Filed 2/14/20




                              CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIFTH APPELLATE DISTRICT

 JUNAID LATEEF,
                                                                     F076227
            Plaintiff and Appellant,
                                                           (Super. Ct. No. MCV072672)
                   v.

 CITY OF MADERA, et al.,                                           OPINION
            Defendants and Respondents.



        APPEAL from a judgment of the Superior Court of Madera County. Michael J.
Jurkovich, Judge.
        Solomon, Saltsman & Jamieson, Ryan M. Kroll for Plaintiff and Appellant.
        Law Offices of Gregory L. Myers and Gregory L. Myers for Defendants and
Respondents.
                                           -ooOoo-
        Junaid Lateef appeals from a judgment in favor of the City of Madera (city) and
the Madera City Council (city council) (collectively respondents), which denied his
petition for administrative mandamus and requests for declaratory and injunctive relief.
At issue is the meaning of Madera Municipal Code section 10-3.1310(E),1 which sets
forth the minimum number of council votes required to overturn the Madera Planning


        1   All unlabeled statutory references are to the Madera Municipal Code.
Commission’s (commission) denial of an application for a conditional use permit: “A
five-sevenths vote of the whole of the Council shall be required to grant, in whole or in
part, any appealed application denied by the Commission.”
       Lateef appealed the denial of his application to the seven-member city council,
which voted four-to-one to grant his appeal; however, one councilmember recused
himself and another council seat was vacant. The city council denied Lateef’s appeal,
ruling that he needed five votes (five-sevenths times the total membership of the council)
to prevail.
       Lateef contends the city council was required to grant his appeal because the
ordinance requires a five-sevenths vote of those councilmembers present and voting, and
he received five-sevenths of the five votes that were cast, namely four votes. He also
contends he was denied a fair trial because the recused councilmember and vacant seat
were included as councilmembers when determining the number of votes needed to grant
his appeal. Finding no merit to Lateef’s contentions, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In 2015, Lateef submitted an application to the commission seeking approval to
operate a neighborhood convenience store and to obtain conditional use permits to sell
tobacco products, beer and wine. On December 8, 2015, Charles Rigby, who was a
sitting councilmember and the city’s mayor pro tem, sent an email to the commission’s
members urging them to vote against the application. Following a hearing held later that
day, the commission denied the application.
       Lateef appealed the commission’s denial to the city council, as provided in
section 10-3.1309.2 According to section 10-3.1310, which sets forth the city council’s
action on such appeals, once an appeal is submitted, the city council sets a date and time


       2
       Section 10-3.1309 provides for a written appeal to the city council of any
commission action taken in connection with an application for a use permit.


                                              2.
for a public hearing, and is required to render its decision within 60 days of the filing of
the appeal. (§ 10-3.1310(A) & (C).) If the city council grants an appeal from the
commission’s denial, it must make written factual findings setting forth where the
commission’s findings were erroneous. (§ 10-3.1310(D).)
       At the time Lateef submitted his appeal, former subsection 10-3.1310(E) provided:
“A four-fifths vote of the whole of the Council shall be required to grant, in whole or in
part, any appealed application denied by the Commission.” When section 10-3.1310 was
adopted in 1961, the city council was comprised of five members. Because the number
of councilmembers increased to seven in 2012, the city decided to amend the four-fifths
majority vote required to overturn a commission decision to reflect that change. To give
the city time to amend the section, Lateef’s attorney agreed to continue the hearing on the
appeal, which was set for January 20, 2016, and waive any time deadlines by which the
city council must render a decision. At a January 6, 2016 city council meeting, the city
council postponed the hearing to April 6, 2016.
       Prior to the appeal hearing, the city council adopted a resolution amending
subsection 10-3.1310(E), which now reads: “A five-sevenths vote of the whole of the
Council shall be required to grant, in whole or in part, any appealed application denied by
the Commission.” In a report to the city council recommending this change, city staff
explained the decision to recommend a five-sevenths vote in place of the four-fifths vote
requirement: “The 1961 ordinance requires an 80% (4/5ths) vote to grant an appeal of a
Planning Commission decision. In assessing a corresponding percentage of a seven-
member board, a 5/7ths vote in favor equates to a 71% vote required to grant the appeal.
A 6/7ths vote equates to an 86% favorable vote necessary to grant an appeal. [¶] It is
recommended that any amendment not create a more egregious appeal standard. Thus,
although the 86% (6/7) standard more closely aligns with the current 80% appeal
standard, the 71% (5/7) standard is recommended so as to more closely align with the
purpose and intent of the ordinance which is not necessarily to restrict Council

