Opinion
B226416
12-22-2011
SAM PASSALACQUA, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.
Allen Matkins Leck Gamble Mallory & Natsis and Francis N. Scollan for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney and Kim Rodgers Westhoff, Deputy City Attorney, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS120343)
APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed.
Allen Matkins Leck Gamble Mallory & Natsis and Francis N. Scollan for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney and Kim Rodgers Westhoff, Deputy City Attorney, for Defendants and Respondents.
Appellant Sam Passalacqua appeals from the superior court's order denying his petition for writ of mandate. Appellant contends respondents City of Los Angeles (City), the Board of Building and Safety Commissioners (Board or Commission), and the City of Los Angeles Department of Building and Safety (Department) (1) did not provide him a fair hearing in that the Board failed to accommodate his hearing impairment, and (2) abused their discretion (a) in purportedly failing to make findings to support the decision to deny appellant's request for a six-month extension of an order to demolish a fire-damaged dwelling, and (b) in including the dwelling's garage in the demolition order. We disagree and therefore affirm.
FACTS AND PROCEDURAL HISTORY
Appellant is the present owner of a property located at 3124-3128 North Griffin Avenue in the City of Los Angeles. In 2002, fire significantly damaged the house located at 3124 North Griffin Avenue. An inspector with the Department rated the house as 96.5 percent fire damaged. The property has continued to be vacant and unrepaired since the fire in 2002.
Because the house was uninhabitable, the property fell out of compliance with the Los Angeles Municipal Code. Over the next six years, the City had a number of communications with appellant and ultimately issued three orders to comply, a notice to abate vacant structure(s) and a notice of intention to demolish building(s). A notice that the premises were determined to be hazardous, substandard or a nuisance was recorded with the Los Angeles County Registrar-Recorder in January 2008, and a notice of intent to demolish in July 2008.
A December 17, 2002 order to comply directed the owner to repair and replace or clean and secure the fire-damaged structure and to clean the lot, remove excessive vegetation and remove graffiti. Supplemental orders to comply to the same effect were issued on August 9, 2003, and August 5, 2004.
In July 2008, appellant requested an extension of time of six months to comply with the demolition order by reason of his poor health and need for immediate medical treatment.
The Board set appellant's request for an extension for hearing on January 27, 2009. Appellant was served with notice of the hearing on January 16, 2009. In the interim, appellant corresponded and met with staff from the Department, and copies of the staff reports were made available to him. In a faxed letter of January 22, 2009, addressed to Senior Inspector Andrew Longoria, appellant mentioned a hearing disability but did not ask for special accommodations at the upcoming hearing.
Appellant's letter simply thanked Longoria "for your patience with my hearing disability" at a meeting the previous day.
At the hearing before the Board, Longoria testified and informed the Board he would read prepared written remarks because the owner (appellant) had stated he was hard of hearing and "require[d] assistance." Longoria informed the Board: "Staff has taken reasonable actions to assist [appellant] for this hearing and this is one of them. Staff has met with the owner as well as used faxes to try to be as clear as possible on Board procedures and what is required to comply." Longoria read his presentation to the Board, which consisted of relevant Los Angeles Municipal Code excerpts, a copy of the abatement order and prior orders to comply. An inspector's note from April 2003 indicated the inspector met the owner at the site and was told the owner would perform the demolition himself because of a lack of funds; on July 23, 2003, the owner came to the Department's counter to request an extension of time for a City Attorney hearing in order to obtain legal representation. When appellant still did not comply, the Department issued another order to compel on August 9, 2003. Appellant spoke to a hearing officer and agreed to have the property cleaned up by September 9, 2003, so that a City demolition contractor could demolish the remaining structure by September 22, 2003. On September 18, 2003, appellant returned to the Department's counter to request additional time to comply because his mother was in the hospital. The Department rescheduled site inspections so appellant could attend to his sick mother. The Department issued another order to comply in August 2004. When appellant again failed to comply, the matter was referred to the contract nuisance abatement section for enforcement.
