Judge Mitchell L. Beckloff, Case Number: BS170149, Date: 2023-08-09 Tentative Ruling

Petitioner, Browning-Ferris Industries of California, Inc., petitions for a writ of administrative mandate directing Respondents, the County of Los Angeles, the Los Angeles County Department of Regional Planning (DRP), Richard Bruckner, the Director of DRP (Director), and Hearing Officer Gina Natoli (collectively, Respondents) to: (1) vacate DRP’s October 25, 2016 Notice of Violation (NOV); (2) set aside the hearing officer’s decision after remand denying Petitioner’s appeal of the NOV; (3) vacate the Director’s decision to impose a $174,000 civil penalty on Petitioner; and (4) refund the $174,000 penalty paid under protest by Petitioner.

Petitioner’s request for judicial notice (RJN) filed June 8, 2023 is DENIED.[1] Respondents’ objection is SUSTAINED. Petitioner requests judicial notice of information on the webpage of the American Society of Civil Engineers (ASCE) for the purpose of challenging the expert qualifications of Martin Aiyetima, the County’s witness in the administrative proceedings.

In general, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (Code Civ. Proc., § 1094.5, subd. (e).) Petitioner seeks to augment the administrative record with evidentiary material. However, Petitioner does not demonstrate that it could not, with reasonable diligence, have submitted the ASCE materials or similar evidence during the administrative proceedings to challenge Aiyetima’s expert qualifications. A request for judicial notice cannot be used to circumvent the rules constraining the admission of extra-record evidence. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, n. 10.)

On June 13, 2018, the court (Hon. Amy D. Hogue) conducted a trial on the original writ petition in this matter. On that date, the court granted the petition finding the hearing officer’s decision did not provide sufficient findings to comply with Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515 [Topanga]. The court’s decision summarized the administrative proceedings and the relevant facts. (See CB 9-12.)[2] The court adopts the prior summary of the case from its June 13, 2018 decision and incorporates it herein by reference.

In brief, Petitioner operates the Sunshine Canyon Landfill (Landfill) which straddles the boundary between the City of Los Angeles and the County and is governed by City and County land use permits. At issue in this case is Condition 45.N of the conditional use permit (CUP) issued by the County on February 6, 2007. Condition 45.N states in full:

“The Permittee shall submit a quarterly report to the Director of Public Works identifying: (1) all fugitive dust and odor complaints from local residents that the Permittee has received for that quarter regarding the Landfill; (2) all notices of violation issued by the SCAQMD or the County LEA; and (3) all measures undertaken by the Permittee to address these complaints and/or correct the violations. The Director of Public Works and the DPH-SWMP shall each have the authority to require the Permittee to implement additional corrective measures for complaints of this nature when such measures are deemed necessary to protect public health and safety.” (CB 1407.)

Beginning around 2009, the Southern California Air Quality Management District (SCAQMD) began receiving an increased number of odor complaints related to the Landfill. (CB 9-10.)

On March 30, 2016, the County’s Department of Public Works (DPW) sent Petitioner a letter memorializing certain requirements to which the parties agreed at a February 10, 2016 meeting to “ensure that the Landfill’s gas collection and control systems [GCCS] are adequate to

manage the landfill gas being generated at the Landfill as well as its ability to control odor nuisance . . . .” (CB 327.) Among other actions, the March 30, 2016 letter required Petitioner to submit a “5-year master plan,” “interim milestones,” and information regarding its operation of the GCCS and efforts to address odor nuisance by May 1, 2016. (CB 327-331.) Petitioner submitted responses to the DPW letter on April 5, April 27 and May 12, 2016. (CB 10.)

On July 14, 2016, DPW notified Petitioner that Petitioner had not fully complied with all of the requirements of the March 30, 2016 letter. DPW attached a table setting forth the alleged deficiencies in Petitioner’s responses. (CB 10, 334-340.) DPW directed Petitioner to provide revised milestones and outstanding reports and information no later than August 11, 2016. (CB 335.) On August 11, 2016, Petitioner submitted a response to DPW’s July 14, 2016 letter. (CB 11.)

