Filed 11/26/14 Patel v. City of Los Angeles CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

KHAPABHAI PATEL et al.,                                                 B248240

                Plaintiffs and Appellants,                              (Los Angeles County
                                                                        Super. Ct. No. BS135645)
         v.

CITY OF LOS ANGELES et al.,

                Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
H. O’Brien, Judge. Affirmed.


         Frank A. Weiser for Plaintiffs and Appellants.


         Michael N. Feuer, City Attorney, Gregory P. Orland, Brian I. Cheng, and Lisa
Berger, Deputy City Attorneys for Defendants and Respondents.
       Khapabhai Patel and Pramilaben Patel (appellants), co-owners of the Alvarado
Palms Motel (the property), appeal from a judgment entered by the trial court denying
their petition for writ of mandate and dismissing the entire action with prejudice.
Through the writ, appellants challenged respondent Los Angeles Housing Department’s
(LAHD) determination that the property is a residential hotel under the Residential Hotel
Unit Conversion and Demolition Ordinance (RHO) (L.A. Mun. Code, § 47.70 et seq.).1
Appellants also asserted a cause of action for inverse condemnation. We find no error in
the trial court’s decision denying the writ and dismissing the entire action with prejudice.
Therefore, we affirm the judgment.
                                     CONTENTIONS
       Appellants contend that: (1) the RHO is unconstitutionally vague; (2) there was
no substantial evidence to support the determination that the property is a residential
hotel; and (3) the trial court erred in dismissing the entire action, including the cause of
action for inverse condemnation.
                                         THE RHO
       The RHO was enacted in 2008 “to benefit the general public by minimizing the
adverse impact on the housing supply and on displaced low-income, elderly, and disabled
persons, which results from the loss of residential hotel units through conversion and
demolition.” (§ 47.71.) The RHO established guidelines for “establishing the status of
residential hotel units, . . . regulating the demolition and conversion of these units to other
uses, and . . . establishing appropriate administrative and judicial remedies.” (§ 47.71.)
       Pursuant to the RHO, a residential hotel is defined as:
       “ . . . any building containing six or more guest rooms or efficiency units,
       intended or designed to be used, or which are used, rented, or hired out, to
       be occupied, or which are occupied, for sleeping purposes by guests, and
       which is also the primary residence of those guests. The term Residential
       Hotel excludes any building containing six or more guest rooms or
       efficiency units, which is primarily used by transient guests who do not
       occupy units in that building as their primary residence.” (§ 47.73(S).)

1     All further section references are to the Los Angeles Municipal Code unless
otherwise indicated.

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       A residential unit is defined as:
       “. . . any guest room, light housekeeping room, efficiency unit, or dwelling
       unit in a Residential Hotel that was occupied as a primary residence on
       October 11, 2005. If a unit was vacant on October 11, 2005, a Residential
       Unit shall mean any guest room, light housekeeping room, efficiency unit,
       or dwelling unit in a Residential Hotel that, on the first day that the unit was
       subsequently occupied, was occupied as a primary residence.”
       (§ 47.73(T).)

       A tenant is defined as “a Person who is entitled to occupy and occupies a
Residential Unit for at least 31 consecutive days.” (§ 47.73(U).)
       The LAHD is charged with determining whether a given building should be
designated a residential hotel. (§ 47.75(A).) Hotel owners are permitted to appeal to the
LAHD after a determination that their property is a residential hotel. (§ 47.75(B).) The
owner has the burden of proving by a preponderance of the evidence that the property is
not a residential hotel. (§ 47.75(C)(3).) Certain exemptions are available under section
47.74, and hotel owners are permitted to file claims of exemption (§ 47.77).
                  FACTUAL AND PROCEDURAL BACKGROUND
       In September 2008, the LAHD notified appellants that it had determined that the
property should be categorized as a residential hotel. Appellants filed a timely appeal
pursuant to section 47.75(C). On February 24, 2009, LAHD affirmed its original
determination that the property is a residential hotel.
       Appellants filed a timely appeal of the February 2009 decision to the LAHD
General Manager’s Hearing Officer. Appellants contended that the property is used
mainly as a transient occupancy hotel and that the use of the property does not conform to
the defined use of a residential hotel subject to the provisions of the ordinance.
Appellants also claimed violations of the federal and state takings clauses, the due
process clauses and the equal protection clauses of the federal and state constitutions.
The General Manager found, based on a preponderance of the evidence, that the property
was properly deemed a residential hotel pursuant to the relevant laws.