Longoria informed the Board that an inspector from the abatement section was dispatched to the site and observed the damaged structure and issued an abatement order, which was posted on the property. Longoria showed slides of the abatement order and of the charred building. His presentation also included copies of the inspector's 96.5 percent building damage estimate, notice of intention to demolish building(s) and appellant's request for a six-month extension and supporting letter. The written presentation further informed the Board in a meeting with Department staff on January 26, 2009, appellant had claimed demolition was "70% completed." However, appellant was choosing not to understand that removal of the garage as well as the fire-damaged house was required for compliance, as the Los Angeles Municipal Code did not allow an accessory building to remain onsite without a main building.
In lieu of oral testimony, appellant presented a written statement dated January 26, 2009, to the Board, which stated that because of his hearing impairment "writing this [statement] will be less stressful for all." Appellant testified that 3124 North Griffin Avenue was jointly owned by him and his mother. After the house burned, his mother became very distraught, as it was their family home for three generations. He could not discuss the home with her, and thus the issue remained dormant. Shortly thereafter, his mother became ill and required hospitalization and 24-hour caregivers. Appellant paid for his mother's care and became financially depleted. Therefore, with the help of his daughter he began the demolition work himself. He estimated that the work was then 66 percent done. He stated that the property was completely fenced and received scheduled yard cleanups, graffiti on the street wall was promptly painted over and that the neighbors were supportive. He asked the Board to allow him to complete his work. Appellant also mentioned having a medical problem for which he would need to undergo additional tests in March. He informed the Board the medical prognosis was poor, and he probably would be forced to sell the property but needed more time to finish the project.
The Board minutes reflect that appellant stated at the hearing that he and his daughter were taking the building down a little at a time because he could not afford a demolition contractor and that appellant agreed the building should be demolished but he needed a loan to finish the work. The Board minutes indicate that questions and comments from the Board to appellant were written out for appellant by a senior clerk typist for the Commission office and he verbally responded.
After taking the presentations into consideration, the Board found that the dwelling and garage at 3124 North Griffin Avenue constituted a nuisance, substandard building or a hazardous building in violation of Los Angeles Municipal Code section 91.8902. The Board further determined that the dwelling and garage at that address should be demolished. Finally, the Board denied appellant's request for an extension of time to comply with the order to demolish. The Board made an express finding that the condition of the existing 96.5 percent fire-damaged single family dwelling constituted a substandard and hazardous building under section 91.8902. The Board notified appellant of his right to seek judicial review of its decision.
Appellant filed a petition for writ of mandate with the superior court. Appellant alleged he had a vested interest in preserving his personal property from destruction and loss threatened by the City. Purportedly, the fire at the dwelling dropped three generations of "family heirlooms and artifacts" into the basement, together with materials related to appellant's profession. Appellant alleged he was a longtime employee of prominent Los Angeles architects Ray and Charles Eames. He equated the recovery process with an "archeological dig" requiring time-consuming work and great care hampered by appellant's poor medical condition. He alleged that such work was over two-thirds complete. Appellant alleged he needed more time to finish his work and to take measurements of his home in order to reconstruct a new family home on the property. Appellant questioned whether the Board made sufficient accommodation at its hearing for his hearing impairment and alleged that the arrangement of having a staff member write notes of what was being said was "doomed to fail, and it did." He alleged this process rendered him "out of step" with the proceedings, causing him embarrassment, and denied him a fair trial. Appellant asserted claims for (1) administrative mandamus (Code Civ. Proc., §§ 1085, 1086 & 1094.5) and stay of the Board's decision; (2) denial of substantive and procedural due process of law under title 42 of the United States Code section 1983, (3) denial of substantive and procedural due process under the California Constitution; and (4) injunctive relief.
In opposition, respondents cited among other things the City's six-year long relationship with appellant, during which appellant received extension after extension of time to comply in removing the nuisance, and the City's unsuccessful attempts to accommodate appellant's medical condition and lack of finances.
