Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV157797.
Duffy, J.
A petition by the Cabrillo Homeowners’ Association (Association) was filed with the City of Capitola under the Capitola Mobile Home Rent Stabilization Ordinance. The claim was brought on behalf of homeowners/tenants at the Cabrillo Mobile Home Park for rent reductions based upon an alleged reduction in various services provided to residents at the park. The petition was opposed by Vieira Enterprises, Inc., the park owner. The matter proceeded to an administrative hearing before the Capitola City Council, which entered an award of $68,660.44, based upon a calculation of five percent of the total rents payable by homeowners over a 79-month period (award); the award specified that the Association was to equitably distribute the sum to the park homeowners. Vieira filed a petition for writ of mandate challenging the award, and the trial court denied the petition.
On appeal, Vieira contends that the mandate petition should have been granted for a variety of reasons. It asserts that Capitola failed to properly interpret and apply the standards set forth in the ordinance and failed to follow the procedures required under the ordinance. Vieira argues further that the ordinance is vague in that it does not adequately define “service” for purposes of determining whether a rent reduction should be granted to a homeowner. Vieira also claims that the award was improper because (a) it was made to the Association, rather than to homeowners whose services were reduced, (b) it was based upon an irrational calculation, and (c) it included certain mobilehome spaces that were exempt from the ordinance. It also contends that Capitola acted on an administrative petition that was fatally defective and that should not have been considered. Vieira asserts that it was deprived of due process in connection with the administrative proceeding, and that the rent reduction claims were time-barred. Finally, it argues that there was no substantial evidence to support the award.
We conclude that Vieira’s various claims of error must be rejected. Accordingly, we will affirm the judgment.
PROCEDURAL BACKGROUND
I. Administrative Proceedings
In or about September 2006, the Association filed with Capitola a petition for service reduction (administrative petition) under the ordinance, specifically, pursuant to Capitola Municipal Code section 2.18.250 (hereafter section 2.18.250; all further section references are to the ordinance). Under section 2.18.250(D), the City Council is empowered, after finding the existence of a “material service reduction, ” to determine by a percentage the degree to which the homeowner’s enjoyment of his or her property has been reduced as a result of the service reduction and reduce the rent to compensate the homeowner for the past detriment. The Association claimed that there had been service reductions affecting all spaces at the park that generally fell into three categories: “Reduction of Park Management Services, ” “Closure of Clubhouse, ” and “Utilities: Cable TV, telephone, sewer and electric services.” Vieira filed a written response to the administrative petition, and the City Council thereafter by resolution dated October 12, 2006, made a finding that the administrative petition was sufficient, and indicated that its merits would be decided after a public evidentiary hearing.
The matter then proceeded to hearing that occurred on February 28, 2007. Vieira was represented by counsel, Paul Jensen; no attorney appeared on behalf of the homeowners. Twelve witnesses testified on behalf of the Association, three witnesses testified for Vieira, and the City Council received documentary evidence from the parties. The City Council heard closing argument from the Association at the February 12 hearing, and closing argument from Vieira and the Association’s rebuttal at a further hearing on March 22, 2007. After indicating its decision at the conclusion of the March 22 hearing, the City Council conducted a further hearing on April 12, 2007, to reconsider its decision; at the conclusion of that hearing, it rendered its decision in favor of the Association.
By resolution dated May 10, 2007, the City Council rendered its written findings and award, consisting of six pages. The City Council found, inter alia, that the Association had established by a preponderance of the evidence each of the service reduction claims submitted; the park tenants had a reduction in the enjoyment of their tenancies of a minimum of five percent for a period of 79 months (June 2000 to December 2008); the park’s monthly rent receipts for 2006 totaled $17,382.39; five percent of this total figure was $869.12; the total service reduction award was therefore $68,660.44; and the sum was to be disbursed to the Association for it to render an “equitable distribution [of that amount] among mobile homeowners in the park.”
II. Court Proceedings
On November 21, 2007, Vieira filed a first amended petition for writ of mandate and complaint (writ petition) in the court below, alleging three causes of action. It cited Code of Civil Procedure section 1094.5 in support of its mandamus request and Code of Civil Procedure section 1095 in support of its claim for damages. Vieira contended that the award was invalid because Capitola acted in excess of its jurisdiction and outside the scope of its authority, and committed prejudicial abuse of discretion in rendering the award.
