Judge James C. Chalfant, Case Number: 23STCP00605, Date: 2024-05-09 Tentative Ruling

Petitioner Lin Ouyang (“Ouyang”) seeks a writ of administrative mandamus compelling Respondents Osama Younan, General Manager, Los Angeles Department of Building and Safety, City of Los Angeles (“LADBS”), and Ann Sewill, General Manager, Department Housing, City of Angeles (“LAHD”) to set aside the LAHD General Manager’s decision approving a Tenant Habitability Plan (“THP”). Petitioner Ouyang separately moves to correct/augment the administrative record.

The court has read and considered the moving papers, oppositions, and replies, and renders the following tentative decision.

Petitioner Ouyang commenced this proceeding on February 27, 2023. The operative pleading is the First Amended Petition (“FAP”), filed on December 13, 2023, which alleges a cause of action for administrative mandamus. The FAP alleges in pertinent part as follows.

Ouyang is a tenant of a rental property located at 1124 West Adams Blvd., Los Angeles, CA 90007 (“Property”).

Real Party-in-Interest, 2621 South Hoover Street Holdings, LLC (“Landlord”) is the owner of the Property.

On or around September 15, 2022, LADBS issued to Landlord a permit (No. 21016-20000-48357) to do Primary Renovation Work on the Property. LAHD approved the Landlord’s application (No. THPP002584) to move Ouyang to temporary housing during the construction.

Respondents violated Los Angeles County Covid-19 Tenant Protection Resolution (“Resolution” or (“Eviction Moratorium”) section VI.A.2 (No Fault Termination of Tenancy or Occupancy) by issuing the permit for substantial remodeling that requires termination of occupancy.

Landlord entered into a written agreement to provide living and recreation areas for Ouyang to use. Landlord will remove access to those areas through construction causing Ouyang to suffer irreparable injury if not enjoined. Ouyang is a person with disabilities relying on those areas and removing the areas constitutes an eviction that is protected by Los Angeles Municipal Code (“LAMC”) section 151.09 of the Rent Stabilization Ordinance (“RSO”) of the City of Los Angeles (“City”), for failure to provide reasonable accommodations.

Ouyang timely appealed the decision of LADBS and LAHD. However, the General Manager’s hearing officer found that Landlord obtained the permit appropriately. The City denied Ouyang a fair hearing because the hearing officer erroneously failed to consider Ouyang’s entire written evidence in making his decision and instructed Ouyang not to send private documents in the exhibits. The City and Landlord did not notify Ouyang of her right under the Resolution when they notified her to vacate her rental unit.

Ouyang served Respondents by personal service on June 28, 2023 and July 11, 2023.

On December 11, 2023, the parties filed a stipulation and order allowing for leave to file amended pleadings.

On December 13, 2023, Ouyang filed the FAP and Respondents filed their Answer to the FAP.

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 in 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). In other cases, the substantial evidence test applies. Mann v. Department of Motor Vehicles, (1999) 76 Cal.App.4th 312, 320; Clerici v. Department of Motor Vehicles, (1990) 224 Cal.App.3d 1016, 1023. Ouyang argues that the standard of review for the THP’s compliance is independent review (Reply at 10), but she is wrong. There is no vested property right in temporary relocation assistance and the standard of review is substantial evidence. See Smith v. County of Los Angeles, (1989) 211 Cal.App.3d 188, 197 (discretionary determinations involving purely economic interests do not implicate a fundamental vested right).

“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 You 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.

The Tenant Habitability Program is an administrative program established by the City to balance the need to facilitate and encourage property owners’ reinvestment in their properties through the performance of Primary Renovation Work, which work typically involves replacement or substantial modification of major building systems and/or the abatement of hazardous materials, while simultaneously ensuring that tenants at the properties are not subjected to either untenantable conditions during the renovation work or forced permanent displacement. Accordingly, the program requires landlords to either safeguard tenants so that they can safely remain at the property while renovations occur or that temporary relocation be made available to tenants whose tenantability at the property will be affected. LAMC §152.01.

Pursuant to LAMC section 152.03(A)(1), “[n]o landlord shall undertake Primary Renovation Work without first obtaining a permit, pursuant to Sections 91.106, 92.0129, 92.0132, 93.0201, 94.103, or 95.112.2 of this Code.” LAMC § 152.02(A)(1). “[LAHD] shall clear a landlord's application for a permit for Primary Renovation Work if both of the following conditions have been met: a. The landlord has submitted a Tenant Habitability Plan which, in accordance with Subsection C of this section, [LAHD] finds to adequately mitigate the impact of Primary Renovation Work and any Related Work upon affected tenants; and b. The landlord has submitted a declaration documenting service to affected tenants of both a Notice of Primary Renovation Work and a copy of the non-confidential portions of the Tenant Habitability Plan.” LAMC §152.03(A)(2); RAC Regulation §713.01.4.

At a minimum, the THP must: (1) identify the landlord, the general contractor responsible for the Primary Renovation Work, and any specialized contractor responsible for hazardous material abatement; (2) identify all affected tenants, including the current rent and the last rent increase for each such tenant; (3) describe the scope of work covering the Primary Renovation Work and any Related Work, including the specific work to be undertaken on all affected units and common areas, an estimate of the total project cost and time, and an estimate of the cost and time of renovation of each affected unit; (4) identify the impact of the Primary Renovation Work and Related Work on the habitability of each affected unit, including the impact severity and duration as it relates to noise, utility interruption, exposure to hazardous materials, interruption of fire safety systems, inaccessibility of all/portions of an affected unit, and disruption of tenant services; (5) identify all mitigation measures to be implemented to ensure that the tenants are not required to occupy an untenantable dwelling as defined by Civil Code section 1941.1 outside of the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, and are not exposed to hazardous materials; (6) identify the impact of the Primary Renovation Work and any Related Work on the personal property of all tenants of affected units; and (7) identify the mitigation measures to be implemented to secure and protect tenant property from foreseeable damage and/or loss. LAMC §152.03(B); RAC Regulations §713.02.

LAHD shall make a determination regarding the adequacy of the proposed THP within five days of submission. LAHD is required to accept any THP that meets the requirements under LAMC section 152.03(B) and which it determines, with reference to the standards set forth under Civil Code section 1941.1, will adequately mitigate the impacts of the Primary Renovation Work upon the tenants. While an accepted THP may allow for the temporary disruption of major systems during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, without requiring the relocation of affected tenants, the tenants should not be exposed at any time to toxic or hazardous materials. LAMC §152.03(C); RAC Regulations §713.03.l.

If the Primary Renovation Work will impact the tenantability of a rental unit for 30 days or more, any affected tenant will have the right to voluntarily terminate the tenancy in exchange for permanent relocation assistance pursuant to LAMC section 151.09(G). Further, if the Primary Renovation Work continues for 30 days longer than the projected completion date set forth under the THP, an affected tenant’s option to accept permanent relocation assistance shall be renewed. LAMC §152.05(A); RAC Regulations §715.00.