                                              3.
reevaluation of a Planning Commission action, but instead to allow for fair reevaluation
of Commission decisions when appealed to the City Council by an interested party.”
       The hearing on Lateef’s appeal began on April 6, 2016 and was continued to
May 4, 2016. At both hearings, of the seven city council seats, one was vacant and
Rigby, though present, recused himself due to his prior communication with the
commission, leaving only five members to vote.
       At the May 4, 2016 hearing, after all interested parties were heard, the city council
voted four to one in favor of granting Lateef’s appeal and reversing the commission’s
decision to deny his application. After the roll call was taken, the city clerk announced:
“Motion passes 4 to 1.” The city attorney then stated, “actually it needed five-sevenths to
pass. That’s on the appeal.” The city clerk declared, “[c]orrection for the record, motion
fails.” After the mayor repeated, “[m]otion fails,” the city clerk added, “[b]ased on the
requirements in the Municipal Code.”
This Lawsuit
       Lateef subsequently filed a verified petition for writ of mandate, and complaint for
declaratory and injunctive relief, in superior court against the city and the city council.
Lateef sought a writ of administrative mandamus pursuant to Code of Civil Procedure
section 1094.5 to set aside the city council’s denial of his appeal and instead enter an
order granting it, based on allegations the city abused its discretion, failed to proceed in a
manner required by law, denied him a fair hearing, and exceeded its jurisdiction “by
ignoring the 71% of quorum standard imposed by MMC § 10-3.1310, and instead
requiring that 100% of quorum vote in favor of granting Mr. Lateef’s appeal and his
Application ….” Lateef alleged section 10-3.1310 was “too vague to be enforceable” and
the city council’s denial was not supported by the findings because 80 percent of the
quorum voted to grant his appeal.
       In his declaratory relief claim, Lateef alleged an actual controversy existed
between the parties regarding whether subsection 10-3.1310(E) requires 71 percent of the

                                              4.
quorum of the city council or 71 percent of all members of the city council. Lateef
requested a determination that subsection 10-3.1310(E) requires five-sevenths of the
quorum of the city council to vote in favor of an appeal in order to grant any appeal from
an application the commission denied. Finally, Lateef sought an injunction requiring
respondents to interpret subsection 10-3.1310(E) to require a favorable vote by 71
percent of the quorum of the city council.
       The parties stipulated to the trial court deciding all issues presented in the petition
for administrative mandamus and the causes of action alleged in the complaint on the
stipulated administrative record and judicially noticed documents. After receiving
briefing by the parties, the trial court held two days of hearings and received
supplemental briefing. The trial court issued a tentative statement of decision denying all
of Lateef’s requests, which the trial court subsequently adopted as its statement of
decision after neither party submitted objections.
       In its detailed statement of decision, the trial court rejected Lateef’s interpretation
of subsection 10-3.1310(E), namely that the minimum votes to prevail on appeal is
calculated based on the voting quorum and not all of the city council’s members. Instead,
the trial court determined the term “whole of the Council” means all of the members of
the council, therefore five affirmative votes were required for Lateef to prevail on his
appeal.
       On Lateef’s administrative mandamus claim, the trial court found, as relevant
here: (1) the city did not proceed without, or in excess of, jurisdiction, and Lateef
received a fair trial, because five councilmembers were present and voting, and if Lateef
wanted to increased his chances of prevailing, he could have requested a continuance
until the vacant seat was filled; (2) there was no prejudicial abuse of discretion, since five
affirmative votes were required to prevail, five councilmembers voted at the appeal
hearing, and as only four voted in his favor, Lateef lost his appeal; and (3) section 10-
3.1310(E) is not too vague to be enforceable.

