Opinion
H048128
10-24-2022
FLORENCE MARTIN O'SULLIVAN, Petitioner and Appellant, v. STEPHANIE WILLIAMS et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 18CV332520
Wilson, J.
Petitioner and appellant Florence Martin O'Sullivan operates a sports bar in the City of Mountain View pursuant to a conditional use permit issued in 2013. For years, the bar has been the subject of noise complaints, police incidents, and violations of the city ordinance and permit conditions. In 2018, in an effort to address the ongoing complaints and violations, the city modified the permit by requiring the removal of the back patio from the property.
O'Sullivan filed a petition for writ of mandate in the trial court, arguing the city had denied him due process by not providing a fair hearing in connection with the modification of the permit. The trial court denied the petition.
On appeal, O'Sullivan contends the city violated his constitutional due process rights by (1) failing to identify the standard of review applicable to his appeal to the city council of the planning division's initial decision to modify the permit; (2) refusing to subpoena a neighbor, who had submitted numerous complaints to the city about the property, to appear at the hearing; and (3) allowing a biased zoning administrator to function as both factfinder and adjudicator at the planning division's initial hearing. He also argues that he had a vested right to continue operating his business pursuant to the unmodified permit, and that the trial court abused its discretion in allowing the city to file an answer to the petition after the statutory time to do so had run.
We reject these contentions and affirm.
I. Factual and Procedural Background
A. Factual background
In 2013, the City of Mountain View (city) issued a conditional use permit (the 2013 CUP) for the property at 2135 Old Middlefield Way to change its existing use from a restaurant serving liquor without entertainment, to a bar and drinking place with live entertainment, as the city's zoning does not allow the combination of live entertainment, restaurant, and bar at the same time. The city's zoning ordinance provides that "[c]onditional use permits allow for activities and uses which are not routinely permitted within the subject zone district and need to be reviewed on a case-by-case basis to determine whether the activity or use is appropriate for a particular location, including its compatibility with existing uses. Any conditional use permit granted may be subject to conditions that will ensure that the use as proposed and conducted will be compatible with the intent of the applicable zone district and other uses in the area."
The property, which operated as Francesca's Sports Bar at the time, sits in the city's commercial service zoning district. Surrounding land uses include commercial, residential, auto body shops, and storage. Various sports bars have operated on the property site since the 1950s. Over the last 30 years, the city has approved various uses in conjunction with the bar via conditional use permits.
As with the previous conditional use permits, the 2013 CUP included conditions intended to address a history of complaints, noise impacts, and police incidents- including discharge of firearms, public drunkenness, fights and assaults-associated with the property, and to ensure that its use would not be detrimental to people residing or working within the neighborhood. For instance, the 2013 CUP restricted live entertainment to Thursdays, Fridays and Saturdays, limited the hours of operation, required all doors to remain closed during operation of the bar, and imposed maximum decibel limits.
Despite the imposed conditions, complaints regarding the use of the property continued after issuance of the 2013 CUP.
In 2015, O'Sullivan became the owner of the business operating at the property, known then and now as O'Malley's Sports Bar (O'Malley's).
A conditional use permit is issued to the property owner and runs with the land. (California Charter School Assn. v. City of Huntington Park (2019) 35 Cal.App.5th 362, 371; Sounhein v. City of San Dimas (1996) 47 Cal.App.4th 1181, 1188.)
Complaints continued in 2016 after O'Sullivan took over, primarily regarding noise, use of the back patio, and the rear door remaining open during live entertainment events. In July 2016, city staff from the planning department met with O'Sullivan to address the complaints and ensure compliance with the 2013 CUP and the city's ordinance. The parties also discussed the possibility of relocating the back patio to the front of the property to reduce noise impacts on adjacent residential properties.
In 2017, the city documented numerous additional violations of the 2013 CUP, involving police, fire, building, and zoning issues. The violations consisted chiefly of live entertainment on unauthorized evenings, propping the back door open resulting in excessive noise, and operating the building as a full restaurant.
