answered on a Notice of Intention to Register Form that he did not register with the City Clerk’s Office on or before November 13, 2007. This was a mistake, as he did register on that day in accordance with the ICO. Cali and its subsidiary TMHR has been in continuous operation since 2005.

On August 24, 2018, the Department gave Cali notice that it was not eligible for Prop M Priority Processing under Los Angeles Municipal Code (“LAMC”) section 104.07. Cali appealed, and the Department heard the appeal on June 10, 2019.

On June 24, 2019, Gatrelle submitted to the Department an Application Amendment Form that updated Cali’s agent for service of process from Beckwith to Jeffrey C. Meyers (“Meyers”) at 1940 N. Highland Avenue, #40.

On October 14, 2019, the Hearing Officer issued a decision denying appeal. The Hearing Officer found that Cali failed to register with the City Clerk by November 13, 2007 and was ineligible for priority processing.

The Decision was served on Beckwith and Cali with notice of the 90-day statute of limitations for filing a petition for writ of administrative mandamus. Meyers never received service.

Petitioners seek a writ of mandate compelling the Department to reverse its decision denying Prop M Priority Processing to Cali.

On February 3, 2022, the Department filed a declaration in support of automatic extension for time to file a demurrer. The Department never filed a demurrer and instead filed an Answer on March 9, 2022 and an Amended Answer on April 11, 2022.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Where the agency initially decides whether to grant a license to engage in a trade or business, its decision will be upheld unless it lacks substantial evidence to support it. Donely v. Davi, (2009) 180 Cal.App.4^th 455-56.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

In 2007, the City adopted the ICO which required all marijuana collectives to register with the City in 60 days.

In 2010, the City adopted the Medical Marijuana Ordinance (“MMO”) which limited the number and operation of marijuana collectives in the City. AR 1155.

On January 25, 2011, the City Council passed Ordinance No. 181530, a temporary urgency ordinance to amend the MMO in response to a Los Angeles Superior Court’s preliminary injunction against enforcement of the MMO and pending the City’s appeal of that injunction. AR 1155-56.

In 2013, the temporary ordinance was replaced by Proposition D (Ordinance No. 182580) (“Prop. D”). AR 1184-97. Prop D explained that the City discontinued implementation of the MMO after the Los Angeles Superior Court decision of October 14, 2011. AR 1185-86. After a series of other judicial decisions, the City chose in August 2012 to prohibit almost all medical marijuana businesses via Ordinance No. 182190 to stop the continued proliferation of unregulated and unauthorized businesses. AR 1186-87. The City repealed the general ban on October 9, 2012. AR 1187. To address the continued proliferation of unauthorized medical marijuana businesses, Prop. D replaced the entirety of LAMC Chapter IV, Article 5.1 by granting limited immunity from enforcement of the prohibition on medical marijuana businesses for those businesses that have abided by the City’s regulations and do not violate the restrictions in Prop D. AR 1188.

In 2017, the City passed Proposition M (“Prop M”), which provided limited immunity and priority registration/processing for retail cannabis activity for existing medical marijuana dispensaries (“EMMD”). In order to participate in the City’s Phase 1 cannabis licensing -- otherwise known as “Proposition M Priority Processing” -- an applicant must receive a determination of eligibility from Department. RJN Ex. A, pp. 27-28 (LAMC §104.07). An applicant is eligible if it can establish that it previously operated an EMMD.

“[A]n existing medical marijuana dispensary that is in compliance with all restrictions of Proposition D, notwithstanding those restrictions are or would have been repealed, including, but not limited to, either possessing a 2017 L050 BTRC and current with all City-owed business taxes, or received a BTRC in 2007, registered with the City Clerk by November 13, 2007 (in accordance with the requirements under Interim Control Ordinance 179027), received a L050 BTRC in 2015 or 2016 and submits payment for all City-owed business taxes before the License application is deemed complete. For purposes of this subsection only, an EMMD that has entered into a payment plan with the City's Office of Finance pursuant to LAMC Section 21.18 to pay all outstanding City-owed business taxes is deemed current on all City-owed business taxes and is deemed to have submitted payment for all City-owed business taxes.” RJN Ex. A, pp. 3 (LAMC §104.01(a)(22)) (emphasis added).

A “BTRC” is a Business Tax Registration Certificate issued by the City’s Office of Finance that is required for all businesses in order to remit taxes to the City. LAMC §§ 21.03(a)-(b), 21.06(a); RJN Ex. A, p. 2 (LAMC §104.01(a)(5)). A BTRC is issued by Finance to the person or entity listed on the face of the certificate. LAMC §21.00(d) (“person” defined), 21.08(a); RJN Ex. A, p. 2 (LAMC §104.01(a)(5)). It is generally not transferrable. LAMC §21.11. A BTRC is not a business license or a permit in and of itself. LAMC §§ 21.08(b), 21.50(a).

Prop M Priority Processing can only be granted for the one location identified in the EMMD’s original or amended BTRC. RJN Ex. A, pp. 27-28 (LAMC §104.07(a)). Once an applicant is deemed eligible, its EMMD is entitled to receive temporary approval from the Department that authorizes the EMMD to maintain the limited immunity from prosecution afforded by Prop D and engage for a limited period of time in commercial cannabis activity as would be permitted under the privileges of a non-temporary license of the same type. Id., pp. 5, 28 (LAMC §§ 104.01(488) (defining Temporary Approval), 104.07(c), (e) (grant of Temporary Approval)).

The Department’s determination whether an EMMD application is eligible for Prop M Priority Processing shall be made without a hearing and shall be final unless an administrative hearing is timely requested. RJN Ex. A, p. 28 (LAMC §104.07(c)).

The procedure upon appeal is set forth in LAMC section 104.10. City RJN Ex. A, pp. 30-31. The appeal must be filed with the Department within 15 days of the date of the mailing of the written decision by Department and set forth the specific basis upon which the appellant claims there was an error or abuse of discretion by the lower-level decision maker. City RJN Ex. A, p. 30 (LAMC §104.10(a)(1)). Within 30 business days after the conclusion of a hearing, the hearing officer shall issue written findings of fact and decide whether to uphold, reject or modify the challenged decision being appealed. AR 3212. The hearing officer’s assistant shall serve the findings on the appellant by mail to the appellant's agent for service of process. AR 3212.

On November 25, 2005, Kent, Robert Harand, and Carmencita Harand co-signed a lease in the name of “MHR” as tenant for real property at 14836 Burbank Boulevard in Sherman Oaks (the “Burbank Blvd. address”). AR 14-19.

On November 30, 2005, Finance issued a BTRC to Kent and Robert Harand. AR 12. The Board of Equalization issued a seller’s permit to TMHR on December 19, 2005. AR 223. Computer printouts show that TMHR has paid sales taxes and City taxes since those issuance dates. AR 27-34.

On December 16, 2005, Kent filed TMHR’s Articles of Incorporation with the Secretary of State, registered as entity number 2821425. AR 220-21. The Articles of Incorporation list Kent as the agent for service of process at the Burbank Blvd. address. AR 220. On the same date, Finance issued a BTRC to TMHR with a fund class L044. AR 5.