The owner shall indicate in the THP whether the temporary relocation of any affected tenant is necessary. LAHD may also, independently and in connection with its review of the THP, determine that temporary relocation assistance is necessary. Further, LAHD may also require, at any time, that temporary relocation assistance be provided to an affected tenant if it is determined that such is necessary to ensure the health and safety of the tenant. LAMC §152.06(A); RAC Regulations §716.00.

Either an affected tenant or the landlord may appeal LAHD’s THP determination to a hearing officer. The appeal shall be filed within 15 days of service of the LAHD’s determination. The requested hearing shall then be held within 30 days of the filing of the appeal pursuant to the procedures set forth under LAMC section 151.07(A)(3) (for example, the hearing shall address any alleged error or abuse of discretion on the part of the LAHD and the parties may present documents, testimony, written declarations, or other pertinent evidence at the hearing). The hearing officer shall then issue a written decision within ten days of the hearing on the appeal. LAMC §152.03(C)(4); RAC Regulations §713.03.4.

Petitioner Ouyang moves to correct/augment the administrative record by (1) removing Exhibit 23 (SAR 1-26), (2) adding supporting letters from Ouyang’s medical provider, and (3) adding evidence to countervail the factual allegation raised in Landlord’s answer.[2]

CCP section 1094.5 states in pertinent part, “[w]here the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.” CCP §1094.5(e).

Ouyang argues that Exhibit 23 (SAR 1-26) should be removed from the record because she filed it as an objection to Landlord’s evidence on November 1, 2022, after the October 27, 2022 deadline for evidence to be submitted. Mot. at 6. The LAHD clerk informed Ouyang that the submission was untimely, that it would be up to the Hearing Officer whether to consider it, and subsequently that the objections were rebuttal evidence that should be presented at the hearing. Ouyang Decl., ¶3, Ex. 2. The Hearing Officer noted receipt of the objections totaling 26 pages, stating that “I’ll take the testimony and the documentary evidence into consideration.” AR 165-66. He also referred to the 26-page objections in his decision. AR 116. But he did not include the objections in his evidence log. AR 114. Mot. at 6-7.

This argument is frivolous. Ouyang submitted documents to the Hearing Officer. Whether or not they were considered does not affect whether they should be in the record. Additionally, the Hearing Officer stated that he did consider them. AR 116, 165-66. The motion is denied for Exhibit 23.

Ouyang argues that supporting letters from her medical provider should be added to the record because they are relevant to her claim of denial of reasonable accommodations due to her disability. Mot. at 11. Ouyang fails to meet the CCP section 1094.5(e) test that the evidence must be relevant and could not have been produced at the hearing in the exercise of reasonable diligence or was improperly excluded at the hearing. Assuming they are relevant to a material issue (see Opp. at 6-7), Ouyang fails to show that the letters, which are dated after the November 3, 2022 hearing, could not have been presented in the exercise of due diligence. Her arguments concerning her need for confidentiality and difficulty making medical appointments do not suffice. Ouyang Decl., ¶7. The motion is denied for the medical provider letters.

Finally, Ouyang seeks to present facts concerning her coerced relocation to rebut Real Party’s claim of mootness. Ouyang Decl., ¶¶ 10-13. These facts are relevant and arose after the November 3 hearing and could not have been presented in the exercise of due diligence. The motion is granted for this evidence.

In sum, the motion to correct/augment is granted for facts concerning Ouyang’s coerced relocation to rebut Real Party’s claim of mootness (Ouyang Decl., ¶¶ 10-13) and otherwise is denied.

On or about September 14, 2022, Landlord filed a THP with LAHD. AR 1-8. The THP stated that Landlord would convert the Property, a 14,820 sq. ft., 26-unit dormitory, into a 31-unit and two guest room apartment building. AR 1. The THP stated that construction would start November 22, 2022, and it would require current tenants to move to temporary housing. AR 2.

On September 14, 2022, LAHD approved the THP. AR 23. Landlord served the THP on affected tenants.

On September 28, 2022, Ouyang, tenant in unit 30, filed an appeal of the THP pursuant to LAMC section 152.03.D.6. AR 24-45. Ouyang raised the following issues: (1) Landlord is breaching her lease by removing the majority of the common areas she is entitled to use; (2) Landlord is increasing her rent per square foot (“sq. ft.”) by significantly reducing her living space; (3) Landlord is making her housing untenable by eliminating common areas where she conducts her daily activities; (4) the THP fails to describe any measures to protect her belongings from damage and mail from loss; (5) Landlord failed to provide temporary housing with comparable service and failed to compensate the loss of the service; and (6) Landlord failed to make a reasonable accommodation for her disabilities. AR 25.

On October 5, 2022, the City issued a notice of a General Manager’s hearing. AR 46-93. In the notice, LAHD consolidated Ouyang’s first three claims into two claims: (1) Landlord’s removal of access to common areas that Ouyang is entitled to use per her lease and (2) Landlord is increasing her rent per sq. ft. and decreasing her living space in violation of the RSO. AR 46. The notice consolidated claims four and five into one claim: (3) Landlord is failing to provide temporary housing and any accommodation for Ouyang’s disabilities. AR 46. The last claim (4) was the THP’s failure to protect Ouyang’s belongings from damage and/or theft. AR 46.

On October 6, 2022, LADBS issued a permit to Landlord to convert the Property into a 29- unit and five guest room apartment building. AR 94-95. LAHD did not issue a THP clearance to LADBS for the construction permit. See AR 187-89; see also AR 331 (LAHD’s log shows no issuance of clearance to LADBS).

On October 27, 2022, both Ouyang and Landlord submitted documentary evidence for consideration at the appeal hearing. AR 236-300 (Ouyang), 301-28 (Landlord). LAHD’s clerk, Pablo Tiburcio (“Tiburcio”) forwarded this to Hearing Officer Andre Brown (“Hearing Officer”). AR 329-30. LAHD senior housing inspector Michael Soto (“Soto”) submitted a case summary. AR 234-35.

Ouyang submitted a 26-page “Objection” to Landlord’s evidence. SAR 1–26. The LAHD clerk informed Ouyang that the submission was untimely, that it would be up to the hearing officer whether to consider it, and subsequently that the objections were rebuttal evidence that should be presented at the hearing. Ouyang Decl., ¶3, Ex. 2.

The Hearing Officer noted receipt of the Objections totaling 26 pages, stating that “I’ll take the testimony and the documentary evidence into consideration.” AR 165-66. He also referred to the 26-page Objections in his decision. AR 116. He did not include the Objections in his evidence log. AR 114.

On November 3, 2022, the Hearing Officer held the General Manager hearing telephonically. AR 113. The witnesses were Soto, Ouyang,[3] Landlord’s representatives Steve Furst (“Furst”) and Michael Nigosian (“Nigosian”), tenant in Unit 35 Xiaoli Yu (“Yu”) AR 113.