                                              5.
       As for Lateef’s declaratory and injunctive relief claims, the trial court found such
remedies were not available because Lateef’s administrative mandamus action provided
an adequate remedy for resolving the issues he raised. The trial court further found that
even if it reached the merits of Lateef’s claims, it would declare that subsection 10-
3.1310(E) requires “five-sevenths of the council as a whole (5 of 7) to vote in favor of an
appeal in order to grant, in whole or in part, any appealed application denied by the
Commission” and, given this interpretation, it would deny the request for injunctive relief
as improper.
       Judgment subsequently was entered in respondents’ favor.
                                      DISCUSSION
       On appeal, Lateef challenges only the denial of his writ of administrative
mandamus. He argues the proper interpretation of subsection 10-3.1310(E) is that it
“requires that five-sevenths of those councilmembers present and voting at the appeal
hearing vote in favor of granting the appeal in order for the appellant to prevail on
appeal ….” Under that interpretation, the city council’s four-to-one vote in his favor was
sufficient to grant his appeal. He alternatively argues that even if subsection 10-
3.1310(E) requires five-sevenths of the seven members of the city council to vote in favor
of an appeal, he was denied a fair trial because the recused councilmember and vacant
seat were included in the total number of councilmembers used to calculate the number of
votes required to grant his appeal.
Standard of Review
       “The question presented by a petition for writ of administrative mandate is
whether the agency or tribunal that issued the decision being challenged ‘proceeded
without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was
any prejudicial abuse of discretion.’ [Citation.] ‘Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.’ ” (Doe v.

                                             6.
University of Southern California (2018) 28 Cal.App.5th 26, 34; see Code Civ. Proc.,
§ 1094.5, subd. (b).)
          “In mandate proceedings, courts of appeal review legal questions, including
questions of statutory interpretation, de novo.” (Goldstein v. California Unemployment
Insurance Appeals Board (2019) 34 Cal.App.5th 1006, 1013 (Goldstein); see
Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251 (Christensen)
[“Interpretation of a statute or regulation is a question of law subject to independent
review”].) “ ‘[W]e apply our independent review without reference to the trial court’s
actions.’ ” (Christensen, supra, 15 Cal.App.5th at p. 1251.)
          We also “review the fairness of the administrative proceeding de novo.” (Doe v.
University of Southern California, supra, 28 Cal.App.5th at p. 34; see Doe v. University
of Southern California (2016) 246 Cal.App.4th 221, 239 [“ ‘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’ ”].) Code of Civil
Procedure section 1094.5, subdivision (b)’s “requirement of a ‘ “fair trial” ’ means that
there must have been ‘a fair administrative hearing.’ ” (Gonzalez v. Santa Clara County
Dept. of Social Services (2014) 223 Cal.App.4th 72, 96.)
The Interpretation of Subsection 10-3.1310(E)
          We are asked to interpret subsection 10-3.1310(E): “A five-sevenths vote of the
whole of the Council shall be required to grant, in whole or in part, any appealed
application denied by the Commission.” The issue, as framed by Lateef, is whether this
subsection requires an affirmative vote by (1) five-sevenths of those councilmembers
present and voting, or (2) five-sevenths of the seven members of the city council. Lateef
contends the correct interpretation is the former one, while respondents contend it is the
latter.
          The rules of statutory construction applicable to statutes are also applicable to
municipal ordinances. (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502; County of

