Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV020189
CANTIL-SAKAUYE, J.
Colmar Properties, LLC bought an old brick apartment building in downtown Stockton, gutted it to its studs, and then let the deteriorated building stand while it protested that the City of Stockton (the City) required a use permit. After transients broke into the building and started fires and an inspection revealed structural problems, the City gave notice of its intent to abate by demolition. Over two months after an administrative hearing and denial of Colmar’s request to modify the decision, the City demolished the building.
Colmar appeals from a judgment after the trial court denied its petition for a writ of administrative mandamus and granted a motion for judgment on the pleadings on the remaining causes of action. Colmar contends code enforcement proceeded without or in excess of jurisdiction, it was denied due process, and the trial court erred in refusing to allow Colmar to supplement the incomplete administrative record and in granting the judgment on the pleadings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
California Rules of Court, rule 8.204(a)(1)(C) requires every brief to “Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Colmar egregiously ignores this rule in its briefs; its statement of facts is almost completely devoid of record citations. “It is the duty of counsel to refer us to the portion of the record supporting his contentions on appeal. [Citations.]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) Failure to follow this basic rule of appellate practice can have dire consequences because where the brief fails to specify portions of record supporting appellant’s factual assertions, an appellate court may presume the record supports the trial court’s rulings. (People v. Hyatt (1971) 18 Cal.App.3d 618, 624.) Further, Colmar includes facts that are not in the record, in violation of rule 8.204(a)(2)(C) of the California Rules of Court.
The Building
Colmar Properties, LLC (Colmar) purchased an apartment building on East Fremont Street in downtown Stockton (the building) in late August 2001. The building was three stories and constructed of unreinforced masonry; it was reportedly built in 1925. It has been vacant since 1989 and a notice of abatement had been filed in 1990 and a notice of demolition in 1993. The City had not followed through on these notices. Shortly after purchase, Colmar obtained a permit for demolition and the building was “gutted” down to its studs.
Government Code section 8875.2 requires every building department to identify potentially hazardous buildings by January 1, 1990, and establish a mitigation program. Potentially hazardous buildings include those constructed of unreinforced masonry before the adoption of earthquake codes. (Health & Saf. Code, § 19161, subd. (a)(1).) Perhaps these notices were pursuant to this statutory directive.
Code Enforcement Actions
In January 2002, the City received reports transients had broken into the building and were setting fires. The City billed Colmar for an emergency board-up. At that time, a code enforcement officer noticed severe cracks in a corner of the building.
The City inspected the building in March 2002. About a month later, Colmar had Quilici Engineers, Inc. inspect the building as to the structural implications of a crack on the southwest corner of the brick masonry wall. Quilici opined the cracks were structural and required repair; Quilici suggested repair by grout injection and controlling drainage of the adjacent site.
About a week after the Quilici inspection in April, the City sent Colmar a notice of violations of the Stockton Municipal Code. The list of violations required: repair or replacement of the roof, and installation of windows, plumbing fixtures, heating and ventilating system, electrical system, and interior materials to make the structure habitable for humans. The City required a complete repair/renovation plan, including drawings and engineering reports to abate the violations. The plan was to be provided by May 15, 2002, the date set for a reinspection. Since the building had been vacant for over six months, its legal nonconforming use as apartments was no longer valid. A new use permit application had to be submitted by May 1, 2002. Following approval, repair was to begin promptly, with a completion date no later than October 2002. The City also gave Colmar notice of its intent to record these violations and they were recorded.
Colmar sent several letters to the City complaining about the requirement of a use permit. Colmar argued it relied on the City’s representations that it wanted the building rehabilitated, the building was “grandfathered, ” there were no zoning problems, no parking was required, the existing access was acceptable, and as long as no walls were moved there was no need for a seismic retrofit. Colmar asserted it was up to local authorities whether the building could be economically rehabilitated or must be destroyed; any one of several issues relating to zoning, parking, ADA, seismic retrofit, and fire sprinklers “could be fatal to the project’s viability.” The use permit was a “deal breaker.” Colmar complained it was not told about the need for a use permit when it got the demolition permit in 2001, and utility bills treated the building as an 18-unit apartment building. Before buying the building, Colmar had been assured a building permit would be issued “over-the-counter.” The City remained firm that a use permit was required.
