Temple of 1001 Buddhas v. City of Fremont

Filed 3/6/24
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

TEMPLE OF 1001 BUDDHAS
et al.,
Plaintiffs and A167719
Appellants,
(Alameda County
v. Super. Ct. No.
CITY OF FREMONT, 21CV002808)
Defendant and
Respondent.

This appeal arises from a final administrative decision
after a hearing upholding nuisance determinations and orders
with respect to plaintiffs’ residential property. Plaintiffs’ main
claim is that section 1.8.8 of the California Building Code
(Building Code) preempts the City of Fremont’s process for
appeals relating to violations of the Fremont Building Standards
Code (Fremont Municipal Code, §§ 15.05.010 et seq.) and
nuisance orders premised thereupon.
In support, plaintiffs direct us to Lippman v. City of
Oakland (2017) 19 Cal.App.5th 750 (Lippman), a decision by a
First District, Division Four panel, which held that: (1) Building
Code section 1.8.8 requires a city to provide for appeals before an
independent agency or board authorized to hear such appeals or

1
the city’s governing body, and (2) Oakland’s appeals process for
determinations relating to building code and building
maintenance code violations, which set appeals before a single
hearing officer appointed by the enforcing agency, violated
section 1.8.8. (Lippman, at p. 760.) Plaintiffs also raise
numerous challenges regarding the fairness of their
administrative appeal hearing.
We reject plaintiffs’ procedural unfairness claims and their
arguments insofar as Fremont’s nuisance determinations rested
on zoning violations. But, consistently with the analysis in
Lippman, we conclude that state law preempts Fremont’s appeals
process for enforcement determinations based on violations of
Fremont’s Building Standards Code, including Fremont’s
nuisance determinations that rest on alleged violations of that
code. We accordingly reverse the judgment in part and direct the
trial court to issue appropriate mandamus relief.
BACKGROUND
The property at issue is a 29-acre parcel located in
Fremont, subject to certain development constraints.1 Portions of
the property have a slope of at least 30 percent; the property is
traversed by at least two natural watercourses; and it is located
in a very high fire hazard area and an earthquake-induced
landslide zone. The property is zoned as open space.
Historically, the property was used for agricultural purposes,

1 Many of the facts in this summary are taken from the

administrative hearing officer’s final decision. The court below
found that substantial evidence supported this decision, and
plaintiffs do not argue to the contrary on appeal.

2
supporting a single-family home (main house), a barn (former
barn), a mobile home (mobile home), and a detached structure
that the parties refer to as a barn or garage (former garage).
In 2013, Fremont served Miaolan Lee, then-owner of the
property2, with a “Notice and Order to Abate Nuisance” arising
from the conversion of the former barn to residential uses
(NOA 1). The parties settled the matter in 2014, agreeing that
the former barn would not be used as a dwelling unit.
In 2017, Fremont received a complaint regarding
construction on the property. After several attempts to arrange
an inspection, Fremont obtained a court warrant. Fremont
inspected the property in February 2018, and city staff found
many code violations, including new, unpermitted structures;
unpermitted construction, electrical and plumbing work;
construction within a riparian corridor; and evidence of
habitation in buildings where habitation was not permitted.
Fremont’s Community Development Department, Building &
Safety Division (Building & Safety Division), issued a “Notice and
Order to Abate Nuisance” on March 29, 2018 (NOA 2). NOA 2 set
forth 12 violations associated with construction and structures on
the property and required plaintiffs to legalize the structures or,
if the structures could not be legalized, to obtain permits to
demolish them. Lee appealed.
On May 24, 2018, Fremont conducted another inspection
pursuant to a second inspection warrant. On June 14, 2018,

2 The property was transferred from Lee and her husband

to the Temple of 1001 Buddhas in March 2018.

3
Fremont’s Building & Safety Division issued a “Notice and Order
to Vacate” (NOV). The NOV stated that the building official had
condemned three structures on the property as unfit for human
habitation: a new two-story residence (new house); the former
garage, which had been expanded to a three-story building with a
residential dwelling unit; and the former barn, which had again
been remodeled extensively without permits.
On June 19, 2018, the Building & Safety Division issued a
“Notice and Order to Abate Nuisance Amended” (NOA 2A). NOA
2A provided that it amended and superseded NOA 2. It listed 13
violations, and it required plaintiffs to legalize the structures or,
if the structures could not be legalized, to obtain permits to
demolish them. Lee timely appealed the NOV and NOA 2A.
On October 10, 2019, Lee submitted a conditional use
permit application to Fremont. She stated therein that the
project included a zoning or general plan change, but she did not
provide the required new zoning or general plan designation. Lee
also stated that the project site contained two dwelling units,
buildings used for religious institutions/facilities, and new
religious institution/facilities uses. She later clarified that the
proposed religious use was private, she intended to continue
using the property for single-family residential uses, and her
application was directed at obtaining permits for several of the
violating structures cited in NOA 2A.
Fremont responded with a project information summary
listing additional required submittals, and it subsequently
provided Lee with comments on her permit application. Lee

4
submitted a response in November 2020. However, according to
Fremont’s planning department, the city never received a revised
submittal from Lee with maps that Fremont had requested. In
November 2020, the planning department referred the matter
back to the code enforcement department.
On March 11, 2021, the Building & Safety Division issued a
“Notice and Order to Abate Nuisance Amended” (NOA 3). NOA 3
listed the following 13 violations: (1) construction of an accessory
gazebo structure and pools; (2) construction of structures (a
bridge, paths, decks, and stairs) around the existing watercourse;
(3) alterations to an existing mobile home; (4) alterations to an
existing non-habitable structure (the former barn), including a
kitchen, shower, and air conditioning units; (5) additions and
alterations to the existing former garage, including an additional
4,000 square feet of floor area and two new floor levels appearing
to contain habitable space; (6) a new, 3,000-square foot
greenhouse with associated electrical, mechanical, and plumbing
work; (7) alterations to the existing main house, including a new
garage, new habitable space, and exterior decks; (8) flat
work/hard scape disturbing soils in excess of one acre; (9) a new,
2,500-square foot dwelling space approximately 180 feet from the
main house; (10) solar panel additions to an existing solar energy
system; (11) construction and/or alteration of structures with
plumbing supply and drain/waste systems that increased the
drain, waste, or effluent discharge of the property;
(12) construction and/or installation of liquid carrying tanks and

