Patel v. City of Long Beach CA2/1 ( 2023 )

Filed 7/28/23 Patel v. City of Long Beach CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JAYANTIBHAI PATEL et al., B317168
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCP05678)
v.
CITY OF LONG BEACH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Law Offices of Frank A. Weiser and Frank A. Weiser for
Plaintiffs and Appellants.
Office of the Long Beach City Attorney, Charles Parkin,
City Attorney, Dawn McIntosh, Gary J. Anderson and Arturo D.
Sanchez, Deputy City Attorneys; Best Best & Kreiger,
Christopher M. Pisano, Alexander M. Brand and Anya Kwan for
Defendant and Respondent.
_________________________
INTRODUCTION
Appellants Jayantibhai Patel and Daksha Patel
(collectively, the Patels; individually, Jayantibhai and Daksha1)
operated the Princess Inn motel located in Long Beach,
California. Respondent City of Long Beach (City) revoked the
motel’s business license in 2008 after an administrative hearing
before an appointed hearing officer and a city council vote to
accept the hearing officer’s recommendation of revocation. The
Patels challenged the license revocation in a petition for writ of
administrative mandate, which the superior court denied.
The Patels now appeal the denial of their writ petition.
They do not challenge the sufficiency of the evidence supporting
the findings made by the hearing officer, nor do they contend
those findings do not support City’s decision to revoke the license.
Instead, they raise a series of arguments focused on the process
that led to the license revocation. We find no merit in these
arguments and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. City Issues a Business License for the Motel
The administrative record of the proceeding to revoke the
Patels’ business license shows the following. In January 2003,
City issued Jayantibhai a business license to operate the Princess
Inn. City personnel contacted Jayantibhai in the fall of 2003
regarding illegal drug activity and prostitution at the motel, and
on October 15, 2003, the City Attorney’s Office sent a letter to
Jayantibhai ordering him to abate the nuisance posed by these
1 We use the Patels’ first names for ease of reference. No
disrespect is intended.
2
activities. An administrative hearing was held in February 2004,
after which the motel was found to be a nuisance and
Jayantibhai assessed $3,628 in fines and penalties.
B. Initial Revocation Proceeding
In July 2007, City’s police department submitted a request
to City’s director of financial management to revoke the motel’s
business license. As relevant here, Long Beach Municipal Code
(LBMC) section 3.80.429.1 authorizes the director of financial
management, “upon hearing,” to revoke or suspend a business
license when the licensee “fails to comply . . . with any . . .
provision or requirement of law, including, but not limited to,
th[e LBMC] and any grounds that would warrant the denial of
initial issuance of a license [under the LBMC].” The police
department request was based on claims that Jayantibhai
allowed prostitution and illegal drug activity to occur at the
motel, and that the police department had frequently responded
to calls for service at the motel involving “noise, fighting,
assaults, domestic violence, gang associations (Rollin’ 20’s Crips),
drug activity and prostitution.”
City’s Department of Financial Management initiated
revocation proceedings and designated a private attorney,
Michelle M. Lents, Esq., as the hearing officer. Lents held a
hearing on October 3, 2007; the Patels were present but were not
represented by counsel. Jayantibhai testified during the hearing.
On October 16, 2007, Lents issued a seven-page written report
summarizing the evidence presented and recommending that
City revoke the business license.
On October 23, 2007, the Department of Financial
Management notified the Patels that it had revoked their
business license, and that they had a right to appeal the matter
3
to the city council under LBMC section 3.80.429.5. That section
provides for a second hearing de novo at which “the appellant or
its authorized representative shall have the right to present
evidence and a written or oral argument, or both.”
C. The Administrative Appeal and Second
Administrative Hearing
The Patels requested an appeal hearing and City appointed
Ronald Sokol, a private attorney, as the hearing officer.2 Sokol
held a three-day hearing in February 2008. As Sokol noted in his
final recommendation, the proceeding before him was a “ ‘trial de
novo.’ ” The Patels appeared and were represented by counsel.
As the hearing before Sokol led to the action challenged by the
writ petition, we summarize the evidence presented.
1. Officer Ryan Lee
City police department officer Ryan Lee testified that in
2005 he became familiar with the Princess Inn by “responding to
numerous calls for service in that location . . . dealing with street-
level narcotics users and prostitutes.” While on patrol, Officer
Lee recalled service calls to the Princess Inn involving alleged
assaults, child abuse, public intoxication and littering, in addition
to narcotics crimes and prostitution.
Two confidential informants whom Officer Lee believed to
be reliable told him that Jayantibhai was involved in and
2 City appointed Sokol pursuant to LBMC section
2.93.050(A), which states: “Whenever it is provided that a
hearing governed by this [c]hapter shall be heard by the [c]ity
[c]ouncil, the [c]ouncil may, in its discretion, either conduct the
hearing itself or appoint a [h]earing [o]fficer to conduct the
hearing.”
4
coordinated prostitution and narcotics sales at the motel, and
that he rented rooms, particularly room number 24, by the hour
to prostitutes. The confidential informants also reported that
Jayantibhai coordinated with a Rolling Crips gang member and a
motel employee, Tafailagi Milo, to sell narcotics at the motel.
On January 14, 2007, Officer Lee went to the motel and
determined that Milo was residing there.
In February 2007, the motel became the focus of a
Community Oriented Public Safety (COPS) project designed to
address neighborhood nuisance problems. Officer Lee and his
partner, Officer Matthew Kennison, were in charge of this COPS
project. On February 15, 2007, Officer Lee went to the motel
with Officer Kennison, City Neighborhood Nuisance Abatement
officer Rita Hooker,3 and City health and fire inspectors. They
inspected five to seven guest rooms that Jayantibhai told them
were ready to be rented; in each of the rooms the group found
drug paraphernalia, including glass pipes. Officer Lee also
observed the motel on three or four other occasions, for two to
three hours each time, and “saw numerous people that [he]
recognized as street-level narcotics users, sellers and prostitutes.”
He “saw two individuals, both [of] whom [he knew] to be
prostitutes, walking in and out of the hotel on several occasions
during that period with different men.” The prostitutes usually
went into guest room number 24.
Officer Lee arranged to have Detective Heather Rebbeck
work undercover posing as a prostitute to determine if
Jayantibhai was renting rooms by the hour. On June 23, 2007,
Detective Rebbeck informed Officer Lee that she had rented room
3 Hooker is not a sworn peace officer.
5
number 24 while working undercover. Officer Lee asked
Jayantibhai for the registration cards for all of the rooms;
Jayantibhai complied but did not hand over a card for room
number 24. Officer Lee asked Jayantibhai if he had a card for
room number 24, and he replied “no.” Officer Lee said he had
spoken to someone who told him they had stayed in room number
24, and Jayantibhai stated he had not rented the room all day.4
Also on June 23, 2007, Officer Lee arrested Milo for selling
cocaine based on a report from Detective Rebbeck (that drug sale
incident is further described below). Officer Lee had seen Milo
staying at the motel for more than a year, and Milo confirmed
this fact to Officer Lee. Milo represented herself as an employee
of the motel doing security and cleaning, and Officer Lee had
several times seen her in the motel office, which was not
accessible by the public. According to Officer Lee’s report, Milo
“admitted that she picks up and delivers rock cocaine on a
frequent and daily basis to people staying at the Princess Motel.
Milo said that [Jayantibhai] is well aware of the sale and usage of
rock cocaine in the motel and is intimately involved in it. Milo
said [Jayantibhai] only allows certain people to sell, for which he
receives compensation from the dealers. Milo said [Jayantibhai]
frequently and on a daily basis rents motel rooms by the hour to
people he knows to be prostitutes.”
Officer Lee testified that he had many contacts with “a
prostitute and daily rock cocaine user,” who told Officer Lee that
4 During the re-direct examination of Officer Lee, City
introduced a registration card Jayantibhai had produced at the
initial administrative hearing on October 3, 2007. The card
showed that room number 24 had been rented on June 23, 2007,
with a “Date Out” of June 24.
