Opinion
A131485
02-06-2012
RUDOLFO VENTURA DIMALANTA, Plaintiff and Appellant, v. BOARD FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG10513640)
Rudolfo Ventura Dimalanta appeals from a judgment denying a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5). The judgment, in effect, affirmed the decision of respondent Board for Professional Engineers and Land Surveyors (the Board), which had imposed a five-year suspension on appellant's civil engineer license due to his negligence and/or incompetence in the practice of civil engineering; unlawful practice of land surveying; and unprofessional conduct. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Administrative Proceedings
On November 23, 2009, the Board suspended Dimalanta's civil engineer license for five years, but stayed the suspension and placed him on probation. The discipline was based on Dimalanta's preparation of a temporary parcel map for a proposed four-parcel residential subdivision, situated in a very steeply sloped area in the Oakland hills.
1. The Accusation
The accusation, issued by the Board on December 11, 2008, sets forth the factual basis for the discipline as follows: "In or around March 2003, while working as a [l]icensed [c]ivil [e]ngineer, [Dimalanta] prepared and stamped Tentative Parcel Map 7940 for the development of four single-family residences . . . in Oakland . . . for submission to the city planning department. The tentative map included spot elevations inconsistent with contour lines and proposed retaining wall heights as much as five feet below the actual heights necessary to retain the grade. [¶] The tentative map prepared by [Dimalanta] also includ[ed] boundary and lot line representations that can only be made by a professional land surveyor. [Dimalanta] was neither a licensed land surveyor nor a registered civil engineer authorized to practice land surveying when he prepared and stamped the tentative map."
After setting forth the factual allegations, the accusation lists three grounds for discipline: 1) negligence and/or incompetence in engineering by failing to exercise ordinary care in the preparation of the tentative parcel map; 2) practicing land surveying without a license; and 3) unprofessional conduct.
2. The Hearing
During a four-day administrative hearing, the administrative law judge (ALJ) heard evidence regarding Dimalanta's activities in preparing the tentative parcel map and the Board's grounds for discipline.
a. Negligence/Incompetence in Civil Engineering
The Board introduced evidence that the temporary parcel map contained inaccurate topographical information regarding elevation measurements and retaining wall heights, and also omitted an analysis regarding a proposed five-foot wide stair easement. Dimalanta did not present evidence refuting that such inaccuracies and omissions had occurred, but instead argued that a temporary parcel map is utilized merely to express the feasibility of a proposed project. As such, according to Dimalanta, any errors in the temporary parcel map could be corrected in the future by way of a final map.
1) Spot Elevation Inconsistency
In at least three instances, the spot elevation depicted on the tentative parcel map was inconsistent with the contour lines on each side of the spot elevation. For example, in one instance, spot elevation 787.10 lies between contour lines of 784 and 786. The Board's expert witness, Robin Hamers, explained that "either the spot elevation is incorrect or the contour lines are incorrect because a spot elevation should always have an elevation between the elevations of the surrounding contour lines."
"A contour line is an imaginary line that connects points of equal elevations in reference to a given vertical datum." (Robillard, Clark on Surveying and Boundaries (7th ed. 1997) p. 456.)
Hamers further explained that this discrepancy means " 'either more excavation will need to take place to accommodate the proposed building pads and shared access drive elevations or [the] retaining walls will increase in height and the road will get steeper.' " The proposed slope of the road, however, "was depicted at the 'maximum allowed' range and the depicted walls were large retaining walls that exceeded acceptable standards."
Jon Ewigleben, the supervising civil engineer for commercial and special projects for the City of Oakland, testified on Dimalanta's behalf. Ewigleben believed the spot elevation errors did not have any meaningful significance because any such errors could be corrected in the final map. He added that the errors were inconsequential because the area would be "radically excavated by removal of about seven feet of dirt from the existing hillside for placement of retaining walls and that a 'cut' of eight feet was needed for the prospective driveway placement."
2) Inaccuracy of Retaining Wall Heights
Hamers stated that the tentative parcel map depicted two eight-foot high retaining walls separated by three feet of clear space, which appeared to retain 17 feet of elevation. However, after considering the proposed road grade and contour line information, the walls would actually retain between 19 to 23 feet of elevation. In other words, Dimalanta's tentative map underestimated the retention footage by as much as six feet. According to Hamers, the map misrepresented the actual condition of the property in seven out of the ten locations that were checked. Hamers explained that the inaccuracies were significant as the developer's costs would have been significantly higher because retaining wall costs go up exponentially with each foot of additional retaining.