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       Appellants initiated federal litigation in August 2009. They included in their
federal complaint a state claim for a petition for writ of mandate under Code of Civil
Procedure section 1094.5 and a state claim for inverse condemnation. In February 2011,
the district court decided to abstain from exercising jurisdiction under Railroad Com. of
Texas v. Pullman Co. (1941) 312 U.S. 496. It stayed appellants’ federal constitutional
causes of action and dismissed appellants’ state causes of action. The Ninth Circuit
affirmed the district court’s decision on October 13, 2011.
       Appellants initiated this state court proceeding on January 23, 2012, claiming a
cause of action for writ of mandate under Code of Civil Procedure section 1094.5 and a
cause of action alleging an inverse condemnation taking. Appellants argued that the
RHO was unconstitutionally vague. They alleged:
              “The ordinance does no[t] define the term ‘primary residence’ and
       the ordinance is vague, circular and highly confusing as to the use and
       application of this certain term in the ordinance and the definitional terms
       ‘Residential Hotel,’ ‘Residential Unit,’ ‘Tenant,’ and ‘Tourist Unit’
       contained at LAMC Sections 47.73S-[47].73V.”

       Appellants argued there was no substantial evidence to support the decision and
the determination that the property is a residential hotel subject to the RHO is a taking
compensable under article I, section 19 of the California Constitution.
       A hearing on the petition was held on February 22, 2013.
       On March 11, 2013, the superior court issued its judgment denying the petition
and dismissing the action with prejudice.
       On April 19, 2013, appellants filed their notice of appeal.
                                      DISCUSSION
I. Standard of review
       “In reviewing a decision of the [agency], the superior court exercises its
independent judgment on the evidentiary record of the administrative proceedings and
inquires whether the findings of the administrative agency are supported by the weight of
the evidence. [Citations.]” (Lozano v. Unemployment Ins. Appeals Bd. (1982) 130



                                             4
Cal.App.3d 749, 754 (Lozano), citing Code Civ. Proc., § 1094.5, subds. (b), (c).) In
reviewing the trial court’s ruling on a writ of mandate, the appellate court is ordinarily
confined to an inquiry as to whether the findings and judgment of the trial court are
supported by substantial, credible and competent evidence. (Lozano, at p. 754.)
       However, where the probative facts are not in dispute, the determination of the
trial court may be reviewed as a matter of law. (Sanchez v. Unemployment Ins. Appeals
Bd. (1984) 36 Cal.3d 575, 585.) Constitutional issues are reviewed de novo. (People ex
rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632.)
II. Constitutionality of the RHO
       A. Applicable legal standards
       There is a “‘strong presumption that legislative enactments “must be upheld unless
their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] . . .”’
[Citation.]” (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) A statute will not be
“‘“held void for uncertainty if any reasonable and practical construction can be given to
its language”’ [Citation.]” (Ibid.) “Some imprecision in statutory language is allowable
and a statute is not unconstitutionally vague if there is some matter of degree in the
definition of a statutory term or the words used do not have a universally recognized
meaning. Instead, a statute will be deemed sufficiently precise if its meaning can be
fairly ascertained by references to similar statutes or other judicial determinations, or to
the common law or the dictionary, or if the words have a common and generally accepted
meaning. [Citation.]” (In re Mariah T. (2008) 159 Cal.App.4th 428, 435.)
       B. A reasonable and practical construction can be given to the RHO language
       Appellants’ first argument is that the RHO violates the due process clauses of the
United States and California Constitutions. Specifically, appellants argue that the
ordinance does not adequately define the terms “residential unit” and “primary
residence.” Because of this inadequacy, appellants argue, there are insufficient
guidelines as to how the LAHD determines whether a building is a residential hotel under
section 47.75(A).