On January 1, 2006, the initial directors of TMHR passed a resolution approving Kent as TMHR’s agent for service of process, Chief Executive Officer (“CEO”), President, and Treasurer. AR 246-48.

TMHR’s March 27, 2006 Statement of Information filed with the Secretary of State lists Kent as TMHR’s CEO, director, Chief Financial Officer, and agent for service of process at the Burbank Blvd. address. AR 1771. The Statement of Information lists Claire Kent as the Secretary. AR 1771.

“Tarzana Medicinal Health Resources, Inc.” has a Certificate of Liability Insurance for liability coverage between December 2006 and December 2007. AR 225.

On January 28, 2011, TMHR was notified that the City’s temporary urgency amendments to the MMO were in effect and that every medical marijuana collective seeking to participate in the City’s registration process must sign and personally deliver the January 2011 Notice of Intention to Register Form (“2011 Intent to Register”) to the City Clerk, with the final day to file the form as February 18, 2011. AR 1888, 1896. The 2011 Intent to Register asked, under penalty of perjury, if TMHR registered with the City Clerk on or before November 13, 2007, in accordance with the City's IMO, to which Kent replied “No.” AR 1889-90.

On August 7, 2014, Finance issued a BTRC for TMHR with a fund class L050. AR 6. That same day, Finance issued copies of two BTRCs for TMHR. AR 107, 138.

On March 20, 2015, Finance issued a BTRC for TMHR/The Honeyspot with a fund class L050. AR 8.

TMHR’s March 7, 2016 and January 31, 2017 Statements of Information filed with the Secretary of State list Beckwith as the CEO, Secretary, Chief Financial Officer, and agent for service of process. AR 257, 259. In 2016, Beckwith’s service address was 6775 Santa Monica Blvd. #4, Los Angeles, CA 90038 (“Santa Monica Boulevard address”). AR 257. In 2017, his service address was 12814 Riverside Drive, North Hollywood, CA 91607 (“Riverside Drive address”). AR 259.

On May 7, 2018, Finance issued another BTRC for TMHR/Honeyspot/Beckwith with fund class L701. AR 272.

On March 31, 2018, the Department received an Application for Prop M Priority Processing (the “Application”) submitted by Gatrelle and Beckwith for Cali (TMHR), doing business as Honeyspot. AR 1386, 1423. Cali listed its address as the Riverside Drive address. AR 1836, 1423.

On August 24, 2018, the Department denied the application and issued Written Findings of Ineligibility for Proposition M Priority Processing (“Ineligibility Findings”). AR 1386-87, 1423-1424. The Ineligibility Findings explained that an applicant must meet the definition of an EMMD in LAMC section 104.01(a)12 to be eligible for Prop M Priority Processing. AR 1386. Cali did not possess a 2017 L050 BTRC and therefore could not qualify unless it (1) had a 2007 BTRC; (2) registered with the City Clerk by November 13, 2007; and (3) received an L050 BTRC in 2015 or 2016. AR 1387, 1424. Cali did not register with the City Clerk by November 13, 2007. AR 1387, 1424. Specifically, it failed to file the required 2007 Information Form and submit to the City Clerk a BTRC, a seller’s permit, property lease, business insurance policy, dispensary membership forms, and, if needed, a County Health Department permit. AR 1387, 1424.

Additionally, Cali did not submit a 2007 BTRC registered under its name. AR 1387, 1424. Therefore, it had not submitted proof that it received an L050 BTRC in 2007. AR 1387, 1424. The Ineligibility Findings gave Cali until September 17, 2018 to file an appeal. AR 1387, 1424.

Petitioner Cali, dba TMHR, Honeyspot, and Honeyspot Genetics, timely appealed the Department’s Ineligibility Findings. AR 1. Documentary evidence presented for the appeal hearing is as follows.

Cali Farms submitted a 2007 Information Form that it alleged Kent had submitted to the City Clerk for TMHR on November 13, 2007. AR 11. The 2007 Information Form has Kent’s initials as a signature and purported to attach a BTRC, seller’s permit, property lease or other document of ownership, business insurance, and dispensary membership forms. AR 11. A stamp on top of the document’s title states “Received City Clerk’s Office City Clerk” with a date stamp of “2007 Nov 13 PM 4:43”. AR 11, 1116.

At least as late as 5:12 p.m. on November 13, 2007, the City Clerk issued an Agreement of Conditional Receipt (“Conditional Receipt Form”). AR 563. The Conditional Receipt Form explained that the City Clerk could not process all applications received that day. AR 563. The City Clerk therefore will date stamp such applications without review and would contact applicants within 24 hours whether it accepted the application as complete. AR 563.

Former City Clerk Legislative Assistant Sharon Dickinson (“Dickinson”) submitted a declaration dated May 31, 2019. AR 1875-76. She stated that medical marijuana dispensaries were required under the ICO to register with the City by submitting various documents no later than 5:00 p.m. on November 13, 2007. AR 1875 (¶2). She was directly involved in the intake and management of these registration documents. Id. Before her retirement in February 2019, she searched City Clerk records and confirmed that there was no record of TMHR’s registration application in November 2007. AR 1875 (¶3).

The City Clerk’s general practice for forms received by November 13, 2007 was to stamp “Received City Clerk” on the side or back of the form to avoid covering the document’s text. AR 1876 (¶4). The stamp included a time, date, and line for the staff member to initial. AR 1876. City Clerk staff routinely initialed documents in this space upon stamping and receiving them at the City Clerk’s public window. Id.

Dickinson has examined the 2007 Information Form submitted by TMHR as part of the appeal. AR 1875 (¶4). Cali’s exhibit has the “Received City Clerk” stamp on the front page covering the document’s text and does not contain staff initials. AR 1876 (¶6). Based on the City Clerk’s practice, the form is not authentic and was not timely submitted. Id.

Dickinson’s search also yielded a Hardship Exemption Application filed on May 4, 2009. AR 1876 (¶7). This is a document that dispensaries could file to be exempt from the requirements of the ICO, the ordinance that required registration by November 2007. AR 1876 (¶7), 1883. Dickinson also found the 2011 Intent to Register in which Kent marked that TMHR did not register with the City Clerk before November 13, 2007. AR 1876 (¶8).

The 2007 Information Form of Studio City Caregivers has no Received City Clerk stamp on the side where it would not obscure the text of the form itself. AR 1114. If there is a stamp, it is on the bottom lines of the document. AR 1114.

This no apparent Received City Clerk stamp on the 2007 Information Form for Hemp Factory III. AR 1115. A Conditional Receipt Form for Hemp Factory III has a Received City Clerk stamp at a 90-degree angle on the right-hand side. AR 1117.

On May 4, 2009, TMHR filed a Hardship Exemption Application that explained that it had to vacate its premises because the landlord received a letter from the federal Drug Enforcement Agency (“DEA”) before the ICO took effect. AR 1883, 1886, 1897. The DEA letter explained to the landlord that renting or leasing property to manufacture or store any controlled substance was a violation of federal law. AR 1897. That the substance qualified as medical marijuana under state law was not a defense. AR 1897. The DEA letter put the landlord on notice of TMHR’s use of the premises and advised that the consequences for the landlord could include prosecution, imprisonment, fines, and forfeiture of assets. AR 1898.