LAHD Inspector Soto summarized his case summary’s scope of work and the accepted THP. AR 131. He described the basis for Ouyang’s appeal as removal of access to common areas, increase of rent by square footage, concerns over protection of personal belongings, and failure to provide comparable temporary housing. AR 132. The subject of the hearing is to determine if the THP is adequate and reasonable under LAMC section 152.03B. The THP ordinance provides assurance that the tenant will have access to a tenantable unit. AR 132. Removal of common areas and square footage rent increase is addressed by RAC Regulations section 413.2, which permits a rent reduction for a specific tenant based on evidence submitted. AR 132. The THP process is not an appropriate venue for those concerns. AR 132. The THP provides that Landlord will cover all expenses to safeguard and pack and unpack tenant personal belongings. AR 133. The proposed temporary housing unit meets all requirements in the THP ordinance. It is within the required distance from the existing unit and LAHD’s inspection of the comparable unit verified that it is comparable or better than Ouyang’s unit. AR 133. Inspector Soto recommended that the approval of the THP be upheld. AR 133.

Ouyang testified that Soto did not address her requests for reasonable accommodation for disability, even though the Landlord knew of her disability, and she needed additional time to move out because of her disability. AR 134, 136-38.[4] She explained that she had doctor’s documents available but did not know how to submit them confidentially. AR 139. The Hearing Officer responded that she simply could redact personal identifying information. AR 139. Ouyang added that the last time she talked to her doctor was in October and she had not had the time to get an attorney involved and the paperwork done. AR 139-40.

Ouyang testified: “I think the most important thing is that the THP unit or the owner of the property only limited their consideration to my room” and failed to take into account the storage assigned to her for her exclusive use, and storage rooms at the Property shared among the tenants.” AR 140–41. Landlord’s renovation would change the configuration of the building (affecting the size of the common areas, parking, and storage areas), impacting the storage assigned to her for exclusive use and storage rooms shared among the tenants. Her unit at the Property also was more secure than the proposed temporary unit as a USC security guard operates nearby the Property. AR 135, 138.

Furst, on behalf of the Landlord, testified that the Landlord is completely renovating the building and it is unreasonable for tenants to stay during the process. AR 143. Landlord had worked with LAHD to ensure the THP covered the cost of tenants packing, move out, repacking, and moving back in. AR 144, 148. Ouyang’s lease does not entitle her to any storage in common spaces or the janitor’s closet she refers to in her rebuttal. AR 144. It does not include kitchen, bathroom parking or anything except her unit. AR 144.

Ouyang had not made, prior to her testimony at the hearing, any reference to her disability. AR 145. Landlord remained willing to consider specific disability concerns, but there had been no request by Ouyang for a reasonable accommodation request with any specificity. AR 145. Although she was now requesting an extra 30 days, Landlord felt the THP’s 60 days was sufficient. AR 145.

Furst understood that Ouyang’s contention about a RSO violation and rent increase cannot be presented in this forum. AR 146. He nonetheless responded that her unit at the Property is 100 sq. ft. AR 145. While some of the common areas of the Property would be eliminated by the renovation so new units can be constructed, Ouyang’s contention that she leased “1/26” of the building (e.g., common areas and storage) is incorrect because she is not entitled to common spaces. AR 146. The temporary unit would be provided to Ouyang with much larger square footage than her unit at the Property and it also provides storage space that her unit does not. AR 155-56. Landlord agreed to pay the tenants’ entire rent at the temporary relocation unit even though it did not have to do so. AR 147. It was not clear to Furst that USC’s crossing guard service operates at the temporary unit location, but that is a service not offered by Landlord and is not part of the lease. AR 150.

Yu, a tenant in unit 35 of the Property, testified about the importance of the security provided by USC security guards who operate in the vicinity of the Property. AR 152.

Nigosian confirmed, on behalf of the Landlord, that the temporary unit identified in the THP was within an area that USC security guards patrolled. AR 156–57.[5]

On November 30, 2022, the Hearing Officer issued his General Manager’s decision. AR 115-21. The Hearing Officer set forth the facts concerning Landlord’s submission of the THP and LAHD’s acceptance of it. AR 115. Ouyang’s appeal was based in part on (1) Landlord’s removal of access to common areas that Ouyang is entitled to use, which has increased the rent of her unit, (2) Landlord’s failure to provide temporary housing comparable to her unit, and (3) the THP’s failure to protect Ouyang’s belongings from damage and/or theft. AR 116.

The Hearing Officer summarized the testimony and evidence presented. AR 116-17. In doing so, the Hearing Officer stated: “Ouyang emphasized that she had submitted a written summary of objections to the THP for consideration by the Hearing Officer and pointed out there are many contradictions and ambiguities in the THP application.” AR 116.

The Hearing Officer accepted the THP. AR 119. He reiterated that Ouyang had emphasized that she had submitted a written summary of objections to the THP and pointed out its many contradictions and ambiguities. AR 116. Ouyang further contended that the Landlord’s assertion was wrong that she never made them aware of her disability and that she is not entitled to storage space under her lease. AR 119.

“Although her testimony was credible, [Ouyang] failed to show by a preponderance of the evidence that [LAHD] committed an error or abuse of discretion in approving the THP. In consideration of the aforementioned facts, there is no legal justification delaying the start of this project. The evidence shows that the required permits were properly obtained and the temporary unit is comparable pursuant to RAC Regulation 716.0 et seq.” AR 120. Thus, Landlord may commence with the Primary Renovation work as described in the accepted THP. AR 120.

Petitioner Ouyang seeks a writ of administrative mandamus compelling Respondents (hereinafter, the “City”) to set aside its decision affirming the Hearing Officer’s decision approving the THP. Ouyang raises three issues: (a) the Hearing Officer’s decision is void as a violation of the County’s COVID Resolution; (b) the permit issued by LADBS is invalid without a clearance from LAHD; and (c) she was denied a fair hearing.[6]

“Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Commission, (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509. "The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief." Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541.

A court should not dismiss a case as moot if a substantial issue remains. Terry v. Civil Serv. Comm’n, (1952) 108 Cal. App. 2d 861. A case is not moot where, despite the happening of a subsequent event, there remain material questions for the court’s determination that impact a party’s future and contingent legal rights. Eye Dog Foundation, supra, 67 Cal.3d at 541. In other words, a case is moot only where the disposition of the case is “a matter of indifference to the parties” -- where disposition of the case will neither benefit the plaintiff nor harm the defendant. Turner v. Markham, (1909) 156 Cal. 68, 69.

Ouyang presents extra-record evidence as follows. On January 12, 2023, Ouyang’s representative sent a letter informing Landlord that the permit was issued illegally in violation of the Resolution. Ouyang Decl. ¶9, Ex. 10. The next day, Landlord started the construction and pulled down the walls, which created an untenantable condition and harmed Ouyang. AR 4; Ouyang Decl. ¶¶ 10, 11, Ex. 11, 12. Ouyang got panic attacks, felt dizzy with blurred vision, and had chest pain. Ouyang Decl. ¶11. Under these circumstances, she signed paperwork agreeing to temporarily relocate and move back to her current unit upon completion of the remodeling work. Ouyang Decl. ¶¶ 10-12, Ex. 11 (pictures of construction), Ex. 12 (emails with Landlord), Ex. 13 (temporary relocation agreement).