The superior court denied appellant's petition and entered a judgment for respondents. The court found the uncontested evidence at the administrative hearing showed the house had been burned in a fire and its remains had been left on the property for a long time without being repaired, replaced or demolished. The court ruled appellant's argument that he was not provided a fair hearing because he is hearing impaired and was not provided with "assistive listening devices or real time transcription" as allegedly required by Civil Code section 54.8 (section 54.8) to be without merit. Section 54.8, the court noted, requires that a party to an administrative hearing be provided with "a functioning assistive listening system" upon request. However, the court determined, "[a]ssistive listening systems" are not limited to "special devices which transmit amplified speech by means of audio-induction loops, radio frequency systems (AM or FM) or . . . infrared transmission." The court found that "[t]he administrative record contains no evidence that [appellant] requested personal receivers, headphones, neck loops, or anything other than the assistance that was provided to him. The assistance that was provided to [appellant] was the appointment of a senior clerk typist for the Commission to assist [appellant] by writing questions for him to read that were asked by the Commissioners. The City's case against [appellant] was reduced to writing and [appellant] was given a copy of the presentation of the case to read while the presentation was read by a representative of the City. [Citation.] The administrative record contains substantial evidence that the City complied with the requirements of . . . section 54.8."
The trial court also rejected appellant's contention that the Board failed to make findings as to whether appellant was entitled to further time to complete his work on the property. Los Angeles Municipal Code section 91.8903.7.2(C), the court observed, required the Board to "make findings and determine . . . how much time, if any, should be given for compliance with the Department's order." In compliance with the ordinance, the court ruled, the Board made a finding that "any further exten[s]ions of time in which to comply" with the City's orders should be denied and that finding was sufficient compliance with the ordinance. This finding, the court found, was supported by substantial evidence in that at the time of hearing the building to be demolished had been burned and unoccupied for over six years.
Appellant timely appealed from the judgment.
CONTENTIONS
Appellant contends (1) the Board failed to provide him with a fair hearing in failing to accommodate his hearing impairment; (2) the Board abused its discretion by (a) failing to make any findings to support its decision and (b) including the garage in the demolition order. Respondents assert that substantial evidence supports the Board's decision to deny appellant's request for extension of time; appellant forfeited his claim that the accessory building was misclassified by failing to timely raise the issue; and appellant failed to request accommodation for his hearing impairment and, in any event, he received adequate accommodations.
STANDARD OF REVIEW
On review in administrative mandamus, "[o]ur role is to consider whether the administrative agency committed a prejudicial abuse of discretion by examining whether the findings support the agency's decision and whether substantial evidence supports the findings in light of the whole record." (Dore v. County of Ventura (1994) 23 Cal.App.4th 320, 326-327, citing Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515 (Topanga).) We may not interfere with discretionary judgments made by the administrative agency and must resolve reasonable doubts in favor of its findings and decision. (Topanga, at p. 514; Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1182; Dore, at p. 326.) Even if a contrary finding would have been equally or more reasonable, we may not substitute our judgment for that of the agency. (West Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1518; Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 155.) However, the agency rendering the challenged decision must set forth findings "to bridge the analytic gap between the raw evidence and ultimate decision or order." (Topanga, supra, at p. 515; West Chandler, supra, at p. 1518.)
DISCUSSION
1. Substantial Evidence
The record before us establishes substantial evidence for the Board's denial of appellant's request for a six-month extension of time of the order to demolish. It was uncontroverted that the dwelling on the property was 96.5 percent destroyed by fire in 2002. The evidence showed that since December 2002, appellant has received from the City three orders to comply, a written warning of prosecution, a notice to abate, a notice of intent to demolish and a public hearing before the Board. In over six years since the fire, appellant has made only partial and halting progress in complying with the City's attempts to obtain compliance. The slides presented to the Board depicted a ruined structure in complete disrepair and incapable of habilitation. Despite appellant's past assurances to the contrary, past forbearance by the City failed to achieve appellant's compliance. Indeed, given appellant's lack of progress over the preceding six-plus years, the City had no guarantee that appellant could or would comply with the abatement order even if he were granted a six-month extension. On appeal, appellant does not dispute that substantial evidence supports the Board's denial but raises solely technical objections to the Board's decision.
Respondents point out that appellant in fact has already received the requested six-month extension in that more than two years have elapsed since the Board hearing denying appellant a six-month extension of time. Respondents note that this case is arguably moot because appellant has already received a de facto extension. Because no party has advised the court the offending structures have been removed, however, we will assume the matter is not moot.
As we discuss, those objections are not well taken.
