Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV240200
Sepulveda, J.
Respondent Musser Properties, doing business as Fircrest Mobilehome Park (Fircrest), notified park residents that it intended to increase their rent to pay for road improvements at the park. Some tenants, including appellants Donald Hendrix, Garland Anderson, and Garland’s wife Dorothy Anderson, were opposed to the increase, but tenants reached a settlement with park management that called for a reduced rent increase. More than a year later, and after respondent had begun collecting the increased rent, tenants filed a petition for arbitration of the rent increase pursuant to appellant City of Sevastopol's Mobilehome Rent Stabilization Ordinance (Ordinance), which is administered by appellant Sonoma County Community Development Commission (CDC). Respondent argued that the petition was barred by the statute of limitations set forth in the Ordinance. The matter was referred to an arbitrator, appellant Andra Monticello, who found that a timely petition for arbitration had been filed on May 4, 2005. Respondent filed a petition for a writ of administrative mandamus in the trial court, and the court concluded that the finding that a timely petition for arbitration was filed was not supported by substantial evidence. Appellants argue on appeal that the arbitrator’s decision was, in fact, supported by substantial evidence. We disagree and affirm.
I. Factual and Procedural Background
In order to promote the stabilization of rents charged at mobile home parks in Sebastopol, the city enacted the Ordinance, which is set forth in section 9.28.010 et sequitur of the Sebastopol Municipal Code. (Sebastopol Mun. Code, § 9.28.020, sud. (b), hereinafter Rd.) The Ordinance limits the permissible size of rental increases, sets forth the procedure a mobile home park owner must follow when imposing a rent increase, and defines the types of costs that may not be passed on to mobile home tenants. (Rd., §§ 9.28.030, sud. (f), 9.28.050, 9.28.060.) The Ordinance also provides a process for resolving disputes regarding proposed rent increases. (Rd., § 9.28.070.) Specifically, within 48 hours of a notice of rent increase, the park owner and tenants should arrange a meet-and-confer meeting with each other’s representatives to discuss the increase. (Rd., § 9.28.070, sud. (a).) The meeting must take place within seven working days of the rent increase notice, and representatives should exchange at the meeting documents “that the parties in good faith then know will be used to support their respective positions in an arbitration and discuss the issues in dispute.” (Rd., § 9.28.070, sud. (a).)
The administrative record contains the version of the Ordinance that was in effect as of November 2, 2005. All references to the Ordinance are to that version, and do not take into account any subsequent amendments (if any).
If discussions between the mobile home park owner and tenants do not resolve the dispute between them, the tenants may file a petition to request an arbitration of the dispute within 21 days of the date the notice of increase of rent was received. (Rd., § 9.28.070, suds. (b), (c)(1).) “The Clerk shall not accept a petition for filing unless it has been signed by at least fifty-one (51) percent of all affected tenants.” (Rd., § 9.28.070, sud. (b).)
Respondent Fircrest is a mobile home park on Graven stein Highway in Sebastopol. On April 27, 2005, Fircrest management provided affected tenants at the park with notice that it intended to raise their rent beginning on August 1, 2005. Part of the increase included a charge of $11.85 per month, which represented the monthly amortized cost per space of road replacement work completed in October 2004 and characterized by Fircrest as a “capital improvement.” The charge was to be in effect from August 1, 2005 until July 31, 2020.
On May 5, 2005, Shari Brenner, an administrative services officer with the CDC, sent notice to Fircrest residents of a May 12 meeting at the mobile home park to discuss the rent increase with Gretchen Carter, a representative of Fircrest management. About 30 to 40 people attended the meeting, which lasted for about an hour and a half. Residents objected that the road repairs were not a capital improvement that could be charged to residents. One resident proposed that the owner and tenants split the cost of the road repair, but management refused.
As discussed in more detail below, appellants contend, and respondent disputes, that at some point before June 24, 2005, a majority of affected Fircrest residents signed and submitted a petition for review of the rent increase pursuant to the Ordinance.
