Judge Mitchell L. Beckloff, Case 21STCP00009 2023-03-10 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00009, Date: 2023-03-10 Tentative Ruling

Petitioner, Vahe Saradjian, seeks a writ of mandate compelling Respondent, Phillip Lanzafame, in his role as former Director of Community Development for the City of Glendale,[1] to: (1) issue a home sharing license to Petitioner; (2) comply with the City’s “Sundown Resolution” by investigating racially motivated police service calls since 2017; (3) create a policy requiring the City to investigate racially motivated police calls before any decision is made by Respondent regarding home sharing licenses; and (4) not act on any decision to deny any home sharing licenses unless Glendale Municipal Code (GMC) section 5.110 is revised to ensure compliance with the City’s Sundown Resolution.

Petitioner’s request for judicial notice of exhibits 1 through 11 is granted. The court grants judicial notice of Exhibits 1 through 4 pursuant to Evidence Code section 452, subdivision (c) and Exhibits 5 through 11 pursuant to Evidence Code section 452, subdivision (d). The court judicially notices Exhibits 5 through 11 as to their existence and filing only but not the truth of the matters asserted therein.

On June 25, 2020, Petitioner filed his application for a home sharing license (Application) with the City. (AR 1-11.)

The City’s police department reviewed the Application. (AR 20.) The police department recommended the Application be denied. The police department based its recommendation on numerous service calls to Petitioner’s residence as well as citations issued for noise nuisances, excessive noise, littering negatively impacting the neighborhood. (AR 20, 148, 157.)

On August 4, 2020, the City denied the Application pursuant to GMC sections 5.110.040, subdivision (D)(2)(d), 5.110.040, subdivision (D)(6), and 5.110.040, subdivision (D)(7). The City found the “subject property has had numerous calls for service and citations issued by the Glendale Police Department regarding multiple parties creating noise nuisances, excessive noise, and littering violating city regulations that have had a negative impact on the neighborhood and city services.” (AR 12.)

On August 11, 2020, Petitioner appealed the City’s decision to deny his Application. (AR 13.)

A hearing officer conducted a hearing on Petitioner’s appeal on October 14, 2020. (AR 140.) Six days later the hearing officer issued a decision and order denying Petitioner’s appeal. (AR 128-130.)

Petitioner challenges the denial of the Application under Code of Civil Procedure section 1094.5.

Petitioner also contends he is entitled to relief pursuant to Code of Civil Procedure section 1085. Petitioner argues: “Respondent’s denial of Petitioner’s [Application] was an abuse of discretion because Respondent failed to investigate Petitioner’s complaints that he and his paid guests were the victims of racially motivated police service calls by people in his neighborhood whose motive was to stop him from renting to Black individuals.” (Opening Brief 3:28-31.)

As to the City’s Application decision, under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Code of Civil Procedure section 1094.5 provides for two standards of judicial review of administrative decisions: substantial evidence or independent judgment. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 366.) To determine what standard of review to apply under Code of Civil Procedure section 1094.5, courts must examine whether the administrative decision “substantially affect[s] vested, fundamental rights.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) If the administrative agency’s decision substantially affects a vested fundamental right, the trial court uses the independent judgment standard. (Ibid.)

The City’s denial of Petitioner’s Application does not involve a vested right. (Opening Brief 4:11 [“This was an application for a new License and not a renewal.”]; Bixby v. Pierno, supra, 4 Cal.3d at 144 [fundamental vested right is one already possessed as opposed to one not yet acquired and merely sought]; Coldwell Banker & Co. v. Department of Insurance (1980) 102 Cal.App.3d 381, 406-407.) Therefore, the City’s decision on the Application is reviewed by substantial evidence.

On substantial evidence review, “the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision.” (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 616.) The court must “accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision]. [Citation.] Credibility is an issue of fact for the finder of fact to resolve [citation], and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact. [Citation.]” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074.)