As a result, in October 2017, the planning division of the city's community development department (planning division) scheduled the 2013 CUP for review at an administrative zoning hearing. The 2013 CUP included a condition expressly contemplating such review: "OPERATIONAL CRITERIA: In the event that problems with the operational criteria of the business arise, including, but not limited to, parking shortages, delivery truck issues, hours of operation or noise, the Zoning Administrator may hold a public hearing to review the situation and impose new or modified conditions of approval in response to the information received. The public hearing shall be conducted and noticed in accordance with Section A36.60 of the City Code."
In addition, the city's zoning ordinance authorizes a review hearing "to revoke or modify any permit or entitlement granted that one or more of the conditions of the permit have not been met and/or that the improvement, use, or activity allowed by the permit is detrimental to public health, safety or welfare or constitutes a nuisance."
The public hearing to review the 2013 CUP was held on October 25, 2017, at which the property owners, tenants, an adjacent property owner, and city staff from the police, fire, building, and code enforcement departments spoke. The planning manager and zoning administrator, Stephanie Williams, suggested modifying the 2013 CUP to require removal of the back patio, which had been added to the building for outdoor dining when it previously operated as a restaurant. Williams reasoned that removal of the patio would eliminate many of the repeated violations and concerns.
At the conclusion of the hearing, the planning division voted to modify the 2013 CUP to require removal of the patio: "The bar and live entertainment use shall be conducted entirely within the building and no outdoor patio use shall be allowed. The property owner or tenant is required to remove the existing outdoor patio within 60 days of this permit and is required to obtain a building permit for its removal. Failure to remove the outdoor patio is considered a violation of this Conditional Use Permit and may trigger revocation of the Conditional Use Permit ...."
O'Sullivan appealed the planning division's decision to the city council pursuant to the city's municipal code. A hearing on O'Sullivan's appeal was initially set for February 2018, but was continued to May 2018 at O'Sullivan's request. A month before that date, O'Sullivan sought an additional continuance to allow more time to prepare for the hearing, which the city denied, citing the strong public interest in hearing the appeal in a timely manner.
In response, O'Sullivan's attorney again sought a continuance, this time on the ground that the city had not established the standard of review that the city council must apply in determining his appeal. For that reason, he argued, O'Sullivan and his counsel would be "unable to advise the City Council whether: (1) to exercise its independent judgment in making its review and determining the appeal . . . or (2) to uphold the decision of the Zoning Administrator if there was any substantial evidence presented to the Zoning Administrator at her hearing on the matter that rationally supports the decision she made . . . or (3) to apply some different standard."
By separate letter a few weeks before the May 2018 hearing date, counsel for O'Sullivan also requested that the city issue a subpoena to an adjacent resident who had submitted numerous complaints to the city about O'Malley's and prior businesses operating in that location, so that O'Sullivan and his attorney could "present evidence and cross-examine a key witness."
The city denied the request on the ground that the appeal hearing is not conducted in accordance with the formal rules of evidence. It stated that such decisions "are conducted in accordance with City Code sections 36.56.50 (Notice of Hearing) and 36.56.25 (Hearing Procedure), as well as Council Policy A-13-(3)(b) (Quasi-Judicial Proceedings). These provisions provide both notice to the appellant and the opportunity to be heard before the City Council, thus satisfying fundamental due process requirements guaranteed to appellants. In addition, these requirements are applied uniformly to all appeals of Zoning Administrator decisions, thus ensuring every appellant is afforded equal protection under the law. [¶] The City's land use appeals hearings are not conducted in accordance with formal rules of evidence, do not require examination or cross examination of sworn witness, and do not involve formal briefing procedures or the preparation of an administrative record."
The city council then held the public hearing on O'Sullivan's appeal on May 8, 2018. O'Sullivan submitted hundreds of pages of materials in advance, including reports, findings, correspondence, and notes regarding the property. O'Sullivan's counsel spoke at the hearing and argued that the city council should grant the appeal and reinstate the 2013 CUP.
At the conclusion of the hearing, the city council denied the appeal and adopted a resolution finding "that the Zoning Administrator's decision to modify conditions of approval to [the 2013 CUP] is based on substantial evidence and is hereby upheld subject to the Findings herein."