Another meeting was scheduled for July 5, 2005. Residents of the mobile home park consulted with attorney David Grab ill before the meeting, but they were told by Ms. Carter and a county representative that they could not bring an attorney to the meeting. Ms. Brenner, Ms. Carter, and appellants Mr. Hendrix and Mr. and Mrs. Anderson attended the July 5 meeting. According to tenants who were there, park management offered them a deal, then told them they had 15 minutes to discuss the offer in private, and either take it or leave it. Ms. Brenner had told the tenants that although they could challenge the rent increase in arbitration, they likely would not prevail. The tenants decided to accept the offer, which called for a rent increase of $11.18 per month for 15 years, and an agreement that the park owner would properly maintain the rebuilt road for 15 years with no additional pass-through of costs to residents.
Almost immediately after the settlement was signed, appellant Mr. Hendrix regretted having agreed to respondent’s proposal, and he felt that he agreed to it only because there was nothing else residents could do. He also testified, however, that he was not considering a challenge to the rent increase in July 2005. Appellant Mr. Anderson testified that residents proceeded the way they did in part because of a concern about their limited legal funds, and that he “was not prepared to suggest or work towards some kind of legal action that would bring a cost on the residents that would not result in a favorable action on our part, or for our benefit.” Like Mr. Hendrix and other residents, Mr. Anderson was concerned that the process had not been conducted properly.
Ms. Brenner notified all Fircrest residents of the settlement agreement in a letter dated July 20, 2005, which stated in part: “The process for discussing the pass troughs for the sections of the road replaced in 2004 is now concluded. The rent increases that take effect between August 1, 2005-July 1, 2006 will include the agreed upon terms for this pass through in addition to the allowable CPI [consumer price index] increase.” Park management also notified residents of the negotiated settlement in a letter dated July 22, 2005, and respondent began collecting the additional rent on August 1, 2005.
In June 2006, Fircrest residents began communicating with the CDC, claiming that the $11.18 in increased rent was a violation of the Ordinance, and requesting a review of the increase. In a letter dated June 15, 2006, a Sonoma County deputy county counsel wrote to the Sebastopol city manager. Counsel acknowledged that any challenge to the rent increase might be time-barred because of the requirement that any challenge to a rent increase be filed within 21 days, but he recommended that “the determination of whether a tenant may now file a valid, timely petition challenging the 2005 rent increase, or whether the negotiated agreement may now be reviewed or set aside, should be made by an arbitrator.”
Cindy Rich, a community development specialist with the CDC, recommended to the Fircrest homeowners association that tenants submit a petition for rent review if they wanted to challenge the rent increase. Tenants filed a petition around August 8, 2006, and a hearing was scheduled for October 25.
Respondent submitted an arbitration brief dated October 12, 2006, and argued, among other things, that tenants failed to file a petition for rent review within 21 days of the notice of rent increase, as required by the Ordinance, and that their claim was therefore time-barred. In a brief dated the day before the scheduled hearing, the Fircrest homeowners’ association represented that “[w]ell over a majority of affected residents of the Park signed and filed a Petition for Space Rent Review with the Clerk as provided in § 9.28.070 on May 4, 2005.” No exhibit was cited in support of this factual assertion, and no such petition was included in the list of exhibits submitted in connection with the association’s arbitration brief. The association argued that the residents who petitioned for review were “still waiting for their arbitration hearing.” (Italics omitted.) According to respondent’s counsel, he had never seen a petition filed in 2005, and the city had never provided him with a copy of such a petition.
The mobile home park’s homeowner association was represented at the October 25, 2006, hearing by Mr. Grab ill. No testimony was elicited regarding the filing of an arbitration petition in 2005 challenging the rent increase at issue in this case.
Mr. Grabill also represented appellants Mr. Hendrix and Mr. and Mrs. Anderson in their individual capacity.
At the conclusion of the hearing, the arbitrator admitted into evidence the exhibits that were submitted with the parties’ arbitration briefs. The arbitrator also noted that the CDC had submitted to her additional documents that were “mostly duplicative” of the parties’ exhibits. She stated that she would make the documents from the CDC part of the administrative record but would not formally admit them into evidence. In a post-arbitration brief, respondent again argued that the petition filed in 2006 was time-barred, and that the petition allegedly filed in 2005 was not introduced at the hearing and therefore could not be considered by the arbitrator.