2. Fair Hearing
Appellant contends the Board failed to provide him a fair hearing because it failed to properly accommodate his hearing impairment as allegedly required by section 54.8. Appellant asserts that respondents knew he was hearing impaired and "require[d] assistance" for that disability but failed to provide proper accommodation. We disagree.
Subdivision (a) of section 54.8 provides in pertinent part: "In any civil or criminal proceeding . . . , or in any administrative hearing of a public agency, where a party, witness . . . or other participant who [sic]is hearing impaired, the individual who is hearing impaired, upon his or her request, shall be provided with a functioning assistive listening system or a computer-aided transcription system. Any individual requiring this equipment shall give advance notice of his or her need to the appropriate court or agency at the time the hearing is set or not later than five days before the hearing." The statute further provides: "Assistive listening systems include, but are not limited to, special devices which transmit amplified speech by means of audio-induction loops, radio frequency systems (AM or FM), or infrared transmission. Personal receivers, headphones, and neck loops shall be available upon request by individuals who are hearing impaired." (Id., subd. (b).)
Respondents gave appellant notice by certified mail of the January 27, 2009 hearing on January 16, 2009. The notice advised that "the City . . . does not discriminate on the basis of disability and, upon request, will provide reasonable accommodation to ensure equal access . . . ." Appellant asserts that respondents "knew" he was hard of hearing based on Longoria's statement in his written presentation that "the owner has stated that he is hard of hearing and requires assistance." Assuming without deciding that mere notice a person has a physical impairment and requires "assistance" alone could be sufficient to invoke the protections of section 54.8, we are not persuaded that appellant was denied a fair hearing.
Section 54.8, subdivision (a) requires that the hearing impaired person, if requested, be provided with "a functioning assistive listening system or a computer-aided transcription system." Subdivision (b) of section 54.8 states that such functioning assistive listening systems "include, but are not limited to," special devices, which transmit amplified speech, radio frequency systems or infrared transmission. (Italics added.) Subdivision (b) further states that "[p]ersonal receivers, headphones, and neck loops shall be available upon request by individuals who are hearing impaired." (Italics added.) The superior court found that appellant never requested to be provided with personal receivers, headphones or neck loops. Moreover, we agree with the court below that "functioning assistive listening system[s]" may include assistance to the hearing impaired by means other than "special devices . . . , radio frequency systems . . . , or infrared transmission" and such so long as they reasonably allow the impaired person to fully participate in the proceedings under the particular factual circumstances involved.
The trial court here found that the "assistance that was provided to [appellant] was the appointment of a senior clerk typist for the Commission to assist [appellant] by writing questions for him to read that were asked by the Commissioners. The City's case against [appellant] was reduced to writing and [appellant] was given a copy of the presentation of the case to read while the presentation was read by a representative of the City. [Citation.] The administrative record contains substantial evidence that the City complied with the requirements of . . . section 54.8." We agree.
The record indicates that respondents made reasonable accommodations for the hearing impairment of appellant. Longoria noted in his testimony that the Department staff had taken reasonable actions to assist appellant for the hearing, Longoria's written comments and written commentary to the slide presentation being one of them. Prior to the hearing, the Department staff also met with appellant and communicated with him by means of fax, as he did not use the telephone, to explain the Board procedures and the actions needed to comply with the Los Angeles Municipal Code. During the hearing, the Commission's senior clerk assisted appellant by writing down the Board's questions for appellant to read so he could verbally respond. Longoria reduced his testimony to writing and provided appellant with a copy so that appellant could follow along as Longoria made his presentation to the Board. Appellant's and Longoria's testimony were presented in writing to the Board and the record indicates no other witnesses testified.
Appellant never raised any objection to this procedure at the hearing or at any time prior to the Board's decision. In his petition, appellant complains only of being "out of step," apparently due to the slight delay while the Commission's senior clerk transcribed the Board's questions for him. He also complains of experiencing "embarrassment" from drawing laughter at his first attempt to respond. A minimal delay in transcription or mere discomfiture in participation does not equate to a denial of procedural or substantive due process. Nor does it amount to a denial of civil rights. There is nothing in the record to suggest that respondents did not satisfy their duty to make a reasonable accommodation for appellant.