The temporary unit proved to be 100 square feet short of the 600 square foot size of Ouyang’s current unit. Ouyang Decl. ¶12. After staying in the inadequate unit for about three months, Ouyang developed reflux and ended up in Urgent Care. Ouyang Decl. ¶13, Ex. 14 (Urgent Care visit summary). Housing Right Center helped Ouyang get the rest of the required 100 square feet of space from Landlord. Ouyang Decl. ¶14.[7]

Ouyang contends that her agreement to relocate was induced under duress by physical compulsion and is void. Restatement of Contract (2^nd) §74. It also is void also for lack of mutuality of obligations and consideration as her occupancy was protected under the Resolution and the agreement waiving the right under the Resolution is illegal in violation of Section XVII of the Resolution as contrary to public policy. Yoo v. Jho, (2007) 147 Cal. App. 4th 1249. Pet. Op. Br. at 10-11.

The City argues that Ouyang admits that she has moved out of her unit and cannot not move back in until it is habitable again. There would be no point reversing or remanding the Hearing Officer’s decision when Ouyang would not be able to move back into her unit until construction is completed – the very point at which the THP expires. As such, there is no effective relief available. Opp. at 8-9.

Ouyang replies that the case is not moot. Landlord is removing majority of the existing housing accommodations of the Property through Primary Renovation Work, and she, facing forced permanent displacement from her unit, has a continuing interest in the relief of vacating the permit, setting aside the decision, a rehearing to determine the issue of her right to reoccupy her unit under the existing terms of tenancy upon completion of the Primary Renovation Work, and ultimately that Landlord rectify its construction. Reply at 1.

Ouyang argues that she did not voluntarily elect to temporarily vacate her unit but rather was forced to do so. Reply at 3. Even though the Landlord has started construction, the walls, kitchens, bathrooms, and other housing accommodations that were removed can be restored. In other words, even if the construction work is completed, the challenge to the permit and the decision is not mooted. Woodward Park Homeowners Ass'n v. Garreks, Inc., (2000) 77 Cal.App.4th 880, 888-89 (challenge to construction of car wash without EIR not mooted by completion of the project because court could modify the project to mitigate adverse impacts or even order car wash torn down). Landlord has been aware at all stages after Ouyang’s appeal that she has questioned its right to remove the existing housing accommodations and has proceeded at its own risk when its actions was questioned. Reply at 2.

The purpose of the THP is to adequately mitigate the impact of Primary Renovation Work and any Related Work upon affected tenants. LAMC §152.03(A)(2); RAC Regulation §713.01.4. Ouyang’s claims on appeal were: (1) Landord is removing her access to common areas that she is entitled to use per her lease; (2) Landlord is effectively increasing her rent per sq. ft. and decreasing her living space in violation of the RSO; (3) Landlord is failing to provide comparable temporary housing and any accommodation for Ouyang’s disabilities; and (4) the THP fails to protect Ouyang’s belongings from damage and/or theft. AR 46.

The case is not moot if there is any aspect of the THP still in effect. Plainly, Ouyang’s claim concerning Landlord’s failure to provide temporary housing and a reasonable accommodation for her disabilities by extending the time for her to temporarily relocate an additional 30 days is moot. Ouyang has temporarily relocated and, at least now, her temporary accommodations comply with the THP. Her argument that she was compelled by physical circumstances to relocate does not affect this point.

Soto testified that the THP ordinance provides assurance that the tenant will have access to a tenantable unit. AR 132. Removal of common areas and square footage rent increase is addressed by RAC Regulation 413.2, which permits a rent reduction for a specific tenant based on evidence submitted, and the THP process is not an appropriate venue for those concerns. AR 132. This undisputed testimony means that Ouyang’s claim concerning loss of common area use and increased effective rent for her unit upon return is not within the scope of Ouyang’s appeal, but it does not make the claims moot.

Last, Ouyang’s claim that the THP fails to protect her belongings from damage and/or theft is not mooted until her return to her unit at the Property.

Ouyang challenges the Hearing Officer’s decision as barred by the County’s Resolution. This is an issue of law reviewed by the court de novo.

Ouyang notes that, on March 4, 2020, in an effort to protect tenants in response to the serious health and economic impacts of the COVID-19 pandemic, the County’s Board of Supervisors proclaimed the Resolution. Pet. RJN Ex. 1, p. 1. Pursuant to the Resolution, LAHD’s authority to temporarily relocate tenants due to substantial remodeling was suspended by the Resolution: “A Tenant shall not be evicted where grounds for terminating the tenancy or occupancy is not based on any alleged fault by the Tenant…No-Fault termination of tenancy or occupancy also includes the intent to demolish or to substantially remodel the real property”. Ex. 1, p. 11. The City, which is an incorporated city within the County, is required to comply with the Resolution. Ex. 1, pp. 9-10. Pursuant to Section XVII of the Resolution, “Any waiver of rights under this Resolution shall be void as contrary to public policy”. Ex. 1, p. 23.

Ouyang argues that the language of the Eviction Moratorium is clear, there is no need for interpretation, and thus the effect must be given to its plain meaning. O'Brien v. Dudenhoeffer, (1993) 16 Cal.App.4th 327, 332. The use of word “shall” indicates that the prohibition on eviction is mandatory. RSL Funding, LLC v. Alford, (2015) 239 Cal. App. 4^th 741, 745 (“settled principles of statutory construction direct that “we ‘ordinarily’ construe …the word ‘shall’ as mandatory”). The Hearing Officer’s decision upholding approval of the THP that terminated Ouyang’s occupancy for substantial remodeling of the Property violated her tenant rights under section VI.A.2 of the Resolution. As a result, the Hearing Officer’s decision is void as contrary to public policy under section XVII of the Resolution. Pet. Op. Br. at 7.

Respondents correctly note (Opp. at 10) that Ouyang failed to raise this argument at the appeal hearing and thus it is waived. As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080. The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 291-93.

The exhaustion doctrine includes issue exhaustion as well as exhaustion of administrative remedies. The agency must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which it has jurisdiction to act before it is raised in a judicial forum. Hill RHF Housing Partners, L.P. v. City of Los Angeles, (2021), 12 Cal.5th 458, 479 (citation omitted). “Exhaustion requires ‘a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.’” City of San Jose v. Operating Engineeers Local Union No. 3, (2010) 49 Cal.4^th 597, 609 (citations omitted). “The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary.” Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4^th 377, 391. The exact issue raised in the lawsuit must have been presented to the administrative agency. Tahoe Vista Concerned Citizens v. County of Placer, (2000) 81 Cal.App.4^th 577, 594. Otherwise, a litigant could present narrow arguments or even omit them before the final administrative authority in hopes of obtaining a more favorable decision from a trial court. Id.