B. Procedural background
O'Sullivan filed a petition for writ of mandate in the trial court in August 2018 pursuant to Code of Civil Procedure section 1094.5, or in the alternative, Code of Civil Procedure section 1085, naming Zoning Administrator Stephanie Williams and the city council as respondents. The petition alleged six causes of action: (1) due process violation-standardless review by the city council of the planning division's decision; (2) due process violation-refusal to issue a subpoena to allow O'Sullivan to compel attendance of witnesses at the city council hearing; (3) due process violation-denial of O'Sullivan's right to cross-examine witnesses testifying at the city council appeal; (4) due process violation-adjudicator bias; (5) violation of constitutional separation of powers requirement; and (6) denial of a fair trial-adjudicator bias.
The city lodged the administrative record for its decision in November 2018, pursuant to Code of Civil Procedure section 1094.5. However, the city failed to file an answer or responsive pleading within 30 days after lodging the administrative record, as required by Code of Civil Procedure section 1089.5.
Code of Civil Procedure section 1089.5 provides: "Where a petition for writ of mandate is filed in the trial court pursuant to Section 1088.5, and where a record of the proceedings to be reviewed has been filed with the petition or where no record of a proceeding is required, the respondent shall answer or otherwise respond within 30 days after service of the petition. However, where a record of the proceeding to be reviewed has been requested pursuant to Section 11523 of the Government Code, or otherwise, and has not been filed with the petition, the party upon whom the petition has been served, including any real party in interest, shall answer or otherwise respond within 30 days following receipt of a copy of the record."
The parties submitted briefs and the court held a hearing on the merits of the petition in August 2019.
At the hearing, the trial court ordered supplemental briefing after O'Sullivan argued for the first time that the city had failed to answer or otherwise respond to the petition as required by Code of Civil Procedure section 1089.5, so the allegations in the petition should be deemed true.
The parties submitted supplemental briefs, and the city requested that the court allow it to file a belated answer, pursuant to Code of Civil Procedure section 473, subdivision (a)(1). O'Sullivan objected and filed a motion to strike the answer.
The trial court allowed the city to file its answer and denied O'Sullivan's motion to strike. The court then denied the petition for writ of mandate, finding that O'Sullivan had received a fair, final hearing before the city council and had failed to demonstrate adjudicator bias.
O'Sullivan timely appealed.
II. Discussion
A. Standard of review
We review O'Sullivan's due process claims de novo," 'because the "ultimate determination of procedural fairness amounts to a question of law." '" (Severson &Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 944, quoting In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.)
Code of Civil Procedure section 1094.5, which governs judicial review of adjudicatory administrative proceedings, "identifies three areas into which the court may inquire: 'whether the [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.'" (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 96 (Gonzalez), quoting Code Civ. Proc., § 1094.5, subd. (b).)
"The statute's requirement of a' "fair trial"' means that there must have been 'a fair administrative hearing.'" (Gonzalez, supra, 223 Cal.App.4th at p. 96, quoting Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1730 (Pomona College).) "A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law." (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)
"The' "fair trial"' requirement of [Code of Civil Procedure] section 1094.5 is not synonymous with constitutional due process and does not mandate 'a formal hearing under the due process clause.'" (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463 (Pinheiro), quoting Pomona College, supra, 45 Cal.App.4th at p. 1730.) "What is required is simply a 'fair administrative hearing' [citation], which affords the appellant a '"' "reasonable opportunity to be heard." '" '" (Pinheiro, supra, at p. 1463, quoting Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1297 (Rodriguez).)
Separately, we review the trial court's decision to allow the city to file its late answer pursuant to Code of Civil Procedure section 473, for abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
B. The city did not deny O'Sullivan due process
O'Sullivan argues the city denied him due process by: (1) failing to identify and apply the correct standard of review for his appeal of the planning division's decision to modify the 2013 CUP; (2) refusing to issue a subpoena to a neighbor who had complained to the city and testified at the planning division hearing; and (3) allowing a biased zoning administrator to improperly function as both fact finder and adjudicator in deciding to modify the 2013 CUP.