In People v. Guillory (1960) 178 Cal.App.2d 854, 861, responding to a similar due process claim made by a hearing-impaired criminal defendant, the appellate court observed that the exact manner in which an accommodation should be accomplished "'must depend on the circumstances of the case and, to a considerable extent, be left to the sound discretion of the court.' [Citation.]" In Guillory, the defendant, who was out on bail, appeared for trial without batteries for his hearing aid. When defendant's counsel complained his client could not hear what was being said, the court allowed defendant to sit next to the witness box. No objection was raised to this arrangement. (Id. at pp. 858-859.) After his conviction, defendant appealed on the ground he was denied due process because he could not hear the proceedings at trial. (Id. at p. 858.) The appellate court rejected the contention, saying, "The trial judge showed the appellant every reasonable consideration. No objection to the adopted procedure was made in the trial court. . . . The record leaves no doubt that defendant had a fair and considerate trial . . . ." (Id. at p. 862; see also Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1049-1050 (Yellen) [no denial of fair hearing by failure to provide sound amplification when administrative law judge had repeated for appellant's benefit those statements that appellant said he did not hear].)
In the present case, there is no showing that appellant was unable to participate in or follow the proceedings before the Board, nor is there indication any matters of substance occurred to which appellant was not privy due to his impaired hearing. (People v. Freeman (1994) 8 Cal.4th 450, 479 ["Even if we assume that defendant occasionally failed to hear something, there is no reason to further assume that anything of significance was missed, or that defendant's ability effectively to participate in the proceedings . . . was compromised"]; Yellen, supra, 174 Cal.App.3d at pp. 1049-1050 [no prejudice shown when proceedings were repeated whenever appellant indicated he could not hear].)
Appellant asserts the use of the Commission's staff to assist appellant in relaying information passing between appellant, the Board and Longoria gave the appearance or potential of bias. As appellant admits, however, such a conclusion is sheer speculation unsupported by the record. There is nothing in the record to indicate that the handwritten notes prepared by the staff member were inaccurate or incomplete.
3. Abatement of Accessory Building
Appellant contends respondents abused their discretion and failed to follow the law in purporting to authorize the Department to demolish a garage in addition to the burned house. First, appellant argues the garage is not actually a garage but a residence on an adjoining lot; secondly, he argues the actual Board decision did not order the demolition of the garage, only the burnt out structure; and, last, he asserts there was no evidence the garage itself falls within the Los Angeles Municipal Code section invoked by respondents. We disagree.
Respondents note that at the January 27, 2009 hearing, appellant did not challenge the inclusive labeling of the garage with 3124 North Griffin Avenue as improper or incorrect and such failure to raise the issue of the garage at the Board hearing waived the issue. We agree that appellant's failure to raise the issue at the Board hearing constituted a forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Stier (2007) 152 Cal.App.4th 63, 74-75; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) It would be inappropriate to allow a party to not object to an error of which the party is or should be aware, thereby permitting the proceedings to go forward to a conclusion that he may acquiesce in if favorable or to avoid if not. (Dakota S., supra, at p. 501.)
Even if appellant had not forfeited this issue, it has no merit. The trial court below rejected appellant's argument that the garage "is not a garage" but "a separate residence on a separate lot." The court found no evidence in the record to show that the garage is on a separate lot from the house that was destroyed by fire, that the garage was a residence or that the Los Angeles County Office of the Assessor separately assessed the property on which the garage stood. The court also found substantial evidence to support the Board's finding that the dwelling and garage constituted a nuisance in that "even though the detached garage is not fire damaged, it still must be demolished along with the house because an accessory building cannot remain on the site without a main use." We agree that substantial evidence supports these findings. The evidence establishes that the house and garage are both on the same lot (Lot 11) and have the same street address (3124 North Griffin Avenue). In any case, to the extent a contrary inference may be drawn by evidence in the record, we resolve reasonable doubts in favor of the administrative findings and decision. (Topanga, supra, 11 Cal.3d at p. 514.)