5
associated plumbing; and (13) construction of a tree house with
electrical fixtures.
NOA 3 provided that it amended and superseded NOA 2A.
Each violation in NOA 3 cited Fremont Municipal Code
(Municipal Code) section 8.60.040, and provided that “any
condition which violates any code or ordinance adopted by
[Fremont] is unlawful and a public nuisance.” The infringement
of multiple sections of the Municipal Code and various state laws
served as the basis for the nuisance determinations, and each of
the 13 violations also listed the laws infringed. NOA 3
instructed, “You have the right to appeal the determination of
nuisance or the specific remedies and administrative orders
imposed by this Notice by filing a written appeal with the City
Clerk . . . within seven (7) calendar days of the date of service of
this Notice for violations pursuant to [Municipal Code]
§ 8.60.120, [Municipal Code] § 15.45.130, and [Municipal Code]
§ 15.05.060.”
On March 12, 2021, Lee appealed NOA 3. Fremont
appointed Ann Danforth as the hearing officer to hear the appeal
of the NOV and NOA 3. Danforth held a multi-day hearing and
issued a decision finding that Fremont had met its burden of
establishing the 13 violations in NOA 3. Danforth ordered
removal of various structures that could not be legalized because
of violations of Fremont’s zoning laws — specifically Municipal
Code section 18.55.040, subdivision (b)(7), which forbids any
development within a riparian corridor, and Municipal Code

6
section 18.55.050, subdivision (c), which forbids any development
on slopes equal to or steeper than 30 percent.
Following Danforth’s decision, plaintiffs filed a verified
petition including claims for administrative mandamus under
Code of Civil Procedure section 1094.5, declaratory relief, and
injunctive relief.
In their opening brief below, plaintiffs argued that
Danforth exceeded her jurisdiction by ordering demolition and
abused her discretion for numerous reasons, including because
substantial evidence did not support her findings. They further
argued that they received an unfair hearing. Plaintiffs also
asserted that Fremont’s hearing process for appeals was
deficient, and, quoting Lippman, supra, 19 Cal.App.5th 750, they
argued that “ ‘there is a mandatory duty to establish a local
appeals board or an agency authorized to hear appeals. And, if
no such board or agency exists, the governing body shall act as
the local appeals board.’ ” Plaintiffs made a similar, somewhat
more detailed argument regarding Lippman and Building Code
section 1.8.8 in their reply brief, and the trial court permitted
Fremont to submit supplemental briefing on the issue.
After hearing argument, the trial court rendered an oral
decision. The court ultimately signed an order denying the
petition, finding that: (1) the case was an administrative
mandamus case; (2) “[t]here is no cause of action for declaratory
relief in an administrative mandamus case”; (3) Danforth’s order
was supported by substantial evidence; (4) the evidence did not
support a finding that Danforth was biased, and plaintiffs waived

7
any bias claim by failing to raise it at the administrative hearing;
and (5) the hearing proceeded in a manner required by law
because the “gravamen of [NOA 3], and [Danforth’s decision]
were zoning violations, not violations of the California Building
Code,” and, on those grounds, Lippman was distinguishable.
Plaintiffs timely appealed from the final judgment.
DISCUSSION
Plaintiffs raise many claims of error in this appeal,
including that their administrative hearing was unfair and did
not proceed according to law. They argue that the trial court
erred by rejecting their claims for traditional mandamus or
declaratory relief, and the trial court improperly excluded
evidence. We will address each claim, but we turn first to
plaintiffs’ main contention that Fremont’s process for
administrative appeals conflicts with Building Code section 1.8.8.
I. Claims Regarding Fremont’s Process for Appeals
As an initial matter, we note that the parties debate the
scope of available remedies with respect to plaintiffs’ preemption
claim. Plaintiffs seek administrative mandamus (Code Civ.
Proc., § 1094.5), and, although they treat declaratory and
traditional mandamus relief as interchangeable, they also seek
traditional mandamus relief to compel Fremont to perform a
mandatory duty (Code Civ. Proc., § 1085). Fremont argues that
the trial court correctly determined that this case could only
proceed under Code of Civil Procedure section 1094.5. We will
address traditional mandamus, post, but, given that all parties

8
agree the issue should be addressed under Code of Civil
Procedure section 1094.5, we will start there.
A. Standard of Review
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 of Civ. Proc., § 1094.5, subd. (a).) The statute limits the
court’s scope of review to: “[W]hether 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. 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.” (Id., subd. (b).)
“Regardless of the writ involved . . . where the facts are
undisputed, the reviewing court faces a question of law. ‘On
questions of law arising in mandate proceedings, we exercise
independent judgment.’ ” (Santa Clara Valley Transportation
Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) Further, “to
decide the meaning of [a statute], we apply our independent
review without reference to the trial court’s actions.” (Ibid.)

9
 B. Preemption
Fremont is a general law city.3 Under article XI, section 7
of the California Constitution, Fremont therefore “ ‘may make
and enforce within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws.’ ”
(Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th
893, 897.) A conflict between state law and a local ordinance
exists if the ordinance duplicates or is coextensive with state law,
it is contradictory or inimical thereto, or it enters an area either
expressly or impliedly fully occupied by state law. (Id. at
pp. 897–898.) “ ‘If otherwise valid local legislation conflicts with
state law, it is preempted by such law and is void.’ ” (Id. at
p. 897.)
C. The Municipal Code Conflicts with the Building
Code
The Applicable State Law
The California Building Standards Law (Health & Saf.
Code4, §§ 18901–18949.31) creates a process for adopting
statewide building standards, which are codified in title 24 of the
California Code of Regulations as the California Building
Standards Code. The California Building Standards Commission

3 Fremont confirmed its status as a general law city at oral

argument.
4 All further statutory references are to the Health &

Safety Code unless otherwise stated.

10
is required to publish an edition of the California Building
Standards Code every three years.5 (§ 18942, subd. (a).)
“The State Housing Law [§ 17910 et seq.] provides
statewide construction and occupancy standards for buildings
used for human habitation.” (Lippman, supra, 19 Cal.App.5th at
p. 757.) The State Housing Law incorporates the California
Building Standards Code and the requirements of various
uniform codes. (§ 17922.)6 The State Housing Law and the rules
and regulations promulgated pursuant thereto, and the
provisions of the California Building Standards Code “apply in all
parts of the state” “to apartment houses, hotels, motels, and
dwellings, and buildings and structures accessory thereto.”
(§ 17950.)

5 The California Building Standards Code currently

comprises multiple parts, including the California Administrative
Code, California Building Code, California Residential Code,
California Electrical Code, California Mechanical Code,
California Plumbing Code, California Energy Code, California
Historical Building Code, California Fire Code, California
Existing Building Code, California Green Building Standards
Code, and California Reference Standards Code.
6 Section 17922 states, in relevant part, “Except as

otherwise specifically provided by law, the building standards
adopted and submitted by the [Department of Housing and
Community Development] for approval pursuant to [the
California Building Standards Law], and the other rules and
regulations that are contained in Title 24 of the California Code
of Regulations . . . shall be adopted by reference . . . . The building
standards and rules and regulations shall impose substantially
the same requirements as are contained in the most recent
editions of the following international or uniform industry
codes . . . .” (§ 17922, subd. (a).)