                                              5
       The meaning of the term “residential unit,” as used in the RHO, is reasonably
clear. As set forth above, the term is specifically defined in section 47.73(T). The term
is used to refer to any guest room, light housekeeping room, efficiency unit, or dwelling
unit that was occupied as a primary residence on October 11, 2005. The term
“residential” has a generally accepted meaning which is commonly understood.
Merriam-Webster gives a practical definition: “used as a residence or by residents.”
(Merriam-Webster Online Dict. (2014) <http://www.merriam-
webster.com/dictionary/residential>). The term is universally understood to relate to a
place where people live.
       The term “unit” is also commonly used and understood. A unit is generally
defined as “a single thing . . . that is a part of something larger.” (Merriam-Webster
Online Dict., supra, <http://www.merriam-webster.com/dictionary/unit>). The two
common words, taken together, clearly refer to a single subdivision of a larger residential
housing area. Because the term “residential unit” has been specifically defined in the
ordinance, and because the term is also easily defined under common usage, we decline
to find it unconstitutionally vague.
       Appellants argue that the definition of “residential unit” introduces a new,
undefined term, “dwelling unit,” not found in the definition section. However, like the
terms described above, we find the term “dwelling unit” sufficiently simple to understand
given the commonly accepted uses of the words in the phrase. A dwelling is “a shelter
(as a house) in which people live.” (Merriam-Webster Online Dict., supra,
<http://www.merriam-webster.com/dictionary/dwelling>.) Paired with the term “unit,”
discussed above, we conclude that most readers would understand this phrase to mean a
portion of a larger shelter where humans reside. Again, we see no unconstitutional
vagueness in the use of the term.
       Appellants also take issue with the use of the terms “tenant” and “primary
residence.” The term “tenant” is defined in section 47.73(U) as “a Person who is entitled
to occupy and occupies a Residential Unit for at least 31 consecutive days.” Appellants
complain that the term “tenant,” while defined in the ordinance, appears nowhere in the


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definitions of the terms “residential hotel” or “residential unit.” Instead, the term
“primary residence” is used in those definitions. The term “primary residence,” however,
is not defined in the ordinance. Under the circumstances, appellants argue, building
owners are unable to understand how their buildings will be classified as residential
hotels.
          The ordinance certainly would have been more clear if the drafters had used the
term “tenant” rather than the term “primary residence” in sections 47.73(S) and (T).2 Use
of the term “tenant” in the definitions of “residential hotel” and “residential unit” would
have made it very clear that the criteria for determining whether a unit is a residential unit
is whether the guest occupies the unit for 31 consecutive days.
          However, despite the absence of the word “tenant” from the definitions of
“residential unit” and “residential hotel,” we find that the ordinance as a whole is not
unconstitutionally vague.
          A tenant, defined as a person who rents or leases a residential unit for at least 31
consecutive days, is different from a transient or a tourist. The common use of the term
“tenant” is an individual who rents or leases from a landlord and possesses real property
pursuant to agreement. The word “tenant” is frequently used to describe a person who is
renting an apartment where he or she resides. (Merriam-Webster Online Dict., supra,
http://www.merriam-webster.com/dictionary/tenant>.) Thus, the building owner can
reasonably conclude that a tenant, who stays at a hotel for at least 31 days, is considered
to be using the unit as his or her primary residence.
          Reading the basic terms of the ordinance together, the ordinance thus may be
reasonably interpreted as follows: a residential hotel is any building containing six or
more residential units. A residential unit is a guest room in a hotel that was occupied as a
primary residence on October 11, 2005. From both the definition and the common usage

2      For example, the drafters could have written “A Residential Unit is any guest
room . . . that was occupied by a tenant on October 11, 2005,” rather than “A Residential
Unit is any guest room . . . that was occupied as a primary residence on October 11,
2005.”


