Sullivan Equity Partners v. City of Los Angeles CA2/4 ( 2022 )

Filed 7/19/22 Sullivan Equity Partners v. City of Los Angeles CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SULLIVAN EQUITY PARTNERS, B305063
LLC,
Plaintiff and Appellant,
(Los Angeles County
Super. Ct. No. BS169541)
v.
CITY OF LOS ANGELES
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mary Strobel, Judge. Reversed in part; affirmed in part.
Jeffer, Mangels, Butler & Mitchell, Benjamin M. Reznik, Matthew D.
Hinks and Seena Max Samimi for Plaintiff and Appellant Sullivan Equity
Partners, LLC.
Michael N. Feuer, City Attorney, Terry P. Kaufmann, Assistant City
Attorney, Charles D. Sewell and Patrick Hagan, Deputy City Attorneys for
Appellant City of Los Angeles.
Appellant City of Los Angeles (the City) issued a permit allowing
respondent, developer Sullivan Equity Partners, LLC (Sullivan), to remove
56 protected trees from two lots as part of the construction of two residences
on the lots. It is undisputed that Sullivan also removed three protected trees
that it was not permitted to remove; Sullivan contended it did so accidentally,
while the property’s neighbors claimed otherwise. After the City’s Bureau of
Street Services (BSS) learned of the removal, it held an administrative
hearing and revoked Sullivan’s building and grading permits for five years
pursuant to a municipal ordinance authorizing such action. Sullivan filed an
administrative appeal to the City’s Board of Public Works (BPW). Following
a second administrative hearing, the five-member BPW voted unanimously to
uphold the BSS decision.
Having exhausted administrative review, Sullivan filed a federal
lawsuit. After that lawsuit was stayed, Sullivan filed the instant action, a
petition for writ of mandate and inverse condemnation. Sullivan alleged that
the City violated Sullivan’s due process rights by failing to provide an
unbiased administrative process. The trial court agreed, finding an
unacceptable probability of bias by City officials during the administrative
proceedings. The court thus issued a writ pursuant to Code of Civil
Procedure section 1094.51 directing the City to set aside the administrative
decision and sanction revoking Sullivan’s permits.
The City appealed, arguing that Sullivan failed to establish any due
process violation. We conclude that the trial court erred in finding sufficient
evidence of bias to overcome the presumption of impartiality afforded to
administrative decisionmakers. We therefore reverse the trial court’s order
issuing an administrative writ.
Sullivan also filed a cross-appeal challenging the trial court’s dismissal
of Sullivan’s second cause of action regarding the City’s revocation of its
grading permits. The trial court found that this issue was moot. Because we
hold that the City’s decision to revoke Sullivan’s building permits may stand,
Sullivan acknowledges that it can no longer proceed with its original
development project, and has not shown an entitlement for the grading
1 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
permits for that project. Thus, we affirm the dismissal of Sullivan’s second
cause of action.
FACTUAL AND PROCEDURAL HISTORY
I. Protected Tree Ordinance
The City’s Protected Tree Ordinance (Los Angeles Municipal Code
(LAMC), § 46.00 et. seq.) requires a property owner seeking to relocate or
remove a protected tree to obtain a permit from the BPW. (Id., § 46.02.) The
ordinance includes as “protected trees” four indigenous tree species—oak,
Southern California black walnut, western sycamore, and California bay—
and protects trees measuring four inches or more in cumulative diameter,
four and a half feet above the ground level at the base of the tree. (Id.,
§ 46.01.)
The permit application “shall indicate, in a manner acceptable to the
Board of Public Works, by number on a plot plan, the location of each
protected tree or shrub, and shall identify each protected tree . . . proposed to
be retained, relocated or removed.” (LAMC, § 46.02.) The BPW may approve
removal of a protected tree if, among other things, it determines that “[i]t is
necessary to remove the protected tree . . . because its continued existence at
the location prevents the reasonable development of the subject property.”
(Id., § 46.02, subd. (b).) The BPW may also impose conditions upon the
issuance of a tree removal permit, including requiring replacement trees to be
planted. (Id., § 46.02, subd. (c).)
When a protected tree is removed without the required permit, LAMC
section 46.06 authorizes the BSS to request that the Superintendent of
Building revoke any building permits issued for that property for which
construction has not commenced and to withhold the issuance of building
permits for up to ten years. Prior to invoking this section, the BSS is
required to give notice to the property owner and to hold a hearing, at which
the owner may submit “any evidence it deems relevant.” (Id., § 46.06, subd.
(b).) In making its determination, the BSS “shall consider the following
factors: the number of trees . . . removed or relocated; the size and age of the
trees . . . removed or relocated; the knowledge and intent of the owners of the
property with respect to the removal or relocation; and prior violations of law
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with respect to removal or relocation of protected trees.” (Id., § 46.06, subd.
(c).)
The property owner may appeal the BSS determination to the BPW.
(LAMC, § 46.06, subd. (d).)
II. The Properties and Trees at Issue
Sullivan is a real estate development company that owns the two
properties at issue, consisting of about 12 acres of vacant and unimproved
land on Old Ranch Road in the Brentwood community of Los Angeles.
Sullivan sought to construct two large single-family homes on the properties,
with a single, shared driveway.
A. Tree report and permit
In 2012, Sullivan’s arboricultural consultant, Robert Wallace,
performed a tree study of the properties. Wallace’s protected tree report
(PTR) reported that the properties contained 117 protected trees, including
104 California live oaks and two sycamores. The PTR further stated that the
planned development required the removal of 56 protected trees, including 51
oaks and one sycamore. The PTR identified each protected tree by number,
by location on a tree map, in a labeled photograph, and in a chart that
included the tree species, size, and physical condition. The PTR also
identified nine of the remaining protected trees that would be impacted by
the construction and discussed plans for protecting and monitoring those
trees during construction activities. The PTR included lists of the protected
trees to be removed and the trees to be preserved, identified by number and
species letter (for example, sycamore tree number 5 was listed as “5s”).
In December 2012, Sullivan applied to the BSS, Urban Forestry
Division, for a permit to remove 56 protected trees from the properties. On
February 1, 2013, the BSS submitted a letter to the BPW recommending
approval of the requested tree removal permit. The letter, submitted by BSS
Director, Nazario Sauceda, stated that the proposed residences would each be
10,000 square feet or larger and their construction would require “massive
grading” to the properties. A BSS arborist inspected the site in October 2012
and agreed with the assessment of the PTR that removal of the 56 trees was
necessary “to allow reasonable property development” pursuant to LAMC
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section 46.02. The letter noted that Sullivan would be required to plant
specified replacement trees onsite.
The BPW heard the permit request at a meeting in February 2013. Ron
Lorenzen presented the matter on behalf of BSS. He told the BPW that it
was “disturbing” that half of the protected trees would be removed, but that
BSS was “very thorough” in looking at the site and consulting with the
arborist, and because of the extent of grading necessary, there was “no way”
to do the project without impacting that number of trees. The BPW voted to
approve the permit.
B. Tree Removals
Sullivan hired Ricardo Gonzalez 2 to remove the trees, and provided him
with the permit and tree site map. On September 29, 2014, Gonzalez and his
crew cut down 55 of the 56 trees permitted for removal. It is undisputed that
they also cut down the following three protected trees that were not
permitted for removal: (1) tree number 5, a California sycamore located near
the front of the property, measuring 26 inches in diameter, 80 feet tall, and
50 foot canopy spread; (2) tree number 29, a California live oak, measuring
four inches in diameter, 20 feet tall; and (3) tree number 30, a California live
oak located in close proximity to tree number 29,with a double trunk
measuring 12 and 10 inches in diameter, standing 35 feet tall. According to
the 2012 tree report, all three trees were rated “excellent” in health,
aesthetics and conformity, and balance. Gonzalez left several trees that had
been permitted for removal, including tree number 6, a California live oak
located near tree number 5 at the front of the property.3 Tree number 6
2 We note that as some points in the record, the contractor’s last name is
spelled “Gonzales” rather than “Gonzalez.” We adopt the latter spelling, as it
is used more frequently throughout the record, and it appears to comport
with his own signature on his declaration.
3 There is some inconsistency in the record regarding the number of
permitted trees removed. In Sullivan’s initial submission to the BSS,
arborist Wallace stated that 55 permitted trees were removed, consistent
with the BSS’s subsequent finding that Sullivan removed 58 trees total,
including 55 permitted and three unpermitted. However, in Sullivan’s appeal
submission to the BPW, Sullivan asserted that it had removed 55 trees total,
5
measured 22 inches in diameter, stood 35 feet tall, with a 30-foot spread. The
PTR indicated its removal was necessary for the project’s main driveway
construction.
III. Administrative Review
A. Investigation
Following the tree removals, neighbors complained to Sullivan and to
BSS, and requested an investigation into whether Sullivan had complied
with its permit. The City took no action until December 2015,4 when BSS
arborists inspected the properties and determined that Sullivan had removed
protected tree numbers 5, 29 and 30 without a permit. On December 17,
2015, BSS issued a Notice of Administrative Hearing to Sullivan, setting a
hearing regarding the illegal removal of protected trees and BSS’s “intent to
act” pursuant to LAMC section 46.06. The hearing was continued at
Sullivan’s request to February 12, 2016.
B. Pre-hearing submissions
Prior to the BSS hearing, Sullivan submitted a letter brief,
declarations, and documentary evidence. Sullivan argued that harsh
sanctions were not warranted, because it only removed three unpermitted
trees, only one of those trees was larger and older (number 5), the evidence
showed it did so accidentally, and it had committed no prior violations.
Sullivan also offered to implement additional mitigation efforts, including
providing one or two replacement trees “of substantial size and age (e.g. 10-
20 years)” to replace tree number 5. Sullivan stated that it was “committed to
future compliance” by hiring an arborist to be on site during “any future tree
removal or similar activities.”
Sullivan submitted a declaration from arborist Wallace, who stated
that he performed a follow-up site visit on January 8, 2016. Wallace
including three unpermitted, and left four permitted trees standing, relying
on the declaration of arborist Applegate. Regardless of the total number, it is
undisputed that three unpermitted trees were removed and at least one
permitted tree (number 6) was left standing.
