Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG-06-276298
SIMONS, Acting P.J.
Real party in interest Alison Ulman (Ulman) is a tenant of appellants, Old Mother’s Cookies, LLC, Russell W. Taylor and J.R. Eddie Orton, III (collectively, appellants). In 2004, Ulman petitioned the City of Oakland Rent Adjustment Program (Rent Adjustment Program), alleging unlawful rent increases. Ultimately, the City of Oakland Housing, Residential Rent and Relocation Board (Rent Board) upheld her petition and rejected appellants’ contention that Ulman’s unit was exempt from City of Oakland’s residential rent control ordinance (Ordinance) as new construction. (Oakland Mun. Code, ch. 8.22, § 8.22.010 et seq.) Appellants unsuccessfully petitioned the trial court for a writ of administrative mandate and contend that court erred in denying their petition, because (1) Ulman’s unit is exempt from the Ordinance under the Costa-Hawkins Rental Housing Act (Civ. Code, § 1954.50 et seq.) (hereafter Costa-Hawkins), and (2) Ulman’s unit is exempt under the Ordinance’s exemption for newly constructed dwellings. We disagree and affirm.
All undesignated section references are to the Oakland Municipal Code.
BACKGROUND
Based on findings that the City of Oakland continues to suffer a “shortage of decent, safe, affordable and sanitary residential rental housing” (§ 8.22.010, subd. A.), the Ordinance imposes rent increase limitations on all covered residential units (§ 8.22.070). The Ordinance exempts from coverage “[d]welling units which were newly constructed and received a certificate of occupancy on or after January 1, 1983. . . . To qualify as a newly constructed dwelling unit, the dwelling unit must be entirely newly constructed or created from space that was formerly entirely non-residential.” (§ 8.22.030, subd. A.5.) The Ordinance also exempts “[s]ubstantially rehabilitated buildings.” (§ 8.22.030, subd. A.6.) The building owner bears the burden of proving that a dwelling unit is exempt from the Ordinance. (§ 8.22.030, subd. B.1.b.)
The subject property, a building owned by appellants, is located on East 18th Street in Oakland (18th Street building). The building was originally constructed as a large commercial bakery and was occupied by a cookie company until the late 1940’s or early 1950’s. At some point thereafter, and at least by the late 1980’s, the 18th Street building began to be used as residential live-work space. This residential live-work use occurred without permits or a certificate of occupancy.
In 1988, the City of Oakland Housing Advisory and Appeals Board adopted a resolution declaring the 18th Street building “a substandard residential building and unsafe.” Sometime thereafter, the building was ordered vacated. Appellants purchased the building in 1996. Gary Breen, a partner of Old Mother’s Cookies, LLC, testified that, in 1996, the 18th Street building was not being used for residential purposes and was in a condition of deterioration. In approximately 2001, appellants began a three-phase renovation project to convert the building to legal residential use. In October 2002, the City of Oakland Community and Economic Development Agency approved a “Temporary Occupancy Request” as to certain units of the 18th Street building for 45 days.
Ulman is a tenant who has resided in Unit 1 of the 18th Street building since December 1996. On June 7, 2004, Ulman filed a petition with the Rent Adjustment Program alleging unlawful rent increases. In response to Ulman’s petition, appellants claimed that the 18th Street building was exempt from the Ordinance because the building had been substantially rehabilitated at a project cost of at least 50 percent of the average basic cost of new construction. Following an August 2004 hearing on Ulman’s petition, a Rent Adjustment Program hearing officer ruled that Ulman’s unit fell within the Ordinance’s substantial rehabilitation exemption. (§ 8.22.030, subd. A.6.)
In October 2004, Ulman appealed the hearing decision to the Rent Board. In February 2005, the Rent Board concluded that the hearing decision was not supported by substantial evidence, and reversed and remanded the case for consideration of additional evidence. In March 2005, a Rent Adjustment Program hearing officer conducted a second hearing on the substantial rehabilitation exemption. Before the final decision was made, appellants requested a further hearing to establish an exemption based on new construction. (§ 8.22.030, subd. A.5.)
In September 2005, the Rent Adjustment Program hearing officer conducted a hearing on appellants’ claim that Ulman’s unit fell within the Ordinance’s new construction exemption. At that hearing, appellants dismissed their substantial rehabilitation claim and proceeded solely on the new construction claim. In October 2005, the hearing officer ruled that appellants had failed to meet their burden of proving that Ulman’s unit fell within the new construction exemption (October 2005 decision). Appellants appealed to the Rent Board, and the Rent Board affirmed.