6
she took her clients to rooms at the Princess Inn and “[t]he owner
looks the other way and takes money from her for allowing her to
do it.”
Officer Lee also testified about other specific times he went
to the motel, and authenticated reports he had prepared
regarding his visits. On January 19, 2007, Officer Lee arrested a
motel guest who had an outstanding arrest warrant for felony
robbery. Officer Lee also interpreted a two-page computer-
generated report which listed incidents where police were called
to the Princess Inn from January 2006 through September 2007.
On cross-examination, Officer Lee indicated that he closed
his investigation of the Princess Inn in about June 2007, and did
not know whether the conditions at the motel had changed since
that time. He refused to identify the confidential informants he
had relied upon or provide information regarding their
backgrounds. Officer Lee confirmed that Jayantibhai had not
been cited for any violations during the COPS project
investigation during 2007, explaining that the goal of the project
was to compile evidence regarding the motel operations. Officer
Lee also agreed that he had not identified for Jayantibhai drug
dealers or prostitutes that Jayantibhai should not allow to stay at
the motel.
2. Detective Heather Rebbeck
Detective Rebbeck testified about two undercover
operations in which she posed as a prostitute and rented rooms at
the Princess Inn for periods of less than an hour. The first time,
on May 4, 2007, Detective Rebbeck and another undercover
officer rented room number 24 from Jayantibhai at around 1:25
p.m.; the other undercover officer filled out a registration card,
and Detective Rebbeck told Jayantibhai that she only needed the
7
room for an hour. Detective Rebbeck returned the key to
Jayantibhai a little more than 30 minutes later. Later that same
afternoon, Detective Rebbeck went back to the motel with a third
undercover officer. When they arrived, they observed a male and
a female walk into room number 24 and close the door. This
appeared to violate LBMC section 5.48.010(C), which prohibits
motels and hotels from renting a room more than once in a 12-
hour period. At the motel office, Detective Rebbeck asked for
another room for an hour and Jayantibhai rented them room
number 7; the other undercover officer filled out the registration
card. Approximately 20 minutes later Detective Rebbeck
returned the key to Jayantibhai.
The second undercover operation took place on June 23,
2007. At approximately 1:45 p.m., Detective Rebbeck went with
a different undercover officer and asked Jayantibhai for a room
for an hour, and he rented them room number 24; the other
undercover officer filled out a registration card. Detective
Rebbeck returned the key to the office, where Daksha was
stationed, a little more than 30 minutes later. At around 5:00
p.m. that day, Detective Rebbeck returned to the motel with a
different undercover officer. At the motel office, they asked
Jayantibhai for a room for an hour and he rented them room
number 10; the other undercover officer filled out the registration
card. This registration card showed a room charge of $50, but
Detective Rebbeck testified that she paid only $20.
After being in room number 10 for a few minutes, Detective
Rebbeck went to the motel office where she found Daksha and
asked for “Poppy,” which she understood was a nickname for
Jayantibhai. Daksha told her that he had left. As Detective
Rebbeck was walking back to the room, Milo contacted her and
8
said, “Can I help you with something?” Detective Rebbeck
explained she was looking for Poppy, and Milo said, “Let me see if
I can find him because I work here.” Milo walked to the door
which led to the Patels’ residence next to the motel office and
spoke with someone. Milo then returned and asked if she could
assist Detective Rebbeck. Detective Rebbeck asked Milo if she
could get rock cocaine, and Milo told Detective Rebbeck to leave
$40 on a plastic table outside of Milo’s room. Detective Rebbeck
left $40 as instructed and a short time later Milo delivered the
rock cocaine to Detective Rebbeck in room number 10. At that
point, Detective Rebbeck alerted other officers who went to room
number 10 and arrested Milo.5
Detective Rebbeck also testified that the rooms she rented
at the Princess Inn were “foul,” with dried blood on some of the
sheets, uncleaned toilets and trash left uncollected.
On cross-examination, Detective Rebbeck agreed that, on
May 4, 2007, she did not check the registration cards to
determine if the two people she had seen entering room number
24 had in fact rented the room, and she did not speak to them.
Detective Rebbeck also explained that her posing as a prostitute
consisted of “renting rooms for an hour at a time with a different
man on different occasions.” She did not tell Jayantibhai that
she was a prostitute or use any code words.
5 At City’s request, the hearing officer took judicial notice of
a certified court record showing Milo pleaded no contest to a
charge under Health and Safety Code section 11352, subdivision
(a) (transporting, importing, selling, etc. a controlled substance)
on June 23, 2007.
9
3. Neighborhood Nuisance Abatement Officer Rita
Hooker
Hooker testified about the prior nuisance abatement
proceeding in 2003-2004 and resulting fines and penalties.
Hooker testified she drafted the July 17, 2007 request from the
police department to the director of financial management to
have the Patels’ business license revoked. In preparation for
drafting the letter, she reviewed police records which showed
approximately 175 calls for service relating to the motel since
2004. In addition, Hooker testified that she was aware a person
had died of a drug overdose at the motel in 2004 or 2005, and on
an unspecified date a motel guest who was under the influence of
cocaine caused a room to catch on fire.
Hooker also testified about the inspection she and several
City code inspectors conducted of guest rooms at the Princess Inn
on February 15, 2007. Hooker described the two rooms she
entered as “filthy” and stated that she saw drug paraphernalia.
On cross-examination, Hooker agreed that she had not
notified Jayantibhai in 2007 that he needed to abate the nuisance
conditions then existing at the motel. Hooker explained that she
did not believe any City action short of revoking the business
license would be effective, stating, “I think the problems at this
hotel, especially under the management of [Jayantibhai], are too
ingrained. The neighborhood knows this is a problem location.
Prostitutes know that this is the place to go. Drug addicts know
this is the place to go.”
4. Motel Residents and Neighbors
Several motel residents and neighbors testified on behalf of
the Patels. Kimberley Anderson testified she had lived at the
Princess Inn since August of 2007. Anderson described the
10
conditions at the motel as “clean” and “quiet.” She did not
observe any prostitution or drug use and had seen police officers
at the property only once. Anderson stated that she noticed
suspicious activity on the sidewalk next to the hotel “all night
long.”
Lupe Bermudez, who had lived in the same neighborhood
as the Princess Inn since 2000, also testified for the Patels.
Bermudez stated that she had never seen prostitution or drug
activity at the motel.
Troy Wince, who had lived at the motel for eight years,
testified that from 2003 through September of 2007, he had not
observed any prostitution or drug dealing taking place. He had
seen police at the motel but had not seen them make any arrests.
Wince had observed prostitution and drug activity down the
street from the motel, near Pacific Coast Highway. On cross-
examination, Wince admitted that police “took [him] in” at some
point in 2007 based on a warrant. Wince was also aware that a
person nicknamed “Baby” (who other evidence showed was Milo)6
had been arrested at the motel; Wince estimated that Baby lived
at the motel for about six months. Wince had seen Baby cleaning
rooms.
Juan Diaz testified he had lived across the street from the
Princess Inn since August or September of 2007. Diaz stated he
had not seen any prostitutes or drug dealers in the motel’s
parking lot but had seen them on the street in front of his
6 Detective Rebbeck testified that Milo acknowledged this
nickname for her during the June 23, 2007 undercover
investigation.
11
residence. On cross-examination, Diaz admitted that he does not
know what drug dealers look like.
Albert Mora testified that he had lived across the street
from the motel for four years. Mora had not observed any women
loitering in the motel’s parking lot but had seen that occur on the
street near the motel. He had not observed any activities at the
motel that he believed were drug transactions.
5. Daksha Patel
Daksha was the final witness for the Patels. Jayantibhai,
who was present during the hearing, did not testify. Daksha
stated that she was testifying for both of the Patels, and that
Jayantibhai did not speak English well. Daksha testified that
she, Jayantibhai, and their two children had lived at the Princess
Inn since 2003, and she and Jayantibhai ran the motel. Daksha
denied that Milo was a motel employee. Jayantibhai’s brothers,
Pravin and Dipak Patel, owned the property on which the motel
was located, and she and Jayantibhai paid them rent each
month. The Patels had a video camera at the motel since 2003
and monitored who came to the motel. They also put in lights on
the exterior of their property two to three months before the
hearing because people would be in that area. Daksha cleans
guest rooms and had not seen drugs or drug paraphernalia.
