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

 

A. Statement of the Case 

1. First Amended Petition 

On August 18, 2023, Petitioner Mabus filed the Petition alleging a cause of action for administrative mandamus against the City.  The operative pleading is the First Amended Petition (“FAP”) filed on January 16, 2024 and alleging in pertinent part as follows. 

 

a.  Petitioner’s Request for Parkway Tree Removal 

Petitioner Mabus owns the property located at 10729/10731 Northgate Street, Culver City (the “Property”).  FAP, ¶6.  Two trees located on public property directly adjacent to the Property are known problem species trees and are too large for the area in which they are located.  FAP, ¶7.  These problem trees have caused substantial damage to Petitioner’s improvement on the Property, the Property itself, and public property.  FAP, ¶7.   

On October 1, 2019, Petitioner filed a request for a parkway tree removal of the two trees (the “Request”) with the Culver City Public Works Department-Maintenance Operations Division (“Public Works”) pursuant to Culver City Municipal Code (“CCMC”) section 9.08.210.B.  FAP, ¶8.  Tree removal is required under CCMC section 9.08.210.c.2.b.-.c if a tree meets either of the following conditions:  (1) the tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines or other utility lines, but a history of sewer blockages does not alone provide sufficient reason for tree removal and rather suggests the need for sewer repair and/or (2) the tree is creating a public or private nuisance.  FAP, ¶8. 

After an arborist inspected the two trees, Public Works determined that both trees exhibit potential for major branch failure and need to be removed.  FAP, ¶10.  On February 25, 2020, Public Works provided notice to the public pursuant to CCMC section 9.08.21.E that Petitioner’s Request to remove the trees had been granted.  FAP, ¶11. 

 

b.  Jablin’s Appeal 

Pursuant to CCMC section 9.08.210(F), any party wishing to reverse a decision by Public Works must submit an appeal in writing.  Pursuant to that same section, “[a]ppeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on error in fact or dispute findings.  The decision of the appeal shall be final.”  FAP, ¶12. 

On March 2, 2020, City resident Jablin appealed the Public Works decision to remove the two trees.  FAP, ¶13.  Jablin admitted in his written appeal that the two trees “over many years, have caused damage to the road surface and the sidewalk and meet the criteria in the City code for potential removal.”  FAP, ¶14. 

On August 10, 2020, the City Council held the initial hearing on Jablin’s appeal.  FAP, ¶15.  The City Council voted to delay the appeal to allow for potential resolution to be worked on by the City, Jablin, and Petitioner.  FAP, ¶15. 

On October 11, 2021, the City Council again held the hearing on Jablin’s appeal of the Public Work’s decision to remove the trees. FAP, ¶16.  At the hearing, neither Jablin nor any other party provided any substantial evidence or testimony showing that Public Work’s decision to remove the trees was based on error in fact or disputed findings.  FAP, ¶17.  On October 11, 2021, despite the lack of any evidence that would support reversal of the Public Works decision to remove the trees, the City Council voted to grant Jablin’s appeal.  FAP, ¶18.   

 

c. Mabus v. Culver City (“Mabus I”) 

Petitioner filed a mandamus petition from the City Council’s decision to grant Jablin’s appeal and reverse the decision of Public Works to remove the two trees.  FAP, ¶20.  The mandamus petition was granted and judgment was rendered in Petitioner’s favor on March 15, 2023.  FAP, ¶20.   

 

d. The City Council’s May 22, 2023 Resolution 

In response to the writ, on May 22, 2023, the City Council held a public hearing and adopted Resolution No. 2023-R033 (the “Resolution”) setting aside the October 11, 2021 decision reversing the Public Works’ decision to remove the trees.  FAP, ¶21. 

 

e.  Request for Relief 

Petitioner maintains that the Resolution is erroneous and improper in that the City Council prepared and considered new and additional evidence in coming to its conclusions.  FAP, ¶22.  The Resolution does not conform to, and is in violation of, the judgment in Mabus I.  FAP, ¶23.  The Property and Petitioner have been harmed by the trees and will continue to be harmed. 

 

2.  Course of Proceedings 

Petitioner filed the Petition on August 18, 2023.  Petitioner served Respondents City and City Council on August 23, 2023.   

The Petition did not name Jablin as a Real Party.  The court held trial setting conferences on November 27, December 14, and January 9, 2024, and ordered Petitioner to name Jablin as a Real Party.   

On January 16, 2024, Petitioner filed the FAP naming Jablin as Real Party.  Petitioner served Jablin with the FAP on January 21, 2024.   

On March 12, 2024, the City filed its Answer to the FAP.  On March 15, 2024, Jablin filed his Answer to the FAP. 

On July 3, 2024, the court denied Petitioner’s ex parte application to exceed the page limits of CRC 3.1113(d).   

 

B. Standard of Review 

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or traditional mandamus (CCP §1085).  A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”  CCP §1085.   

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, 51415.   

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, (“Fukuda”) (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 all other cases, the substantial evidence standard applies.  “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 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.  “‘[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.’ [Citations.]” Martori Brothers Distributors v. Agricultural Labor Relations Bd., (1981) 29 Cal.3d 721, 727 (italics added.)”  Gerawan Farming, Inc. v. Agric. Labor Relations Bd., (2018) 23 Cal.App.5th 1129, 1162.  The standard is met if there is relevant evidence in the record which a reasonable mind might accept in support of the findings.  Id. (citation omitted).  If there is a plausible basis for the decision, the fact that contrary findings may be equally reasonable, or even more so, is of no moment.  Id. 

Questions of law are reviewed de novo.  Duncan v. Dep’t of Pers. Admin., (2000) 77 Cal.App.4th 1166, 1174.  

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 51415.  Implicit in CCP 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 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.   

 

C. Governing Law 

Under CCMC section 9.08.210.A, the Public Works Director (“Director”) “shall have sole authority to cut, trim, prune, replace or remove any tree in or any parkway in the City.”  Any interest person may request discretionary removal of a parkway tree by submitting a written application to the Director on a form approved by the City.  The written application shall state the name and address of the applicant, the location of the tree, the reason for the request, and any other information required by the Director.  CCMC section 9.08.210.B. 