The arbitrator issued a written decision dated November 16, 2006. The decision states: “On May 4, 2005, a Petition for Space Rent Review was signed and submitted by a majority of the affected residents of the Park, to the Clerk’s office as provided in Ordinance Section 9.28.070.” As for whether that petition was properly before the arbitrator, the decision stated: “Although the original Petition for Space Review was not formally introduced at the hearing, the evidence, through testimony and reference, was clear that the Petition had been timely filed. The issues here do not turn on the validity of the Petition, which is not contested, but the ensuing Agreement that was triggered by the Owner’s notice of a ‘pass through’ and the Residents’ responsive Petition. No ruling is necessary with regard to the original Petition, as the decision in the case at bar negates the Agreement, re-starting the time lines in the Ordinance.” The arbitrator concluded that the 2005 petition had not been abandoned. She found that the July 2005 settlement agreement was voidable because undue influence had been exerted over the residents to accept it, and that respondent was required to re-notice the proposed rent increase and begin the process again.
Respondent filed a petition for a writ of administrative mandamus, seeking to vacate the arbitrator’s decision. The petition named appellants City of Sebastopol, the CDC, and the arbitrator as respondents, and named Fircrest tenants as real parties in interest. Respondent argued, among other things, that there was no evidence to support the arbitrator’s finding that tenants filed a valid petition for review on May 4, 2005.
Appellants Mr. Hendrix and the Anderson's, proceeding with a different attorney (who also represented in the writ proceeding appellants Sebastopol, the CDC, and the arbitrator), opposed the issuance of a writ. They contended, as they had to the arbitrator, that the tenants had filed a petition for rent review on May 4, 2005, and they argued that substantial evidence supported the arbitrator’s finding that a timely rent review petition was filed. However, appellant Sebastopol refused to respond to discovery propounded by respondent requesting an admission that tenants did not file a timely request for arbitration, contending that the evidence sought was not relevant. Instead, they relied on an undated copy of a petition that appeared in the portion of the administrative record that was not admitted into evidence at the underlying hearing.
They also filed a cross-complaint and a cross-petition for a writ of mandamus in which they again alleged that tenants filed a valid petition for space rent review on May 4, 2005. It is unclear from the record how the trial court ruled on the cross-complaint.
Following a hearing, the trial court granted respondent’s petition for a writ of administrative mandamus, stating that “there was insufficient evidence presented at the hearing to establish that a proper, timely petition was filed.” In the judgment that followed, the trial court concluded that the hearing officer’s decision must be set aside because no evidence was presented at the underlying administrative hearing that a petition for review was filed in compliance with the Ordinance on May 4, 2005. The court stated that it could not consider documents in the administrative record that were not admitted into evidence at the administrative hearing, and that even if it could, the documents did not amount to substantial evidence of a timely filing. The court ordered appellants to vacate the arbitrator’s decision in the underlying administrative proceeding in light of the court’s finding that “the tenants’ claims are time barred, as a matter of law.” This timely appeal followed.
II. Discussion
A. Standard of Review.
A trial court may issue a writ of administrative mandamus where an agency has committed a prejudicial abuse of discretion. (Code Iv. Kroc., § 1094.5, sud. (b).) Abuse of discretion is established if the findings of the agency are not supported by the evidence. (Ibid.) Where an administrative decision does not involve a fundamental vested right, “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Iv. Kroc., § 1094.5, sud. (c); San Marcos Mobilehome Park Owners’ Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1499-1500 [requested rent increases at mobile home park do not affect fundamental vested rights].) On appeal, we apply the same standard as the trial court, determining whether substantial evidence supports the administrative agency’s findings. (Fukada v. City of Angels (1999) 20 Cal.4th 805, 824; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 218; Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 287.)