In early July 2002, the City had Precision Inspection Company, Inc. inspect the building for structural integrity due to the cracks on the southwest corner. Colmar would not consent to the inspection, so the City obtained an inspection warrant to inspect the building for structural integrity. William Martin, a structural engineer, reported there was substantial fire damage to the first floor framing and substantial dry rot damage to the roof. The cracks in the masonry walls “result in a reduction of lateral load carrying capacity of these walls under a seismic event. Unreinforced masonry buildings such as this structure have performed poorly during moderate to severe seismic events, which have resulted in major damage and loss of life in California in the past. It is my professional opinion that any reduction in the lateral load carrying capacity of these existing unreinforced masonry walls is an unacceptable condition for future occupants of this structure or for individuals who happen to be in the near vicinity of this structure during any possible future seismic event. This crack condition should be rehabilitated as soon as possible.” Martin suspected poor drainage was the primary cause of the cracks.
A week after this report, the City sent Colmar a “Notice and Order of Intent to Abate by Demolition.” The “Building Official” had determined the building was dangerous and substandard under the Stockton Municipal Code (SMC) and the Uniform Code for Abatement of Dangerous Buildings (UCADB). The Department would “begin abatement action to demolish the identified structures, fill-in and level the lot, abate any overgrown landscaping and remove any garbage, junk and debris from the property.” The notice and order indicated the building was dangerous because of the failure of various structural components due to cracking, movement, fire damage, and dry rot; it was subject to collapse in a seismic event due to the extent of deterioration; and the building was in violation of the SMC, the UCADB and other codes. The building was an attractive nuisance and/or hazard to the public because its windows had been removed, which had led to break-ins, illegal tenancy by transients, and other illegal activity. The notice and order cited specific provisions of both the SMC and the UCADB.
The notice informed Colmar that to avoid this action it must meet specific requirements within a set timeline; alternatively, Colmar could demolish the building.
The notice informed Colmar that it had to (1) submit an application for and obtain a use permit and a parking variance, submit plans to the City within 30 days, obtain all required permits within 5 days of plan approval, begin repairs within 10 days after the permit is obtained, and complete all work and have it inspected and approved within 120 days; or (2) obtain a demolition permit and demolish the building.
Colmar filed a claim against the City for $433,000, including $200,000 in punitive damages. The claim stated the City’s recent demands as to parking and construction requirements “contradict the express representations of the Planning and Building Departments, upon which Claimant relied in purchasing the property and beginning the rehabilitation process.” The claim was rejected.
Administrative Hearing Concerning the Notice of Intent to Abate by Demolition
Simultaneous with filing the claim, Colmar appealed the City’s notice of intent to abate by demolition. It objected to the process, the vagueness of the notice, the lack of a lawful determination the building was unsafe or dangerous, the legality of the July inspection, the requirement of a use permit, and the determination the building was dangerous.
Colmar filed a suit in federal court, which was dismissed as premature.
After two continuances, Colmar’s administrative hearing was held in December 2002. At the hearing, Martin testified about his inspection, played a video of it and presented pictures of the building. He testified to the structural problems of the building. He asserted the building would collapse in a “not... very strong” seismic event and would fare poorly in a very small ground shake. He testified the building was repairable and could be made safe for habitation. Repair work on a similar building had taken three weeks.
See discussion post about the incomplete nature of the transcript of the hearing.
Fred Satariano, a code enforcement officer, testified about the code enforcement process. He claimed the City had been trying to get something done with the property for over a year. Number one on the list for rehabilitation was to obtain a use permit so the property could be used for its intended use; without a use permit it was senseless to proceed with repairs. Satariano did not know if Colmar had been advised about the need for a use permit when it obtained the demolition permit. Colmar had tried to get a building permit in the spring of 2002, believing a use permit was not necessary.
Colmar argued it intended to repair and rehabilitate the building; the stumbling block was the City’s requirement of a use permit. Colmar relied on representations of unidentified city officials that a use permit was not required. Colmar asserted there was no immediate danger as the building was unoccupied and secured. The code violations cited were not intended to apply to a building under construction.
The City argued it had established code violations by a preponderance of the evidence. The building was substandard and a nuisance; Colmar had been given the choice of repair or demolish with the necessary steps and time frames set forth.
Colmar’s appeal was denied. The hearing officer found a use permit was required. There was no grandfathering because the building had been vacant for six months. The evidence established fire damage, dry rot and foundation cracking; therefore, there were violations of Health and Safety Code sections 17920.3 [relating to substandard buildings] and 17980 [relating to notices to abate substandard or nuisance buildings] and SMC section 14-402.1 [relating to substandard buildings, now section 15.24.030].