Ouyang replies that she has not waived the Eviction Moratorium issue because “[w]aiver is the intentional relinquishment of a known right with knowledge of the facts” (McDermott v. Superior Court, (1972) 6 Cal.3d 693, 698, n. 3), and nothing in the record shows that she knew about the Resolution’s grant of her right not to be temporarily relocated during the pandemic. A finding of waiver would violate the no waiver clause in the Resolution and be against public policy. Moreover, an objection that an administrative agency has proceeded without or in excess of its jurisdiction may be made at any time; the failure to object at the administrative hearing does not constitute a waiver. Gilliland v Medical Bd., (2001) 89 Cal. App. 4th 208, 219. Reply at 2-3.

Ouyang is incorrect. The failure to exhaust an issue at the administrative level is a waiver as a matter of law; no presentation of evidence that the petitioner knew about the issue is required. Ouyang’s waiver is not a waiver of her non-eviction right under Resolution section XVII but rather a waiver for failing to raise that issue. The waivers are not the same. The former is a substantive rule and the latter is procedural in nature. Although procedural, the failure to exhaust doctrine is important and considered jurisdictional.

Finally, there is nothing jurisdictional about the Resolution. It was a temporary measure imposed by the County Board of Supervisors. See Marquez v. Medical Board, (2010) 182 CalApp.4th 548, 557-58 (discussing the nature of a resolution). It imposes requirements but does not confer or withdraw jurisdiction.

Additionally, Ouyang is wrong on the merits of her Eviction Moratorium argument. The parties debate whether the Eviction Moratorium governed temporary relocations that did not result in the termination of a tenancy in addition to evictions that resulted in terminations of tenancy.[8] They also debate Ouyang’s voluntarily election to temporarily vacate her unit at the Property. Opp. at 10; Reply at 3-4.

But the simple fact is that the Hearing Officer’s decision did not evict Ouyang. It merely approved a THP providing for temporary relocation of tenants. Ouyang points to nothing in the Resolution preventing public agencies from performing their jobs, which for LAHD was approving the THP and for the Hearing Officer was hearing the THP appeal. In particular, Ouyang does not show that the Hearing Officer’s decision violated the Resolution simply because it was a step in favor of temporarily relocating the Property’s tenants. Ouyang’s real complaint about a violation of the Eviction Moratorium lies in LADBS’ issuance of a construction permit, which she agrees is a matter that was not within the Hearing Officer’s authority. See post. This led to her agreement to be temporarily relocated, which she contends was coerced by the construction. Those issues are not significant for the Hearing Officer’s decision.

3. The Permit’s Validity Without a Clearance from LAHD

First, she contends that the authority of LADBS to issue a permit for substantial remodeling that requires moving tenants out also was suspended by the Eviction Moratorium. Permitting LADBS to issue construction permits during the pandemic would move tenants out, contrary to the Resolution’s intent in the “No-Fault Termination of Tenancy or Occupancy” provision. It also would be contrary to the Resolution’s primary purpose, which is “to ensure that tenants stay housed during the pandemic, thereby minimizing the risk of uncontrolled spread of COVID-19”. Pet. RJN Ex. 1, pp. 5, 11. LADBS’ issuance of the permit violated section VI.A.2 of the Resolution and is void. See also LAMC §91.106.4.3.2 (“[A] permit or other document purporting to give authority to violate any law shall not be valid with respect thereto”). Pet. Op. Br. at 8.

The City responds that LADBS’s issuance of a building permit for the renovation was not illegal under the Eviction Moratorium. The issuance of a building permit is not a type of action that can unilaterally terminate a tenancy under the unlawful detainer laws. See CCP §1161 (termination of tenancy and unlawful detainer remedy is available in the event of (1) expiration of the lease, (2) non-payment of rent, (3) breach of lease other than non-payment, (4) committing nuisance or waste, (5) tenant’s voluntary termination of the lease). Opp. at 10. The court need not decide this issue because Ouyang cannot address the permit’s legality in this case, as she admits. See post.

Second, Ouyang contends that the permit issued by LADBS was invalid because it was issued without a clearance from LAHD. When LADBS determines that “the information on the application and plans is in conformance with…relevant code and ordinances”, it shall issue a permit. LAMC §91.106.4.1. Prior to issuing a permit for residential property subject to the THP ordinance, LADBS shall determine whether the work constitutes Primary Renovation Work. RAC Regulation §713.01. In making this determination, LADBS may use a questionnaire and rely on property data supplied by LAHD that identifies property subject to the ordinance. Id.

Under the Tenant Habitability Program, no landlord shall undertake Primary Renovation Work without obtaining a permit pursuant to inter alia, LAMC section 91.106. LAMC §152.03.A. LAHD shall clear a landlord's application for a permit for Primary Renovation Work if the landlord submits a THP which adequately mitigates the impact of Primary Renovation Work and any Related Work upon affected tenants and the tenants are properly notified. Id.

Ouyang argues that the scope of work described in Landlord’s permit is converting a dormitory into an apartment building (AR 94), which constitutes Primary Renovation Work as defined in RAC Regulations section 712.00. Thus, a THP clearance from LAHD was required before LADBS issued the permit. However, LADBS issued the permit without a clearance from LAHD. AR 187-89. Accordingly, the permit violates LAMC section 91.106.4.1, RAC Regulation section 713.01, and LAMC section152.03.A, and is invalid pursuant to LAMC section 91.106.4.3.2. Pet. Op. Br. at 8-9.

Third, Ouyang argues that there is no clearly defined procedure for a tenant to appeal a building permit issued to a landlord. Ouyang notes that the Hearing Officer lacked jurisdiction to decide whether “the required permits were properly obtained [from LADBS]”. AR 120. That is because LADBS, not LAHD, has the authority to enforce all ordinances and laws relating to the construction, alteration, or repair of buildings in the City. LAMC §22.20. Likewise, the Hearing Officer did not have the authority to vacate the permit even if he found it invalid. LAMC §22.601. LADBS has that sole authority. LAMC §91.104.2.4. Pet. Op. Br. at 9.

Ouyang filed a complaint with LADBS alleging that the permit violated the Resolution, the construction would deprive her of access to living spaces inseparable to her housing, Landlord started construction while she was in the unit, and the construction created an unsafe and unhealthy condition that harmed her. Ouyang requested LADBS to vacate the permit because it was issued without a THP clearance. These efforts were futile. Ouyang Decl. ¶16, Ex. 15. She contends that LADBS has a clear and present ministerial duty to ensure that a permit is in compliance with the laws but has failed to do so. Pet. Op. Br. at 11.

The City notes (Opp. at 11) that Ouyang failed to exhaust the issue whether LADBS issued a building permit before LAHD had cleared the THP because she failed to raise this argument at the hearing. Opp. at 11.