                                                7.
Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668.) When interpreting statutory
language, “ ‘[w]e begin with the fundamental rule that our primary task is to determine
the lawmakers’ intent.’ [Citation.] The process of interpreting the statute to ascertain
that intent may involve up to three steps. ... [Citations.] We have explained this three-
step sequence as follows: ‘we first look to the plain meaning of the statutory language,
then to its legislative history and finally to the reasonableness of a proposed
construction.’ ” (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005)
134 Cal.App.4th 1076, 1082 (MacIsaac).)
       “In the first step of the interpretive process we look to the words of the statute
themselves. [Citations.] The Legislature’s chosen language is the most reliable indicator
of its intent because ‘ “it is the language of the statute itself that has successfully braved
the legislative gauntlet.” ’ [Citation.] We give the words of the statute ‘a plain and
commonsense meaning’ unless the statute specifically defines the words to give them a
special meaning.” (MacIsaac, supra, 134 Cal.App.4th at pp. 1082-1083.) “ ‘It is
axiomatic that in the interpretation of a statute where the language is clear, its plain
meaning should be followed.’ ” (Security Pacific National Bank v. Wozab (1990)
51 Cal.3d 991, 998.) Furthermore, we are not empowered to insert language into a
statute, as “[d]oing so would violate the cardinal rule of statutory construction that courts
must not add provisions to statutes.” (Ibid.; see also Code Civ. Proc., § 1858 [“[i]n the
construction of a statute ..., the office of the Judge is simply to ascertain and declare what
is in terms or in substance contained therein, not to insert what has been omitted, or to
omit what has been inserted ….”].)
       We are also mindful, however, that “[o]ur primary goal is to implement the
legislative purpose, and, to do so, we may refuse to enforce a literal interpretation of the
enactment if that interpretation produces an absurd result at odds with the legislative
goal.” (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 527.)



                                               8.
       Subsection 10-3.1310(E) seems straightforward and unambiguous. It requires a
“five-sevenths vote of the whole of the Council,” meaning the entire city council, namely
seven members. This interpretation is supported by the five-sevenths voting requirement,
which by the use of seven in the denominator indicates a council of seven members.
Nothing in the ordinance’s language suggests that “whole of the Council” means “those
councilmembers present and voting,” as Lateef proposes.
       The California Supreme Court’s decision in Tidewater Southern Railway
Company v. Jordan (1912) 163 Cal. 105, which Lateef relies on, is instructive. There,
the court was asked to decide whether a statute that required a corporate resolution
creating bond indebtedness to be adopted by “the unanimous vote of its board of
directors” required the affirmative vote of either all of the corporation’s board members
or all board members present at the meeting. (Id. at p. 105-106.) In holding that the
latter interpretation was correct, the court noted the statute did not call for the
“ ‘unanimous vote of all the directors,’ nor the ‘unanimous vote of all the members of the
board,’ ” but rather called for the “ ‘unanimous vote of the board.’ ” (Id. at p. 106.)
Thus, the provision looked “to the body constituting a board of directors, rather than to
the individuals of whom that board is composed.” (Ibid.) Therefore, the directors who
were present at a meeting, though less than the entire board membership, constituted the
board of directors and “a resolution adopted by the affirmative votes of all such directors
was ‘adopted by the unanimous vote of the board of directors.’ ”3 (Ibid.)


       3  The court in Tidewater cited two out-of-state cases in support of the proposition
that requiring a unanimous vote of those present and constituting a quorum makes “it
impossible for a majority of a mere quorum, which might be a minority of the entire
membership, to adopt the resolution, as such minority might do in the absence of any
restriction of this nature.” (Tidewater, supra, 163 Cal. at p. 107.) In one of those cases,
St. Aemilianus Orphan Asylum v. Milwaukee County (1900) 107 Wis. 80 [82 N.W. 704],
the Wisconsin Supreme Court listed examples of when a statute deviates from the
common-law rule that a majority of a legislative entity constitutes a quorum, including
“ ‘a majority of all the members entitled to seats in the county board’ . . . ; or ‘a vote of