The SMC was recodified and adopted by the City Council on June 2, 2009. For ease of reference, we provide section references to both the SMC in effect in 2002 and the current code. The City requests judicial notice of selected provisions of the SMC in effect in 2002, as well as the Stockton City manager’s Policies and Procedures for Administrative Hearings. We grant that request pursuant to Evidence Code sections 452, subdivision (b) and 459. The City also requests judicial notice of certain legislative materials relating to provisions of the Health and Safety Code. Having found no need for those materials in resolution of this appeal, we deny the request.
The hearing officer rejected Colmar’s estoppel argument because Colmar could not identify the planner who made the alleged representations and there was no follow-up or documentation of the alleged conversation. The hearing officer noted Colmar’s principal was experienced and sophisticated; he was an attorney and a real estate agent. Colmar had been provided with the choice of repair or demolition. Enforcement of the decision was stayed 30 days so Colmar could seek judicial review.
Colmar’s request to modify the decision was denied in February 2003.
Colmar’s Three Lawsuits
A month later, Colmar filed in superior court its first suit, a pleading entitled “Complaint for Damages, ” requesting a restraining order and an injunction against demolition of the building. A temporary restraining order was denied, apparently on the basis that damages were an adequate remedy.
About the same time, Colmar filed a second suit against the City and various officials for damages, claiming the City had a tortious scheme to demolish old buildings to circumvent eminent domain and its requirement of just compensation. This complaint was later amended. The amended complaint had four causes of action. The first was titled “Rejected Claim, ” and alleged that in purchasing the building, Colmar had relied on representations of City officials that the building could be rehabilitated without a use permit. The demolition was due to the City’s scheme to demolish old buildings in place of paying just compensation for them. The other causes of action were for trespass; inverse condemnation; and violation of civil rights of due process, equal protection, rights to privileges and immunities of citizenship, and a taking of property without compensation.
In April 2003, the City demolished the building. The City billed Colmar $28,443.49 for the cost of demolition.
After demolition, Colmar filed a complaint in superior court for administrative mandamus, contending the administrative process lacked fundamental jurisdiction and denied due process. Colmar claimed the demolition order was invalid as it was not supported by the facts or the law and it was an abuse of discretion to deny a full hearing on the issue of estoppel.
Colmar’s three complaints were consolidated, naming only the City as defendant.
The record also contains an order consolidating Colmar’s case with one by Wong. Although Colmar relies heavily in its briefs on an unpublished decision of this court in the Wong case (Wong v. City of Stockton (Nov. 5, 1007, C053601), Wong makes no appearance in this case. Colmar’s reply brief indicates the trial court severed the Wong and Colmar cases February 8, 2008.
The City moved for summary judgment. The trial court denied the motion, finding a triable issue of fact whether the City’s abatement was a pretext for redevelopment efforts. The court noted evidence that the City’s redevelopment plans included the property and that after 10 years of abandonment, the City became aggressive after the interior of the building was gutted.
Trial on Administrative Mandamus Decision Affirming the Abate by Demolition Order
The trial was bifurcated, with the administrative mandamus tried first. In November 2005, Colmar requested a transcript of the administrative hearing. There was a problem with the recording of the hearing. A shorthand reporter declared the four tapes were of such poor quality she was unable to make a transcript that could be certified as accurate. Colmar attempted to have the tapes enhanced, but was largely unsuccessful. The City had a portion, about half, of the tapes transcribed, but the transcript did not include the testimony of Colmar’s witness Donald Wilson or most of the cross-examination of Martin. In November 2006, the City wrote Colmar about settlement of the administrative record; the City proposed only to settle the identities of the speakers on the portion of the tapes transcribed. Colmar did not respond to this letter, indicating it agreed with the identification. In addition, Colmar refused to pay the City $3,385.97 for enhancement and transcription of the portion of the administrative hearing.
Colmar wanted to call additional witnesses and introduce into evidence additional documents. The trial court noted it was “unusual” to have evidence beyond the administrative record. Colmar reduced its witness list from 20 to 4, but the court ruled it would not consider evidence outside the administrative record. It ruled the administrative record, with its partial transcript of the hearing, was adequate.
The Court’s Findings
In its tentative decision, the court found Colmar was provided due process and the hearing officer’s decision was supported by the evidence.
In its statement of decision, the court found the City acted pursuant to Health and Safety Code section 17980 in determining the building was unsafe, giving Colmar the choice of demolition or repair, and determining it was not economically feasible to repair the building. The City was not required to follow the remedies set forth in Health and Safety Code section 17980.7 because the situation “had become too critical.” The court found that because this was an emergency, the City did not have to declare the property a nuisance in order to abate. The court found the City followed the UCADB. The court found Colmar was given notice of the dangerous conditions and what was necessary to abate those conditions. Colmar was given an opportunity to be heard, but failed to follow through on the appeal process after his receipt of the notice of the intent to record violations.
