Case Name:    Wei Wang v. City of Mountain View, et al.

Case No.:        2015-1-CV-288173

Demurrer to Petitioner’s First Amended Petition for Writ of Administrative Mandamus and Order for Injunction Relief by Respondent City of Mountain View

Petitioner Wei Wang (“Wang”) is the sole owner of real property located at 271 Beatrice Street in Mountain View. (First Amended Petition (“FAP”), ¶1.)  Immediately adjacent to petitioner Wang’s property is 293 Beatrice Street (“Subject Property”). (FAP, ¶4.)  In the beginning of 2015, respondent City of Mountain View (“City”) approved [construction] of new a two-story home on the Subject Property. (FAP, ¶5.)  In June 2015, petitioner Wang noticed an unusually short distance between the new house and the shared property line and brought this to respondent City’s attention. (FAP, ¶6.)  The three foot distance between the new house and the shared property line does not have enough space for mitigation for intruding height of the two-story house. (FAP, ¶8.)

Petitioner Wang met with respondent City’s planner (“Ms. Cramblet”) on June 22, 2015 and was told by Ms. Cramblet that the side setback encroachment was allowed pursuant to respondent City’s municipal code section 36.14.85, subdivision (a). (FAP, ¶9.)  Ms. Cramblet subsequently confirmed, on June 26, 2015, that the new two-story house failed to meet limits set forth in respondent City’s municipal code section 36.14.85, subdivision (a). (FAP, ¶11.)  Nevertheless, Ms. Cramblet stated respondent City’s municipal code section 36.14.85, subdivision (e) could apply. (FAP, ¶12.)  Ms. Cramblet’s decision was confirmed by her supervisor and respondent City’s attorneys. (FAP, ¶14.)  Petitioner Wang made repeated requests for a hearing pursuant to California Building Code section 1.8.8.1 and 1.8.8.2 which respondent City ignored. (Id.)

On November 17, 2015, petitioner Wang instituted this action by filing a petition for writ of administrative mandamus and order for injunction relief.  On January 4, 2016, respondent City filed a demurrer.  On April 22, 2016, the court issued an order sustaining respondent City’s demurrer to the petition for writ of administrative mandamus with leave to amend.

On April 29, 2016, petitioner Wang filed a FAP.  On July 1, 2016, respondent City filed a demurrer to the FAP.

  1. Request for judicial notice.

In opposition to the demurrer, petitioner Wang requests judicial notice of California Building Code section 1.8.8.3 and Mountain View City Code section 36.14.85.  Petitioner Wang’s request for judicial notice is unopposed.  Petitioner Wang’s request that the court take judicial notice of California Building Code section 1.8.8.3 and Mountain View City Code section 36.14.85, subdivisions (a) and (e) is GRANTED. (See Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1488, fn. 3; Evid. Code, § 452, subds. (b) and (c).)

 

 

Initially, respondent City argues that the FAP is fatally defective because it was not verified as required by Code of Civil Procedure section 1086. “In all cases of a verification of a pleading, the affidavit of the party shall state [under penalty of perjury] that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true … .” ( Code Civ. Proc., § 446, subd. (a).)  The fifth page of the FAP filed with the court sets forth a verification executed by petitioner Wang on April 29, 2016, in compliance with Code of Civil Procedure sections 446 and 1086.  Respondent City’s demurrer on this basis lacks merit.

 

  • Failure to allege facts sufficient to state a claim.

 

Administrative mandamus is appropriate to inquire “into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal.” ( Code Civ. Proc., § 1094.5, subd. (a).) Administrative mandamus is available if a hearing is required either by law, an organization’s internal rules and regulations, or due process. (Pomona College v. Super. Ct. (“Pomona”) (1996) 45 Cal.App.4th 1716, 1727, fn. 10.) Administrative mandamus is the proper procedure to challenge the outcome of an investigation that required a hearing, even where it is alleged that the respondent failed to hold a hearing and/or consider evidence as required. (Pomona, supra, at p. 1729.) The inquiry in such a case shall extend to the questions “whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” ( Code Civ. Proc., §1094.5, subd. (b).) To have standing to bring a petition for writ of administrative mandamus, a petitioner must have some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. (Medical Bd. of California v. Super. Ct. (2001) 88 Cal.App.4th 1001, 1008-1009.) To demonstrate the requisite beneficial interest, a petitioner must show that he “will obtain some benefit from issuance of the writ or suffer some detriment from its denial.” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1233.)

 

Here, petitioner Wang fails to allege sufficient facts to state a claim for administrative mandamus.  Respondent City argues first that the FAP does not challenge “the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal.”  According to respondent City, Ms. Cramblet’s decision involved ministerial approval performed in conjunction with the review of project plans in a building permit application.  In opposition, petitioner contends Ms. Cramblet’s retroactive application of City’s municipal code section 36.14.85, subdivision (e) amounts to an administrative decision.

 

“The framers of section 1094.5 intended it to set forth ‘the procedure by which judicial review can be had by the writ of mandate after a formal adjudicatory decision by any administrative agency.’ [Citation.] The decisive question is whether the agency exercises an adjudicatory function in considering facts presented in an administrative hearing.”

 

(Temescal Water Co. v. Department of Public Works (1955) 44 Cal.2d 90, 101; see also Keeler v. Superior Court of Cal. In and For Sacramento County (1956) 46 Cal.2d 596, 599—“section 1094.5 is applicable only when a hearing and the taking of evidence among other things are required.”)

 

Petitioner Wang cites no legal authority to support her assertion that Ms. Cramblet’s retroactive decision to apply City’s municipal code section 36.14.85, subdivision (e) required a hearing or the taking of evidence.  Petitioner Wang seemingly acknowledges this requirement at pages 5 – 6 of her opposition.  Petitioner Wang nevertheless argues that administrative mandamus is available where a hearing is required, but does not take place.  However, petitioner Wang’s FAP fails because it does not establish that a hearing was required in the first instance.

 

The FAP also alleges respondent City “proceeded in excess of jurisdiction in refusing to provide an opportunity for Petitioner to appeal Respondent’s decision.” (FAP, ¶15.)  Again, there is no allegation that City’s decision in refusing to provide an opportunity to appeal is a decision that required an administrative hearing and the taking of evidence.  Administrative mandamus is not an available form of relief under these circumstances.

 

In view of the court’s ruling, the court declines to address respondent City’s other arguments.  Respondent City’s demurrer to petitioner Wang’s FAP on the ground that it fails to state facts sufficient to constitute a cause of action [ Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.