The Los Angeles Municipal Code does not allow an accessory building, including a garage, to remain onsite without a main building. Los Angeles Municipal Code section 12.03 defines "Accessory Building" as "[a] detached subordinate building, the use of which is customarily incidental to that of the main building"; "Accessory Use" is defined as "[a] use, which is customarily incidental to that of the main building"; "Garage, Private" is defined as "[a]n accessory building or portion of a main building designed or used for parking or storage of motor vehicles of the occupants of a residential use." Because the "main building," i.e., the dwelling at issue here, was fire damaged, not repaired or restored and ordered demolished, the accessory building, i.e., the garage used in conjunction with the dwelling, was also required to be abated. (See § 91.8903.1.1 [abatement procedure "shall also apply to any building, structure, attached or detached appurtenances, or premises as determined by the Department"].)
We thus find no abuse of discretion in the Board's decision.
4. Board Findings
Parsing the Board's findings, motions and notice of decision, appellant claims the omission of a separate reference to a "garage" in the minutes of the actions taken by the Board indicates it made conflicting findings as to whether the garage constitutes a substandard or hazardous building and should be demolished. We disagree.
Reviewing the record as a whole, it is clear the Board found the garage to be included in its determination that the single-family dwelling is substandard or hazardous. With respect to the residence at 3124 North Griffin Avenue, the Board's minutes reflect the Board had under consideration three motions: (1) "Determine if the condition of the single family dwelling and garage or portions thereof constitute a nuisance, substandard building or a hazardous building pursuant to [Los Angeles Municipal Code] section 91.8902"; (2) "Determine if the existing single family dwelling and garage should be repaired or demolished"; and (3) "Allow an extension of time to repair or demolish the single family dwelling and garage." (Italics added.)
That the minutes fail to make a separate reference to "garage" in recording the Board's vote on motion No. 2 and in a general finding that "[t]he condition of the existing 96% fire damaged single family dwelling constitutes a substandard building and a hazardous building" is inconsequential. The motions before the Board expressly mentioned the garage. The Board made an express finding that "the condition of the existing single family dwelling and garage or portions thereof constitute a nuisance, substandard building or a hazardous building . . . ." (Italics added.) The omission of an explicit reference to a "garage" in recording the vote as to one motion and as to one finding appears at best to be a mere scrivener's error when the record, including the evidence, is viewed as a whole. As noted, we resolve reasonable doubts in favor of the Board's decision. (Topanga, supra, 11 Cal.3d at p. 514.)
Appellant further contends that the Board "summarily" denied any further extensions of time for appellant to complete the work himself and failed to make findings with respect to that decision. Los Angeles Municipal Code section 91.8903.7.2 requires that "[a]t the conclusion of the hearing, the Board shall make findings and determine whether the building falls within the scope of this division and whether the building or structure should be repaired or demolished and how much time, if any, should be given for compliance with the Department's order." However, such findings are for the purposes of "bridg[ing] the analytic gap between the raw evidence and ultimate decision or order" so as to "direct the reviewing court's attention to the analytic route the administrative agency traveled from evidence to action." (Topanga, supra, 11 Cal.3d at p. 515.) Such findings need not be stated with judicial formality and need only "expose the mode of analysis, not expose every minutia." (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 891.) We have no trouble following respondents' analytic route: Appellant had already had over six years to remove or repair or demolish the offending structures and it was obvious he would not or could not do so were he left to complete the work even if granted an extension.
DISPOSITION
The judgment is affirmed. Respondents are to recover costs on appeal.
FLIER, J. I concur:
BIGELOW, P. J.
RUBIN, J. - Concurring.
I concur with the majority's reasoning and holding concerning the merits of appellant Passalacqua's claim against the City of Los Angeles. However, as to the city's obligation to accommodate Passalacqua's hearing impairment, I concur as to only the holding that Passalacqua was not prejudiced by the city's actions. I write separately to express my concern over the majority's conclusion that the city complied with Civil Code section 54.8, and the implication that Passalacqua waived his rights by failing to request the types of assistive devices specified by that section.
Civil Code section 54.8 provides that in any civil, criminal, or administrative proceeding, a hearing-impaired participant must be provided with a "functioning assistive listening system or a computer-aided transcription system" upon his request. That request must be made either when the hearing is set or not later than five days before the hearing. (§ 54.8, subd. (a).)