1. Standard of review for appeal to city council
O'Sullivan argues the city council applied the incorrect standard of review to his appeal of the planning division's decision, and that there was no "established standard of review by which the City referred to in order to decide the appeal." He also contends that the city's failure to identify an appropriate standard of review "resulted in a deprivation of [his] right to conduct his business in the manner by which he had placed much reliance."
We find the arguments unavailing. First, O'Sullivan has not identified any requirement that a city council affirmatively announce in advance what standard of review it will be applying at such a proceeding and we are not aware of any. Accordingly, the alleged failure to identify a standard does not constitute a violation of his due process rights.
Second, O'Sullivan has not demonstrated that the city council applied the incorrect standard or otherwise denied him a fair trial or a reasonable opportunity to be heard. (Rodriguez, supra, 51 Cal.App.4th at p. 1297.)
The staff report for the city council hearing stated that "the appellant has the burden of proof to demonstrate the Zoning Administrator's decision was not supported by substantial evidence," and that "[s]taff finds the appellant does not present substantial evidence to support the appeal." The city council ultimately adopted a resolution finding "that the Zoning Administrator's decision to modify conditions of approval to [the 2013 CUP] is based on substantial evidence and is hereby upheld subject to the Findings herein."
In the trial court, however, the city argued, as it does now on appeal, that the city council applied a de novo standard.
The general rule, subject to certain exceptions, is that a "hearing before a city council on an application for a CUP after hearing by a planning commission is a proceeding de novo." (BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1221.) Notwithstanding its initial statements that it was applying a substantial evidence standard of review, the city council appears to have applied a de novo standard, as it considered materials and testimony submitted by O'Sullivan and others that had not been presented to the planning division.
Regardless of which standard applied here, though, O'Sullivan has not demonstrated that he was denied a fair hearing and the opportunity to be heard.(Rodriguez, supra, 51 Cal.App.4th at p. 1297.) The record shows that the hearing was properly noticed and O'Sullivan has not argued to the contrary. The city also continued the hearing four months at O'Sullivan's request to grant him additional time to gather materials and prepare. Although O'Sullivan requested an additional continuance beyond May 2018 which the city denied, he has not demonstrated that the denial prevented him from receiving a fair hearing or being heard. In fact, the city notified O'Sullivan well in advance of the hearing that he could submit materials and present witnesses. And, in fact, O'Sullivan submitted several hundred pages of materials which the city considered, and his attorney spoke at the hearing and presented his arguments.
O'Sullivan has not argued that he was denied a fair hearing based on the city's inconsistent positions regarding the applicable standard of review.
The record shows O'Sullivan received a fair hearing and he has not articulated any way in which the city's failure to announce the applicable standard of review in advance, or its alleged application of the incorrect standard, rendered the proceeding unfair or prevented him from gathering or presenting information.
2. Subpoena
O'Sullivan argues that the city's refusal to subpoena a neighbor who had submitted numerous complaints regarding the property's use constituted a denial of due process. He claims he requested the subpoena so his attorneys could cross-examine and impeach the neighbor's prior testimony from the planning division hearing, which would have allowed him to "show bias and pretext for the alleged violations fabricated by" the neighbor. In addition, he argues the trial court failed to apply the constitutional balancing test for determining whether due process was provided.
We are unpersuaded. First, even where a city has the authority to issue a subpoena, it is not required to do so upon request and its refusal to do so" 'is not a per se violation of [the] right to procedural due process.'" (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 303 (Mohilef).) In Mohilef, the plaintiff argued he was entitled to various due process protections in connection with a nuisance abatement action brought against him by the City of Los Angeles. (Ibid.) The court agreed that due process protections applied to the proceeding, but explained that they only required notice and an opportunity to be heard. (Ibid.) In the context of the nuisance abatement proceeding, "it is not necessary that he receive the full panoply of procedural protections accorded in a judicial trial, such as the ability to cross-examine witnesses under oath, to subpoena witnesses, or to engage in discovery." (Id. at p. 276.)
