Opinion
F084316
07-21-2023
CHUCK DUNN, Plaintiff and Appellant, v. KERN COUNTY et al., Defendants and Respondents
Law Office of Jennifer Lim and Jennifer S.F. Lim for Plaintiff and Appellant. Margo A. Raison, County Counsel, and Kyle W. Holmes, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-18-100504-SDS Stephen D. Schuett, Judge.
Law Office of Jennifer Lim and Jennifer S.F. Lim for Plaintiff and Appellant.
Margo A. Raison, County Counsel, and Kyle W. Holmes, Deputy County Counsel, for Defendants and Respondents.
OPINION
POOCHIGIAN, ACTING P. J.
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INTRODUCTION
This appeal from the denial of a petition for administrative mandate pursuant to Code of Civil Procedure section 1094.5 involves a private citizen, petitioner Charles "Chuck" Dunn ("petitioner"), asserting official actions taken in furtherance of public safety policy and law are improper or unfairly enforced. Petitioner asserts he built a fire that was safely contained in a cemented, enclosed patio area appropriate for grilling food, which he states is permissible under the applicable ordinance.
All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.
The record reflects testimony challenging petitioner's claim concerning the purpose and safety of the fire. Captain Chris Cagle of the Kern County Fire Department conducted the administrative hearing which was the basis for the trial court's holding forming the subject of this appeal. In that proceeding, Captain Cagle engaged petitioner in a discussion in which petitioner's claim of planning to cook was accepted, at least arguendo. Still, the hearing officer challenged petitioner to justify cooking on a fire, as opposed to utilizing other alternatives such as a microwave or propane barbecue (which petitioner claimed was defective). It is unclear whether the existence of alternatives presents a basis for citation. While the applicable regulations and ordinances prohibit the burning of "refuse or other material in an open outdoor fire," it is not clear whether constructing a fire in an enclosed basin is the kind of "open fire" contemplated. The ordinances at issue are not models of clarity, particularly in relation to the operation of barbeques, and there are facts in dispute regarding the safety of the circumstances.
Clearly, the fire prevention officials were especially concerned because an apparently devastating fire had damaged the region in the recent past. Notwithstanding the factual disputes present in this case and recognizing firepits and outdoor barbecues are in common use, the concerns of the authorities regarding what they regarded as unsafe burning based on particular conditions are significant. The fact that petitioner refused requests to extinguish what officials regarded as an unsafe fire cannot be ignored. Taking all of this into consideration and following the dictates of the law that require courts review administrative decisions with deference, we conclude there was sufficient evidence to justify the citation. For the reasons that follow, we affirm the trial court's judgment.
BACKGROUND
This case involves an appeal following judgment on a petition for writ of administrative mandate initially filed under sections 1094.5 and 1085. Petitioner was cited by the Kern County Fire Department on June 25, 2017, for having an open fire without a permit. Petitioner appealed that citation, and a hearing was conducted pursuant to local ordinances on September 29, 2017, by Captain Chris Cagle of the Fire Department, who acted as the hearing officer. Captain Cagle affirmed the citation. Petitioner then appealed the decision to the Kern County Board of Supervisors, which conducted a hearing on December 5, 2017, and ultimately upheld the citation as well.
Petitioner then filed a petition for writ of administrative mandate and traditional mandate against Kern County, the Kern County Board of Supervisors, and the Kern County Fire Department ("respondents") on May 29, 2018. Respondents answered on June 21, 2018. A hearing on the petition was held on February 15, 2022, following which the trial court advised it would take the matter under submission.
The trial court entered judgment on March 8, 2022, finding in favor of respondents. Specifically, the court found petitioner was not entitled to proceed under section 1085, but was instead required to proceed under section 1094.5, since the underlying administrative action was adjudicatory in nature. The court then held the county's ordinance was not void for vagueness, and the county's decision was supported by substantial evidence.
Petitioner timely filed a notice of appeal on May 9, 2022.
DISCUSSION
Petitioner asserts the trial court erred in finding he was not permitted to proceed with a traditional writ of mandate under section 1085. Petitioner also argues a "fundamental vested right" was at stake in the underlying proceedings, and thus the trial court was required to conduct a "limited de novo" review of the evidence. Lastly, petitioner claims respondents did not provide him with adequate process and abused their discretion because no substantial evidence supported their administrative decision. We disagree on each argument and affirm the trial court's judgment.
I. The Matter Appropriately Proceeded Under Section 1094.5, Not Section 1085
Petitioner first argues the trial court should have permitted him to proceed under the traditional writ of mandate codified in section 1085, rather than the administrative writ of mandate found at section 1094.5. This is a legal question, over which we exercise independent review. (See In re Bode (1999) 74 Cal.App.4th 1002, 1004; Mountain Defense League v. Bd. of Supervisors (1977) 65 Cal.App.3d 723, 727-730.)
