Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BS119148 David P. Yaffe, Judge.
Law Offices of Thomas A. Nitti and Thomas A. Nitti for Plaintiff and Appellant.
Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Alan Seltzer, Chief Deputy City Attorney, and Roger C. Rees, Deputy City Attorney, for Defendant and Respondent.
PERLUSS, P. J.
Lesley Shahriary appeals from the denial of her petition for writ of administrative mandamus seeking to vacate a decision by the City of Santa Monica ordering her to trim a 40-foot-tall bamboo hedge on property she and four other family members own on 18th Street in Santa Monica. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Zoning Administrator’s Determination
In 2005 the Santa Monica City Council adopted interim Ordinance No. 2169 regulating the height of hedges, fences and walls. In addition to increasing the maximum height for a side yard hedge to 12 feet from the previously allowed height of eight feet, Ordinance No. 2169 permitted all hedges to remain at their existing nonconforming heights, even if in excess of 12 feet (that is, the hedge height was “grandparented”), unless an adjacent property owner or tenant filed an objection within 60 days of the effective date of the ordinance. (Ord. No. 2169, § 2, subd. (g).) Upon the objecting neighbor’s demonstration of a “substantial impact on light, shadow, air, or safety, or other objective quality of life impacts” due to the hedge height, the City’s zoning administrator was permitted to order the height be reduced to the extent necessary to ameliorate the identified impacts. (Ibid.)
On October 18, 2005 Lydia Kraske, who owns property adjacent to Shahriary’s, filed an objection to Shahriary’s 40-foot-tall bamboo side yard hedge. Kraske claimed the hedge encroached on the seven-unit, two story apartment building on her property, blocked all the light to it and was dangerous on windy days because of falling debris. Kraske submitted several photographs showing the height of the hedge relative to her building. On October 21, 2005 the City mailed a notice of receipt of Kraske’s objection to “Mr. Minoo Shahriary or Current Property Owner” at 1133 18th Street. The notice stated, “If you are interested in submitting supplemental information in response to the objection it must be received by the City Planning Division no later than November 2, 2005.”
In a handwritten letter dated “Nov. 05” and apparently mailed to the City’s planning division, Shahriary requested, “Please direct all correspondence to Ziba Shahriary at 837 Euclid St.... This is a family owned property but we handle the paperwork through 837 Euclid St.” No information was submitted in response to Kraske’s objection.
On January 23, 2006 a zoning administrator determined the bamboo hedge adversely impacted Kraske’s property. In a written statement of findings and determination, mailed to Ziba Shahriary at 837 Euclid Street, the zoning administrator explained, “The subject hedge is tall and appears to extend over the shared property line. The area of the property that is shaded includes ground floor entries, patios and balconies on the second floor level. It is reasonable to conclude that much of this useable outdoor area has less sunlight due to the height of the subject hedge, which extends far above the balcony level.” The zoning administrator ordered the hedge “shall be trimmed and maintained such that it does not extend across the shared property line, and shall not exceed the height of the complainaint’s two story building nearest the hedge....”
2 The Independent Hearing Officer’s Decision
Shahriary appealed the zoning administrator’s determination to the planning commission, arguing the requirement she trim and maintain the bamboo hedge at the maximum height of Kraske’s building was arbitrary, would endanger the hedge and “would be excessively expensive.” Additionally, Shahriary contended, “No information was sent previously from hedge-owner to the city because the previous letter was sent to the wrong address.”
The planning commission appointed retired Los Angeles Superior Court Judge Joyce Karlin Fahey to hear Shahriary’s appeal. At the hearing on November 7, 2008 Shahriary and two other family members who co-own the property—identified only as Marya and Ira—testified on behalf of the Shahriarys; and Kraske and her son-in-law, who had managed her property since 1992, testified on behalf of Kraske.