 

“The Public Works Director shall review the application and supporting documentation to determine whether to approve the removal of the Requested tree.  In determining whether any tree in or on the parkway shall be removed or replaced, the Public Works Director shall determine whether the removal or replacement is in the best interest of the City and the public health, safety, and welfare.  Such determination shall be based on the criteria set forth in either Subsection C.1 or Subsection C.2 as follows: 

 

1.  if any one of the following criteria is met: 

a.  The tree is dead, dying or weakened by disease, age, storm, fire or other injuries so as to pose an existing or potential danger to persons, properties, improvements or other trees; or 

b.  The removal is necessary for construction of a Street improvement project or other public improvement/repair work; or  

c.   The removal is necessary for private improvement or development project.  Where the application for removal is related to a private improvement or development project, see §9.08.215. 

 

2.  If two or more other criteria are met: 

a.  The tree is a known problem species or is otherwise found to be an undesirable species for its location based on tree size relative to available area for tree growth. 

b.  The tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility lines.  A history of sewer line blockages from tree roots does not alone provide sufficient for tree removal, but rather suggests the need for sewer repair to stop leaks and the accompanying root intrusion that results. 

c.  The tree is creating a public or a private nuisance.”  CCMC §9.08.210.C. 

 

The decision of the Director is final, unless appealed by the applicant, a member of the City Council or an interested person.  CCMC section 9.08.210.E.  The notice of decision shall be prepared by the Director and sent to the applicant and all interested persons with a copy provided to the City Council.  Id.  Appeals shall be submitted in writing and filed with the City Clerk within ten days after the decision date identified in the notice of decision.  Id.  An appeal shall include a general statement specifying the basis of the appeal, shall be based on an error in fact or dispute of the findings of the decision, and must be accompanied by supporting evidence substantiating the basis for the appeal.  Id. 

“Appeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on an error of fact or disputed findings.  The decision of the City Council on an appeal shall be final.”  CCMC §9.08.210.F. 

 

D. Statement of Facts1 

1.  The October 2019 Request 

In October 2019, Petitioner submitted the Request.  The Request asserted that two City-owned Ficus trees located on a City-owned parkway property adjacent to Petitioner’s residential rental property had caused damage to the City-owned street and sidewalk, Petitioner’s concrete wall, and Southern California Gas Company pipes under the street. The Request claimed not only root damage, but danger from falling limbs, and cited CCMC section 9.08.210.C.2.a-c.  AR 1. 

On February 4, 2020, the Director approved Petitioner’s Request.  AR 957.  On February 25, 2020, the Director provided public notice of the decision to remove the two trees.  AR 13.  

On March 2, 2020, Petitioner’s neighbor, Real Party Jablin, appealed to the City Council.  AR 15.  Jablin stated in his appeal that “the two trees in question are beautiful, mature trees, that have recently undergone a large scale…pruning, and provide both shade and character to our portion of Culver Crest.”  AR 15.  Jablin asked that any tree removal be deferred until a detailed street repair and replacement plan was presented to residents.  AR 15. 

On August 10, 2020, the City Council heard Jablin’s appeal.  AR 958-59.  There were 20 written comments submitted in support of the appeal.  AR 54-99.  At the hearing’s conclusion, the City Council voted to defer the appeal decision to allow the Director to evaluate alternatives to removing the trees.  AR 959.   

On September 28, 2021, the Director issued a revised determination, developed in coordination with Petitioner, to remove one of the two trees.  AR 262-63, 281-82.   

On October 11, 2021, the public hearing for the appeal was reopened.  Staff presented the revised determination that would preserve the Northgate/Galvin corner tree and remove the inner Galvin Street tree due to its proximity to Mabus’s concrete wall, which previously had been repaired after some cracking.  The revised determination proposed to eliminate the adjacent curbside parking area on Galvin Street and convert the area into an expanded parkway. The project would significantly lengthen and widen the existing parkway and provide substantially more room for unimpeded tree root growth in the future by removing the sidewalk along Mabus’s property, thus eliminating the potential for future sidewalk damage.  AR 193-94, 210, 359-60. 

At the hearing, neighbors and other persons appeared to oppose Petitioner’s Request.  AR 243-56, 269-90, 360-63.  Petitioner was the only person who supported removal of the trees.  Id. 

At the conclusion of the hearing, the former Director acknowledged that a revised capital project could safely and feasibly save both trees and replace or repair the street, curb and sidewalk that were the subject of the Request.  AR 303-04. The City Council voted unanimously to grant the appeal and preserve both trees, directing the Director to modify and implement the proposed Galvin Street parkway expansion project to save both trees.  AR 960.  The City Council did not adopt written findings memorializing its decision.  See AR 43. 

 

2. Mabus I 

On December 10, 2021, Petitioner filed the Mabus I petition challenging the City Council’s October 2021 decision. AR 797.   

After a hearing, the court (Judge Strobel) ruled that the City Council failed to comply with Topanga, supra, 11 Cal.3d at 515 and CCMC section 9.08.210 when it failed to issue written findings in support of its decision to reverse the former Director’s determination to approve the Request.  The court ordered the City to set aside its October 11, 2021 decision, reconsider the case in light of the court’s ruling, and adopt written findings as required by Topanga and CCMC section 9.08.210.C and F. AR 955, 970. 

 

3.  The Galvin Street Parkway Project 

In 2022, while Mabus I was pending, the City Council approved funding for the Galvin Street Parkway Project proposed at the October 2021 hearing.  AR 396, 399, 686.  As directed by the City Council in October 2021, the Galvin Street Parkway Project was designed to preserve both trees in a manner that would allow for their safe growth. The project would greatly expand the parkway planting area, correct and replace the previously damaged street and curb, and remove the sidewalk adjacent to Petitioner’s property.  Id.  The City awarded a $108,000 construction contract for the project in November 2023.  AR 930. 

 

4.  The May 8, 2023 Hearing 

The City Council published an agenda for its May 8, 2023 session to renew its decision to grant the appeal of the former Director’s 2019 determination that the two trees should be removed.  AR 390.  The written material considered by the City Council at the hearing on appeal included the following:  (1) a May 22, 2023 staff report (AR 682-808); (2) a May 8, 2023 staff report (AR 392-473); (2) an August 10, 2020 staff report (AR 27-44); (3) an October 11, 2021 staff report (AR 210-34); (4) Petitioner’s May 8, 2023 correspondence (AR 506-09); (5) staff's May 22, 2023 Responses to Petitioner’s Objections (AR 724-30); (6) inspection photographs of the Property dated May 13, 2023 (AR 731-37); (7) Petitioner’s May 17, 2023 submittal and additional photographs (AR 738-62); (8) May 22, 2023 staff photos from 2021 (AR 685, 757-62); and (9) a proposed resolution (AR 763-808). 