Daksha denied renting guest rooms for short periods of time, or
renting rooms out more than once in a 12-hour period. She had
never seen drugs being sold or prostitution occurring at the
motel; sometimes people being chased by the police would come
onto the motel property. Daksha denied that Milo was allowed
into the motel’s office. Daksha relied on the motel to make a
living.
12
6. The Parties’ Legal Arguments
The parties submitted post-hearing legal briefs to the
hearing officer. In their brief, the Patels raised several
procedural arguments pertinent to this appeal.7 They contended
that, under LBMC section 3.80.429.5, the city council was
required to conduct the evidentiary hearing itself and could not
appoint a hearing officer. They contended that the property
owners, Jayantibhai’s brothers Pravin and Dipak, had a
constitutional right to notice of the proceedings. They contended
that LBMC section 5.48.010(E), which required motel and hotel
operators to show their guest registration records to law
enforcement, violated the Fourth Amendment, although they did
not explain how their contention affected City’s revocation of
their business license. In addition, the Patels contended that the
hearing officer should have excluded police records with
redactions because the Patels were unable to determine the
outcomes of arrests noted in the records. Lastly, the Patels
contended that City was required to consider alternative means
of enforcement before revoking their business license.
In its brief, City argued that license revocation was
justified “[b]ased on the evidence presented of multiple code
violations, the sustained pattern of unabated criminal activity,
and serious nuisance conditions existing at the Princess Inn.”
City pointed out that, under LBMC section 2.93.050(A), City was
authorized to appoint a hearing officer to preside over the
administrative appeal and make a recommendation to the city
council. City disputed that the property owners were entitled to
7 We do not discuss claims the Patels raised before hearing
officer Sokol that do not relate to their appellate arguments.
13
notice of the license revocation proceedings, because they had no
standing to challenge City’s action. Lastly, City contended that it
had appropriately redacted from police records “confidential
information such as driver’s license numbers, social security
numbers, victim and witness names and addresses, personal
phone numbers, etc.,” and argued that the Patels had made no
showing how such confidential information was relevant.
D. Hearing Officer Sokol Recommends Revocation
On March 14, 2008, hearing officer Sokol issued a 25-page
report summarizing the evidence and recommending that City
revoke the Patels’ business license. Sokol found that “City’s
witnesses all came across well, without noticeable bias.”
However, he found that “some of Officer Lee’s testimony, and the
evidence associated with it, is subject to hearsay and other
credibility/reliability objections,” because Officer Lee had relied
on confidential informants, whose identities he refused to
disclose, as well as police records which had some information
redacted. Sokol stated, “As such, this portion of [Officer Lee’s]
testimony was only given the weight to which it is entitled,
taking reliability carefully into consideration.” The hearing
officer noted that Detective Rebbeck’s first-hand account of her
undercover operations “was not deflected or cast into any real
doubt by” the Patels. Sokol found that none of the Patels’
witnesses “really denied or could truthfully deny the actual
particulars of the many calls that brought law enforcement to the
Princess Inn in just the [nine-]month time frame of January
through September 2007.”
Based on the evidence, hearing officer Sokol concluded that
Jayantibhai “participated in or, at minimum, allowed illegal
14
activities to go forward at the Princess Inn, unabated, for a
prolonged period of time.”
The hearing officer, citing LBMC section 2.93.050(A),
rejected the Patels’ argument that the city council had to conduct
the hearing itself. He also rejected the Patels’ argument that the
hearing was invalid because the property owners were not given
notice, noting that Daksha testified that the brothers were aware
of the proceedings, that Jayantibhai led City to believe he owned
the property, and that City was seeking only to revoke the Patels’
business license and not seeking to take the property away from
the brothers.
Responding to the Patels’ challenge to LBMC section
5.48.010(E), the ordinance granting law enforcement access to
motel/hotel guest registration documents, the hearing officer
found that it was “questionable” whether it was appropriate for
him to consider a constitutional challenge but, assuming it was
appropriate for him to address the issue, the provision was “a
reasonable ordinance geared toward assisting the local
government in seeking to assure that the operator of a hotel or
motel is complying with subsections ([A]) through ([D]) thereof.”
The hearing officer found no evidence of any “specific, overly
intrusive search,” and concluded that, “If the challenge is made to
[LBMC s]ection 5.48.010([E]) in a kind of vacuum, that is for a
[c]ourt to consider.”
Addressing the Patels’ argument that he should have
excluded police records with redactions, the hearing officer
indicated that because of the redactions he gave the documents
limited weight, and therefore he did not feel compelled to exclude
the documents.
15
Finally, hearing officer Sokol found that license revocation
was not too harsh a sanction given the facts of the case, including
that the Patels “produced no evidence to demonstrate
expenditures of monies to maintain and/or improve the Princess
Inn” that would be lost from revocation.
E. The City Council Votes to Revoke the Business
License
At a public hearing on April 22, 2008, the city council voted
to accept the hearing officer’s recommendation to revoke the
Patels’ business license. Before the vote, Daksha made a brief
statement, indicating that any problems came from the streets
around the motel, not the motel itself. The following day, City
sent a notice to Jayantibhai that the city council had voted to
revoke the business license.
F. The Patels File a Federal Lawsuit Challenging City’s
Revocation of the Business License
On April 29, 2008, the Patels and Jayantibhai’s brothers
filed a federal lawsuit asserting various federal constitutional
and statutory claims against City related to the license
revocation, including a Fourth Amendment challenge to the
ordinance granting law enforcement access to motel/hotel guest
registration documents. The federal case included, as a
supplemental state law claim, a petition for a writ of
administrative mandate challenging the license revocation. The
district court declined to exercise supplemental jurisdiction over
the writ petition and other state law claims. The parties
eventually entered a stipulated judgment that awarded the
plaintiffs $7,500 in damages for violation of their Fourth
Amendment rights related to City employees seizing certain
motel registry slips.
16
As permitted in the judgment, the Patels then appealed the
district court’s ruling declining to exercise supplemental
jurisdiction over the writ petition. The Ninth Circuit affirmed in
an unpublished decision filed on November 27, 2019. (Patel v.
City of Long Beach (9th Cir. 2019) 786 Fed.Appx. 126.)8
G. The State Court Writ Petition Proceedings
The Patels filed a petition for writ of administrative
mandate in the Los Angeles Superior Court on December 31,
8 While the Patels were litigating the federal lawsuit they
continued to operate the Princess Inn. On October 15, 2018, City
filed a state court civil nuisance action against the Patels and
Jayantibhai’s brothers alleging that operation of the motel
without a business license constituted a nuisance under LBMC
sections 1.32.010 and 3.80.210. Jayantibhai and his brothers
were later dismissed and the case proceeded against Daksha. On
October 28, 2019, the trial court granted City a preliminary
injunction prohibiting Daksha from operating the motel without
a business license. On December 7, 2020, the trial court entered
a judgment permanently enjoining Daksha from operating the
motel without a business license. We dismissed Daksha’s appeal
of the preliminary injunction order as moot given the issuance of
the permanent injunction. (City of Long Beach v. Patel (Aug. 20,
2021, B302478) [nonpub. opn.].) On June 17, 2021, the trial court
entered a judgment of contempt against Daksha for 37 violations
of the preliminary injunction, ordering her to pay $37,000 to the
court within 30 days. Daksha filed a purported appeal of the
contempt judgment. As there is no right to appeal a contempt
judgment, we treated Daksha’s filing as a writ petition and
denied relief on the merits. (City of Long Beach v. Patel (Jan. 27,
2023, B316807) [nonpub. opn.].) Daksha also appealed the
judgment containing the permanent injunction, a judgment
which we affirmed. (City of Long Beach v. Patel (Mar. 27, 2023,
B310344) [nonpub. opn.].)
17
2019, challenging City’s revocation of their business license.9
The parties filed briefs prior to the hearing on the petition. On
September 1, 2021, the trial court heard argument and took the
matter under submission.
