Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. GIS28491, William S. Cannon, Judge.
McINTYRE, J.
Terri Loretz as trustee of the Connie L. Loretz Trust (the Trust) appeals an order of the superior court denying its petition for a writ of mandate or prohibition that sought in part to prevent the City of Chula Vista (the City) from enforcing approximately $240,000 in civil penalties imposed against it for its failure to timely comply with a notice of electrical violations at its mobilehome park. The Trust contends that the superior court erred in denying its petition because the City was required by law to hold an administrative hearing before imposing the penalties. To the extent that the argument is not waived, we find it unavailing and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Until March 2007, the Trust owned and operated the Brentwood Mobilehome Park (the Park), a multi-site mobilehome park located on two parcels of leased land in the City. In May 2005, the City began inspecting the Park and ultimately determined that the Park was not in compliance with various requirements of California's Mobilehome Parks Act (Health & Saf. Code, §§ 18200 et seq. (the Act)) as to its electrical and fire protection systems. (The City took separate enforcement action as to the identified deficiencies in the Park's fire protection system; no issue is raised on this appeal as to the fire protection violations or the City's response thereto and thus we do not discuss the facts underlying those matters further herein.)
In August 2005, the City's code enforcement officer notified the Trust that the Park's electrical system was "substandard" and provided an inspection report identifying several deficiencies in that regard. As to those violations, the City informed the Trust of the need to (A) retain a licensed electrical engineer and submit preliminary plans for correction of the deficiencies in the electrical system within 14 days, (B) seek a permit (based on "plans for a complete system throughout the [P]ark") within 14 calendar days after the City's approval of the preliminary plans, (C) hire an electrical contractor within 30 calendar days, and commence work on the electrical system within 45 days, of the permit approval, and (D) do the work "uninterrupted until completion and final inspection approval have been accomplished."
In October 2005, the Trust retained licensed electrical engineering company Triple S, which inspected the Park and drew up plans to replace the existing electrical system, at a cost of $1.8 million. Meanwhile, the City conducted a second inspection and, upon discovering that no corrective work on the electrical system had been commenced, sent the Trust a notice of the uncorrected violations on November 2, 2005 (the Notice of Violation); the notice required that the electrical violations be corrected within the time frames originally specified and warned "In the event you fail to correct the above violations by the date listed, you will be charged with a misdemeanor . . . and the City . . . may bring a civil action . . . per section 18700 of the California Health and Safety Code."
The Trust requested an informal conference on the validity of the Notice of Violation, contending that the time frames imposed by the City for the electrical system abatement work were unreasonable and requesting an extension of time so that it could arrange financing and carry out the work. After numerous continuances of the hearing at the Trust's request, the proceeding went forward in February 2006 and resulted in a determination by the City upholding the Notice of Violation and finding that, although the Trust had submitted plans for replacement of the electrical system, the system nonetheless remained in a substandard condition and thus still violated the applicable standards. (All further dates are in 2006 except as otherwise noted.)
The Trust appealed, requesting a formal hearing on its challenge to the validity of the Notice of Violation. After the City set a hearing on the matter, the Trust abandoned that appeal and instead pursued getting the City's approval of the Triple S plans. In late April, the City approved the plans, subject to the Trust's compliance with the time frames specified in the Notice of Violation (i.e., requiring that the Trust commence the work within 45-calendar days, and issued a 180-day permit that was to expire on October 26.
Although the Trust apparently hired an electrical contractor to perform the work specified in the approved Triple S plans, it did not proceed with that work but instead hired a new company, Buck Electric, Inc., to reinspect the Park and make new recommendations as to what work was needed. Buck Electric proposed to repair rather than replace the existing electrical system, at a savings of approximately $800,000, and began to perform "minor interim-emergency repair work," but neither sought to obtain City approval for a complete abatement plan, nor commenced work pursuant to such a plan.
Based on the lack of progress on the electrical work in the year since it gave the Trust notice of the electrical problems at the Park, the City issued a notice of pending assessment of civil penalties relating to the electrical violations in August. The notice specified that if the Trust failed to commence corrective work by September 1, the City would assess penalties of $500 per day from June 10, the latest date specified in the permit for the commencement of the approved work.