The May 8, 2023 staff report referred to an April 13, 2023 inspection by a City Arborist on April 13, 2023. AR 692.  The staff report stated that the Arborist concluded that “there is no evidence of new or repeated damage, or worsening of previous damage.”  AR 692.   The staff report summarized the Arborist’s opinion as based on three factors: (a) asphalt repairs conduct in 2021 showed now evidence of new damage; (b) there were no new cracks in Petitioner’s patio wall, and (c) no additional lifting or damages had occurred in the new or older sections of the sidewalk since 2021.  AR 692-93. 

The May 8 staff report also summarized the basis for the current Director’s finding that the former Director’s tree removal determination was erroneous.  The former Director’s decision was erroneous  because (a) the City Arborist concluded there was no new damage, (b) the existing damage would be repaired by a future project, and (c) the former Director had proposed an alternative plan that would have preserved one of the trees.  AR 693. 

The City Council heard oral presentations from staff, including the new Director, neighbors, Jablin, Petitioner, and Petitioner’s counsel.  AR 545-69.  All neighbors, including Jablin, opposed removal of the trees on grounds that the damage had been largely repaired and would be eliminated by the upcoming capital project, and any damage did not create problems or interfere with the sidewalk and parking.  AR 885-98. 

Petitioner’s counsel submitted a written comment objecting to the City Council’s reliance on new evidence.  AR 506.   

At the hearing, Petitioner’s counsel once again objected to the new evidence.  AR 550-51, 556-57.  Members of the public spoke in favor of removing the trees.  AR 554, 557-60.  The City Council continued the hearing for two weeks to May 22, 2023 to allow Petitioner to submit evidence to counter to undisclosed new evidence.  AR 564-65, 567-68. 

 

5.  Petitioner’s Additional Evidence 

On May 17, 2023, Petitioner submitted additional photographic evidence of the original and continuing damage to the street, sidewalk, and the Property caused by the trees’ roots.  AR 581-600.  Petitioner provided 12 photographs of recent damage, along with an annotated map showing where each picture was taken in relation to the two trees.  AR 588-600.  Petitioner submitted further evidence showing that the root structure of the trees extended beyond their canopies and under her property and that this had caused damage to her foundation.  AR 648-67.  

 

6.  The City’s Additional Evidence 

City staff issued a supplemental report of new evidence to support the granting of the appeal. AR 685.  The report disclosed six photographs of the area taken in 2021 of new asphalt patch repairs (AR 757-62), and 16 new photographs taken on May 13, 2023 (AR 731-37).  

The supplemental staff report discussed the photographs submitted by Petitioner and stated that “[t]he photographs do not show new cracking or root damage.”  AR 685. The report further states that “[t]The … photos show no new cracks or damages in those previous [asphalt patch] repairs.” AR 685. The supplement report admitted that Petitioner’s photographs showed new cracks in the asphalt patches but concluded they did not meet the legal definition of “extensive” under the ordinance.  AR 685-86.   

 

7.  The May 22, 2023 Hearing 

The City Council heard the continued appeal on May 22, 2023. The current Director explained the new evidence added since the May 8, 2023 hearing.  AR 865-66.  He explained that all future root damage to the sidewalk and street in front of Petitioner’s house could be prevented by removing the sidewalk and street entirely: 

 

“PUBLIC WORKS DIRECTOR DIMITRI: There is a CIP we are proposing, capital improvement project. [W]e would like to remove that sidewalk, remove a small portion of the roadway pavement, in order to double the size of the parkway to allow the tree roots to continue to grow and thrive, and cause no further damage in the future.”  AR 866.  

 

Petitioner and her counsel presented her evidence and objections to overturning the former Director’s tree removal determination.  AR 876-85.   

The four City Council members stated their reasons for granting the appeal and overturning the determination.  Councilmember Ericksson explained that the key factor was the apparent lack of extensive and repeated damage:  

 

“COUNCILMEMBER ERIKSSON: …. [W]hat the judge … kicked it back on the last time was that we didn't spell out really why we did the decision we did…. So, for me, it's clearly that what staff says, that the damage is not extensive, which is one of the requirements, and the damage is not repeated, which is another requirement, right?….” AR 902.  

 

Councilmember Puza explained that that his vote was based on the apparent lack of extensive and repeated damage, although he also agreed that it would be necessary to remove portions of the sidewalk and street in front of Petitioner’s house because additional future damage was inevitable: 

 

“COUNCILMEMBER PUZA: …. …. [T]he damage is minor and there is no evidence of extensive or repeated damage…. [A]nd the proposed capital project would [] preserve both trees in a manner that would allow for their safe growth, expand the parkway, and correct any damaged areas. AR 903.  

 

Councilmember O’Brien admitted that he would probably also want the trees removed if he were in Petitioner’s place, but he nonetheless supported the appeal: 

 

“COUNCILMEMBER O'BRIEN: I understand the concern of the homeowner….I think everyone who has a mature tree in their parkway would probably present the same argument and say that it should be removed…”  AR 904.2 

 

The four City Council members voted unanimously to grant Jablin’s appeal, overturn the determination of the former Director, and adopt the Resolution, finding that substantial evidence supported the conclusion that the decision to approve the Request to remove the trees was based on an error or disputed findings.  AR 850.   

 

i8.  The Resolution 

The Resolution was then executed on May 22, 2023 and became immediately effective.  AR 926-72.  The City Council set forth written findings in the Resolution explaining the basis for the decision under CCMC section 9.08.210.C and F.  AR 926-72.   

The Resolution listed the reasons for the City Council’s determination: 

• At a previous City Council meeting in 2021 the former Director acknowledged that both trees could be “safely and feasibly saved by another capital project that that would address street and sidewalk damage.”  AR 929. 

• A budget had been approved for a capital improvement project, the Galvin Street Parkway Expansion, that would remove curbside parking, portions of the sidewalk, and portions of the road in front of Petitioner’s house that would “completely or substantially correct and/or eliminate each of the problems and conditions [with the road and sidewalk] listed by [Mabus] in her 2019 Request.”  AR 930. 

• The City Arborist had inspected the site on April 13, 2023 and determined that there was no evidence of (a) new damage, (b) damage to the asphalt repairs made in 2021, (c) damage to the repairs Petitioner had made to her house in 2019, or (d) additional sidewalk damage or lifting in the last two years.  AR 930-31. 

• The current Director had determined “that the criteria under CCMC 9.08.210.C.2 have not been met and do not exist, and recommends both trees be preserved.”  AR 931. 