All further undesignated section references are to the Civil Code.
There is no dispute that Passalacqua was severely hearing impaired. Numerous letters he wrote to the city's Department of Building and Safety (the department) as well as to the Board of Building and Safety Commissioners (the board) refer to his hearing loss. His written presentation to the board stated that even with a hearing aid, he had only eight percent hearing ability. Nor is there any doubt that he asked for assistance: City Building Inspector Andrew Longoria acknowledged that request in his written presentation to the board, noting that he wrote out his presentation for the hearing because Passlacqua said he was "hard of hearing and requires assistance." The city also tried to accommodate Passalacqua through a Powerpoint visual display of Longoria's written presentation, and by having a clerk typist handwrite questions from the board members for Passalacqua so he could read them before responding.
Although the majority expressly holds that the city complied with section 54.8 and that Passalacqua failed to show he was prejudiced by the type of assistance the city provided, its opinion also suggests that Passalacqua waived compliance with that section because he never requested the types of listening assistance devices that it specifies. To the extent the majority's opinion might be read as endorsing a finding of waiver, I disagree.
The majority italicizes for apparent emphasis the "if requested" language of subdivision (a), notes that the trial court found that Passalacqua never asked for any of the systems described in that provision, and immediately after states, "Moreover, we agree with the court below" that systems other than those described in section 54.8 may satisfy its requirements. (Slip opn. at p. 10.)
As the majority points out, the city's letter giving notice of the hearing stated that the city "does not discriminate on the basis of disability and, upon request, will provide reasonable accommodation to ensure equal access . . . ." The majority also correctly notes that there is no evidence that Passalacqua ever objected at the hearing to the use of handwritten notes. If a waiver occurred, it is based primarily on these facts.
Passalacqua's verified petition alleged that he received only telephonic notice of the hearing, and denied receiving written notice. He also alleged that he requested realtime transcriptions. However, no other evidence supports these allegations, and I believe the trial court was free to find otherwise.
However, subdivision (d) of section 54.8 states that "[a] sign shall be posted in a prominent place indicating the availability of, and how to request, an assistive listening system and a computer-aided transcription system. Notice of the availability of the systems shall be posted with notice of trials." The city's notice of hearing made no mention of this, and there is no evidence in the record that the city ever complied with its duty to let Passalacqua know that he could request such assistance. As a result, even if Passalacqua did not ask for one of the specified devices and did not object during the hearing, I believe a finding of waiver would be inappropriate.
The majority understandably does not address this issue because it was never raised either at trial or on appeal. If a hearing impaired participant were properly notified of the availability of those devices, but did not request them and proceeded without objection to the use of other listening assistance methods, then I believe a waiver of section 54.8 would likely exist.
Next, I disagree with the majority's express holding that the use of handwritten notes or a visual display of a written presentation constituted compliance with section 54.8. Under section 54.8, assistive listening systems "include, but are not limited to, special devices, which transmit amplified speech by means of audio-induction loops, radio frequency systems (AM or FM), or infrared transmission. Personal receivers, headphones, and neck loops shall be available upon request by individuals who are hearing impaired." (§ 54.8, subd. (b).) "If a computer-aided transcription system is requested, sufficient display terminals shall be provided to allow the individual who is hearing impaired to read the real-time transcript of the proceeding without difficulty." (§ 54.8, subd. (c).)
Under the statutory construction rules of ejusdem generis and noscitur a sociis, the non-exclusive list of assistive listening systems described in subdivision (b) is limited to similar electronic speech amplification devices, and therefore excludes handwritten notes or Powerpoint displays. (Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1011-1012.) Similarly, because subdivision (c) states that computer-aided transcription systems must include video terminals capable of displaying real-time transcriptions, handwritten notes cannot possibly qualify under that provision. In short, assuming the city was required to comply with section 54.8, it failed to do so.
Although it has not been raised as an issue, we also could not hold that the city substantially complied with section 54.8, subdivision (a). That section states that a hearing impaired person who requests either one of the two specified systems "shall be" provided with that system. Because that provision is mandatory, the doctrine of substantial compliance does not apply. (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1430.)