4 In the meantime, development of the properties had been halted due to
purported violations of the Clean Water Act and alteration of an adjoining
streambed.
6
confirmed that tree number 6 was permitted to be removed but remained on
the property, and was located right next to removed tree number 5. He stated
that the two were “similar in trunk size,” with tree number 6 measuring 22
inches in diameter and opined that “the removal of trees # 5, #29, and #30
was likely an inadvertent mistake, especially considering the number and
location of trees on the subject property, and the number of trees properly cut
down (55) compared to the incorrect number (3) of tree[s] cut down.” Sam
Shakib and Sean Namvar, Sullivan owners, also submitted declarations
stating that they did not intend to remove unpermitted trees and were not
aware it had occurred until they received the notice of hearing from BSS in
December 2015. Both owners also stated that the unpermitted removals did
not benefit the project. Nathan Ahdoot, a Sullivan employee, also provided a
declaration stating that he had been present on the site when the trees were
removed on September 29, 2014. Ahdoot met with Gonzalez that morning at
the property, and confirmed that Gonzalez had copies of the tree report and
removal permit. Ahdoot also averred that the removals “provide[d] no
benefit” to Sullivan.
Several community members submitted letters to BSS, asking the
bureau to revoke Sullivan’s building permits and withhold further permits
for 10 years. In addition, the Sullivan Canyon Property Owners’ Association
(the neighbor group) submitted documents, including a report from another
arborist, Jan Scow. Scow estimated that tree number 5 was 50 to 75 years
old, tree number 29 was 15 to 20 years old, and tree number 30 was 50 to 75
years old. He also opined that “there is no reason to believe that the
developer complied with any protection measures for the subject trees,”
noting the instructions from the PTR that required the trees to be protected
by fencing and monitored by the arborist.
C. BSS hearing
Lorenzen, BSS assistant director, served as the hearing officer for the
February 12, 2016 hearing. The hearing was also attended by Greg Spots
and Tim Tyson of BSS, as well as a deputy city attorney. Also attending were
counsel and representatives for Sullivan, neighbors, representatives for
several environmental and community organizations, and a representative
from Los Angeles City Council member Mike Bonin’s office.
7
Lorenzen began the hearing by explaining that its purpose was to
“state the facts and to look at all of those facts.” He cited the four factors
pursuant to LAMC section 46.06 and stated that they “are the only four
factors that can be used in any determination by this bureau. This bureau
has not made any predetermined -- predetermination of anything we’re gonna
do in regards to this case, none whatsoever. We’re here today to determine,
specifically, what has occurred, relative to the issuance of that permit.”
Counsel for Sullivan acknowledged the timeline of events provided by
BSS and admitted that Sullivan had cut down tree numbers 5, 29, and 30
without a permit. Citing the PTR, he argued that the number of trees was
insignificant, constituting about five percent of the number permitted for
removal. He also argued that the removals were “inadvertent,” but not a
“massive mistake,” noting, “It’s not like we cut down 100 and had a permit for
50.” He contended that the evidence showed the removals were accidental,
citing Sullivan’s procedures in tagging each tree to be removed, as well as the
owners’ statements that the removals did not benefit Sullivan but would
involve additional cost, as Sullivan now “had to pay for work that wasn’t
accomplishing what [it] wanted done.” Additionally, he stated that Sullivan
had “invested millions of dollars in this project” and it would be
“fundamentally unfair” to revoke its permits based on the accidental removal
of three trees. He also echoed Sullivan’s prior offer of additional remediation.
Gonzalez, Wallace, and one of the owners testified on Sullivan’s behalf,
echoing the information provided in their declarations. Arborist Wallace
testified that the site was “a difficult site” and he could “totally understand
why . . . there could have been a mistake. Because they’re just going by tags
on the trees.” He opined that if “somebody wasn’t very familiar with the color
coding on the map and so forth, I can see how confusion could happen[ ].” He
noted the proximity of tree number 5 to number 6 at the front of the property
and stated that he could easily see how the former was cut down instead of
the latter. Wallace stated that during his site visit after the trees were cut,
he observed that Gonzalez had “carefully and prudently staked each and
every tree that was cut, put a red ribbon on it and then actually took the tag
off the tree [when cut] and put it on the stake,” which “told me that they were
diligent about what they were doing. And that there was nothing
8
underhanded or nobody’s trying to hide anything. It was - - it was, obviously,
a mistake.”
Gideon Kracov, counsel for the neighbor group, gave a PowerPoint
presentation urging the BSS to revoke Sullivan’s permits. He argued that
Sullivan had intentionally cut down the three trees, noting that Wallace had
not been present at the time. He also pointed to the age and size of the
sycamore, which was the tallest tree on the property by far, according to
Wallace’s PTR. Lorenzen asked Wallace what he thought about the age of
the trees. Wallace opined that the sycamore (tree number 5) was “easily” 75
to 80 years old, tree number 29 was five to six years old and tree number 30
was about 10 years old.
Some neighbors and community members also spoke at the hearing,
including the chairman of the Brentwood community council. He reported
that the council had adopted a resolution urging the BSS to enact the
recommended sanctions, because once “a 75-year-old tree is down, it’s down
forever” and a strong sanction would discourage future violations. He noted
that the sycamore was “right in the front, center,” of the property and argued
its removal “was not done out of ignorance.” Another community member
noted the significant loss of the sycamore to the ecology of the area. A
representative from council member Bonin’s office argued that the project
had caused “unalterable damage,” and reported that Bonin was “absolutely
livid” when he learned of the tree removals. She noted that the trees
removed were identified in Sullivan’s own tree report as ones that would be
protected. She also argued that, “as far as I understand it,” the removal of
tree number 5 “would help make the project easier to accomplish,” and urged
the BSS on behalf of Bonin to revoke Sullivan’s permits for the maximum
time allowable.
In rebuttal, counsel for Sullivan argued that it would be “draconian” to
revoke the permits given the amount of money invested and the small
number of unpermitted trees removed. Wallace also rebutted the neighbors’
claim that protective measures such as fencing were required during tree
removal, noting that those measures were meant to be put in place
afterward, in order to protect the remaining trees during construction.
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D. BSS determination
The BSS issued its written determination on March 14, 2016, in a letter
signed by BSS Director Sauceda. BSS detailed the facts regarding the
issuance of the tree removal permit in 2013, the tree removal in 2014, and its
inspection in December 2015 that confirmed the unpermitted removal of tree
numbers 5, 29, and 30. BSS stated that it then held the February 2016
administrative hearing “to hear testimony relative to” the unpermitted tree
removals. At the hearing, “it was determined and agreed to by [Sullivan]
that the three unpermitted protected trees had in fact been removed.” The
BSS stated that it “reviewed all facts relative to the case as presented at the
February 12, 2016 administrative hearing,” in order to consider the requisite
factors provided by LAMC section 46.06.
Citing the PTR and Wallace’s testimony at the hearing, the BSS found
that tree number 5 was at least 70 years old, tree number 29 was
approximately 10 years old, and tree number 30 was approximately 30 years
old, and all three trees were in excellent condition. Further, the decision
found that “[i]f not the most significant of the property’s trees, tree number 5
was certainly one of the largest. Also, tree number 5 was situated very
prominently at the front of the project and in fact provided a landmark upon
arrival at the property.” The decision noted that the evidence from Sullivan,
including testimony by its owners, Wallace, and Gonzalez, showed “that the
PTR did accurately reflect the trees the project proposed for removal.
[Sullivan] and their team described their rigorous plan to ensure the correct
trees were removed. . . . Further, [Sullivan] and their team indicated all
onsite tree removal personnel were made aware of the process.”
The BSS then made the following findings: First, regarding the
number of tree removals, the BSS found that the “removal of one California
Sycamore on the subject properties is significant both to the California
Sycamore population and the woodland in total.” The removal of the two
California live oak trees was “less than significant” relative to the oak tree
population on the properties, but was “significant relative to the holistic
woodland on the properties.”
Second, regarding tree age and size, the BSS found that tree number 5
(the sycamore) was “in excellent condition, large in size, and at least seventy
10
years of age and potentially much older.” As such, it “would have been
expected to live much longer” and “its loss is very significant to the subject
property. In addition, given the location of the tree at the front” of the
property, “its removal is especially relevant to the adjoining public right of
way.” The loss of tree number 29, a young and small tree, was “less
significant.” The loss of tree number 30, a “young adult tree, approximately
thirty years of age and with a significant spread,” was “significant to the
subject property,” as it “would have been expected to live much longer” due to
its “health, age and condition.”
Third, the BSS found that it was “clear from the evidence” that
Sullivan had knowledge that the three trees were not proposed for removal
and that Sullivan admitted the “project had implemented a comprehensive
process to ensure that only those trees permitted to be removed would in
reality be removed.” The BSS incorrectly noted that “no California Sycamore
trees were included in the PTR for removal.”5 The BSS also found that the
sycamore “species is distinct in appearance, growth habits, and foliage
relative to the tree adjacent to it, tree number 6,” an oak. The BSS concluded
that the three unpermitted trees “were not removed by accident but
intentionally to provide better access to the property or in some other fashion
enable easier development.” As for the fourth factor, BSS noted earlier in the
decision that there was no evidence that Sullivan had previously been found
in violation of section 46.00.
Accordingly, pursuant to LAMC section 46.06, the BSS determined that
it would “request in writing that the Department of Building and Safety
revoke any existing building permits and withhold the issuance of future
building permits on both properties for a period of five (5) years.” The
5 In its appeal to the BPW, Sullivan stated that the properties contained
two sycamores, tree number 5, which was not permitted for removal, and tree
number 46, a smaller tree, which was permitted to be removed. In fact, it
appears the properties had three protected sycamores, which Sullivan noted
to the trial court during the hearing on the writ. Tree numbers 20 and 46,
both smaller sycamores, were permitted for removal, while tree number 5
was not. The 2012 PTR is inconsistent on this point, stating multiple times
that there were two sycamores, one of which required removal, but
identifying tree numbers 5, 20, and 46 as sycamores in its tree list.
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decision also informed Sullivan of its right to appeal and directed it to contact
Sauceda or Lorenzen with any questions.