The reporters’ transcript from the hearing on the writ petition contains references to a second amended petition filed by Vieira, a pleading that is not part of the record on appeal. That transcript also indicates the agreement of the trial court and counsel that there were no material changes made to the (first amended) writ petition in the second amended petition other than the addition of certain parties. Further, the appellate record includes an order by the trial court granting Vieira leave to file the second amended petition, indicating that the substance of the amendment is “only [to] name the City of Capitola as the Respondent and the [Association] and all applicable individual homeowners of the [park] as Real Parties in Interest.” We therefore deem the omission from the record of the second amended petition to be insignificant and will address the merits of Vieira’s claims by referring to the (first amended) writ petition.
In the first cause of action of the writ petition, Vieira alleged that Capitola violated section 2.18.250D by failing to determine as required by the ordinance the amount owed to the individual homeowners based upon the specific detriment caused to each particular owner; rather (Vieira alleged), Capitola through its award imposed an unauthorized penalty based upon a five percent gross rental income for a period of approximately six and one-half years. In the second cause of action, Vieira claimed that it was denied procedural due process in that it was not apprised before the hearing that, in addition to the complaints about which Vieira was given notice, the Association was also seeking rent reduction based upon “faulty or diminished water pressure at [the park].” Vieira alleged in the third cause of action of the writ petition that Capitola’s decision to implement the rent reduction award, where it was not based on compensation to specific homeowners for a reduction of their services, was arbitrary and punitive. It averred that the administrative hearing was unfair, the evidence did not support the findings, and the findings did not support the penalty Capitola imposed. Vieira claimed that it was thus deprived of its right to substantive due process under the federal and state constitutions.
Vieira submitted a legal memorandum and evidence in support of its writ petition, Capitola filed opposition papers, and Vieira filed a reply memorandum. After an initial hearing on April 28, 2008, the court requested further briefing on Vieira’s claim that a three-year statute of limitations applied to the claims that resulted in the service reduction award. After submission of that briefing and after a further hearing, the court issued an order on May 30, 2008, denying Vieira’s petition for writ of mandamus. After a judgment was entered in Capitola’s favor, Vieira filed a timely notice of appeal.
DISCUSSION
I. Issues on Appeal
The issues presented in this appeal, all concerning the propriety of the court’s denial of the writ petition, are as follows:
1. Whether Capitola unlawfully applied the ordinance by allowing a claim to be submitted by the Association, rather than by homeowners allegedly impacted by a service reduction.
2. Whether Capitola erred by including in its award a rent reduction for all spaces in the park, including those that were exempt from the ordinance.
3. Whether Capitola improperly interpreted “service” under the ordinance when it made the award in favor of the park homeowners based upon a “material service reduction.” (§ 2.18.250(D).)
4. Whether the City Council failed to apply the ordinance procedures in permitting the administrative petition to go forward to an evidentiary hearing.
5. Whether the award was improperly made to the Association, or was based upon an irrational calculation.
6. Whether Vieira was deprived of due process in connection with the administrative hearing.
7. Whether some portion of the rent reduction claim in the administrative petition was time-barred.
8. Whether there was substantial evidence to support the award.
II. Administrative Mandamus
Review of an administrative decision by mandamus is appropriate where the hearing in the underlying administrative proceeding was mandatory, evidence was required to be taken in the proceeding, and there was discretion vested in the body determining the matter in deciding contested factual issues. (§ 1094.5, subd. (a).) A court reviewing an agency’s decision under section 1094.5 is guided by the following: “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. 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.” (§ 1094.5, subd. (b).)
A challenge to a decision that the findings are not supported by the evidence in the administrative record is reviewed by the trial court under either the substantial evidence standard or the independent judgment standard. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 (Strumsky).) The substantial evidence standard is the appropriate standard of review here. (See Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1414 [substantial evidence standard proper for review of rent control board decision because “proposed rent increases do not involve an administrative decision which substantially affects fundamental rights”].)
Under the substantial evidence standard, the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision. (Committee to Save Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1182.) Under this “deferential” standard, the court presumes the correctness of the administrative ruling. (Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419 (Patterson Flying Service).) “For this purpose, ‘... substantial evidence has been defined in two ways: first, as evidence of “ ‘ “ponderable legal significance... reasonable in nature, credible, and of solid value” ’ ” [citation]; and second, as “ ‘relevant evidence that a reasonable mind might accept as adequate to support a conclusion ’ ” [citation].’ [Citation.]” (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.) Where the trial court has reviewed the entire record and determined that there was substantial evidence to support the administrative decision, the appellate court’s “scope of review on appeal from such a judgment is identical to that of the trial court. [Citations.]” (Bixby v. Pierno (1971) 4 Cal.3d 130, 149.)