On October 25, 2016, DRP issued the NOV to Petitioner alleging a violation of Condition 45.N. (CB 284-285.) The NOV directed Petitioner to “provide the requested information listed in the July 14, 2016 [DPW] letter, including attachments, to the satisfaction of Public Works.” (CB 284-285.) The NOV noted Petitioner would subject to a penalty of $1,000 per day for violating the CUP. (CB 284-285; see also CB 1391-1392 [Condition 11].)[3]

Petitioner appealed the NOV. A hearing officer for the County conducted an administrative hearing on May 2, 2017. On July 20, 2017, the hearing officer issued her decision finding Petitioner had violated Condition 45.N. The hearing officer imposed a penalty of $1,000 per day from October 25, 2016 through April 17, 2017 pursuant to Condition 11 of the CUP. (CB 9-12; CB 1791-1794.)

On June 13, 2018, the court found the hearing officer’s July 20, 2017 decision “failed to identify what requests [for information] were made and what information Petitioner provided or failed to provide.” (CB 13.) The court explained:

“As Petitioner correctly points out, [Condition] 45.N does not specify compliance ‘to the satisfaction’ of the DPW. Instead, the Hearing Officer should objectively decide (1) whether each of DPW's requests adequately articulated and gave notice of ‘additional corrective measures . . . necessary to protect public health and safety’ in accordance with [Condition] 45.N; and (2) whether each of Petitioner's various responses adequately or inadequately implemented the ‘corrective measures.’ (CB 14.)

On February 1, 2022, the hearing officer conducted a remand hearing, heard arguments from the parties and took the matter under submission. On March 23, 2022, the hearing officer issued “Additional Findings of The Hearing Officer and Order County of Los Angeles Appeal of Notice of Violation Enforcement Case No. RPZPE2016002500” (Decision After Remand). (CB 17-45.)

As relevant to the supplemental petition, the hearing officer made the following additional findings in the Decision After Remand:

“18. Appellant testified at the 2 May 2017 hearing that DPW had not ordered [Petitioner] to undertake any corrective actions to reduce odors, . . . . However, it is not reasonable to conclude that the CUP could anticipate every report that may ever be necessary to provide to DPW. It is reasonable to conclude that DPW would not necessarily know which corrective measures to order until it had pertinent information about the gas collection and control system such as that required in the 30 March and 14 July 2016 letters.

19. It was reasonable for DPW to require information from [Petitioner], the required information was obtainable by [Petitioner], and such requirement is authorized within the scope of Condition 45.N.

49. To determine whether additional corrective measures are sufficient to alleviate the excessive odor nuisance and to show [Landfill] is operated or managed properly and efficiently, DPW must have the information it requests.” (CB 22, 44.)

The hearing officer then analyzed whether Petitioner complied with 19 different “information requirements” set forth in the July 14, 2016 DPW letter and attachment. The hearing officer found Petitioner had not timely complied with all such requirements; Petitioner therefore violated Condition 45.N; and Petitioner was properly fined $1,000 per day from October 25, 2016 (the date of the NOV) to April 17, 2017, “the date of submittal of all requested information.” (CB 22-45.)

On May 4, 2022, Petitioner filed its supplemental petition for writ of mandate challenging the Decision After Remand. Petitioner also filed a new petition and complaint challenging the Decision After Remand (Los Angeles Superior Court Case No. 22STCP01680).

On October 27, 2022, the court entered an order on the parties’ stipulation “for further proceedings on County’s return to writ.” Through the stipulated order, Petitioner’s challenge to the Decision after Remand is to be decided in this proceeding.[4]

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).)

Petitioner contends judicial review here is governed by the court’s independent judgment. (Opening Brief 6:21-22.) Petitioner argues such standard of review is required because “the Due Process requirement of adequate notice referenced in Judge Hogue’s Order calls for this Court’s independent judgment where criminal sanctions and civil penalties are involved.” (Opening Brief 6:28-7:2.) Petitioner also claims the material facts are “undisputed” such that “independent judgment is also appropriate . . . .” (Opening Brief 7:6-8.)

“The courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights and thus requires independent judgment review.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) “The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power.” (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.) “Administrative decisions which result in restricting a property owner's return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights.” (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325.) “In contrast, the independent judgment test is applied to review administrative decisions that will drive an owner out of business or significantly injure the business's ability to function.” (Benetatos v. City of Los Angeles, supra, 235 Cal.App.4th at 1281.)