Despite the numerous inaccuracies, Ewigleben opined that Dimalanta did not fall below the standard of care expected for a civil engineer when he depicted the retaining wall heights. According to Ewigleben, a tentative map was merely used to denote the feasibility of the proposed project and Dimalanta's map contained "enough information to rely on" for determining the feasibility of the walls.
3) Omission of Stairway Retaining Walls
In the tentative parcel map, Dimalanta depicted a proposed five-foot wide stair easement. Hamers explained that based on the proposed grades where the stairs were to be located, three to eight foot high retaining walls were required. However, the stairs as depicted did not have any retaining walls. Hamers opined that this omission indicated that Dimalanta failed to analyze the stair design, because if he had studied the stairs, "he would certainly have indicated [the retaining walls] on the tentative parcel map."
b. Unlawful Practice of Land Surveying
Dimalanta is not authorized to practice land surveying, as he is neither a licensed surveyor nor a civil engineer with a pre-1982 license. (See Bus. & Prof. Code, § 6731.) According to Hamers, however, Dimalanta practiced land surveying by placing the outside boundary for the subject parcels depicted on the temporary parcel map. Hamers explained that, by this representation, Dimalanta made a statement regarding the accuracy of the measured survey data from which he took the boundary information. Hamers further explained that even though Dimalanta copied the boundary information from a preexisting map, he was determining the accuracy of the information in connection with the location of the boundary—something only a land surveyor or authorized civil engineer can legally perform.
The Board had previously issued a civil engineer license to Dimalanta in 1973. However, in 1995, following an accusation filed by the Board, Dimalanta voluntarily surrendered his 1973 license; the Board then issued a new license that was effective on the surrender date.
Hamers noted that although several municipalities, including the City of Oakland, have ordinances enabling civil engineers with post-1982 licenses to prepare tentative parcel maps, such ordinances may be inconsistent with applicable licensing requirements, as well as contrary to the Board's regulations for land surveyors and civil engineers.
Ewigleben believed that Dimalanta was legally able to prepare the tentative parcel map because it was limited to a " 're-subdivision of a previously recorded parcel map,' " and it involved no work relating to a boundary survey. Ewigleben also relied on City of Oakland Ordinance 16.08, pertaining to tentative maps, which permits a civil engineer to prepare such maps. He reiterated that, for planning purposes, tentative maps are for determining the feasibility of a project, and, as such either a land surveyor or civil engineer can prepare them.
Dimalanta contended that his license as a civil engineer enabled him to prepare a tentative parcel map from previously compiled temporary parcel maps, which had been prepared by a land surveyor, and that such activity did not constitute surveying. In describing his preparation of the tentative parcel map, Dimalanta admitted that he located the survey monuments of record, personally measured between the monuments, and that the measurements he took "fit" the prior specifications for the monuments. He further admitted that he prepared computerized data regarding the activities he performed.
Monuments are "visible marks left on natural or other objects indicating the lines and boundaries of a land parcel." (Robillard, Clark on Surveying and Boundaries, supra, at p. 371.)
c. Unprofessional Conduct
Dimalanta's unprofessional conduct charge was based on his negligence and incompetence, as well as on his unauthorized practice of land surveying. In this regard Hamers opined that California Code of Regulations, title 16, section 415, which requires a professional engineer to work only in the fields in which he, by education and/or experience, is fully competent and proficient, had practical application in the instant case. Hamers noted that even a pre-1982 civil engineer licensee still must meet professional standards and demonstrate by training, experience, and knowledge that such civil engineer can competently engage in the work of a land surveyor.
3. Administrative Decision
The ALJ found the Board had established by clear convincing evidence all three grounds for discipline. The ALJ "wholly rejected" Dimalanta's arguments, finding his theories were unsupported by the facts and his "interpretation of California law, which vests the Board with exclusive authority for the enforcement of the licensing rights of civil engineers and land surveyors" to be unreasonable.
The ALJ found that Ewigleben, who worked in the administrative realm of civil engineering, reviewing the work product of others, lacked "sufficient practical experience and training as a land surveyor or civil engineer to express persuasive expert witness opinions." Specially, he "failed to demonstrate that he possessed the requisite knowledge of the Board's licensing authority when he expressed [the] dubious opinion" that Dimalanta did not engage in unauthorized land surveying when he prepared the tentative parcel map. Ewigleben also "failed to offer a rational basis for his opinion that [Dimalanta] did not fall below the standard of care expected of a civil engineer" by erroneously depicting the retaining wall heights and spot elevations. Accordingly, the ALJ found that Ewigleben was neither a credible nor persuasive witness and gave little, if any weight, to his opinions.