E. Appeal to BPW
1. Pre-hearing submissions
Sullivan appealed the BSS decision to the BPW on April 12, 2016. It
asserted that the BSS decision was “not fair or based upon the facts, and is
instead, punitive.” Specifically, Sullivan argued that the removal of the three
trees was insignificant and accidental, that revoking its permits would not
mitigate the tree loss, and that the punishment was “driven by the loud
demands of neighboring property owners.”
Citing documents received from the City in response to a Public
Records Act request,6 Sullivan argued that there had been “extensive
communications between the [Urban Forestry Division of the BSS], various
City officials, and the Project opponents.” Sullivan argued that discussions
by Lorenzen and James with neighbors and their counsel regarding the
property “provided the project opponents months of pre-hearing information
relevant to the February 12, 2016 hearing, while withholding that same
information from [Sullivan]. This entire aspect of the process violates
constitutional due process considerations and makes it clear that [Sullivan]
was denied fundamental fairness in several ways.”
Sullivan also contended that the BSS decision “ignored virtually all of
the evidence.” Sullivan stated that it had conducted further investigation
following the BSS hearing, which supported the conclusion that the removals
occurred in error. In support of this contention, Sullivan submitted the
declaration of another arborist, Gregory Applegate, whom Sullivan retained
because Wallace was unavailable. Applegate opined that the removal of the
trees was unintentional, based on the difficulty in correctly identifying trees
on the “jungle-like” property, the likely confusion from the trees being
marked with three sets of tags for different purposes over the years, and the
fact that only three trees were removed by mistake, while four trees
permitted for removal were not removed. Applegate stated that he discussed
with Gonzalez in April 2016 the procedures Gonzalez used to mark the trees
6 We discuss these emails in further detail below, together with
additional discovery Sullivan received after the BPW hearing.
12
for removal. Applegate opined that “a good effort was being expended to cut
only the correct trees. But, given the presence of three different sets of tree
tags, even I found it difficult to tell which trees were tagged for which
permit.” Applegate also disagreed with the BSS finding that the unpermitted
removal of tree number 5 was significant to the properties, contending that
the permitted removal of tree number 6 would have resulted in “significant
impacts to tree number 5,” thus likely causing the latter’s eventual demise.7
He also disagreed with the BSS finding that it was easy to tell the difference
between tree species.
Sullivan also submitted a declaration from Larry Gray, a civil
engineering expert, who had been involved in the planning process for the
project since 2001. Gray opined that the project design was incompatible
with the hillside ordinance adopted by the City after the project had been
approved, in support of Sullivan’s argument that any revocation of permits
would permanently shutter the project. Gray disagreed with the BSS
conclusion that tree number 5 was removed intentionally to provide better
access to the site or enable easier development, noting tree number 6
impeded access but was not removed. He therefore concluded that there was
no benefit to removing tree number 5 but leaving tree number 6. 8
Contractor Gonzalez also submitted a declaration, providing additional
details regarding the tree removal. He stated that prior to proceeding with
the job, he made sure Sullivan had a valid permit to cut down the trees. He
also walked the site a few days before the removals and reviewed the tree
map, which included numbers corresponding to each tree to be cut down and
7 We note that in the 2012 tree report, Wallace stated that the impact to
tree numbers 5 and 30 from the planned construction would be “minor.”
8 We note that Sullivan has not claimed that it intends to permanently
leave standing the four trees (including tree number 6) that were permitted
for removal but were not removed in September 2014. Indeed, Sullivan has
presented evidence that removal of tree number 6 was necessary for
construction of the driveway for the residences.
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preserved. He also had a copy of the list from the tree cutting permit, which
identified which tree numbers would be cut down.9
Gonzalez stated that he and his assistant walked the entire site.
Gonzalez called out the number of each tree from its tag, then his assistant
reviewed the list and told him whether that tree was designated as one to be
cut. Gonzalez then marked the trees to be cut with pink tape. On September
29, 2014, he arrived with his brother and an assistant, and they began
cutting the trees marked with pink tape. After cutting a tree, Gonzalez
would place a stake into the ground next to the stump, and move the tree tag
and pink tape from the tree onto the stake.
As with the BSS review, multiple neighbors and community members
submitted letters supporting revocation of Sullivan’s permits. The neighbor
group also submitted additional materials to the BPW. In a letter from the
president of the neighbor group, who was also an architect, he argued that
the removal of tree number 5 was done intentionally by Sullivan “in order to
provide site access to the heavy equipment which it delivered to the site
October 1, 2014.” The letter enclosed and discussed photos purporting to
show how the location of tree number 5 would make a route around it nearly
impossible. It also discussed how Sullivan removed the stump and accessed
the site with heavy equipment via the cleared pathway.
The neighbor group also submitted a second report from arborist Scow,
responding to Sullivan’s submission and declaration. Based on a site visit in
May 2016, Scow opined that, with the removal of tree number 5, “there is
much easier access to the site from the street than there would have been if
the tree was not removed.” He noted obstacles to accessing the site on either
side of tree number 5, whereas the slope immediately behind the tree was
“relatively flat when compared to the alternatives on either side.” He also
disagreed with Applegate’s opinion regarding the ease of a mistake, noting
that the tree tags were “clearly distinguishable from each other.”
In addition, the neighbor group submitted the declaration of their own
construction expert, who opined that the project was substantially facilitated
9 From the evidence presented by Sullivan, it appears that Gonzalez had
a copy of the tree list from the PTR, which identified the trees to be removed
by number and first letter of species type.
14
by the removal of tree number 5. He also stated that for such a “large and
environmentally sensitive raw land clearing project[,] it is extraordinary that
the preventive measures did not include the active onsite participation of the
consulting Project Arborist.”
The BSS submitted a recommendation report to the BPW prior to the
hearing, recommending that the board deny Sullivan’s appeal. The report
was signed by Lorenzen, on behalf of Sauceda. In the report, the BSS stated
that it had “determined an administrative hearing should be held with
[Sullivan] prior to making its decision” whether to invoke section 46.06. The
report stated that, following the hearing, the BSS “deliberated the
information obtained from site investigation and material put forth by
attendees of the Administrative Hearing. The Bureau decided to invoke
LAMC Sec. 46.06 and therefore request the DBS revoke existing building
permits and withhold future building permits for a period of five years.” The
report also set forth the BSS’s finding that Sullivan “was fully aware of the
Protected Trees on the parcels owned by them, the need to protect the
Protected Trees, and further had the opportunity to preserve the Protected
Trees. Nevertheless, [Sullivan] willfully directed the contractor to remove
the subject trees or through the negligence of [Sullivan’s] contractor the
subject trees were removed. Therefore, the Bureau requests the Board of
Public Works deny [Sullivan’s] appeal.”
2. BPW appeal hearing
The BPW held its hearing on Sullivan’s appeal on June 24, 2016. The
hearing was presided over by BPW president Kevin James and attended by
the other four board members, Monica Rodriguez, Heather Repenning,
Michael Davis, and Joel Jacinto.10
At the start of the hearing, James explained that first, Lorenzen would
speak on behalf of the BSS, to “provide a bit of background, as well as
summarizing his letter of determination.” Lorenzen stated that he was going
to briefly give a “summary of the issues,” on behalf of the BSS. Lorenzen
discussed Sullivan’s application for the tree removal permit and noted that
the BSS reviewed the PTR, visited the site, and “actually, with what we had
10 None of these board members was on the board when it approved
Sullivan’s permit in 2014.
15
been supplied at that time . . .validated the report.” The BSS approved the
removal of 56 trees and issued the permit. Lorenzen stated that the BSS was
not involved with the project again until December 2015, when it reinspected
the location and determined that three unpermitted trees were removed.
Lorenzen recounted that the BSS held its administrative hearing, after
which, the bureau “reviewed all the materials that it had received during
that hearing. . . . And at the end of that review, we made a determination
that, in fact, these trees had been removed without a permit. That the
removal of those trees had been known by the Applicant. That the number
and size of trees that were removed was significant.” Lorenzen noted that
the sycamore was “probably in excess of 70 years old,” and “one of the largest
trees, if not the largest,” on the property, and was also “located at the very
front of this property. It’s the first tree you see when you approach this
property.” He also stated that all three trees were “healthy and vital and in
good condition.” Lorenzen reported his conclusion that Sullivan “had
knowledge of these trees not being on the permit. In fact, during the hearing,
they . . . actually told us that the process through which they went to make
sure this did not happen.” Lorenzen recounted the process used by Sullivan
and reported that, despite those procedures, tree number 5 was removed
instead of tree number 6, a coast live oak “in very close proximity,” which
Sullivan claimed was a mistake. According to Lorenzen, the BSS “reviewed -
- and we did extensive discussions about this was if - - even for a non-tree
person to mistake a large California Sycamore from a Coast Live Oak is a big
mistake. These trees, their form is completely different. The Sycamore was a
very tall, more colander [sic] tree and the Coast Live Oak was not nearly as
tall and more of a spreading structure.” As such, “we came to the finding
that, in fact, given all of the things they had done to make sure this did not
happen, and the fact that this tree is - - these trees are wildly (inaudible) in
form, that this didn’t happen by accident. That somebody would have had to
make the decision to take that California Sycamore down instead of the tree
which was left.”
Lorenzen also reported the BSS findings that the removed trees “were
significant to the property because of their size and location.” He
acknowledged that the number illegally removed relative to the total number
16
was not hugely significant, but that the sycamore was significant, as there
was only one other sycamore on the property. Lorenzen also stated that
“perhaps the largest reason” that the bureau was recommending a five-year
penalty, was “the fact that the Bureau truly believes that [Sullivan] knew
what they were doing. So there was actually intent to take down the wrong
tree, which, in fact, they did.”
Following Lorenzen’s presentation, council member Bonin spoke,
stating that he wanted to “vigorously support” the BSS determination. He
argued that Sullivan’s claim of mistake was “bogus and not credible.”
Numerous members of the public also spoke, all in support of revoking the
permits.
Sullivan’s counsel gave a lengthy presentation including a PowerPoint
presentation, again arguing that the trees were cut by mistake and that the
penalty was “unfair and extreme.” He emphasized that a small percentage of
trees were removed without a permit, that two of the three trees (numbers 29
and 30) were not significant in size or age, and that tree numbers 5 and 30
“were both going to be damaged anyway” because of the necessary
construction nearby.