11
 The State Housing Law allows cities and counties to adopt
local regulations imposing the same requirements as those
imposed in section 17922, and cities and counties may make
changes in the provisions adopted pursuant to section 17922 and
published in the California Building Standards Code if the city or
county makes express findings that the modifications are
reasonably necessary because of local climatic, geological, or
topographical conditions. (§§ 17958, 17958.5, 17958.7; see also
§ 18941.5, subd. (b) [city or county may establish more restrictive
building standards that are reasonably necessary because of local
climatic, geological, or topographical condition].)
At issue in this appeal is section 1.8.8 of the 2019 Building
Code7 entitled “APPEALS BOARD,” which provides:
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 enforcing
agency relative to the application and interpretation
of this code and other regulations governing
construction, use, maintenance and change of
occupancy. The governing body of any city, county, or
city and county may establish a local appeals board
and a housing appeals board to serve this purpose.
Members of the appeals board(s) shall not be
employees of the enforcing agency and shall be
knowledgeable in the applicable building codes,
regulations and ordinances as determined by the
governing body of the city, county, or city and county.

7 We grant plaintiffs’ request for judicial notice and take

judicial notice of the meeting minutes from Fremont’s City
Council as well as the statutes, regulations, and ordinances
attached to their request.

12
 Where no such appeals boards or agencies have
been established, the governing body of the city,
county, or city and county shall serve as the local
appeals board or housing appeals board as specified
in California Health and Safety Code Sections
17920.5 and 17920.6.

1.8.8.2 Definitions.
The following terms shall for the purposes of this
section have the meaning shown.

HOUSING APPEALS BOARD. The board or
agency of a city, county, or city and county which is
authorized by the governing body of the city, county,
or city and county to hear appeals regarding the
requirements of the city, county, or city and county
relating to the use, maintenance and change of
occupancy of buildings and structures, including
requirements governing alteration, additions, repair,
demolition and moving. In any area in which there is
no such board or agency, “Housing appeals board”
means the local appeals board having jurisdiction
over the area.

LOCAL APPEALS BOARD. The board or agency of
a city, county, or city and county which is authorized
by the governing body of the city, county, or city and
county to hear appeals regarding the building
requirements of the city, county, or city and county.
In any area in which there is no such board or
agency, “Local appeals board” means the governing
body of the city, county, or city and county having
jurisdiction over the area.

1.8.8.3 Appeals.
Except as otherwise provided in law, any person, firm
or corporation adversely affected by a decision, order
or determination by a city, county, or city and county
relating to the application of building standards
published in the California Building Standards Code,
or any other applicable rule or regulation adopted by

13
 the Department of Housing and Community
Development, or any lawfully enacted ordinance by a
city, county, or city and county, may appeal the issue
for resolution to the local appeals board or housing
appeals board as appropriate.

The local appeals board shall hear appeals
relating to new building construction and the housing
appeals board shall hear appeals relating to existing
buildings.

Lippman
In Lippman, Oakland issued citations for blight and
substandard living conditions on the plaintiff’s rental property.
(Lippman, supra, 19 Cal.App.5th at p. 754.) Oakland’s municipal
code at the time allowed the city manager to set procedures for
final decisions on administrative citations before hearing officers
(Oakland Mun. Code, §§ 1.12.080, subd. A, 1.12.080, subd. C); it
provided that a hearing officer would hear appeals of “orders,
decisions, or determinations made by the Building Official
relative to the application and interpretation of the non-
administrative (technical) requirements of [Oakland’s Building
Construction] Code” (Oakland Mun. Code, §§ 15.04.1.125,
subd. A, 15.04.025, subd. A); and it provided that a hearing
officer would render a final decision on appeals of building
maintenance code violations (id., §§ 15.08.410, subd. B,
15.08.420, 15.08.430, 15.08.450). (Lippman, at p. 759.) The
plaintiff’s appeals of the citations thus came before a single
hearing officer appointed by Oakland’s building services
department. (Ibid.) After the hearing officer denied the appeals,
the plaintiff petitioned for, among other things, a traditional writ

14
of mandate. (Id. at p. 755.) He argued that Oakland’s municipal
code conflicted with section 1.8.8 of the 2010 Building Code8 and
“his appeals should have been heard before the city council or an
appeals board instead of a single hearing examiner.” (Lippman,
at p. 755.) As is relevant here, the trial court denied his petition
for traditional mandamus, and the plaintiff appealed only that
denial. (Ibid.)
Finding that there was a conflict between local and state
law, this Division reversed the trial court’s ruling with respect to
traditional mandamus.9 (Lippman, supra, 19 Cal.App.5th at
pp. 760–762, 767.) The court explained that the plain language of
Building Code section 1.8.8.1 “establish[ed] an appellate process,
which may be satisfied in one of three ways: (1) by creating a

8 The text of section 1.8.8 in both the 2019 Building Code

and the current version of that code is the same as the 2010
version set forth in Lippman.
9 As a charter city, Oakland “ ‘gain[s] exemption, with

respect to its municipal affairs, from the “conflict with general
laws” restrictions of’ article XI, section 7.” (Sherwin-Williams
Co., supra, 4 Cal.4th at p. 897, fn. 5, italics omitted.) Lippman
accordingly applied the preemption analysis required when the
home rule doctrine applies. (Lippman, supra, 19 Cal.App.5th at
p. 757.) Thereunder, the court first resolves whether there is a
conflict using traditional preemption standards. (Lippman, at
p. 757; Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808,
1813–1814.) If so, the court asks whether the local legislation
impacts a statewide concern and whether the law reasonably
relates to the resolution of that concern and is narrowly tailored
to limit incursion into legitimate municipal interests. (Lippman,
at p. 757.) We do not discuss Lippman’s resolution of the last two
prongs of this analysis because they do not apply to general law
cities. (See Cultiva La Salud v. State of California (2023)
89 Cal.App.5th 868, 874–875.)