In contrast, the ALJ found Hamers to be a credible and persuasive witness. As a registered civil engineer, who has been in practice since 1981, he "was shown to be proficient in several areas, including boundary establishment and surveying, topographical map preparation, tentative parcel maps, . . . records of survey[s], . . . retaining wall plans and profile work, and other technical areas associated with civil engineering and land surveying."
The ALJ determined there were several matters in aggravation and none in mitigation. With respect to the factors in aggravation, the ALJ noted that Dimalanta had engaged in the practice of land surveying for the past decade, despite the fact that he surrendered his original civil engineer license, which had enabled him to engage in land surveying. The ALJ further noted that Dimalanta "showed no remorse, concern or acknowledgement" for his unlawful and unprofessional conduct in preparing the tentative parcel map. Finally, the ALJ found that Dimalanta had "advanced a groundless defense that sprang from three interrelating faulty concepts," to wit: (1) the preparation of the tentative parcel map from " 'compiled, recorded records does not involve "surveying" as defined in Business and Professions Code section 8726' "; (2) he performed no acts constituting surveying; and 3) the presentation of the tentative parcel map " 'to the City, which contains boundary information obtained from existing recorded documents, does not constitute an act of surveying under section 8726.' " The ALJ further noted: "[Dimalanta's] unpersuasive conception [sic] is that when no physical act of surveying of the property is involved in a project, 'surveying' does not occur. But as [the Board's] expert witness demonstrated, the exercise of professional judgment regarding boundary information can only be accomplished by a licensee qualified to perform under Business and Professions Code section 8726, subdivisions (c) and (g)."
B. Trial Court Proceedings
Dimalanta filed a petition for writ of mandate challenging the Board's decision to impose discipline. He claimed, among other things, that the finding that he acted as a land surveyor when he prepared the tentative parcel map was without any legal or factual basis and was premised on facts not included in the accusation. He similarly claimed that the decision that he was negligent and/or that he engaged in unprofessional conduct was not supported by the facts or law, and was based, in part, on matters not included in the accusation.
In support of his mandamus petition, Dimalanta requested the trial court to take judicial notice of a survey of 70 municipal agencies regarding the requirements for preparing tentative parcel maps. He also requested that the trial court judicially notice a letter from a former executive director of the Board. The trial court denied both requests.
After exercising its independent judgment in considering the administrative record, pleadings, and arguments, the trial court denied Dimalanta's petition for writ of mandate. The instant appeal followed.
II. DISCUSSION
Dimalanta raises several contentions on appeal: 1) the trial court abused its discretion in denying his request for judicial notice; 2) the accusation violates his due process rights, as it fails to provide adequate notice of the charges against him; 3) the finding that he was negligent in the preparation of the temporary parcel map is not supported by sufficient evidence, and to the extent any negligence can be demonstrated it is inconsequential under the applicable law; and 4) the finding that he engaged in unlicensed land surveying is not supported by the facts or the applicable law. According to Dimalanta, the applicable law is the Subdivision Map Act (Gov. Code, § 66410 et seq.).
A. Standard of Review
When review is sought by administrative mandamus, the standard of review turns on whether a fundamental vested right was at issue. Where, as here, the "administrative decision substantially affects a fundamental vested right, such as the revocation of a professional license, the independent judgment standard of review applies. [Citations.] The superior court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence. [Citations.]" (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1.) An exercise of independent judgment requires the trial court to reweigh the evidence and examine the credibility of witnesses. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 654, 658-659.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, 819 ["there is no inconsistency in a rule requiring that a trial court begin its review with a presumption of the correctness of administrative findings, and then, after affording the respect due to these findings, exercise independent judgment in making its own findings"].)
"The role of appellate courts in administrative mandamus proceedings is well-settled. Even where the trial court must exercise independent judgment on the evidence, its findings are sustained on appeal if supported by substantial evidence on the whole record. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308.)" (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135.) " 'On questions of law arising in mandate proceedings, we exercise independent judgment.' [Citation.] In those circumstances, the trial and appellate courts perform the same function. [Citation.]" (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.)
B. Statutory Framework
It will be of assistance in focusing on the issues raised to discuss the statutory provisions regulating the professions of land surveyors and engineers and those regulating the subdivision of land.