• City staff “concluded that the determination of staff, including the Public Works Director and City Arborist, as described in the staff report for the May 8, 2023 public hearing, were accurate and correct; that Petitioner's objection to that determination and conclusion was (and is) unsupported by, and contrary to, the evidence; [and] that there is no evidence that damage to the wall, the sidewalk and the street have repeated, recurred or worsened.….”  AR 932. 

• City staff compared Petitioner’s photographs of the site from 2023 with photographs taken by staff in 2021 and determined that “the photographs do not show new cracking or root damage.”  AR 932-33.3 

 

D. Analysis 

Petitioner Mabus challenges the City Council’s decision to uphold Jabon’s appeal.  Petitioner contends that the City Council failed to proceed in the manner required by law and that its decision is not supported by substantial evidence.4 

 

1. Procedural Issues 

Jablin argues that Petitioner overlooked him when she filed Mabus I and did so again when she filed the Petition.  She also ignored his rights when she failed to serve him with her revised 15-page opening brief on July 5, 2024.  Davis Decl., ¶5.  Jablin only learned that Marcus had served her revised opening brief when the City’s counsel forwarded a copy to Jablin’s counsel on July 8, 2024.  Id.  To this day, Petitioner has not served Jablin with her revised opening brief.  Id.  Petitioner should not be granted the extraordinary relief she seeks when she has failed to satisfy the most basic procedural requirements in this matter.  RPI Opp. at 8. 

Despite Petitioner’s failure, Jablin has suffered no prejudice and the court will not deny the Petition on this basis.  

 

2. The Action Is Not Time-Barred 

Jablin argues that the court must dismiss the FAP in its entirety based on Mabus’s failure to timely name and serve Jablin as the Real Party-in-Interest.  

 

a. The Action Is Untimely Against Jablin 

Jablin points out that Code of Civil Procedure sections 1094.5 and 1094.6, which apply to this case, have a short 90-day statute of limitations for challenges to adjudicative decisions denying an application for a permit or other entitlement.  Where the applicable law does not expressly require a written decision or written findings, and there is no provision for reconsideration, the 90-day limitations period begins on the day the decision is announced.  CCP §1094.6(b).  After the expiration of the limitations period, all claims are barred.  The Rutter Group, California Practice Guide, Administrative Law, §§ 16:230, 16:240.   RPI Opp. at 4-5. 

The City made its final decision on May 22, 2023 and adopted the resolution memorializing its decision that same night.  AR 902-05, 926-72.  On August 21, 2023, the City mailed a notice of the Resolution to Petitioner by certified first class mail.  AR 973-74.  The 90-day limitations period began to run no later than the City’s service on August 21, 2023.  As such, the limitations period expired on November 19, 2023.  While Petitioner did timely file the Petition against Respondent City on August 18, 2023, she did not name Jablin as a Respondent or Real Party until January 16, 2024, and did not serve him until January 21, 2024. Davis Decl., ¶ 3. Thus, Petitioner missed the deadline to add Jablin as a Real Party by almost 60 days.  RPI Opp. at 5. 

Mabus argues that the FAP naming Jablin relates back to the Petition.  “[A]n amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, (2011) 195 Cal.App.4th 265, 276–77.  “[T]he allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed. And most of the changes in parties do not change the nature of the action.”  5 Witkin, Cal. Procedure, (4th ed. 1997) Pleading, §1151.  Reply at 8. 

Mabus relies on Garrison v. Board of Directors, (1995) 36 Cal. App. 4th 1670, as modified on denial of reh'g, where an individual petitioner failed to state a claim due to failure to exhaust administrative remedies.  He then filed an amended petition after the statute of limitations period had expired, alleging that he was now suing in a representative capacity on behalf of an organization.  The trial court held that his petition was barred by the statute of limitations because the organization had not become a plaintiff until after the statute of limitations period had expired. The appellate court reversed, stating:  

 

“California courts have shown a liberal attitude toward allowing amendment of pleadings to avoid the harsh results imposed by statutes of limitations. Thus, proper amendments to an original complaint 'relate back' to the date of the filing of the original complaint, despite the amendments being made after the statute of limitations has expired.  The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.”  Reply at 9. 

 

Mabus argues that the amendment that added Jablin as a Real Party did not change the general facts at issue, involves the same injury, and the same instrumentality.  In fact, Jablin was identified in the Petition; he just was not named as a party.  Reply at 9. 

Petitioner is wrong.  An amended complaint relates back to the original complaint only if it is based on the same general set of facts as the original, seeks recovery against the same defendants for the same injuries, and refers to the same incident.  Barrington v. A.H. Robbins Co., (1985) 39 Cal.3d 146, 150.  Jablin is correct that the FAP does not meet these requirements because it adds him as an entirely new party.  The FAP does not relate back to the filing of the Petition with respect  and is untimely with respect to Jablin. 

 

b. Jablin Is Not an Indispensable Party 

The untimeliness of naming Jablin as Real Party does not end the inquiry.  He must be indispensable to the case before dismissal would be required. 

CCP section 389 governs joinder of parties, and there are two types of parties to be joined: “necessary” and “indispensable”.  CCP section 389(a) sets forth the requirements for determining a necessary party: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” 

Marcus argues that there is a legitimate question whether Jablin is actually a Real Party, defined in a mandate proceeding as a person or entity with an interest that will be directly affected by the proceeding.  Rudisill v California Coastal Comm'n, (2019) 35 Cal.App.5th 1062, 1072. Jablin has no personal interest that will be directly affected by these proceedings.  He does not own the trees at issue and does not even live on the block where the trees are located.  Reply at 9. 

Despite this argument, there is little doubt that Jablin is a necessary party.  He lives near Marcus and the City Council granted his appeal from the former Director’s decision to remove the trees.  He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may as a practical matter impair or impede his ability to protect that interest.  Jablin is a necessary party, which is why the court ordered Marcus to name him as a Real Party.  

A party found “necessary” pursuant to CCP section (a) may then be found “indispensable” pursuant to (b).  County of Imperial v. Superior Court, (“Imperial”) (2007) 152 Cal.App.4th 13, 26.  A determination that a party is necessary is the predicate for a determination of whether the party is indispensable.  Deltakeeper v. Oakdale Irrigation Dist., (2001) 94 Cal.App.4th 1092, 1100.   

CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.  The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or crosscomplainant will have an adequate remedy if the action is dismissed for nonjoinder.” 