Ouyang replies that the City’s argument only establishes the officer’s authority to decide whether LAHD properly issues clearance for an owner’s application for a permit, not the issue she has raised that the Hearing Officer lacked authority to decide whether LADBS issues a permit properly pursuant to LAMC §91.106.4.1. Reply at 7. She argues that exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it. McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275. The rule of exhaustion of administrative remedies is inapplicable where the agency lacks authority to hear the complaint. Glendale City Employees’ Assn. v. city of Glendale, 15 Cal. 3d 328, 342-343. In this case, the City points to no procedure established by an ordinance or a rule for a tenant to appeal a permit issued to a landlord. Thus, there is no administrative remedy available for Ouyang to have Landlord’s illegal permit vacated (LAHD has no authority to vacate a permit obtained from LADBS). Accordingly, Ouyang is not required to raise the issue of illegally issued permit at the administrative hearing before seeking judicial review. Reply at 4-5.

Ouyang is mixing apples and oranges. The court agrees that the Hearing Officer had no authority to vacate a permit issued by LADBS. But the fact that Ouyang could not find an ordinance from which an appeal of that permit could be taken does not aid her. The FAP contains a single cause of action for administrative mandamus from the Hearing Officer’s decision. If she wished to challenge the permit, and if she is correct that there is no exhaustion requirement, then she should have made a traditional mandamus claim against LADBS pursuant to CCP section 15. LADBS is named as a Respondent, but the FAP contains no claim against it. The only claim is for administrative mandamus under CCP section 1094.5.

Ouyang can claim that the Hearing Officer failed to determine whether LADBS issued a building permit before LAHD had cleared the THP, but she failed to raise this issue at the hearing and it is waived.

The City also argues that the issue of LAHD clearance before LADBS issues a permit lacks merit. RAC Regulations section 713.01.4 states in part that “[LAHD] shall clear a landlord’s application for a building permit involving primary renovation work, in accordance with the procedures established by [LADBS]….” City RJN Ex. 2. Under RAC Regulations section 713.01.4, a hearing officer can determine whether a landlord obtained the permit in a manner consistent with THP regulations. LAHD approved the THP before LADBS issued the permit. The THP was approved by LAHD on September 14, 2022. AR 23 (letter from LAHD’s THP unit to the owner’s representative stating that Inspector Soto “has accepted the above referenced Tenant Habitability Plan.”. See also AR 119 (Finding no. 2). LADBS issued the permit on October 6, 2022, after LAHD’s approval. AR185–86. Landlord submitted a THP to LAHD and notified the tenants, including Ouyang, of the THP. See AR 118–19 (hearing officer’s findings 1-5). Consequently, LAHD approved the THP prior to LADBS’ issuance of the permit. Further, the THP provided a comparable unit for the tenant. Thus, substantial evidence supported the Hearing Officer’s findings concerning the permits. Opp. at 11-12.[9]

Ouyang replies that the City does not dispute that LADBS issued a permit for Primary Renovation Work without a clearance from LAHD. Yet, LAMC section 152.03.A.2 requires that, before LAHD clears a landlord's application for a permit for Primary Renovation Work, affected tenants must be notified of the THP and the Primary Renovation Work. The THP ordinance must be read in the light of that preamble and interpreted to achieve those ends, and it is clear from the terms of LAMC sections 152.03.A.2 and 152.03.C.4 (which concerns appeal) that LAHD cannot clear the landlord's application for the permit once a tenant appeals a THP until the hearing officer issues a written decision. Otherwise, the provision requiring a notice to affected tenants would direct an idle act. See Gogerty v. Coachella, 57 Cal. 2d 727, 732 (provisions requiring the securing of a specific report would direct an idle act if the report is not given fair and unbiased consideration). Therefore, LADBS’ issuance of the permit before the hearing officer issued his written decision on Ouyang’s appeal violated LAMC section 152.03.A. Reply at 5-6.

In sum, Ouyang cannot claim before the Hearing Officer or in this administrative mandamus case that LADBS improperly issued the permit and it must be set aside. As a result, the court need not decide whether the permit was illegally issued under the Eviction Moratorium. Ouyang could have claimed that the Hearing Officer failed to determine whether LADBS issued a building permit before LAHD had cleared the THP, but she failed to raise this issue at the appeal hearing and it is waived.

4. Fair Hearing

Ouyang contends that she was denied a fair hearing. This is an issue of law reviewed de novo.

Ouyang notes that the California and United States Constitutions prohibit the State from depriving any person of “life, liberty, or property, without due process of law …” Cal. Const. art. I, §7(a); U.S. Const. 14th Amend. California’s due process clause provides more expansive protection than its federal counterpart as “the claimant need not establish a property or liberty interest as a prerequisite to invoking due process protection.” Ryan v. California Interscholastic Fed'n-San Diego Section, (2001) 94 Cal. App. 4th 1048, 1069. Rather, the claimant must “identify a statutorily conferred benefit or interest of which he or she has been deprived to trigger procedural due process under the California Constitution …” Gresher v. Anderson, (2005) 127 Cal. App. 4th 88, 105

Ouyang argues that the right of tenants to reoccupy their units under the existing terms of tenancy upon completion of the Primary Renovation Work qualifies as a statutorily conferred interest. “The temporary relocation of a tenant from his/her permanent place of residence shall not constitute the voluntary vacation of the unit and shall not terminate the status and rights of a tenant, including the right to reoccupy the same unit, …” LAMC §152.02. Denial of such a right triggers procedural due process protections under the California Constitution. The City has adopted certain due process protections for THP appeals. LAMC §§ 152.07.G, 152.03.C.4, 151.07A.3. The Hearing Officer acknowledged these due process requirements at the hearing. AR 133-34 (“[W]e have convened this hearing here today for the purpose of affording you due process and an opportunity to provide direct testimony and documentary evidence in support of your appeal.”). Pet. Op. Br. at 11-13.

At a minimum, due process requires notice and an opportunity to be heard. Krontz v. City of San Diego, (2006) 136 Cal.App.4^th 1126, 1141. A fair hearing requires that the person or body who decides the case must know, consider, and appraise the evidence. Vollstedt v. City of Stockton, (1990) 220 Cal. App. 3d 265, 275. A due process violation requires a showing of prejudice. Krontz v. City of San Diego, supra, 136 Cal.App.4^th at 1141 (delay in notice and opportunity to be heard requires prejudice). Prejudice will not be presumed; actual prejudice must be shown in order to be balanced against a due process violation. People v. Belton, (1992) 6 Cal.App.4^th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay).

Ouyang argues that the Hearing Officer failed to consider some of her documentary evidence in making his decision. Oulang’s documentary evidence shows that she is entitled to those common areas. She submitted a declaration with supporting documents and pictures showing that the Property is a 26-unit, 14,820 sq ft dormitory, except bedrooms, which are about 100 sq. ft. each for exclusive use. All other living spaces, such as kitchens, dining rooms, living rooms, bathrooms, study rooms, and recreation rooms are in common areas shared by tenants. Ouyang is a tenant entitled to use the common areas, which are inseparable to her housing. AR 236-39, 243-61. Pet. Op. Br. at 13-14.