The court found the City presented sufficient evidence, in the form of oral testimony, pictures and documents, at the administrative hearing to establish the building was dangerous. Colmar presented no evidence to the contrary and failed to establish that it did not have to follow the Stockton Municipal Code. The hearing officer found the evidence established an emergency. There was no taking for a public use so there was no requirement of compensation. The court found the administrative record adequate for independent review and it was Colmar’s responsibility to provide an adequate record.
Judgment on the Pleadings
The City moved for judgment on the pleadings with respect to the remaining four causes of action. The City contended all claims had been resolved against Colmar.
The trial court agreed and judgment in favor of the City was granted. Colmar appealed from the judgment.
DISCUSSION
I.
Administrative Mandamus
A. Standard of Review
The exclusive remedy to challenge an abatement proceeding where a building has been determined to be unsafe or substandard is administrative mandamus pursuant to Code of Civil Procedure section 1094.5. (Health & Saf. Code, § 17980.9.) “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
The trial court exercises its independent judgment to determine if the findings are supported by the weight of the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) In the appellate court, the appropriate standard of review is normally the substantial evidence test. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) Where the trial court is required to exercise its independent judgment in an administrative mandamus proceeding, the appellate court ordinarily reviews the record to determine whether the trial court’s judgment is supported by substantial evidence. (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 321.) Questions of law, however, are reviewed de novo. (Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 132-133.)
B. Colmar Has Failed to Show It Was Denied Due Process
Despite Colmar titling its first contention “Code Enforcement Proceeded Without Or In Excess Of Jurisdiction Under Code of Civil Procedure §1094.5b, ” it argues the demolition of the building was a taking that required just compensation under the Fifth Amendment because neither of the exceptions for an emergency or a nuisance demolition applied. Colmar contends it was denied due process because there was insufficient evidence of an emergency and the City failed to properly declare a nuisance under the procedures set forth in either the Health and Safety Code or the UCADB, adopted by the City as part of its municipal code. (SMC, § 15.28.010 [previously § 14-500].) While we are disturbed that the City apparently made up a new procedure rather than following the established procedures of the Health and Safety Code or the UCADB, Colmar has failed to show it was denied due process.
Each point in an appellate brief is to appear “under a separate heading or subheading summarizing the point.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) Colmar does itself no favors by mislabeling its contentions.
1. Emergency
“In an emergency situation involving the physical safety of the populace, the city could dispense with a due process hearing and demolish a building summarily. [Citation.]” (Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 718.) “[I]n emergency situations the city may act summarily to abate a nuisance, but in such case the city must be prepared to establish by a preponderance of evidence that an emergency actually existed.” (Id. at p. 719.)
Section 1.36.060 (previously section 1-065) of the SMC permits the Director, without notice, to raze and grade a building to prevent further collapse “[w]henever the Director determines an imminent health and safety hazard exists that requires immediate correction or elimination.” The City did not proceed under its emergency powers; it conducted a hearing instead of acting summarily to demolish the building. The notice of abatement did not mention an emergency, nor did the City’s brief for the administrative hearing. The City did not act expeditiously to demolish the building. It did not oppose Colmar’s requests for continuances of the hearing. After Colmar’s appeal of the abate order was denied in early February 2003 at the administrative hearing, the City waited until mid-April to demolish the building.
The trial court, however, exercising its independent judgment, found an emergency. It found the situation was too critical to employ the remedies set forth in Health and Safety Code section 17980.7 and because it was an emergency, the City did not have to formally declare the building a nuisance to abate. The trial court determined the hearing officer found the oral testimony and pictures established an emergency. We review for substantial evidence the court’s findings as to an emergency.
Substantial evidence does not support finding an emergency. In his report, Martin indicated the crack in the masonry should be repaired “as soon as possible” and the building’s condition was unacceptable. He did not, however, declare the situation an emergency; instead, he recommended engaging a structural engineer “to... provide a rehabilitation analysis, design and details for the above mentioned deficiencies.” At the hearing, Martin testified the building was dangerous and subject to collapse in an earthquake, but he also testified the building could be repaired. Repair of a similar building had taken three weeks. Since Martin testified repair was feasible and, indeed, recommended it in his report, his testimony and the accompanying pictures and report do not provide substantial evidence of an emergency.
2. Due Process for Demolition of a Dangerous Building
Colmar contends the administrative process used by the City denied him due process. For abatement by demolition of dangerous or substandard buildings, there are alternative procedures set forth in the Health and Safety Code and the UCADB. The City has adopted the UCADB as part of its municipal code. As relevant to Colmar’s due process contention, we set forth a summary of both procedures.