At the outset of the hearing Judge Fahey explained the procedure to Shahriary: “[Y]ou are the Appellant, so you can go first. We’re going to do this a little bit by question and answer, and then you can [sic] whatever you want, and then the Appellees, the [Kraskes], can respond in any way that you have, that you would like to, and then because you bear the burden of proof as the Appellant, you get to go last.” In response Mayra inquired about the effect of the initial failure to provide Shahriary with notice of Kraske’s objection and why Shahriary had the burden on appeal. Judge Fahey explained, “Only because of the Appellants. The claimants have the burden with respect to showing a quality of life impact.... So initially, they have the burden to establish a negative impact on their quality of life, with a variety of terms. And there’s a presumption in your favor.” “Now from the findings, it appears to me that she already put that burden on them.” “[S]o she made her findings without input from you, but she made her findings based on a number of things that are set out in the January 23, 2006 letter....”
On November 12, 2008 Judge Fahey issued a final decision. With respect to the failure to provide Shahriary with notice of Kraske’s objection, Judge Fahey found, “[Shahriary] provided the City with her correct mailing address, but the City inadvertently mailed correspondence regarding [Kraske’s] Objection to the incorrect address. As a result, [Shahriary] was compelled to pay approximately $220 for an appeal, and assume the burden of proof of an appellant, rather than as a hedge owner benefitting from a presumption in her favor. [¶] This hearing examiner concurs with [Shahriary’s] assessment of the damage resulting from the City’s error and for that reason, considered the Hearing on November 7th to be a de novo review of the facts.”
Substantively, Judge Fahey found “[Shahriary’s] objection to trimming and maintaining her bamboo hedge along the north side of her property is unreasonable” and ordered Shahriary to cut and maintain the hedge so it does not exceed the roof line of Kraske’s building or encroach on her property. In support of the decision Judge Fahey found, “[Shahriary has] a gardener that tends the property once a week, but he has been instructed to maintain the bamboo only on [Shahriary’s] side of the property.... [¶]... In 1993, [Kraske] erected a four to five foot fence in an attempt to keep the bamboo off her property. Instead, the bamboo has pushed against her fence. [Kraske’s] two-story apartment building has a flat roof and the rain gutters have become clogged several times with debris from the overhanging bamboo hedge.”
3. The Trial Court’s Ruling on the Petition for Writ of Administrative Mandamus
On February 17, 2009 Shahriary filed a petition for writ of administrative mandamus seeking to vacate the zoning administrator’s January 23, 2006 decision and Judge Fahey’s November 12, 2008 final decision. In her briefs in support of the petition, Shahriary argued she was denied her statutory and due process rights to notice and an opportunity to be heard because the City sent the October 21, 2005 notice of Kraske’s objection to 1133 18th Street, not 837 Euclid Street as directed by Shahriary in her November letter, and thus Shahriary did not not provide any information to the zoning administrator prior to the rendering of her determination. In response to the City’s contention notice was properly sent pursuant to Santa Monica Municipal Code section 1.10.040, subdivision (b), which requires notice be sent to the property owner at the address shown on the last equalized county assessment roll, Shahriary contended the City never raised this argument before Judge Fahey and thus forfeited it.
Santa Monica Municipal Code section 1.10.40 provides, “Any required notice shall be given either by personal delivery thereof to the responsible party or by deposit in the United States Mail, in a sealed envelope postage prepaid, addressed to such person to be notified at his or her last known business or residence address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in the post office. [¶] (b) Where real property is involved, written notice shall be mailed to the property owner at the address as shown on the last equalized County assessment roll. [¶]... [¶] (e) The failure of any person to receive any notice required under this Chapter shall not affect the validity of any proceedings taken under this Chapter.”
The City requested judicial notice of a certified copy of the Los Angeles County Assessor’s Record for the property, identifying Minoo, Iradj and Leslie Shahriary and providing the situs address as 1133 18th Street, with no different mailing address. The court did not rule on the request for judicial notice.