On September 1, the Trust delivered to the City a "Notice of Intent to Proceed," in which it proposed to have Buck Electric perform two phases of electrical work and purported to confirm "that the information has been submitted pursuant to [the City's] instructions on September 1, . . . that this information will satisfy the Notice of Pending Assessment of Civil Penalties . . . and [that] no penalties will be assessed . . . as to said notice." The City responded that it would defer the imposition of civil penalties until September 6 if the Trust (1) contracted with a licensed electrical contractor to perform the work specified in the previously-approved (Triple S) plans; (2) obtained a notice to proceed for the replacement contractor; and (3) had the permit for the approved plans transferred to the new contractor. The response also indicated that the Trust's proposals, particularly as to the phase two work, did not comply with the requirements of the Notice of Violation and that unless the Trust met the specified conditions by the following day, the stayed civil penalties would be imposed.
The Trust did not meet any of the three conditions and on September 13, the City issued a civil penalty notice assessing penalties of $500 per day commencing on June 10 and continuing "until abatement of all violations" referred to in the Notice of Violation. On October 26, the permit for the electrical work expired without any of the work required thereunder having been performed and the City served the Trust with a revised civil penalty assessment for $200,500 in penalties, imposed retroactively to the date of the November 2005 notice, as a result.
The City also learned from a third party that the Trust was in the process of selling the Park and noticed an administrative hearing regarding its intent to record the Notice of Violation so that any prospective purchaser would be on notice of the deficiencies on the premises. (As the parties have acknowledged, the notice contained an erroneous reference to an "appeal" from the decision to record the Notice of Violation.) At the hearing on December 22, 2006 (which related only to whether the City could record a Notice of Violation against the Park property and did not involve any issue regarding the imposition of the civil penalties), the Trust admitted that it had abandoned its formal appeal of the Notice of Violation in the earlier proceedings, but argued that it had thereafter made a good faith effort to correct the electrical deficiencies at the Park.
The hearing officer issued a decision concluding that: (1) the Trust had previously waived any challenge to the Notice of Violation, (2) although the Trust had complied with certain of the time frames specified by the City for corrective action, electrical violations still existed, and (3) the Trust's good faith effort to seek less expensive means to fix the problems had no bearing on whether the City was entitled to record the notice. In January 2007, the City recorded the Notice of Violation and sent a payment demand to the escrow company that was handling the sale of the Park for $239,093.30 in fees and penalties.
In February 2007, the Trust sent the City a letter charging that the Notice of Violation falsely stated the Park was not in compliance with the municipal code and that the civil penalties were improperly imposed because no hearing was held on the matter as required by the municipal code. The letter demanded that the City withdraw the Notice of Violation and the request for escrow proceeds.
The City failed to accede to the Trust's demand and, in March 2007, the Trust filed its petition for writ of mandate or prohibition pursuant to Code of Civil Procedure section 1085, asking the superior court to compel the City to either "permanently withdraw" the recorded Notice of Violation and the demand for payment of civil penalties and fees relating thereto or grant such relief temporarily, pending further administrative proceedings on those matters. The petition alleged in relevant part that the City was required to hold an administrative hearing in accordance with the provisions of the municipal code before imposing any civil penalties against the Trust or providing the Trust with notice of the right to appeal the imposition of those penalties.
The Trust noticed an ex parte hearing in which it requested that the court issue a temporary restraining order requiring the City to release the recorded Notice of Violation and withdraw the escrow demand, or an order to show cause why such relief should not be granted. (Although the matter was argued in open court, no transcript of the proceedings is included in the record on appeal.) The superior court declined to issue any orders against the City, but issued an order requiring that the escrow company place $239,093.30 of the proceeds from the sale of the Park into a separate interest bearing account.
At the hearing on the writ petition itself, the Trust argued that the municipal code required the City to conduct an administrative hearing before imposing civil penalties and that state law (specifically, Health & Saf. Code, § 18700) required that the City bring a judicial action before collecting them. The City responded that the Trust was required to appeal the final notice of assessment but failed to do so.