Under this “deferential” standard of review, the court presumes the correctness of the administrative ruling. (Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419; see also Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073 [substantial evidence standard is “extremely deferential standard of review”].)

Finally, questions of whether the administrative agency proceeded in the manner required by law is a legal question the court reviews de novo. (Duncan v. Department of Personnel Admin. (2000) 77 Cal.App.4th 1166, 1174.)

As to Petitioner’s claim the City failed to consider his claims of racial animus to explain police service calls to his residence, Petitioner’s claim would seemingly be governed by Code of Civil Procedure section 1085. Petitioner asserts “Respondent had a nondiscretionary duty to investigate Petitioner’s complaints of racial discrimination in compliance with the City’s Sundown Resolution . . . .” (Opening Brief 4:15-17.)

“may be issued by any court to any . . . person . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

Whether the City Provided Petitioner with a Fair Trial on the Application:

Fair hearing requirements are “flexible” and entail no “rigid procedure.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807.) “Issues related to bias of the hearing officer or agency, the admission or exclusion of witnesses and evidence, and hearing procedures have all given rise to fair trial claims.” (CEB, Cal. Administrative Mandamus (3^rd ed. 2018) § 6.35, p. 6-30.) Code of Civil Procedure section 1094.5 “fair trial” requirement “is simply a ‘fair administrative hearing’ ” that affords the petitioner a “reasonable opportunity to be heard.” (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463 [cleaned up].)

First, Petitioner argues witness, Sergeant Ziegler, of the City’s police department “provide[d] unreliable and disingenuous testimony” during the administrative hearing. (Opening Brief 6:3-32.) Petitioner supports his claims with specific testimony from Sergeant Ziegler he believes was thoroughly impeached through his counsel’s cross examination. For example, Sergeant Ziegler indicated during his direct testimony that the City’s police officers had to “break up large parties” at Petitioner’s residence with 20 to 30 people in attendance. (AR 148.) On cross-examination, Sergeant Ziegler reported he could not remember the specific dates of the parties and his information had come from a review of records. (AR 154.) When asked how many parties of that size he recalled witnessing, Sergeant Ziegler, “to the best of [his] recollection, there [was] one.” (AR 156.)

Petitioner contends: “Sergeant Ziegler’s testimony earlier of parties (identifying more than one by the use of the ‘s’) was therefore disingenuous and the false testimony was intended to prejudice the Petitioner.” (Opening Brief 6:18-19.) Petitioner’s argument, however, mischaracterizes Sergeant Ziegler’s testimony. Sergeant Ziegler testified his record review noted parties with 20 to 30 people in attendance. Sergeant Ziegler only witnessed one of the parties.[3] That Sergeant Ziegler only witnessed one of multiple parties does not make any of his testimony “disingenuous” as claimed by Petitioner.

Petitioner also notes Sergeant Ziegler testified “there were also fights to the front of [Petitioner’s] residence as well, as a result of those parties.” (AR 148.) On cross-examination Sergeant Ziegler clarified:

“What is said was there’s large parties, and in those parties, there were disturbances of which the service violation notices were issued, one of which Officer Simian issued, and there are other incidents where disturbances -- disturbance violation notices were issued. And in those calls for service, we received calls or notifications of fights. Officer Simian indicated that there was a fight call. When they got there, there -- the parties indicated that they were not fighting. So there were calls for reports of fights, at which officers had to go. I personally did not go there. It is just based on the review of this . . . history at [Petitioner’s residence]. Those were the type of calls for services that we received.” (AR 157.)

When pressed by Petitioner’s counsel on the issue, Sergeant Ziegler explained his testimony about fights were in calls for service—“in those calls for service, we received calls or notification of fights.” (AR 157.) Sergeant Ziegler testified he did not witness a fight because “he wasn’t there.” (AR 158.) He also indicated when another officer responded to a service call, “once he got there, there was no fight.” (AR 158.)