Health and Safety Code section 17980 permits an enforcement agency to abate a nuisance or violation of building codes. The owner has the choice of repairing or demolishing the building, provided that repairs are done expeditiously; if they are not, the enforcement agency may itself demolish the building. (Health & Saf. Code, § 17980, subd. (b)(1).) If the owner fails to comply with notice to repair or abate, the enforcement agency may seek appointment of a receiver. (Health & Saf. Code, § 17980.7, subd. (c).) It also has alternative options. (Id., subd. (g); see City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 933 [section 17980 permits enforcement agency to take actions without appointment of a receiver].)
The regulations set forth the procedures for administrative abatement. (Cal. Code Regs., tit. 25, § 52.) These procedures require first a notice the building is substandard or a nuisance (id., § 54), a second notice directing the owner to appear before the governing board to show cause why the building should not be condemned as a nuisance. (Id., § 60.) A hearing is then held before the governing board of the enforcement agency; such board may by resolution declare the building a nuisance and direct the owner to abate it within 30 days and notify the owner the building will be razed if the nuisance is not abated. (Id., § 62.) The owner has 30 days to bring an action to contest the validity of the proceedings. (Id., § 64.)
The City has adopted by reference the UCADB. (SMC, § 15.28.010, previously § 14-500.) Section 302 of the UCADB sets forth numerous conditions and defects which make a building dangerous. Once a building has been inspected and found to be dangerous, proceedings may commence to cause the repair, vacation or demolition of the building. (UCADB, § 401.1.) The owner must be given a notice stating the building has been found to be dangerous, a brief and concise description of the conditions making the building dangerous, and a statement of the action required, whether repair, vacation or demolition. (Id., § 401.2.) An owner may appeal from this notice. (Id., § 501.1.) The hearing may be held before a hearing examiner or the board of appeals. (Id., §§ 205.1, 601.1.) If the hearing is before a hearing examiner, the examiner submits a report to the appeals board which may adopt or reject it. (Id., §§ 605.2, 605.5.)
Inexplicably, the City followed neither the Health and Safety Code nor the UCADB procedure; while it gave Colmar notice its building had been found to be dangerous and specified repairs were necessary, there was no hearing before a governing body nor was a report of the hearing officer reviewed by an appeals board. Colmar, however, does not contend, on appeal or in its petition for administrative mandamus, that the City abused its discretion because it “has not proceeded in the manner required by law.” (Code Civ. Proc., § 1094.5, subd. (b).) Instead, it argues the procedure used violated due process.
The City argues nothing “in the City’s adoption of the UCADB require[s] the City, when abating a dangerous building as defined in substance by UCADB Section 302, to follow the procedures set forth in that [c]ode.” (Original italics.) We find this argument, that the City does not have to follow the procedures it has specifically adopted, astonishing and we strongly reject it.
The failure to address an issue in the opening brief forfeits the issue on appeal. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
In considering Colmar’s five specific objections to the procedure used, we are mindful of a fundamental principle of appellate practice. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
“Procedural due process is a flexible concept that does not establish universally applicable procedures for the resolution of all types of issues. The process which is due may depend upon a variety of factors, including the nature of the interest involved, the nature of the proceeding and the possible burden on that proceeding. While the types of procedures which are sufficient are variable with the type of action, minimum due process requires some form of notice and an opportunity to respond. [Citation.]” (Sommerfield v. Helmick (1997) 57 Cal.App.4th 315, 320.) Due process always requires a fair hearing before a neutral or unbiased decision maker. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.)
“When a city threatens to demolish structures, due process requires that the city provide the property owner and other interested parties with notice, with the opportunity to be heard, and with the opportunity to correct or repair the defect before demolition.” (D & M Financial Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165, 174.) The right to be heard must be “‘at a meaningful time and in a meaningful manner.’ [Citations.]” (Id. at p. 175.) With these considerations in mind, we turn to Colmar’s specific objections to the procedure used here.
First, Colmar contends the notice it was given was deficient because there was no explicit declaration of a nuisance and the term “nuisance” was buried in the notice to abate. Further, Colmar also contends the technical definition of nuisance in UCADB section 302 was not used.
