Opinion
A150388
02-13-2018
SUPREMA MEATS, INC., Plaintiff and Appellant, v. CITY OF OAKLAND, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RG16803756)
In October 2014, plaintiff Suprema Meats, Inc. (Suprema) entered a compliance plan with defendant City of Oakland (City) to address various violations of the Oakland Municipal Code (OMC) at Suprema's warehouse. The following summer, the City cited Suprema for 22 violations of this plan based on forklift activity. Suprema administratively appealed the citations, and a hearing officer denied the appeal in part, ordering the company to pay a fine of $9,500 for six violations.
Suprema then initiated this action by filing a petition for writ of administrative mandamus, which the trial court denied. On appeal, Suprema contends that the hearing officer's decision denied it due process, was in excess of jurisdiction, and lacked substantial evidence. We conclude that two of the violations are not supported by sufficient evidence, but we otherwise reject Suprema's claims and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Suprema is a meat, fish, and poultry wholesale distributor with a warehouse on 57th Street in Oakland. The facility is in an area zoned as Housing and Business Mix 1 (HBX-1), which allows for industrial, commercial, and residential uses. (OMC § 17.65.010.)
In October 2014, Suprema and the City entered a compliance plan to address noise complaints, traffic impacts, and unpermitted property improvements. Paragraph 6 of the plan's "Rehabilitation Schedule" requires Suprema "to discontinue all delivery staging activities (i.e. movement of vehicles, equipment, and product into position for loading), vehicle loading and unloading activities, and vehicle & equipment maintenance activities at Suprema's 57th Street open loading facility between the hours of 9 pm and 7 am (daily)."
Paragraph 6 also limits "the movement of loaded vehicles leaving on delivery," an activity not at issue here.
In June 2015, the City issued a notice of violation of the compliance plan that identified 11 instances in March and June of "9 pm-7 am Forklift Activity in Violation of Paragraph 6," for which Suprema was assessed an $11,000 fine. A month later, the City issued another notice of violation that identified 11 instances in June and July of "9 pm-7 am Forklift Activity in Violation of Paragraph 6 and [OMC] 1.08," for which Suprema was assessed an additional $11,000.
Suprema administratively appealed the notices of violation, contending that it had merely moved forklifts from their charging area to a freezer, which was not a "delivery staging activity" under paragraph 6 of the compliance plan and did not otherwise violate the OMC. During the August 2015 hearing of the appeal, the City presented testimony from Suprema's neighbors and the city employee who issued the citations, as well as video and audio recordings a neighbor made of the forklift activity at issue. Suprema presented testimony from, among others, its president and a different city employee who was involved in negotiating the compliance plan.
In November 2015, the hearing officer found that Suprema had violated paragraph 6 of the compliance plan on six dates in June and July because "there was equipment (a forklift) being moved to position product for loading, and/or there was movement (by hand) of product into position for loading." The hearing officer also found, however, that the City had failed to prove any violations of OMC chapter 1.08, which governs general public nuisances, and should have prosecuted any noise complaints under OMC chapter 8.18, which addresses noise-related nuisances specifically. The decision ordered Suprema to pay a $9,500 fine, comprised of a general $3,500 "nuisance case fee" and $1,000 for each of the six violations.
Suprema then filed a petition for writ of administrative mandamus in the trial court. It argued that the hearing officer's decision could not be sustained because (1) it violated due process and was entered without jurisdiction because the six violations were based on activity for which Suprema was not cited and (2) it was based on findings that were not supported by sufficient evidence. The trial court rejected these arguments and denied the petition.
It appears the trial court never entered a formal judgment, but "an order denying a petition for writ of mandamus that effectively disposes of the action because no issues remain to be determined is also appealable." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056.)
II.
DISCUSSION
A. Standards of Review.
In its writ petition, Suprema challenged the hearing officer's decision on two grounds: the hearing officer denied Suprema "a fair trial" and acted "in excess of . . . jurisdiction" by sustaining violations for which the company had not been cited, and the decision constituted a "prejudicial abuse of discretion" because it lacked substantial evidence. (Code Civ. Proc., § 1094.5, subdivision (b).)
All further statutory references are to the Code of Civil Procedure. --------
When considering an agency's decision challenged under section 1094.5, the trial court and appellate court both review questions of law de novo. (Duncan v. Department of Personnel Administration (2000) 77 Cal. App.4th 1166, 1174.) The standard the trial court uses to review the agency's factual findings depends on whether a fundamental vested right is at issue, but in either case the appellate court reviews the trial court's findings for substantial evidence. (§ 1094.5, subd. (c); Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 352-353.)