TMHR’s Hardship Exemption Application explained that TMHR had to move to another property as a result of the DEA’s letter. AR 1883. The application asserted that TMHR was the only true fully homeopathic and herbal remedy collective in the world and it was a “nasty move” for the government to threaten the collective’s old landlord. AR 1885.

On June 3, 2019, the Department issued a staff report. AR 337-44. The staff report identified the Applicants as Gatrelle and Beckwith, with the legal name/dba of Cali and TMHR, at the Riverside Drive address. AR 337. The staff report asserted that, although the Applicants’ March 1, 2018 Application was timely, they are not eligible for Prop M Priority Processing. AR 339. The Applicants did not possess a 2017 L050 BTRC, a fact which they did not dispute. AR 339, 340. Therefore, they could not qualify unless they (1) had a 2007 BTRC, (2) registered with the City Clerk by November 13, 2007, and (3) received an L050 BTRC in 2015 or 2016. AR 339.

The evidence showed that the applicants had not registered with the City Clerk by November 13, 2007. AR 339. Specifically, they failed to file the required 2007 Information Form and submit a BTRC, seller’s permit, property lease, business insurance policy, dispensary membership forms, and, if needed, a County Health Department permit. AR 339.

The Applicants also did not submit a 2007 BTRC that is registered under the Applicants' name. AR 339. Therefore, they had not submitted proof that they had an L050 BTRC in 2007. AR 339.

The Applicants submitted several BTRCs. AR 341. The relevant BTRCs and other documentation show numerous business locations, including the Riverside Drive address, Burbank Boulevard address, 19611 Ventura Boulevard, 6775 Santa Monica Boulevard, and 14925 Magnolia Boulevard. AR 341. The current business premises at the Riverside Drive address is not associated with any of the BTRCs. AR 341. LAMC section 104.07(a) permits Prop M Priority Processing only “for the one location identified in [the business entity’s] original or amended BTRC. AR 341. Thus, the BTRCs submitted by the Applicants do not support their business address. AR 341.

The Secretary of State’s records also showed that the existing TMHR was incorporated in June 2013, with two prior TMHRs -- one incorporated on 2005 and dissolved in 2008, and a second incorporated in 2011 and dissolved in May 2013. AR 341. There are no records from the Secretary of State suggesting that the existing TMHR is connected to these previous iterations. AR 341. The two dissolutions suggest that TMHR has not been in continuous operation since 2007, which is a required for Prop D compliant EMMDs. AR 341.

As to whether the Applicants registered with the City Clerk by November 13, 2007, the City Clerk found no record of registration for TMHR or Cali. AR 342. The 2007 Information Form submitted for this appeal had the stamp covering the title of the document and without staff initials, which led Dickinson to conclude it was not authentic. AR 342. Kent’s Hardship Exemption Application is, by definition, only relevant if TMHR did not comply with ICO’s registration requirements. AR 342-43. The Department also noted that Kent wrote on the 2011 Intent to Register, under penalty of perjury, that TMHR did not register with the City Clerk before November 13, 2007. AR 343.

Although Beckwith alleged possible fraud by his business partner, LAMC section 104.01’s definition of an EMMD does not give the Department discretion to consider the circumstances around non-compliance. AR 343. The Department staff recommended that the Hearing Officer deny the appeal and sustain the Department’s Ineligibility Findings. AR 343.

The Department held a hearing on June 10, 2019. AR 375. Beckwith stipulated that TMHR did not have a 2017 L050 BTRC. AR 393-95. The Hearing Officer noted that the stipulation limited the issue to the three requirements for Prop M Priority Processing based on possession of a 2007 BTRC. AR 393, 396-97.

Beckwith clarified that Petitioners did not contest the denial of TMHR’s May 2009 Hardship Exemption Application. AR 483. Rather, the issue was compliance with the three-pronged test of eligibility for Prop M Priority Processing. AR 483.

The pertinent testimony, including Beckwith’s statements during Dickinson’s testimony, is as follows.

When Dickinson reviewed the City Clerk’s documents, she found no evidence that the Applicant filed a registration with the City Clerk under the ICO. AR 397. In the 12 years she worked in that office, she was never unable to locate a document that the City Clerk in fact received. AR 430. She has had thousands of medical marijuana records and has never lost a document. AR 490. She takes seriously how those documents can affect livelihoods across collectives. AR 490. This hearing is the first time anyone has accused her of losing records. AR 491.

When Dickinson worked at the City Clerk’s office, she was unit manager and completely in charge of “this process”. AR 416. She shared the ICO process with only one other staff member. AR 416. The collectives filed ICO applications as a packet, not as single pages. AR 429. When collectives came in, they would review the packet. If anything was missing, the packet would be immediately returned and not accepted. AR 416. One requirement was that the collective had to show it was in business prior to the ICO’s adoption on August 1, 2007. AR 416. Submitted forms had to be dated prior to that date. AR 416-17.

On the final day, November 13, 2007, there were hundreds of applicants, with a line outside the door of at least a hundred. AR 417, 479. Dickinson was in the back, but she could tell there was a lot. AR 479. She did not expect that there would be so many because applicants had a 60-day window. Yet, many applicants waited until the last day. AR 494. This was the first time the City Clerk’s office had such a scenario, and it now knows that parties tend to show up on the last day. AR 494.

Dickinson and her staff member did not have enough time to go through every packet the day and accept or reject it in the moment. AR 417. When it got to the point where she could no longer keep up, which was around 4:15 p.m., she just stamped them all as received. AR 417, 503. She drafted a Conditional Receipt Form on her computer for this purpose and printed it. AR 502.[3] Although the City Clerk’s office “accepted” the packet, she let the applicant know that she would return the packet if it was missing documents. AR 417. This way, she could enable every applicant there to make the 5:00 p.m. deadline when the City Clerk’s office closed. AR 417-18, 499.

Whenever the City Clerk’s office receives documents, it tries to maintain the document’s integrity. AR 418. For most documents, the common practice is to stamp the front of the page. AR 431. For the ICO applications, Dickinson instructed staff to stamp the back of the document’s first page to preserve the information on the front. AR 418-19, 429. Whoever stamped it would then initial it. AR 418. The staff also writes how the document was received – mail or individually present -- if the staff employee remembers the manner of receipt. AR 418. Dickinson followed this policy with ICO registration applications and reviewed every document stamped to confirm compliance. AR 418, 431.

Once the City Clerk stamps a document, that document is in the protective custody and ownership of the City Clerk. AR 426. The office would never stamp a document it receives and return a copy to the applicant afterwards. AR 426-27, 503. Once an employee stamps the document, the interaction with that applicant is over. AR 502. The document is put in a box and there were people running them to Dickinson for her review. AR 502. The stamped document is not returned to the applicant. AR 503. It is the City Clerk’s property and they do not have time to give documents back to the applicant and track their whereabouts. AR 503.

Before Dickinson retired, the Department asked her to search for City Clerk records related to TMHR. AR 419. There was no record that TMHR has properly registered under the ICO. AR 419. Dickinson did not find any documents that TMHR had submitted on November 13, 2007 before 5:00 p.m. AR 423.

