Lippman v. City of Oakland

• Decision Date: 22 December 2017
• Docket Number: A141865
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas LIPPMAN, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Respondent.

19 Cal.App.5th 750

229 Cal.Rptr.3d 206

Thomas LIPPMAN, Plaintiff and Appellant,

v.CITY OF OAKLAND, Defendant and Respondent.

A141865

Court of Appeal, First District, Division 4, California.

Filed December 22, 2017

Claassen Professional Corporation, John Stuart Claassen, Oakland, Pacific Legal Foundation, Damien M. Schiff, Jonathan Wood, J. David Breemer, Sacramento for Plaintiff and Appellant.

Barbara J. Parker, City Attorney, Otis McGee, Jr., Chief Assistant City Attorney, Jamilah A. Jefferson, Deputy City Attorney, for Defendant and Respondent.

Kennedy, J.^* Plaintiff Thomas Lippman sought a writ of mandate ( Code Civ. Proc., § 1085 )¹ to compel defendant City of Oakland (City) to have an appeals board or the governing body of the City review his citations for blight and substandard living conditions on his rental property. Lippman claimed the City violated the California Building Code (Cal. Code Regs., tit. 24, § 1.8.8) (Building Code) by having a single hearing officer, who had been appointed by the very entity that cited him, hear his claims. The trial court determined the City's administrative appeals process complied with the Building Code. We disagree and will reverse.

I. BACKGROUND

Lippman owns rental property in the City. In 2009 and 2010, the City's Building Services Department (Building Services) cited Lippman for blight and substandard living conditions on the property. He disputed the citations and eventually sought administrative review.

In April and June 2012, a hearing officer appointed by Building Services heard Lippman's appeals. The hearing officer received testimony from Lippman and various City representatives. After receiving oral testimony and reviewing the relevant notices and invoices, the hearing officer found that Lippman was (or had been) in violation of various City ordinances for each of the citations. The hearing officer further found that the testimony of the witnesses, as well as Lippman, supported a finding that the property was blighted in 2009 and abatement did not occur until after fees were assessed.

The hearing officer found that the testimony of the witnesses, including Lippman, supported a finding that the substandard living conditions inside the property had not been abated. Lippman's appeals were denied.

After receiving the appeal decisions from the hearing officer, Lippman filed the underlying writ petition. In the petition, he alleged, among other things, that his appeals should have been heard before the city council or an appeals board instead of a single hearing examiner.

The parties briefed the merits of the petition. After hearing the arguments of the parties, the trial court requested supplemental briefing on one issue—whether there is a conflict between the Oakland Municipal and Planning Codes (OMPC) section 15.08.410 et seq. and the 2010 Building Code section 1.8.8.1. If a conflict existed, the trial court asked whether the matter at issue in the petition was a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state.

The trial court held another hearing and took the matter under submission. After further consideration, the trial court granted the petition in part. As to the administrative writ seeking review of the blight citations, the writ was granted, the appeal decision was set aside, and the City was directed to either refund the fees Lippman paid on these citations or hold a new administrative hearing on the blight citations only. The City elected to notice a new administrative hearing on these citations. As to the administrative writ seeking review of the substandard living conditions citation, the writ was denied.

As to the traditional writ seeking to compel the City to hear administrative appeals before the city council or an appeals board pursuant to the Building Code, the writ was denied. The trial court issued a decision stating that, inter alia, "the relevant provisions of the State Housing Law and State Building Code, although not free of ambiguity, do not bar a city from authorizing its enforcement agency to resolve such appeals by appointing a hearing examiner to decide them." The trial court determined it did not have to reach the "difficult constitutional question" of whether the underlying issue was a matter of "statewide concern" where state law would regulate the City's activity because it found no conflict existed in the first instance.

Lippman filed this appeal, challenging only the denial of his petition seeking traditional mandamus. Specifically, his appeal is limited to the issue of whether the City's current administrative appeal process for deciding appeals from Building Services citations conflicts with the Building Code and, if a conflict exists, whether the matter at issue is a "municipal affair" governed by the City's municipal code or one of "statewide concern" governed by the Building Code.