On June 26, 2006, appellants filed a petition for writ of administrative mandate, seeking an order directing the Rent Board to set aside the Rent Adjustment Program October 2005 decision. (Code Civ. Proc., § 1094.5.) Following briefing and oral argument, the trial court denied the writ. Appellants filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
“On a properly filed petition for a writ of mandate under Code of Civil Procedure section 1094.5, a court sitting without a jury is empowered to ‘inquir[e] into the validity of any [discretionary] final administrative order or decision’ made after an evidentiary hearing. [Citations.] In such a case, the scope of the court’s review is limited to determining, inter alia, ‘whether there was a fair trial; and whether there was any prejudicial abuse of discretion.’ [Citations.] An abuse of discretion is established if an administrative agency or officer ‘ “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.” ’ [Citations.]” (TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1370 (TG Oceanside).)
On appeal, we review “not the trial court’s ruling, but the hearing officer’s final administrative decision.” (TG Oceanside, supra, 156 Cal.App.4th at p. 1370, fn. omitted.) We review the hearing officer’s factual findings under the substantial evidence standard. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 220 (MHC).) “In applying the deferential substantial evidence test, we ‘begin with the presumption that the record contains substantial evidence to sustain the board’s findings of fact.’ [Citation.]” (Id. at p. 219.)
II. Exemption Under Costa-Hawkins
Appellants first contend that Ulman’s unit is exempt from the Ordinance under Costa-Hawkins. We disagree.
Costa-Hawkins provides, in relevant part: “(a) Notwithstanding any other provision of law, an owner of residential real property may establish the initial and all subsequent rental rates for a dwelling or a unit about which any of the following is true: [¶] (1) It has a certificate of occupancy issued after February 1, 1995.” (Civ. Code, § 1954.52, subd. (a)(1).)
Respondent argues the exemption is inapplicable because appellants never obtained a certificate of occupancy. In fact, at the September 2005 hearing before the Rent Adjustment Program hearing officer, appellants stipulated “that a certificate of occupancy has not been issued at this point.” At the hearing on their petition for writ of mandate, however, appellants reversed course and contended that a certificate of occupancy had been issued for the 18th Street building, referring the court to a form entitled “Temporary Occupancy Request,” dated October 15, 2002. The trial court rejected this contention. On appeal, appellants renewed their argument that a temporary certificate of occupancy was issued for the 18th Street building in 2002, and this temporary certificate qualifies the building as exempt from rent control under Civil Code section 1954.52, subdivision (a)(1). However, at oral argument, appellants once again conceded that, as yet, no certificate of occupancy has been issued, and further conceded that their argument under Costa-Hawkins fails for this reason.
At oral argument, appellants assured the court they would be receiving a certificate of occupancy in the future and asked us to rule on whether Costa-Hawkins applies only to newly constructed units. As appellants conceded at argument, this issue was not raised in their opening brief. Thus, it is waived. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 9:78:1 to 9:78.2, pp. 9-24 to 9-25) In addition, we decline the invitation to render an advisory opinion. (People v. DeLong (2002) 101 Cal.App.4th 482, 486; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)
III. Exemption under the Ordinance as a Newly Constructed Dwelling
Next, appellants contend that Ulman’s unit falls within the Ordinance’s exemption for newly constructed dwellings. Again, we disagree.
The ordinance exempts “[d]welling units which were newly constructed and received a certificate of occupancy on or after January 1, 1983. . . . To qualify as a newly constructed dwelling unit, the dwelling unit must be entirely newly constructed or created from space that was formerly entirely non-residential.” (§ 8.22.030, subd. A.5.) The Ordinance states that “[t]he burden of proving that a dwelling unit is exempt is on the Owner.” (§ 8.22.030, subd. B.1.b.)
As discussed above in part II., above, appellants now concede no certificate of occupancy was issued for Ulman’s unit. Therefore, appellants have also failed to demonstrate that Ulman’s unit “received a certificate of occupancy on or after January 1, 1983,” as required by the Ordinance. (§ 8.22.030, subd. A.5.)
In the conclusion to her respondent’s brief, Ulman requests an award of attorney fees and costs. Her request states, in its entirety, “[w]e ask that attorneys fees and costs be awarded to the real party in interest pursuant to both statute and her rental agreement.” Ulman does not refer us to any statutory authority or rental agreement authorizing an award of attorney fees in this case. In the absence of any such statutory authority or agreement, we decline to make an award of attorney fees to Ulman.
On May 19, 2008, respondent City of Oakland requested that we take judicial notice of documents pertaining to the legislative history of Costa-Hawkins. We do not find these documents relevant to our decision and deny the request for judicial notice.
The judgment is affirmed. Respondents are entitled to their costs on appeal.
We concur. NEEDHAM, J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.