Petitioner’s challenge here is to a monetary penalty of $174,000 based on a finding Petitioner violated the Condition 45.N of the CUP. “There is no vested right to conduct a business free of reasonable governmental rules and regulations.” (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 23.) Petitioner also does not demonstrate the $174,000 penalty will materially impact its business. (See Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529 [expiration of CUP and right to continued operation of business].)[5]

The court finds substantial evidence review governs here on the hearing officer’s factual findings. That is, the County’s imposition of a civil penalty through Condition 11 of the CUP (based on a violation of Condition 45.N) does not implicate a fundamental right for which the court’s independent judgment is required. (Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 464. [“Since this case involves only a fine and not any licensing sanction, we conclude that this is not an instance where the trial court was authorized to exercise its independent judgment on the evidence.”])

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-585), 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.) “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

However, as Petitioner argues, the court must exercise its independent judgment on purely legal issues presented by the petition. Specifically, “interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) Also, “the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

For the reasons discussed below, the dispositive issues for resolution are purely legal. They concern the proper interpretation of Condition 45.N and the CUP. Such issues are therefore subject to the court’s independent judgment.

On February 25, 2021, the court issued a writ directing the County to “Remand to Hearing Officer Gina Natoli to make supplementary findings consistent with the Order of this Court dated June 13, 2017, . . . .” (CB 6.) On May 5, 2022, the County filed its return to the writ reporting it had complied with the court’s directive.

As a preliminary matter, the court must determine whether the County complied with the court’s writ.

To comply with the writ, the County’s hearing officer conducted a hearing and thereafter issued her 27-page Decision After Remand. The hearing officer’s Decision After Remand provides detailed findings addressing the “Information Requirements of the 30 March 2016 and 14 July 2016 Letters and Table and Whether [Petitioner] Complied with the Requirements.” (CB 23-44.) The hearing officer considered 19 “information requirements” set forth in the July 14, 2016 DPW letter and attachment as well as Petitioner’s actions with citations to the administrative record. (CB 23-44.) The Decision After Hearing appears to comply with Topanga and the court’s prior direction to

As noted by Petitioner, the court’s prior decision instructed the County’s hearing officer to decide “(1) whether each of DPW's requests adequately articulated and gave notice of ‘additional corrective measures . . . necessary to protect public health and safety’ in accordance with [Condition] 45.N; and (2) whether each of Petitioner's various responses adequately or inadequately implemented the ‘corrective measures.’ ” (CB 14; see Reply 1:6-12.) Accordingly, to uphold the civil penalty imposed, the court made clear DPW’s requests must have provided Petitioner with adequate notice of the “additional corrective measures” required of Petitioner.

The County’s hearing officer complied with the court’s prior instruction in part. The hearing officer necessarily found DPW’s requests for information did not constitute or give notice of “additional corrective measures” required of Petitioner within the meaning of Condition 45.N. (CB 22 at ¶¶ 18-22 and CB 44 at ¶¶ 48-49. [“DPW could not necessarily know which additional corrective measures to order until it had the information required in the 30 March and 14 July 2016 letters.”]) That is, the hearing officer found DPW could not determine whether and to what extent, if at all, “additional corrective measures” were warranted without Petitioner providing DPW with the requested information.

Petitioner argues the hearing officer’s “Additional Findings should be dispositive in favor of granting BFIC’s Petition in its entirety.” (Suppl. Pet. ¶ 13.) The court agrees.

Does Condition 45.N Authorize the County to Demand Additional Reports and Information to Determine if “Additional Corrective Measures” Are Necessary?

Petitioner argues the hearing officer’s decision it violated Condition 45.N is not supported by the hearing office’s findings. (CB 44 [decision ¶ A].) As discussed earlier, under Code of Civil Procedure section 1094.5, subdivision (b), abuse of discretion is established if an administrative decision is not supported by the findings.

Petitioner contends the hearing officer’s Decision After Remand is not supported by the findings because “[t]he Hearing Officer effectively conceded in Additional Finding #18 that the County never directed [Petitioner] to ‘implement additional corrective measures’ under condition 45.N, and a fortiori [Petitioner] never refused to do so.” (Opening Brief 5:12-15.)

Petitioner frames its argument in two ways. First, as a matter of statutory or regulatory interpretation, Condition 45.N is unambiguous. The condition only “requires three different categories of quarterly reporting” and is not reasonably interpreted to require Petitioner to provide information or reports not specified in the condition. (Opening Brief 8:1-2.) Second, the hearing officer’s interpretation of Condition 45.N requiring Petitioner to respond to additional informational requests—with threat of civil or criminal penalty—violates due process and the “rule of lenity.” (Opening Brief 4:9-15.)

