Tran v. County of L.A. ( 2022 )

Filed 1/21/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
HENRY TRAN, B309226
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS173611)
v.
COUNTY OF LOS ANGELES
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mitchell L. Beckloff, Judge. Reversed and
remanded with directions.
Law Offices of Joshua Kaplan and Joshua Kaplan for
Plaintiff and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Starr Coleman,
Assistant County Counsel, and Keever Anya Rhodes Muir,
Deputy County Counsel, for Defendants and Respondents.
The owner of a market in unincorporated Los Angeles
County applied to renew the store’s conditional use permit for the
sale of beer, wine, and spirits. After the County Department of
Regional Planning reviewed the application and recommended
certain limitations on the store’s alcohol sales, the Regional
Planning Commission approved the conditional use permit with a
modification extending the hours of alcohol sales beyond the
limitations recommended by the Department. The Los Angeles
County Board of Supervisors subsequently reviewed the decision
and imposed new limits on alcohol sales hours and certain alcohol
container sizes after a public hearing.
This appeal arises from the trial court’s denial of a petition
for a writ of mandate by the store owner, seeking to overturn the
Board of Supervisors’ decision. Appellant contends that the
Board’s decision was untimely rendered and that the decision is
unsupported by substantial evidence. We conclude that the 30-
day time limit for the Board to render its decision under Los
Angeles County Code section 22.240.060 was mandatory, not
directory, that the Board failed to render its decision within 30
days, and that the trial court’s judgment should be reversed and
remanded with instructions to issue a writ of mandate vacating
the Board’s decision and deeming the Regional Planning
Commission’s decision affirmed.
FACTUAL AND PROCEDURAL HISTORY
Appellant Henry Tran is the owner of My Vermont Liquor
store located in the West Athens-Westmont neighborhood, an
unincorporated area of south Los Angeles. In May 2014, Tran
applied to the Los Angeles County Department of Regional
Planning (Department) for a renewal of the store’s conditional
2
use permit (CUP) to sell beer, wine, and spirits for off-site
consumption.
The Department prepared a report analyzing the renewal
application, which it presented to the Regional Planning
Commission (Commission) at a public hearing on May 3, 2017.
Considering the store’s location and site plan, information from
the California Department of Alcohol and Beverage Control, a
crime report from the South Los Angeles sheriff’s station, and
letters from the public, the Department recommended that the
Commission approve the CUP subject to several conditions.
At the Commission hearing, Tran objected to two of the
Department’s proposed conditions: (1) that the hours of alcohol
sales be limited to between 6:00 a.m. and 10:00 p.m., and (2) that
distilled spirits not be sold in bottles or containers less than 750
milliliters or 25.4 ounces. The Commission approved the CUP
without altering the Department’s recommended prohibition on
small bottle sales of distilled spirits, but did expand the hours
limitation to permit alcohol sales from 6:00 a.m. to 2:00 a.m.
Two days later, on May 5, 2017, a recommendation to
initiate review of the CUP was added to the agenda of the next
Los Angeles County Board of Supervisors (Board) meeting by
Supervisor Mark Ridley-Thomas. On May 9, 2017, the Board
voted to initiate a call for review of the Commission’s approval of
the CUP and to set the matter for public hearing. The matter
was set for public hearing at the Board’s August 1, 2017 meeting.
At the Board’s public hearing on August 1, 2017, the Board
heard testimony from members of the public and the Department
presented the CUP request and its previous report, reiterating
the Department’s recommendations that alcohol sales be limited
to between 6:00 a.m. and 10:00 p.m., that the size of beer and
3
wine containers be limited, and that the sale of miniature bottles
of alcohol be prohibited.
At the close of the August 1, 2017 public hearing,
Supervisor Ridley-Thomas moved the Board to “indicate its
‘intent to approve’ ” the CUP with two revisions: restricting the
sale of alcohol to between 10:00 a.m. and 10:00 p.m. (more limited
than the Department’s recommendations) and including a new
condition forbidding sale of distilled spirits “in a bottle or a
container less than 750 milliliters or 25.4 ounces.” The Board
passed the motion, entered a resolution of intent to approve the
CUP with the modified conditions, and “instruct[ed] county
counsel to prepare the necessary findings and conditions for
approval for the [CUP] with changes as directed by this motion.”