On September 20, 2021, the court issued an order denying
the petition. The court applied the independent judgment
standard of review, stating it did so because City’s administrative
action “resulted in the revocation of existing, vested licenses” and
“completely eliminated [the Patels’] ability to operate [their]
business.” The court addressed each of the Patels’ challenges to
the license revocation and rejected them all. To avoid repetition,
we summarize the Patels’ various challenges and the bases for
trial court’s ruling in our discussion below.10 This timely appeal
followed.
9 The Patels did not serve the petition on City until
June 23, 2020. The petition was not verified, as required by Code
of Civil Procedure sections 1069 and 1086, which prompted City
to file a motion to strike, which was granted by the court with
leave to amend. The Patels filed a verified first amended petition
on December 7, 2020; the allegations in the amended petition are
the same as those in the original petition.
10 Among the claims asserted in the Patels’ petition was an
allegation that City’s revocation of their license violated
Government Code section 65008 because it “conflict[ed] with . . .
City’s General Plan dealing with the Housing Element,” and was
preempted by Civil Code sections 1940 and 1940.1. In the trial
court, the Patels did not make any arguments or present any
evidence supporting these claims, and they do not address these
claims in their brief in this appeal. The Patels have therefore
abandoned these claims.
18
DISCUSSION
A. Standard of Review
Code of Civil Procedure11 section 1094.5 governs judicial
review of a final decision by an administrative agency where, as
here, the law required a hearing, the taking of evidence, and the
discretionary determination of facts by the agency. (Id., subd.
(a).) The petitioner must show that the agency acted without or
in excess of jurisdiction, did not afford a fair trial, or prejudicially
abused its discretion. (Id., subd. (b).) An agency abuses its
discretion if it does not proceed in the manner required by law,
renders a decision not supported by the findings, or makes
findings not supported by the evidence. (Ibid.)
Under the independent judgment test, “abuse of discretion
is established if the court determines that the findings are not
supported by the weight of the evidence.” (§ 1094.5, subd. (c).) In
Fukuda v. City of Angels (1999) 20 Cal.4th 805, our Supreme
Court explained that in the “weight of the evidence” test
applicable under “independent judgment review,” there is “a
strong presumption of correctness concerning the administrative
findings” which “provides the trial court with a starting point for
review—but it is only a presumption, and may be overcome.
Because the trial court ultimately must exercise its own
independent judgment, that court is free to substitute its own
findings after first giving due respect to the agency’s findings.”
(Id. at pp. 817-818.)
When a trial court exercises independent judgment, we
review its factual findings under the substantial evidence test.
11 All unspecified statutory references are to the Code of
Civil Procedure.
19
(Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) However,
we independently determine whether the agency prejudicially
abused its discretion by failing to proceed in the manner required
by law, such as by failing to comply with required procedures,
applying an incorrect legal standard, or committing some other
error of law. (Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th
459, 479.)
B. Timeliness of the Petition
Before we reach the merits, we note the Patels’ writ
petition was timely even though it was not filed in state court
until more than a decade after City revoked the motel’s business
license. The statute of limitations for filing a petition for writ of
administrative mandate is 90 days from “the date on which the
decision becomes final.” (§ 1094.6, subd. (b).) However, pursuant
to 28 U.S.C. section 1367(d), this 90-day limitations period
stopped running while the Patels’ writ petition was pending in
federal court, along with an additional 30 days being added to the
limitations period after the federal court ultimately dismissed the
petition. (Artis v. District of Columbia (2018) ___ U.S. ___ [138
S.Ct. 594, 598, 199 L.Ed.2d 473].)
City’s decision to revoke the Patels’ business license
became final when City served notice of the action on the Patels
on April 23, 2008. (LBMC, § 2.93.050(B)(9).) Under 28 U.S.C.
section 1367(d), the writ petition limitations period stopped
running just six days later on April 29, 2008, when the Patels
filed their federal court action, until at least December 27, 2019,
30 days after the Ninth Circuit filed its opinion affirming the
district court’s dismissal of the writ petition. The Patels filed
20
their writ petition in state court on December 31, 2019. Thus,
the Patels’ state court writ petition was timely.
C. The Patels’ Claim that the Administrative Record
Was Incomplete
The Patels first contend that their due process rights to
challenge the revocation via a writ petition were violated because
the administrative record prepared by City is incomplete. The
Patels identify four categories of documents the administrative
record does not contain: (1) a reporter’s transcript of the initial
license revocation hearing on October 3, 2007, before Lents;
(2) “City’s orders appointing” the two hearing officers, Lents and
Sokol; (3) copies of the ordinances referenced in hearing officer
Sokol’s report; and (4) documents related to a hearing Sokol
presided over in a different proceeding involving the Patels and
City, which they claim Sokol relied upon in reaching his decision
in the Princess Inn matter.12
12 The Patels also contend that the administrative record
should have included the following additional documents:
“preliminary official proceedings” before hearing officer Sokol; a
copy of “the appeal letter” prepared by their counsel initiating the
administrative appeal of the license revocation; and “the contract
or conditions in [sic] choosing the hearing officer.” The Patels did
not object to the absence of these documents until their reply
brief in the trial court. As a result, the trial court did not address
the Patels’ arguments regarding these documents. By failing to
timely present these claims, the Patels have forfeited their
arguments that these documents should have been included in
the administrative record and they were prejudiced as a result.
(Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.)
21
1. The Applicable Law
“The burden is cast upon the plaintiff . . . in a . . . section
1094.5 proceeding, to produce the administrative record.”
(Hothem v. City and County of San Francisco (1986) 186
Cal.App.3d 702, 704.) However, where a writ of administrative
mandate concerns the decision of a “local agency,” such as City,
the plaintiff/petitioner can request the agency to prepare the
record. Specifically, section 1094.6, subdivision (c), provides,
“The complete record of the proceedings shall be prepared by the
local agency or its commission, board, officer, or agent which
made the decision and shall be delivered to the petitioner within
190 days after he has filed a written request therefor.” (§ 1094.6,
subd. (c).) “Such record shall include the transcript of the
proceedings, all pleadings, all notices and orders, any proposed
decision by a hearing officer, the final decision, all admitted
exhibits, all rejected exhibits in the possession of the local agency
or its commission, board, officer, or agent, all written evidence,
and any other papers in the case.”13 (Ibid.)
2. Chronology of Administrative Record Preparation
It is unclear in this case whether the Patels made a request
under section 1094.6, subdivision (c) for City to prepare the
administrative record, as no such request appears in the
13 City argues that a “partial record of an administrative
proceeding” can be sufficient under section 1094.5, subdivision
(a). While section 1094.5, subdivision (a) does provide that
parties can submit “[a]ll or part of the record,” section 1094.6,
subdivision (c) requires cities and other “local agenc[ies]” to
prepare a “complete record of the proceedings” if requested to do
so.
22
appellate record. In any event, City did prepare the
administrative record in 2008 when the Patels filed their federal
lawsuit (which included a writ petition cause of action). When
the Patels refiled the writ petition in state court, City’s counsel
attempted on several occasions between December 2020 and June
2021 to discuss with counsel for the Patels using the
administrative record already prepared for the federal case in the
state court proceeding. When he finally responded to these
inquiries on June 29, 2021, the Patels’ counsel indicated the
administrative record “looked fine,” but requested City add to it
the LBMC sections cited in the record. City did not add these
portions of the LBMC to the administrative record asserting it
was “law and not evidence”; ultimately, the trial court granted a
request for judicial notice of these portions of the LBMC such
that they were part of the record before the trial court and on
appeal.
When the Patels later objected before the trial court that
the administrative record was incomplete in ways other than the
omission of relevant LBMC provisions, the trial court overruled
the objection, finding that the Patels had an obligation to “ensure
the completeness of the administrative record before the record is
submitted to the court for trial,” and had “fail[ed] to timely and
meaningfully participate in the process of preparing or reviewing
the record and by falling to object to the contents of the
administrative record.” As we explain below, the Patels fail to
show the trial court erred in rejecting their challenges to the
completeness of the administrative record.