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of the term “tenant,” the reader can reasonably understand that a primary residence is a
unit occupied by a tenant -- i.e., someone who occupies the unit for at least 31
consecutive days.
       While it is not a model of clarity, a reasonable construction can be given to the
language of the RHO, and we decline to find the ordinance unconstitutionally vague.
       C. City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997)
59 Cal.App.4th 237 (San Bernardino), is distinguishable
       In San Bernardino, cited by appellants, a hotel and motel association brought an
action challenging the validity of a transient occupancy tax adopted by the city. A
violation of any of the ordinance’s provisions was a criminal misdemeanor. One of the
association’s arguments was that the ordinance violated due process of law because the
definitional sections of the ordinance were “vague, circular, and contradictory.” (San
Bernardino, supra, 59 Cal.App.4th at p. 245.) In particular, the association objected that
the statute used a 30-day occupancy rule to define “hotel,” while using a 90-day rule to
define “transient.”3 In addition, the association contested the use of the word “dwelling”
in defining the term “occupancy,” contending that this was contradictory to renting on a
transient basis. (Id. at p. 247.) The Court of Appeal agreed with the association’s
arguments, finding that “the definitional problems in the statute render it vague and
therefore unconstitutional under the Fifth Amendment. The problems are accentuated by
the fact that this is a penal statute. In our view, the definitions do not adequately
distinguish between a person living from day-to-day or week-to-week in a motel and an
apartment dweller on month-to-month tenancy.” (Id. at p. 250.)




3      The San Bernardino ordinance defined “hotel” as a structure occupied by
transients “for a period of thirty days or less” (id. at p. 246), but defined a “transient” as
any person who occupies premises intended for transient occupancy for a period of less
than 90 consecutive calendar days (id. at p. 247). In addition, the definition of “transient”
also included individuals who stayed in a hotel for more than 90 days without contracting
for occupancy on a permanent basis. (Id. at p. 249.)


                                              8
       In contrast to the ordinance at issue in San Bernardino, the RHO is not a penal
statute. Further, it does not provide directly contradictory information, as the San
Bernardino ordinance did. Because the meaning of the statute can reasonably be
ascertained, we decline to find it unconstitutionally vague.
III. Substantial evidence supports the administrative decision
       Appellants point out that the LAHD evidence submitted showed that more than six
units at the property were rented on a transient basis on October 11, 2005, taking into
account the vacant units that were subsequently rented for less than 30 days. 4 Appellants
argue that the property should thus be exempted under the language of section 47.73(S)
which states that “[t]he term Residential Hotel excludes any building containing six or
more guest rooms or efficiency units, which is primarily used by transient guests who do
not occupy units in that building as their primary residence.”
       While it is true that more than six units were being used, or were subsequently
used, as transient units on October 11, 2005, this evidence does not dictate a finding that
the property was primarily used by transient guests. The word “primarily” means “for
the most part: chiefly.” (Merriam-Webster Online Dict., supra, <http://www.merriam-
webster.com/dictionary/primarily>.) During the relevant time frame for LAHD’s
evaluation, more units were being used as residential units than as transient units. Thus,
the property was primarily being used by residents who occupied units as their primary
residence, resulting in a determination that the property should be classified as a
residential hotel.
       The ordinance contains no language suggesting that, if a property has six or more
units occupied by transient guests, the property should not be classified as a residential

4      The evidence showed that on October 11, 2005, 10 units in the property were
occupied by guests who had already rented or would rent the unit for more than 31
consecutive days. Two units were vacant and next occupied by a guest who would rent
the unit for 31 consecutive days. Two units were occupied by guests who would rent the
unit for less than 30 days; and nine units were vacant and were next occupied by a guest
who would rent the unit for less than 30 days.
       Thus, under the definition set forth in section 47.73(T), 12 units at the property
were residential units; 11 were transient units.

                                              9
hotel. Appellants argue that because six residential units makes a residential hotel, six
transient units should point to the opposite outcome. Appellants are reading into the
statute language that does not exist. There is no language in the statute allowing us to
assume that the drafters of the ordinance intended the outcome that appellants desire.
       Appellants also argue that all the guests staying at the property listed an address
other than the motel as their primary residence. Thus, appellants argue, there is no
evidence that any guest staying at the hotel on October 11, 2005, intended to use the
property as his or her primary residence.
       As set forth above, we find that the ordinance can be reasonably interpreted to
mean that a tenant -- i.e., an individual who stays at the hotel for more than 31 days -- is
using the unit as his or her primary residence. The ordinance does not suggest that the
tenant’s intent, or the existence of an alternative address, has any bearing on the
determination as to whether the hotel is the tenant’s primary residence. Therefore
evidence on these subjects is irrelevant.5
       The evidence showed that under the definitions set forth in section 47.73, more
than six units were used as the guests’ primary residence. Thus, the evidence supported
the administrative decision that the building met the definition of a residential hotel.
IV. Dismissal of the inverse condemnation cause of action
       Appellants’ final contention is that the trial court erred in dismissing the entire
action, including their inverse condemnation cause of action. Appellants argue that the