15
local appeals board for new construction and a housing appeals
board for existing buildings; (2) by creating an agency authorized
to hear such appeals; or (3) by having the governing body of the
city serve as the local appeals board or housing appeals board.”
(Lippman, at p. 760.) “[A]t minimum, there is a mandatory duty
to establish a local appeals board or an agency authorized to hear
appeals. And, if no such board or agency exists, the governing
body shall act as the local appeals board.” (Ibid.) The court
concluded, “[Oakland]’s process of authorizing an appeal to a
single hearing officer appointed by the enforcement agency is
contrary to the plain language of the State Housing Law and the
Building Code and is inconsistent with the legislative intent.
Accordingly, we conclude the municipal code conflicts with state
law to the extent it provides for an appeals process inconsistent
with the mechanism mandated by the Building Code and State
Housing Law.” (Id. at p. 762.)
The Municipal Code
Fremont’s Building Standards Code adopts the California
Building Standards Code with amendments pursuant to sections
18941.5, 17958.5, and 17958.7.10 (Mun. Code, §§ 15.05.010,
15.05.040.) The Fremont Building Standards Code is adopted
every three years in sequence with the California Building
Standards Code. (See Mun. Code, § 15.05.010.) The Building &
Safety Division is responsible for the Fremont Building

10 The provisions of the 2019 Fremont Building Standards

Code and the current 2022 Fremont Building Standards Code
cited herein are the same except when otherwise indicated.

16
Standards Code’s administration and enforcement. (Mun. Code,
§ 15.05.020.) Any violation of the Fremont Building Standards
Code is an offense as set forth in Municipal Code section 1.15.010
and “constitutes a public nuisance.” (Id., § 15.05.050.)
Municipal Code section 15.05.070, entitled, “Appeals,”
provides: “(a) Where the provisions of this title allow for a board
of appeals, the board shall be an administrative hearing officer
appointed by the city manager. The appeal shall follow the
process and procedures of [Municipal Code] Sections 8.60.120
through 8.60.150. The decisions of the hearing officer are final as
to the city. The hearing officer shall have no authority relative to
interpretation of the administrative provisions of this title nor
shall the hearing officer be empowered to waive requirements of
this title. [¶] (b) An application for appeal shall be based on a
claim that the true intent of this code has been incorrectly
interpreted, the provisions of this code do not fully apply or an
alternative provides at least the equivalent of that prescribed in
this code in quality, strength, effectiveness, fire resistance,
durability and safety.”11
Fremont has also adopted the International Property
Maintenance Code as part of the Fremont Building Standards
Code. (Mun. Code, §15.45.020.) It contains its own section

11 NOA 3 cited Municipal Code section 15.05.060 when

informing plaintiffs of the right to appeal. This appears to be a
typographical error as the appeals provision appeared at former
section 15.05.060 in the 2016 Fremont Building Standards Code
but was moved to section 15.05.070 in the 2019 Fremont Building
Standards Code.

17
related to appeals, stating: “111.1 Application for appeal. Any
person directly affected by a decision of the code official or a
notice or order issued under this code may appeal that decision,
notice or order by filing an appeal with the city clerk within
seven calendar days of the date of service of that decision, notice,
or order. . . [¶] 111.2 Notice of hearing. Notice of hearing and the
hearing shall be conducted as provided for in [Municipal Code]
Sections 8.60.130 through 8.60.150.” (Id., former § 15.45.130
[2016 & 2019]; id., § 15.45.080.)
Next, Fremont’s “Neighbor Preservation” law addresses
public nuisances. (Mun. Code, § 8.60.010 et seq.) “It shall be
considered a public nuisance and unlawful for any property
owner to maintain or to allow his/her property to be maintained
in a condition that is detrimental to public health, safety, or
general welfare or in a condition which violates any code or
ordinance adopted by the city.” (Id., § 8.60.040.) Whenever the
city manager or his or her designee determines that property is
maintained as a nuisance, notice for specific abatement of
nuisance must be given to the property owners. (Id., §§ 8.60.060,
8.60.090.)
Municipal Code sections 8.60.120 through 8.60.150 govern
appeals. “The property owner may appeal the specific abatement
of nuisance determination or the specific remedies and
administrative orders imposed by the city manager by filing an
appeal with the city clerk within seven calendar days of the date
of service of the notice for specific abatement of nuisance
determination.” (Id., § 8.60.120.) Once an appeal is filed, it must

18
be assigned by the city clerk to a single hearing officer who is
designated by the city manager, and the hearing officer must
schedule a hearing within 15 calendar days. (Id., §§ 8.60.130,
subds. (a)–(b), 8.60.150, subds. (a)–(c).) The hearing officer hears
and decides the appeal, and his or her statement of decision is
“final and conclusive.” (Id., § 8.60.150, subd. (b)(2)–(3).)
Fremont may also issue administrative citations for
violations of the Municipal Code; appeals of those citations are to
be heard by a hearing officer designated by the city manager, and
the hearing officer’s decision is “final and conclusive.” (Mun.
Code, §§ 1.20.030, subd. (a), 1.20.060, subds. (e), (h).)
Analysis
As a preliminary matter, we reject Fremont’s argument
that plaintiffs forfeited their preemption claim. Forfeiture may
apply where a party failed to raise an issue below, but forfeiture
is “not automatic” and is largely a matter of fairness to the trial
court and the opposing party. (Velasquez v. Centrome, Inc. (2015)
233 Cal.App.4th 1191, 1210–1211.) Here, although the trial court
believed plaintiffs had raised a new issue with respect to the
application of Lippman and Building Code section 1.8.8 in their
reply brief, the court declined to find forfeiture, it allowed
Fremont to submit a supplemental brief, it heard argument, and
it decided the issue. There is thus no reason to apply the
forfeiture doctrine.
Turning to the merits, we agree with plaintiffs that
provisions of the Municipal Code conflict with section 1.8.8 of the
Building Code. As Lippman observed, the “plain language of

19
Building Code section 1.8.8.1” mandates “that local governments
establish an appellate process, which may be satisfied in one of
three ways: (1) by creating a local appeals board for new
construction and a housing appeals board for existing buildings;
(2) by creating an agency authorized to hear such appeals; or (3)
by having the governing body of the city serve as the local
appeals board or housing appeals board. Notably, however, the
Building Code does not contemplate an appeal before a single
hearing officer.” (Lippman, supra, 19 Cal.App.5th at p. 760.)
“Consequently, at minimum, there is a mandatory duty to
establish a local appeals board or an agency authorized to hear
appeals. And, if no such board or agency exists, the governing
body shall act as the local appeals board.” (Ibid.)
Under Fremont’s process, a single hearing officer
designated by the city manager and then assigned by the city
clerk hears appeals relating to violations of the Fremont Building
Standards Code and public nuisance determinations premised on
those violations. (Mun. Code, §§ 8.60.130, 8.60.150, subd. (a),
15.05.050, 15.05.070, 15.45.080; see also id., former § 15.45.130.)
The hearing officer’s decision is final and conclusive. (Id.,
§§ 15.05.070, 15.45.080, 8.60.150, subd. (b)(3); see also id.,
former § 15.45.130 [2016 & 2019].) Fremont has not authorized a
board or a distinct agency possessing the qualifications required
by Building Code section 1.8.8.1, or, failing that, Fremont’s
governing body, to hear appeals from those adversely affected by
a “decision, order or determination by a city . . . relating to the
application of building standards published in the California