Sullivan presented testimony from Gonzalez, Applegate, and Gray,
consistent with their declarations. Gonzalez testified that he did not remove
the three unpermitted trees intentionally. He blamed the procedure he used
with his assistant to mark the trees for the mistake. Gray testified that he
had been involved with the property for about 30 years and could see
“absolutely no reason why the tree should have been cut down other than a
mistake.” He disputed that it would have assisted getting construction
equipment onto the site. One of the owners testified, reiterating the large
amount of money and effort spent on the project and apologizing for the
“unintentional” tree removals.
Attorney Kracov argued on behalf of the neighbor group. He noted that
during the prior CEQA process for the property in 2007 and 2011, Sullivan
had stated that 25 to 27 protected trees would be removed, rather than the 56
requested in 2014 for the removal permit. He also argued that Sullivan
needed to get its heavy construction equipment onto the property and
removing tree number 5 facilitated that entry. Commissioner Repenning
17
asked Sullivan’s counsel to respond to the photos presented by Kracov and
the claim that removal of tree number 5 provided easier access for the
equipment to the site. Sullivan’s counsel cited to Gray’s testimony that the
company had been able to access the site several years earlier with
equipment without removing trees.
President James asked Kracov to respond to Sullivan’s argument that
three of the four factors were not supported. Kracov asserted that the
findings of BSS staff “are fully supportable.” James also asked about the fact
that the CEQA documents identified 25 protected trees, while the 2014 PTR
identified 56.11 Kracov argued that the BPW should look at the totality of the
circumstances, including Sullivan’s “pattern and practice of . . . blowing
through their permits,” including CEQA, the water board, and the tree
permit, as relevant to intent. In response to a question from Commissioner
Repenning regarding the water issues, Sullivan’s counsel acknowledged that
it did not have all required erosion control mechanisms in place and that it
was still working on resolving one certification issue.
In addition to testimony from witnesses and arguments by counsel for
both Sullivan and the neighbor group, Commissioners Repenning, Davis, and
Jacinto, as well as President James, asked multiple questions of witnesses
and the attorneys throughout the hearing. Sullivan was then permitted to
present a rebuttal argument. At one point, Sullivan’s counsel asserted again
that there “was nothing to be gained by taking out” tree number 5. James
responded, “Not if you’re caught.”
At the conclusion of argument, James thanked Sullivan’s counsel and
experts, and stated: “I’m just going to put this out in the open and on the
table - - I don’t think it’s any surprise - - maybe to somebody, but it shouldn’t
be - - where I stand on this. [¶] So before I entertain further comments, I had
a couple questions just so I can get myself kind of clear on the direction I
think I want to try and go myself.” Turning to Kracov and deputy city
attorney Jordan, he continued, “if I wanted to affirm the action of Mr.
11
Sullivan’s counsel later stated that he was not sure the reason for the
difference in numbers. During the hearing on the writ before the trial court,
Sullivan’s counsel asserted that the CEQA documents were prepared for a
“different project” on the properties.
18
Lorenzen and deny the appeal, there are some things that - - that need to be
determined in this hearing. And from your perspective, I’d like to know what
you think those things are.” James first questioned Jordan regarding
whether the BPW needed to make findings that construction had commenced
and/or that permit revocation would deprive Sullivan of economically
beneficial use of property. Next, he stated “we have to make a finding of
intentional conduct. I can’t get away from … to me, from where I sat and I - -
I know [Sullivan’s counsel] is aware of this - - there are e-mails in the record
from myself to Mr. Lorenzen, from Mr. Kracov to me, requesting the
inspection of . . . the property to determine whether or not the permits have
been followed. [¶] And I’m just going to tell my colleagues right now it is no
surprise to me - - I was not surprised in the least to find out that . . . number
one, that the permit had been violated and that they took down trees that
were not permitted. No surprise; and number two, that they took down a tree
that was significant or at least arguably significant on the property . . .
That’s before the inspection even took place. And that’s because of the
pattern of contact [sic] that we’ve seen related to this project.” James cited to
the fact “that they came to our predecessors with any environmental
document for 25 trees and came for a permit for 56.” He continued that “it
flies in the face of . . . anything reasonable to think that that tree, that
prominent, in that key location was, ‘Oh, darn it. It was an accident and we
didn’t find out until they told us.’ [¶] I . . . don’t buy it. And it was
predictable, unfortunately.”
James also discussed the conclusion of the BSS report. It found that
given the measures Sullivan had in place, “to ensure you [Sullivan] were
doing the right thing, indicates that it clearly wasn’t an accident,” which he
found was a “completely reasonable” conclusion. Regarding the number of
trees removed, James also noted the “percentage of canopy that was removed
here” from tree number 5 and agreed that the BSS “is still within its legal
authority to . . . make the determination that it did.” James also stated that
“we can’t just walk away with a mitigation” because of the message it would
send to encourage others to violate the law where, even if they were caught,
they would just have to “pay some mitigation money to City Plants or plant a
few trees.” Instead, he cited “all the challenges that we have where we are
19
trying to . . . preserve first, grow second - - an urban canopy in the second
largest city in America.” James indicated he would “entertain any more
questions or comments” but moved to affirm the position of the BSS, which
was seconded by Commissioner Rodriguez.
Commissioner Davis stated that he did not know if Sullivan “intended
to do it or if it was a mistake,” but he was concerned about the community
and the trees that could not be replaced. He concluded that the trees were
“negligently” removed, but believed that Sullivan had to “assume the
responsibility for the actions of the subcontractors that they hire[d].” He
therefore stated that he would support the motion to affirm the BSS’s
decision.
Commissioner Repenning stated that she recognized “the significance”
of revoking the permits and did “not take this lightly.” She reported that she
had “discussions with our staff, with our legal counsel, with the council office.
I had discussions with representatives of the developer and with
representatives of the community. I keep coming back to the first
conversation I had about this issue, which was with Ron Lorenzen. Ron
Lorenzen is someone that I have the utmost respect for. He’s someone who
has been doing this for so many years for the city. I know he cares deeply
about our urban forest and he just – he’s a true professional, and I know he
didn’t take his recommendation lightly in this either. And so I said to him,
you know, ‘Ron, what – what’s going on here?’ And he told me about this
sycamore and he said, ‘Heather, there’s no way they could have taken that
out accidentally.’ And so that’s what I feel because . . . I take your advice
very, very seriously. And seeing what we’ve seen, it’s also what I feel.”
Repenning continued that it “gives me no joy to say that I support our staff’s
recommendation today,” and that she would usually prefer to see mitigation,
but “I don’t think that that’s the right course of action for us here today. I
think that today we need to send a signal about what it means to work with
us. . . . I don’t believe that rules have been followed in the development of
this project.”
The BPW unanimously voted to deny the appeal and adopted the BSS’s
recommendation report on June 24, 2016. On August 10, 2016, the BPW
formally requested that the Department of Building and Safety revoke any
20
building permits issued for the properties and withhold issuance of future
building permits for the properties for five years, ending September 29, 2019.
IV. Writ Proceedings
A. Pleadings
Sullivan filed a complaint against the City in federal district court in
September 2016, alleging causes of action for violation of due process,
violation of the excessive fines clause, violation of the equal protection clause,
slander of title, a state law petition for writ of mandate, and declaratory
relief. The City moved to dismiss the complaint. The district court denied
the motion as to Sullivan’s due process, writ of mandate, and declaratory
relief claims, but granted dismissal of the other three claims. In April 2017,
the court granted the City’s motion to abstain, staying the remaining claims
to allow Sullivan to bring a claim for an administrative writ in state court.
On May 9, 2017, Sullivan filed a verified petition for writ of
administrative mandamus in state court. Shortly thereafter, Sullivan filed a
first amended verified petition for writ of mandate and complaint, the
operative petition. Sullivan alleged that the City’s decision to revoke its
permits “was made without providing a fair hearing to [Sullivan] and is not
supported by findings sufficient to support the decision or substantial
evidence in the record.” In particular, Sullivan alleged that after its
contractor mistakenly removed three unpermitted trees, the City convened a
“staged show trial before a kangaroo court . . . where the outcome was pre-
ordained.” Sullivan further alleged that Lorenzen and James, who presided
over the two administrative hearings, “had led and conducted the
investigation into the tree removal, had previously announced they were
committed to invoking the drastic remedies supplied by [LAMC section 46.06]
before the hearings took place, and were personally embroiled in the
controversy and politically motivated and pressured to deprive [Sullivan] of
its property rights.”
In its first cause of action, Sullivan sought a writ of mandate pursuant
to section 1094.5 directing the City to set aside the penalty imposed under
LAMC section 46.06 and to reinstate Sullivan’s building permits. Sullivan
also alleged a second cause of action for writ of mandate pursuant to section
1085, alleging that the City improperly revoked its grading permits along
21
with its building permits in excess of its authority under LAMC section 46.06.
Finally, Sullivan alleged a third cause of action for inverse condemnation.
B. Discovery
Sullivan propounded written discovery on the City, to which the City
objected as inappropriate for a writ proceeding. Sullivan moved to compel
further responses to its written discovery and sought leave to take seven
depositions. The court denied the motion as overbroad without prejudice.
Sullivan filed a second motion for leave to take discovery, seeking to
depose James and Lorenzen and to serve document requests. Sullivan also
filed a motion to augment the record with 209 documents it had received from
the City in response to Public Records Act requests. After a hearing on both
motions, the court denied Sullivan’s motion to serve document demands. The
court also denied Sullivan’s request to depose James and Lorenzen on eight
broad categories, but permitted narrow questioning on certain specific
emails.
The court granted Sullivan’s motion to augment the record as to seven
email chains (totaling 12 pages of emails), finding that those documents had
been produced by the City after the BPW hearing and could have some
relevance to Sullivan’s bias claim. The court denied the remainder of the
motion to augment.
Sullivan deposed Lorenzen and James in late 2018. Sullivan then filed
a motion to compel further deposition testimony from James and a motion to
augment the administrative record with the full deposition transcripts and
additional documents.
The court denied Sullivan’s request to take an additional deposition of
James or to compel responses to questions he was instructed not to answer.