Petitioner’s claim Sergeant Ziegler offered disingenuous testimony is wholly unpersuasive. Considered in its totality, the court cannot find the testimony was false or disingenuous. (Even assuming that is the court’s role here with substantial evidence review.)

Moreover, whether Sergeant Ziegler was credible is not a fair hearing argument—it is a credibility issue related to the quality of the evidence before the hearing officer. The weight given to Sergeant Ziegler’s testimony by the hearing officer does not inform on the general fairness of the administrative proceedings. Importantly, as noted earlier, on substantial evidence review, “[c]redibility is an issue of fact for the finder of fact to resolve . . . .” (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1074.)

Second, Petitioner argues the attorney representing the City at the administrative hearing misinformed the hearing officer of the grounds for the Application’s denial during the hearing. Specifically, Petitioner argues the City’s attorney improperly represented the City denied the Application in part because Petitioner had been sharing his residence without a license since May 2020. (Opening Brief 7:1-8:10. [“. . . the City Attorney testified in such a manner that would lead the [hearing officer] to believe that [Petitioner’s] failure to obtain said License by said date was a factor in the denial.”])

A fair reading of the hearing transcript does not support Petitioner’s argument. While there is evidence Petitioner let his residence on a short-term basis without a license, the hearing transcript makes clear the City denied the Application based on the property’s history of police service calls. Petitioner’s counsel made clear the City represented to her “the sole basis for the denial is the police department’s recommendations, that they [were] not holding the fact that [Petitioner] applied for his license late in any way . . . as a basis for the denial.” (AR 194. See also AR 188-192, 194-195.)

Moreover, the hearing officer’s decision makes no reference to Petitioner’s failure to obtain a license while operating his short-term rental business. (AR 128-130.) The hearing officer’s decision notes the City’s decision to deny the Application was “based, in large part, on the service call reports . . . .” (AR 130.) The hearing officer’s decision focuses on those service calls and recognizes “not all the complaints were substantiated by the Glendale Police Department upon their arrival.” (AR 130.) The hearing officer noted:

“. . . the service calls and the record indicate that some calls were substantiated and resulted in verbal warnings and/or advisories. Additionally, several citations and Disturbance Violation Notices were issued by the Glendale Police Department to [Petitioner] and his home sharing guests.” (AR 130.)

Importantly, Petitioner has shown no prejudice even assuming the hearing officer erred by permitting the City’s attorney speak (and/or testify) during the hearing. "[E]rror occurring in an administrative proceeding will not vitiate the ruling unless it actually prejudices the petitioner (Webster v. Trustees of Cal. State University (1993) 19 Cal.App.4th 1456, 1464.)

Third, Petitioner contends the City used an impartial hearing officer for the hearing. The court notes as a preliminary matter, Petitioner’s argument is based wholly on speculation.

Petitioner contends the City represented (prior to the administrative hearing) it had no relationship with the hearing officer. The City represented to Petitioner the hearing officer “is an independent contractor made available to the City and hired through Data Tech, Inc. [and] hearing officer is in no way affiliated with the City and we know nothing about him or his background.” (AR 93-94.) The City explained: “The City has a contract with Data Ticket to process administrative citations and schedule hearing officers (who are independent contractors and not employees of Data Ticket) for appeals and administrative citations.” (AR 94.)

Petitioner suggests the City’s representation might have been false. To support his claim, Petitioner reports: “. . . during the hearing, [the City’s] witness, Rene Sada[4] call[ed] the [hearing officer] by his first name ‘Steve’ leading Petitioner to believe that such a relationship existed and was deliberately hidden from Petitioner in violation of rules of ethics and fairness.” (Opening Brief 8:16-18.)

A review of the hearing transcript reveals the hearing officer introduced himself at the beginning of the hearing as “Steve Napolitano.” (AR 142.) At the beginning of the hearing, the hearing officer also asked Sada whether he was “for the city.” (AR 143.) The hearing officer’s question suggests a lack of familiarity with Sada.