The majority cites three decisions to support its holding that the city reasonably accommodated Passalacqua's hearing impairment: People v. Freeman (1994) 8 Cal.4th 450 (Freeman); Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040 (Yellen); and People v. Guillory (1960) 178 Cal.App.2d 854 (Guillory). Each concerns proceedings that took place before section 54.8 was enacted, and each is therefore inapplicable to that issue.
Of these, only Freeman mentions section 54.8, and only then by way of noting that it was intended to protect the rights of the hearing impaired, but was "not enacted until after the trial of this case." (Freeman, supra, 8 Cal.4th at p. 478, & fn. 1.)
Those three decisions do apply to Passalacqua's contention that the city's attempts to accommodate his disability violated his constitutional due process rights. (Freeman, supra, 8 Cal.4th at pp. 478-479 [in response to criminal defendant's claim of hearing problems, the court ordered medical tests, new hearing aid batteries as needed, and was otherwise responsive to defendant's needs]; Yellen, supra, 174 Cal.App.3d at pp. 1049-1050 [doctor facing administrative disciplinary hearing claimed he misheard much of the proceedings, but the record showed that he did hear and participate, or that when he was unable to hear, he objected and the statements were repeated]; Guillory, supra, 178 Cal.App.2d at pp. 860-862 [defendant could hear when his hearing aid batteries had power, but sometimes failed to bring fresh batteries; trial court allowed defendant to stand close to witnesses and appellate court held hearing difficulties were self-induced].)
To the extent these decisions are cited to show that handwritten notes by a board clerk constitute a reasonable accommodation of Passalacqua's hearing impairment, I again disagree with the majority. Passalacqua contends that having an employee of an adverse party transcribe questions creates a conflict of interest that raises the potential for bias. I agree, but I also see more troubling flaws with the city's approach. First, there is no way to assure the accuracy of such notes. Second, they put the burden on the hearing-impaired participant to assure the notes' accuracy and ensure that they become part of the administrative record. Third, because the notes are not in the record, their absence frustrates meaningful trial and appellate court review of the administrative record. Finally, the procedure is not in keeping with the spirit of either section 54.8 or the notion that due process compels a trustworthy and accurate means of fully communicating the contents of proceedings to hearing-impaired participants. (See § 54.8, subd. (j) [to be hearing impaired means having a hearing loss that, with sufficient amplification or computer-aided transcription allows the person to "fully participate" in the proceeding].)
These three decisions also form the basis of the majority's holding that Passalacqua suffered no prejudice from the city's actions. (Freeman, supra, 8 Cal.4th at pp. 479-480 [judgment affirmed because appellant failed to demonstrate how he was prejudiced].) I believe a showing of prejudice is required whether the claim is based on due process rights or section 54.8. As the majority correctly observes, the board and department staff members were aware of Passalacqua's hearing difficulties and took steps to accommodate him both before and during the hearing. This included communicating with him by fax at his request, and preparing a written evidentiary presentation that Passalacqua could both read and view as a Powerpoint display. Combined with the absence of evidence that Passalacqua ever objected or complained during the hearing, and his complete failure to address the prejudice issue at all in his appellate briefs, I agree that he has failed to demonstrate how he was prejudiced. RUBIN, J.
I do not suggest the city was trying to hinder Passalacqua's ability to participate in the hearing. In fact, it appears to me that the board and the department staff were trying to be sensitive to Passalacqua's needs, and acted with only proper motives. I am concerned that the city has simply overlooked the mandatory nature of section 54.8, particularly in regard to the notification provision found in subdivision (d) of that section, and urge the city to revisit its compliance with that provision.
Another issue overlooked by the parties is the applicability of Evidence Code section 754, which requires the use of a qualified interpreter for any hearing impaired participant in various proceedings, a requirement that does not apply if that participant is provided with and able to fully participate in the proceedings through use of one of the systems specified in section 54.8. (Evid. Code, § 754, subds. (a), (b).)
In his verified petition, Passalacqua alleged that there was laughter when he tried to speak, and that the time-lag caused by the handwritten notes caused him to be out of step. No other evidence supports these claims. Regardless, Passalacqua has failed to address them at all in his appellate briefs.