Judge Mitchell L. Beckloff, Case Number: 21STCP02785, Date: 2023-09-01 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP02785, Date: 2023-09-01 Tentative Ruling

Respondent, City of Los Angeles, demurs to the single cause of action alleged in the first amended petition for writ of mandate (FAP) filed by Petitioner, Velmat LP.

Respondent’s unopposed request for judicial notice (RJN) of Exhibits A through C is granted.

Prior to this hearing, on August 30, 2023, Petitioner notified Respondent and the court it would be relying on Lippman v. City of Oakland (2017) 19 Cal.App.5th 750 (Lippman) to support its argument. Petitioner advised “[t]he Lippman case is apparently controlling.”

The court previously sustained a demurrer filed by Respondent to Petitioner’s original petition. Like the FAP, the original petition asserted a cause of action for traditional mandate under Code of Civil Procedure section 1085.

The court incorporates it prior ruling on demurrer dated June 30, 2023 herein. That decision sets forth the applicable law as to demurrers generally as well as principles of exhaustion of administrative remedies.

Without regard to Respondent’s claims (i) Petitioner has not identified an applicable duty enforceable through traditional mandate and (ii) Petitioner has not demonstrated Respondent arbitrarily or capriciously exercised its discretion related to Petitioner’s requests to correcting a certificate of occupancy, it is clear Petitioner has failed to exhaust its administrative remedies.

The FAP admits Petitioner prepared an appeal but did not file it. (FAP, ¶ 38.) Petitioner explains pursuing its administrative appeal “is futile as [the appeal board] is an illegally constituted board and unconstitutional board without the power to make the required determination in the present case.” (FAP, ¶ 7.)

Petitioner’s opposition does not explain why the Board of Building and Safety Commissions (Board) is “illegally constituted” and/or “unconstitutional.”

Section 501 of the City of Los Angeles Charter (Charter) created the Board consisting of “five commissioners . . . .” Los Angeles Municipal Code (LAMC) section 22.21 describes the duties of the Board. It does not appear Petitioner contends the Charter or LAMC provisions are unconstitutional. Petitioner also does not suggest the Board, as established by the Charter, is illegally constituted.

Instead, Petitioner asserts the Board’s commissioners do not meet the requirements section 1.8.8.1 of the California Building and Safety Code (Building Code). The Building Code is incorporated into state law through the State Housing Law (Health & Saf. Code, § 17910 et seq.).” (Lippman, supra, 19 Cal.App.5th at 757.) Thus, section 1.8.8.1 of the Building Code is applicable here.

Petitioner contends the Board’s commissioners are not “knowledgeable in the application of the building codes” as required by Building Code section 1.8.8.1. Petitioner argues one commissioner is a “licensed psychotherapist with an extensive background in the mental health field” but nothing suggests the commissioner has any experience with building codes. Similarly, another commissioner, according to Petitioner, is engaged in political and civil activities with no apparent experience with building codes. (Opposition 4:20-5:7.) Petitioner argues the issue is not about pleading—it is “a discovery issue.” (Opposition 5:10.)

Petitioner has not suggested and has not pleaded it is precluded from raising the Board’s qualification during an administrative appeal. Whether a hearing officer is disqualified from hearing a matter may be asserted in the administrative proceedings. (Cf. Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 91 [petitioner must raise issue of bias during administrative proceeding]; Haas v. County of San Bernardino (2002) 27 Cal.4hh 1017, 1021-1022 [bias issue raised in administrative proceeding].)

Lippman is not helpful to Petitioner here. Preliminarily, the court notes the petitioner in Lippman exhausted his administrative remedies. (Lippman, supra, 19 Cal.App.5th at 755.) Lippman addressed whether the City of Oakland’s administrative process complied with state law. The Court of Appeal found a single hearing officer could not hear challenges to citations for blight and substandard living conditions. (Id. at 754.) The Court of Appeal reasoned the Building Code, incorporated into the State Housing Law, applied and a single hearing officer model did not comply with the Building Code. (Id. at 760.)

As noted earlier, Petitioner does not challenge the Charter or LAMC provisions establishing the Board—a situation (perhaps) comparable to Lippman. Instead, Petitioner challenges the qualifications of certain commissioners on the Board. By raising the issue administratively, the Board and Petitioner may fully develop the administrative record for judicial review, if necessary.

Further, it would appear if Petitioner exhausted its administrative remedies, Petitioner could challenge the Board’s decision, if necessary, through administrative mandate. (Code Civ. Proc., § 1094.5.) Under such circumstances, Petitioner would not be required to demonstrate Respondent failed to comply with a mandatory duty or exercised its discretion in an arbitrary and capricious manner.[1]

Finally, given the underlying facts, exhaustion here is appropriate. Raising the issue before the Board will allow the Board to use the “common sense” Petitioner alleges is missing here. (Opposition 3:9-10.)

[1] While a mandatory duty may exist, Petitioner has yet to identify it. Given the underlying facts, Petitioner may be able to plead Respondent has acted arbitrarily given Respondent’s housing department is “now requiring a new certificate of occupancy” and has cited Petitioner for “unapproved use or occupancy” despite past practice. (FAP, ¶¶ 15, 18 [emphasis added].) Additionally, Petitioner has alleged more Respondent issued two certificates of occupancy that are in conflict more than 90 years ago. (FAP, ¶ 16.)