Petitioner also contends: “During the course of questioning, the [hearing officer] continuously made comments to deter [Petitioner’s] Attorney from questioning [Petitioner’s] witnesses, who lacked personal knowledge, creating an undignified and hostile decorum. [The hearing officer] did not act as an impartial trial of facts.” (Opening Brief 8:19-21.) The argument is undeveloped and made without citation to the record. Petitioner fails to meet his burden on the issue. (See Young v. City of Coronado (2017) 10 Cal.App.5hh 408, 419. See also Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

Whether the Hearing Officer’s Findings Are Supported by Substantial Evidence:

Petitioner argues the hearing officer impermissibly relied on “non-reliable hearsay evidence and evidence which did not support the findings.”[5] (Opening Brief 8:24-25.)

As an initial matter, the hearing transcript does not indicate Petitioner ever objected to any evidence received at the administrative hearing on hearsay grounds. (AR 139-217.) Any objection not raised during the hearing is waived.[6] (See, e.g., Tennant v. Civil Service Commission of City of Los Angeles (1946) 77 Cal.App.2d 489, 498.) Petitioner’s failure to object to the evidence at the time of the administrative hearing—including both the Staff Report, dated September 16, 2020 (AR 6) and the City’s Exhibit 5 which contained a collection of call records for police services (AR 6, 51-92)—permitted the hearing officer to consider the evidence.[7] (See Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 302.)

In addition to challenging the admissibility of the evidence relied upon by the hearing officer, Petitioner suggests Sergeant Ziegler’s testimony lacked evidentiary value because he lacked personal knowledge about each call report. (Opening Brief 10:5-22.) The court finds Sergeant Ziegler’s testimony constituted substantial evidence.[8]

Sergeant Ziegler made clear the basis of his recommendation of the Application; it was not a mystery. Sergeant Ziegler testified—in the context of making a recommendation on a license application—he did not interview the investigating officers identified in the call logs, but he did “pull[] call service histories of this and then not [sic] police reports. [He further noted] [t]hese are incident histories. So officers would respond to the location, and if they determined that there was no evidence a crime, they would clear. To [his] knowledge, there were no generated police reports that would create, you know, an investigation. So that's how [he] made [his] decision.” (AR 167-168.) Sergeant Ziegler relied on police department records and a history of service calls at Petitioner’s residence to recommend Petitioner’s Application be denied.

Petitioner also contends the hearing officer “deterred” his counsel from questioning Sergeant Ziegler. Petitioner complains the hearing officer “repeatedly chastised” his counsel “and rushed her to conclude her questioning of Sergeant Ziegler creating a hostile decorum.” (Opening Brief 10:28-29.)

First, an administrative hearing does not become unfair merely because a hearing officer controlled the proceedings and required relevant questioning of witnesses. A hearing officer may take active steps to control the proceedings and maintain order. (Cf. Code Civ. Proc., § 128, subd. (a)(3).)

For example, the hearing officer instructed Petitioner’s counsel not to engage in a colloquy with Sergeant Ziegler during her cross-examination of him. (See AR 174-175.) The hearing officer remarked to Petitioner’s counsel, “Okay. We’re not going back and forth here. Are you done with your questions . . .?” (AR 175.) When Petitioner’s counsel said she had “other questions regarding other service calls . . .”, the hearing officer stated: “That’s – that’s fine. But I just – let’s get to the questions, then. Because we are asking a lot of things that -- that we know he can’t answer because he didn’t write the reports and he wasn’t there.” (AR 176.) After Petitioner’s counsel complained Sergeant Ziegler did not appear to be “the person most knowledgeable” and it made her “job very difficult, if [Sergeant Ziegler] says, ‘I don’t know. I don’t know. I don’t know. . . . It’s just unfair.” (AR 176.) The hearing officer acknowledged Petitioner’s counsel’s position: “I – I understand your point.” (AR 176.)