23
3. Analysis of the Categories of Allegedly Missing
Documents
a. Documents Not Required to Be Included
All but one of the categories of documents the Patels assert
were omitted from the administrative record were not required to
be included in the first place. Nothing before us indicates the
initial October 3, 2007 hearing before Lents was transcribed.
Even if it was, the City administrative action at issue was based
on the report and recommendation of hearing officer Sokol, not
Lents, as Sokol conducted a de novo hearing. A transcript of the
hearing over which Sokol presided was included in the
administrative record, as was all the evidence produced at that
hearing, the parties’ legal briefs, and Sokol’s decision, among
other documents. There was no error in failing to include a
transcript from a prior superseded hearing that was not part of
the city council’s decision.
Although the Patels contend that sections of the LBMC
referenced in hearing officer Sokol’s report should have been
included in the administrative record, there is no requirement in
section 1094.6, subdivision (c) that applicable ordinances or codes
be included. In any event, the trial court granted a request for
judicial notice of the relevant sections of the LBMC such that
they were before the trial court. This claim of error thus fails.
The Patels also contend that the administrative record
should have included documents from a separate administrative
proceeding involving another hotel (the Club Hotel) operated by
the Patels, because hearing officer Sokol referenced the Club
24
Hotel proceedings in his report and recommendation.14 The
Patels do not specify what documents from the Club Hotel
proceeding should have been included in the Princess Inn
administrative record. Nor have the Patels shown that any
transcripts or documents from the Club Hotel proceeding were
relevant to the Princess Inn proceeding. The Patels argue that
the hearing officer “used” the Club Hotel proceeding “in support
of his finding regarding [Jayantibhai] not testifying in this
hearing and willfulness in the actions by [the Patels].” However,
the citations they provide to the hearing officer’s report and
recommendation in making this claim contain no references
whatsoever to findings or evidence in the Club Hotel proceeding.
Thus, the Patels point to nothing suggesting the Club Hotel
proceeding was properly part of the administrative record in this
case. The Patels focus on the hearing officer’s statements that
the Patels claimed, in both the Princess Inn and Club Hotel
proceedings, that City was required to show “willful” conduct,
and that, “as in the Club Hotel consolidated case, the [h]earing
14 According to hearing officer Sokol’s report, the Club
Hotel proceeding involved City’s effort to revoke or suspend
Jayantibhai’s business license to operate that hotel based on his
failure to pay transient occupancy taxes. The hearing officer
indicated the Princess Inn and Club Hotel proceedings were
“consolidated,” but it is unclear how the two matters were
connected procedurally beyond the fact that the same hearing
officer presided over both proceedings. The record does not
disclose any overlap in evidence or findings. The hearing officer
indicated in his report in this matter that “[t]here is overlap in
some legal issues addressed,” but the only common legal issue
referenced in the report was whether City needed to show
Jayantibhai’s conduct was “willful.”
25
[o]fficer finds that the actions and inactions of [Jayantibhai] were
neither inadvertent nor mistaken” but instead “volitional”
because Jayantibhai “participated in or, at minimum, allowed
illegal activities to go forward at the Princess Inn, unabated, for a
prolonged period of time.” This shows merely that Jayantibhai
raised a common legal issue in both proceedings; it does not show
that the hearing officer relied on any findings or evidence from
the Club Hotel proceeding in concluding that Jayantibhai’s
actions with respect to the Princess Inn were willful.
b. The Hearing Officer Appointment Order
The Patels lastly contend documents relating to the
appointment of Sokol as a hearing officer should have been
included in the administrative record.15 City concedes that such
a document existed, characterizing it as “merely the order from
the city clerk appointing the administrative hearing officer.”
Although it does not appear this document was used as evidence
at the administrative hearing, it arguably should have been
included in the administrative record, as either a “notice[ ]” or
“order[ ],” or in the catch-all category of “any other papers in the
case.” (§ 1094.6, subd. (c).)
That, however, is not the end of the analysis. To the extent
it was required to be included, the Patels bore the burden to
provide the trial court with an adequate record. Thus, the Patels
15 The Patels also complain about the absence of the
appointment order for Lents, but that order was not required to
be included for the same reason any transcript of the hearing she
presided over was not required, namely, the city council did not
rely on Lents’s report or evidence adduced at the hearing over
which she presided.
26
had an obligation to review the administrative record prepared
by City to identify any omissions or other errors. The trial court
found that the Patels forfeited this objection to the
administrative record by “failing to timely and meaningfully
participate in the process of preparing or reviewing the record
and by failing to object to the contents of the administrative
record.” Substantial evidence supports this finding. The original
administrative record was prepared in 2008 in connection with
the federal proceeding. When the matter was refiled in state
court, City’s counsel requested input from the Patels’ counsel
regarding the administrative record several times, beginning on
December 9, 2020, and was met with silence. The Patels’ counsel
did not raise any concerns about the administrative record until
June 29, 2021 (approximately 13 years after receiving the
original administrative record, and shortly before briefing on the
writ petition), and even then said absolutely nothing about the
appointment order, focusing instead on the LBMC. Any fault for
the omission of the appointment order therefore rests squarely on
the Patels.
D. The Patels’ Claim that Hearing Officer Sokol Was
Inherently Biased
The Patels contend hearing officer Sokol was inherently
biased in favor of City because he had an interest in being
appointed as a hearing officer in the future, and this mandates
reversal.16 “When . . . an administrative agency conducts
16 The Patels assert that both hearing officers, Sokol and
Lents, had a disqualifying financial incentive to rule in City’s
favor. However, given that the administrative decision at issue
in this matter—the city council’s rejection of the Patels’
27
adjudicative proceedings, the constitutional guarantee of due
process of law requires a fair tribunal. [Citation.] A fair tribunal
is one in which the judge or other decision maker is free of bias
for or against a party. [Citations.] . . . [¶] Unless they have a
financial interest in the outcome [citation], adjudicators are
presumed to be impartial [citation].” (Morongo Band of Mission
Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th
731, 737.)
The Patels contend that, under Haas v. County of San
Bernardino (2002) 27 Cal.4th 1017 (Haas), it was improper for
Sokol to serve as a hearing officer because he was “unilateral[ly]
select[ed]” by City “on an ad hoc basis” and his “income from
future adjudicative work depend[ed] entirely on the government’s
goodwill.” City argues, and the trial court held, that the Patels
waived their claim of implicit bias by failing to raise it before the
hearing officer and instead waiting until after they received an
unfavorable result. We need not decide that issue, because even
if this argument was not waived, we agree with the trial court’s
alternative finding that the Patels’ inherent bias claim fails on
the merits.
Haas involved an administrative hearing on an appeal from
a business license revocation. (Hass, supra, 27 Cal.4th at
p. 1021.) The county that issued the license appointed a private
attorney as the hearing officer. (Ibid.) The business owner
administrative appeal from the license revocation—was based
only on the evidence presented at the hearing before Sokol and on
Sokol’s report and recommendation, we address the Patels’ claim
only as it relates to Sokol. In any event, our conclusion that
there is no evidence Sokol had a financial incentive to rule in
City’s favor applies with equal force to Lents.
28
objected, both before the administrative hearing began and at the
outset of the hearing, to the attorney serving as the hearing
officer. (Ibid.) Testimony at the administrative hearing showed
the county had hired the attorney (who had not previously served
as a hearing officer) to avoid using again the same temporary
hearing officer who had already recommended that the business
owner’s license be revoked. The county employee who selected
the attorney anticipated using the attorney’s services in future
cases, and believed the attorney also understood the possibility of
future work. (Id. at pp. 1021-1022.)
The Supreme Court held that “a temporary administrative
hearing officer has a pecuniary interest requiring disqualification
when the government unilaterally selects and pays the officer on
an ad hoc basis and the officer’s income from future adjudicative
work depends entirely on the government’s goodwill.” (Hass,
supra, 27 Cal.4th at p. 1024.) The court explained that “while the
adjudicator’s pay is not formally dependent on the outcome of the
litigation, his or her future income as an adjudicator is entirely
dependent on the goodwill of a prosecuting agency that is free to
select its adjudicators and that must, therefore, be presumed to
favor its own rational self-interest by preferring those who tend
to issue favorable rulings.” (Id. at p. 1029.)