The court took the matter under submission, granting the parties a week to submit further briefing on the issue of whether the City was required to hold an administrative hearing pursuant to the municipal code provisions or whether the Trust was required to appeal the City's actions under state law. The Trust thereafter filed a supplemental brief, arguing in relevant part that the City had a mandatory duty to provide the Trust with an administrative hearing on the propriety and amount of civil penalties and asserting, for the first time, a passing argument that the City had violated its due process rights in failing to comply with that duty. The City's supplemental brief argued that the Trust had ample notice of its imposition of the civil penalties and could have sought judicial review thereof pursuant to Government Code section 53069.4, but did not do so.
The court initially granted the Trust's request for relief, reasoning in part that although the Notice of Violation notified the Trust of the right to request an informal hearing regarding the imposition of civil penalties, the notice did not also refer to the Trust's right to request a formal hearing. On the City's subsequent motion for reconsideration clarifying the procedural history of the proceedings, however, the court reversed course, finding that because the Trust did not pursue a formal appeal of the Notice of Violation, the City was entitled to record the notice and to assess fees and penalties relating thereto. The court's minute order denied the writ petition in its entirety. The Trust appeals.
DISCUSSION
1. General Principles Relating to Writ Proceedings
A petition for a writ of mandate (either an ordinary mandate or an administrative mandate) is the proper method for obtaining judicial review of most public agency decisions. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) The nature of the administrative action or decision determines the type of mandate to be used. Administrative decisions that result from a proceeding in which, by law, the agency is required to hold a hearing and to take evidence and is vested with discretion in the determination of the facts are reviewable by administrative mandate pursuant to Code of Civil Procedure section 1094.5; quasi-legislative decisions or decisions resulting from a proceeding in which the agency is not required to hold an evidentiary hearing are reviewable by ordinary mandate under Code of Civil Procedure section 1085.
In this case, the Trust's writ petition sought ordinary mandamus relief, although the Trust later argued to the superior court, without objection from the City, that its petition should be deemed to encompass a request for administrative mandamus as well. Regardless of which type of relief the Trust sought, the issue presented (i.e., whether the City was required by law to hold an administrative hearing before assessing civil penalties against the Trust) is one of law, subject to our de novo review. (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313 [administrative mandamus]; Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700 [ordinary mandamus].)
2. The Mobilehome Parks Act
The Mobilehome Parks Act (Health & Saf. Code, § 18200 et seq. (the Act)) regulates the construction and operation of mobilehome parks and recreational vehicle parks in California. (SC Manufactured Homes, Inc. v. Canyon View Estates, Inc. (2007) 148 Cal.App.4th 663, 674.) (All further statutory references are to the Health and Safety Code.) The Act represents legislative intent to ensure that mobilehome parks are operated to assure the "health, safety, general welfare, and . . . decent living environment" of their residents and to protect the investment value of the mobilehomes. (§§ 18250, 18251.)
The Act requires the Department of Housing and Community Development (the Department) to develop "specific requirements relating to [the] construction, maintenance, occupancy, use, and design" of mobilehome parks so as to assure park residents "maximum protection of their investment and a decent living environment" (§§ 18206, 18251, 18252, 18253, 18254, 18306) and to adopt regulations regarding electrical systems that it determines are reasonably necessary for the protection of life and property and to carry out the purposes of the Act. (§ 18670; see also Cal. Code Regs., tit. 25, art. 3 [setting forth applicable regulations].) It requires the Department to conduct periodic inspections of mobilehome parks and to enforce the applicable requirements, but authorizes any city or county to undertake the responsibilities for such inspection and enforcement. (§§ 18300, 18306, 18307, 18400.1; also Cal. Code Regs., tit. 25, § 1004.)
In the event that the Department or responsible local governmental agency determines that a mobilehome park is in violation of the Act or any rule or regulation adopted thereunder, it may promptly provide the owner or operator of the park with a notice to correct the violation, specifying the penalties that might be imposed for the failure to make a timely correction. (§§ 18420, subds. (a), (c), (d); 18401; Cal. Code Regs., tit. 25, §§ 1613, 1616.) For a noticed violation other than one involving an imminent threat to health and safety, the Act provides that the park owner or operator has 60 days to eliminate the violation, although the enforcing agency has certain discretion, after reinspecting the premises, to extend the compliance period for 30 days or "an additional reasonable period of time[.]" (§ 18420, subd. (c)(4).)