The court granted Sullivan’s request to augment the record with a few
excerpts from the deposition transcripts for Lorenzen and James. Sullivan
conceded that the exhibits it sought to add to the record had also been
included in its prior motion to augment, which the court had denied. 12 The
12 Despite the trial court’s repeated denial of Sullivan’s request to
augment the record with hundreds of pages of emails, Sullivan discusses and
cites to these emails at length in its respondent’s brief on appeal. Sullivan
22
court denied augmentation as to these exhibits. The court also awarded
sanctions to the City.
C. Briefing and summary of relevant documents
The parties filed merits briefs and requests for judicial notice. Sullivan
relied heavily on emails produced by the City in response to Public Records
Act requests. Sullivan received some of the emails before the BPW appeal
hearing, but did not receive others until after that hearing. It also relied on
the deposition testimony from Lorenzen regarding those emails. We
summarize this evidence, which was either part of the administrative record
before the BPW or in the augmented administrative record before the trial
court.
On September 22, 2015, attorney Kracov emailed James, requesting on
behalf of the neighbor group that the BPW inspect the properties to ensure
Sullivan was in compliance with its permit and was not removing
unpermitted trees. James responded, copying Lorenzen, Greg Good (Director
of Infrastructure for the mayor’s office), Ted Jordan (deputy city attorney),
and another city employee, stating that he had spoken with the BSS and
Lorenzen had “agreed to set the process in motion for the inspection.”
Lorenzen responded to the group that he would “let you know once the
inspection has been performed.”
On December 3, 2015, James emailed Lorenzen asking for the “status”
of the site inspection, noting that “Gideon [Kracov] has been pinging me
about it.” Lorenzen responded, “I will ensure that staff gets to the location on
acknowledges that these emails are not part of the administrative record, but
contends that they are cited “to give this Court the full picture of the evidence
before the Trial Court.” These documents were rejected by the trial court and
were not part of the administrative record; we therefore do not consider them.
Moreover, although Sullivan contends in a footnote that “the trial court
erred” by refusing to augment the record with these documents, it has failed
to make any showing of error. (See, e.g., In re Marriage of Falcone & Fyke
(2012) 203 Cal.App.4th 964, 1004 [“appellate court can treat as waived or
meritless any issue that, although raised in the briefs, is not supported by
pertinent or cognizable legal argument or proper citation of authority”].)
Thus, Sullivan’s inclusion of these documents was improper and unhelpful to
our consideration of the relevant facts on appeal.
23
Monday and reports back.” There followed a series of emails between Friday,
December 4 and Monday, December 7, 2015, involving Kracov, James,
Lorenzen, and Sara Nichols (a member of the neighbor group. On December
4, Kracov sent Lorenzen the tree map and removal permit for the properties
and queried, “was more than one sycamore removed? Permit said just one.”
The following day, Lorenzen responded to the group, “Will inspect on Monday
and let all know.” Kracov responded on December 7, reporting that the
sycamore, tree number 5 on the map, “was not permitted to be cut.”
Lorenzen emailed James on December 8, 2015 with the results of the
inspection, confirmed that there were 117 protected trees on the properties,
56 of which were permitted for removal, that tree number 6 had been
permitted but not removed, and that Sullivan had removed three
unpermitted trees. Lorenzen stated that the City had three options in
response: (1) “Require extreme replacement for the three unpermitted
removals (ie full inch/inch replace)”; (2) criminal charges regarding the
unpermitted removals, which Lorenzen reported in the past meant “a max
fine of $1000/illegal removal”; or (3) “Invoke LAMC Sec 46.06 and void all
existing permits and not issue any permits for a period up to ten years.”
Lorenzen continued, “I will be happy to communicate with [Kracov] (but not
discuss options for now). Let me know if you would like to discuss.” James
emailed in response, “Let’s discuss this today, before you speak to [Kracov].
Thank you for having this done.”
James forwarded Lorenzen’s December 8, 2015 email to Greg Good at
the mayor’s office the same day. Good responded, “Again, this is amazing –
and you have several options. What are you thinking at this point?”
On December 10, 2015, Kracov emailed Chad Molnar, chief of staff for
council member Bonin, stating that “BPW just did tree inspection. Developer
cut down 3 protected trees including a huge sycamore without permits. The
penalty for this is harsh if the City does something about it. . . . My clients
want the City to step up against this bad activity!” Kracov forwarded that
email to James the same day, stating “Fyi.”
A few hours later, Molnar emailed Lorenzen that some constituents
reported that the inspection revealed unpermitted removal. Molnar also
stated that Bonin “has been worried about this project for some time, and
24
particularly worried that the owners were removing protected trees without a
permit. Could you give me a call when you get a chance to discuss? We’re
interested in knowing if it is true that the inspector found unpermitted
protected tree removals, and if so then what the enforcement action will be?”
Lorenzen responded with his contact information and that he “look[ed]
forward to discussing.” The following day, Molnar emailed Lorenzen,
“Thanks for the call yesterday, it was very helpful. I wanted to give you a
heads up that I briefed CM Bonin, and he believes strongly that at this point
we need to revoke all permits, given the violation. [¶] We can discuss more
once you’ve had a chance to meet with your team, but I wanted to make sure
to let you know what [Bonin] wants to do.” Lorenzen responded,
“Understood. I am in agreement[.] Will keep you abreast.”
In the admitted excerpts of his 2018 deposition, Lorenzen discussed
these December 10, 2015 emails with Molnar. He testified that he did have a
phone call with Molnar as referenced in the email. Lorenzen testified that he
and Molnar discussed the BSS’s options in response to the tree removals, but
he did not specifically recall what they said. Lorenzen explained that when
he wrote to Molnar that he was “in agreement,” he meant agreement about
“the options available.” He testified that he was agreeing “to all of the things
we had discussed, not specifically what they were stating [that Bonin wanted
to revoke permits]. No decision had been made.” Lorenzen testified that he
did not recall other details of his call or whether he and Molnar had any other
conversations.
Molnar emailed James on December 15, 2015 to give a “heads up that
an Urban Forestry inspector confirmed last week” that three unpermitted
trees were removed from the property. Molnar continued, “the unpermitted
removal of those protected trees now allows the city to enforce against the
applicant, including revoking all existing building and construction permits
for the project, and banning the applicant from applying for permits for 10
years. Councilmember Bonin feels strongly that we need to quickly move
ahead with revoking those permits. We’ve been in touch with Ron Lorenzen,
and he is working through the process with the City Attorney. [¶] [Bonin]
mentioned that you wanted to help with this as well, so he wanted to make
sure I gave you the heads up on what’s happening. [¶] It is our hope that we
25
can quickly move forward with revoking the permits, before the applicant
causes any more damage.”
Lorenzen emailed James on June 16, 2016, prior to the June 24 BPW
hearing, attaching the BSS recommendation. The email states: “I wrote this
as simply and straightforward as possible.”
In his 2018 deposition, James testified that he did not speak to Molnar
about enforcement options other than in the email produced. He also denied
speaking directly with Bonin on the issue other than on the record at the
BPW hearing. James testified that he never indicated a preference for an
enforcement option in any conversations with Kracov or Good (from the
mayor’s office). He stated that the “only time I discussed in detail the tree
cutting of the sycamore tree with anybody was in the public hearing [before
the BPW].” James also stated that he did not discuss with Kracov or others
outside of that hearing that he thought the tree cutting was intentional, and
that he came the conclusion that it was not accidental during the hearing.
D. Decision
Following a hearing, the court issued its written decision on August 12,
2019. he court first considered the level of due process applicable to the
administrative hearings, concluding Sullivan was entitled to “notice and an
opportunity to be heard before neutral decisionmakers” but not to cross-
examination or pre-hearing discovery. The court found that Sullivan was not
denied notice or the opportunity to be heard. The court rejected the City’s
argument that Sullivan had failed to raise the issue of bias during the
administrative proceedings, finding that Sullivan had adequately claimed
bias or, as to some arguments, was excused from doing so because it could not
have raised it at that time.
Turning to the substantive bias issue, the court examined Sullivan’s
contentions that Lorenzen and James “were personally embroiled in the
matter,” that they were biased, and that they “had conflicting roles as
prosecutor and judge.” The court noted that Sullivan was required to show
“an unacceptable probability of actual bias” by those with “actual
decisionmaking power.” While a decisionmaker who had become “personally
‘embroiled’ in the controversy” would meet that standard, the court rejected
Sullivan’s contention that Lorenzen or James had become personally
26
embroiled due to public and political pressure surrounding the tree removals.
The court found that Sullivan had submitted “no evidence” that Lorenzen or
James had a personal financial stake in the matter or harbored personal
animosity toward Sullivan, or that the public pressure “was such to cause an
unacceptable probability of bias.”
Next, the court examined Sullivan’s claim that Lorenzen and James
had conflicting roles in the investigation and adjudication of the unpermitted
tree removals. The court noted that combining investigative and adjudicative
functions, alone, was not a denial of due process, nor would prehearing
statements or opinions necessarily disqualify an official. The court rejected
the City’s argument that any bias by Lorenzen was irrelevant because he did
not render the final decision against Sullivan. The court found that Lorenzen
did not simply initiate the proceedings or investigate the removals, he also
served as the adjudicator over the BSS hearing, thus any bias by Lorenzen as
the BSS hearing officer was relevant.
Given Lorenzen’s role both “as an investigator, and a decision-maker
adjudicating the matter and the Bureau level,” the court found it
“problematic” that Lorenzen engaged in discussions with Molnar (of council
member Bonin’s office) as part of the BSS investigation. In particular, the
court noted that Lorenzen’s statement that he was “in agreement” could
“plausibly be read to commit tentatively to a general sanction (permit
revocation),” or could “plausibly be read as agreeing that further discussion
was needed.” The court also found it “significant that James participated in
the investigatory process leading to the BSS decision, then sat on the
appellate panel determining whether that decision should be upheld.” The
court cited James’ email discussions with Lorenzen, Bonin’s office, and
Kracov during the investigatory process, as well as James’ comment during
the BPW hearing that “I don’t think it’s any surprise . . . where I stand on
this,” as “arguably suggest[ing] that he had, prior to the hearing, formed an
opinion on the case and in fact communicated it to other persons.”