The parties disagree about the standard of review governing the due process and jurisdictional claims. Suprema argues that both issues present legal questions and we should therefore review the hearing officer's decision de novo. The City responds that, although Suprema couches some of its claims in terms of due process and jurisdiction, it has raised only "issues of fact" pertaining to whether its forklift activity violated the compliance plan. We disagree with the City's assessment. Suprema's due process and jurisdictional claims raise questions of law, including whether the notices of violation were sufficiently worded and the meaning of paragraph 6 of the compliance plan. These claims are subject to de novo review. (See Schneider v. California Coastal Com. (2006) 140 Cal.App.4th 1339, 1343-1344; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285.)
The parties do agree, however, about the standard of review governing the substantial-evidence claim. Here, the trial court determined that the hearing officer's decision did not implicate a fundamental vested right, a determination Suprema does not contest, and reviewed the decision for substantial evidence. Thus, we ultimately stand in the trial court's position and also review the hearing officer's factual findings for substantial evidence, "resolving all conflicts in the evidence and drawing all inferences in support of the [agency's] findings." (Holmes v. California Victim Compensation & Government Claims Bd. (2015) 239 Cal.App.4th 1400, 1406.)
B. Suprema's Due Process and Jurisdictional Claims Fail Because the Citations Covered Forklift Activity That Violated Paragraph 6.
Suprema's due process and jurisdictional claims both turn on whether the notices of violation encompassed the activity that was used to support the six sustained violations of the compliance plan. We conclude that the notices encompassed this activity and therefore reject Suprema's claims.
Both notices of violation cited Suprema for "9 pm-7 am Forklift Activity in Violation of Paragraph 6." In turn, as we have said, paragraph 6 prohibits Suprema from conducting any "delivery staging activities (i.e. movement of vehicles, equipment, and product into position for loading), vehicle loading and unloading activities, and vehicle & equipment maintenance activities at Suprema's 57th Street open loading facility between the hours of 9 pm and 7 am (daily)." As Suprema conceded below, any "forklift activity" at the facility that involved "delivery staging activities" (not to mention "vehicle loading and unloading activities" or "vehicle & equipment maintenance activities") would constitute a violation of paragraph 6. For example, as Suprema stated in an addendum to its administrative appeal, using a forklift "to move product into position for loading" or to actually load or unload product would violate paragraph 6. Therefore, the notices of violation conveyed that Suprema was being cited for forklift activity that violated paragraph 6, not, as Suprema claims, any forklift activity.
Because Suprema was cited for forklift activity "in Violation of Paragraph 6," we cannot accept Suprema's argument that the notices inadequately informed it of what activity was at issue. Suprema points out that a few months before the challenged notices were issued, the City issued a notice of violation of the compliance plan that identified several instances of "Delivery Staging Activity in Excess of Paragraph 6." But we disagree that the notices at issue here were inadequate because they did not similarly explicitly describe the activity as "delivery staging activity." It is not reasonable to interpret the omission of the term "delivery staging activity" in these notices to mean that such activity was not being cited, particularly because the citations referred to forklift activity in violation of paragraph 6, the portion of the compliance plan prohibiting delivery staging activity. Moreover, Suprema was able to argue below that the cited forklift activity did not violate paragraph 6 because it did not involve moving product into position for loading. Suprema does not identify any other possible prejudice it experienced as a result of the claimed deficiency in the notices, and it therefore fails to demonstrate any due process violation entitling it to relief. (See Hinrich v. County of Orange (2004) 125 Cal.App.4th 921, 928 [procedural due process violations assessed for harmlessness].)
We also reject Suprema's claim that the hearing officer exceeded his jurisdiction. Suprema relies on language in the City's Policies and Procedures for conducting administrative appeals in public nuisance cases. That document provides that if a hearing officer determines the City's enforcement actions constitute "error or abuse of discretion," those actions and the remedies "may be either vacated in whole or amended in part or remanded back to the parties for further consideration, whichever best ensures compliance and fairness in the context of the ordinances and violations in issue."
Suprema contends that instead of assessing whether the City properly cited Suprema for each instance of "forklift activity," the hearing officer conducted a de novo review of the evidence by going "outside of the allegation of the citations, searching the evidence for what he believed to be movement of product into position for loading." This claim fails because it is premised on the contention, which we have rejected, that the notices of violation encompassed only forklift activity that did not violate the compliance plan. The hearing officer properly addressed whether the City had erred by determining that the cited forklift activity violated paragraph 6.
Suprema also points to testimony at the administrative hearing by an employee of the City Administrator's office who was involved in issuing the notices of violation to Suprema, claiming that the employee "admitted that Suprema had not been cited for loading or delivery staging activities, but [had] only been cited for 'forklift activity.' " In the cited testimony, the employee merely agreed that the two notices at issue identified "forklift activity," not "delivery staging activity," as the basis for the violations. This testimony does not amount to an admission of intent to cite Suprema for only forklift activity that did not qualify as a violation of paragraph 6.