When Ouyang was about to explain her documentary evidence at the hearing (AR 136), she stated that “the evidence submitted by the – by the tenants contradict the landlord's statements as well. So I have a copy of (sic.) most recent lease with me.” AR 136. The Hearing Officer interrupted: “Let me just interject really quickly and just only to let you know that I do have a copy of your -- you provided a written statement noting your objections and you included quite a few Exhibits. I’m just letting you know that I do have those documents.” AR 136. This indicated that Ouyang did not need to repeat what was stated in her documentary evidence. Pet. Op. Br. at 14.

The Hearing Officer did not expressly find that Ouyang’s evidence (AR 236-300) was submitted to and reviewed by him. AR 114; see AR 329-30. The omission is prejudicial because Landlord disputed that Ouyang was entitled to the common areas under the existing terms of tenancy. Furst testified: “It's clear within the lease that the unit that is being rented does not include common spaces in the building or the janitors closet that the tenant cites in her rebuttal. It doesn't include kitchens, or bathrooms, or parking, or anything. It just includes the room that she's renting. And that's explicit within the first paragraph of the lease agreement.” AR 144-45; see also AR 146. Pet. Op. Br. at 13-14.

Ouyang’s allegation that she was not provided a fair hearing is based solely on speculation that the Hearing Officer did not receive and consider her initial evidentiary submission because it was not listed on the Hearing Officer’s sign-in sheet. AR 113–14 (Hearing Officer’s sign-in sheet).

The THP General Manager’s hearing notice expressly authorizes parties to submit evidence in advance of the hearing by email. AR 47. On October 27, 2022, both Ouyang and Landlord submitted documentary evidence for consideration at the hearing. AR 236-300 (Ouyang), 301-28 (Landlord). LAHD’s clerk, Pablo Tiburcio (“Tiburcio”) forwarded this to the Hearing Officer. AR 329-30. LAHD Inspector Soto also submitted a case summary. AR 234-35.

Ouyang subsequently submitted a 26-page Objection to the Landlord’s evidence. SAR 1–26. The LAHD clerk informed Ouyang that the submission was untimely, that it would be up to the hearing officer whether to consider it, and subsequently that the objections were rebuttal evidence that should be presented at the hearing. Ouyang Decl., ¶3, Ex. 2.

During Ouyang’s testimony, the Hearing Officer stated: “[Y]ou provided a written statement noting your objections … I do have those documents.” AR 136. After the closing arguments, the Hearing Officer stated: “I have quite a bit of documentary evidence that has been presented to me prior to the start of this hearing, up to and including the tenants [sic] objections, statement that included quite a few exhibits. It’s a total of 26 pages.” AR 165 (emphasis added). The phrase “up to and including the tenants [sic] objections” means that the Hearing Officer had more written evidence in his possession than just the 26-page Objection submitted by Petitioner. He expressly noted: “I’ll take the testimony and the documentary evidence into consideration.” AR 165-66. The Hearing Officer referred to the 26-page Objection in his decision. AR 116. He did not expressly refer to Landlord’s and Ouyang’s initial documentary submissions. Nor did he include them or the Objections on his evidence log. AR 114. Only Soto’s staff report was mentioned. AR 114.

Ouyang’s speculation that the Hearing Officer did not have and consider her documentary evidence is unsupported. She submitted her evidence, and the Hearing Officer must be presumed to have regularly performed his official duties by receiving and considering it. Evid. Code §664. The Hearing Officer’s failure to include Ouyang’s evidence, or Landlord’s evidence, on his evidence log does not show otherwise. The log is expressly designated “Hearing Officer’s Use Only” and clearly is an informal document not to be relied on by the parties. AR 114. Ouyang cannot rely on this page to show that the Hearing Officer did not consider her evidence.

Ouyang also fails to show prejudice. She testified at the hearing on the subjects governed by her documentary evidence, and the Hearing Officer considered her arguments. She now argues that the lease did not state, as alleged by Furst, that Ouyang was not entitled to use the common areas of the Property. AR 303. Ouyang objected at the hearing that Landlord’s evidence lacked foundation and was contradicted by her documentary evidence that specifically established the foundation and the truth of the facts stated. AR 161. Ouyang’s documentary evidence included an email to her from Furst in which he stated that there would be a bathroom and a kitchen for her to use. AR 263. At the hearing, Furst contradicted himself by testifying that those areas would be eliminated to make way for new units, and there would only be a room for Ouyang to use. AR 144-46. Pet. Op. Br. at 15.

According to Ouyang, this evidence shows that Ouyang was denied a fair hearing and that the error is prejudicial. The Hearing Officer could have found in her favor by eliminating these THP provisions that would significantly change the existing term of her tenancy in violation of LAMC section 152.07.G, would create an untenantable condition pursuant to Civil Code section1941.1, would create a substandard unit as described in Health & Safey Code section 17920.3, or would result in forced permanent displacement contrary to the Tenant Habitability Program (LAMC §152.01). Accordingly, she was denied a fair hearing. Pet. Op. Br. at 14-15.

This argument assumes that the lease provisions, common areas, and reduction in such space after renovation was relevant to the Hearing Officer’s decision. It was not. Soto testified without contradiction that they are irrelevant. Removal of common areas and square footage rent increase is addressed by RAC Regulations section 413.2, which permits a rent reduction for a tenant based on evidence submitted. The THP process is not an appropriate venue for those concerns. AR 132. Accordingly, the Hearing Officer had no discretion to consider common areas in assessing whether LAHD’s approval of the THP was proper.[10]

Ouyang merely replies that, if the Hearing Officer considered her documentary evidence, his decision states nothing about it. AR 115-21. Therefore, the decision should be set aside for failure to meet the standard set forth in Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, which requires the hearing officer to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision, and to set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 514-15. Reply at 7-8.

Aside from the fact that Topanga does not require a hearing officer to refer to every piece of evidence before him, this is an issue raised for the first time in reply and is disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., supra, 31 Cal.App.4th at 1333.[11]

The motion to correct/augment is partly granted and the FAP is denied. The City’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner Ouyang 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 June 20, 2024 at 9:30 a.m.

[1] Respondents request judicial notice of the following: (1) LAMC section 152.03 (Ex.1); (2) Rent Adjustment Commission Regulations (“RAC Regulations”) sections 710.00-717.03 (Ex. 2); (3) the County’s Resolution dated January 25, 2022 (Ex. 3); and (4) a County information bulletin regarding the expiration of eviction protections under the COVID-19 Tenant Protections Resolution (Ex.4). Exhibits 1-3 are judicially noticed. Evid. Code §§ 452 (b). Exhibit 4 is not an official act of the County and the request is denied. See Evid. Code §452(c).

Ouyang requests judicial notice of the following: (a) County Tenant Protection Resolution issued January 25, 2022 (Ex. 1); LAMC sections 91.106, 152.00, 22.12-20, 22.600-606, 91.104, and 151.07 (Ex. 2); (3) RAC Regulations 710.00-717.03 (Ex. 3); and (4) County Covid-19 Tenant Protection Resolution issued January 24, 2023 (Ex. 4). The requests are granted. Evid. Code §452(b).