Haas does not require disqualification whenever an
attorney or other private party is appointed by a public entity as
a temporary hearing officer and may serve as a temporary
hearing officer in the future. Instead, as the court explained,
“Counties that appoint temporary administrative hearing officers
must do so in a way that does not create the risk that favorable
decisions will be rewarded with future remunerative work.”
(Hass, supra, 27 Cal.4th at p. 1020.)
29
In Thornbrough v. Western Placer Unified School Dist.
(2013) 223 Cal.App.4th 169 (Thornbrough), the court rejected a
claim that Haas required disqualification of a hearing officer
presiding over an administrative appeal of an employee’s
termination by a school district. In that case, after 12 days of
hearings, the employee’s counsel filed a written motion
requesting “the hearing officer to disclose (1) ‘[p]ast or present
representation of school districts,’ (2) ‘[p]ast or present
associations’ with the [school d]istrict’s lawyers, and (3) the
‘contractual arrangement’ with the [school d]istrict.” (Id. at
p. 185.) “The hearing officer . . . stated on the record that he had
been hired ‘as an independent hearing officer’ by the [school
d]istrict, had never previously performed any services for the
[school d]istrict or any of its principals, and had never met any
[school d]istrict [b]oard members.” (Id. at pp. 185-186.) The
hearing officer denied the motion on the ground it was untimely,
but also stated he was “ ‘aware of no potential or actual conflicts
of interest that require disclosure in this matter.’ ” (Ibid.)
The trial court found that the employee’s motion to disclose
was untimely, and also that there was no due process violation in
any event, and the Court of Appeal affirmed. (Thornbrough,
supra, 223 Cal.App.4th at p. 187.) As to whether the record
showed a due process violation, the court held “that there is
nothing in the record to rebut the presumption that the hearing
officer was ‘a “reasonably impartial, noninvolved reviewer” ’ as
required by due process. [Citation.]” (Id. at p. 187.)
The trial court here concluded that Haas was inapplicable
because, “Unlike Haas, there is no evidence in the administrative
record about . . . City’s selection process for hearing officers,”
including a lack of any evidence to show that the hearing officer
30
“must favor the City to continue to receive work,” such that the
Patels’ “argument is based on pure speculation.” We agree. We
start from a “presumption of impartiality [that] can be overcome
only by specific evidence demonstrating . . . a particular
combination of circumstances creating an unacceptable risk of
bias.” (Morongo Band of Mission Indians v. State Water
Resources Control Bd., supra, 45 Cal.4th at p. 741.) There is no
evidence in the record about how Sokol was appointed, whether
Sokol had any “future employment prospects” with City, and if
Sokol did want further employment whether it “depend[ed]
entirely on [City’s] goodwill.”17 Given the presumption of
impartiality, this lack of evidence is fatal. (See Thornbrough,
supra, 223 Cal.App.4th at p. 188.)
E. The Patels’ Claim that the Hearing Officer Was
Actually Biased
The Patels contend that statements made by hearing officer
Sokol at two points during the administrative hearing show that
he was actually biased in favor of City. The Patels raised no
objection to these statements at the time they were made, and
the trial court found the failure to object during the
administrative proceedings forfeited this argument. We need not
address forfeiture, because even if this claim was not forfeited,
17 The only reference in the record to how Sokol was
appointed was an unsworn statement by City’s counsel that Sokol
was “selected . . . by random lot.” We do not treat this statement
as evidence as to how Sokol was appointed, and even if we did it
does not carry the Patels’ burden to demonstrate an unacceptable
risk of bias. The lack of any further information in this regard
stems from the Patels’ own failure to timely seek its inclusion in
the administrative record.
31
we agree with the trial court’s alternative finding that the
statements at issue did not show bias.
In a quasi-judicial administrative hearing, principles of
procedural due process require “a ‘reasonably impartial,
noninvolved’ reviewer. ([Nasha v. City of Los Angeles (2004) 125
Cal.App.4th 470,] 483, italics omitted.) While this standard does
not demand the same degree of impartiality required of a judicial
officer, . . . it precludes participation by a person who has
demonstrated actual bias. (Ibid.) In order to prevail on a claim
of bias, the plaintiff ‘must establish “ ‘an unacceptable probability
of actual bias on the part of those who have actual
decisionmaking power over their claims.’ ” ’ (Ibid.)” (Attard v.
Board of Supervisors of Contra Costa County (2017) 14
Cal.App.5th 1066, 1083.)
The Patels first rely on statements Sokol made during
testimony by Officer Lee. Sokol stated, “What I think is gonna
happen with this officer and other witnesses is going to be an
accumulation of potentially very damning information, and much
of it, in effect, is cumulative. I mean, what he’s saying, if this
is—if this alone—if this alone isn’t sufficiently deflected, I don’t
know what the licensee is going to do. I’m wondering.” The trial
court found, and we agree, that Sokol was commenting on
testimony he had observed and his statements did not
demonstrate any bias. (See People v. Perez (2018) 4 Cal.5th 421,
441 [“a trial judge may hear a case even if he or she has
expressed an adverse impression of a party that was ‘based upon
actual observance of the witnesses and the evidence given during
the trial of an action,’ ” quoting Kreling v. Superior Court (1944)
25 Cal.2d 305, 312].) Sokol’s comments do not suggest he had
pre-judged the evidence, as he described the testimony as
32
“potentially very damning” (italics added) and noted additional
rebuttal evidence might be forthcoming from the Patels that
could “deflect” Officer Lee’s testimony. Further, Sokol made
these comments in the context of a discussion about whether
additional police officer testimony might be cumulative; after
City’s counsel indicated she wanted to adduce additional
evidence, Sokol asked the Patels’ counsel if the Patels intended to
deny the activity and knowledge of it, and counsel responded yes,
at which point Sokol stated, “All right. I just wanted to check.”
The Patels also rely on Sokol’s statement in his decision
that he viewed Jayantibhai’s failure to testify as “very troubling.”
The Patels argue that his comment demonstrated bias because
Daksha had testified that Jayantibhai did not speak English well
and she was testifying on behalf of herself and Jayantibhai. The
trial court found that Sokol was commenting about a lack of
evidence and his statement did not demonstrate any bias.
We agree. In his decision, Sokol acknowledged that
Daksha indicated she was testifying for both herself and
Jayantibhai, but he noted that Jayantibhai was present during
the hearing before Sokol and had testified at the prior hearing on
October 3, 2007. Sokol also elaborated on his statement as
follows: “[T]he fact of the matter is that [Jayantibhai] is the focal
point of the charges. The impression the [h]earing [o]fficer has is
that [Jayantibhai] is running the show more so than anyone else,
calling the shots more so than anyone else, and thus the
testimony of his wife of their efforts to operate a habitable, clean
and safe hotel—and the money and time spent to do so, but
without any documentary proof—falls short of what the [h]earing
[o]fficer expected to hear and to see, including to challenge what
Detective Rebbeck described, to actually explain the 41 police
33
calls from January through September 2007, to show that there
[has] been [a] real effort to avoid illegal conduct at the Princess
Inn (and demonstrate it), that they are running a motel not an
apartment complex, and even that the hotel registration (Exhibit
21) is authentic.”
Sokol’s conclusion that Jayantibhai was “the focal point of
the charges” is amply supported by the record, and indeed
Jayantibhai personally held the business license which was at
issue in the matter. We further note that even if Jayantibhai had
limited English language ability, nothing prohibited him from
testifying through an interpreter. Given Jayantibhai’s decision
not to testify, the hearing officer’s comment in a civil
administrative hearing about the lack of evidence rebutting
testimony from other witnesses about Jayantibhai does not
demonstrate actual bias.