Shahriary further argued the de novo hearing before Judge Fahey did not cure the violation of her rights to notice and an opportunity to be heard because she was entitled to two hearings; and, in any event, Judge Fahey erroneously placed the burden of proof on her as the appellant, not Kraske, as the complainant. Shahriary also contended the final decision lacks necessary findings and, to the extent there were findings, those were not supported by the evidence.
The superior court denied Shahriary’s petition, finding the final decision contained the necessary findings, supported by substantial evidence in the record, that the 40-foot bamboo hedge adversely impacted Kraske’s property. Regarding Shahriary’s procedural objections, the court found, regardless of any defects in notice prior to the zoning administrator’s determination, Shahriary had received a fair hearing before Judge Fahey. The court also found Judge Fahey properly understood the burden of proof and “plainly stated during the hearing that the complaining party, Kraske, had the burden to establish a negative impact upon their quality of life, and that there was a presumption in [Shahriary’s] favor.”
CONTENTIONS
Shahriary contends the failure to mail notice of Kraske’s objection to the address she had requested violated her due process rights to notice and an opportunity to be heard and the violation was not cured by the subsequent de novo hearing because Judge Fahey improperly imposed the burden of proof on her to rebut the presumption the hedge had a substantial impact on Kraske’s property. Shahriary also contends the hearing before Judge Fahey was unfair because the final decision does not contain the requisite findings.
Although Shahriary asserts in passing that no substantial evidence supports Judge Fahey’s findings, if any, Shahriary does not seriously pursue this argument. Indeed, while the City contends substantial evidence supports the findings, Shahriary insists in her reply brief the substantial evidence standard of review does not apply to the issues raised, which she contends are all questions of law.
DISCUSSION
1. Standard of Review
Whether a petitioner received a fair administrative hearing is a question of law subject to independent judicial review. (See TWC Storage, LLC v. State Water Resources Control Board (2010) 185 Cal.App.4th 291, 296 [“[w]e exercise independent review on the question of... a fair hearing”]; Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1140 [“[w]e... independently review the fairness of the administrative proceedings as a question of law”]; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443 [“foundational factual findings must be sustained if supported by substantial evidence; however, the ultimate determination of whether the administrative proceedings were fundamentally fair is a question of law to be decided on appeal”].)
2. The Hearing Before Judge Fahey Satisfied Shahriary’s Right to Procedural Due Process
The essential requirements of procedural due process are notice and an opportunity to be heard. (See Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546 [105 S.Ct. 1487, 84 L.Ed.2d 494]; Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279.) “The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” (Cleveland Board of Education, at p. 546.) However, “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” (Boddie v. Connecticut (1971) 401 U.S. 371, 378 [91 S.Ct. 780, 28 L.Ed.2d 113], fn. omitted.) “In determining applicable due process safeguards, it must be remembered that ‘due process is flexible and calls for such procedural protections as the particular situation demands.’” (People v. Ramirez (1979) 25 Cal.3d 260, 268; see Mathews v. Eldridge (1976) 424 U.S. 319, 334-334 [96 S.Ct. 893, 47 L.Ed.2d 18] [“‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands’”]; Saleeby v. State Bar (1985) 39 Cal.3d 547, 565 [“A formal hearing, with full rights of confrontation and cross-examination is not necessarily required. [Citation.] What must be afforded is a ‘“reasonable” opportunity to be heard.’”].)
Generally, even with an interest as significant as revocation of a person’s license to practice his or her livelihood, one properly noticed opportunity to respond at an administrative hearing with an opportunity for review by the superior court is sufficient to satisfy due process. Indeed, the availability of review by the superior court may cure any constitutional violation occurring during the administrative hearing process. “Due process contemplates that somewhere along the line a fair trial be had—not that there be two or three fair trials.” (Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 402 [agent whose license was revoked was not denied due process when insurance commissioner affirmed hearing officer’s decision without reading record; superior court decided case on full record and exercised independent judgment]; accord, Kramer v. State Board of Accountancy (1962) 200 Cal.App.2d 163, 174-175; cf. C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 918 [“Statutory omission of a prior administrative hearing causes no violation of due process when the affected person has a right to a trial de novo in the superior court before he suffers actual loss. The availability of independent review in the superior court salvages an administrative procedure which would otherwise violate the constitutional guarantee.”]; Smith v. City and County of San Francisco (1970) 11 Cal.App.3d 606, 611-612 [“[r]ehearings or appeals are not essential to constitutional due process of law, either in judicial or administrative proceedings [citation] where a hearing has already fully afforded that due process”].)
