Judge: James C. Chalfant, Case: 22STCP01098, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCP01098    Hearing Date: February 7, 2023    Dept: 85

            Petitioner 1516 Hobart Investments (“Hobart”) seeks a writ of mandate to set aside the decision of the Housing & Community Investment Department’s (“HCIDLA”) Rent Adjustment Commission (“RAC”) appeals board.

            The court has read and considered the opposition’s notice of non-receipt of moving papers and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Hobart filed the Petition on March 22, 2022, alleging claims for (1) administrative mandate, (2) violation of 43 U.S.C. section 1983, and (3) violation of procedural due process.  The Petition alleges in pertinent part as follows.

            On November 20, 2019, the Housing & Community Investment Department (“HCIDLA”) issued a notice to comply regarding alleged housing code violations in one rental unit at the property at 1516 Hobart Blvd., Los Angeles, CA 90027 (“Property”).  Hobart tried to assess the truth of the allegations and remediate any violations, but the tenant would not let management into the rental unit.  Hobart filed an unlawful detainer action which is still pending.

            On May 21, 2021, HCIDLA issued a Notice of General Manager's Hearing and Notice of Acceptance into REAP, a punitive program that would deprive Hobart of many rights as a landlord.  The notice set a General Manager hearing for June 23, 2021.  Hobart never saw the notice and did not attend the hearing.

            The General Manager continued the hearing.  On September 3, 2021, HCIDLA issued a notice for the continued General Manager hearing on October 13, 2021.  The declaration of mailing proof of service says that service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing in the affidavit.  The date of service on the declaration was September 3, 2021 and the postage date was September 7, 2021.  Hobart received notice of the continued General Manager hearing on October 19, 2021.

            On October 20, 2021, the General Manager affirmed the REAP penalty.  Hobart appealed the decision on November 4, 2021 and argued that (1) it did not receive notice until after the continued General Manager hearing, (2) the postage meter date for service of the second hearing notice was four days after the date of service on the declaration, and (3) Hobart had tried to comply with the notice to comply but the tenant would not let it do so.  The RAC appeals board heard the appeal on December 16, 2021 and dismissed it the next day.

            Hobart seeks a writ of mandate vacating the REAP order and the RAC decision, as well as attorney’s fees and costs.

            2. Course of Proceedings

            On April 1, 2022, Hobart served the City with the Petition and summons.

            On May 2, 2022, the City filed an Answer.

            B. Analysis

            A memorandum of points and authorities is required for a noticed mandamus motion.  See CCP §1094; CRC 3.1113(a).  The absence of a memorandum is an admission that the motion is not meritorious and may be denied.  CRC 3.1113(a).

A petitioner also has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision.  State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749.  The “appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.”  Bullock v. Philip Morris USA, Inc., (2008) 159 Cal.App.4th 655, 685.

            Petitioner failed to file an opening brief pursuant to the schedule stipulated to by the parties.  The City presents evidence that Hobart agreed to file and serve it by December 9, 2022.  Perry Decl., ¶3, Ex. B.  Hobart has not asked for an extension.  Perry Decl., ¶5.  The City has confirmed that Hobart never served it with an opening brief.  Perry Decl., ¶4, Ex. C. 

The Petition is denied.  The City’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner’s 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 March 2, 2023 at 9:30 a.m.