The Department asked her to review the 2007 Information Form that TMHR submitted as evidence. AR 419-20. Dickinson found it inconsistent with City Clerk policies for document acceptance. AR 420. The Clerk’s Office would never stamp over the text because the City Clerk tries to preserve document integrity, and the staff member would also initial the document. AR 420. A document that does not appear to have been stamped on the front page probably would have been stamped on the back of that page. AR 420.

The Department submitted two 2007 Information Forms for Dickinson’s review. AR 421. Both were stamped on the back with the date and handwritten initials. AR 422. Dickinson confirmed this was the manner in which the City Clerk stamped documents. AR 422-23.

Petitioners showed her other 2007 Information Forms. AR 485. For the Green Earth Collective’s form, the stamp was backwards. AR 485-86. This suggested that the stamp was on the back of the page, but the ink had bled through. AR 486. The same was true for forms by West Valley Caregivers, Northeast Collective Group, and Chatsworth Caregivers. AR 487-88.

A form for Studio City Caregivers had the stamp on the front page at the bottom. AR 488. Dickinson stated that the City Clerk’s stamp is electronic and heavy; she could not explain why the stamp showed lighter than on the other forms. AR 488. Beckwith theorized the ink ran low with the many documents that were stamped that day, but Dickinson said that does not make sense because they use an electronic machine and they never let the ink get this low. AR 488. The date on the form was an indecipherable November date. AR 488-89. The City Clerk’s office would never let the stamps get to a point of illegibility because it is an important instrument in the office’s work. AR 489-90.

Based on the lack of physical records, Dickinson’s concluded that TMHR did not properly register with the City Clerk under the ICO. AR 427-28. The City Clerk may have received the packet and rejected it because the lease included in the packet was in the name of “MHR,” not TMHR. AR 437-38. The City Clerk’s responsibility is to ensure that everything matches. AR 438.

A Hardship Exemption Application existed for a collective that could not meet the requirements of the ICO. AR 424. The collective could file for a hardship exemption through the City Clerk, and then the City Council would hear and determine whether to grant an exemption to that ICO requirement. AR 424, 482. By definition, a hardship exemption application suggests that the applicant had not properly registered per the ICO. AR 424-25. Over 700 collectives filed hardship exemption applications, but the City Council did not grant any of them. AR 482.

Dickinson found a TMHR Hardship Exemption Application during her document review. AR 425. Dickinson also found TMHR’s 2011 Intent to Register. AR 425. The 2011 Intent to Register form came into being when a judge’s order caused the City to enact a temporary urgency ordinance and the City Clerk received applications under that temporary ordinance. AR 425. TMHR’s application answered “no” to the following question: “Did the collective register with the city clerk’s office on or before November 13, 2020 (sic.) in accordance with the city’s Interim Control Ordinance number 179027?” AR 426.

The city clerk’s office in Van Nuys differs from the City Clerk’s office. AR 504-05.

When Kent submitted the 2007 Information Form on November 13, 2007, there were 200 or 250 people in line and a lot of confusion. AR 479, 494. People inside the office were screaming at each other and the situation was chaos. AR 493-94. No matter how well Dickinson did that day, the situation merited 20 employees to help her check packets. AR 493. He maintained that things got lost in that chaos, but it was not Dickinson’s fault. AR 493.

Kent submitted the 2007 Information Form packet with a paper clip. AR 495-96. He went to a counter inside the room. AR 496. He could not recall how many people were behind him. AR 496.

The 2007 Information Form exhibit that he presented at the hearing is a copy he made from the original. AR 497. After the City Clerk employee at the window stamped the 2007 Information Form packet, Kent asked to make a copy before the employee took it. AR 497. At this point, he was four or five places behind the front of the line. AR 501. Kent had someone hold his place while he went “down the block” to make a copy for his own records. AR 498, 500.

Kent did not remember if he took the entire paper-clipped packet and copied all the attachments. AR 499. He did not remember how far down the block he had to go to make the copy. AR 499. He did not remember if anyone else left to make a copy. AR 501. When he got back to the City Clerk’s office, he went back into his spot in line. AR 500-01.

When Dickinson testified that she was being accused of losing a document, Beckwith stated that there was human error. AR 491. Sometimes life leads to errors that hinder delivery of certain documents. AR 492. Petitioners are not responsible for helping the City Clerk with its recordkeeping duties. AR 492. In this case, Petitioners have a document that the City Clerk lacks. AR 492.

The courts have accepted the 2007 Information Form in Beckwith’s court case without any issue about the stamp. AR 505. Beckwith was confused that that it has been accepted as a court document and yet challenged now as to how the stamp got onto the document. AR 505-06. With how much of a mess occurred at the time, the City Clerk employees may not have followed every protocol that day. AR 506.

Cali emailed hearing exhibits to the Hearing Officer and Department on July 17, 2019. AR 2699. The City emailed a supplemental brief and the hearing exhibits, including transcripts, to the Hearing Officer on September 16, 2019. AR 627, 1106. Evidence after the hearing is as follows.

Among the exhibits submitted by Cali was a June 24, 2019 Application Amendment Form (“Amendment”) for Cali/TMHR, dba Honeyspot/Honeyspot Genetics. AR 653-55. Cali listed the Amendment on its list of exhibits for the hearing. AR 627.

The Amendment (1) changed the agent for service from Beckwith to Meyer at 1940 N. Highland Avenue, #40, Los Angeles, CA, 90068 and (2) added Kent and Gatrelle as managing members. AR 654. The Amendment cited Ordinance No. 181,157, which prohibits persons convicted within the last ten years from engaging in the management of a collective. AR 655. The Amendment only had one signature. AR 655.

The Amendment form warns applicants that they must submit the form in person at Department offices or the Office of Finance, with proof of identification. AR 653. The Department must review and approve amendments before they take effect, and it may ask for supporting documentation. AR 655.

On October 14, 2019, the Hearing Officer issued her decision. AR 371-74. The Hearing Officer stated that the issue was whether TMHR met either alternative for Prop M Priority Processing because it: (a) possessed a 2017 L050 BTRC and current with all City-owned business taxes, or (b) received a BTRC in 2007, registered with the City Clerk by November 13, 2007 in accordance with the IMO, received a L050 BTRC in 2015 or 2016, and submitted payment for all City-owned business taxes before the license application is deemed complete. AR 372.

The Hearing Officer noted that the parties stipulated that Petitioners do not dispute that they are ineligible for Prop M Priority Processing based on possession of a 2017 L050 BTRC. AR 372. The Hearing Officer found that Petitioners failed to prove by preponderance of the evidence that TMHR registered with the City Clerk by 5:00 p.m. on November 13, 2007 as per the ICO. AR 372.

The Hearing Officer found Dickenson’s testimony to be compelling. AR 373. Although Dickinson was not at the City Clerk’s window that day, she had 12 years of experience for the relevant procedures for document intake and management. AR 373. This included her testimony that the City Clerk’s office would stamp and initial a form on its back or side, not on top of the document’s title. AR 373. Her testimony that she did not find any record of TMHR’s registration through her review of City Clerk records was believable. AR 373.