20
Building Standards Code, or any other applicable rule or
regulation adopted by the Department of Housing and
Community Development, or any lawfully enacted ordinance by a
city, county, or city and county.”12 (Building Code, § 1.8.8.3.) To
this extent, the Municipal Code conflicts with state law.
Fremont contends there is no conflict and Lippman is
distinguishable because this case involves public nuisance
determinations rather than administrative citations for building
code and maintenance violations. We disagree.
The appeals process in Building Code section 1.8.8 applies
to public nuisance determinations premised on Fremont Building
Standards Code violations. In Fremont, “It shall be considered a
public nuisance and unlawful for any property owner to maintain
or to allow his/her property to be maintained . . . in a condition
which violates any code or ordinance adopted by the city.” (Mun.
Code, § 8.60.040.) Similarly, under the Fremont Building
Standards Code, any violation thereof constitutes a public
nuisance. (Mun. Code, § 15.05.050.) Where a determination has
been made that there is a public nuisance because of a Fremont
Building Standards Code violation, that determination is
necessarily a determination that the Fremont Building
Standards Code was violated. Such determination falls squarely

12 Fremont makes no argument in this appeal that its local

process satisfies Building Code section 1.8.8’s “board or agency”
requirements or the regulation’s requirement that members of
such entities be knowledgeable in the applicable building codes,
regulations, and ordinances, as determined by the governing body
of the city. (Building Code, §§ 1.8.8.1, 1.8.8.2, 1.8.8.3.)

21
within the scope of Building Code section 1.8.8, which governs
the appeals process for those adversely affected by “orders,
decisions and determinations relating to the application” of
building standards published in the California Building
Standards Code or any lawfully enacted ordinance by a city.
(Building Code, § 1.8.8.3.)
Further, Fremont errs in claiming that Lippman is
distinguishable because it addressed only “the appeals process
arising solely from building code violations” and not public
nuisance determinations. In making a similar argument below,
Fremont submitted some of the publicly-available municipal code
sections that were at issue in Lippman. Former Oakland
Municipal Code section 15.08.410, subdivision B — the ordinance
Lippman described as providing the “specific administrative
hearing procedure[ ] used for building maintenance code
violations” (Lippman, supra, 19 Cal.App.5th at p. 759) —
established the appeals process for orders wherein Oakland
determined that a building or structure was substandard and a
public nuisance.
Next, we decline Fremont’s invitation to adopt the trial
court’s “gravamen” rule to find that, where determinations
relating to violations of its building code are at issue in addition
to determinations relating to violation of zoning codes, the
addition of the zoning code violations renders section Building
Code 1.8.8 inapplicable. While we accept that Building Code
section 1.8.8 does not govern appeals relating to the application
of Fremont’s zoning code, Fremont fails to provide any support,

22
nor do we believe any exists, for its “gravamen” argument as it
relates to orders, decisions, and determinations relative to
violations of the Fremont Building Standards Code. For those,
the required appeals process is clear. (Building Code, § 1.8.8.)
In sum, Fremont’s process of setting appeals before a
hearing officer conflicts with Building Code section 1.8.8 where
the appeal is from a “decision, order or determination by a city,
county, or city and county relating to the application of building
standards published in the California Building Standards Code,
or any other applicable rule or regulation adopted by the
Department of Housing and Community Development, or any
lawfully enacted ordinance by a city, county, or city and county.”
(Building Code, § 1.8.8.3.) As previously explained, Fremont has
adopted the California Building Standards Code as amended
pursuant to findings under sections 18941.5, 17958.5, and
17958.7. (Mun. Code, §§ 15.05.010, 15.05.040.) Plaintiffs have
thus established that the hearing before Danforth did not proceed
according to law with respect to their appeal of certain of NOA 3’s
nuisance determinations, but only the nuisance determinations
that were premised on violations of the Fremont Building
Standards Code.
Similarly, the hearing before Danforth did not proceed
according to law with respect to the NOV appeal. Plaintiffs
admit, and the record shows, that Fremont set the appeal of the
NOV for hearing before Danforth along with the appeal of NOA 3.
For reasons that are not clear, Danforth did not render a
substantive decision on the NOV appeal. Nonetheless, the NOV

23
involved determinations regarding violations of the Fremont
Building Standards Code, and for this reason, the hearing
process for appeal of the NOV did not proceed according to law.
Finally, we believe that the failure to provide an appeals
process adhering to section 1.8.8 of the Building Code was
prejudicial. As Lippman observed, the intent of Building Code
section 1.8.8 is to provide for separate enforcing and reviewing
bodies, and to ensure uniform application of state law.
(Lippman, supra, 19 Cal.App.5th at pp. 762, 764–765; see also id.
at p. 767 [describing “basic procedural protections” afforded by
Building Code section 1.8.8].) The deviation from this procedure
was material. (Cf. Mileikowsky v. West Hills Hospital & Medical
Center (2009) 45 Cal.4th 1259, 1275–1276 [finding reversible
error where doctor did not receive statutorily-mandated review
hearing before an independent panel with respect to
recommended denial of staff privileges].)
II. Traditional Mandamus
“[A] writ of mandate under section 1085 is available where
the petitioner has no plain, speedy and adequate alternative
remedy; the respondent has a clear, present and usually
ministerial duty to perform; and the petitioner has a clear,
present and beneficial right to performance.” (Conlan v. Bonta
(2002) 102 Cal.App.4th 745, 752.)
This suit is broad enough to encompass a challenge to
Fremont’s practice of refusing to provide for an appeals process
required by Building Code section 1.8.8. While the petition was
not well drafted, the caption mentioned Code of Civil Procedure

24
section 1085, plaintiffs complained of Fremont’s failure to set a
hearing before the city council, and they sought “judicial
enforcement of the [Fremont’s] mandatory duties and obligations
with regard to review of appeals of Notices of Violation.”
Plaintiffs developed their claims below, and the preemption issue
presents a question of law. Thus, it is appropriate to treat this as
a case seeking traditional mandamus relief as well as
administrative mandamus relief. (See Ochoa v. County of Kern
(2018) 22 Cal.App.5th 235, 241, fn. 5 [mandamus to review police
department employment decision converted by court from Code of
Civil Procedure section 1085 to section 1094.5]; Mahdavi v. Fair
Employment Practice Com. (1977) 67 Cal.App.3d 326, 336–341
[reviewing case as a traditional writ on appeal although action
was filed only as an administrative writ proceeding].)
The issuance of a traditional writ of mandamus is
warranted here. Plaintiffs stand in a similar position to the
plaintiff in Lippman who received traditional mandamus relief,
and we agree with Lippman that “there is a mandatory duty to
establish a local appeals board or an agency authorized to hear
appeals. And, if no such board or agency exists, the governing
body shall act as the local appeals board.” (Lippman, supra,
19 Cal.App.5th at p. 760.) Fremont has not performed this
mandatory duty. Further, “[i]t is not inconsistent to award relief
under both sections 1094.5 and 1085 of the Code of Civil
Procedure.” (Conlan v. Bonta, supra, 102 Cal.App.4th at p. 752.)