A necessary party is regarded as indispensable if the court determines, in equity and good conscience, that the action must be dismissed in the party’s absence in light of, inter alia, whether a judgment rendered in the party’s absence will be adequate.  TG Oceanside, L.P. v. City of Oceanside, (2007) 156 Cal.App.4th 1355, 136566.  The controlling test for whether a necessary party is also indispensable is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined.  Save Our Bay v. San Diego United Port District, (“Save Our Bay”) (1996) 42 Cal.App.4th 686, 692.  In other words, a third party is indispensable if his or her rights must necessarily be affected by the judgment.  Id.  Each of the four factors in subdivision (b) must be considered, but “no factor is determinative or necessarily more persuasive than another.”  Imperial, supra, 152 Cal.App. 4th at 35.   

A failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdiction.  The court has the power to render a decision as to the parties before it in the absence of an indispensable party.  It is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joined.  Save Our Bay, supra, 42 Cal.App.4th at 693.   

Jablin makes only a perfunctory argument that he is indispensable and fails to sufficiently analyze the appropriate factors.  He argues that the allegations of the FAP and the arguments in Marcus’s opening brief take direct aim at the City Council’s decision granting his appeal. As the appellant before the City Council, Jablin had – and still has – a significant stake in this litigation that will be impaired if the court grants Petitioner’s requested relief.  The trees Jablin has fought to preserve will be destroyed, and his rights under the City’s ordinance will be lost.  Further, complete relief cannot be granted because he will not be bound by any judgment rendered in his absence.  RPI Opp. at 7. 

Analysis of the factors show that Jablin is not indispensable.  It is true that he filed the administrative appeal and a judgment rendered in his absence might be prejudicial to him. The judgment also cannot really be shaped to avoid that prejudice.  If the City Council decision is reversed and the trees are removed, there is no measure that could lessen his prejudice.  However, it is also true that Mabus will not have an adequate remedy if the action is dismissed for nonjoinder.  Most important, a judgment rendered in Jablin’s absence will be adequate because the City can be relied upon to protect his interests, which are co-extensive.  See TG Oceanside, L.P. v. City of Oceanside, supra, 156 Cal.App.4th at 136566.   

In sum the FAP is untimely as against Jablin and he is a necessary party, but he is not an indispensable party.  The FAP will not be dismissed for this reason. 

 

3. Mootness 

“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 Com., (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.   

Jablin argues that the court should deny Petitioner’s mandamus claim because it is moot.  The City has implemented a solution to any alleged problems caused by the trees through completion of the Galvin Street Parkway Project, and there is no current justification or need for removing them.  In Wilson & Wilson v. City Council of Redwood City, (2011) 191 Cal.App.4th 1559, 1575, the appellate court held that a landowner’s action for reverse validation regarding a redevelopment project was moot because the project had been completed and thus no effective relief could be granted to the plaintiff.  As in Wilson, this action is moot. The Galvin Street Parkway Project is complete and, as a result, the trees have adequate space for their roots to grow and the alleged sidewalk, curb, and gutter damage has been addressed. Questions regarding whether the trees should be removed based on the damage identified in 2019 no longer present live issues for decision.   RPI Opp. at 8-9. 

Mabus fails to reply to this mootness argument.  While completion of the Galvin Street Parking Project is a change in circumstance that significantly undermines Mabus’ case, it is not moot.  A case can be considered moot (or, by extension, unnecessary) only “when a court ruling can have no practical effect or cannot provide the parties with effective relief.” Californians for Alternatives to Toxics v. California Dept. of Pesticide Reg., (2006) 136 Cal. App. 4th 1049, 1069.  Neither the court nor Petitioner is required to accept the fact that the City’s remedy has mooted her argument that the two trees should be removed. 

 

4. The Governing Ordinance 

CCMC 9.08.210.C.2 states that the Director must consider three factors for  tree removal requests and must grant the request if any two are satisfied: 

 

“C…. In determining whether any tree in or on the parkway shall be removed or replaced, the Public Works Director shall determine whether the removal or replacement is in the best interest of the City and the public health, safety and welfare. Such determination shall be based on the criteria set forth in either Subsection C.1 or Subsection C.2 as follows: 

…. 

2. If two or more other criteria are met: 

a. The tree is a known problem species or is otherwise found to be an undesirable species for its location based on tree size relative to available area for tree growth. 

b. The tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility lines…. 

c. The tree is creating a public or private nuisance.  (emphasis added.)   

 

In relevant part, CCMC section 9.08.210.F states the following procedure for an appeal from the Director’s determination to grant a request to remove parkway trees: 

 

“Appeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on an error in fact or disputed findings. The decision of the City Council on an appeal shall be final.  (emphasis added) 

 

5. The City Council Findings 

Judge Strobel issued a writ of mandate on March 15, 2023, concluding that the City did not make sufficient findings and ordering the City to set aside its decision dated October 11, 2021 and reconsider the case and make findings that satisfy CCMC section 9.08.210.F.  AR 955, 970.  Judge Strobel did not purport to limit the City’s discretion to take and consider new evidence or impede its discretion in any other way.  See id. 

As required by Judge Strobel’s writ, the City Council reconsidered its previous decision from October 2021 by conducting a public hearing spanning two evenings on May 8 and 22, 2023.  After reconsidering the evidence from the 2020 and 2021 proceedings and new evidence about the current conditions at the site (AR 933), the City Council adopted the Resolution containing written findings explaining the basis for its decision.  The findings address the criteria for removal of trees in CCMC section 9.08.210 C.2.b and explain why Petitioner’s Request failed to satisfy those criteria.  AR 934-37. 

The City Council’s findings address the wording of CCMC section 9.08.210.C.2.b, which allows the City to approve a tree removal Request where “[t]he tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility lines.”  (emphasis added).  The City Council examined the ordinance’s use of the present progressive tense in requiring that tree roots “are creating” extensive and repeated damage and interpreted it to mean that removal is not warranted unless the damage is current and ongoing, extensive, and repeated.   

The court must give deference to a legislative body’s interpretation of its own ordinances (City of Walnut Creek v. County of Contra Costa, (1980) 101 Cal.App.3d 1012, 1021), and the City Council’s interpretation is reasonable.  See De Vries v. Regents of University of California, (2016) 6 Cal.App.5th 574, 590-91 (in ascertaining a term's ordinary meaning, courts often turn to general and legal dictionaries). 