Appellants correctly note in their opening brief that the determination of whether an administrative proceeding was fundamentally fair is a question of law (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170); however, they do not specify any questions of law that are at issue in this case. They assert for the first time in their reply brief that “[w]hether substantial evidence in the administrative record supports an administrative agency finding is a question of law, not fact.” However, the two cases upon which appellants rely do not mandate that this court review the findings of the arbitrator for anything other than for substantial evidence. (Bode v. Los Angeles Metropolitan Medical Center (2009) 174 Cal.App.4th 1224, 1235 [whether governing body applied correct standard in conducting review of matter below is question of law]; Angelier v. State Board of Pharmacy (1997) 58 Cal.App.4th 592, 598, fn. 5 [statement of decision not required where trial court has applied substantial evidence review in administrative mandamus proceeding].)
B. Substantial Evidence Does Not Support Arbitrator’s Decision.
Appellants, now represented by a different law firm from the one that represented them in the trial court, argue that the trial court erred in granting a writ of administrative mandamus, because substantial evidence supports the arbitrator’s conclusion that Fircrest tenants filed a timely petition for arbitration. The tenants consistently maintained below, and the arbitrator found, that they filed a timely petition for arbitration on May 4, 2005. On appeal, however, appellants now claim that there is substantial evidence that the tenants timely filed a petition for arbitration on some unspecified date before June 21, 2005, the date to which the deadline to file a petition had at one point been extended. Perhaps recognizing that there is no evidence to support the finding that a petition was filed by May 4 (indeed, the fact that the deadline for filing was at one point extended to June 21 supports an inference that no petition was filed by May 4), appellants contend that even if that “specific finding” was “erroneous, ” there is nonetheless “[a]bundant evidence” to support the more general finding that a petition was “ ‘timely filed.’ ”
Respondent notes that this is the first time in this protracted litigation that appellants have claimed that they filed a petition on a date other than May 4, and argues that appellants “may not submit new facts on appeal or request a reversal based on invited errors and misrepresentations.” (Unnecessary capitalization removed.) Respondent’s counsel stressed at oral argument that tenants’ theory before the arbitrator was that they experienced undue influence to accept a settlement after they filed a petition on May 4. Had tenants instead claimed that they filed a petition in late June, respondent could have contended that this undermined the tenants’ argument that they were somehow unduly influenced to accept a settlement offer a relatively short time later, on July 5. Respondent also could have cross-examined witnesses about an alleged June filing date, but was deprived the opportunity to do so in light of tenants’ previous insistence that a petition was filed on May 4. Although respondent’s argument is well taken, we need not decide whether we must disregard appellants’ argument that a petition was timely filed at some point other than May 4. Even assuming arguendo that we may consider an argument based on a factual contention not raised below (cf. Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 319 [appellate court precluded from considering factual issues raised for first time on appeal where facts do not appear in trial court record]), we disagree that substantial evidence supports a finding that a petition for review was timely filed.
Appellants first argue that the “most obvious, straightforward evidence that homeowners timely filed an adequate petition is the presence of a petition in the Clerk’s files, as transmitted to the arbitrator, signed by significantly more than half of the 58 affected homeowners.” Appellants direct us to two copies of what they claim is the same petition filed in 2005; however, both copies are undated and lack a file stamp or any indication of when-or whether-they were filed with the clerk. As the trial court noted, the record lacks any “foundation as to when petitions in [the CDC’s] file were signed or filed with the clerk, or whether the purported signatories of the petitions were affected tenants at the park.”
The petition to which appellants direct us, like almost all of the documents upon which appellants rely, appears in a portion of the administrative record that was not admitted into evidence at the administrative hearing, and which the arbitrator specifically said “[was]n’t going to be considered” by her. The trial court concluded that such documents could not be considered in ruling on the substantial evidence arguments. Even assuming that this court may consider all the evidence cited by appellants in their briefs, we agree with the trial court that it does not amount to substantial evidence of a timely filing.
The petition filed in August 2006 likewise lacks a file stamp. A community development specialist with the CDC testified that she believed that there was a file-stamped copy of the petition at her office, suggesting that the CDC had a process in place for file stamping petitions.