California law states "[a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person," either "to compel the performance of an act which the law specially enjoins" or "to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled." (§ 1085, subd. (a).)
However, review of decisions by administrative bodies within the state typically falls under section 1094.5, often referred to as "administrative mandate." That statute says, "[w]here the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury." (§ 1094.5, subd. (a).)
The administrative mandate statute also limits the type of review courts may conduct. Specifically, section 1094.5 states the court shall consider only "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." (§ 1094.5, subd. (b).) "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." (Ibid.)
"The applicable type of mandate is determined by the nature of the administrative action or decision." (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785.) Typically, "quasi-legislative acts are reviewed by ordinary mandate [under section 1085] and quasi-judicial acts are reviewed by administrative mandate [under section 1094.5]." (Ibid.) As courts have explained," 'a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.'" (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 570, 574.) "A petition for administrative mandamus is appropriate when the party seeks review of a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567 [internal quotations omitted]; see also Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Tielsch v. City of Anaheim, at p. 574.) Where a statute requires or permits the exercise of discretion by a public officer, traditional mandate under section 1085 does not lie. (See Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1238-1239.)
Both parties point to Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911 as setting forth the relevant test for distinguishing whether a writ of mandate should proceed under section 1085 or section 1094.5. Kavanaugh reiterates the legal principles discussed above, noting one attempting to proceed via section 1085 must show a "clear, present and ministerial duty" on the part of the respondent, and a "a clear, present and beneficial right to performance of that duty" on the part of the petitioner. (Kavanaugh, at p. 916.)" 'A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.'" (Ibid.) However, the distinction between section 1085 and section 1094.5 was not at issue in Kavanaugh, and that opinion does not elucidate the difference between the two statutes in any detail. Nevertheless, the decision in Kavanaugh is consistent with well-established law, which holds section 1085 is only available to compel the performance of ministerial duties.
Petitioner's attempt to distinguish Tielsch by saying his case does not involve failure to exhaust administrative remedies misses the point. That was a separate reason the petition in Tielsch was rejected, and has no relevance to this case, as exhaustion of remedies played no part in the trial court's decision.
Under the local ordinances of Kern County, any person disputing the issuance of an administrative citation may contest the citation. (Kern Co. Ord. Code § 8.54.060.) The ordinances require the director of the issuing department to appoint a person to preside at the hearing and "hear all facts and testimony presented and deemed appropriate." (Id. at § 8.54.070, subd. (A).) The hearing officer "shall only consider evidence that is relevant to whether the violation(s) occurred and whether the recipient of the administrative citation has caused or maintained the violation(s) on the date(s) specified in the administrative citation." (Id. at § 8.54.080, subd. (C).) The hearing need not be conducted pursuant to any technical rules of evidence or introduction of witnesses, and relevant evidence "shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs." (Id. at § 8.54.080, subd. (D).) Following the hearing, the hearing officer shall issue a written decision setting forth the officer's findings of fact and conclusions. (Id. at § 8.54.090, subd. (B).) If the person cited wishes to appeal the administrative order, they may do so by seeking review from the Kern County Board of Supervisors, which reviews the matter de novo and has wide discretion in resolving the appeal. (Id. at § 8.54.100, subd. (A).)
The procedures set forth in the Kern County Ordinances clearly contemplate a quasi-adjudicative review by both the hearing officer and the Board of Supervisors. In keeping with that law, the underlying decision by Captain Cagle and the subsequent appeal heard by the Kern County Board of Supervisors were adjudicatory proceedings, not legislative ones. Captain Cagle heard and considered evidence and made rulings regarding the admissibility of evidence. So, too, did the Kern County Board of Supervisors receive and consider evidence, which applied only to the application of specific facts to a previously established rule. Both proceedings were clearly adjudicatory. Neither of these decisions were ministerial, because both involved considerable discretion by the public officer or body. Petitioner's argument respondents "had a ministerial duty to follow its own laws and enforce its ordinances in a proper and lawful manner" is unavailing. This argument ignores the meaning of the word "ministerial," which requires the governmental action not involve the exercise of discretion, which respondents' hearings clearly did.
Section 1085 does not apply in this case, as the trial court appropriately found. Instead, petitioner's action was required to proceed under section 1094.5.
II. No Fundamental Vested Right Was at Stake in These Proceedings
Petitioner next argues his "fundamental vested rights" were at stake in these proceedings, thereby entitling him to a "limited de novo" review by the trial court. This is not the case.