About eight months later, on the consent calendar of a
regular Board meeting on March 20, 2018, the Board adopted the
findings and conditions of approval prepared by county counsel
and approved the CUP with the modified conditions the Board
had previously indicated in its “intent to approve.”
On May 17, 2018, Tran filed a petition for a writ of
administrative mandate in the trial court, seeking an order for
the Board to set aside its decision and to reinstate the decision of
the Commission. (Code Civ. Proc., § 1094.5.) Tran argued that
the Board’s decision was an untimely nullity under Los Angeles
County Code section 22.240.060, subdivision E.4, 1 which provides
that review decisions “shall be rendered within 30 days of the
close of the hearing” and that the decision in any event did not
1Further undesignated statutory references are to the Los
Angeles County Code.
4
provide “specific reasons for modification” and was not supported
by the evidence.
The trial court found that for purposes of the 30-day
deadline the Board rendered its decision on August 1, 2017, when
it indicated its “intent to approve” the CUP with the modified
conditions, not on March 20, 2018, when it adopted the findings
and conditions and formally approved the CUP. It also concluded
that the Board’s findings regarding the store’s location, nearby
sensitive uses, and overconcentration of alcohol sales in that
census tract sufficiently explained why the Board modified the
Commission’s decision. As for the evidence, the trial court
applied substantial evidence review and concluded substantial
evidence supported the Board’s findings, and the findings
supported the Board’s decision.
The trial court entered an order and judgment denying the
petition. This appeal followed.
DISCUSSION
I. Standard of Review
“ ‘The question presented by a petition for writ of
administrative mandate is whether the agency or tribunal that
issued the decision being challenged “proceeded without, or in
excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.” ’ ” (Lateef
v. City of Madera (2020) 45 Cal.App.5th 245, 252 (Lateef).) Under
Code of Civil Procedure section 1094.5, “ ‘ “[a]buse 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.” ’ ”
(Lateef, at p. 252; see Code Civ. Proc., § 1094.5, subd. (b); see also
Gov. Code, § 65010, subd. (b) [no erroneous action by public
5
agency will be set aside by court unless court finds error was
prejudicial].)
“In reviewing the trial court’s denial of the petition for a
writ of administrative mandate, we apply the substantial
evidence test to the trial court’s factual findings. [Citation.] In
doing so, we ‘ “resolve all conflicts and indulge all reasonable
inferences in favor of the party who prevailed in the trial court.” ’
[Citation.] We review questions of law, such as the interpretation
of local ordinances and municipal codes, de novo.” (Meyers v.
Board of Administration etc. (2014) 224 Cal.App.4th 250, 256.)
“The rules of statutory construction applicable to statutes
are also applicable to municipal ordinances.” (Lateef, supra, 45
Cal.App.5th at p. 253.) Our primary task is to determine the
lawmakers’ intent, “ ‘ “first look[ing] to the plain meaning of the
statutory language, then to its legislative history and finally to
the reasonableness of a proposed construction.” ’ ” (Ibid.;
MacIsaac v. Waste Management Collection & Recycling, Inc.
(2005) 134 Cal.App.4th 1076, 1082.)
II. The Board’s Action Violated a Mandatory Time Limit
A. Applicable code provisions
The parties agree that the Board’s review of the
Commission’s CUP determination is governed by title 22 of the
Los Angeles County Code, section 22.240.060 (Procedures for
Appeals and Calls for Review). In relevant part, section
22.240.060 provides:
“D. Hearing. At the hearing, the Appeal Body shall review
the record of the decision and hear testimony of the appellant,
the applicant, the party or body whose decision is being appealed
or reviewed, and any other interested party.
“E. Decision and Notice.
6
“1. After the hearing, the Appeal Body shall affirm, modify,
or reverse the original decision or refer the matter back for
further review.
“2. As part of the decision, the Appeal Body may impose
additional conditions on a project in granting approval to a
modified project.
“3. When a decision is modified or reversed, the Appeal
Body shall state the specific reasons for modification or reversal.
“4. Decisions on appeals or reviews shall be rendered
within 30 days of the close of the hearing.
“5. The secretary or clerk of the Appeal Body shall mail the
notice of decision in compliance with Section 22.222.220 (Notice
of Action), within 10 days after the date of the decision.