The City Council then explained that the damage Petitioner asserted in her 2019 Request does not warrant removal of the two trees under CCMC section 9.08.210.C.2.b because it is not current and ongoing, extensive, and repeated.  The City Council found that the original damage to the wall, street, curb, and sidewalk had been repaired, the damage had not recurred, and damage would not recur given the (now complete) Galvin Street Parkway Expansion Project’s total overhaul of the site.  AR 934-37.  Therefore, the damage is neither current and ongoing nor repeated.  AR 937. 

The City Council’s findings further explain why the damage claimed in Mabus’s 2019 Request was not extensive under CCMC section 9.08.210.C.2.b, and what factors were used in defining what the term “extensive” means.  AR 935-36.  The City Council explained that the following criteria are relevant in determining whether damage is extensive: (1) Scope or scale of the damage. Widespread damage that affects a large area or volume is more extensive than localized or limited damage; (2) Severity or intensity of the damage.  Greater levels of damage or negative impacts are more extensive than minor or superficial damage; (3) Cost or resources required to repair the damage.  Damage that would take significant time and resources to repair is more extensive than damage that could be quickly or easily fixed; and (4) Functional impact. Damage that seriously impairs a system or process is more extensive than damage that has a minimal functional impact.  AR 935. 

The City Council found that the damage asserted by Mabus’s Request did not satisfy those criteria because the previous repairs to the sidewalk and asphalt on Galvn Street have allowed continued functionality, the previous damages is located on a scarcely used cul-de-sac and the sidewalk serves only a single parcel, the sidewalk lifting, cracking in the wall, and asphalt damage have not reoccurred since 2021, and any additional repairs can be easily and inexpensively made to minimize damage.  Thus, the root damage from the trees is not extensive.  AR 935-36. 

The City Council further found that the current Director has determined that the criteria under CCMC section 9.08.210.C.2.b do not exist as any root damage is neither extensive nor repeated.  AR 937.  The trees can and should be safely saved and do not constitute a nuisance under CMC section 9.08.210.C.2.c.  AR 937. 

The City Council’s findings concluded that the former Director’s decision was based on either “an error in fact or disputed findings under CCMC section 9.08.210.F.  The findings explain, with reference to the evidence, the City Council’s conclusion.  AR 938.  The trees were not and are not creating extensive or repeated damage.  AR 937.  Both trees can reasonably be saved with little impact by the already approved $100,000 Galvin Street Parkway Project.  AR 937-38.  It was and is unclear whether any of the problems with the sidewalk street and wall were caused by the trees as opposed to Mabus’s tree trimming. AR 938.  Removal would be inconsistent with the City’s Urban Forest Master Plan.  AR 938.   The findings conclude that there is substantial evidence for the City Council’s decision, including the staff reports, public submissions and comments, and City Councilmember questions, comments, and deliberation.  AR 939. 

 

6. The City Council Did Not Fail to Proceed in the Manner Required by Law 

Petitioner first notes that it is undisputed that (a) the former Director was correct that the two ficus trees are a known problem species under CCMC section 9.08.210.C.2.a., (b) the former Director’s tree removal determination was supported by substantial evidence, and (c) the cumulative damage caused by the trees’ roots as of 2019 and 2020 was extensive and repeated under CCMC section 9.8.210.C.2.b.5 

Petitioner then makes several arguments why the City Council failed to proceed in the manner required by law. 

First, Mabus argues that the City Council wrongly concluded that the former Director’s alternative proposal was an admission that his initial determination was wrong.  Judge Strobel expressly ruled that no evidence of error or dispute could be found in the former Director’s presentation of an alternative capital improvement project that would allow one tree to be preserved.  She interpreted “the Director’s revised approval as an alternative to his original determination to remove both trees, but not as superseding his original determination to remove both trees if Council did not affirm the alternative proposal and $80,000 in funding.” AR 967.  Despite this, the Resolution states that the former Director’s alternative capital project is evidence that his initial determination was in error.  AR 937.  Pet. Op. Br. at 11-12; Reply at 2. 

The Resolution stated:  

“WHEREAS, at the October 2021, hearing, the (former) Public Works Director, in response to questions from the Council, acknowledged that both trees could be safely and feasibly saved by another capital project that would address street and sidewalk damage.  AR 929. 

The former Public Works Director reached the [] conclusion [that any root damage is neither extensive nor repeated] at the October 2021 hearing, thus tacitly agreeing that his initial determination on the Request was based on factual error and disputed findings. 

The City Council on that basis, and on the basis of the City Council's contrary findings herein, rejects as error and disputes any inconsistent statements of fact and findings made and adopted by the former Public Works Director in 2020 and 2021.” (emphasis added).  AR 937. 

 

The City Council’s finding simply pointed out that the former Director acknowledged that the trees could be safely and feasibly saved by an expanded parkway project, a fact that was relevant to the City Council’s required concern under CCMC section 9.08.210.C.2.b whether the trees’ roots were causing damage on an ongoing basis.  The City Council was free to infer from the former Director’s acknowledgement that his determination could be based on factual error or dispute since it could be (and now is) fully corrected by the expanded Galvin Parkway Expansion Project.  Even though she interpreted the former Director’s acknowledgement as an alternative to, and not superseding, his determination for tree removal, nothing in Judge Strobel’s writ prohibited the City Council’s finding of tact agreement of factual error.  AR 967.  Nor is this tacit admission particularly significant to the City Council’s findings and it is not prejudicial because of that lack of significance.  See City Opp. at 16-17. 

Mabus next argues that the Resolution does not conclude that the former Director’s 2020 determination was in error, but instead finds that there is no “new damage” because there is “no evidence that the prior damage has recurred,” and that “no additional sidewalk damage or lifting has occurred over the past two years.”  AR 979.  The ordinance does not permit the City Council to limit its consideration to new damage.  Nor does it provide any justification where the line between old and new damage should be drawn.  The City Council’s decision to consider all damage that existed up until 2021 as irrelevant is contrary to the express language of the ordinance, which requires an examination of the totality of the tree roots’ damage.  To allow otherwise would lead to absurd result in which the City Council could manipulate the evidence by arbitrarily excluding years and years of accumulated damage as old and then determining that the evidence of new damage occurring only in the last few months was not extensive or repeated.  Pet. Op. Br. at 12. 

Mabus is arguing a non-existent horrible by mischaracterizing the City Council’s findings.  Nothing in CCMC sections 9.08.210.C.2.b or 9.08.210.F imposes any time restriction on the City Council in determining whether a tree removal Request must be granted.  CCMC section 9.08.210.C.2.b expressly requires that the damage be ongoing and repeated.  Mabus does not contend that the City Council cannot consider new evidence, and indeed it would make no sense to look at the tree damage historically without considering its current and ongoing nature.   