[2] Ouyang also seeks to (a) set aside the decision because portions of her testimony are not included in the transcript because they were “inaudible”, and (b) preclude the City from disputing the following statement of fact: the Hearing Officer did not find that Ouyang’s documentary evidence (AR 236-300) was submitted to him. Mot. at 7-10. Neither of these arguments is properly part of a motion to augment or correct the administrative record. They rather are arguments on the FAP’s merits and have not been considered.

The court has ruled on Respondents’ evidentiary objections to Ouyang’s declaration. Many of the objections were overruled because they dispute the evidence as complying with CCP section 1094.5(e), which is the very matter at issue for the motion. The clerk is directed to scan and electronically file the court’s rulings.

[3] Four portions of Ouyang’s testimony are not audible on the audio recording of the hearing. AR 134:18-22, 138:23-24, 141:7-10, 163:16-18.

[4] Four portions of Ouyang’s testimony are not audible on the audio recording of the hearing. In the first inaudible portion – this is made plain in the next page of her testimony (AR 135) -- Ouyang was rebutting Soto’s comments that the General Manager hearing is not an appropriate venue to decide her removal of common areas and square footage rent increase concerns. AR 134.

In the second inaudible portion, Ouyang indicated that she “was open” to a unit that was in an area covered by USC’s security service and, after the inaudible portion, referred to the protection of her belongings from damage or loss. AR 138. The third inaudible portion occurred as Ouyang was testifying about the common area and tenants’ belongings in storage. AR 141. The fourth and last inaudible portion occurred during Ouyang’s closing statement, and again occurred during a reference to USC’s security guards. AR 163.

[5] The Hearing Officer stated at the end of the hearing that he had taken copious notes of the testimony and had quite a bit of documentary evidence that had been presented before the hearing, up to and including Ouyang’s 26-page objections. AR 165.

[6] Ouyang suggests in her opening brief’s introduction that the Hearing Officer lacked the authority to issue the decision because it was issued more than 60 days after the September 19, 2022 service of the THP, relying on LAMC sections 151.07.A.3.f and 152.3.C.4. Pet. Op. Br. at 1.

She is wrong. LAMC sections 151.07.A.3.f is not part of the Tenant Habitability Program ordinance. IT sets forth a 45-day time limit to issue a decision for a hearing over a rent adjustment application under the RSO and has no application to a THP hearing. LAMC section 152.03.C.4 does provide that a hearing officer for a THP hearing shall issue a decision within ten days of the hearing date. The THP hearing was held on November 3, 2022, and the Hearing Officer issued his decision almost two weeks late on November 30, 2022. However, there is no remedy for a late decision other than to compel the hearing officer to issue one. LAMC section 152.03.C.4 provides no remedy for a late decision and neither does the Remedies section of the THP article. See LAMC §152.07. See Opp. at 13-14.

[7] Exhibits 11-14 are not in the Trial Notebook but they are in the court file.

[8] The City notes that the Eviction Moratorium expired on March 31, 2023. City’s RJN Ex. 4. As such, the City argues that its legal implications are moot. This is not a case in which there is a public interest sufficient to disregard the mootness doctrine. See Morehart v. County of Santa Barbara, (1994) 7 Cal.4^th 725, 746) (a petition that is moot may still be decided if it involves an issue of public interest that is likely to recur). This case does not involve a situation likely to recur as a THP is by its nature specific to the tenants. Opp. at 8-9, 11.

Ouyang replies that the expiration of the Eviction Moratorium does not moot the issue that the City violated it during the pandemic. There is a public interest in the issue sufficient to disregard the mootness doctrine. Morehart v County of Santa Barbara, (1994) 7 Cal.4th 725, 746. The Resolution was an emergency regulation that affects the well-being, the rights, health and finance of the public at large. It also was a short-term legislation the violation of which generally evades judicial review and is likely to recur. These circumstances warrant an exception from mootness. Smith v. Board of Supervisors, (1989) 216 Cal.App.3d 862, 868. Reply at 2. The court need not address this mootness issue.

[9] Ouyang contends that the City wrongly concludes that the Hearing Officer’s finding that the THP provides a comparable temporary unit is supported by substantial evidence. The decision relies solely on Landlord’s testimony: “[Landlord] went on to explain that the Appellant’s current unit is approximately 600 square feet whereas the temporary unit is approximately 1000 square feet.” AR 119-20. The unit on the THP has only 441 sq. ft., not 1000 square feet. AR 4. Thus, Landlord’s testimony was false. Even under the substantial evidence review, the Hearing Officer’s decision finding of a comparable unit on the THP is not supported by substantial evidence. Reply at 6-7. This issue is moot because Ouyang admits that she now has a 600 sq. ft. temporary unit.

[10] The City adds (Opp. at 13) that RAC Regulations section 716.07.1 does not require a temporary unit to have comparable common areas. City RJN Ex. 2. Ouyang contends that the City is wrong. RAC Regulations section 716.07.1 requires that the size of a unit be considered in deciding whether a unit is comparable. This case involves a dormitory unit in which all housing accommodations are in common areas except bedrooms. The failure to consider common areas will result in finding an untenantable unit comparable in violation of LAMC section 152.03.C.1 which requires LAHD to determine whether the THP meet the standards set forth in Civil Code section 1941.1. Reply at 9-10. The court need not decide the proper interpretation of RAC Regulations section 16.07.1.

[11] The parties also debate the prejudice to Ouyang if the Hearing Officer could consider the common areas issue. The City argues that Ouyang did not include the lease in her initial evidentiary submission (AR 236–300) but did so as part of her 26-page Objection, which the Hearing Officer stated he received. The lease confirms that the only area for which Ouyang had exclusive possession was her room. Indeed, she referred to the other spaces at the Property as common (shared) areas. AR 140. Ouyang also testified and argued that she considered the common areas to be part of her tenancy. AR140 (“I think the most important thing is that the THP unit or the owner of the property only limited their consideration to my room. As I demonstrate in my evidence, actually, the tenants have a shared space of common area.”).

Ouyang replies that the City misunderstands her argument. The lease included in Ouyang’s Objection was submitted to dispute the terms of storage and parking in the outdated lease submitted by the Landlord. AR 304; SAR 11, 13, 14. She testified that the existing terms of her tenancy provided storage. AR 140-41. Reply at 9. She also testified that tenants share the common areas. AR 140. The Hearing Officer found her testimony creditable. AR 120. Nonetheless, her documentary evidence was key to deciding whether the terms of her tenancy were breached by remodeling work to convert a 26-unit dormitory into an apartment building because it shows how the 14,820 sq ft space is distributed among the existing 26 units and what the existing housing accommodations are. AR 236–300. The lease does not contain such information. Reply at 8-9. Again, this is an issue the court need not decide.