“F. Effective Date of Decision. Where the decision of the
Appeal Body is final and the application is not subject to further
administrative appeal, the date of decision by the Appeal Body on
such appeal shall be deemed the date of grant in determining
said expiration date.
“G. Failure to Act. If the Appeal Body fails to act upon an
appeal within the time limits prescribed in Subsection E.4, above,
the decision from which the appeal was taken shall be deemed
affirmed.”
The current version of title 22, the Planning and Zoning
Code, was enacted in 2019 by Los Angeles County Ordinance
No. 2019-0004 and consisted of technical updates and
reorganization to the preceding version. The substance of the
code sections relevant to this appeal was unchanged. 2 Where, as
2In relevant part, former section 22.60.240 (Procedures for
appeals and calls for review) provides:
7
here, a statutory amendment “merely clarifies, rather than
changes, existing law,” it is not improperly retroactive to apply it
to transactions predating its enactment because the true
meaning of the statute remains unchanged. (Western Security
Bank v. Superior Court (1997) 15 Cal.4th 232, 243; Scott v. City of
San Diego (2019) 38 Cal.App.5th 228, 235–236.) Although we
cite to the current version of the code for ease of reference, our
analysis is the same under either version of the code.
“C. Plans and Materials. . . . Nothing herein shall prevent
the appellate body from imposing conditions on a project and
granting approval to a project modified by conditions imposed as
part of the decision.
“D. Hearing. At the hearing, the appellate body shall
review the record of the decision and hear testimony of the
appellant, the applicant, the party or body whose decision is
being appealed or reviewed, and any other interested party.
“E. Decision and Notice. After the hearing, the appellate
body shall affirm, modify, or reverse the original decision or refer
the matter back for further review. When a decision is modified
or reversed, the appellate body shall state the specific reasons for
modification or reversal. Decisions on appeals or reviews shall be
rendered within 30 days of the close of the hearing. The
secretary or clerk of the appellate body shall mail notice of the
decision within five working days after the date of the decision to
the applicant, the appellant and any other persons required to be
notified pursuant to Section 22.60.190.
“F. Failure to Act. If the appellate body fails to act upon an
appeal within the time limits prescribed in subsection E of this
section, the decision from which the appeal was taken shall be
deemed affirmed.”
8
B. The requirement that the Board shall render its
decision within 30 days is mandatory, not directory
Section 22.240.060, subdivision E.4 provides that
“[d]ecisions on appeals or reviews shall be rendered within 30
days of the close of the hearing.” Subdivision G provides that “[i]f
the Appeal Body fails to act upon an appeal within the time
limits prescribed in Subsection E.4, above, the decision from
which the appeal was taken shall be deemed affirmed.”
Tran contends that the Board’s decision was rendered more
than 30 days after the close of the review hearing, in violation of
section 22.240.060, subdivision E.4, thus the Board’s decision is a
nullity and the Commission’s previous decision must be deemed
affirmed due to the Board’s failure to timely act. In so doing,
Tran presents two interrelated issues of statutory interpretation:
First, Tran contends that the use of the word “shall” in
subdivision E.4 mandates that the Board may not issue any
review decision after the 30-day limit. Thus, he urges us to
conclude that any decision rendered beyond the 30-day period
after the close of the hearing is necessarily invalid, and the trial
court erred in concluding that “shall” as used in that subdivision
is “directory” rather than “mandatory.”