Kent’s testimony was not credible. AR 373. He testified that he was in line to file the 2007 Information Form prior to 5:00 p.m. on November 12, 2007 (sic.). AR 373. He testified that the line was extremely long and that, after he had the 2007 Information Form stamped at 4:45 p.m., he went down the street to have it copied at a location he did not recall, had a copy made and returned to the same place in line (where he had someone save his place in line). AR 373.

The 2007 Information Form offered by Petitioners did not conform with City Clerk procedure. AR 3257. It had no clerk’s initials, and the stamp obscured the title on the front of the document. AR 3257. Petitioners’ exhibits of other 2007 Information Forms were in fact pages where the stamp was on the back of the first page but bled through to the front. AR 373.

Kent’s testimony also conflicted with his claim on the 2011 Intent to Register, made under penalty of perjury, that the collective did not register with the City Clerk by November 13, 2007. AR 373-74.

The Hearing Officer concluded that TMHR failed to register with the City Clerk by 5:00 p.m. on November 13, 2007. AR 374. As a result, TMHR was ineligible for Prop M Priority Processing and the appeal was denied. AR 374.

As of May 30, 2019, the Secretary of State’s records showed Beckwith as the agent for service of process for TMHR at the Riverside Drive address. AR 1934, 2352. Beckwith also was listed as Cali’s general partner. AR 2352-53.

The certificate of mailing shows that on July 1, 2020 the Department served the Hearing Officer’s decision by U.S. mail to the following: (1) Beckwith at 5533 Edward E. Horton Lane #15, Encino, CA 91316; (2) Gatrelle at 17819 Merridy St., Unit 323, Northridge, CA 91325; (3) Shahira Tadross, Esq. (“Tadross”) at 633 W. 5th St., 28th Floor, Los Angeles, CA 90071; and (4) Cali at the Riverside Drive address. AR 3260. The postal service returned the envelopes sent to Cali and Gatrelle as “Not Deliverable as Addressed” and impossible to forward. AR 3262-63.

On April 8, 2021, the Department informed Gatrelle via email that the Hearing Officer’s decision was first mailed and emailed to her on October 16, 2019. AR 3248. However, the Department realized that several of the mailed decisions may not have had the statutory notice attached. AR 3259. The Department re-sent the decision on July 1, 2020, with a notice under CCP section 1094.6 that administrative mandate must be filed within 90 days from the final decision, and the decision is final upon mailing to the party seeking a writ. AR 3248, 3259.

The next day, April 9, 2021, Gatrelle asked the Department to send the decision to 1940 N. Highland Avenue, #40, Los Angeles, CA 90068 with proof of mailing. AR 3235. Gatrelle explained that this was the new address for service that Cali had provided on the Amendment emailed to the Department on July 17, 2019. AR 3235.

On April 14, 2021, the Department replied to Gatrelle that it had no record that the Amendment had been submitted to the Department for processing and no record of payment of the modification request fee. AR 3237.

In another email two days later, the Department told Gatrelle that Cali had submitted the Amendment to the Hearing Officer as part of its voluminous exhibits, and Cali had not submitted the Amendment to Department. AR 3240. The Department explained that, prior to the COVID-19 pandemic, collectives needed to submit all modification request forms in person at the Department office. AR 3240. This allowed the Department to verify the signatures of all impacted owners, the identity of the person who submits the request, and payment of the modification request fee. AR 3240. If Cali had submitted the Amendment, the Department would have rejected it because the Amendment purported to remove Beckwith from Cali without his signature. AR 3240. Because Cali did not pay the modification fee or follow the appropriate submission procedure, the Amendment had not been filed. AR 3240.

Petitioners seek administrative mandamus to set aside the Hearing Officer’s decision denying Cali (TMHR) eligibility for Prop M Priority Processing.

CCP section 1094.6(b) requires a petition for writ of mandate to be filed no later than 90 days after the date on which the decision becomes final, and it is final upon the date it is mailed by first-class mail to the party seeking the writ. The Hearing Officer issued her decision on October 14, 2019 and the Petition was filed on November 2, 2021. AR 371-74. Therefore, the Petition is untimely unless excused.

Petitioners argue that the October 14, 2019 mailing did not include any notice of the right to appeal as required by CCP section 1094.6(f). Pet. Op. Br. at 6. The 90-day clock for CCP section 1094.6 does not begin to run until such notice is provided. Liang v. San Francisco Residential Stabilization and Arbitration Board, (2004) 124 Cal.App.4^th 775, 777. There actually is no evidence that the October 14, 2019 mailing to Petitioners did not include the notice; there only is evidence that several of the mailed decisions may not have had the statutory notice attached. AR 3259. For this reason, the Department re-sent the decision on July 1, 2020, with a notice under CCP section 1094.6. AR 3248, 3259. Whether Petitioners were not mailed the decision with the notice attached on October 14, 2019 therefore is not entirely clear.

In any event, Petitioners claim that the decision was sent to the wrong address. On July 1, 2020, approximately ten months after the decision was issued, the Department mailed the decision with the proper CCP section 1094.6 notice to (a) Beckwith at 5533 Edward E Horton Lane #15, (b) Attorney Tadross at 633 W. 5^th Street, 28^th Floor, Los Angeles, California 90071, (c) Gatrelle at 17819 Merridy St., Unit 323, Northridge, CA 91325, and (d) Cali at the Riverside Drive address. AR 3248, 3259. Pet. Op. Br. at 6.

Petitioners contend that this July 1, 2020 mailing ignored the Amendment submitted on June 24, 2019, which instructed that notices be mailed to Gatrelle at the Riverside Drive address and to Meyers -- the new agent for service who replaced Beckwith -- at 1940 N. Highland Avenue #40. AR 652–54. The City mistakenly mailed the July 1 decision only to Beckwith, Attorney Tadross, Gatrelle at 17819 Merridy St., Unit 323, Northridge, CA 91325, and Cali at the Riverside Drive address, and the mailings to Gatrelle and Cali were returned to the Department by the post office stamped as undeliverable and unable to forward. AR 3262-63. Petitioners conclude that no written notice of the decision nor of CCP section 10984.6’s 90-day limitation was ever mailed to them at the service address provided to the City. Accordingly, the Petition is timely because the Hearing Officer’s decision has yet to become final pursuant to CCP section 1094.6(b). Pet. Op. Br. at 5-6.

The Department[4] contends that the action is time-barred under CCP section 1094.6. TMHR’s Statement of Information filed with the Secretary of State show that its agent for service of process is Beckwith, not Meyers. AR 257, 259, 1777, 2352. While Petitioners claim to have submitted the Amendment Form changing their agent for service of process, this form was submitted via email to the Hearing Officer as part of the administrative appeals material. AR 2699, 2858.

“This is a request form to amend an application previously submitted to the Department of Cannabis Regulation (DCR) for a License and/or Temporary Approval to conduct commercial cannabis activities. This form must be submitted in-person to DCR’s offices or the Office of Finance. You will be asked to show identification before submission of the form. DCR must review and approve any amendments to previously- submitted applications before the changes will take effect, and you may be contacted and asked to supply supporting documentation.” AR 2858 (emphasis added).