The notice to abate indicated proceedings to abate by demolition would commence because the building was unsafe or dangerous. The notice set forth four conditions that made the building dangerous, each condition included a citation to one or more specific definitions in UCADB section 302 and a reference to SMC section 14-402.1(b)11 [now § 15.24.030], which declares that a building that is unsafe due to inadequate maintenance in accordance with the Uniform Building Code is a substandard building. For example, the first condition indicated the building was unsafe due to its cracked foundation, fire damage, and dry rot, which placed the structural components in various stages of failure, and the fourth condition indicated the building was an attractive nuisance because its windows had been removed and break-ins and illegal tenancy had occurred. The notice thus provided adequate notice of the specific reasons the City had determined the building was dangerous. What Colmar apparently fails to understand or acknowledge is that it was the building’s dangerousness that made it a nuisance. The SMC provides that any property defined as substandard under section 15.24.030 [previously section 14-402.1] is a public nuisance. (SMC, § 1.36.030 [previously § 1-062].)
Second, Colmar complains there was no consideration given to whether any measure less drastic than demolition would abate the problem. We disagree. In accord with both Health and Safety Code section 17980, subdivision (b)(1) and UCADB section 403.1.2, Colmar was given the option to repair or demolish the building. The notice set forth the specific steps Colmar had to take, with time lines, for repair; as an alternative, Colmar could choose demolition. The notice made clear failure to take these steps would result in demolition by the City.
Significantly, in the several months between the notice of abatement and the hearing (and over a year since the building was gutted), Colmar took no steps to repair, or even secure, the building. Martin testified that if the building was exposed for two winters or wet seasons, the dry rot would take hold. By the time of the hearing, the building was in the second winter of being exposed. Further, in letters to the City, Colmar had taken the position that if a use permit was required, the building must be destroyed as it could not be economically rehabilitated. The hearing officer and the trial court found a use permit was required and Colmar does not challenge that finding on appeal.
Third, Colmar contends the hearing was not fair because the evidence was restricted. Colmar cites rule 3.7 of the City Manager’s Policies and Procedures for Administrative Hearings, which addresses the powers of the hearing officer. Rule 3.7 provides in part: “In determining what evidence shall be considered at the administrative hearing, the hearing officer shall refer to the ordinance governing the administrative remedy which has been used by the Director. The Hearing Officer shall limit the consideration of evidence to only those issues listed within the ordinance. In those cases where the ordinance does not specify what evidence shall be considered, the Hearing Officer shall consider only evidence which is relevant to proving the existence of a code violation, or, in the case of an abatement hearing, the Hearing Officer shall only consider evidence relevant to the existence of a public nuisance.” Colmar contends this rule deprived it of a “meaningful hearing, ” because it limited the evidence to only the question of whether the building was code compliant, not whether it was a public nuisance. Here, the various code violations are what made the building dangerous, as both structurally unsound and a haven for transients. There was no difference in the evidence needed to establish or refute that the building was dangerous and that it was a nuisance. Further, Colmar fails to show it tried to present relevant evidence at the hearing and the hearing officer rejected it pursuant to rule 3.7
Fourth, Colmar contends it was denied due process at the hearing because the hearing officer could not determine the constitutionality of the statutes governing the City’s demolition scheme. Of course, there is no administrative procedure that would permit such a determination. (Cal. Const., art. III, § 3.5, subd. (a) [no administrative agency may declare a statute unconstitutional or refuse to enforce it on that basis unless an appellate court has made that determination].) The hearing officer stayed enforcement of its decision for 30 days to give Colmar an opportunity to seek judicial review. Colmar did file a “Complaint for Damages” during that time, seeking a restraining order and injunction. In that pleading, Colmar did not challenge the constitutionality of any statute, nor did Colmar list the constitutionality of any statute as one of the current disputes between Colmar and the City.
Lastly, Colmar objects that the hearing was before a single hearing officer, rather than a full board, as required under both the Health and Safety Code and the UCADB. He fails to explain, however, how a hearing before a single hearing officer was a denial of due process. Colmar makes no argument, and the record supports none, that the hearing officer was not a fair and impartial decision maker. In short, while the City failed to follow the procedure set forth in either state statute or the UCADB, which it adopted in its municipal code--a failure we strongly condemn--Colmar has failed to show the procedure used denied it due process.
II.
Colmar Cannot Challenge the Adequacy of the Administrative Record Because Colmar Failed to Take Any Steps to Settle the Record and Colmar Fails to Show Prejudice
The heading of Colmar’s second contention is: “The Trial Court Erred in Refusing to Allow Appellant to Present Any Evidence to Supplement the Incomplete Transcript of Hearing Testimony.” (Capitalization altered.) The argument that follows, however, is entirely different. Instead of challenging the trial court’s ruling limiting evidence to that in the administrative record and denying Colmar’s request for supplemental witnesses and documents, Colmar contends it was denied fundamental fairness because the trial court accepted as adequate the incomplete administrative record, with portions of the hearing transcript unintelligible and unable to be transcribed, and purported to exercise its independent judgment on the incomplete record. Colmar contends the proper remedy was to remand for a new hearing.