F. The Patels’ Claim that the City Council Was
Required to Conduct the Entire Hearing
The Patels acknowledge that the city council acted in
accordance with LBMC section 2.93.050 when it adopted the
recommendation prepared by hearing officer Sokol to revoke the
motel’s business license. Under LBMC section 2.93.050(B)(8),
when the city council appoints a hearing officer to preside over an
administrative hearing, as occurred here, “the [c]ity [c]ouncil may
adopt, reject or modify the recommended decision. In its
discretion, the [c]ity [c]ouncil may take additional evidence at the
hearing or refer the case to the [h]earing [o]fficer with
instructions to consider additional evidence.”
The Patels, however, claim this procedure violated their
due process rights. They contend, “The [United States] Supreme
Court long ago decided that in a judicial or quisi [sic] judicial
34
proceeding, the judicial decisionmaker cannot merely adopt the
recommendations of a third party hearing officer but under the
Due Process Clause must consider the evidence and argument
that was presented to the hearing officer.” Their argument on
this point consists of citing two cases—Morgan v. United States
(1936) 298 U.S. 468 [56 S.Ct. 906, 80 L.Ed. 1288] (Morgan I) and
Morgan v. United States (1938) 304 U.S. 1 [58 S.Ct. 773, 80 L.Ed.
1129] (Morgan II)—without any discussion.
LBMC section 2.93.050 mirrors Government Code section
11517, which governs administrative hearings held by state
agencies. Under Government Code section 11517, a state agency
can hear a “contested case” itself (id., subd. (a) & (b)) or have the
case heard by “an administrative law judge,” who is required to
prepare a proposed decision (id., subd. (a) & (c)(1)). When an
administrative law judge hears the matter, the agency can take
various actions, including adopting the proposed decision or
rejecting it and deciding the matter itself, “with or without taking
additional evidence.” (Id., subd. (c)(2)(A)-(E).) In Hohreiter v.
Garrison (1947) 81 Cal.App.2d 384, 400 (Hohreiter), the Court of
Appeal rejected a constitutional challenge to the procedure set
forth in Government Code section 11517 based on Morgan I and
Morgan II.18 City urges that based on the analysis in Hohreiter,
18 In Hohreiter, the appellant filed a writ petition
challenging the revocation of his insurance license by the
Insurance Commissioner. (Hohreiter, supra, 81 Cal.App.2d at
pp. 386-387.) As authorized by Government Code section 11517,
the commissioner had designated a hearing officer who held an
evidentiary hearing and prepared a report and recommendation
to revoke the license, which recommendation the commissioner
adopted. (Hohreiter, at p. 386.) The appellant claimed, based on
35
we should conclude that Morgan I and Morgan II are similarly
inapplicable to administrative proceedings under LBMC section
2.93.050.
Morgan I and Morgan II do not stand for the broad
proposition advanced by the Patels, and do not prohibit the
procedure established by LBMC section 2.93.050 under which the
city council can appoint a hearing officer and then adopt the
recommendation of the hearing officer. Morgan I and Morgan II
both involved challenges to an order by the Department of
Agriculture (Department) fixing rates for buying and selling
livestock. (Morgan I, supra, 298 U.S. at p. 471; Morgan II, supra,
304 U.S. at p. 13.) The Department issued the order under a
statute that authorized the secretary of agriculture to issue such
an order after a “full hearing.” (Morgan I, at p. 473, citing 7
U.S.C. § 211.) In Morgan I, the court concluded, based on this
statutory requirement for a “full hearing,” that the lower court
erred in striking the plaintiffs’ claim “that the [s]ecretary made
the rate order without having heard or read any of the evidence”
and instead acted only on information “derived from consultation
with employees of the Department.” (Id. at p. 478.) The court
explained, “The requirement of a ‘full hearing’ has obvious
reference to the tradition of judicial proceedings in which
evidence is received and weighed by the trier of the facts. The
‘hearing’ is designed to afford the safeguard that the one who
decides shall be bound in good conscience to consider the
Morgan I and Morgan II, that his procedural due process rights
were infringed because the “commissioner adopted the findings
and proposed decision of the hearing officer, without reading or
hearing the evidence produced before the hearing officer.”
(Hohreiter, at p. 393.)
36
evidence, to be guided by that alone, and to reach his conclusion
uninfluenced by extraneous considerations which in other fields
might have play in determining purely executive action.” (Id. at
p. 480.) The court remanded the matter for consideration of the
claim that the plaintiffs had not been provided with a “full
hearing.” (Id. at p. 482.)
Morgan I does not state a rule invalidating LBMC section
2.93.050. First, in Morgan I the required statutory hearing did
not take place at all, whereas here one did before the hearing
officer. (Morgan I, supra, 298 U.S. at pp. 477-478.) Morgan I is
further inapplicable because, as the Hohreiter court observed, “In
the federal statute . . . involved there was no statutory officer
clothed with statutory powers comparable to a hearing officer as
provided in section 11517 of our Government Code. There was no
provision at all for weighing the evidence, except by the
secretary, and there was no indication that anyone except the
secretary ever weighed the evidence.” (Hohreiter, supra, 81
Cal.App.2d at p. 401.)
Morgan II is also inapplicable, but for different reasons. In
that case, the court concluded that the plaintiffs had not been
provided with the required “full hearing” because they had not
been fairly advised of the substance of the Department’s claims
against them. (Morgan II, supra, 304 U.S. at pp. 18-19.) The
court concluded, “The right to a hearing embraces not only the
right to present evidence, but also a reasonable opportunity to
know the claims of the opposing party and to meet them,” and
“[n]o such reasonable opportunity was accorded [the plaintiffs].”
(Id. at pp. 18, 19.) Other than statements at oral argument, “the
Government formulated no issues and furnished [the plaintiffs]
no statement or summary of its contentions and no proposed
37
findings” and further refused a “request that the examiner
prepare a tentative report, to be submitted as a basis for
exceptions and argument.” (Id. at pp. 16-17.) Here, in contrast,
the Patels unquestioningly received notice of City’s claims and
had ample opportunity to rebut those claims, including at the
initial hearing, the de novo appellate hearing from the ruling in
the initial hearing, and the ultimate hearing before the city
council following the written recommendation of hearing officer
Sokol.
In conclusion, the Patels’ argument premised on Morgan I
and Morgan II is unavailing. As they provide no other support
for their due process claim, the claim fails.
G. The Patels’ Claim Regarding City’s Failure to
Provide Notice to the Owners of the Motel Property
After City rested its case in the administrative hearing, the
Patels objected to the proceedings on the ground the owners of
the motel property, Jayantibhai’s brothers Dipak and Pravin
Patel, had not been provided with notice of the hearing. The
hearing officer requested briefing on the issue and ultimately
rejected this argument in his decision. The hearing officer
concluded that notice to the landowners was not required because
“Here, the way the [l]icensee is operating the business on the
property is what is under review. . . . City is not seeking to take
the property away from its actual owners, who turn out to be
someone other than the [l]icensee.” The hearing officer also
observed that Daksha testified she had informed the landowners
about the hearing. The trial court likewise concluded that notice
to the landowners was unnecessary because “City’s
administrative action affected only [Jayantibhai] and his
business license[ ].” The trial court also found that Daksha and
38
Jayantibhai lacked standing to assert the rights of the
landowners.
The Patels contend that the landowners were entitled to
notice both under the LBMC and principles of procedural due
process. We reject this argument because Daksha and
Jayantibhai lack standing to assert the purported rights of the
landowners to notice of the administrative proceedings. “ ‘As a
general rule, a third party does not have standing to bring a
claim asserting a violation of someone else’s rights. [Citation.]’
[Citation.]” (People ex rel. Becerra v. Superior Court (2018) 29
Cal.App.5th 486, 499.) “Although constitutional rights are
‘generally personal’ (People v. Hazelton (1996) 14 Cal.4th 101,
109 . . .), the United States Supreme Court has departed from
this rule when the third-party right asserted by the litigant is
‘inextricably bound up with the activity the litigant wishes to
pursue’ and when some ‘genuine obstacle’ prevents the absent
party from asserting his or her own interest. (Singleton v. Wulff
(1976) 428 U.S. 106, 114, 116 [96 S.Ct. 2868, 49 L.Ed.2d
826] . . . .)” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 570.)