1. Regulation of Professional Engineers and Professional Land Surveyors
The Board, respondent herein, is a consumer protection agency within the State Department of Consumer Affairs. (Bus. & Prof. Code, §§ 6710, 6710.1, 8710, 8710.1.) The Board regulates the practice of engineering and land surveying through its administration of the Professional Engineers Act, sections 6700 through 6799 of the Business and Professions Code, and the Professional Land Surveyors' Act, sections 8700 through 8805 of the Business and Professions Code. The Board's regulations are found in division 5, title 16 of the California Code of Regulations. The basic functions of the Board are to conduct examinations (Bus. & Prof. Code, §§ 6754, 8745), issue licenses (Bus. & Prof. Code, §§ 6730, 8725), set standards for the practice of engineering and land surveying (Bus. & Prof. Code, §§ 6775, 8780, Cal Code Reg, tit. 16, § 404, subds. (u), (dd)), investigate complaints against licensees (Bus. & Prof. Code, §§ 6775, 8780), and take disciplinary action as appropriate (Cal. Code Regs., tit. 16, § 419). The Board administers a complicated licensing system under which land surveyors and several categories of engineers are licensed and regulated. (See Cal. Code Regs., tit. 16, § 404.) Land surveyors are licensed under section 8725 of the Business and Professions Code. Pursuant to section 6730 of the Business and Professions Code, professional engineers may be licensed under the three practice act categories of civil, electrical, and mechanical engineering. Civil engineers who became licensed before January 1, 1982 may also practice land surveying (Bus. & Prof. Code, § 6731), all others must obtain a land surveyor's license before practicing land surveying (Bus. & Prof. Code, § 8731).
2. Regulation of Real Property Subdivision
The Subdivision Map Act (Gov. Code, § 66410 et seq.) is the primary regulatory control governing the division of property in California. (Friends of Westhaven & Trinidad v. County of Humboldt (2003) 107 Cal.App.4th 878, 882; van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 564.) It "has three principal goals: to encourage orderly community development, to prevent undue burdens on the public, and to protect individual real estate buyers. [Citations.]" (van't Rood v. County of Santa Clara, supra, 113 Cal.App.4th at pp. 563-564.) The Subdivision Map Act grants to local governments the power to regulate the manner in which their communities grow. (Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 551; California Coastal Com. v. Quanta Investment Corp. (1980) 113 Cal.App.3d 579, 588-589.) It vests " '[r]egulation and control of the design and improvement of subdivisions' in city and county governing bodies, requiring them to adopt ordinances regulating the manner in which growth will occur. ([Gov. Code,] § 66411.) By requiring proposed new subdivisions to comply with these regulations as a condition of approval, local governments can ensure that new real estate development conforms to their communities' general and specific plans and other regulations adopted to guide growth. [Citation.]" (Witt Home Ranch, Inc. v. County of Sonoma, supra, 165 Cal.App.4th at p. 551.)
The Subdivision Map Act "provides for the creation of accurate maps showing the interior and exterior boundaries of subdivisions and the location of improvements. (Former Bus. & Prof. Code, §§ 11550 and 11619, now Gov. Code, §§ 66452 and 66413 respectively.)" California Coastal Com. v. Quanta Investment Corp., supra, 113 Cal.App.3d at p. 589.) It " 'requires a two-step procedure to mapping: [a]pproval of a tentative map followed by approval of a final subdivision map by the local agency. The tentative map process gives the staff and the approving body (usually the planning commission) flexibility in suggesting acceptable changes to the subdivision before it is finally mapped.' (Curtin & Merritt, Cal. Subdivision Map Act and the Development Process (Cont.Ed.Bar 2d ed. 2001) Determining Which Map is Required, § 3.1, p. 54.)" (Friends of Westhaven & Trinidad v. County of Humboldt, supra, 107 Cal.App.4th at p. 882.) The Subdivision Map Act defines a " '[t]entative map' " as "a map made for the purpose of showing the design and improvement of a proposed subdivision and the existing conditions in and around it and need not be based upon an accurate or detailed final survey of the property." (Gov. Code, § 66424.5, subd. (a).) The City of Oakland requires the filing of a tentative parcel map. (Oak. Mun. Code, § 16.24.070.) If approved, the applicant may thereafter seek approval of the parcel map, which must be in "substantial conformance" with the approved tentative parcel map. (Oak. Mun. Code, § 16.24.110.)