The court noted that in some instances due process could require an agency to subpoena witnesses where, "absent their testimony, the agency's ultimate decision would be based solely on their written reports." (Mohilef, supra, 51 Cal.App.4th at p. 304, citing McLeod v. Board of Pension Commissioners (1970) 14 Cal.App.3d 23, 25-29.) However, that was not the case in Mohilef. (Mohilef, supra, at p. 304.)
Nor is it the case here, where the"' "fair trial"' requirement of [Code of Civil Procedure] section 1094.5 is not synonymous with constitutional due process." (Pinheiro, supra, 245 Cal.App.4th at p. 1463.) Also, the city based its decision on extensive evidence of complaints and violations, as well as inspections, reports and testimony regarding such violations from the city's police, fire, building and planning departments. It is clear from the record that the city did not base its decision solely on the neighbor's written testimony, and their refusal to issue a subpoena did not result in a denial of due process.
Lastly, O'Sullivan suggests his inability to subpoena the neighbor prevented him from presenting evidence. That is incorrect. As summarized above, O'Sullivan was afforded the opportunity to present evidence and did so.
3. Impartial adjudicator
O'Sullivan argues he was denied due process when Williams, the zoning administrator, acted as both fact witness and decisionmaker at the October 25, 2017 planning division hearing. According to O'Sullivan, Williams gave testimony at that hearing and then adjudicated the evidence before her, thereby "violating the requirement that whenever due process requires a hearing, the adjudicator must be impartial."
However, the planning division's decision was not the final decision by the city; instead, the city council's decision following O'Sullivan's appeal of the planning division's decision was the final agency action. It is well-settled that Code of Civil Procedure section 1094.5, only permits judicial review of a final agency decision, and does not authorize piecemeal review of interim decisions. (Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1055 [" 'need for a final decision is regarded as an aspect of the exhaustion requirement' "].) Here, O'Sullivan appealed the planning division's decision to the city council pursuant to the city's Municipal Code section 36.56.50. Accordingly, the planning division's decision at the October 2017 hearing was not the city's final decision.
Moreover, the city council reviewed the planning division's decision de novo; thus, even if the zoning administrator had proceeded improperly in some manner, it would be irrelevant except insofar as it resulted in the city council denying O'Sullivan a fair hearing, something he has not demonstrated.
For these reasons, we reject O'Sullivan's contention that he was denied due process on this ground.
C. O'Sullivan did not have a fundamental vested right in the continuation of the 2013 CUP without modification
O'Sullivan argues he had a fundamental vested right in the continued operation of O'Malley's pursuant to the 2013 CUP, thereby providing him "additional safeguards from erroneous deprivation under principles of due process," and requiring "formal hearing procedures that include the right of confrontation and cross-examination."
" 'Whether an administrative decision substantially affects a fundamental vested right must be decided on a case-by-case basis. [Citation.] Although no exact formula exists by which to make this determination [citation] courts are less sensitive to the preservation of purely economic interests. [Citation.] In deciding whether a right is "fundamental" and "vested," the issue in each case is whether the" 'affected right is deemed to be of sufficient significance to preclude its extinction or abridgment by a body lacking judicial power.'" '" (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1526 (Goat Hill Tavern), quoting 301 Ocean Ave. Corp. v. Santa Monica Rent Control Bd. (1991) 228 Cal.App.3d 1548, 1556.)
O'Sullivan claims a "vested right subject to constitutional due process is implicated in this case" because he "expended sums in reliance on the patio and its potential for increased number of patrons, performed other improvements inside the bar to match the patio, maintained his liquor license, and O'Malley's had been in continuous operation for nearly four (4) years prior without incident."
"Under California law, the continued operation of an established, lawful business is subject to heightened protections." (County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 53, citing Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1529.) In Goat Hill Tavern, a tavern had been operating as a legal nonconforming use for more than 35 years when the city declined to renew a conditional use permit for an adjacent space, which would have put the tavern out of business altogether. (Goat Hill Tavern, supra, 6 Cal.App.4th 1519.) The court of appeal determined that the revocation extinguished a vested right to continued operation of the business. (Ibid.)