Although “the word ‘shall’ in a statute is ordinarily deemed
mandatory” (California Correctional Peace Officers Assn. v. State
Personnel Bd. (1995) 10 Cal.4th 1133, 1143 (California
Correctional)), “a court may consider the consequences that would
follow from a particular construction and will not readily imply
an unreasonable legislative purpose.” (Id. at pp. 1147–1148
[statute providing that State Personnel Board “shall” render its
decision within six months following investigation is directory,
not mandatory and jurisdictional, where no consequence specified
9
for inaction].) In interpreting statutory requirements, whether a
requirement is “mandatory” or “directory” “is determined largely
by its effect: ‘If the failure to comply with a particular procedural
step does not invalidate the action ultimately taken, . . . the
procedural requirement is referred to as “directory.” If, on the
other hand, it is concluded that noncompliance does invalidate
subsequent action, the requirement is deemed “mandatory.” ’ ”
(Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340
(Kabran).) “The mandatory-directory distinction is not to be
confused with the distinction between ‘obligatory’ and
‘permissive’ statutory provisions.” (Ibid.) The “obligatory-
permissive” distinction concerns “whether a governmental entity
or party is required to conform to a certain procedure (i.e.,
obligatory) or whether it ‘may or may not comply as it chooses’
(i.e., permissive).” (Ibid., quoting People v. McGee (1977) 19
Cal.3d 948, 959.) Here, the relevant “ ‘ “ ‘directory-mandatory’
distinction is concerned only with whether a particular remedy—
invalidation of the ultimate governmental action—is appropriate
when a procedural requirement is violated.” ’ ” (Kabran, at
p. 340, quoting People v. Allen (2007) 42 Cal.4th 91, 101.)
As a general rule, “time limits applicable to government
action are deemed to be directory unless the Legislature clearly
expresses a contrary intent.” (State Comp. Ins. Fund v. Workers’
Comp. Appeals Bd. (2016) 248 Cal.App.4th 349, 364 (State Comp.
Ins. Fund); accord, Edwards v. Steele (1979) 25 Cal.3d 406, 410
[“generally, requirements relating to the time within which an
act must be done are directory rather than mandatory or
jurisdictional, unless a contrary intent is clearly expressed”].)
“ ‘In ascertaining probable intent, California courts have
expressed a variety of tests. In some cases focus has been
10
directed at the likely consequences of holding a particular time
limitation mandatory, in an attempt to ascertain whether those
consequences would defeat or promote the purpose of the
enactment. [Citations.] Other cases have suggested that a time
limitation is deemed merely directory “unless a consequence or
penalty is provided for failure to do the act within the time
commanded.” ’ ” (California Correctional, supra, 10 Cal.4th at
p. 1145 [concluding six-month time limit to issue Personnel
Board decision is directory because it “includes no provision
which suggests that action by the Board after the time limit has
been exceeded is invalid”].) Under this framework, “statutes
setting forth time frames for government action that do not
include a self-executing consequence are almost universally
construed as directory, rather than mandatory or jurisdictional.”
(State Comp. Ins. Fund, at p. 365 [collecting cases].)
Conversely, “statutory provisions relating to time generally
will be construed as mandatory where consequences or penalties
are attached to the failure to observe the provision within a given
time.” (County of Sacramento v. Ins. Co. of the W. (1983) 139
Cal.App.3d 561, 565–566; see, e.g., 1305 Ingraham, LLC v. City of
Los Angeles (2019) 32 Cal.App.5th 1253, 1261–1262 (1305
Ingraham); Matus v. Board of Administration (2009) 177
Cal.App.4th 597, 609 (Matus) [“if the statute attaches
consequences or penalties to the failure to observe time limits,
the statute is construed [a]s mandatory”].) “Mandatory” in this
context is not wholly synonymous with “jurisdictional.” As our
Supreme Court explained in Kabran: “Where the statutory
provision at issue governs a decisionmaking entity’s exercise of
authority—like that of an administrative agency—a ‘mandatory’
statute may be ‘jurisdictional’ in the sense that the entity lacks
11
the power to take the action at issue if it does not comply with
the statute. [Citations.] [¶] But a party’s failure to comply with
a mandatory requirement ‘does not necessarily mean a court
loses fundamental jurisdiction resulting in “an entire absence of
power to hear or determine the case, an absence of authority over
the subject matter or the parties.” ’ ” “ ‘There are many time
provisions, e.g., in procedural rules, that are not directory but
mandatory; these are binding, and parties must comply with
them to avoid a default or other penalty. But failure to comply
does not render the proceeding void’ in a fundamental sense.”
(Kabran, supra, 2 Cal.5th at pp. 340–341.)
In 1305 Ingraham, the court considered a Los Angeles
Municipal Code provision that required the Area Planning
Commission to “ ‘render its decision in writing within 15 days
after completion of the hearing’ ” on appeals from site plan review
decisions of the planning director. (32 Cal.App.5th at p. 1261.)