The improperly submitted form was never processed by the Department because Petitioners did not submit the Amendment in-person to the Department’s offices or to Finance as required. The form also does not include general partner Beckwith’s signature agreeing to his withdrawal as Cali’s general partner and Cali/THCR’s agent for service of process. Accordingly, Petitioners were properly served with notice of the Hearing Officer’s decision on July 1, 2020, at the address associated with their application. The 90-day deadline was September 29, 2020 and the Petition filed on November 2, 2021 is time-barred. Opp. at 7-8.

Petitioners reply that the Department suggests that they hid the Amendment, which is a mischaracterization. There is no dispute that Petitioners provided updated address information to the Department and the Hearing Officer by electronic transmission and hard copy at the time of submission of exhibits and materials. The Amendment with the updated agent/address information was provided to the Hearing Officer by the Department’s email transmittal of Petitioners’ exhibits that were delivered to the Department in binders with indexes and tabs. AR 1106. The Amendment form is identified with its own tab cover sheet (AR 652) and it is listed on the index as its own line item (AR 627).

All parties, including the Department’s attorneys/staff and the Hearing Officer, received the change of address information submitted by Petitioners. Yet, the Department failed to mail the decision on July 1, 2020 to the correct addresses provided approximately one year earlier. The City knew right away that the mailing addresses were invalid because two envelopes were returned by the postal service. Reply at 6. Attorneys are only human and sometimes make mistakes. The Hearing Officer decision mailing of July 1, 2020 was in the heavy part of the pandemic which might have limited the ability of Department staff to have access to all of its records. Whatever the reason, it was not the fault of Petitioners that the Department failed to mail the decision to the agent for service of process. Reply at 6.

Petitioners argue that the Department should not be allowed to excuse its failure to mail the decision to the correct agent for service of process by blaming Petitioners for not being sufficiently conspicuous in providing updated agent for service information. The updated agent for service of process and address information was provided solely for the purpose of receiving the hearing decision. It is a violation of fundamental due process and the City’s procedures for the Department to contend that it was not obligated to mail notice of the hearing decision to Petitioners to the agent for service at the updated address provided in the Amendment. Reply at 7-8.

Finally, Petitioners argue that the City’s written procedures for the appeal specify that the decision will be mailed to the agent for service of process in 30 business days. AR 3212. It is clear that the decision was not properly mailed within the 30-day period as the Hearing Officer issued the decision on October 14, 2019 and the Department mailed it on July 1, 2020. The Department cannot assert the limitations period because the notice was untimely by the City’s own procedures. Reply at 7.

Addressing this last issue first, Petitioners are incorrect. The decision was mailed within 30 days. On April 8, 2021, the Department informed Gatrelle via email that the decision was first mailed and emailed to her on October 16, 2019. AR 3248. The decision was, in fact, mailed on that date, presumably by the Hearing Officer’s assistant. The Department subsequently realized that several of the mailed decisions may not have had the statutory notice attached and corrected that mistake on July 1, 2020. AR 3248, 3259. Thus, the initial decision mailing met the 30-day requirement. In any event, the 30-day period for mailing the decision is directive, not mandatory, and non-compliance does not affect the decision’s validity.

The issue is whether the Amendment satisfies the requirement that Petitioners inform the Department of a change of address. The problem with Petitioners’ argument is that the Amendment is a form for amending TMHR’s March 31, 2018 Application for Prop M Priority Processing (AR 1386); it is not a change of address form for purposes of receiving the decision or any other appeal notice. The Amendment form explains that it must be submitted to the Department or Finance in-person, requires identification, and is subject to approval. AR 2858. It also requires a modification fee. AR 3237. None of these events occurred and the Amendment was ineffectual as a change of address.

Additionally, Petitioners are wrong that it was submitted solely for the purpose of receiving the hearing decision. The Amendment was not just in a packet submitted to the Department and Hearing Officer as Petitioners suggest. Rather, it was expressly identified by Petitioners as an exhibit presented for the Hearing Officer’s consideration in making her decision. AR 627. As such, it was evidence no different than the Dickenson declaration or the 2007 Information Forms. If Petitioners wanted to notify the Department and the Hearing Officer of a change of address, a simple email for that purpose could have been used.

As the Amendment did not satisfy Petitioners’ obligation to notify the Department of a change of address for service purposes, the decision was properly served on July 1, 2020 with the CCP section 1094.6 notice to Beckwith, Attorney Tadross, Gatrelle at 17819 Merridy St., Unit 323, Northridge, CA 91325, and Cali at the Riverside Drive address. AR 3248, 3259. This service started the 90-day statute of limitations and the November 2, 2021 Petition is untimely.

If, arguendo, the Petition is timely, it would be denied on the merits because the Hearing Officer’s decision is supported by substantial evidence. The only issue is whether Petitioners complied with the ICO by timely filing a 2007 Information Form on November 13, 2007.

As the Department argues (Opp. at 11), Petitioners have the burden to show that there is “no substantial evidence whatsoever” to support the decision’s findings. Saad v. City of Berkeley, (1994) 24 Cal.App.4th 1206, 1212. When more than one inference can be reasonably deduced from the facts, the court may not substitute its own deductions for that of the agency. Donley v. Davi, (2009) 180 Cal.App.4th 447, 456. Rather, the trial court is required to uphold the administrative decision unless the administrative findings are so lacking in evidentiary support as to render them unreasonable. Cipriotti v. Board of Directors, (1983) 147 Cal.App.3d 144, 155.

Petitioners note that Kent testified that he was present at the City Clerk’s office on November 13, 2007, and that he personally filed the registration packet. AR 495, 479. He was able to describe the scene at the City Clerk’s office on the afternoon of November 13, 2007, thereby evidencing his presence on that afternoon. He testified that there were “more than 200 [people] in line”. AR 479. He also testified that there were “people outside on the sidewalk” who were “smoking marijuana and drinking beer”, that there were “people inside screaming at each other in the office”, and “it was so chaotic”. AR 493.

Dickinson corroborated Kent’s testimony by saying: “I know.” AR 493. Dickinson also corroborated Kent when she testified that “[o]n the last day we probably had a hundred, maybe more” (AR 479), there were “hundreds of people at our office…and [we] had literally lines outside of our office.” AR 417. She did not dispute Kent’s estimate of 200 people in line; she “was in the back, but there was a lot.” AR 479.

In response to Petitioners’ assertion that their packet was misplaced by the City Clerk, Dickinson blamed the procrastination of the document filers: “You know, they had 60 days, we were highly not expecting everyone to show up on the last day.” AR 493–94. Dickinson explained that it would be “unlikely that we would have done this, this type—received this type of document” but then admitted that the chaotic nature of that day would not make it unlikely that “something would happen.” AR 494. Pet. Op. Br. at 8-9.

Petitioners argue that it is understandable that a packet filed on November 13, 2007 was misplaced by the City Clerk. Petitioners do not submit that the City Clerk’s office is intentionally unable to produce the filed packet; they simply contend that the overwhelming number of documents filed that day, the chaotic nature of the scene, and the fact that the City Clerk’s office was short-staffed[5] resulted in a mistake in which the City Clerk misplaced Petitioners’ filed packet.