"[A] superior court's review of an agency's adjudicatory administrative decision under ... section 1094.5 is subject to two possible standards depending on the nature of the rights involved." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056-1057, fns. omitted (JKH Enterprises, Inc.) "If the administrative decision involved or substantially affected a 'fundamental vested right,' the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence." (Id. at p. 1057.) Otherwise, "the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record." (Ibid.) Substantial evidence is that which is of"' "ponderable legal significance" '" and is "reasonable in nature, credible and of solid value." (Ibid.)
"A right is deemed fundamental 'on either or both of two bases: (1) the character and quality of its economic aspect; [or] (2) the character and quality of its human aspect.'" (JKH Enterprises, Inc., supra, 142 Cal.App.4th at p. 1059.) Whether a right is fundamental must be decided on a case-by-case basis. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) Our Supreme Court has directed courts, in answering this question, to "consider the nature of the right of the individual: whether it is a fundamental and basic one, which will suffer substantial interference by the action of the administrative agency, and, if it is such a fundamental right, whether it is possessed by, and vested in, the individual or merely sought by him." (Ibid.) Examples of rights that have been found to be both fundamental and vested include the right to continue one's profession after having been awarded a license by the state, Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 84-85; San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889, 1896, the right to receive a service-connected death allowance, Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45, and regulatory takings of private property, Hensler v. City of Glendale (1994) 8 Cal.4th 1, 16." 'The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power.'" (JKH Enterprises, Inc., supra, 142 Cal.App.4th at p. 1059.) "Even though the fundamental vested right determination is made on a case-by-case basis, as a general rule, when a case involves or affects purely economic interests, courts are far less likely to find a right to be of the fundamental vested character." (Id. at p. 1060.)
Petitioner claims a fundamental vested right was at issue here because of "the potential criminal enforcement of the county ordinances against him." Petitioner cites no authority showing the mere potential for criminal charges means a fundamental vested right was involved. Nor has our research uncovered any suggestion this is the case. The record here contains no indication criminal charges were ever pursued against petitioner.
Instead, cases considering the fundamental vested rights analysis focus on the right actually impacted by the administrative action, which is why the consideration proceeds on a case-by-case basis. (See, e.g., Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314-318 [analyzing independently whether mere reprimand of a public employee without other adverse consequences implicated a fundamental vested right, notwithstanding that numerous other cases had found more severe disciplinary actions clearly implicated such rights]; Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 320-321 [reviewing whether revocation of a vehicle salesperson's license involved a fundamental vested right, even though revocation of other licenses had routinely been found to implicate such rights].) Had petitioner been charged criminally, none of the proceedings would have been conducted by the Kern County Fire Department or reviewed by the Kern County Board of Supervisors. Instead, the Kern County District Attorney's Office would have initiated criminal proceedings in a state court. As such, the "fundamental vested right" issue, which only dictates what standard of review applies to administrative mandate, would never be in question. Since he was not charged criminally, the "fundamental vested right" petitioner has in his liberty is, simply put, not at issue in this case.
Alternately, petitioner suggests, but does not directly argue, that because a $500 fine is "not a paltry sum to most people," it falls within the category of fundamental vested rights. Setting aside whether a $500 economic consequence is so dire as to be considered "fundamental" - which we doubt, but which might conceivably have different answers on a sufficient showing in a particular case, since the analysis proceeds on a case-by-case basis - it is clear no "vested" right is at stake. Whether a right is "vested" is another way of asking whether a public agency has committed that a particular individual will receive something of value. (See, e.g., Dickey v. Retirement Board (1976) 16 Cal.3d 745, 749 [finding disability benefits were a "part of the contemplated compensation to police officers that would vest upon the acceptance of employment"]; Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at p. 320 ["' "The term 'vested' denotes a right that is either 'already possessed' [citation] or 'legitimately acquired' [citation]"' "].) Here, the Kern County Fire Department made no promises to petitioner he would never have to pay a $500 fine if he violated county ordinances. In fact, the existence of the county ordinances shows exactly the opposite. In other words, petitioner had no "vested" right in being free from the consequences of his unlawful actions.
Further, the only impact of a monetary fine is an economic consequence, which is not usually the basis for a finding of a fundamental vested right. There has been no showing by petitioner that the impact of paying such a fine would be so dire it must be considered tantamount to some other fundamental right, in the context of this case. Since it is also clear any right of petitioner's here was not "vested," we conclude no fundamental vested right was at stake here. Accordingly, the trial court did not err by using a "substantial evidence" standard instead of a "limited de novo" standard of review.