Regardless of whether the rights of the landowners were
inextricably bound up with Daksha’s and Jayantibhai’s continued
operation of the motel (a claim we do not decide),19 there was no
19 We note the Ninth Circuit found in the Patels’ federal
lawsuit that the rights of the landowners and license holders
were not inextricably bound together. In that case, the
landowners themselves (who were parties) asserted City had
violated their constitutional rights by failing to give them notice
of the administrative hearing. The Ninth Circuit rejected that
claim, holding, “Pravin and Dipak, as owners of the Inn, did not
have a property interest in Jayantibhai Patel’s license to operate
39
“genuine obstacle” to the landowners themselves asserting their
interests. During the administrative hearing, Daksha testified
that the landowners were living in a house in Long Beach and
came to the motel frequently, some weeks every day and some
weeks two or three days. Daksha further testified that she had
talked with the landowners about City’s efforts to revoke the
motel business license and gave them documents regarding the
proceedings, and they knew about the hearing. Thus, there was
no obstacle to the landowners seeking to become involved in the
administrative proceedings—they simply chose not to become
involved. Under these circumstances, the Patels do not have
standing to assert the landowners’ purported rights. (Matrixx
Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 881.)
H. The Patels’ Claims Related to the Constitutionality
of LBMC Section 5.48.010(E)
At the time the administrative proceedings began,
subdivision (A) of LBMC section 5.48.010 required motel and
hotel operators to keep a register with the name and address of
each guest, and subdivision (E) allowed law enforcement to
demand access to the register “at any reasonable hour . . . for the
purpose of determining that the provisions of this section are
met.”
The Patels challenged the constitutionality of this LBMC
section in the administrative hearing before hearing officer Sokol,
who asked for and received briefing on the issue. In his decision,
Sokol stated it was “questionable” whether it was appropriate for
the Inn and therefore did not have a right to procedural due
process.” (Patel et al. v. City of Long Beach (9th Cir. 2014,
No. 09-56699] [nonpub. opn.].)
40
him to consider the constitutional issue but found that the
provision was “a reasonable ordinance geared toward assisting
the local government in seeking to assure that the operator of a
hotel or motel is complying with subsections ([A]) through ([D])
[of LBMC section 5.48.010].” Sokol indicated any facial challenge
to LBMC section 5.48.010(E) was for a court to consider, and as
applied here there was no evidence of any “specific, overly
intrusive search.”
Several years later, in 2015, the United States Supreme
Court held that a similar provision in the Los Angeles Municipal
Code compelling “ ‘[e]very operator of a hotel to keep a record’
containing specified information concerning guests and to make
this record ‘available to any officer of the Los Angeles Police
Department for inspection’ on demand” was “unconstitutional
because it penalizes [hotel operators] for declining to turn over
their records without affording them any opportunity for
precompliance review.” (City of Los Angeles v. Patel (2015) 576
U.S. 409, 412 [135 S.Ct. 2443, 192 L.Ed.2d 435].)
The Patels contend that City’s revocation of their business
license should be reversed because Sokol purportedly wrongly
concluded that LBMC section 5.48.010(E) was reasonable under
the Fourth Amendment. But City did not seek to revoke the
license due to any alleged violation of former LBMC section
5.48.010(E), nor did the hearing officer conclude that the Patels
had violated the provision. The hearing officer’s comments about
the constitutionality of LBMC section 5.48.010(E) were therefore
irrelevant to the result.
The Patels further assert that registration cards obtained
pursuant to the former ordinance were improperly introduced
during the hearing. This is inaccurate; no such registration slips
41
were introduced in the hearing before Sokol. While City did
introduce into evidence two guest registration slips dated
June 23, 2007, City did not obtain these records by invoking
former LBMC section 5.48.010(E). Instead, Jayantibhai
voluntarily produced these slips at the initial administrative
hearing on October 3, 2007. Thus, no reversible error occurred.
I. The Patels’ Claims Regarding Redacted Police
Records and the Proportionality of Revocation as a
Sanction
The Patels title their last argument, “The Evidence Does
Not Support Revocation of the Business License,” but in
substance it is a challenge to the hearing officer’s admission of
several specific documents.20 The documents are records of police
calls involving the Princess Inn which Officer Lee testified about,
from which City’s counsel redacted personal information of
individuals identified in the records. The hearing officer
indicated that he gave the documents limited weight because of
the redactions. The Patels contend that, without this personal
information, they were unable to determine whether or not the
subjects of the records were prosecuted or, if so, what happened.
We review the trial court’s ruling on the admissibility of
evidence at an administrative hearing for abuse of discretion.
(Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th
20 To the extent the Patels do contend City’s revocation of
their license was not supported by substantial evidence, they
have forfeited the argument by failing to present in their brief a
full factual summary that includes the evidence favorable to City.
(Overaa Construction v. California Occupational Safety & Health
Appeals Bd. (2007) 147 Cal.App.4th 235, 251.)
42
620, 629; Molenda v. Department of Motor Vehicles (2009) 172
Cal.App.4th 974, 986.) We first note that the Evidence Code does
not apply to the hearing at issue; instead LBMC section 2.93.030
governed the use of evidence at the hearing. LBMC section
2.93.030 provides, in relevant part: “Any relevant evidence shall
be admitted if it is the sort of evidence on which responsible
persons are accustomed to rely in the conduct of serious affairs,
regardless of the existence of any common law or statutory rule
which might make improper the admission of such evidence over
objection in civil actions.” Government Code section 11513
includes this same standard in its subdivision (b), which governs
administrative hearings held by state agencies.
The Patels make no argument regarding how the redacted
records did not meet this lower standard. Furthermore, the
grounds for the Patels’ objection—that they could not determine
whether the subjects of the records had been prosecuted—fails to
demonstrate any prejudice from the admission of the redacted
documents. City submitted the records to show that its police
department had to respond to numerous service calls involving
the Princess Inn. City did not offer these records to show that
any individuals had been prosecuted or convicted, and thus it was
not pertinent whether criminal proceedings resulted and, if so,
how they turned out.21
The Patels argue that the introduction of the redacted
records violated their due process rights, but the cases they rely
upon involve situations where courts based their decisions on
21 City did offer specific evidence showing that one motel
resident, Milo, had pleaded no contest to a drug offense. The
Patels did not dispute this evidence.
43
evidence which was not disclosed to a party. (See, e.g., Vining v.
Runyon (11th Cir. 1996) 99 F.3d 1056, 1057 [court relied on
evidence it reviewed ex parte and in camera]; Abourezk v Reagan
(D.C. Cir. 1986) 785 F.2d 1043, 1060-1061 [same]; Lynn v Regents
of the University of California (9th Cir. 1981) 656 F.2d 1337,
1345-1346 [same].) That is not the situation here, as the hearing
officer did not rely on any of the redacted information; nor could
he have done so because, like the Patels, he received only the
redacted documents.
Finally, under the same argument heading, the Patels
contend that the City should have considered a sanction less
drastic than revoking the Patels’ business license, such as
modifying the license. The trial court rejected this argument,
concluding that identifying alternative sanctions City could have
imposed does not demonstrate that the sanction City did impose
was an abuse of discretion. We agree. In the context of an
administrative action by a public entity, “there is no legal
requirement to explicitly discuss, consider, and explain the
rejection of all forms of discipline short of the one selected.”
(Oduyale v. California State Bd. of Pharmacy (2019) 41
Cal.App.5th 101, 115.) The Patels make no argument that City’s
decision to revoke their business license is not supported by the
hearing officer’s findings or that those findings were not
supported by the weight of the evidence. (§ 1094.5, subds. (b) &
(c); Fukuda v. City of Angels, supra, 20 Cal.4th at pp. 817, 818.)
Given the evidence adduced before hearing officer Sokol, we find
no abuse of discretion in the sanction imposed. The Patels’
argument is therefore meritless.
44
DISPOSITION
The trial court’s judgment denying the Patels’ petition for
writ of administrative mandate is affirmed. City shall recover its
costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
45