A final map is required for a subdivision of five or more parcels, while a parcel map is required for smaller subdivisions. (Gov. Code, §§ 66424, 66426; see also Witt Home Ranch, Inc. v. County of Sonoma, supra, 165 Cal.App.4th at p. 551.)
C. Judicial Notice
Dimalanta contends the trial court abused its discretion in denying his request for judicial notice of: 1) a "random survey" of the codes and regulations of 70 municipalities across the state of California, and 2) a 1990 letter from a former executive director of the Board. According to Dimalanta, this evidence establishes that "anyone without a license may prepare tentative maps." (Original capitalization omitted.)
" 'The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. [Citation.]' " (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) "Augmentation of the administrative record is permitted only within the strict limits set forth in [Code of Civil Procedure] section 1094.5, subdivision (e) which provides as follows: 'Where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.' [Citations.] In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. [Citation.] Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. [Citation.]" (Pomona Valley Hospital Medical Center v. Superior Court, supra, 55 Cal.App.4th at p. 101.)
Dimalanta did not make the required foundational showing, as he failed to establish that the "random survey" of municipal codes was relevant to the disciplinary charges lodged against his license. Dimalanta's contention that this evidence was relevant and admissible under the Subdivision Map Act is without merit.
According to Dimalanta, only three of the 70 municipalities surveyed require a land surveyor to prepare tentative parcel maps.
The subdivision of land and the regulation of the professions involved in the subdivision process implicate two separate statutory schemes. The former is regulated by the Subdivision Map Act, which gives local governments the power to regulate and control the design and physical improvement of a subdivision. (Witt Home Ranch, Inc. v. County of Sonoma, supra, 165 Cal.App.4th at p. 551; California Coastal Com. v. Quanta Investment Corp., supra, 113 Cal.App.3d at pp. 588-589.) The latter is regulated by the Professional Engineers Act (Bus. & Prof. Code, §§ 6700-6799) and the Professional Land Surveyors' Act (Bus. & Prof. Code, §§ 8700-8805), which are administrated by the Board for purposes of protecting the public against unlicensed and/or negligent engineers and land surveyors. (Bus. & Prof. Code, §§ 6710, 6710.1, 8710, 8710.1.)
While the Subdivision Map Act and the local ordinance implementing the Act may be the ultimate authority respecting the subdivision process (McMullan v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 960, 963), they are not relevant to the disciplinary matters at issue here, to wit: whether Dimalanta performed the work of a land surveyor without being licensed to do so, and whether his performance on the tentative parcel map in question failed to meet the professional standards for licensed engineers. To the extent the Subdivision Map Act and the various municipal ordinances upon which Dimalanta relies appear to be at odds with the Business and Professions Code, it is well established that the state has preempted the field of regulating and licensing persons entitled to engage in certain occupations, including civil engineering and land surveying, and that municipal codes purporting to regulate this field cannot stand. (Verner, Hilby & Dunn v. City of Monte Sereno (1966) 245 Cal.App.2d 29, 34-35 [local ordinance regulating civil engineers and surveyors conflicted with Bus. & Prof. Code, § 6700 et seq.]; Robillwayne Corp. v. City of Los Angeles (1966) 241 Cal.App.2d 57, 62 [local ordinance licensing fire insurance adjusters in conflict with Bus. & Prof. Code, § 7520 et seq.]; Agnew v. City of Los Angeles (1952) 110 Cal.App.2d 612, 615 [local fee and bond for electrical contractors void]; City & County of San Francisco v. Boss (1948) 83 Cal.App.2d 445, 448-450 [local licensing requirements for contractors void]; Horwith v. City of Fresno (1946) 74 Cal.App.2d 443, 446-447 [municipal examination requirement for electrical contractors void].)
Dimalanta also failed to establish that the 1990 letter from a former director of the Board, in the exercise of reasonable diligence, could not have been produced at the administrative hearing. In any event, the letter, which represents the correspondence between a former director of the Board and a private land surveyor regarding the requirements for preparing a tentative parcel map under the Subdivision Map Act, is not probative of the disciplinary issues arising in the instant case.
In sum, the trial court did not abuse its discretion in denying Dimalanta's request for judicial notice.
D. Due Process
Dimalanta contends the failure of the accusation to inform him that his "license as an engineer was being threatened because he 'found survey monuments of records' in the street surface . . . and that he 'measured between monuments' . . . to see if they 'fit' the prior specifications for monuments" constituted a procedural due process violation. We disagree.