Significantly, the NOV does not allege Petitioner failed to provide the quarterly reports as required by Condition 45.N—Condition 45.N is about specific quarterly reporting and the County’s ability to “implement additional corrective measures” based on the quarterly reports. (CB 284.) The hearing officer did not find Petitioner failed to comply with the quarterly reporting requirements of Condition 45.N. (See CB 284-285, 22-45.)[6] Instead, the basis for the NOV as well as the Decision After Remand is Petitioner’s alleged failure to comply with the County’s additional information requests as set forth in its July 14, 2016 letter and attachment.[7] (CB 284, 22-45.)

The court must therefore determine the underlying authority for the County’s action. More specifically, the court must decide whether the County’s requests for information fall within the second and final sentence of Condition 45.N:

“The Director of Public Works and the DPH-SWMP shall each have the authority to require the Permittee to implement additional corrective measures for complaints of this nature when such measures are deemed necessary to protect public health and safety.” (CB 1407.)

In the event the requests for information do not fall within the second and final sentence of Condition 45.N, the court must decide whether such requests for information are impliedly authorized by Condition 45.N and included within its scope.

First, the court finds the County’s request for information does not fall within the second and final sentence of Condition 45.N. In the Decision After Remand, the hearing officer did not find any requests for information or other actions in the July 14, 2016 letter were “additional corrective measures” within the meaning of Condition 45.N. The hearing officer noted DPW’s letter of March 30, 2016 required “either information to be provided, the format for that information, or actions DPW may take in response to the information . . . .” (CB 23.) The hearing officer noted “DPW could not necessarily know which additional corrective measures to order until it had the information required in the [March 30 and July 14,] 2016 letters.” (CB 44.) The Decision After Remand cannot reasonably be interpreted as a finding the requirements set forth in the July 14, 2016 letter were “additional corrective measures” within the meaning of Condition 45.N. (See CB 22 at ¶¶ 18-22 and CB 44 at ¶¶ 48-49.) Respondents develop no argument to the contrary.[8]

The hearing officer here concluded “DPW would not necessarily know which corrective measures to order until it had pertinent information about the gas collection and control system such as that required in the 30 March and 14 July 2016 letters.” (CB 22 [emphasis added].) The hearing officer also concluded “[t]o determine whether additional corrective measures are sufficient to alleviate the excessive odor nuisance and to show the [Landfill] is operated or managed property and efficiently, DPW must have the information it requests” in the March 30 and July 14, 2016, letter. (CB 44 [emphasis added].) Thus, the hearing officer viewed the requests for information in the March 30 and July 14, 2016 letters as something different than and necessary in advance of the imposition of “additional corrective measures.” That is, the requests for information would serve as necessary investigative steps for DPW “to determine” whether additional corrective measures were necessary or sufficient to address odor nuisance at the Landfill.

Second, the hearing officer concluded DPW could require information from Petitioner “and such requirement is authorized within the scope of Condition 45.N.” (CB 22.) The hearing officer implicitly noted the obligation to provide information runs from DPW’s authority to determine “which corrective measures to order.” (CB 22.) As phrased by Respondents, the “County requested the information necessary to determine whether the measures undertaken by Permittee to address the numerous odor complaints impacting the community would in fact address the issue.” (Opposition 12:10-13.) Respondents contend the requirement to provide additional information to DPW is “consistent with the County’s authority under Condition 45.N to require [] Petitioner to ‘implement additional corrective measures . . . .’ ” (Opposition 15:24-25.)

Resolution of the implied authority issue turns on proper interpretation of the CUP. As the CUP is a legal instrument, its interpretation is a question of law. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) The rules of statutory construction provide helpful guidance for the court’s interpretation of the CUP, which was adopted by the County’s Board of Supervisors (Board) and regulates Petitioner’s operation of the Landfill. (See CB 1093-1169.) “When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.) “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)

To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.) Similar rules apply to the interpretation of a regulation.

“[1] The Permittee shall submit a quarterly report to the Director of Public Works identifying: (1) all fugitive dust and odor complaints from local residents that the Permittee has received for that quarter regarding the Landfill; (2) all notices of violation issued by the SCAQMD or the County LEA; and (3) all measures undertaken by the Permittee to address these complaints and/or correct the violations.