The same subsection also provided that “ ‘[i]f the Area Planning
Commission fails to act within the time specified, the action of
the Director shall be final.’ ” (Ibid.) The court concluded that
“[t]his section, by its plain terms, states that the commission’s
failure to act in a timely fashion renders the director’s decision
the final one.” (Ibid.) As a policy matter, the court explained
that “such provisions provide a backstop to provide interested
parties with an actionable decision in the event of a procedural
lapse by the decisionmaking body,” and that the purposes of the
site plan review procedures in the municipal code “are not served
if the statute is interpreted to allow a project to remain in a state
of perpetual limbo due to a procedural error.” (Id. at pp. 1262–
1263.)
12
Similarly, in Matus, the Court of Appeal held that
Government Code section 11517, subdivision (c)(2), which states
that an administrative law judge’s proposed decision “shall be
deemed adopted” if the agency does not act on an administrative
appeal within 100 days, is also mandatory. (Matus, supra, 177
Cal.App.4th at pp. 608–611; see, e.g., St. Francis Medical Center
v. Shewry (2005) 134 Cal.App.4th 1556, 1561–1562 [proposed
decision deemed adopted under Government Code section 11517,
subdivision (c)(2) where agency issued final, contrary decision
113 days after rejection of proposed decision, beyond the 100-day
limit].)
We conclude that when read in tandem with the “failure to
act” clause of section 22.240.060, subdivision G, the intent of the
30-day time limit in subdivision E.4 is indeed to have a
mandatory, rather than a directory, effect. The plain language of
section 22.240.060 unambiguously provides that the appeal body
shall render its decision within 30 days after the hearing, and
that if it fails to do so, the previous decision shall be deemed
affirmed—a self-executing consequence for failure to do the
relevant act within the time commanded. “ ‘It is axiomatic that
in the interpretation of a statute where the language is clear, its
plain meaning should be followed.’ ” (Security Pacific National
Bank v. Wozab (1990) 51 Cal.3d 991, 998.) “ ‘The Legislature’s
chosen language is the most reliable indicator of its intent
because “ ‘it is the language of the statute itself that has
successfully braved the legislative gauntlet.’ ” ’ ” (Lateef, supra,
45 Cal.App.5th at p. 253.) Here, the legislative intent is clearly
expressed that government noncompliance with the time limit
leads to invalidation of subsequent action, the hallmark of a
mandatory statutory provision.
13
Anderson v. Pittenger (1961) 197 Cal.App.2d 188, on which
the County relies, is distinguishable because it involved an
ordinance with no specified consequence for failure to act. There,
a West Covina municipal zoning ordinance required the city
council to announce its decision, findings, and reasoning on a
zoning variance appeal within 30 days after the close of the
hearing. (Id. at pp. 192–193.) The Court of Appeal explained
that the ordinance was directory, not mandatory, specifically
because it “does not state that the council shall lose jurisdiction
after the 30-day period; nor does it state that the failure to act
within that period will result in the commission’s order being
deemed the order of the council.” (Id. at p. 193.) Here, in
contrast, section 22.240.060, subdivision G plainly provides that
the failure to render a decision within 30 days shall result in the
prior order being deemed affirmed. Although the County ignores
the existence of subdivision G in its briefing, we may not: “In the
construction of a statute . . . the office of the Judge is simply to
ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted, or to omit what has
been inserted.” (Code Civ. Proc., § 1858; Lateef, supra, 45
Cal.App.5th at p. 253.)
C. The Board’s decision was rendered on
March 20, 2018
Second, the parties dispute when the Board’s “decision” was
“rendered,” the relevant event that must occur within 30 days
after the hearing. The parties do not dispute that the relevant
hearing was on August 1, 2017. The County contends that the
Board rendered its decision on August 1, 2017, when it closed the
hearing, passed the motion of “intent to approve” the CUP with
the modified conditions, and instructed county counsel “to
14
prepare the necessary findings and conditions for approval of the
[CUP] with changes.” Tran contends that the Board rendered its
decision on March 20, 2018, when it adopted the findings of
county counsel and approved the CUP with the modified
conditions included.
Title 22 of the Los Angeles County Code does not define
“decision” or “render,” and neither party has directed us to any
authority interpreting either term as used in current section
22.240.060 or former section 22.60.240. “ ‘We give the words of
the statute “a plain and commonsense meaning” unless the
statute specifically defines the words to give them a special
meaning.” ’ ” (Lateef, supra, 45 Cal.App.5th at p. 253.)