25
III. Additional Declaratory Relief and Code of Civil
Procedure Section 1085 Claims
Plaintiffs next contend that the trial court erred in
rejecting their “declaratory relief and Section 1085 claims” by
ruling, “There is no cause of action for declaratory relief in an
administrative mandamus case.” Here, plaintiffs reiterate the
argument that Building Code section 1.8.8 preempts Fremont’s
administrative appeals process, and they state the court should
have decided their claims of “whether Fremont improperly
refused” to set NOA 2 and NOA 2A13 for appeal hearings and
“whether particular statutes that Fremont had charged Plaintiffs
with were actually inapplicable to the [property].” Fremont
responds that its appeals process did not conflict with state law,
and plaintiffs cannot use a declaratory relief claim to review an
administrative determination. As set forth below, plaintiffs have
not established any additional grounds for reversal.
First, a party may join a complaint for declaratory relief
with a writ petition in certain circumstances (Asimow et al.,
California Practice Guide: Administrative Law (The Rutter
Group 2023), § 13:375), but Fremont is correct that an action for
declaratory relief is not available to challenge Danforth’s or
Fremont’s application of statutes to the property. (Tejon Real
Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149,

13 Plaintiffs also mention the NOV, but we have already

determined that the appeals hearing for the NOV did not proceed
according to law.

26
152 (Tejon Real Estate, LLC) [declaratory relief is not appropriate
to challenge the application of a regulation to plaintiff’s land].)14
Next, plaintiffs cannot show a present and actual
controversy entitling them to a judicial declaration that Fremont
has an obligation to set NOA 2 and NOA 2A for hearing. (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [requirement for
declaratory relief is a present and actual controversy between
parties].) The administrative record shows that NOA 2A
“amend[ed] and supersede[d]” NOA 2, and NOA 3 “amend[ed]
and supersede[d]” NOA 2A. NOA 3 is accordingly the only
operative nuisance order.
Finally, to the extent that plaintiffs reiterate their
preemption argument, we have already explained that a
traditional writ of mandate is warranted to compel Fremont to
comply with a mandatory duty.

14 Plaintiffs do not elaborate on the substance of this claim,

but the record suggests that they sought a judicial determination
of whether the California Environmental Quality Act, the
Williamson Act, and Measure T (which regulates Fremont’s Hill
Open Space area) apply to their property because of Fremont’s
actions in an ongoing permitting process that Lee started in
2019. Declaratory relief is not available to challenge whatever
decision may come out of the administrative permitting process.
(Tejon Real Estate, LLC, supra, 223 Cal.App.4th at p. 152.)
Danforth applied Measure T, but plaintiffs do not argue in this
appeal that they were entitled to a writ of administrative
mandamus because Danforth committed legal error in doing so,
and they do not present a proper substantial evidence challenge
to Danforth’s decision (see post, fn. 16).

27
IV. Claims Related to the Fairness of the Administrative
Hearing
We have determined that Building Code section 1.8.8
preempts Fremont’s appeals process for local enforcement orders,
decisions, and determinations premised on violations of the
Fremont Building Standards Code, including nuisance
determinations based on violations of the Fremont Building
Standards Code. However, the State Housing Law reserves to
local jurisdictions power over “local use zone” requirements.
(§ 17922, subd. (c).) Building Code section 1.8.8 does not
invalidate the appeal before Danforth of the nuisance
determinations that were premised on zoning code violations.
Accordingly, we turn next to plaintiffs’ remaining challenges to
the fairness and propriety of the administrative hearing.
A. Excess of Jurisdiction
Plaintiffs claim (without any citation to the record) that
Danforth ordered demolition of every structure on their property,
and, in doing so, exceeded her jurisdiction or failed to proceed in a
manner required by law. Plaintiffs’ main contention is that the
procedures for demolition set forth in Municipal Code sections
8.60.100 and 8.60.110 were not followed because Fremont did not
provide a “ ‘competent declaration under penalty of perjury by the
city manager, describing the specific conditions existing in the
structure which justify the demolition.’ ”
The statutes upon which plaintiffs rely are inapplicable
because they address only abatement of a nuisance by Fremont.
Summary specific abatement by Fremont is allowed after giving

28
the requisite notice for property that the city manager
determines “is imminently dangerous to the life, limb, health or
safety” of occupants, users of the property, or the public. (Mun.
Code, §§ 8.60.100, subd. (a), 8.60.100, subd. (d).) If the property
owner cannot be located or fails to abate the nuisance, the city
manager may abate the nuisance to the extent necessary to
remedy immediate danger. (Ibid.) But “no imminently
dangerous building or property shall be abated by demolition”
without a declaration from the city manager meeting the
requirements of the code. (Id., § 8.60.100, subd. (e).) Distinct
from summary specific abatement, Fremont may also abate a
nuisance where the property owner fails to comply with a notice
to abate and he or she has not appealed an abatement order.
(Id., § 8.60.110, subd. (a).) In that situation, where Fremont
intends to abate by demolition, a declaration from the city
manager meeting the requirements of the code is also required.
(Id., § 8.60.110, subd. (e).) Here, Fremont did not act to abate the
nuisance by demolition; instead, it sought to compel plaintiffs to
abate the nuisance.
Plaintiffs also cite Hawthorne Savings & Loan Assn. v. City
of Signal Hill (1993) 19 Cal.App.4th 148 (Hawthorne), but they
fail to show error in Danforth’s decision. Hawthorne applies the
constitutional principle that a property owner must be given the
option to repair or demolish a substandard or unsafe building
where repair is possible.15 (Id. at pp. 158–163.) Here, with the