[2] The Director of Public Works and the DPH-SWMP shall each have the authority to require the Permittee to implement additional corrective measures for complaints of this nature when such measures are deemed necessary to protect public health and safety.” (CB 1407.)

The first sentence of Condition 45.N is unambiguous. It provides a specific list of informational reports Petitioner must provide to DPW on a quarterly basis. It is clear from the first sentence of the condition the Board knew how to include express informational requirements in the condition. The Board could have included an open-ended requirement stating, in effect, Petitioner must respond to all informational requests made by DPW related to dust and odor complaints, notices of violations or corrective measures. The Board did not do so.

As noted, in interpreting a statute or regulation, the court cannot “insert language which has been omitted.” (People v. National Auto. and Cas. Ins. Co., supra, 98 Cal.App.4th at 282.) Further, since the first sentence of Condition 45.N is clear and unambiguous, the court cannot imply some additional unstated reporting requirement. “If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs.” (Ibid.)

In the second sentence of Condition 45.N, the Board granted DPW authority “to require the Permittee to implement additional corrective measures for complaints of this nature when such measures are deemed necessary to protect public health and safety.” (Emphasis added.) The words “additional” and “of this nature” demonstrate the second sentence should be interpreted in context of the first. Specifically, in context, DPW has the authority to require Petitioner to implement “additional corrective measures” to address “all fugitive dust and odor complaints from local residents that the Permittee has received for that quarter regarding the Landfill” and “notices of violation issued by the SCAQMD or the County LEA.”

The term “corrective measures” is not defined in Condition 45.N or the CUP. Thus, there is some ambiguity as to what types of actions could be considered “additional corrective measures.” However, the condition’s second sentence clearly provides the authority granted to DPW relates to requiring Petitioner to implement “additional corrective measures.” The Board could have easily stated DPW also has authority to require Petitioner to respond to additional requests for information that DPW deems necessary to determine which “additional corrective measures” are needed. However, the Board did not include such language in the second sentence. The second sentence of Condition 45.N is more reasonably interpreted as a narrow grant of authority to impose “additional corrective measures” for the complaints and violations specified in the first sentence, not a broad grant of authority to make any requests for information that DPW finds reasonable or necessary.

This interpretation of Condition 45.N also finds support in the CUP’s penalty provision found in Condition 11. In relevant part, Condition 11 states:

“Notice is hereby given that any person violating a provision of this grant is guilty of a misdemeanor. . . .

In addition to, or in lieu of, the provisions just described, the Permittee shall be subject to a penalty for violating any provision of this grant in an amount determined by the Director of the Department not to exceed $1,000 per day per violation. . . . The Permittee shall be sent a written notice of any such violation with the associated penalty, and if the noticed violation has not been remedied within 30 days from the date of the notice to the satisfaction of the Director . . ., the stated penalty, in the written notice shall be deducted from the [Permittee’s] draw-down account.” (CB 1391 [emphasis added].)

Condition 11 specifies criminal and civil penalties may be imposed upon a person who violates “a provision” of the CUP. That the Board refers to “provisions” for which the County may impose penalties for violations suggests specific and express provisions and undermines an interpretation suggesting implied unspecific duties.

Importantly, a contrary interpretation of the CUP, as noted by Petitioner, raises serious due process concerns. The Constitution’s Due Process Clause requires “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” (Bittner v. United States (2023) 598 U.S. 85, __, [143 S.Ct. 713, 725] [citing McBoyle v. United States (1931) 283 U.S. 25, 27].)[9] “Under the rule of lenity, . . . statutes imposing penalties are to be ‘construed strictly’ against the government and in favor of individuals.” (Bittner v. United States, supra, 598 U.S. at __ [143 S.Ct. at 724].) “Thus, ‘[t]he responsibility to promulgate clear and unambiguous standards is on the [agency]. The test is not what [the agency] might possibly have intended, but what [was] said. If the language is faulty, the [agency] had the means and obligation to amend.” (United States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9^th Cir. 1995).)

Condition 45.N unambiguously imposes three quarterly reporting requirements on Petitioner and also authorizes DPW to “implement additional corrective measures” to address dust and odor complaints and related notices of violation from SCAQMD or the County LEA.[10] Condition 45.N does not authorize DPW or the County to impose additional reporting or informational requirements to determine whether to impose additional corrective measures or fashion the most appropriate corrective measures. The court agrees with Petitioner that the most reasonable interpretation of Condition 45.N is one that limits DPW’s authority to that expressly stated in the condition.