The County urges us to construe the resolution of “intent to
approve” as the relevant “decision” for purposes of the
requirement that the Board render its decision within 30 days,
and describes the adoption of findings and final approval of the
CUP as “simply a formality memorializing the Board’s August 1,
2017 decision.” However, the County does not, and cannot,
contend that the Board’s “indication” of “intent to approve”
constitutes its final decision or that August 1, 2017, otherwise
legally functions as the relevant “decision” date under the usual
understanding of the term. The parties do not dispute, for
instance, that the March 20, 2018 decision, if valid, is the
operative final decision of the Board on this matter, that the CUP
was not officially approved, and that the findings and conditions
were not adopted until then.
Other ordinary legal consequences such as the availability
of judicial review and statute of limitations to challenge the
decision also flow solely from the March 20, 2018 date of final
approval, not the August 1, 2017 resolution of intent to approve.
15
(See, e.g., Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22 [“if
the challenge is to the application of the regulation to a specific
piece of property, the statute of limitations for initiating a
judicial challenge to the administrative action runs from the date
of the final adjudicatory administrative decision”]; County of
Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1324 [“If
a party challenges conditions attached to a conditional use permit
or other permit, the limitations period runs from the date of final
administrative action on the permit”]; Travis v. County of Santa
Cruz (2004) 33 Cal.4th 757, 767 [final administrative act for
purposes of challenging the conditions of a building permit was
the approval of the permit with the conditions attached]; Alta
Loma School Dist. v. San Bernardino County Com. on School
Dist. Reorganization (1981) 124 Cal.App.3d 542, 554 [“The
exhaustion doctrine precludes review of an intermediate or
interlocutory action of an administrative agency. [Citations.] A
party must proceed through the full administrative process ‘to a
final decision on the merits’ ”].)
Moreover, in the context of an adjudicatory determination
such as this, a “decision” on the merits is ordinarily understood to
include findings of fact. Approval of a conditional use permit, like
many other zoning and planning approvals, is a classic
“adjudicatory” matter in which the government’s action affecting
an individual is “ ‘determined by facts peculiar to the individual
case.’ ” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612–
613.) “Ordinarily, when an administrative agency makes an
adjudicatory decision, it is required to make findings sufficient
both to enable the parties to determine whether and on what
basis they should seek review and, in the event of review, to
apprise a reviewing court of the basis for the decision.” (Respers
16
v. Univ. of Cal. Ret. Sys. (1985) 171 Cal.App.3d 864, 870; cf. Feist
v. Rowe (1970) 3 Cal.App.3d 404, 420 [“Where the agency itself
hears all the evidence and adopts findings of fact that reflect its
decision on contested issues of fact, and determines what action it
will take as a result of its findings, it makes ‘the decision’ ”].) The
resolution of intent to approve, in contrast, did not include the
adoption of specific findings, just an instruction for county
counsel “to prepare the necessary findings and conditions for
approval of the [CUP] with changes.” The actual findings were
not presented or adopted until March 20, 2018.
Simply, a resolution indicating “intent to approve” the CUP
with modifications does not accord with the usual understanding
of an adjudicatory decision adopting specific findings and
formally approving the CUP as modified. We recognize that
issuing an “intent to approve” determination is a common
procedural device for local boards, serving to provide notice to
parties and the public of the board’s intended decision in advance
of finalizing the necessary findings or conditions. (E.g., Johnston
v. Sonoma County Agricultural Preservation & Open Space Dist.
(2002) 100 Cal.App.4th 973, 980–981 [board of open space district
adopted resolution of intent to approve utility easement subject
to conditions, continued hearing to allow time to meet conditions
for approval, then passed final approval].) But, in itself it is not
an operative “decision” as commonly understood. A resolution of
intent to approve has no conclusive authority on the merits—at
that point in the present case, the CUP had not been finally
approved or the findings and conditions adopted. It has no
collateral estoppel effect. (See Smith v. Selma Community
Hospital (2008) 164 Cal.App.4th 1478, 1506 [for decision to have
administrative collateral estoppel effect, “ ‘the decision must be
17
final with respect to action by the administrative agency
[citation]; and . . . the decision must have conclusive effect’ ”].)