15 Section 17980 codifies this rule for buildings determined

to be substandard under section 17920.3 and allows a reasonable

29
exception of violation 8 (flat work and hardscape work, including
cut and fill of soil), Danforth allowed plaintiffs to apply to legalize
structures where possible, and, where a structure or portion
thereof could not be legalized because plaintiffs built on
constrained land or within a riparian corridor, Danforth ordered
removal. For violation 8, Danforth concluded the work could not
be legalized, but plaintiffs do not address this violation
specifically or show that Danforth erred because repair was an
option. Nor do plaintiffs adequately present and support an
argument on appeal showing that due process requires that they
be allowed to leave structures within a riparian corridor or on
constrained land such that Danforth’s order to legalize or remove
(which could entail moving the structures capable of being
moved) was error.
B. Evidentiary Rulings
Plaintiffs argue that there were due process violations and
an unfair hearing because: (1) Danforth excluded plaintiffs’
exhibits for being untimely, while at the same time allegedly
excusing Fremont from producing documents; (2) Danforth
excluded a report from a soils engineer; (3) Danforth excluded
certain exhibits for lack of authentication; and (4) Danforth
required plaintiffs, but not Fremont, to make formal requests to
enter exhibits into evidence.
The first and fourth claims are factually inaccurate. With
respect to exhibits submitted by plaintiffs after the deadline,

opportunity to repair. (Hawthorne, supra, 19 Cal.App.4th at
pp. 159–160; § 17980, subd. (c).)

30
Danforth determined that she would look at the late documents
“as they [came]” and make determinations about admissibility.
Plaintiffs do not provide any record citations showing that
Danforth excluded any exhibits due to untimeliness. Regarding
Fremont’s alleged production, the record to which plaintiffs cite
shows only a discussion of a public records act request, the
enforcement of which was not before Danforth. And Danforth
reminded both parties to make requests to enter exhibits into
evidence.
Next, plaintiffs fail to establish that Danforth excluded
evidence that they sought to introduce, and they fail to show
prejudice. Fremont objected when plaintiffs’ expert began
reading into the record a 2011 soils report that had not been
produced, and Danforth stated she would not consider the report
as evidence of what was asserted therein. The record is clear,
however, that plaintiffs did not seek to introduce the report into
evidence and instead stated that they sought to refresh their
expert’s recollection that he had reviewed studies regarding the
property. Further, even if this report was improperly excluded,
plaintiffs present no reasoned analysis establishing prejudice.
(See Thornbrough v. Western Placer Unified School Dist. (2013)
223 Cal.App.4th 169, 200 (Thornbrough) [evidence exclusion at
administrative hearing does not provide grounds for reversal
unless error resulted in a miscarriage of justice].)
Plaintiffs’ claim of unfairness resulting from exhibits
excluded for lack of authentication fares no better. The record
reflects that, on the last day of the hearing, Fremont reviewed

31
the exhibits it had entered into evidence, and Danforth asked
plaintiffs to do the same. Then, when Danforth reviewed
plaintiffs’ exhibits, she listed those that had been admitted,
excluded others for lack of authentication, and admitted one
additional exhibit. Plaintiffs also agreed during this review that
some of their exhibits were duplicative of Fremont’s and need not
be admitted. Plaintiffs do not describe the content of the exhibits
excluded for lack of authentication in any detail, and they fail to
provide any reasoned argument regarding prejudice. Thus, even
if we assume there was error with respect to Danforth’s
authentication rulings, plaintiffs’ claim fails. (Thornbrough,
supra, 223 Cal.App.4th at p. 200.)
Finally, plaintiffs contend that Danforth received some
speculative testimony from unqualified witnesses. However, they
do not pursue a substantial evidence challenge to Danforth’s
decision in this appeal, and we accept the trial court’s
unchallenged ruling that substantial evidence supported the
hearing officer’s findings.16 Thus, we cannot conclude that
plaintiffs have shown that the admission of purportedly
speculative testimony rendered the decision here prejudicially
unfair.

16 Plaintiffs do not appear to raise any argument based on

lack of substantial evidence. If they intended to raise such a
challenge, they have forfeited it by failing to include a fair and
complete statement of all facts supporting the judgment in their
opening brief. (Doe v. Roman Catholic Archbishop of Cashel &
Emly (2009) 177 Cal.App.4th 209, 218.)

32
 C. Financial Bias
Plaintiffs next argue, but do not establish, that Fremont’s
process for selecting and compensating a hearing officer violates
due process. (Haas v. County of San Bernardino (2002)
27 Cal.4th 1017, 1025 (Haas).)
In Haas, our Supreme Court found that the practice of
hiring temporary administrative hearing officers on an ad hoc
basis and paying them according to the amount of work
performed gave the hearing officers an impermissible financial
interest in the outcome of the cases they were appointed to
decide. (Haas, supra, 27 Cal.4th at p. 1024.) The court cautioned
that counties that appoint temporary administrative hearing
officers must do so in a way that does not create the risk that
favorable decisions will be rewarded with future remunerative
work. (Id. at p. 1020.) However, the court remarked, “While we
do not require any particular set of rules . . . to suggest some
procedures that might suffice to eliminate the risk of bias may be
helpful. . . . A county that needed more hearing officers
might . . . appoint a panel of attorneys to hear cases under a
preestablished system of rotation.” (Id. at p. 1037, fn. 22.)
Here, even assuming that Danforth’s contract, tendered in
Fremont’s request for judicial notice below, is the relevant
contract (Thornbrough, supra, 223 Cal.App.4th at p. 189), the
contract shows that Fremont followed rotation procedures like
those described by our high court in Haas. (Haas, supra,
27 Cal.4th at p. 1037, fn. 22.) Fremont maintained a list of
hearing officers whose names appeared in random order, and,

33
when hearing officer services were required, Fremont selected the
person at the top of that list. A hearing assigned to a hearing
officer constitutes a turn on the list, and the hearing officer is put
on the bottom of the list after taking his or her turn. As such,
plaintiffs’ financial bias claim fails.
Nor do plaintiffs convincingly argue that bias — financial
or otherwise — arises from section 4 of Danforth’s contract. This
provision, entitled, “Authorized Representatives,” designates
Danforth as the authorized representative to perform under the
contract, and continues: “City’s Authorized Representative. For
the performance of services under this Agreement, [the hearing
officer] shall take direction from the City’s Authorized
Representative Harvey Levine, City Attorney, unless otherwise
designated in writing by the City’s Authorized Representative or
the City Manager.” Plaintiffs maintain that this shows that
Fremont controlled the administrative hearing. But even if we
were to find the “take direction” language ambiguous, the “Scope
of Services” provision clearly states that Danforth shall
“[c]onduct an independent, objective, fair and impartial
Administrative Hearing in accordance with Federal, State and
local laws and the regulations promulgated by the City
Manager.” The contract thus does not provide that Danforth will
defer to Fremont’s instruction regarding how to decide
administrative hearings. (See United Farmers Agents Assn., Inc.
v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 495 [courts
strive to “ ‘give effect to all of a contract’s terms, and to avoid