Petitioners acknowledge that the Hearing Officer was skeptical of Kent’s testimony about the timing of his filing on November 13, 2007. AR 373–74. The Hearing Officer thought it unlikely that Kent could have been in an extremely long line to file the packet prior to 5:00 p.m. on November 13, 2007, had his form stamped at 4:45 p.m., and then took the original back, went down the street and had a copy made, and then returned to his place in line. Petitioners argue, however, that the City Clerk accepted applications well after 5:00 p.m. on November 13, 2007. See AR 563 (2007 Information Form received at 5:12 p.m.) Thus, the Hearing Officer’s skepticism of Kent’s testimony was misplaced. Pet. Op. Br. at 9-10.

Petitioners argue that the placement of the City Clerk stamp on Petitioners’ packet was the principal issue on appeal. Dickinson testified that she “instructed everyone to stamp the back of the documents because of wanting to keep the integrity of the information on the front.” AR 418. She reiterated both a general policy and her specific policy for November 13, 2007 that the City Clerk’s stamp is “always on the back or an area that is clear to keep the integrity of the document.” AR 429.

However, Petitioners brought several City Clerk-stamped 2007 Information Forms that seemingly contradicted her policy. One business’s 2007 Information Form apparently was stamped on the bottom front page, not on the back of the front page, on the side, or “in an area that is clear to keep the integrity of the document.” AR 1114. Another 2007 Information Form appears to be stamped on the front page and over the text of the document. AR 1115. A third 2007 Information Form is clearly not stamped on the back. AR 1117.

Dickinson posited that these discrepancies must be due to the fact that “our stamp is pretty heavy and sometimes bleeds through [] [s]o if you notice the wording is backwards [] [s]o this was on the back and it bled through is what happened.” AR 486. Yet, at least one document (AR 1114) cannot be explained by bleeding through as the word “CLERK” reads left to right, as does the time stamp of “3:12.” When asked about this, Dickinson had no explanation. AR 488-90. Moreover, Dickinson testified that she instructed everyone to stamp the back of the document because she wanted to keep the integrity of the information on the front. AR 418. Yet, one document (AR 1117) was clearly stamped on the front page and not initialed. Pet. Op. Br. at 10-11.

Petitioners conclude that it is understandable that a civil servant of over 12 years takes pride in her work and her ability to manage staff and documentation, even in the midst of a stressful and unprecedented day. While Dickinson did her best and does not want to admit to a mistake on her watch, the circumstances show misplacement of Petitioners’ packet. Petitioners conclude that they registered timely with the City Clerk in 2007. Pet. Op. Br. at 11; Reply at 4-5.

Petitioners’ argument suffers from a fundamental defect, which is that the Hearing Officer’s decision is subject to review for substantial evidence. “On substantial evidence review, we do not ‘weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.’” Doe v. Regents of University of California, (“Doe”) (2016) 5 Cal.App.5th 1055, 1073. The court is required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. Minelian v. Manzella, (1989) 215 Cal.App.3d 457, 463. Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc., (1994) 28 Cal.App.4th 613, 622), and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact (In re Marriage of Mix, (1975) 14 Cal.3d 604, 614. Doe, supra, 5 Cal.App.5th at 1074.

In this case, the Hearing Officer found Dickenson’s testimony to be compelling (AR 373) and Kent’s testimony not credible (AR 373). This fact is dispositive; Dickenson’s credible testimony alone is substantial evidence.

Moreover, the court agrees with the Hearing Officer’s findings. Dickinson testified that the Department has no record that Petitioners registered on November 13, 2007 in compliance with the ICO. AR 419. Dickinson also testified that Petitioners’ 2007 Information Form is non-compliant with the City Clerk’s practices.

Whenever the City Clerk’s office receives documents, it tries to maintain the document’s integrity. AR 418. The common practice is to stamp the front of the page. AR 431. For the ICO applications, Dickinson instructed staff to stamp the back of the document’s first page to preserve the information on the front. AR 418-19, 429. Whoever stamped it would then initial it. AR 418. Dickinson followed this policy and reviewed every ICO application that was stamped to confirm compliance. AR 418, 431.

Petitioners’ 2007 Information Form does not conform with the City Clerk’s procedure because the “Received City Clerk” Stamp is located on the top of the front, obfuscating the title of the document, and there are no City Clerk employee initials. AR 11. Of course, Petitioners are correct that the City Clerk could have made a mistake, particularly on that chaotic day. It is possible that a City Clerk employee stamped Petitioners’ 2007 Information Form in the wrong place. Petitioners presented one form – which is a Conditional Receipt Form, not a 2011 Information Form – that was stamped on the side of the front page without initials. AR 1117.

Yet, Dickinson’s conclusion that Petitioners’ non-compliant form was never filed with the City Clerk’s office on November 13, 2007 is supported by the incredible nature of Kent’s testimony. Kent testified that he stood in line and submitted the 2007 Information Form packet held together by a paper clip to the employee at the City Clerk’s office window. AR 495-96. After the City Clerk employee stamped his packet, he asked if he could make a copy before the employee took it away. AR 497. At that point, he was four or five places behind the front of the line. AR 501. He had someone hold his place while he went “down the block” to make a copy for his own records. AR 498, 500.

This testimony is simply not believable. First and foremost, the City Clerk would not have allowed Kent to take the stamped original away from the window for any period, let alone an unknown timeframe while Kent “went down the block” to copy it. As Dickinson testified, once the City Clerk stamps a document, that document is in the protective custody and ownership of the City Clerk. AR 426, 502. The stamped document is put in a box and not returned to the applicant. AR 502-03. The City Clerk does not have time to give documents back to the applicant and track their whereabouts (AR 503), and it would never stamp a document it receives and return a copy to the applicant. AR 426-27, 503.

Second, Kent could not remember if he took the entire paper-clipped packet and copied all the attachments. Nor could he remember how far down the block he went to make the copy. AR 499. Admittedly, his testimony took place years after the event, but it is odd that he did not know where he went to copy the document. It also is significant whether he copied the entire packet. If he copied the entire packet, it reasonably should have taken longer than 17 minutes to leave the Clerk’s office, go down the block, copy the packet, and return.[6] If he did not copy the entire packet, then he would be relying on the City Clerk to hold the attachments so that he could copy only the cover page, which is highly unlikely.

Third, Kent admits that there was a long line of applicants and a press for time. Yet, he claims that an applicant agreed to hold his place in line. What applicant standing in line would agree to hold Kent’s place so that he could go down the block, copy the document, and come back? It would take more than belief in a good Samaritan for that to occur.

Petitioners argue Dickinson’s credibility. They contend that she contradicted herself about the protocol at the City Clerk’s office for accepting the packets on November 13, 2007. She testified that, because of the overwhelming volume of ICO packets, she “didn’t have that opportunity to review it and reject [the packets] right then and there because we were trying to at least have people make the deadline.” AR 417–18. She later testified that she would have rejected Petitioners’ packet on November 13, 2007 because a copy of a lease in the filed packet read “MHR” instead of “TMHR”, and she “would have returned the packet, the whole packet to [Kent].” AR 437–38. Petitioners argue that Dickinson’s inconsistent testimony calls into question her recollection of the protocol at place at the City Clerk’s office on November 13, 2007.