In the trial court, Dimalanta also argued that the accusation failed to put him on notice about the alleged defects in the stair design depicted on the tentative parcel map. Inasmuch as he does not raise this issue in his appellate briefs, any claim of error regarding the stair design has been forfeited. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [failure to raise issue on appeal constitutes waiver].)
The disciplinary proceedings in the instant case are subject to the Administrative Procedure Act (Gov. Code, § 11501 et seq.). (See Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522, 526 (Wheeler)) "Government Code section 11503 establishes the constitutionally required notice to the accused of the standards by which the accused's conduct is to be measured. [Citation.] Government Code section 11503 reads, in part: 'The accusation . . . shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules.' " (Smith v. State Bd. of Pharmacy (1995) 37 Cal.App.4th 229, 241.)
Administrative proceedings, however, " 'are not bound by strict rules of pleading . . . . So long as the respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, he cannot complain of a variance between administrative pleadings and proof.' " (Smith v. State Bd. of Pharmacy, supra, 37 Cal.App.4th at p. 241 quoting Stearns v. Fair Employment Practice
Page 15 Com. (1971) 6 Cal.3d 205, 213.) In other words, " '[a] variance between the allegations of a pleading and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and a variance may be disregarded when the action has been as fully and fairly tried on the merits as through the variance had not existed.' [Citations.]" (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 942, italics added.)
Here, the accusation afforded Dimalanta the basic, appropriate elements of procedural due process, in that he was put on notice that his civil engineer license was at risk of being revoked or suspended due to his acts of practicing land surveying, which included making boundary and lot line representations, without legal authority. That the accusation did not expressly reference Dimalanta's use of survey monuments is immaterial. It was Dimalanta's own testimony at the hearing that alerted the Board that he located the survey monuments, measured between them, and determined that his measurements "fit" within the specifications of the prior survey.
Dimalanta, nevertheless, argues that "[f]inding a parcel through the use of monuments as a reference does not 'retrace' or 'reestablish' the boundary lines of that parcel." This argument, however, goes to the merits of the charges against him—that his conduct did not amount to land surveying—not to whether he had adequate notice of such charges. Although Dimalanta asserts that had the accusation referenced the survey monument his defense would have included expert testimony that monuments do not establish boundary lines, there is simply nothing in the record to suggest that he was actually misled to his prejudice.
Wheeler, supra, 144 Cal.App.3d 522, cited by Dimalanta does not compel a contrary conclusion. In Wheeler, a forester challenged the revocation of his license, based on a finding that he was guilty of gross negligence. (Id. at p. 525.) There, however, the accusation charged the forester only with " 'deceit, misrepresentation, or fraud in his practice.' " (Id. at p. 526.) In reversing the judgment denying the forester's administrative mandamus petition, the appellate court held that the disciplinary action could not be founded upon a charge not made. (Id. at p. 527.)
Here, unlike in Wheeler, the accusation sets forth all the charges against Dimalanta. To the extent Dimalanta, by his own testimony, provided additional examples of unauthorized conduct, such augmentation of the facts cannot reasonably be understood as violating his procedural due process rights. In other words, there is no basis for establishing that he was misled in preparing his defense or otherwise left unprepared to contest a new charge of misconduct. (See, e.g., Smith v. State Bd. of Pharmacy, supra, 37 Cal.App.4th at pp. 241-243 [holding pharmacist was misled into believing he needed to prepare defense to personal dispensing charge and was unprepared to contest uncharged negligent supervision theory].)
Dimalanta's contention that the accusation provided inadequate notice because it merely quotes the language of the statutes is without merit. The record establishes that the accusation combines the statutory language with a fact specific summary of the misconduct.
E. Negligence/Incompetence
Dimalanta contends reversal is required because there was "no . . . negligence in the depiction" of the retaining walls on the tentative parcel map or in the misprinting of the three spot elevation points, because the "depictions . . . [were] accurate enough" for feasibility purposes. (Original capitalization omitted.) Instead of showing us how the trial court erred, Dimalanta merely reargues his case. Dimalanta would have us reweigh the evidence. This we will not do. We shall instead treat Dimalanta's claim as one of insufficiency of the evidence.