Appellants argue that we may rely on the general presumption that an “agency regularly performed its official duty and that the findings and actions of the administrative agency were supported by substantial evidence.” (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 176, fn. 3.) This argument presupposes that the mere presence of the undated petition in the administrative record is substantial evidence that, pursuant to the Ordinance, the clerk accepted the petition for “filing” as part of her official duty, something the clerk “shall not” do unless the petition has been signed by at least 51 percent of all affected tenants and is received in a timely fashion. (Ord., § 9.28.070, subds. (b), (c)(1).) There is little support in the record for these inferences. The arbitrator explained that she had received “additional documents [that] were submitted to [her] by the CDC, ” and that she “received them as part of [her] function as an arbitrator.” The documents included such things as letters, e-mails, a “Phone/Activity Log for Fircrest, ” and a timeline of events related to the rent increase that was presumably prepared in preparation for the hearing-items which one would not expect would be “filed” by the clerk. As the trial court observed in granting respondent’s petition for a writ of mandate, “the [O]rdinance does not prohibit the clerk, or any other employee of the County, from accepting copies of either a valid or an invalid petition for some purpose other than filing.” With no evidence as to when and why the undated petition was given to the CDC, we disagree that it amounts to substantial evidence of a timely filing.
The Ordinance also provides that after an arbitration petition is filed, “[t]he Clerk shall provide a copy of the completed petition form to both parties and the arbitrator forthwith or within five (5) working days.” No such copy was provided at the arbitration hearing.
Appellants next point to the following documents in the administrative record: (1) a June 9, 2005, memo from Ms. Brenner at the CDC noting that “the deadline for submitting the 51% of the petitions [sic] to me is 5:00 pm on 6/21”; (2) handwritten notes dated June 24, 2005, by tenants’ attorney Mr. Grabill to Ms. Brenner that state in part: “I’ve been retained to assist tenants at Fircrest MHP with an arbitration over a proposed rent increase in Sebastopol”; and (3) a June 27, 2005 letter from Mr. Grabill to Ms. Brenner stating in part: “I represent residents of the Park who are challenging a proposed rent increase. The residents have requested arbitration pursuant to the Sebastopol Mobile Home Rent Control Ordinance. [¶] I understand your office will refer this matter to an arbitrator.” These documents at most support an inference that as of June 27, 2005, Mr. Grabill believed that a petition for arbitration previously had been filed. The first two documents indicate only that the deadline for filing a petition had been extended and that Mr. Grabill had been retained in connection with an arbitration petition; neither document refers to a filed petition that had been submitted to the clerk. Had a petition in fact been filed, as Mr. Grabill suggested in his June 27, 2005 letter, Mr. Grabill presumably would have elicited supporting testimony from the four Fircrest residents who testified at the arbitration hearing more than a year later. No such testimony was elicited, however.
As further support for their argument that a petition for arbitration was filed in June 2005, appellants direct this court to a letter dated July 7, 2005, from Ms. Brenner to Fircrest residents announcing the settlement of the parties’ dispute regarding the rent increase. The letter begins: “As you all know, many residents have received a space rent increase notice which included a 15-year pass through for road repair, and many of you signed a petition to enter into a binding arbitration process.” First, although Ms. Brenner stated that a petition had been signed, she made no mention of whether one had been filed, or whether at least 51 percent of affected tenants had signed the petition. Second, the letter is not signed, and it is not written on CDC letterhead as are other letters from Ms. Brenner that appear in the record. Third, the letter appears in the portion of the administrative record that was not admitted into evidence at the hearing. Instead, the arbitrator admitted into evidence a signed letter written on CDC letterhead and dated July 20, 2005 from Ms. Brenner announcing the settlement of the parties’ dispute, and appellant Hendrix testified that he received the July 20 letter. The July 20 letter that was actually received by residents does not refer to an arbitration petition. A reasonable inference is that the July 7 letter cited by appellants was a draft.
The trial court’s judgment notes that a timeline of events that appears in the administrative record “makes no mention of a petition being filed at any time prior to the signing of the July 5, 2005 settlement agreement.” (Original italics.) Appellants argue that “[a] gap in the informal timeline... cannot disprove a document’s existence or filing.” While that may be true, the fact that there is no mention of the petition certainly supports an inference that no petition was filed.