If the park owner or operator disputes an agency determination that a violation exists, that it has failed to correct the violation in the required timeframe or the reasonableness of the deadline set for correction of a violation, it may request an informal conference with the enforcement agency. (§ 18421; Cal. Code Regs., tit. 25, § 1752.) The informal conference and any subsequent hearings or appeals of the administrative decision must be conducted in accordance with the procedures established by the Department. (§ 18421; see Cal. Code Regs., tit. 25, § 1613.) A cited owner or operator may raise any objections to the administrative proceedings or the decision reached therein by filing a court action within 30 days of the decision. (Cal. Code Regs., § 1616.)
Any owner or operator who willfully violates the Act or any rules or regulations adopted thereunder is guilty of a misdemeanor and "shall be liable for a civil penalty of five hundred dollars ($500) for each violation or for each day of a continuing violation." (§ 18700.) The Act does not give the owner or operator the right to an administrative hearing relating to the imposition of civil penalties thereunder, but requires the enforcing agency to institute an action in "the appropriate court" to collect any such penalties. (§§ 18421, 18700.)
3. Denial of the Writ Petition as to the Recordation of the Notice of Violation
In addition to challenging the imposition of civil penalties without an administrative hearing, the Trust's notice of appeal also challenged the superior court's order insofar as it upheld the administrative decision allowing the City to record the Notice of Violation. The Trust's opening brief, however, is entirely silent on this point and thus we deem its challenge in that regard as having been abandoned. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [argument deemed abandoned for purposes of appeal]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [issue deemed waived].)
4. Denial of Writ Petition as to Imposition of Civil Penalties
A. Mootness
As a preliminary matter, the City requests that we take judicial notice of a civil action it filed against the Trust and the owner of the property on which the Park is located in December 2007, contending that the Trust will have the opportunity to challenge the propriety of the civil penalties in that action and thus have its due process rights fully protected. However, the pendency of a judicial action arising out of the imposition of the civil penalties does not resolve the Trust's contention that it was entitled to an administrative hearing on the matter, nor does it make that issue moot. Accordingly, we deny the request for judicial notice. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262 [matter to be judicial noticed must be relevant to a material issue].)
B. Local Regulation
As the Trust admits, the Act does not require an administrative hearing prior to the imposition of civil penalties, but instead mandates that an enforcing agency bring a court action to collect any civil penalties imposed in accordance therewith. (§§ 18421, 18700; in accordance with the Trust's unopposed request, we grant judicial notice of the legislative history of § 18700, which is consistent with the foregoing.) The Trust nonetheless asserts that it was entitled to an administrative hearing pursuant to chapters 1.40 and 1.41 of the City's Municipal Code. However, we find the Trust's reliance to be misplaced.
Section 1.41.110 of the municipal code, which relates to the imposition of civil enforcement penalties, provides in relevant part:
"A. The council finds that there is a need for alternative methods of enforcement of the . . . [m]unicipal [c]ode and applicable state codes. The council further finds that the assessment of civil penalties through an administrative hearing procedure for code violations is a necessary alternative method of code enforcement. The administrative assessment of civil penalties established in this section is in addition to any other administrative or judicial remedy established by law which may be pursued to address violations of the municipal code or applicable codes." (Italics added.)
The administrative hearing provision of the municipal code, in accordance with its own terms, does not override section 18700, on which Notice of Violation was expressly based, and thus did not require that the City hold a hearing before imposing civil penalties thereunder against the Trust.
Moreover, to the extent that the municipal code provisions might be interpreted to require an administrative hearing under these circumstances, the Act itself precludes such an interpretation. In particular, section 18300, subdivision (a) states that the Act "supersedes any ordinance enacted by any city, county, or city and county" relating to its provisions. This language sets forth a clear and unambiguous statement of legislative intent that state law preempt any local ordinances on the subject. (See also County of Santa Cruz v. Waterhouse (2005) 127 Cal.App.4th 1483, 1487 [recognizing that the purpose of the Act to protect the health and safety of mobilehome park residents, "as well as the investment value of their mobilehomes, can only be achieved through the centralized regulatory power of the [Department]," not "the particularized whims of a local county or municipality"].)