"As required in administrative mandamus proceedings of this type, the trial court exercised its independent judgment and reweighed the evidence. (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69.) This court's review is limited by the well-settled rule of Moran v. Board of Medical Examiners[, supra,] 32 Cal.2d [at p.] 309, which requires that the trial court's decision be upheld if it is supported by any credible, competent evidence. [Citations.]" (Cooper v. Board of Medical Examiners, supra, 49 Cal.App.3d at p. 940.) Upon application of this test at our level of review, it is apparent that the findings are amply supported by the evidence.
Section 6775, subdivision (c) of the Business and Professions Code, provides that a professional engineer's license may be suspended or revoked if he has been found to be negligent or incompetent in his practice. California Code of Regulations, title 16, section 404, subdivision (u) defines " 'incompetence' " as "the lack of knowledge or ability in discharging professional obligations as a professional engineer or land surveyor." Subdivision (dd) of section 404 defines " 'negligence' " as "the failure of a licensee, in the practice of professional engineering or land surveying, to use the care ordinarily exercised in like cases by duly licensed professional engineers and land surveyors in good standing."
The Board's expert, Hamers, testified that Dimalanta's errors were significant, as they revealed a deficit in his core understanding of the practice and principles of engineering. Hamers rejected the notion that the errors were inconsequential because they ultimately could be fixed in the final map. He explained that "[a]ctually, there is a great importance in making [tentative maps] accurate . . . [T]he agency, local homeowners associations, the adjoining property owners, and the developer depend on the accuracy of the tentative map, [as] they need to know it's an accurate representation of [the] final construction" project. As to the spot elevation errors, Hamers explained that the height discrepancy "would drastically change the cut and fill numbers of dirt." Hamers added that due to the errors: "2000 more yards of cut [would be needed] to achieve the pad elevation shown on the plans. Two thousand yards is a significant number and a significant change in the development budget. [¶] So the accuracy of retaining wall heights and elevation are very important at the tentative map stage."
The conflicting opinion by Dimalanta's expert—that the tentative map was accurate enough for feasibility purposes—was not only of dubious provenance, it was also inconsequential (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874), and found not credible. Hamers's testimony provided substantial evidence that Dimalanta's work on the tentative parcel map fell below the requisite standard of care. (See Evid. Code, § 411 [evidence of single credible witness constitutes substantial evidence].) Contrary to Dimalanta's efforts to disparage him, Hamers was adjudged to be a credible witness, and the trial court was entitled to afford great weight to this determination. (Gov. Code, § 11425.50, subd. (b).)
Although the Subdivision Map Act does not require a tentative map to be based upon an accurate or detailed final survey of the property for planning purposes, it cannot, as we have discussed, usurp the state's power to regulate the professions of civil engineering and land surveying. (See Verner, Hilby & Dunn v. City of Monte Sereno, supra, 245 Cal.App.2d at pp. 34-35.)
In sum, there was sufficient evidence to support the finding that Dimalanta was negligent and/or incompetent in his practice of civil engineering.
F. Unlawful Practice of Land Surveying
Dimalanta contends "there is not one subsection, or one word, in [section 8726] in the list of acts which constitute surveying which could be reasonably interpreted to include the act of copying recorded boundary line information" onto a tentative parcel map, or, as alleged in the accusation " 'including boundary and lot line representations' " in the tentative parcel map. Applying our independent judgment, we disagree, concluding instead that Dimalanta engaged in land surveying within the meaning of Business and Professions Code section 8726. (See Kalway v. City of Berkeley (2007) 151 Cal.App.4th 827, 832.)
In interpreting any statute, we are guided by familiar and well established rules. "The objective of statutory interpretation . . . is to ascertain and effectuate legislative intent. If the words are clear, a court may not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.] At the same time, however, a statute is not to be read in isolation; it must be construed with related statutes and considered in the context of the statutory framework as a whole. [Citation.] A court must determine whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other related provisions. Literal construction of statutory language will not prevail if contrary to the legislative intent apparent in the statutory scheme. [Citation.] Statutory language should not be given a literal meaning that results in absurd and unintended consequences. [Citations.]" (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 986.)