                                               9.
       Applying the reasoning of Tidewater here, a “five-sevenths vote of the whole of
the Council” looks not to the body constituting the city council, but rather to the
individuals of whom the city council is composed. Otherwise the ordinance would
require a “five-sevenths vote of the council,” not a “five-sevenths vote of the whole of the
Council.” Any other reading renders the use of the word “whole” surplusage. (Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1097 [courts should
avoid “interpretations that render any language surplusage”]; People v. United States Fire
Ins. Co. (2012) 210 Cal.App.4th 1423, 1427 [“When interpreting statutory language, the
court may neither insert language that has been omitted nor ignore language that has been
inserted”].)
       Lateef contends that because numerous California statutes use the phrase “all of
the members” of a legislative body when the Legislature intends to use the total number
of a body’s members to calculate the number of votes required, the absence of that phrase
in subsection 10-3.1310(E) means that is not what the city intended.4 Lateef asserts the
city was aware of the distinction, as the ordinance that defines a quorum provides: “A
majority of all the members of the Council shall constitute a quorum at any regular or
special meeting of the Council.” (§ 2-1.06, italics added.) Lateef claims this shows that
when the city intends to apply an ordinance to the total number of members in the city
council it clearly knows how to do so, and had it intended subsection 10-3.1310(E) to




three-fourths of all the members’ . . .; or ‘a majority of the whole board’ . . .” (Id. at
p. 705, italics added.)
       4Lateef cites to California statutes such as Government Code section 25005,
Water Code Appendix section 123-624, Public Utilities Code section 130233, Streets and
Highways Code section 31925, and Revenue and Taxation Code section 7286.80. For
example, Government Code section 25005 provides: “A majority of the members of the
board constitute a quorum for the transaction of business. No act of the board shall be
valid and binding unless a majority of all the members concur therein.”


                                              10.
require a five-sevenths vote of all the members of the city council, it would have referred
to “all the members of the Council.”
       There is no requirement, however, that the city use “all of the members of the
council” when it intends to refer to the entire council. That it did so when defining a
quorum does not mean that it intended to require less than the entire council when using
“whole of the Council.” As we explained above, use of the word “whole” must mean
something; otherwise, it is surplusage.
       Lateef also contends the plain language of subsection 10-3.1310(E) demonstrates
the city intended to require five-sevenths of the votes actually cast because “it requires
‘five-sevenths votes.’ ” Lateef asserts this language places the emphasis on votes and
those voting, rather than the councilmembers themselves. Lateef, however, misreads the
ordinance. It requires “[a] five-sevenths vote of the whole of the Council,” not five-
sevenths votes. The ordinance reads like a math problem: five-sevenths vote times the
“whole of the Council,” or seven councilmembers, equals five votes. The emphasis is not
on those voting, but rather on the number of votes required to overturn the commission’s
denial of an application for a use permit.
       Lateef asserts we should look to another ordinance in which the city used the term
“whole” in relation to the city council for guidance in interpreting subsection 10-
3.1310(E). That ordinance, section 2-2.303, pertains to the creation of the civil service
commission and provides for the selection of civil service commission members as
follows: “The City Council as a whole, shall appoint by resolution, all of the five
members for the five member Commission. The resolution of appointment shall be
approved by at least four members of the Council.” (§ 2-2.303(C)(2)(a).) Lateef asserts
the term “City Council as a whole” in this subsection refers to the quorum of the city
council authorized to act on its behalf, not all seven members of the city council, because
the next sentence makes clear that only four members must approve the resolution of
appointment. From this, Lateef reasons “the whole of the Council” as used in subsection