5       Appellants point to Government Code section 244, subdivision (f) as requiring a
“union of act and intent” before an individual can change his or her residence. Section
244, subdivision (b) also specifies that “[t]here can only be one residence.” Reading this
part of the Government Code as a whole, it is apparent that these Government Code
sections are meant to define the group of people who are citizens of the State of
California. Appellants have not presented any compelling argument that the laws
defining a resident of the state should be applied to determine the primary residence of an
individual under the RHO. Therefore we reject this argument.
        For the same reason, we reject appellants’ complaint that the RHO is unclear as to
whether the landlord-tenant law, specifically Civil Code section 1940, is relevant in
determining residential hotel status. The RHO makes no reference to this provision of
the Civil Code, therefore we find it is inapplicable in determining residential hotel status.

                                             10
trial court heard and ruled upon their writ petition but did not hear or rule upon their
inverse condemnation cause of action. Appellants cite Zinermon v. Burch (1990) 494
U.S. 113, 127 for the proposition that “the [Supreme] Court usually has held that the
Constitution requires some kind of a hearing before the State deprives a person of liberty
or property. [Citations.]”
       Appellants were provided with a hearing on their writ petition, which took place
on February 22, 2013. The cause of action for inverse condemnation was contained
within the same pleading as their cause of action for writ of administrative mandamus.
Appellants have not suggested that they were prevented from being heard on their inverse
condemnation cause of action at the February 22, 2013 hearing. Nor did they provide
any substantive argument on the inverse condemnation claim in their brief in support of
the petition for writ of mandate.
       The trial court was not required to raise the issue of inverse condemnation;
instead, it was up to appellants to prosecute their claims. (People v. Williams (1999) 20
Cal.4th 119, 128 [party has the obligation to bring an issue to the attention of the trial
court]; Kashmiri v. Regents of the University of California (2007) 156 Cal.App.4th 809,
830 (Kashmiri) [“‘each party has the obligation to raise any issue or infirmity that might
subject the ensuing judgment to attack’”].) In addition, appellants point to no place in the
record where they objected to the trial court’s failure to address their inverse
condemnation cause of action.
       The cases cited by appellants in support of their due process claim are
distinguishable. In Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306
(Mullane), the Supreme Court addressed the constitutional sufficiency of notice to
beneficiaries on judicial settlement of accounts by the trustees of a common trust fund.
(Id. at p. 307.) The only notice provided was a publication in a local newspaper. (Id. at
p. 309.) Under those circumstances, the high court held that notice must be “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present objections. [Citations.]” (Id. at p.
314.) Similarly, in Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80 (Peralta),


                                              11
the Supreme Court addressed a situation where a default judgment was entered against an
individual defendant who had never been personally served with original service of
process. In answer to the argument that the individual had shown no meritorious defense,
the high court stated: “Where a person has been deprived of property in a manner
contrary to the most basic tents of due process, ‘it is no answer to say that in his
particular case due process of law would have led to the same result because he had no
adequate defense upon the merits.’ [Citation.]” (Id. at pp. 86-87.)
       Here, in contrast to Mullane and Peralta, there is no issue regarding the
sufficiency of notice provided for the hearing. As set forth above, it was appellants’
burden to raise the inverse condemnation issue at the hearing and object to the trial
court’s failure to address it.
       Because appellants failed to raise the issue of inverse condemnation in their trial
brief or at the hearing, and because they did not object to the trial court’s failure to
address the issue, we find that they have forfeited this claim. (Kashmiri, supra, 156
Cal.App.4th at p. 830 [“‘“we ignore arguments, authority, and facts not presented and
litigated in the trial court”’”].)
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                   ____________________________, J.
                                                   CHAVEZ

We concur:


__________________________, Acting P. J.
ASHMANN-GERST


__________________________, J.
HOFFSTADT


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