II. DISCUSSION

In determining whether the trial court erred in denying Lippman's petition for writ of mandate, we first must determine whether there is a conflict between the City's municipal code and the 2010 Building Code. If such a conflict exists, we must decide whether Lippman's petition involves a "municipal affair" subject to regulation by the City or one of "statewide concern" subject to regulation by the state. In resolving these questions, we are guided by established principles of law.

A. Standard of Review

" ‘A traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a public entity to perform a legal and usually ministerial duty.’ " ( American Federation of State, County & Municipal Employees v. Metropolitan Water District (2005) 126 Cal.App.4th 247, 261, 24 Cal.Rptr.3d 285.) "In reviewing a trial court's judgment on a petition for writ of ordinary mandate, ... we exercise our independent judgment on legal issues, such as the interpretation of statutory ... provisions." ( Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53, 80 Cal.Rptr.2d 137.)

In interpreting a statute, "[w]e begin as always ‘with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.’ [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] ‘Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ " ( Trope v. Katz (1995) 11 Cal.4th 274, 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.)

B. Principles of Local Government Law

Oakland is a charter city for purposes of "home rule" authority. ( Cal. Const., art. XI, § 5, subd. (a).) A charter city " ‘ha[s] exclusive power to legislate over "municipal affairs." ’ " ( Cawdrey v. City of Redondo Beach (1993) 15 Cal.App.4th 1212, 1218, 19 Cal.Rptr.2d 179, citing Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 704, 209 Cal.Rptr. 682, 693 P.2d 261.) The home rule represents "an ‘affirmative constitutional grant to charter cities of "all powers appropriate for a municipality to possess ..." and [includes] the important corollary that "so far as ‘municipal affairs' are concerned," charter cities are "supreme and beyond the reach of legislative enactment." ’ " ( State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 556, 143 Cal.Rptr.3d 529, 279 P.3d 1022 ( State Building ).) But "as to matters of statewide concern, charter cities remain subject to state law. ( Bishop v. City of San Jose (1969) 1 Cal.3d 56, 61–62 [81 Cal.Rptr. 465, 460 P.2d 137] [citations].)" ( Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 315–316, 152 Cal.Rptr. 903, 591 P.2d 1.)

The relevant case law has identified the steps we must take in resolving this controversy. "First, a court must determine whether there is a genuine conflict between a state statute and a municipal ordinance. [Citations.] Only after concluding there is an actual conflict should a court proceed with the second question; i.e., does the local legislation impact a municipal or statewide concern?" ( Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1813, 19 Cal.Rptr.2d 764 ; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 364, 87 Cal.Rptr.2d 654, 981 P.2d 499 ; Rider v. City of San Diego (1998) 18 Cal.4th 1035, 1054, 77 Cal.Rptr.2d 189, 959 P.2d 347.) Finally, if a genuine conflict is presented and the state statute qualifies as a matter of statewide concern, "we next consider whether it is both (i) reasonably related to the resolution of that concern, and (ii) ‘narrowly tailored’ to limit incursion into legitimate municipal interests." ( Johnson v. Bradley (1992) 4 Cal.4th 389, 404, 406, fn. 17, 14 Cal.Rptr.2d 470, 841 P.2d 990.)

C. The municipal code conflicts with the Building Code.

Lippman argues the City's appeals process before a single hearing officer conflicts with the procedures set forth in the Building Code. We agree.

1. State Law

The State Housing Law ( Health & Saf. Code, § 17910 et seq. ) provides statewide construction and occupancy standards for buildings used for human habitation. The State Housing Law incorporates into state law the Building Code, as well as various uniform codes, including the Uniform Housing Code. (Id. § 17922.) The State Housing Law, the building standards published in the Building Code, and rules and regulations promulgated therein "apply in all parts of the state" to apartment houses, hotels, motels, and dwellings, and buildings and structures accessory thereto. (Id. § 17950.)

At issue in this appeal is section 1.8.8 of the 2010 Building Code, entitled "APPEALS BOARD ," and it provides as follows:

"1.8.8.1 General. Every city, county, or city and county shall establish a process to hear and decide appeals of orders, decisions and determinations made by the...