III. The Trial Court Did Not Err in Concluding Respondents' Decision Was Supported by Substantial Evidence, and Petitioner is Not Entitled to Raise New Due Process Arguments
Petitioner argues next the trial court erred in concluding the decision by the fire department and the board of supervisors was supported by substantial evidence. As the trial court correctly observed, when reviewing an administrative decision under the substantial evidence standard, we are not free to substitute our own judgment for that of the administrative agency. "In substantial evidence review, the reviewing court defers to the factual findings made below. It does not weigh the evidence presented by both parties to determine whose position is favored by a preponderance." (Alberda v. Board of Retirement of Fresno County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 435.) Rather, "it determines whether the evidence the prevailing party presented was substantial - or, as it is often put, whether any rational finder of fact could have made the finding that was made below." (Ibid.) "When an appellant claims a factual finding is not supported by substantial evidence, our power begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding." (San Diego Gas &Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1292 [internal quotations omitted].) "[W]e must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) Again, substantial evidence is that which is of"' "ponderable legal significance" '" and is "reasonable in nature, credible and of solid value." (JKH Enterprises, Inc., supra, 142 Cal.App.4th at p. 1057 .)
The local ordinances of Kern County, which implement the county's fire code, explain that "[a] penalty fee shall be assessed to the owner or operator for failure to obtain a permit prior to commencing an operation for which a permit is required in Sections 105.5 and 105.6." (Kern Co. Ord. Code, § 105.1.1.) "An operational permit is required to ignite or cause to be ignited tumbleweeds, agricultural waste or other combustible material as provided for by the Rules and Regulations of the Air Pollution Control District with jurisdiction." (Id. at § 105.5.1.) The parties agree this incident occurred in the Eastern Kern Air Pollution Control District, the regulations of which states, "No person shall burn any refuse or other material in an open outdoor fire within the boundaries of the Kern County Air Pollution Control District." (Eastern Kern Air Pollution Control Dist., Rule 416, subd. III.) The regulations note that there is an exception for "[a] fire used only for cooking of food for human consumption." (Id. at Rule 416, subd. IV(D).) However, the rule also notes that its purpose is "to limit open burning to only those activities for which there is no feasible or practical alternative." (Id. at Rule 416, subd. I.)
The hearing officer considered the reports written by the responding firefighter. Petitioner conceded at the hearing he had a fire on the day in question, was told no citation would be issued if he extinguished the fire, and still refused to put the fire out. The report from the responding firefighter noted the flames extended two to four feet above the top of the washing machine cylinder being used as a burn barrel. The hearing officer also considered photographs of the scene showing piles of dead pine needles and leaves nearby, which petitioner conceded were accurate and with which petitioner had apparently started the fire. The responding firefighter's report placed those brush piles approximately 10 to 15 feet away from the fire. The report also noted ash fallout from the fire was landing on the brush piles, and other combustible items were even closer to the fire. Further, while petitioner maintains he started the fire for cooking, and local ordinances have an exception to the permitting process for cooking fires, the report notes petitioner "had arranged the brush in his Washer tub in a fashion that would not allow for a grate to be placed over it to cook on. He had long sticks hanging out of the tub up to three feet and log [sic] stacked up over the top of the tub not allowing for cooking." The report also noted the firefighter did not see any food around the fire.
There are certainly questions raised concerning the meaning of "open fire," whether the definition is intended to regulate barbecues, and under what circumstances a fire permit is required. Still, it is clear that in the judgment of fire authorities, the specific activity cited was hazardous. Giving deference we are bound to afford, we find that there is evidence substantial enough to support the decision upholding the citation. While petitioner clearly desires a reweighing of the evidence, neither we nor the trial court are permitted to do so under the law. Therefore, we find no error in the trial court's judgment.
Although unclear, it seems petitioner may also be attempting to argue he was deprived of due process during the citation hearing and his appeal to the board of supervisors. The precise process petitioner believes he was entitled to is not perfectly clear, although it seems he believes at least that due process required he be allowed to cross-examine witnesses. Regardless, petitioner did not raise due process issues in the court below. Nothing in the initial petition identifies a lack of due process as a basis for contesting the citation. No transcript of the trial court proceeding was submitted for our review, as petitioner elected to proceed by settled statement pursuant to California Rules of Court, rule 8.137. Nothing in the settled statement or the trial court's ruling indicates petitioner raised a due process argument below. It is well-established petitioner may not raise a new argument for the first time on appeal and "issues not raised in the trial court will not be considered on appeal." (See Transcontinental Ins. Co. v. Insurance Co. of the State of Pennsylvania (2007) 148 Cal.App.4th 1296, 1309; see also Owens v. City of Oakland Housing, Residential Rent &Relocation Bd. (2020) 49 Cal.App.5th 739, 746; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 988; Overgaard v. Johnson (1977) 68 Cal.App.3d 821, 826.) We decline to consider the issue of whether the hearing process comports with procedural due process in the first instance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. SNAUFFER, J.