The Trust cites Griffith v. County of Santa Cruz (2000) 79 Cal.App.4th 1318 (Griffith) as authority for the proposition that section 18700 does not preempt the local ordinances requiring an administrative hearing. There, the issue was whether a county could impose its rent control ordinance against a landlord who rented mobilehome units to tenants. The appellate court affirmed the trial court's finding that the Act was inapplicable and thus did not preempt the local ordinance, reasoning that the statutory scheme governed the construction and operation of mobilehome parks but did not regulate the rental of mobilehome units. (Id. at pp. 1322-1323.)
Unlike in Griffith, where the issue did not relate to a subject matter covered by the Act, the City's authority to impose civil penalties for the failure of a park owner or operator to correct violations of the Act without holding an administrative hearing is expressly regulated by the Act. (§§ 18700, 18421.) Thus, the analysis of Griffith is inapposite here. (See also County of Santa Cruz v. Waterhouse, supra, 127 Cal.App.4th at p. 1487 [holding that because the Act expresses a legislative intent to fully regulate mobilehome construction and installation, a local ordinance requiring municipal approval of the installation of a multi-story mobilehome was preempted thereby].)
That the Legislature intended for the Act to preempt local regulations governing procedure is also clear from the fact that a local agency that undertakes enforcement responsibilities under the Act essentially stands in the shoes of the Department. (§ 18300, subds. (b), (c), (d)(1); see generally Cal. Code Regs., tit. 25, § 1005.5 [authorizing the Department to revoke a local agency's authority to enforce the Act].) Under such circumstances, the application of uniform procedures governing enforcement proceedings under the Act makes sense.
For the foregoing reasons, we conclude that neither state law nor local ordinance required the City to hold an administrative hearing prior to imposing the civil penalties for violations of the Act.
C. Procedural Due Process
The thrust of the Trust's arguments in the administrative proceedings and in the trial court was that the City was required by state and local law to hold an administrative hearing before imposing civil penalties for violations of the Act. Essentially for the first time on appeal, the Trust asserts that considerations of procedural due process require an enforcing agency to conduct an administrative hearing before imposing such civil penalties, essentially challenging the constitutionality of the Act. Having failed to argue this issue below, the Trust cannot now be heard to assert this as a basis for reversal of the judgment. (Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008) 165 Cal.App.4th 1000, 1007-1008 [recognizing that the assertion of a one-sentence argument in the trial court regarding the constitutionality of a local ordinance was insufficient to preserve the issue for appellate review]; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.)
Moreover, while due process principles require that a person be provided with notice and an opportunity to be heard before being deprived of a significant property interest (see generally D&M Financial Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165, 175), such principles do not entitle such a person to a hearing before any particular agency or tribunal. (See generally 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 518, p. 715 [procedural due process does not require a trial before a court]; Estate of Stobie (1939) 30 Cal.App.2d 525, 529 [recognizing that due process principles do not entitle a person to a hearing before any particular board, tribunal or court].) Further, the nature of what procedural safeguards are necessary to satisfy due process will vary depending on the competing interests of the government and the individual. (See Mathews v. Eldridge (1976) 424 U.S. 319, 335; Dixon v. Love (1977) 431 U.S. 105, 107-110, 115.) Thus the issue the Trust attempts to belatedly raise is a complex one that has not been fleshed out, even in the briefs filed on appeal.
For these reasons, we decline to consider this argument as a basis for a reversal of the superior court's order.
D. The Hearing Officer's Statement that the Trust Acted in Good Faith
Finally, the Trust argues that the City's imposition of the civil penalties against it cannot stand in light of the hearing officer's finding at the administrative hearing on the City's notice of intent to record the Notice of Violation it had acted in good faith. However, the Trust has repeatedly admitted that the issue of the civil penalties was not properly before the hearing officer at the December 2006 administrative hearing. Further, although the Trust introduced evidence regarding its belated efforts to comply with the Notice of Violation at that hearing, the City insisted that the matter was not properly raised at that hearing and thus did not introduce its own evidence in response. Given this procedural history, any statements by the hearing officer on that issue were simply gratuitous and cannot now preclude the City from seeking to collect the civil penalties imposed on the Trust for its violation of the Act.
E. Conclusion
For the foregoing reasons, we find that the superior court did not err in denying the Trust's petition for a writ of mandate.
DISPOSITION
The order is affirmed. The City is awarded its costs of appeal.
WE CONCUR: HUFFMAN, Acting P.J. HALLER, J.