It was undisputed that the transcript of the administrative hearing did not include portions of the hearing due to defective recording. It was Colmar’s burden as petitioner to provide an adequate record for review. (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 355.) Because the City had recorded the hearing, Colmar’s initial burden was met when it requested that the City prepare and certify the record. (Frase v. Gourley (2000) 85 Cal.App.4th 762, 765.) Where a full record of the hearing is not available because it was not kept, or as here the recording was defective, the parties may reconstruct the record; if they are unable to do so, a new hearing must be held. (Chavez v. Civil Service Com. (1978) 86 Cal.App.3d 324, 332; Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127.) Colmar seeks a new hearing, but it made no attempt to reconstruct the record. As the City noted, such a reconstruction was possible because the parties’ briefs for the administrative hearing contained summaries of the testimony. Colmar is not entitled to a new hearing because it has not shown the record cannot be adequately recreated.
Nor does Colmar demonstrate the trial court erred in finding the existing administrative record adequate for review. In the trial court, Colmar sought to introduce additional witnesses and documents that had not been presented in the administrative hearing. The trial court properly rejected this additional evidence; this evidence did not recreate the missing administrative record, but would have created an entirely new record. The only missing evidence that Colmar pointed to that would have affected the case was cross-examination of Martin about the likelihood of a seismic event in Stockton and that Stockton was considered as a superconductor site because it was so stable. Evidence that an earthquake was unlikely would undermine at least in part the finding of an emergency requiring demolition, but we have found insufficient evidence to support the trial court’s finding of emergency. The evidence about seismic events also goes to the question of the building’s dangerousness because one of the conditions cited as showing dangerousness was that the building was subject to collapse in the event of a seismic event. The other three conditions cited, however, do not rely on a seismic event for dangerousness. Colmar fails to demonstrate that the missing portions of the administrative record refute the City’s showing that the building was dangerous because its structural components were failing, or that it violated numerous building codes and was a public nuisance attracting transients and illegal activity. In short, Colmar fails to show how it was prejudiced by the missing record or the trial court’s determination the administrative record was adequate. That failure dooms its contention. (Cal. Const., art. VI, § 13 [error must have resulted in miscarriage of justice]; Code Civ. Proc., § 475 [court must disregard error that does not affect parties’ substantial rights and where it is not shown that different result would have obtained absent the error].)
Colmar described the testimony of its principal Wilson at the administrative hearing as “how he went into [the] counter, what his background was as an investor, what Colmar company was, how they planned to renovate it, what they planned to do with it.” None of this testimony goes to whether the building was dangerous or unsafe.
III.
The Trial Court Did Not Err in Granting the Motion for Judgment on the Pleadings
Colmar contends the trial court erred in granting the City’s motion for judgment on the pleadings on the basis that resolution of the mandamus proceedings in the City’s favor mooted the remaining causes of action. Colmar contends its first and fourth causes of action (described post) state sufficient facts for a cause of action for damages due to the City’s improper motive in demolishing the building. Colmar contends the trial court erred because it previously denied the City’s motion for summary judgment, finding factual issues as to the allegation of improper motive.
“The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer: We treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein. We may also consider matters subject to judicial notice. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any theory. [Citation.]” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)
In the first amended consolidated complaint, Colmar alleged agents of the City represented the City wanted the building rehabilitated rather than destroyed. They represented the building was “grandfathered, ” had no zoning problems, no off-street parking would be required, the existing access and stairs were okay, no sprinkling would be required, and no seismic retrofit would be required unless walls were moved. In reliance on these representations, Colmar purchased the building and took the building back to its studs. The amended complaint contained factual allegations about the code enforcement problems and the administrative hearing, which was denied. The first cause of action alleged Colmar filed a claim with the City, which was denied. It further alleged: “The actions of the CITY and its AGENTS were and are part of a deliberate and calculated scheme and plan to demolish older buildings in the central downtown area at the expense of owners in order to circumvent the constitutionally mandated process for compensation.” Colmar alleged the City demolished the building and caused damages.
The fourth cause of action incorporated previous allegations and alleged the City “deprived COLMAR of COLMAR’s rights to due process of law, of COLMAR’s right to equal protection of law, of COLMAR’s rights to the privileges and immunities of citizenship, of COLMAR’s right to free ownership of real property, and have taken COLMAR’s property without compensation.” The demolition and refusal to issue a building permit violated property rights guaranteed under the Fourth, Fifth, and Fourteenth Amendments and the demolition constituted a taking in violation of the Fifth and Fourteenth amendments.