Nor does a resolution of intent to approve give rise to the other
usual legal consequences of a “decision.” Rather, it is an
interlocutory action, merely signaling the intent of the Board to
proceed in a certain way.
Although section 22.240.060, subdivision E.4 does not
specify whether the “decision” rendered must be final, we also
conclude that finality is required by construing subdivision E.4
not in isolation but in the context of the surrounding statutory
framework. A court must “construe the words of a statute in
context, and to the extent possible, harmonize provisions relating
to the same subject matter.” (People v. Schoppe-Rico (2006) 140
Cal.App.4th 1370, 1379.) “ ‘[E]ach sentence must be read not in
isolation but in the light of the statutory scheme [citation]; and if
a statute is amenable to two alternative interpretations, the one
that leads to the more reasonable result will be followed.’ ”
(Robson v. Upper San Gabriel Valley Municipal Water Dist.
(2006) 142 Cal.App.4th 877, 884–885.)
Given the surrounding statutory language, if the
interlocutory resolution of intent to approve were considered the
“decision” of the Board for purposes of all subdivisions of section
22.240.060, it would lead to absurd results. For example, section
22.240.060, subdivision F (Effective Date of Decision) provides:
“Where the decision of the Appeal Body is final and the
application is not subject to further administrative appeal, the
date of decision by the Appeal Body on such appeal shall be
deemed the date of grant in determining the expiration date.”
Similarly, section 22.222.230, subdivision F (Effective Date of
Decision and Appeals), which applies to appeals processed under
18
chapter 22.240 (see § 22.222.230, subd. B) provides: “Where a
decision on a permit or review is appealed to, or called for review
by, the Board, the date of decision by the Board of such appeal or
review shall be deemed the date of grant in determining the
effective date.” In other words, the date of the “decision” by the
Board determines the effective date the permit was granted, and
triggers the start of the applicable permit period. “Decision” in
this context can only mean a final decision, as it would be
impossible for a permit to be granted or the permit period to
commence before final approval.
The statute’s procedural interrelationship with the CUP
itself likewise supports this interpretation. The conditions of
approval adopted on March 20, 2018, provide that the CUP grant
“shall terminate 10 years after the date of final approval” and
“shall expire unless used within 90 days from the date of final
approval.” The conditions specify that “[u]nless otherwise
apparent from the context, the term ‘date of final approval’ shall
mean the date the County’s action becomes effective, pursuant to
[then-]Section 22.60.260 [now Section 22.240.060, subdivision F]
of the Los Angeles County Code.” As already noted, subdivision F
provides that “the date of decision by the Appeal Body” shall be
deemed the effective date of grant. Thus, by its own terms, the
CUPs 10-year permit period and 90-day expiration window begin
to run on the “date of decision” under subdivision F. If the
relevant “decision” was the resolution of intent to approve, the
effective date would be August 1, 2017, and the 90-day expiration
period would have come and gone before the Board’s final
approval of the CUP on March 20, 2018—an absurd result.
We thus decline to conclude that there are both final and
interlocutory “decisions” of the Board contemplated by different
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subdivisions of section 22.240.060. The more reasonable result is
that the “decision” refers to the final, operative decision of the
Board, here, the Board’s final approval of the modified CUP on
March 20, 2018. We will not read another meaning into the
statutory language or conclude that different “decisions” exist for
different purposes where no such distinction is specified. “[W]e
are not empowered to insert language into a statute, as ‘[d]oing
so would violate the cardinal rule of statutory construction that
courts must not add provisions to statutes.’ ” (Lateef, supra, 45
Cal.App.5th at p. 253.)
Accordingly, we conclude that under the ordinary and
commonsense meaning of “decision,” in the context of the
statutory framework and the adjudicatory nature of the review
process, the Board’s “decision” for purposes of section 22.240.060,
subdivision E.4 occurred when it adopted the findings and
approved the modified CUP with conditions on March 20, 2018.
It thus follows that although the Board may have
“rendered” an indication of its intent to approve on August 1,
2017, when it passed the motion, it did not and could not “render”
a “decision” until March 20, 2018, when it approved the CUP.