While the hearing transcript indicates that the hearing officer interjected during the Petitioner’s counsel’s cross-examination of Sergeant Ziegler (see e.g., AR 169-174), Petitioner’s counsel questioned Sergeant Ziegler and obtained evidence from him. Petitioner has not demonstrated the hearing officer precluded Sergeant Ziegler from responding to relevant questions within his personal knowledge. Instead, the hearing officer interrupted when he deemed questions speculative or unreasonable. For example, the hearing officer interrupted Petitioner’s counsel’s examination when she questioned Sergeant Ziegler about why the investigative officer did not provide a comment in a service log, or whether facts in the service log were true despite Sergeant Ziegler’s lack of personal knowledge. (AR 169-174.)

Petitioner’s argument about the hearing officer and his counsel’s examination of Sada is equally unpersuasive. The court cannot find the hearing officer “deterred” Petitioner’s counsel’s examination of Sada. Petitioner’s counsel was not prevented from obtaining specific relevant information from the witness. Instead, the hearing officer sought to discourage Petitioner’s counsel from requesting Sada speculate.

Further, given the evidence elicited from both Sergeant Ziegler and Sada despite Petitioner’s claims of interference, Petitioner has not demonstrated any prejudice. As noted earlier, "error occurring in an administrative proceeding will not vitiate the ruling unless it actually prejudices the petitioner." (Webster v. Trustees of Cal. State University, supra, 19 Cal.App.4th at 1464.)

Petitioner also appears to argue the disturbance violation notices (DVNs) issued by the City were unwarranted.

“The decision of the City was based, in large part, on the service call reports summarized above. As pointed out by [Petitioner], not all the complaints were substantiated by the Glendale Police Department upon their arrival. However, the service calls and the record indicate that some calls were substantiated and resulted in verbal warnings and/or advisories. Additionally, several citations and Disturbance Violation Notices were issued by the Glendale Police Department to [Petitioner] and his home sharing guests. Citations and DVNs are taken as refutable prima facie evidence that the violations occurred. The evidence submitted by [Petitioner] regarding the service calls is insufficient to show that none of the calls can reasonably substantiate the City’s denial. Moreover, there is nothing in the record to indicate that any of the citations or DVNs issued between February 15, 2020 and June 26, 2020 were issued in error, nor has anything been submitted to show that they have been waived or dismissed. Thus, the City exercised proper due diligence in reviewing the service calls, and there are enough service calls with substantiated dispositions, including citations and DVNs, to reasonably support the City’s denial.” (AR 130.)

The record contains multiple DVNs issued from April 28, 2020 and June 6, 2020. (AR 89-92 [Petitioner], 117-122 [renters].) At least one service call and DVN was corroborated by Officer Simian who testified he personally responded to a service call and issued a DVN on June 5, 2020 at 11 p.m. (AR 150-152.)[9] The court finds the hearing officer’s consideration of the DVNs and the service log to support the decision was proper.

As noted earlier, Petitioner also seeks relief under Code of Civil Procedure section 1085. Specifically, Petitioner argues: “Respondent, as the head of Community Development should have investigated the calls for service given: (1) Petitioner’s complaints that his guests were the victims of racial discrimination; (2) The fact that Respondent had a nondiscretionary duty to investigate racial discrimination under City’s Sundown Resolution; and (3) Some of the calls for police services, on their face showed unsubstantiated calls.” (Opening Brief 9:4-8.)

The City argues any duty it has to investigate service calls is a discretionary, not ministerial duty. The court agrees.

Relying on the City’s Sundown Resolution (Pet., RJN, Ex. 1), Petitioner argues the City had a nondiscretionary duty to enforce the City’s commitment to work “. . . towards building an antiracist Glendale where people of all races and cultural backgrounds are welcome to live in prosper.” (Opening Brief 4:18-20.)