Business and Professions Code section 8726, provides, in relevant part, as follows: "A person . . . practices land surveying . . . who . . . does or offers to do any one or more of the following: [¶] (a) Locates, relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works embraced within the practice of civil engineering, as described in Section 6731. [¶] (b) Determines the configuration or contour of the earth's surface, or the position of fixed objects above, on, or below the surface of the earth by applying the principles of mathematics or photogrammetry. [¶] (c) Locates, relocates, establishes, reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries. [¶] (d) Makes any survey for the subdivision or resubdivision of any tract of land . . . [¶] (e) By the use of the principles of land surveying determines the position for any monument or reference point which marks a property line, boundary, or corner, or sets, resets, or replaces any monument or reference point. [¶] (f) Geodetic or cadastral surveying. As used in this chapter, geodetic surveying means performing surveys, in which account is taken of the figure and size of the earth to determine or predetermine the horizontal or vertical positions of fixed objects thereon or related thereto, geodetic control points, monuments, or stations for use in the practice of land surveying or for stating the position of fixed objects, geodetic control points, monuments, or stations by California Coordinate System coordinates. [¶] (g) Determines the information shown or to be shown on any map or document prepared or furnished in connection with any one or more of the functions described in subdivisions (a), (b), (c), (d), (e), and (f). [¶] . . . [¶] (l) Determines the information shown or to be shown within the description of any deed, trust deed, or other title document prepared for the purpose of describing the limit of real property in connection with any one or more of the functions described in subdivisions (a) to (f), inclusive. [¶] (m) Creates, prepares, or modifies electronic or computerized data in the performance of the activities described in subdivisions (a), (b), (c), (d), (e), (f), (k), and (l)."
Dimalanta would have us exclude his activities from the expansive purview of Business and Professions Code section 8726 based on the faulty premise that he only copied information from the prior map onto the tentative map and that the statute does not expressly refer to "copying" as an activity requiring a surveyor's license. First, the record established that he did more than just copy prior information onto the tentative map. By his own testimony, Dimalanta established that he located survey monuments and personally measured between them to determine if the measurements "fit" the prior specifications. He further explained that he used the distance between the monuments to ensure that he was in the right place. At minimum, Dimalanta's conduct "reestablishes" or "relocates" a boundary. (See Bus. & Prof. Code, § 8726, subd. (c).) He also used "principles of land surveying" to determine "the position for any monument or reference point" which marked the property line or boundary. (See id. at subd. (e).) Moreover, Dimalanta admitted that he prepared electronic or computerized data in the performance of his activities. (See Bus. & Prof. Code, § 8726, subd. (m).) Clearly, these activities constitute more than mere copying of information.
Additionally, Dimalanta was in violation by his reliance and reiteration of information from the prior survey in which he "[d]etermine[d] the information shown or to be shown on any map" in preparing the tentative map. (Bus. & Prof. Code, § 8726, subd. (g).)
On appeal, as below, Dimalanta makes much of the fact that the ALJ and the Board's expert, Hamers, referred to subdivision (n) of Business and Professions Code section 8726, which includes the rendition of "a statement regarding the accuracy of maps or measured survey date[,]" as an activity requiring a surveyor's license, as this subsection was not added to the Business and Professions Code until three years after he prepared the tentative parcel map. (See Stats. 2006, ch. 760, § 6, pp. 6023-6025.) Although the ALJ and Hamers referred to subsection (n), it is clear from the record that the administrative decision and expert opinion were based on subsections (c) and (g) of section 8726. On this record, any error in referencing subsection (n) was harmless. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-805.)
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"Surveying is a profession that depends to a great extent on the skill of the surveyor. [Citations.] To perform a legally reliable survey, the surveyor must be skilled in 'the science of land measurements, . . . the laws and customs that define the boundaries of real property, and . . . the art of evaluating the evidence needed to prove the location of a boundary.' [Citations.]" (Bryant v. Blevins (1994) 9 Cal.4th 47, 63 (dis. opn. of Mosk, J.).) By its enactment of Business and Professions Code section 8726, the Legislature has prescribed regulations that are reasonably necessary for protecting the public against the consequences of ignorance or incapacity in the pursuit of land surveying in this state. As a means to this end, the Legislature has seen fit to demand a certain degree of learning and skill in the land surveying profession, by enacting the Professional Land Surveyor's Act (Bus. & Prof. Code, §§ 8700-8805) and by creating the Board to administer this statutory scheme and accompanying administrative regulations. To exclude Dimalanta's activities from the ambit of Business and Professions Code section 8726 because the words "copy" or "recopy" are not used in the statute would indeed result in an absurd interpretation and would be contrary to the goal of protecting the public from unskilled and unlicensed land surveyors.
In sum, we conclude that the facts of the instant case more than amply demonstrate that Dimalanta practiced land surveying within the meaning of Business and Professions Code section 8726.
III. DISPOSTION
The judgment is affirmed.
RIVERA, J. We concur: REARDON, Acting P. J. SEPULVEDA, J.