34
interpretations that render any portion superfluous, void or
inexplicable’ ”].)
Finally, plaintiffs suggest bias existed because the law firm
that “advertised that Ms. Danforth worked for it as of 2020 also
counted Fremont as one of its clients.” Below, they submitted a
request for judicial notice that attached pages purportedly from
this firm’s website showing that Fremont was a firm client in
August 2022 after the hearing at issue. The trial court denied
their request on hearsay and relevancy grounds, and it found the
document was not a proper subject for judicial notice. Plaintiffs
ignore the grounds for the trial court’s denial, and they do not
cite authority or provide reasoned analysis establishing that the
ruling was in error. As such, they have forfeited this claim.
(Thornbrough, supra, 223 Cal.App.4th at p. 189 [plaintiff
forfeited claim of error related to court’s exclusion of evidence by
failing to present argument attacking grounds for exclusion].)
D. Dual Roles
Plaintiffs assert that they were denied due process because
deputy city attorney Bronwen Lacey acted as both an advocate
for Fremont and an advisor to Danforth at the administrative
hearing, and because Danforth acted as an advocate for Fremont.
There was no due process violation.
“Case law establishes that an attorney cannot act as both
an advocate for an agency and then as an adviser to the decision
maker who reviews the result that the advocate achieved.”
(Sabey v. City of Pomona (2013) 215 Cal.App.4th 489, 495.) In
Nightlife Partners, Ltd. v. City of Beverly Hills (2003)

35
108 Cal.App.4th 81 (Nightlife), the main authority plaintiffs rely
upon, the same attorney took “an active and significant part in
the renewal application process” for a cabaret’s permit, and then
“also appeared and participated in the administrative review of
the denial of that application by advising and assisting” a city
employee acting as a hearing officer. (Id. at p. 90.) The court
held that substantial evidence supported the trial court’s
conclusion that the attorney acted in this dual capacity, and it
found that this dual role violated petitioner’s right to due process.
(Id. at pp. 87–90, 98.) The court noted that “ ‘[t]he due process
rule of overlapping functions in administrative disciplinary
proceedings applies to prevent the participant from being in the
position of reviewing his or her own decision or adjudging a
person whom he or she has either charged or investigated.’ ” (Id.
at p. 92.)
Viewing the existence of the dual role as a foundational
issue of fact reviewed for substantial evidence (Nightlife, supra,
108 Cal.App.4th at p. 87) and the unfairness as question of law
subject to de novo review (Clark v. City of Hermosa Beach (1996)
48 Cal.App.4th 1152, 1169–1170), we find no error with respect to
Lacey. First, we note that plaintiffs fail to show that they
objected to Lacey’s alleged dual role despite their obvious
presence at the administrative hearing. (See Attard v. Board of
Supervisors of Contra Costa County (2017) 14 Cal.App.5th 1066,
1083 [when a litigant suspects bias on the part of a member of an
administrative hearing body, the issue must be raised in the first
instance at the hearing].) Second, while Lacey undisputedly

36
served as Fremont’s counsel, plaintiffs’ record citations do not
show that she, like the attorney in Nightlife, advised the entity
that reviewed the decision for which she advocated.
Plaintiffs’ claim regarding Danforth similarly fails. We
have reviewed plaintiffs’ record citations, and they do not
establish that Danforth stepped outside of her role as an
administrative hearing officer to act as an advocate for Fremont.
As such, we find no support for plaintiffs’ contention that bias
infected the proceeding or rendered it fundamentally unfair.
E. Exclusion of the Lee Declaration
Plaintiffs finally contend, briefly, that the trial court should
have augmented the record to include statements from Lee’s
declaration below showing that attorney Lacey was involved in
the code enforcement process, Lee’s statement that she thought
Danforth worked for Fremont, and unspecified “other facts” that
Lee offered about exhibits excluded by Danforth.
“ ‘The general rule is that a hearing on a writ of
administrative mandamus is conducted solely on the record of the
proceeding before the administrative agency. [Citation.]’
[Citation.] Augmentation of the administrative record is
permitted only within the strict limits set forth in [Code of Civil
Procedure] section 1094.5, subdivision (e) . . . .” (Pomona Valley
Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th
93, 101.) Code of Civil Procedure section 1094.5, subdivision (e)
provides in pertinent part: “Where the court finds that there is
relevant evidence that, in the exercise of reasonable diligence,
could not have been produced or that was improperly excluded at

37
the hearing before respondent [agency], it may enter
judgment . . . remanding the case to be reconsidered in the light
of that evidence; or, in cases in which the court is authorized by
law to exercise its independent judgment on the evidence, the
court may admit the evidence at the hearing on the writ without
remanding the case.”
Plaintiffs do not brief the requirements for augmentation
under the governing statute or show how they were met. By
failing to do so, they have waived the claim that the trial court
manifestly abused its discretion in declining to consider the
alleged evidence. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 [“ ‘Appellate briefs must provide
argument and legal authority for the positions taken. . . .’ ‘We are
not bound to develop plaintiffs’ arguments for them. [Citation.]
The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived’ ”].)
DISPOSITION
The judgment denying mandamus relief is reversed as
follows: On remand, the trial court is directed to issue a
traditional writ of mandate compelling Fremont to establish an
appeals board or authorized agency to hear appeals or provide for
an appeal to its governing body as required by section 1.8.8 of the
Building Code.
The trial court is also ordered to issue a writ of
administrative mandate compelling Fremont to set aside the
administrative hearing decision sustaining the nuisance
determinations in NOA 3 that are premised on violations of the

38
Fremont Building Standards Code and to provide for an appeal
for those nuisance determinations to an appeals board or
authorized agency to hear appeals or to its governing body as
required by section 1.8.8 of the Building Code.
The trial court is further ordered to issue a writ of
administrative mandate compelling Fremont to provide for an
appeal of the NOV to an appeals board or authorized agency to
hear appeals or to its governing body as required by section 1.8.8
of the Building Code.
In all other respects, the judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
SMILEY, J.

Temple of 1001 Buddhas v. City of Fremont (A167719)


Judge of the Superior Court of California, County of
Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

39
Trial Court: San Francisco City & County Superior Court

Trial Judge: Hon. Frank Roesch

Counsel: Thigpen Legal, PC, Jordana Thigpen for Plaintiffs and
Appellants.

Allen, Glaessner, Hazelwood & Werth, LLP, Kimberly Y.
Chin, Maria Nozzolino, Lori Sebransky for Defendant and
Respondent.