                                             11.
10-3.1310(E) also refers to the quorum of the city council with the authority to act on its
behalf.
          The two phrases, however, are used differently. Subsection 2-2.303(C)(2)(a) uses
“City Council as a whole” to describe who appoints the members of the civil service
commission and spells out how many councilmembers, namely four, must approve the
resolution of appointment. In contrast, subsection 10-3.1310(E) uses “whole of the
Council” as part of the calculation of the number of votes required to approve a
resolution granting an appeal from a commission’s denial. In that context, “whole of the
Council” is read as the entire city council, not just a quorum.
          Subsection 10-3.1310(E) simply cannot be read as Lateef proposes; otherwise, we
would have to omit the word “whole.” We conclude from its plain language, “whole of
the Council” means the entire city council, or all seven members. “If the statutory
language is clear and unambiguous, our task is at an end, for there is no need for judicial
construction. [Citations.] In such a case, there is nothing for the court to interpret or
construe.” (MacIsaac, supra, 134 Cal.App.4th at p. 1083.)
          Even if the ordinance’s language were ambiguous, the staff report prepared on the
proposed amendment confirms the city intended “whole of the Council” to mean the
seven-member council. (MacIsaac, supra, 134 Cal.App.4th at p. 1083 [if the text’s plain
meaning “does not resolve the interpretive decision,” the court proceeds to the second
step and considers the cannons of statutory construction and “extrinsic aids, including the
statute’s legislative history”].) According to the staff report, the city decided to amend
the ordinance “to acknowledge the seven-member composition of the City Council in its
role as the appeal body for Planning Commission actions.” Thus, to “more accurately
reflect the 2012 transition from a five-member body to a seven-member body,” city staff
recommended the percentage needed to grant an appeal of a commission decision be
changed from four-fifths to five-sevenths. That the percentage was based on the total



                                              12.
number of councilmembers indicates the city intended “the whole of the Council” to
include all of them.
       Finally, Lateef claims absurd consequences flow from this interpretation of the
ordinance. “Even if a statute is unambiguous on its face, it must be interpreted to avoid
an absurd result that does not advance the legislative purpose.” (Gray Cary Ware &
Freidenrich v. Vigilant Insurance Co. (2004) 114 Cal.App.4th 1185, 1190, citing
California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.)5
Here, the purpose and intent of the ordinance, as stated in the staff report, is to “allow for
fair reevaluation of Commission decisions” without restricting “Council reevaluation of a
Planning Commission action.” Requiring a supermajority of five of seven
councilmembers fulfills that purpose.
       Lateef argues such a requirement creates an absurd result because an applicant
appealing an adverse commission decision could be before the city council with only four
councilmembers voting, which is sufficient for a quorum under section 2-1.06, but the
appeal would be denied because it would be impossible to receive five votes. In that
situation, Lateef contends, section 10-3.1309, which sets forth the right to appeal from an
adverse commission decision, would be rendered meaningless. The problem with this

       5  Lateef argues it is appropriate to look at the consequences that flow from the
city’s interpretation of the ordinance, citing to cases applying the rule that where a statute
is ambiguous and susceptible to more than one reasonable interpretation, “our task is to
select the construction that comports most closely with the Legislature’s intent, with a
view to promoting rather than defeating the statutes’ general purpose, and to avoid a
construction that would lead to unreasonable, impractical or arbitrary results.” (Copley
Press, Inc. v . Superior Court (2006) 39 Cal.4th 1272, 1291; see also DiCampli-Mintz v.
County of Santa Clara (2012) 55 Cal.4th 983, 992 (DiCampli-Mintz); Gattuso v. Harte-
Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567.) Since the ordinance is unambiguous,
however, we “may determine whether the literal meaning of [an ordinance] comports
with its purpose,” and need not follow the ordinance’s plain meaning when doing so
would “ ‘frustrate[] the manifest purposes of the legislation as a whole or [lead] to absurd
results.’ ” (California School Employees Assn. v. Governing Board, supra, 8 Cal.4th at
p. 340.)