Nonetheless, the hearing officer found it “reasonable” to imply a grant of authority to DPW to demand Petitioner to produce any information needed by DPW to determine which additional corrective measures to impose in Condition 45.N. The hearing officer did not provide any legal analysis of Condition 45.N, or other parts of the CUP, to support the interpretation. (See CB 22 at ¶¶ 18-22 and CB 44 at ¶¶ 48-49.) The hearing officer also did not identify the purported overall scope of any such authority or the standards to determine compliance.

Similarly, Respondents provide no such legal analysis and cite no authority supporting their position that “provisions” of the CUP—enforceable by both criminal and civil sanctions—may be implied. Rather, Respondents merely repeat the hearing officer’s conclusion “it is reasonable” for DPW to have the authority to demand additional information “in furtherance of Condition 45.N and the County’s authority pursuant to the CUP to require the Permittee to implement additional corrective measures.” (Opposition 16:24-27.) Given the thrust of Petitioner’s argument before the court that Condition 45.N does not provide such implied authority, Respondents’ lack of legal analysis is tantamount to a concession. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, n. 16 [failure to address point is “equivalent to a concession”].)

Based on the foregoing, the court finds the Decision After Remand must be set aside. The hearing officer did not find Petitioner failed to implement additional corrective measures after being directed to do so by the County. The hearing officer also did not conclude the informational requirements of DPW’s letters of March 30 and July 14, 2016 constituted “additional corrective measures” within the meaning of Condition 45.N. Finally, the hearing officer did not find Petitioner failed to comply with the quarterly reporting requirements of Condition 45.N. Therefore, the hearing officer’s decision Petitioner failed to comply with Condition 45.N of the CUP is not supported by the findings.

While the court has ordered the hearing officer’s Decision After Remand be set aside as unsupported by the findings, the court briefly addresses the remaining issues for completeness.

The Hearing Officer’s “Sua Sponte” Analysis of All Requirements in the July 14, 2016, Letter

“The Hearing Officer did not inform counsel at the October 5, 2021, status conference that she intended to consider other claims not raised in DPW’s referral to Regional Planning requesting the NOV be issued. (CB-79-106) Further, these other claims were not briefed before Judge Hogue or discussed in the parties’ respective findings on remand. (CB-48-77) But even if these claims are considered (which they shouldn’t be), there is no evidence in the record to show that any of these alleged deficiencies relate to information that DPW needed to know to decide on any specific corrective action. If they were important, DPW could and should have mentioned them in its referral for the NOV—which it did not.” (Opening Brief 15:17-24.)

The NOV directed Petitioner to “provide the requested information listed in the July 14, 2016 [DPW] letter, including attachments, to the satisfaction of Public Works.” (CB 284 [emphasis added].) The NOV advised Petitioner is subject to a penalty of $1,000 per day for violating the CUP. (CB 284; see also CB 1391-1392 [Condition 11].) The July 14, 2016 letter included an attachment incorporating all of the requirements from the March 30, 2016 letter. (CB 10, 22-23, 334-340, 327-331.) Accordingly, all requirements in the March 30 and July 14, 2016 letters were potentially relevant to Petitioner’s appeal and whether Petitioner complied with the NOV.

As discussed earlier, the hearing officer did not conclude that any of the 19 “information requirements” were “additional corrective measures” within the meaning of Condition 45.N. Nor did the hearing officer find Petitioner failed to comply with the express quarterly reporting requirements in Condition 45.N. Accordingly, the hearing officer’s analysis of the 19 “information requirements” is not prejudicial as the analysis does not demonstrate Petitioner violated Condition 45.N or support the penalty imposed.

Petitioner extensively argues it complied with DPW’s requests for information, and DPW did not require the requested information to fashion corrective action, as found by the hearing officer. (See Opening Brief 9:25-15:16.)

The hearing officer considered 19 different “information requirements” and made numerous additional findings in the Decision After Remand. (CB 23-45.) Petitioner’s argument lacks specificity; it does not identify the “information requirements” or findings it challenges.

Given that the hearing officer’s decision must be set aside, the court need not consider whether substantial evidence supports the hearing officer’s decision Petitioner did not comply with certain information requests from DPW, or whether DPW needed such information to impose corrective action.