In short, the arbitrator’s finding that the affected tenants filed a timely petition in 2005 is not supported by substantial evidence, which means that the tenants’ 2006 challenge to the rent increase announced in April 2005 was untimely. In light of this conclusion, we need not consider respondent’s alternative arguments as to why this court should affirm the trial court’s judgment.
We do find persuasive respondent’s argument that even assuming that the tenants filed a proper and timely petition, they abandoned their claim. The Ordinance provides: “Upon the filing of a petition, the rent increase is not effective and may not be collected until and to the extent it is awarded by an arbitrator or until the petition is abandoned. As used herein, the term ‘abandoned’ refers to lack of prosecution of the arbitration by the mobile home tenants’ representative(s).” (Ord., § 9.28.070, subd. (b).) Because there is no evidence that the tenants took any action regarding the rent increase between July 2005 (when they entered a settlement agreement) and June 2006 (when they again communicated with the CDC about the increase), it appears beyond dispute that the tenants abandoned any petition they allegedly filed.
C. No Basis for Remand.
Appellants argue that should this court find that substantial evidence does not support the arbitrator’s timeliness finding, the proper remedy is to remand the case for a new hearing. Code of Civil Procedure section 1094.5, subdivision (e) provides, in relevant part: “Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that 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....” Subdivision (f), in turn, provides: “The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court’s opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent.” Where a court grants a petition for a writ of administrative mandamus because the administrative agency denied petitioner a fair trial, the appropriate remedy is to remand to the agency for a proper hearing. (English v. City of Long Beach (1950) 35 Cal.2d 155, 159-160 [case remanded to civil service board where board’s decision based on information improperly taken outside proceeding]; La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 53-54 [remand to civil service board because petitioner deprived of full and fair hearing]; see also Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1142-1143 [where improper disqualification of experts rendered hearing unfair, proper procedure is remand to medical board for further and proper proceedings]; Clark v. City of Hermosa Beach, supra, 48 Cal.App.4th at pp. 1172-1174 [remand to city council to rehear matter where petitioners deprived of fair hearing because of procedural errors].)
Citing English v. City of Long Beach, supra, 35 Cal.2d 155, respondent argued to the arbitrator that because there was no evidence presented at the arbitration hearing that a petition was filed in 2005, and because the arbitrator could not consider evidence outside the administrative record, any petition filed in 2005 was not before the arbitrator. In its judgment, the trial court cited English and La Prade v. Department of Water & Power, supra, 27 Cal.2d 47 for the proposition that it may not consider documents not admitted into evidence at the administrative hearing in determining whether substantial evidence supported the arbitrator’s decision. Relying on those cases, appellants now argue that “if this Court concludes that the Arbitrator deprived [respondent] of a fair hearing by basing the timely-petition finding on documents in the administrative record not formally admitted into evidence at the hearing, the remedy must be limited to a judgment and writ remanding the matter to Respondents [sic, presumably, appellant CDC] for a renewed hearing free from any such error.” Unlike in English and La Prade, however, the trial court did not find, and respondent does not contend, that the arbitrator based her decision on documents not admitted into evidence. Instead, respondent contends that (as the trial court found) substantial evidence does not support the arbitrator’s findings even if we consider the documents not admitted into evidence.
“[W]here, as here, the administrative agency errs not in the conduct of the hearing but in the results reached, there is no basis for reconsideration.” (Newman v. State Personnel Bd. (1992) 10 Cal.App.4th 41, 49.) There is no basis to remand the case for further consideration.
Although not raised by either party, we note that appellants do not make any showing that there is statutory cause to remand the case pursuant to Code of Civil Procedure section 1094.5, subdivision (e). That is, there is no claim that evidence was improperly excluded or that there was “relevant evidence that, in the exercise of reasonable diligence, could not have been produced” at the hearing. (Ibid.; Ashford v. Culver City Unified School Dist. (2005) 130 Cal.App.4th 344, 350-351 [no legal basis to remand for second hearing to provide foundation for videotape where it was not offered at first hearing and no reason provided for failing to provide evidence previously].)
III. Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Ruvolo, P.J.Reardon, J.