The court finds the City’s Sundown Resolution does not create a clear, ministerial, nondiscretionary mandatory duty.

“A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.) “In order to construe a statute as imposing a mandatory duty, the mandatory nature of the duty must be phrased in explicit and forceful language.” (Quackenbush v. Superior Court (1997) 57 Cal.App.4th 660, 663, 67 Cal.Rptr.2d 300.)

Petitioner does not identify any clearer statutory duty under the law. (Reply 1:2-3:21.) Rather Petitioner opines:

“[The City’s] power to grant or deny Licenses gives Respondent the distinct power to determine who has the right to place their head on a pillow which is on a bed in a home within the City’s limit to stay overnight in a short term rental via licensing. In other words, [the City] has the power to determine who can stay overnight in Glendale and who can be excluded. This power gives [the City] the power to discriminate or to be used as a tool of others to discriminate.”(Reply 1:18-22.)

That Petitioner may have some other legal claim against the City does not inform on whether Petitioner has demonstrated his entitlement to relief under Code of Civil Procedure section 1085. By failing to identify a mandatory, ministerial and nondiscretionary duty, Petitioner has not demonstrated he is entitled to a traditional writ of mandate.

[1] As Respondent has been named in his official capacity with the City, for ease of reference, the court treats the City as the Respondent.

[2] Respondent suggests the matter is moot because the City has repeatedly advised Petitioner it would “almost certainly” issue a home sharing license if Petitioner re-submitted an application for the license.

[3] Petitioner’s counsel asked Sergeant Ziegler: “To the best of your memory, what are the – how many incidents do you recall seeing where there were 20 to 30 persons at [Petitioner’s residence]?” (AR 156 [emphasis added].)

[4] Sada works for the City’s Community Development Department. (AR 143.)

[5] The City argues hearsay evidence is permissible in administrative hearings, citing Government Code section 11513. (Opposition 6:11-7:14.) Government Code section 11513, however, applies only to administrative proceedings for state agencies. While not applicable, the provision is “helpful as indicating what the Legislature believes are the elements of a fair and carefully thought out system of procedure for use in administrative hearings.” (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 91.) Moreover, the court notes the City’s municipal code contains a provision similar to Government Code section 11513. GMC section 1.24.140 provides: “Administrative hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply. Other than copies of citations, notices, notice and orders, and inspection reports served on the responsible parties as part of the enforcement action giving rise to the hearing, no pre-hearing discovery of the city’s evidence shall be permitted.” While not applicable here because this is not a municipal code enforcement action, the provision does indicate the City’s view of appropriate and fair administrative procedures.

[6] Petitioner does not address his counsel’s failure to object and resulting waiver. (See Reply 4:27-5:4.)

[7] Petitioner also argues the City’s “witnesses lacked personal knowledge to lay any kind of foundation or explain the exhibits in any meaningful way.” (Opening Brief 8:30-31.) Again, Petitioner failed to object during the hearing on foundation grounds at any time. Accordingly, Petitioner waived any objection. Petitioner does not address the waiver issue in his Reply Brief.

[8] Petitioner again asserts Sergeant Ziegler provided disingenuous testimony. As noted earlier, the court disagrees.

[9] Petitioner argues he never received the DVNs and thus was denied due process. Petitioner did not make the argument during the administrative hearing. The issue has therefore not been exhausted. The general rule is that “[a]dministrative agencies must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which they have jurisdiction to act before those issues are raised in a judicial forum.” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 510.) Moreover, it appears from the testimony of Officer Simian that Petitioner was aware of at least one DVN but left to evade “hand-to-hand” service. (AR 151.)

[10] For the first time in his Reply Brief, Petitioner argues the hearing officer improperly placed the burden on Petitioner to show that none of the service calls could be substantiated and that the hearing officer applied the wrong standard. (Reply 3-4.) Petitioner’s failure to raise the argument in his Opening Brief operates as a waiver.