There is no inconsistency in Dickenson’s testimony. She testified that the process required the City Clerk to review the ICO packet when it came in. If anything was missing, the packet would be immediately returned and not accepted. AR 416. Because of the large number of applicants on November 13, 2007, she and her staff member did not have enough time to go through every packet and accept or reject it at the moment of filing. AR 417. When it got to the point where she could no longer keep up, which was around 4:15 p.m., she just stamped them all as received. AR 417, 503. For this purpose, she drafted a Conditional Receipt Form. AR 502. Although the City Clerk’s office “accepted” the packets on that date, she let the applicants know that she would return the packet if it was missing documents. AR 417. Thus, Dickenson’s testimony that, if it was properly filed, she would have returned Kent’s packet because the lease stated the wrong tenant necessarily would have occurred after a subsequent review in the days following the packet’s receipt on November 13, 2007.

Petitioners argue that the stamp itself is substantial evidence of Petitioners’ filing in 2007. The purpose of a citizen obtaining a conformed stamped copy from an agency is to protect the citizen from injustice when the agency loses or fails to process the document. The only way the citizen can prove that the document was submitted is through a conformed-stamped document. The crucial information is contained on the stamp itself which identifies the City Clerk, the date, and time. The City does not dispute the authenticity of the City Clerk’s date and time stamp on Petitioners’ 2007 Information Form. There is no evidence that Petitioners stole the stamp machine from the City Clerk or broke into the City Clerk’s office after hours to use it. There also is no evidence that Petitioners forged the City Clerk’s stamp on to their document. Thus, there is no plausible explanation how the document was stamped at 4:43 p.m. if it did not occur inside the City Clerk’s office with its stamp machine. Reply at 3-4.

This is Petitioners’ best argument. But the question is not whether Petitioners have substantial evidence that their 2007 Information Form was timely stamped, it is whether the Hearing Officer’s decision is supported by substantial evidence. There are possibilities of forgery, misuse of the City Clerk stamp, or perhaps filing at a satellite City office. The Department did not have the burden to show that any of these events occurred. “[I]t is presumed that the agency regularly performed its official duty.” Evid. Code §664; Desmond v. County of Contra Costa, (1993) 21 Cal.App.4th 330, 335. Petitioners’ stamped document does not overcome this presumption to negate the Department’s evidence.

Finally, the validity of Petitioners’ 2007 Information Form is undermined by TMHR’s admissions. First, on May 4, 2009, TMHR filed a Hardship Exemption Application explaining that it had to vacate its premises because the landlord received a letter from the DEA before the ICO took effect. AR 1883, 1886, 1897. Dickinson testified that the Hardship Exemption Application existed for a collective that could not meet the requirements of the ICO. AR 424. By definition, TMHR’s Hardship Exemption Application indicates that it had not properly registered per the ICO. AR 424-25.

Second, on TMHR’s 2011 Intent to Register, Kent answered “no” to the following question: “Did the collective register with the city clerk’s office on or before November 13, 2020 (sic.) in accordance with the city’s Interim Control Ordinance number 179027?” AR 426, AR1890. As the Hearing Officer stated: “[T]his document contradicts Mr. Kent’s sworn testimony at the hearing where he testified that he did register with the City Clerk’s Office at 4:45 p.m. on November 13, 2007.” AR 374.

Petitioners’ opening brief claimed that Kent checked “no” on 2011 Intent to Register by mistake. This claim is unsupported by any testimony or documentary evidence. Pet. Op. Br. at 4. In reply, Petitioners argue that the definition of an EMMD focuses on whether the November 13, 2007 Information Form was timely submitted to the City Clerk. See People v. Toluca Lake, (2017) 15 Cal.App.5^th Supp. 18. Reply at 5.[7] The City’s hardship exemption process was unrelated to the required November 13, 2007 registration (AR 482-83), and TMHR’s hardship exemption was not an issue on appeal. AR 371-74. The Hearing Officer also should not have considered the 2011 Intent to Register filed by Kent because it was based upon a temporary urgency ordinance which expired and never became law; the temporary ordinance was replaced by Prop D in 2013. AR 1155-66, 1184-86. Reply at 5-6.

Petitioners’ arguments are spurious. Both the Hardship Exemption Application and the 2011 Intent to Register are admissions that evidence TMHR’s knowledge and intent. As Dickinson testified, the May 4, 2009 Hardship Exemption Application was unnecessary if TMHR had properly registered. Its mere existence indicates that HMHR did not believe that it had properly registered a 2007 Information Form per the ICO. AR 424-25. Kent’s answer “no” on the 2011 Intent to Register is even more compelling because it is a direct admission that TMHR did not timely file a 2007 Information Form. These documents strongly support the Hearing Officer’s decision.

The Petition is denied. The Department’s counsel is ordered to prepare a proposed judgment, serve it on Petitioners’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 23, 2023 at 9:30 a.m.

[1] Although the parties served their briefs according to a schedule upon which they agreed, they did not file their briefs until the week before the hearing. Counsel for both parties is advised to file their briefs at the time they are served in future proceedings. Additionally, while counsel represented at the August 4, 2022 trial setting conference that the administrative record was “about 800 pages”, it actually is 3263 pages. Petitioner subsequently prepared and lodged a Joint Appendix at the court’s direction.

[2] The City requests judicial notice of: (1) Article 4 of Chapter X of the Los Angeles Municipal Code (“LAMC”) (RJN Ex. A). The request is granted. Evid. Code §452(b).

[3] Because they were so busy that day, but she forgot to save the form on her computer. AR 502.

[4] As the opposition states that it is filed by the Department, not the City, the court will refer to the Department as the opposing party.

[5] Dickinson testified that only she and one other staff member handled the filing process. AR 416.

[6] Petitioners’ form is time stamped at 4:43 p.m. Even if the City Clerk was still stamping 2007 Information Form’s at 5:12 p.m. (AR 563), this still is not sufficient time.

[7] In Toluca Lake, supra, 15 Cal. App. 5th Supp. at 18, the court addressed whether the doctrine of substantial compliance applies to the limited immunity from prosecution provision of LAMC section 45.19.6.3. Id. at 25. A defendant is barred from relying on the limited immunity provision if (a) the medical marijuana business (“MMB”) was not in operation since 2007 as evidenced by a specified business tax registration or tax exemption certificate, (b) the MMB did not register with the City Clerk in 2007 in accord with the ICO, (c) the MMB failed to obtain a specified business tax registration in 2011 or 2012, and renew the registration, and (d) if marijuana in the MMB is visible from the exterior of the business. Id at 26.

The court noted that the critical inquiry for the relevant second basis of barred immunity is whether the policies underlying the requirement to register with the City Clerk are served where registration is made elsewhere. Id. at 27. The court concluded that the policies are not served unless the registration by November 13, 2007 was filed with the City Clerk. Id. at 27. The purpose of the requirement is to ensure that the City received the documents so it can determine which MMBs were open and operating in compliance with the law as of September 14, 2007. Id. This policy is not served if an MMB filed at a satellite City office. Id.