Even if we assume notice of Kraske’s objection was not properly provided to Shahriary, she was not constitutionally entitled to notice and an opportunity to be heard at two different administrative proceedings to resolve the dispute over the maximum permissible height of her hedge. Any errors in notice relating to the proceeding before the zoning administrator were remedied by the de novo appeal hearing conducted by Judge Fahey.
Nothing in the record on appeal supports Shahriary’s contention the City was advised prior to October 21, 2005 that correspondence regarding the property at 1133 18th Street should be sent to the Euclid Street address. To the contrary, the most reasonable inference is that the “Nov. 05” letter was written after the October 21, 2005 notice of objection had been received. Moreover, from the record in the superior court, it appears Shahriary in fact received notice of Kraske’s objection in accordance with Santa Monica Municipal Code, 1.10.040, subdivision (b). (See fns. 1 & 2 above.) However, at the appeal hearing before Judge Fahey the City did not proffer the county assessor’s records for the Shahriarys’ property that would have demonstrated notice was sufficient. Although extra-record evidence may be admissible in an administrative mandamus proceeding to determine the issue of procedural unfairness (see Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 89; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170, fn. 17; Code Civ. Proc., § 1094.5, subd. (e)) and the City requested the superior court take judicial notice of the assessor’s records, the court did not rule on that request and did not address in its decision whether notice to Shahriary was proper, presumably because it found Shahriary had received a fair hearing before Judge Fahey.
Notwithstanding the de novo nature of the hearing before Judge Fahey, Shahriary argues inadequate notice of the initial administrative hearing deprived her of the statutory presumption in favor of maintaining her hedge at its current height because Judge Fahey placed the burden of proof on her to demonstrate the hedge did not have a substantial injurious impact on Kraske’s property. (See Farr v. County of Nevada (2010) 187 Cal.App.4th 674 [assessment appeals board’s “failure to apply the statutory presumption affecting the burden of proof in favor of the homeowner... at the hearings before it [citation] require[d] reversal of the judgment and a remand to the [b]oard for a new hearing”].) This argument misstates the record. As the superior court found, Judge Fahey understood and plainly stated during the hearing that Kraske had the initial burden to establish a negative impact and there was a presumption in Shahriary’s favor. Judge Fahey’s procedural explanation at the outset of the hearing that Shahriary would “go first” and then “get to go last” because she bore the burden of proof as the appellant does not support Shahriary’s contention Judge Fahey somehow misunderstood and misapplied the fundamental presumption in Shahriary’s favor.
Shahriary’s remaining contention concerning the adequacy of Judge Fahey’s findings—specifically, how the maximum permissible hedge height was determined—is equally without merit. The final decision includes findings that Kraske’s apartment building has a flat roof; the rain gutters had become clogged several times with debris from the overhanging bamboo hedge; Kraske had done everything she could to remedy the situation, including sweeping the debris off the roof; and Kraske had recently replaced the roof and was concerned about the impact from the bamboo. It is apparent that limiting the hedge to the height of Kraske’s building would ameliorate the detrimental impact of the falling debris on Kraske’s roof. Judge Fahey was not required to expressly state in the final decision that trimming the hedge to this height was no more than necessary to ameliorate the adverse impacts.
DISPOSITION
The judgment is affirmed. The City of Santa Monica is to recover its costs on appeal.
We concur: WOODS, J., JACKSON, J.