In sum, the notices of violation adequately informed Suprema of the forklift activity being cited, and the hearing officer had jurisdiction to determine whether that activity violated the compliance plan. As a result, Suprema's due process and jurisdictional claims fail.
C. Substantial Evidence Supports Four out of Six of the Sustained Violations.
Suprema also claims there was insufficient evidence that it violated the compliance plan six times. We agree that two violations lacked sufficient evidence, but we disagree that the other four did.
Initially, Suprema claims in a single sentence of argument that the hearing officer's findings of fact, "even if supported by evidence[,] fail to support a conclusion that Suprema was in violation of the Compliance Plan because they do not find that the movement [of boxes] was part of delivery staging activities, i.e., loading." But the hearing officer's challenged findings are as follows: "I find from the video-graphic and other evidence that there was equipment (a forklift) being moved to position product for loading, and/or there was movement (by hand) of product into position for loading on the following dates," followed by six specific dates and times. It is difficult to understand Suprema's position, as the findings clearly refer to activity that involved "loading." In any event, Suprema has forfeited this claim by failing to support it "with reasoned argument and citations to authority." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Suprema argues that none of the recordings of the incidents supporting the six violations contain substantial evidence "that product was being moved into position for loading." The City responds that the recordings contain substantial evidence of "forklift activity" at prohibited times. In our view, Suprema's formulation of the issue is too narrow, and the City's formulation is too broad. As discussed above, Suprema was cited for forklift activity in violation of paragraph 6 of the compliance plan, not just for movement of product for loading, but also not just for any forklift activity. Therefore, we will address whether there was substantial evidence of forklifts being used at the relevant times for "delivery staging activities (i.e. movement of vehicles, equipment, and product into position for loading), vehicle loading and unloading activities, and[/or] vehicle & equipment maintenance activities." We conclude that there was substantial evidence to support four of the six citations.
The video recordings from June 19, July 2, July 3, and July 9, 2015, all show forklifts with boxes on them moving at prohibited times. This constitutes substantial evidence of forklift activity that violated paragraph 6. In arguing otherwise, Suprema claims the City failed to present evidence that the forklifts were moving toward trucks and that the boxes actually contained product. But the hearing officer could reasonably infer that boxes being moved contained meat and were being moved as part of the process of loading or unloading trucks. Suprema offers no authority to suggest that more specific evidence was required.
Suprema points out that its president testified, without contradiction, that on two of the occasions the recorded forklift was not being used to move product for loading. Specifically, the president testified that on one occasion the forklift was moving spoiled meat for disposal and on another occasion the worker driving the forklift was responding to the president's request to talk to him. But a factfinder "may 'disbelieve [witnesses] even though they are uncontradicted if there is any rational ground for doing so.' " (Church of Merciful Savior v. Volunteers of America (1960) 184 Cal.App.2d 851, 856-857.) We do not think that the hearing officer's determination that the president was "a credible witness, although clearly not a disinterested one," required the hearing officer to accept all of the president's testimony as accurate. Moreover, even if the officer did accept this testimony, he could still reasonably find that (1) using a forklift to move spoiled meat violated paragraph 6 because it constituted "vehicle loading and unloading activit[y]" and (2) the worker was in the middle of forklift activity that violated paragraph 6 when the president summoned him. Thus, the president's testimony does not establish a lack of substantial evidence to support the citations for these two instances.
We agree with Suprema, however, that no substantial evidence supports the June 25 and July 13, 2015 citations. The hearing officer found that "[o]n June 25, 2015, a man was moving a box at approximately 4:13 AM." The relevant video recording arguably shows a man loading a truck, but it does not contain any visible forklift activity. The officer also found that "[o]n July 13, 2015, boxes were being moved at approximately 4:16 AM." Again, however, the video recording with that time stamp does not contain any visible forklift activity. A recording from about 10 minutes later does show the movement of a forklift with boxes on it, but we can perceive no basis on which to infer that prohibited forklift activity therefore also occurred around 4:16 a.m. Nor does the City explain how the relevant recordings demonstrate forklift activity in violation of paragraph 6, stating only that recordings from June 25 show "heavy machinery and people moving items at the back of a truck" and that the recordings from July 13 show "people using forklifts to move items, between 4:02 a.m. and 4:26 a.m."
In sum, substantial evidence supports some, but not all, of the six upheld citations. As a result, we reverse the trial court's determination that substantial evidence supported the hearing officer's decision as to the June 25 and July 13, 2015 citations.
III.
DISPOSITION
The trial court's holding that there was substantial evidence to support the hearing officer's imposition of $2,000 in fines for violations of the compliance plan on June 25, 2015, and July 13, 2015, is reversed. The order denying Suprema's petition for writ of administrative mandamus is otherwise affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.