Additionally, the court found that evidence of pre-hearing
communications between Lorenzen, James, and commissioner Repenning
raised concerns. Noting that Lorenzen and James communicated frequently
during the investigation process and that Lorenzen forwarded the BSS report
27
directly to James prior to the BPW hearing, the court found that this
evidence suggested Lorenzen “viewed his decisions as subject to approval by
James.” The court also pointed to the statement by Repenning at the BPW
hearing that she was relying on her prior discussion with Lorenzen, as it
suggested that Repenning was “relying not on the BSS report or its findings,
but on a private conversation with Lorenzen.” The court found these
communications between Lorenzen and Repenning were “significant” because
it meant that Lorenzen had made the initial decision on behalf of the BSS
and then advised Repenning, one of the appellate decision makers, about the
facts underlying that decision.
The court found that the “significant property interest involved – a ban
on building permits for the property for 5 years – causes the court to more
closely scrutinize the procedures involved that it would in a typical land use
permit or denial hearing.” As such, the court concluded that “[u]nder the
facts of this case, in order to satisfy due process or fair hearing requirements .
. . a greater separation between the investigative and adjudicatory functions
was required. Lorenzen, investigator and adjudicator, made at least one
statement showing some pre-judgment of the matter. He was in frequent
contact with James, who sat on the Board deciding the appeal of the BSS
decision. James thus had a role in both the investigation and the appeal.”
The court cited James’ statements at the hearing, “suggesting pre-judgment,”
as well as Repenning’s statements, which showed that “Lorenzen had ex
parte communication with at least one other Board member (besides James)
which heavily influenced the Board member’s decision. As a whole, these
facts show an unacceptable probability of bias in the decision-making process,
depriving [Sullivan] of a fair trial.” The court concluded that it would issue a
writ directing the City to set aside the administrative decision and sanction,
but would not, as Sullivan requested, order the City to reinstate Sullivan’s
permits.
On August 20, 2019, the court amended its decision to add a finding on
the second cause of action regarding grading permits. The court found that
the “City’s revocation of grading permits flowed from the administrative
decision under the PTO. . . . The court’s reasoning for the Section 1094.5 writ
disposes of the second cause of action for writ of ordinary mandate and
28
render’s petitioner’s remaining contentions for the second cause of action
moot. The writ directing City to set aside the administrative decision and
sanction, includes setting aside the revocation of the grading permits. The
writ will not direct reinstatement of the grading permits for the reasons
discussed above.” Sullivan subsequently dismissed without prejudice its
third cause of action for inverse condemnation.
The court entered judgment granting peremptory writ of mandate on
January 23, 2020. The writ of mandate ordered the City to “set aside, vacate
and annul” the March 14, 2016 BSS decision and the June 24, 2016 BPW
decision, including the revocation of any and all permits issued regarding the
properties. The court ordered the matter remanded for further proceedings,
allowing the City to hold a further hearing, but not requiring it.
The City timely appealed. Sullivan subsequently filed a cross-appeal
from the judgment regarding the court’s dismissal of its grading permit
claim.
DISCUSSION
Sullivan contends that the City failed to provide a fair administrative
hearing before revoking its building permits. It argues that administrative
decisionmakers Lorenzen and James were personally biased against the
project due to political pressure, and that they both committed to revoke
Sullivan’s permits prior to the hearing process. In addition, Sullivan
contends that Lorenzen and James had overlapping roles throughout the
investigation and adjudication, rendering them incapable of providing the
fair hearing required. The City counters that Sullivan forfeited its bias
arguments and that any bias by Lorenzen is irrelevant because the scope of
our review is limited to the fairness of the BPW appeal hearing. On the
merits, the City contends that Sullivan failed to provide concrete evidence of
bias, and thus the trial court erred in concluding that the administrative
process was unfair. We disagree with the City as to the scope of our review.
However, we agree with the City that there is insufficient evidence of bias to
establish a violation of due process.
I. Legal Principles
“A trial court may issue a writ of administrative mandate where an
agency has (1) acted in excess of its jurisdiction, (2) deprived the petitioner of
29
a fair hearing, or (3) committed a prejudicial abuse of discretion.” (Clark v.
City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169 (Clark), citing
§ 1094.5, subd. (b).) At issue here is Sullivan’s claim that the City failed to
provide a fair administrative hearing before revoking its building permits.
“When, as here, an administrative agency conducts adjudicative
proceedings, the constitutional guarantee of due process of law requires a fair
tribunal . . . in which the judge or other decision maker is free of bias for or
against a party.” (Morongo Band of Mission Indians v. State Water Resources
Control Bd. (2009) 45 Cal.4th 731, 737 (Morongo); see also Haas v. County of
San Bernardino (2002) 27 Cal.4th 1017, 1025 (Haas) [“‘When due process
requires a hearing, the adjudicator must be impartial.’”].) “Unless they have
a financial interest in the outcome [citation], adjudicators are presumed to be
impartial.” (Morongo, supra, 45 Cal.4th at p. 737, citing Withrow v. Larkin
(1975) 421 U.S. 35, 47).
The “standard of impartiality required at an administrative hearing is
less exacting than that required in judicial proceedings.” (Nasha v. City of
Los Angeles (2004) 125 Cal.App.4th 470, 483 (Nasha), quoting Gai v. City of
Selma (1998) 68 Cal.App.4th 213, 219; see also Haas, supra, 27 Cal.4th at p.
1027 [“due process allows more flexibility in administrative process than
judicial process”].) “Administrative decision makers are drawn from the
community at large. . . . Holding them to the same standard as judges,
without a showing of actual bias or the probability of actual bias, may
discourage persons willing to serve and may deprive the administrative
process of capable decision makers.” (Gai v. City of Selma, supra, 68
Cal.App.4th at p. 233.)
Accordingly, in order to prevail on a claim of bias violating fair
administrative hearing requirements, the petitioner must establish “‘an
unacceptable probability of actual bias on the part of those who have actual
decisionmaking power over their claims.’” (BreakZone Billiards v. City of
Torrance (2000) 81 Cal.App.4th 1205, 1236 (BreakZone); see also Nasha,
supra, 125 Cal.App.4th 470, 483.) “A party seeking to show bias or prejudice
on the part of an administrative decision maker is required to prove the same
‘with concrete facts: “‘[b]ias and prejudice are never implied and must be
30
established by clear averments.’”’” (Nasha, supra, 125 Cal.App.4th at p. 483,
quoting BreakZone, supra, 81 Cal.App.4th at p. 1237.)13
Moreover, “‘[b]y itself, the combination of investigative, prosecutorial,
and adjudicatory functions within a single administrative agency does not
create an unacceptable risk of bias and thus does not violate the due process
rights of individuals who are subjected to agency prosecutions.’” (Today’s
Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th
197, 221.) As our Supreme Court explained: “To prove a due process
violation based on overlapping functions thus requires something more than
proof that an administrative agency has investigated and accused, and will
now adjudicate. ‘[T]he burden of establishing a disqualifying interest rests
on the party making the assertion.’ [Citation.] That party must lay a
‘specific foundation’ for suspecting prejudice that would render an agency
unable to consider fairly the evidence presented at the adjudicative hearing
[citation]; it must come forward with ‘specific evidence demonstrating actual
bias or a particular combination of circumstances creating an unacceptable
risk of bias’ [citations].” (Ibid.) “While the ‘degree or kind of interest . . .
sufficient to disqualify a judge from sitting “cannot be defined with precision”’
[citation], due process violations generally are confined to ‘the exceptional
case presenting extreme facts’ [citation].” (Id. at p. 219.)
Whether Sullivan received a fair administrative hearing is a legal
question we review de novo. (Nasha, supra, 125 Cal.App.4th at p. 482; Clark,
supra, 48 Cal.App.4th at p. 1169.) We affirm the trial court’s findings on any
“foundational matters of fact” if “supported by substantial evidence.
However, the ultimate questions, whether the agency’s decision was . . .
unlawful or procedurally unfair, are essentially questions of law. With
respect to these questions the trial and appellate courts perform essentially
the same function, and the conclusions of the trial court are not conclusive on
appeal.’” (Clark, supra, 48 Cal.App.4th at p. 1169, quoting Rosenblit v.
13 Sullivan argues that we must also consider the extent of the property
interest at issue, and that its interest was significant given the expenses and
time incurred and the severity of the penalty imposed. We do not disagree.
However, as Sullivan has acknowledged, the standard it must meet to
establish bias remains the same.
31
Superior Court (1991) 231 Cal.App.3d 1434, 1443; see also Petrovich
Development Company, LLC v. City of Sacramento (2020) 48 Cal.App.5th 963,
972-973 (Petrovich).)
Sullivan contends, without citation to authority, that application of this
standard means that “the question of whether the City’s hearing was tainted
with an unacceptable probability of bias is a question of fact.” We disagree.
As detailed in the cases above, whether there was an unacceptable
probability of bias by the decisionmakers is the standard by which the court
decides the ultimate question of the fairness of the hearing; application of
this standard is thus a question of law for our de novo review, not a
foundational factual question as Sullivan suggests.
II. Analysis
A. Forfeiture
As an initial matter, we reject the City’s contention that Sullivan
forfeited its bias objections by failing to sufficiently raise the issue in its
administrative appeal before the BPW. The trial court found that Sullivan
had raised a bias argument in its appeal materials submitted to the BPW.
Further, to the extent it did not, the court found Sullivan was excused from
doing so because it did not receive all of the relevant emails from the City
until after the BPW appeal hearing, nor could it have previously cited
statements made by board members during the hearing.
We agree. “When a litigant suspects bias on the part of a member of an
administrative hearing body, the issue must be raised in the first instance at
the hearing. [Citations.]” (Attard v. Board of Supervisors of Contra Costa
County (2017) 14 Cal.App.5th 1066, 1083.) Here, in its submission for the
BPW appeal, Sullivan outlined the emails it obtained from the City in
response to its records requests, including several involving Lorenzen and
James, and argued that the City showed “blatant favoritism” toward project
opponents, resulting in unfair administrative proceedings and a violation of
Sullivan’s due process rights. This was sufficient to preserve Sullivan’s
arguments regarding bias. Moreover, as the trial court noted, during the writ
proceedings Sullivan relied heavily on evidence of purported bias that it could
not have discovered prior to the BPW hearing, including emails subsequently
produced by the City and statements made by James and Repenning during
32
the hearing. Thus, we find no error in the trial court’s conclusion that to the
extent Sullivan raised additional bias arguments, it could not have diligently
done so earlier. (See id. at p. 1084 [noting that if appellants “did not learn of
the facts underlying their claim of bias until after the hearing, they might
have been justified in waiting until the trial court proceedings to raise the
issue”].)