The City Council found the trees’ roots were not currently creating extensive and repeated damage based on the entirety of evidence, both from the 2020 and 2021 public hearings and from 2023.  AR 933.  It separately found that the evidence in 2020 and 2021 alone did not show the damage was extensive and repeated.  AR 933.  Under either approach, the City Council considered the 2020 and 2021 evidence. 

The City Council acted within its discretion in considering new evidence in addition to the evidence from 2020 and 2021.  CCP section 1094.5(e) and (f) so permit.  See Voices of the Wetlands v. State Water Resources Control Bd., (2011) 52 Cal.4th 499, 526.  Judge Strobel did not purport to prevent the consideration of new evidence and Petitioner points to nothing in CCMC section 9.08.210.F that does so either.  In fact, Petitioner presented new evidence at the May 2023 hearings, including photographic evidence of new street and sidewalk cracking, as well as asserted patio and foundation damage that she did not include in her 2019 Request or during the 2020/2021 proceedings.  See City Opp. at 15-16. 

Mabus further argues that the City Council was permitted only to determine if the Director erred in determining that there was extensive and repeated damage.  The ordinance does not permit consideration of other factors, nor does the City Council have the latitude to consider them.  As Judge Strobel stated: “The court is not persuaded by Respondents’ argument that the ordinance authorized the Director or City Council to apply generic concepts … not connected to criteria set forth in Subsections C.1 and C.2.” AR 963.  She also ruled that the City is bound by its ordinance and does not authorize the City Council to order the Director to make a new determination of tree removal, but it could ask the Director for information about alternatives to destroying both trees.  AR 965-66.  Petitioner argues that, despite Judge Strobel’s direction, the Resolution repeatedly states that the City Council relies substantially upon the prospect of future repairs to support its conclusion that the past and current damage is not “extensive and repeated.”  AR 930, 934-35, 936-38.  The City Council’s reliance on future repairs is not authorized by the ordinance and was improper.  Pet. Op. Br. at 12-13. 

The City Council expressly and permissibly addressed this issue.  It explained that CCMC section 9.08.210.C.2.b requires the damage to extensive and repeated.   This means current and ongoing.  The City Council found that the original damage to the wall, street, curb and sidewalk was not current and ongoing or repeated due in part to the fact that it would not recur given the (now complete) Galvin Street Parkway Expansion project’s total overhaul of the site.  AR 934-37.  The City Council’s findings further explained that the damage claimed in Mabus’ 2019 Request was not extensive under CCMC section 9.08.210.C.2.b.  Relying on specific criteria for the term “extensive”, the City Council explained in part that the damage was not extensive because the cost or resources required to repair it were not great.  AR 935.  Any future repairs can be easily and inexpensively made to minimize damage.  AR 935-36.  The City Council could reasonably conclude that future (now completed) repairs were relevant to the ongoing, repeated, and extensive damage requirement of CCMC section 9.08.210.C.2.b. 

Mabus argues that the Resolution explicitly admits that the City Council relied on evidence not in the Administrative Record.  First, the findings state that the City Council is relying upon the Arborist’s report from April 13, 2023.  AR 930-31.  While the original tree removal determination relied on an 11-page Arborist’s report (AR 31-41) that was attached to the staff report for the first appeal, this new April 13, 2023 Arborist’s report was only summarized by an unnamed City staffer.  AR 435-36.  Second, the City Council repeatedly stated that it relied upon the “Galvin Street Parkway Expansion Capital Project” as evidence the damage would be repaired.  There is no evidence of this project in the Administrative Record.  The City Council’s reliance upon evidence not in the Administrative Record was improper.  Pet. Op. Br. at 13. 

As the City responds, neither the City Council’s findings nor the Director’s May 8 report states that the Arborist made a written report.  They simply state that the Arborist inspected the site on April 13, 2023, noted its current condition, and determined that the asphalt had been completely repaired with no evidence of new cracking, that there were no new sidewalk damage or lifting, that in any event the sidewalk was to be completely removed as part of the Galvin Parkway Expansion Project, and that there were no new cracks in Petitioner’s concrete wall following their repair prior to October 2021.  AR 396-97, 435.  To the extent Petitioner’s argument is that the City was precluded from relying on discussions with or information received from the Arborist, she is mistaken.  Oral reports constitute substantial evidence (Harrington v. City of Davis, (2017) 16 Cal.App.5th 420, 440; City of Rancho Cucamonga, (2006) 135 Cal.App.4th 1377, 1387), as do staff conclusions that recite other evidence (Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 432-33).   See City Opp. at 19.  Moreover, the existence of the Galvin Parkway Expansion Project is in evidence.  See, e.g., AR 396-97.  The court also has judicially noticed its completion.  RJN Ex. G. 

The City Council did not fail to follow the procedure required by law. 

 

7. The City Council Did Not Violate Topanga 

An agency’s quasi-judicial land use decision is subject to the Topanga rule.   See City of Rancho Palos Verdes v. City Council, (1976) 59 Cal.App.3d 869, 885.  The decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.  Topanga, supra, 11 Cal.3d at 15.   

Less formality is required for the findings in land use cases, which are sufficient if they inform the parties and the court whether the decision is based on lawful principles.   Id. at 514-16.  The agency’s findings need not be stated with the precision required in judicial proceedings.  Craik v. County of Santa Cruz, (“Craik”) (2000) 81 Cal.App.4th 880, 884.  Where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision, it has long been recognized that the decision should be upheld if the agency in truth found those facts which as a matter of law are essential to sustain its decision.  Craik v. County of Santa Cruz, (2000) 81 Cal.App.4th 880, 884-85. 

Courts liberally construe findings (Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 421), “strongly presume” them to be correct (Fukuda, supra, 20 Cal.4th at 808), and resolve reasonable doubts in their favor.  Craik, supra, 81 Cal.App.4th at 884.  A city council need not make express findings of its own in reach a decision and may incorporate by reference a staff report as its implied findings on the matter.  McMillan v. American General Financial Corp., (1976) 60 Cal.App.3d 175, 183-85.  However, a mere recitation of statutory language, terse statements, and boilerplate findings do not contain sufficient details to bridge the analytic gap.  Glendale Memorial Hospital & Health Center v. State Dept of Mental health, (2001) 91 Cal.App.4th 129; City of Carmel-by-the-Sea v. Board of Supervisors, (1977) 71 Cal.App.3d 84, 91.  Findings are sufficient if the court “has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.  Great Oaks Water Co. v. Santa Clara Valley Water Dist., (2009) 170 Cal.App.4th 956, 971.  Courts may not substitute their own judgment for that of the agency because they believe a contrary finding would have been equally or more reasonable. City of Fairfield v. Superior Court, (1975) 14 Cal.3d 768, 778-79.  