Petitioner seeks a refund of the $174,000 penalty it paid in protest. (See Suppl. Pet. Prayer ¶ 3.) The Decision After Remand acknowledges Petitioner paid the penalty imposed. (CB 44-45.)

Petitioner is entitled to a refund. (See Code Civ. Proc., § 1095. [“If judgment be given for the applicant, the applicant may recover the damages which the applicant has sustained . . . .”]) Respondents do not suggest otherwise.

Based on the foregoing, the supplemental petition for writ of mandate is granted. A writ shall issue directing the County to set aside its Decision After Remand. The County shall also refund $174,000 to Petitioner.

Nothing herein is intended to “limit or control in any way the discretion legally vested in the” County.

[1] Petitioner has withdrawn its request for judicial notice of the “Sunshine Canyon Combined City/County Landfill Revenue Allocation Memorandum of Understanding,” because it is already part of the administrative record. (Reply to Opposition to RJN 1.)

[2] The administrative record prior to remand was Bates-stamped with numbers following the letters AR. The administrative record after remand is Bates-stamped with numbers following the letters COLA-BFI. As do the parties, the court cites to the record after remand as CB. The record after remand includes the original administrative record.

[3] Condition 11 states in pertinent part: “In addition to, or in lieu of, the provisions just described, the Permittee shall be subject to a penalty for violating any provision of this grant in an amount determined by the Director of the Department not to exceed $1,000 per day per violation…. The Permittee shall be sent a written notice of any such violation with the associated penalty, and if the noticed violation has not been remedied within 30 days from the date of the notice to the satisfaction of the Director …, the stated penalty, in the written notice shall be deducted from the [Permittee’s] draw-down account.” (CB 1391.)

[4] Petitioner “incorporates by reference Petitioner’s Opening and Reply Briefs filed in support of Petitioner’s original Petition in this action.” (Opening Brief 1:3-4.) Such incorporation results in an opening brief on the Decision After Remand to exceed the 15-page limit for an opening brief by nearly 30 pages. (See Cal. Rules of Court, Rule 3.1113, subd. (d) and Los Angeles County Court Rules, Rule 3.231, subd. (i).) At the trial setting conference on November 9, 2022, Petitioner did not request leave to file an oversize brief or to incorporate its prior briefing; the court made no order on the issue. Petitioner also has not identified any briefing from its prior briefing that is relevant to its challenge to the Decision After Remand. Accordingly, for today’s hearing, the court has not considered Petitioner’s 18-page opening brief and 12-page reply filed on March 19 and May 21, 2018—briefs previously relied upon to persuade the court to remand the hearing officer’s July 20, 2017 decision. If Petitioner contends those prior briefs include arguments relevant to the Decision After Remand, Petitioner must request leave to file oversized briefs with a showing of good cause. (See CRC, Rule 3.1113, subd. (e).)

[5] Further, given the detailed fact findings in the Decision After Remand as to 19 different “information requirements,” the court is not persuaded all material facts are undisputed here. (CB 22-45.)

[6] Petitioner also cites evidence it complied with Condition 45.N’s quarterly reporting requirements. (See e.g., Opening Brief 10:12-27 [citing CB 1047, 780-782, 276-277].) The NOV did not allege Petitioner failed to comply with the quarterly reporting requirements in Condition 45.N, and the hearing officer did not make such a finding. Therefore, it is unnecessary for the court to discuss such evidence.

[7] DPW’s letter of March 30, 2016 served as the foundation for its July 14, 2016 letter.

[8] Respondents also do not develop an argument that any of the 19 “information requirements” in the July 14, 2016 letter qualify as an “additional corrective measure” within the meaning of Condition 45.N. Further, as the court reviews the agency’s findings, the court is precluded “from cutting and pasting its premise upon an agency determination founded on a different premise.” (American Funeral Concepts v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303, 311.)

[9] The court acknowledges majority of the United States Supreme Court did not adopt Section II.C of the opinion. Nonetheless, the cases cited in Section II.C are relevant to whether the court should read Condition 45.N with implied terms. Further, even if not binding, the Court’s analysis in Section II.C is nonetheless persuasive authority.

[10] LEA refers to Local Enforcement Agency and specifically the Los Angeles County Department of Public Health. (CB 1385.)