B. Relevance of bias at the BSS level
We also disagree with the City’s contention that any alleged bias by
Lorenzen as the initial decisionmaker is irrelevant to our determination.
Instead, the City asserts that the scope of an administrative writ extends
only to the fairness of the final administrative decision—here, the BPW
appeal. The trial court disagreed, citing Haas, supra, 27 Cal.4th 1017, which
considered whether independent review can remedy an allegation of bias in
an initial administrative hearing. In Haas, the court considered a county’s
practice of selecting and paying temporary administrative hearing officers on
an ad hoc basis. The plaintiff asserted that this practice gave the hearing
officers an impermissible financial interest in the outcome of their cases,
because the officers’ prospects for obtaining future ad hoc appointments
depended solely on the county’s goodwill. (Ibid.) The court noted that in
cases involving an adjudicator’s financial interest, as distinct from other
claims of bias, the litigant claiming bias did not have to overcome the
“presumption of honesty and integrity” typically afforded the administrative
adjudicators. (Id. at p. 1026.) Applying this stricter standard for pecuniary
interest claims, the court concluded that the county’s practice raised an
impermissible risk of bias. (Ibid.)
The Haas court also considered the county’s argument that “any
possibility of bias on the part of a hearing officer is cured when the Board
independently reviews the administrative record and decides whether to
accept or reject the officer’s recommendation. The short answer to the
contention is that no court has relied on this argument to uphold a decision
reached by an adjudicator found to have suffered from a constitutionally
significant risk of bias. Indeed, several courts have expressly rejected the
argument.” (Haas, supra, 27 Cal.4th at p. 1034, citing Ward v. Village of
Monroeville (1972) 409 U.S. 57 (Ward).) The court concluded that the
33
“[p]etitioner is entitled to a neutral and detached judge in the first instance.”
(Haas, supra, 27 Cal.4th at p. 1034, quoting Ward, supra, 409 U.S. at pp. 61-
62, italics omitted.)
The City argues that Haas is inapplicable because the court’s holdings
were limited to due process claims “based on allegations of systemic,
pecuniary bias.” We find Haas squarely on point and therefore binding.
While the Supreme Court distinguished the standard for finding an unfair
hearing based on pecuniary bias, it made no such distinction when holding
that the bias of a lower-level administrative adjudicator could not be cured by
a fair hearing on appeal. Indeed, the Haas court noted that this conclusion
had been followed “in cases involving administrative tribunals,” citing
Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435. (Haas,
supra, 27 Cal.4th at p. 1034.) Hackenthal involved a claim of bias arising
from overlapping administrative functions, similar to the claims made here.
(Hackethal v. California Medical Assn., supra, 138 Cal.App.3d at pp. 445-
446.)
Nor does the City’s cited authority hold otherwise. The City relies on
Pomona Valley Hospital Medical Center v. Superior Court (1997) 55
Cal.App.4th 93, 107, and Cole v. Los Angeles Community College Dist. (1977)
68 Cal.App.3d 785, 791-792, both of which found that alleged bias of an
accuser, or an individual who initiated administrative action, was not
relevant to the fairness of an administrative hearing. But neither case
considered the relevance of purported bias by the hearing officer at an initial
administrative hearing. (See, e.g., Pomona Valley Hospital Medical Center v.
Superior Court, supra, 55 Cal.App.4th at p. 107 [noting that the purportedly
biased individual was not a hearing officer at either level of administrative
review, thus, evidence of his motive in initiating the proceedings was
irrelevant].) Here, by contrast, Lorenzen was the adjudicator at the BSS
hearing. Thus, to the extent his purported bias rendered that hearing unfair,
it is not insulated from our review by the fact that Sullivan received an
administrative appeal.
C. Sullivan’s fair hearing claim
Sullivan contends that it did not receive a fair hearing from the BSS or
on appeal to the BPW. Specifically, it argues that Lorenzen and James were
34
“personally embroiled” in the controversy, they pre-committed to the decision
to revoke Sullivan’s permits prior to the hearings, and they “maintained
conflicting roles as investigators, prosecutors, and judges.” The City asserts
that the purported evidence of bias presented by Sullivan, and relied upon by
the trial court, is vague, speculative, and cannot overcome the presumption of
impartiality afforded to administrative decisionmakers. We agree with the
City that Sullivan failed to meet its burden to “come forward with ‘specific
evidence demonstrating actual bias or a particular combination of
circumstances creating an unacceptable risk of bias.’” (Today’s Fresh Start,
supra, 57 Cal.4th at p. 221.). We therefore reverse the trial court’s order
issuing an administrative writ.
1. Personal embroilment
Personal embroilment in a dispute will void the administrative
decision. (Clark, supra, 48 Cal.App.4th at p. 1170, quoting Applebaum v.
Board of Directors (1980) 104 Cal.App.3d 648, 657-658.) In Clark, for
example, the court found the property owners were denied a fair
administrative hearing because one of the council members was a neighbor
who displayed “personal animosity” toward the owners and whose own
residence would be impacted by the proposed building project. (Clark, supra,
48 Cal.App.4th at pp. 1172-1173.) Here, Sullivan claimed that Lorenzen and
James had a personal stake in the decision because of the public outcry over
the development and the City’s initial decision to issue the tree permit. The
court rejected this argument, finding no evidence that Lorenzen or James had
a personal financial stake in the matter, harbored personal animosity toward
Sullivan, or that the public pressure “was such to cause an unacceptable
probability of bias.” Sullivan ignores the trial court’s findings of fact and
simply reasserts the argument that Lorenzen and James played “personal
roles in the underlying controversy” that were “too significant to be
constitutionally acceptable.”
We find that substantial evidence supports the trial court’s factual
finding that neither Lorenzen nor James held a financial stake, harbored
personal animosity, or held any other personal interest in the project.
Further, Sullivan cites no authority supporting its contention that public
pressure over the project (absent some personal interest) would disqualify
35
Lorenzen or James from acting as impartial adjudicators. Thus, we conclude
that Sullivan failed to establish personal embroilment by any decisionmaker
here.
2. Precommitment to a result
Next we turn to Sullivan’s contention that Lorenzen and James
committed to revoking the permits prior to the administrative hearings.
Prehearing statements or opinions regarding the subject matter of an
administrative hearing do not necessarily disqualify a decision maker. (See
City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 782; Clark, supra, 48
Cal.App.4th at p. 1170, quoting Applebaum v. Board of Directors, supra, 104
Cal.App.3d at pp. 657-658 [“neither prior knowledge of the factual
background which bears on a decision nor prehearing expressions of opinions
on the result disqualifies an administrative body from acting on a matter
before it”].) Whether those statements cross the line into impermissible
advocacy by the decision maker depends on the specific circumstances.
In Petrovich, supra, 48 Cal.App.5th at p. 974, a developer alleged bias
by a city council member who voted to deny its conditional use permit to build
a gas station. The court found that the evidence that the council member was
also a member of the neighborhood association opposing the project, as well
as a prehearing statement he made opposing the gas station, was insufficient
to establish bias. (Ibid.) However, the court concluded that the council
member “crossed the line into advocacy against the project” when he “took
affirmative steps to assist opponents of the gas station conditional use permit
and organized the opposition at the hearing.” (Id. at pp. 974-975.) The court
cited evidence that prior to the hearing, the council member was “counting—
if not securing—votes on the City Council against the gas station,” and
communicating “an ‘update’ on that score” to the mayor. (Ibid.) The court
also found it significant that the council member had prepared “talking
points” that amounted to a presentation against the gas station, many of
which appeared in a presentation prepared “for the mayor to use at the
hearing,” and coached the project’s main opponent on how to prosecute the
appeal. (Ibid.) Under these circumstances, the court concluded that the
council member had made a prehearing commitment to a particular result
and should have recused himself from voting. (Id. at p. 975; see also Nasha,
36
supra, 125 Cal.App.4th at p. 483 [finding unacceptable probability of bias by
planning commissioner who authored a pre-hearing article attacking the
project].)
Here, at the BSS level, the court found “problematic” Lorenzen’s
December 2015 email to Molnar of council member Bonin’s office. In that
email, Lorenzen stated he was “in agreement,” in response to Molnar’s email
discussing Bonin’s opinion that “we need to revoke all permits for the
project.” Sullivan argues that, “standing alone,” this email was sufficient
evidence of precommitment by Lorenzen to establish an unacceptable
probability of bias. But the trial court did not find as much; instead, it found
that Lorenzen’s email “could plausibly be read to commit tentatively to a
general sanction (permit revocation),” or it could “plausibly be read as
agreeing that further discussion was needed,” and further noted that in his
deposition, Lorenzen “denied that he was agreeing to any specific sanction or
had made a decision.” As such, the trial court did not make the factual
finding that Lorenzen’s subsequent explanation in his deposition lacked
credibility, nor did the court find that the email definitively established
precommitment. Sullivan’s attempts to cast these findings as supporting bias
fall short. We defer to the trial court’s factual findings interpreting this
evidence. Based on those findings, we conclude the emails cannot establish
bias where they could “plausibly be read as agreeing that further discussion
was needed.”
Putting aside the email exchange with Molnar, we find insufficient
evidence to support Sullivan’s claim that Lorenzen committed to revoking its
permits prior to the BSS hearing. The early emails among Lorenzen, James,
and Kracov demonstrate that the City began its investigation after the
neighbor group alleged that trees had been removed without a permit, and
the subsequent emails confirm that the inspection revealed the removal of
three unpermitted trees. None of these facts were in dispute, and they do not
establish any commitment by Lorenzen or James to revoke Sullivan’s permits
as punishment for the tree removals. Indeed, Lorenzen’s email to James with
the results of the investigation lays out multiple options and does not suggest
any preferred outcome. Both testified at their depositions that they had not
made any decision prior to the administrative hearings. Moreover, despite
37
the pressure from the community and other city officials to impose the
maximum penalty of 10 years, the BSS decided to revoke Sullivan’s permits
for only five years.14
Similarly, we find insufficient evidence that James prejudged the case
prior to the BPW appeal hearing. The court cited James’s remarks during
the BPW hearing, particularly his statement that “I don’t think it’s any
surprise – maybe to somebody, but it shouldn’t be – where I stand on this.”