We are not confronted with any such facts here. The city did not extinguish O'Sullivan's right to continue operating O'Malley's; instead, it merely imposed a condition on its continued operation. Nor did the city revoke the 2013 CUP; instead, it modified it pursuant to its own terms, which expressly provided: "[i]n the event that problems with the operational criteria of the business arise, including, but not limited to, parking shortages, delivery truck issues, hours of operation or noise, the Zoning Administrator may hold a public hearing to review the situation and impose new or modified conditions of approval in response to the information received."
In short, O'Sullivan did not have a vested right to continued operation of O'Malley's without modification of the 2013 CUP pursuant to its own terms. "A CUP is conditional by definition, and the violation of conditions attached to its grant may lead to revocation." (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367, citing 9 Cal. Real Estate Law &Practice (1998) Nonconforming Uses, § 262.05[3] p. 262-19.)
D. The trial court did not abuse its discretion allowing the city to file its answer
O'Sullivan argues the trial court abused its discretion by allowing the city to file its belated answer, and not deeming the factual allegations in the petition admitted.
We disagree. A trial court is empowered, "in furtherance of justice, and on any terms as may be proper," to "allow an answer to be made after the time limited by this code." (Code Civ. Proc., § 473, subd. (a)(1).) Trial courts are vested with broad discretion in deciding whether to grant relief pursuant to this statute. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
Here, the trial court held that, "[u]nder the circumstances presented . . ., including that the petition essentially raises legal and not factual issues, the City timely lodged the AR [administrative record] that contains the relevant factual evidence, the City appeared at the pre-hearing case management conference, the City timely filed its memorandum of points and authorities in opposition to the petition per the court's directive and its arguments were responsive to O'Sullivan's, and O'Sullivan did not raise the issue earlier and has been in no way prejudiced by the City's failure to have previously filed an answer, the court allows the belated filing of the City's answer and denies O'Sullivan's motion to strike that pleading."
In addition, the court noted that Code of Civil Procedure section 475, "further provides that the court must at every stage disregard any error or defect in the pleadings or proceedings that, in the opinion of the court, does not affect the substantial rights of the parties. Such is the case here, as the court considers the substance of the City's memorandum of points and authorities, which was duly and timely filed, to be far more important than its answer. There is also a strong policy favoring disposition on the merits (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-855) and writs cannot be granted by default ([Code Civ. Proc.,] § 1088)."
We perceive no abuse of discretion in the trial court's decision to allow the city to file its answer. The city actively defended the lawsuit, promptly lodged the administrative record, and made both O'Sullivan and the trial court aware of its legal position. O'Sullivan has not identified any prejudice from the city's belated answer and we cannot discern any.
On appeal, O'Sullivan has not attempted to explain how the trial court abused its discretion. Instead, he argues only why, if the allegations in the petition are deemed admitted, the requested writ should be granted. However, because the trial court properly exercised its discretion to allow the belated answer to be filed, the allegations in the petition are not deemed admitted in the first place.
O'Sullivan argues the trial court "improperly rejected a long line of cases that deemed allegations admitted in similar circumstances." However, the cases O'Sullivan cites are inapposite, as they did not deal with a trial court's exercise of discretion to allow a late-filed answer; instead, they dealt with instances where there was no answer at all.We are not confronted with such facts here.
See, e.g., Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521 [respondent superior court's failure to answer petition constituted deemed admission of allegations]; Block v. Superior Court (1998) 62 Cal.App.4th 363 [respondent did not answer petition, which was denied as moot]; Lewis v. Superior Court (1999) 19 Cal.4th 1232 [holding that appellate courts not required to afford parties opportunity for oral argument before issuing a peremptory writ in first instance]; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365 [reciting general rule that failure to file return to petition, instead of points and authorities, deems allegations admitted].
III. Disposition
We affirm the trial court's denial of the petition for writ of mandate. The City of Mountain View is awarded its costs on appeal.
WE CONCUR: Greenwood, P.J. Danner, J.