Colmar contends it alleged the City “conspired to use selective code enforcement and abatement by demolition to avoid having to pay eminent domain compensation to obtain or reduce the value of property in the section of town they desperately wanted to redevelop.” Colmar contends these allegations, although inartful, state a cause of action for improper use of administrative process under Graber v. City of Upland (2002) 99 Cal.App.4th 424, Armendariz v. Penmen (9th Cir. 1996) 75 F.3d 1311, and Squaw Valley Dev. Co. v. Goldberg (9th Cir. 2004) 375 F.3d 936. (Armendariz and Squaw Valley disapproved as stated in Shanks v. Dressel (9th Cir. 2008) 540 F.3d 1082, see fn. 11, post.)
We find the Ninth Circuit cases of no aid to Colmar because they permitted only an equal protection claim for disparate treatment where the alleged rational basis was a pretext and Colmar failed to allege an equal protection claim. In Armendariz, plaintiffs alleged defendant over-enforced the housing code to acquire property for redevelopment, and the trial court denied motions for summary judgment based on qualified immunity. (Armendariz v. Penmen, supra, 75 F.3d 1311, 1326.) The Ninth Circuit reversed in part, holding there was no substantive due process claim because the allegations were addressed by the more specific provision of the Constitution, the “Takings Clause.” (Id. at pp. 1324-1326.) The court, however, affirmed denial of summary judgment on the equal protection claim that the City created an irrational distinction between property owners whose property it wished to acquire and other property owners. Whether defendants were motivated by a desire to deflate the value of plaintiffs’ buildings, purchase them and replace them with a shopping center was a factual question for the jury. (Id. at p. 1327.) In Squaw Valley, plaintiff alleged two employees of a water control board subjected it to selective and over-zealous regulatory oversight due to personal animus. (Squaw Valley Dev. Co. v. Goldberg, supra, 375 F.3d 936, 938.) The Ninth Circuit reversed summary judgment on an equal protection claim for pretextual disparate treatment by one of the employees. (Id. at p. 948.)
The Ninth Circuit has since rejected Armendariz and Squaw Valley on this point. (Shanks v. Dressel, supra, 540 F.3d 1082, 1086-1087.)
Here Colmar has failed to allege an equal protection claim. An equal protection claim may be stated “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564 [145 L.Ed.2d 1060].) To be sufficient, a complaint must allege “factual underpinnings establishing disparate treatment.” (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1092.) Colmar not only failed to supply the necessary factual underpinnings for disparate treatment, it failed even to allege it was treated differently than others similarly situated. The complaint does not state a cause of action for a violation of equal protection under Armendariz and Squaw Valley.
In Graber v. City of Upland, supra, 99 Cal.App.4th 424, the court upheld invalidation of an ordinance, passed in connection with a redevelopment plan, to remove a parcel from an existing project. The court found the sole reason for the ordinance, conceded by the City, was to change the base year for the property. (Id. at p. 433.) The court found, although the issue was close, removing the parcel simply to change the base year was an improper purpose that conflicted with the statutory scheme. (Ibid.) “[T]he attempted reassignment of properties from one project area to another was an improper attempt by the City to do indirectly what it could not do directly.” (Id. at p. 434.)
We read Graber to permit a cause of action to invalidate an ordinance adopted solely for an improper purpose. The administrative decision permitting demolition of Colmar’s building because it was dangerous, in violation of numerous building codes, and an attractive nuisance has been upheld. At the very least, Colmar cannot allege the sole reason for the demolition was improper since a proper reason has been established. Since in opposition to the motion for judgment on the pleadings Colmar did not request leave to amend its complaint, and on appeal it does not argue any defects in pleading could be cured by amendment, we find the trial court did not err in granting the City’s motion for judgment on the pleadings.
DISPOSITION
The judgment is affirmed. The City of Stockton shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: SIMS, Acting P. J., RAYE, J.
The City adopted the portion of the UCADB that set forth the procedures without any amendments; anyone would reasonably expect the City to follow them (or the alternate procedures set forth in the Health and Safety Code). The City cites no authority that it may select any procedure it wishes. This court recently held an agency must follow statutory mandate, including dotting its “i’s” and crossing its “t’s, ” and rejected the axiom “close enough for government work.” (Marquez v. Medical Board of California (2010) 182 Cal.App.4th 548, 550-551.) We adhere to that view.