The court found that these remarks “may show pre-judgment on the part of
James,” and “arguably suggests that he had, prior to the hearing, formed an
opinion on the case and in fact communicated it to other persons.” We are
not persuaded that the court’s finding that James’s remarks might show
prejudgment is sufficient to establish the concrete evidence of bias required to
overcome the presumption of impartiality. Moreover, we note that these
remarks came at the end of the lengthy BPW hearing, during which James
(along with several other board members) had actively engaged both Sullivan
and the neighbor group with questions and comments. Whether or not James
had formed an opinion regarding the appropriate outcome, we conclude that
Sullivan failed to present sufficient evidence that he had committed to
revoking its permits prior to hearing the evidence at the BPW hearing, or had
endeavored to influence any other board members to do the same.
3. Overlapping roles
We also agree with the City that the overlapping administrative roles
inhabited by Lorenzen and James were permissible and that Sullivan failed
to produce evidence of bias arising from those roles. Absent concrete evidence
of precommitment, an overlap in administrative roles may be sufficient to
establish bias where a decisionmaker is “in the position of reviewing his or
14 Sullivan contends that the number of years is irrelevant, because any
revocation would doom the project under new hillside building ordinances.
We disagree—at a minimum, Sullivan would be able to begin any revised
project five years earlier than under the maximum penalty. Further, we
agree with the City that the imposition of a five-year revocation is relevant to
at least partially rebut the suggestion that Lorenzen and James made their
decisions in response to political pressure.
38
her own decision” (Nightlife Partners v. City of Beverly Hills (2003) 108
Cal.App.4th 81, 92 (Nightlife.)
In Nightlife, for example, the court held that the due process rights of a
permit applicant were violated when an attorney represented a city in
connection with a business permit denial and also advised the hearing officer
on the administrative appeal from that denial. As such, the attorney was in a
position to advise on legal rulings and evidentiary objections in the
adversarial appeal of an initial decision he had helped obtain. (Nightlife,
supra, 108 Cal.App.4th at pp. 84–85; see also Golden Day Schools, Inc. v.
State Dept. of Education (2000) 83 Cal.App.4th 695, 710 [due process
violation where the same person who initiated the refusal to renew a
government contract sat on the appellate panel that reviewed that
administrative action, and thus “was in the position of judging the
correctness of his own decision”].)
By contrast, “‘[t]he mere fact that the decision-maker or its staff is a
more active participant in the factfinding process . . . will not render an
administrative procedure unconstitutional.’” (Nightlife, supra, 108
Cal.App.4th at p. 94, quoting Howitt v. Superior Court (1992) 3 Cal.App.4th
1575, 1581.) Here, the evidence that Lorenzen was the principal investigator
into the tree removals prior to the BSS hearing and that James was the
board member tasked with overseeing the BSS investigation is insufficient to
establish their inability to fairly adjudicate the issue. The trial court found
that Lorenzen’s email communications with James providing status updates
about the case and the results of the investigation “suggest Lorenzen was
looking to James to endorse his upcoming decision” (emphasis added). In
addition, the court noted that “[i]f James directed the BSS outcome, he would
impermissibly be sitting in judgment of his own decision.” However, the
court also found that Sullivan “presented no direct evidence James told
Lorenzen what decision he should reach.” Given the lack of concrete evidence
that James in fact directed the BSS’s decision, together with Lorenzen’s
discussion of the BSS decision as one made among members of the BSS
following the first hearing, we conclude the trial court erred in determining
that James was unable to fairly adjudicate the BPW appeal because of his
role during the investigation and BSS hearing.
39
We are similarly unpersuaded by Sullivan’s argument that Lorenzen
improperly advised the BPW in connection with the BPW appeal. The copy of
the BSS report Lorenzen emailed to James prior to the BPW hearing
reflected the BSS’s findings and did not indicate any suggestion for how the
BPW should proceed. The trial court also expressed concern with the
statements made by Repenning during the BPW hearing, finding that those
statements “indicate[] that she based her decision in Petitioner’s appeal on
discussions with ‘representatives of the developer and representatives of the
community’ and Lorenzen.” We find those statements insufficient to
establish bias by Repenning, in view of her statement that she spoke with all
sides of the dispute; moreover, the information she reported receiving from
Lorenzen regarding his belief that Sullivan intentionally removed tree
number 5 was the same information Lorenzen provided on behalf of the BSS
at the start of the BPW appeal hearing.
Sullivan also contends that this court’s recent decision in California
DUI Lawyers Association v. California Department of Motor Vehicles (2022)
77 Cal.App.5th 517 (CDLA) applies here. In CDLA, we considered a fairness
challenge to the administrative hearings conducted by the Department of
Motor Vehicles (DMV) regarding suspension of a driver’s license after the
driver has been arrested for driving under the influence. The DMV admitted
that at these hearings, it required the hearing officer to act both as advocate
for the DMV and as trier of fact. (Id. at p. 527.) Under those circumstances,
we concluded that the “hearing structure violates the California and federal
due process rights of drivers by combining the advocacy and adjudicatory
roles into a single DMV employee.” (Id. at p. 530.) “The irreconcilable
conflict between advocating for the agency on one hand, and being an
impartial decisionmaker on the other, presents a ‘“particular combination of
circumstances creating an unacceptable risk of bias.”’” (Id. at p. 532, quoting
Today’s Fresh Start, supra, 57 Cal.4th at p. 221; Morongo, supra, 45 Cal.4th
731, 741.)15
15 CDLA was decided after the parties had completed their briefing in this
appeal. At our request, the parties submitted supplemental briefs regarding
the applicability of CDLA to this case.
40
We disagree with Sullivan that CDLA is analogous to this case. As the
trial court found, Lorenzen’s role was as an investigator and a “decision-
maker adjudicating the matter at the Bureau level.” Substantial evidence
supports that factual determination and we will not disturb it on appeal.
Moreover, we find no evidence that Lorenzen also acted as an advocate on
behalf of the City during that hearing, nor was he procedurally required to do
so, as was the DMV fact-finder in CDLA. Similarly, the trial court found that
James “participated in the investigatory process leading to the BSS decision,
then sat on the appellate panel determining whether that decision should be
upheld.” Sullivan’s contention that James acted as an advocate during the
BPW hearing because he questioned the presenters is not supported by any
authority. We find that Sullivan has failed to establish that either Lorenzen
or James crossed the line into advocacy for the decisions they were also
tasked to adjudicate.
In sum, we conclude that Sullivan failed to present “specific evidence
demonstrating actual bias or a particular combination of circumstances
creating an unacceptable risk of bias” that would meet the standard of the
exceptional case involving a constitutionally unacceptable risk of bias.
(Morongo, supra, 45 Cal.4th at p. 741.) We therefore reverse the trial court’s
order granting Sullivan’s writ petition.
III. Cross-Appeal
Sullivan’s second cause of action sought a writ of mandamus under
section 1085 to compel the City to reinstate its grading permits for the
properties. Sullivan alleged that even if the City was justified in revoking its
building permits pursuant to LAMC section 46.06, that statute did not
authorize the City to revoke Sullivan’s grading permits. The trial court found
that the “City’s revocation of grading permits flowed from the administrative
decision” under LAMC section 46.06 and further, that Sullivan’s contentions
regarding its second cause of action were moot once the court issued the
administrative writ overturning the revocation of all of Sullivan’s permits.
Sullivan cross-appealed from the trial court’s dismissal of its second cause of
action, arguing that the City lacked the authority to revoke its grading
permits.
41
“A writ of mandate ‘may be issued by any court ... to compel the
performance of an act which the law specifically enjoins, as a duty resulting
from an office, trust, or station. . . .’ (Code Civ. Proc., § 1085, subd. (a).) The
petitioner must demonstrate the public official or entity had a ministerial
duty to perform, and the petitioner had a clear and beneficial right to
performance.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of
Public Health (2011) 197 Cal.App.4th 693, 700.)
In reviewing a quasi-legislative decision by an administrative agency,
““‘[t]he authority of the court is limited to determining whether the decision
of the agency was arbitrary, capricious, entirely lacking in evidentiary
support, or unlawfully or procedurally unfair.”’ [Citations.]” (Abatti v.
Imperial Irrigation District (2020) 52 Cal.App.5th 236, 250.) “The appellate
court reviews the trial court’s decision de novo under the same standard.”
(Ibid., quoting California Bldg. Industry Ass’n v. San Joaquin Valley Air
Pollution Control Dist. (2009) 178 Cal.App.4th 120, 130; see also City of
Arcadia v. State Water Resources Control Board (2006) 135 Cal.App.4th 1392,
1409 [review is de novo, “except where the trial court made foundational
factual findings, which are binding on appeal if supported by substantial
evidence”].)
Sullivan contends that the plain language of LAMC section 46.06
grants authority to the City to revoke building permits but not grading
permits. The City responds that because it had authority under that statute
to revoke Sullivan’s building permits, it could also revoke the associated
grading permits. Citing LAMC section 91.7005.1,16 the City contends that
Sullivan could not conduct any grading without building permits.
We find no error in the trial court’s conclusion that the City’s
revocation of grading permits necessarily flowed from the revocation of
Sullivan’s building permits. Sullivan argues that it is entitled to
reinstatement of its original grading permits so that it can “pursue its desired
project as it was originally permitted.” However, in light of our decision
affirming the City’s revocation of Sullivan’s building permits under LAMC
section 46.06, Sullivan has acknowledged that it can no longer pursue the
16 LAMC section 91.7005.1 provides: “No person shall conduct any
grading operation for other than building site development in hillside areas.”
42
original project under current regulations. Sullivan has not shown that it
would be entitled to the same grading permits for a redesigned development
project. We therefore affirm the trial court’s dismissal of Sullivan’s second
cause of action.
DISPOSITION
The judgment is reversed with respect to Sullivan’s first cause of action
for writ of administrative mandate under section 1094.5. The judgment is
affirmed as to Sullivan’s second cause of action for writ of mandate under
section 1085. The City is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
43