                                             13.
approach is that to interpret subsection 10-3.1310(E) as Lateef suggests would require us
to rewrite the ordinance in contravention of the city’s expressed intent. We have “no
power to rewrite the [ordinance] so as to make it conform to a presumed intention which
is not expressed.” (California Teachers Assn. v. Governing Bd. of Rialto Unified School
Dist. (1997) 14 Cal.4th 627, 633; see also DiCampli-Mintz, supra, 55 Cal.4th 983, 992
[“court may not, ‘under the guise of construction, rewrite the law or give the words an
effect different from the plain and direct import of the terms used.’ ”].)6 For this reason,
we cannot rewrite the statute to avoid the other absurd results Lateef claims flow from
interpreting the ordinance to require a five-sevenths vote of the seven-member city
council.7
       In sum, the “whole of the Council” simply cannot be read as “whole of the
Council who is present and voting” at the appeal hearing. Instead, “whole of the
Council” means the entire seven-member city council. Accordingly, Lateef was required

       6 Respondents assert that while section 2-1.06 requires a quorum to do business,
the purpose of section 10-3.1310 is to set the rules by the which the city council may
grant an appealed application that was denied by the commission. In response, Lateef
argues in his reply brief “the City cannot enact an ordinance that increases the number of
councilmembers needed ‘for transaction of business’ from a ‘majority of the council’ to
five.” Lateef contends Madera, as a general law city, has no power to override
Government Code section 36810, which provides “[a] majority of the council constitutes
a quorum for transaction of business,” citing Home Gardens Sanitary Dist. v. City of
Corona (2002) 96 Cal.App.4th 87, 93. Lateef, however, admitted in his opening brief
that he “is not seeking to void” subsection 10-3.1310(E) “as being unconstitutional on its
face.” Instead, Lateef says he is seeking a judicial interpretation by which subsection 10-
3.1310(E) “would remain operative.” We therefore express no opinion on the
constitutionality of subsection 10-3.1310(E) or the City’s ability to enact such a voting
requirement. As we explain above, we are unable to rewrite the ordinance to comport
with Lateef’s proposed interpretation.
       7 These purported absurd results include: (1) by counting the recused
councilmember and vacant council seat in the total number of councilmember seats used
to calculate the number of votes required to grant his appeal, the two seats became in
effect “no” votes, and (2) the ordinance would impose a fluctuating minimum vote
standard based on the number of councilmembers present and voting.


                                             14.
to obtain five votes in favor of granting his appeal in order to reverse the commission’s
decision denying his application. Having obtained only four favorable votes, the city
council properly denied his appeal.
Denial of a Fair Hearing
        Lateef contends that if the city’s interpretation of the ordinance is correct, he was
deprived of a fair hearing because the recused councilmember and vacant council seat
were included as councilmembers when determining the number of votes needed to grant
his appeal. He claims “it is not fair to count a recused councilmember or a vacant council
seat as ‘all of the members’ because the recused councilmember should have no impact
on the appeal and a vacant seat is not a member.” He also claims that under section 2-
1.15, the city council was required to record the vacant council seat as an affirmative
vote.
        Code of Civil Procedure section 1094.5, subdivision (b) authorizes the issuance of
a writ of administrative mandate where the agency deprived the petitioner of a fair
hearing. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169 (Clark).)
The right to a fair hearing is violated where, for example, the agency relies on evidence
outside the record in reaching its decision (Pinheiro v. Civil Service Commission for the
County of Fresno (2016) 245 Cal.App.4th 1458, 1467, citing cases) or lacks impartiality
(Clark, supra, at p. 1173).
        Lateef does not cite any authority to support his contention that failing to exclude
the recused councilmember and the vacant seat when determining the votes needed to
prevail deprived him of a fair hearing within the meaning of Code of Civil Procedure,
section 1094.5. He cites only to rule 35(a) of the Federal Rules of Appellate Procedure
(28 U.S.C.), which governs when a hearing or rehearing en banc may be ordered and
provides: “A majority of the circuit judges who are in regular active service and who are
not disqualified may order that an appeal or other proceeding be heard or reheard by the
court of appeals en banc.” Lateef claims that because federal appellate courts do not