The “usual, ordinary import” of the word “render” is to give
“delivery or notice.” (Austin v. Dept. of Motor Vehicles (1988) 203
Cal.App.3d 305, 309.) In Austin, for purposes of a time limit that
provided the Department of Motor Vehicles “ ‘shall render its
decision within 15 days’ ” after conclusion of a driver’s license
suspension hearing, the court interpreted the “render”
requirement “to be equivalent to the delivery or notice of the
decision.” “Thus rendering judgment is accomplished only when
the interested parties are advised of the decision. This
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construction comports with commonsense since a judgment has
no meaning until it is related to the affected parties.” (Ibid.)
We conclude that the Board rendered its decision for
purposes of section 22.240.060, subdivision E.4 on March 20,
2018, when it adopted the findings, approved the modified CUP,
and gave notice of its decision.. Because the Board’s decision was
rendered after 30 days of the close of the August 1, 2017 hearing,
we conclude it acted outside the mandatory time limits of section
22.240.060 and the Commission’s previous decision shall be
deemed affirmed.
Because we find reversal is supported on this basis, we
need not address Tran’s arguments that the Board failed to state
specific reasons for its modifications, and that the trial court’s
findings are not supported by substantial evidence and do not
support the decision.
III. Prejudicial Error
The County contends that even if the Board’s decision was
untimely, the error was not prejudicial because the result for
Tran was the same as if the Board had rendered its decision
within 30 days. “[E]ven a lack of literal compliance with a
mandatory duty may be harmless error, so long as the record
affirmatively reflects that the protections intended to be afforded
to private parties through the exercise of that duty has been
otherwise provided.” (Guardianship of Christian G. (2011) 195
Cal.App.4th 581, 608.)
Tran must establish prejudice under both Code of Civil
Procedure section 1094.5, subdivision (b) and Government Code
section 65010. As already set forth, we review the Board’s
decision to determine “whether the respondent has proceeded
without, or in excess of, jurisdiction; whether there was a fair
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trial; and whether there was any prejudicial abuse of discretion.
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.” (Code Civ. Proc., § 1094.5, subd. (b).)
Government Code section 65010, subdivision (b) (pertaining
to prejudicial errors in zoning and planning matters) provides:
“No action, inaction, or recommendation by any public agency or
its legislative body or any of its administrative agencies or
officials on any matter subject to this title shall be held invalid or
set aside by any court on the ground of the improper admission or
rejection of evidence or by reason of any error, irregularity,
informality, neglect, or omission (hereafter, error) as to any
matter pertaining to petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals, or any
matters of procedure subject to this title, unless the court finds
that the error was prejudicial and that the party complaining or
appealing suffered substantial injury from that error and that a
different result would have been probable if the error had not
occurred. There shall be no presumption that error is prejudicial
or that injury was done if the error is shown.” (See Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208
Cal.App.4th 899, 921 [section 65010, subdivision (b) “is a
‘curative statute’ enacted by the Legislature for the purpose of
‘terminating recurrence of judicial decisions which had
invalidated local zoning proceedings for technical procedural
omissions’ ”].)
The County misapprehends the relevant inquiry in this
case. The error complained of is not the Board’s failure to issue
its decision within 30 days, but the Board’s erroneous issuance of
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a decision after 30 days. Once 30 days had passed, under the
self-executing “failure to act” provision the Commission’s
decision, with its more favorable conditions for Tran’s business,
should have been deemed affirmed, and the grant of the CUP
would have become effective as of that date. Instead, over six
months later the Board issued its final decision approving the
modified CUP, adding new container size limits and reducing
Tran’s permitted hours of alcohol sales from 20 hours per day
under the Commission’s decision to only 12 hours per day under
the Board’s decision. A different result more favorable to Tran
hence would have been probable if the error had not occurred.
Tran also suffered prejudicial delay in finalizing the approval of
his CUP, and suffered substantial injury in the form of the
imposition of a modified CUP that decreased his alcohol sales
hours by 40 percent. We conclude that the error was not
harmless, and that Tran met his burden to establish prejudice,
substantial injury, and the probability of a different result.
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DISPOSITION
The judgment of the trial court is reversed and the matter
is remanded with directions to issue a writ of mandate vacating
the Board of Supervisors’ decision and deeming the Regional
Planning Commission’s decision affirmed in accordance with this
opinion. Appellant Tran is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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