Mabus weakly argues that the City Council did not comply with its obligation under Topanga to identify that specific evidence and explain why it specifically supported reversal of the Public Works Director’s decision.  If the court “cannot discern the analytic route the city council traveled from evidence to action,” the decision does not comply with Topanga.  The failure of the City Council to identify this evidence or explain how it proved an error requires reversal.  Pet. Op. Br. at 15. 

The court disagrees.  The City Council generally found that “substantial evidence for its decision and findings herein are found in the materials and comments presented at and in connection with the public hearings in 2020, 2021 and May 8, 2023, including without limitation the staff reports and related attachments, neighbors’ and residents’ written submittals and oral comments, staff oral presentations and comments, and City Council members’ questions, comments and deliberations.”  AR 939.   In more specific findings, the City Council addressed the supporting evidence – e.g., the former Director’s acknowledgement at the October 2021 hearing that the trees could be safely and feasibly saved (AR 929); the approval of the Galvin Street Parkway Expansion Project (AR 930, 936); the April 13, 2023 inspection by the City Arborist (AR 930931); the April 2023 report from Southern California Gas rebutting Petitioner’s claim of root intrusion into gas pipes (AR 931, 936); the May 8, 2023 staff report (AR 931); City staff’s responses to correspondence from Petitioner’s counsel (AR  931-32); photographs from 2021 and photographs submitted in May 2023 by Petitioner’s counsel (AR 932-33); Petitioner’s 2019 Request (AR 926); the May 8 and May 22, 2023 staff reports (AR 931) and testimony at the May 8th and 22nd hearings (AR 932-33).  Such references to the record are sufficient to discern the City Council’s analytic route.   

 

8. The City Council’s Findings Are Supported by Substantial Evidence 

Mabus argues that the evidence consists of: the original Arborist’s report and former Director’s tree removal determination, along with 21 photographs in support (AR 1-12); (b) the six photographs of new asphalt patch repairs to the street and sidewalk taken by the City in March 2021 (AR 757-62); (c) the 16 photographs of the site taken by City staffers on May 13, 2023 (AR 731-37); (d) the observations of City staff on May 16, 2023, presented in the May 22, 2023 staff report (AR 684-85); and (e) the summary of the Arborist’s April 13, 2023 report by City staff in the May 8, 2023 staff report (AR 692-93).  Pet. Op. Br. at 13-14. 

Petitioner argues that, while the observations of the staff and the summary of the Arborist’s report state that there is no new damage or cracks, this cannot be considered as substantial evidence that the former Director’s determination was in error.  These statements are clearly contradicted by unchallenged photographic evidence showing extensive accumulated damage resulting from years of root pressure.  AR 733, 760.  The photographs show that cracks had formed in all the new asphalt patches in just two years from 2021 to 2023.  Compare AR 757-60 to 589-91 and AR 761-62 to 751-53.  They also show that the new portion of the sidewalk installed in 2021 at the same time as the asphalt repairs has already lifted and shifted at least an inch in several places.  AR 748-49 and 731-32.  A photograph of a previously flat junction between the old concrete gutter and a new asphalt patch on the street shows that the roots have pushed up and created a ridge several inches high.  AR 733.  Pet. Op. Br. at 14. 

According to Mabus, the reports and the Resolution admit that these statements are not accurate.  The May 22, 2023 staff report admits that junction between the gutter and the asphalt patch was raised by underground root activity.  AR 685.  The May 8, 2023 staff report admits that there is limited damage to the new repairs.  AR 694.  And the Resolution repeatedly admits there is new damage but proposes that it will be corrected by future repairs.  AR 934-38.  Pet. Op. Br. at 14. 

Mabus incorrectly relies on the substantial nature of her evidence rather than whether there is substantial evidence to support the City Council’s findings.  In reply, Mabus sets forth the proper standard. Where there is conflicting evidence of a “basic fact,” the court is only bound to accept the municipality’s determination of that fact if it determines that a reasonable person looking at the same evidence could reach the same conclusion.  City of Fontana v. California Dept. of Tax & Fee Admin., (2017) 17 Cal. App. 5th 899, 916-936.  The court must consider the quality of the evidence on both sides of the fact question.  Doe v. University of Southern Calif., (2016) 246 CA4th 221, 248-53 (substantial evidence “is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value”).  Where the only evidence in support of an agency’s factual determination is of low quality and is contradicted by better, more reliable evidence, the court is not bound to accept the agency’s version of events. Gregory v. State Bd. of Control, (1999) 73 CA4th 584, 596-598 (hearsay and testimony of witness offering only conclusions was not sufficient to support the agency’s factual determination).  Reply at 7. 

Applying this standard, the City’s evidence is substantial.  As the City argues, the City Council’s findings that the Request failed to satisfy the criteria required by CCMC section 9.08.210.C.2.b, and that the former Director’s decision was based on error and disputed findings under CCMC section 9.08.210.F, are supported by substantial evidence, both from the proceedings in 2020 and 2021, and from the reconsideration proceedings in May 2023.  This evidence includes the following: (a) the damage claimed in Petitioner’s 2019 Request had been adequately repaired and had not reoccurred in the past two years (AR 396-98 (May 8, 2023 staff report); AR 865 (May 22 staff testimony); (b) the damage was not likely to recur, especially given the (now completed) Galvin Parkway Expansion Project (AR 396-97, 864-67, 870 (May 22 RPI Jablin testimony); see also AR 884 (admission by Petitioner’s counsel that the Galvin Parkway Expansion Project would solve the problem for a few years)); (c) Petitioner’s nuisance-related claims in her 2019 Request asserting falling limbs and gas line damage were unfounded (AR 398); (d) the damage asserted to the sidewalk and roadway was limited in size and impact and relatively minor (AR 398, 865); and (e) Petitioner’s photographs did not demonstrate ongoing, repeated, or extensive damage or otherwise rebut staff’s conclusions. (AR 685 (May 22, 2023 staff report).6   

This is substantial evidence. 

 

E. Conclusion 

The Petition is denied.  The City’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on both other 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 and writ along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for September 17, 2024 at 9:30 a.m.