                                              15.
include recused members when determining the majority of votes needed to grant an en
banc hearing or rehearing, it is unjust for a California governmental entity to include a
vacant seat and recused councilmember when determining the number of votes needed to
prevail.
       We are not convinced. A federal rule regarding en banc hearings has no
application to proper voting methods for California governmental entities. Moreover,
California is not bound by the Federal Rules of Appellate Procedure. (Sinnamon v.
McKay (1983) 142 Cal.App.3d 847, 854.)
       Under California law, a vacant council seat is included in determining whether a
quorum exists. (See Price v. Tennant Community Services Dist. (1987) 194 Cal.App.3d
491, 496-497; The Honorable Leroy G. Shipp, 94 Ops.Cal.Atty.Gen. 100 (2011).) Thus,
it was proper for the city council to include the vacant council seat when determining
whether Lateef obtained sufficient votes to grant his application. We reject Lateef’s
contention the vacant seat must be counted as an affirmative vote under section 2-1.15,
which provides that when the city clerk is taking a roll call vote on a resolution and calls
“the name of each member present, … [e]ach member shall be recorded as voting ‘aye’
unless when his or her name is called he or she votes ‘no’ or declares he or she is not
voting,” and “[u]nless a member of the Council states he or she is not voting, his or her
silence shall be recorded as an affirmative vote.”8 Section 2-1.15 clearly pertains to
situations where a councilmember is present at the meeting and when the

       8 Section 2-1.15 provides in its entirety: “Except as provided in this chapter, when
a vote on any motion is called for, the Mayor or other presiding officer may call for a
voice vote and may determine whether any such motion carried or failed. Any member
of the Council may call for a roll call vote on any motion. All votes on motions for
introduction or passage of any ordinance or resolution shall be called for by the City
Clerk by calling the name of each member present, including the Mayor. Each member
shall be recorded as voting ‘aye’ unless when his or her name is called he or she votes
‘no’ or declares he or she is not voting. Unless a member of the Council states he or she
is not voting, his or her silence shall be recorded as an affirmative vote.”


                                             16.
councilmember’s name is called during a roll call vote, the councilmember remains silent
rather than declare he or she is not voting. It is only then that the councilmember’s
silence is recorded as an affirmative vote. Here, when the roll call vote was taken, the
vacant seat was not asked to vote. Therefore, its “silence” cannot be counted as an
affirmative vote under section 2-1.15.
       With respect to the recused councilmember, the ordinance requires a vote of five
councilmembers and there were five councilmembers present at the hearing who were
available to vote on Lateef’s appeal. Lateef could have requested a continuance of the
hearing until the vacant seat was filled to better increase his chance of prevailing. (See
Ursino v. Superior Court (1974) 39 Cal.App.3d 611, 622 [where city charter required
four votes of the five-member appeals board to overturn the department of public works’
issuance of a building permit, but only four members were present at appeal hearing due
to a board vacancy, appellants were not required to proceed with the hearing; rather,
appellants properly requested, and were granted, a continuance with the expectation the
vacancy would be filled].)
       Moreover, even if the city council should have excluded the recused
councilmember from the calculation, Lateef does not prevail. A five-sevenths vote of six
councilmembers is a number greater than four, namely approximately 4.29. While Lateef
assumes this number should be rounded down to four, we disagree. Since the calculation
results in a number greater than four and there cannot be a fractional vote, five
affirmative votes would be required, which Lateef did not receive.
       In sum, Lateef was not denied a fair hearing. The city council followed
subsection 10-3.1310(E) in determining that five votes were required to overturn the
commission’s decision and that Lateef did not receive the requisite votes. Accordingly,
the trial court properly denied his petition for administrative mandamus.




                                            17.
                                 DISPOSITION
     The judgment is affirmed. Costs on appeal are awarded to respondents.



                                                           _____________________
                                                                    SNAUFFER, J.
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
DETJEN, J.




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