Vieira asserts a number of attacks on the award. Although its sufficiency-of-the-evidence argument (see pt. XI, post) is clearly governed by the substantial evidence standard of review, other contentions, to the extent that we address them on the merits-including those discussed in parts IV, V, VII, VIII-likewise involve an application of the substantial evidence standard, rather than de novo review as may be urged by Vieira. As we will discuss, however, many of those claims are forfeited.
III. Administrative Exhaustion Doctrine
As we discuss, post, Capitola asserts that a majority of Vieira’s contentions are barred because it failed to assert them at the administrative level. Under this doctrine of administrative exhaustion-which is sometimes termed the “full presentation requirement” (1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2010) § 3.9, p. 53)-a party cannot raise issues for the first time at the judicial level in challenging an administrative decision. “ ‘It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. [Citation.] It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or “skeleton” showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play....’ ” (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020 (Walnut Creek).) “ ‘The essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’ [Citation.]” (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447, fn. omitted. (Park Area Neighbors).)
The requirement that a party present the issues at the administrative level is intended to afford the agency a full “ ‘ “opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review” ’ ” thereby giving the agency “ ‘ “an opportunity to act and render the litigation unnecessary” [citations] and in so doing, “lighten the burden of overworked courts in cases where administrative remedies are available and are as likely as the judicial remedy to provide the desired relief. [Citations.]” [Citation.]’ ” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1137.) Additionally, the full presentation requirement “ ‘ “is viewed with favor... because it facilitates the development of a complete record that draws on administrative expertise and promotes judicial efficiency.” [Citation.]’ [Citation.]” (Ibid.)
There are a number of examples of belatedly-raised issues for which the administrative exhaustion doctrine has been applied. These include the failure to raise the argument that the county’s development project was inconsistent with its general plan (Walnut Creek, supra, 101 Cal.App.3d at pp. 1019-1021); timely objections to consultants’ report that supported a city’s redevelopment plan (Evans v. City of San Jose, supra, 128 Cal.App.4th at pp. 1143-1144); a statute of limitations defense (Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37); a dispute concerning the appropriate standard of proof to be applied by the administrative hearing officer (Milligan v. Hearing Aid Dispensers Examining Com. (1983) 142 Cal.App.3d 1002, 1007-1008); the defense of res judicata (Pacific Coast Medical Enterprises v. Department of Benefit Payments (1983) 140 Cal.App.3d 197, 214); and objections to the lack of specificity or sufficiency of allegations in an administrative complaint (Salyer v. County of Los Angeles (1974) 42 Cal.App.3d 866, 872; Vaughn v. Board of Police Com’rs of City of Los Angeles (1943) 59 Cal.App.2d 771, 778).
The issue of whether the administrative exhaustion doctrine applies in a given case is a legal matter. (Evans, supra, 128 Cal.App.4th at p. 1136.) As such, an appellate court reviews de novo the question of whether a claim has been forfeited by reason of the proponent’s failure to assert it at the administrative level. (Ibid.)
IV. Whether Claim by Association was Impermissibly Allowed
Vieira contends that Capitola improperly allowed the administrative claim to be presented by the Association, not by the affected homeowners, and that this error “tainted the entire process.” This “taint” included the allowance of an allegedly improper survey submitted by the Association, instead of live testimony by homeowners who were allegedly impacted by a reduction in service at the park. Vieira acknowledges that the ordinance permits the appointment of a representative on behalf of the homeowners for the rent reduction proceedings, but it claims that the City Council improperly “treated the Association as a separate entity able to assert its own claims through a[n administrative] petition brought in its own name.” Vieira claims that this error was ultimately compounded when the City Council rendered an award in favor of the Association, rather than one in favor of the individual affected homeowners.
Capitola responds that Vieira’s claim of error is forfeited under the administrative exhaustion doctrine. It contends that although Vieira initially questioned at the administrative level whether the Association in fact represented the homeowners, it never objected that the matter should not proceed with the homeowners’ representation by the Association.
Based upon a review of the administrative record, we agree with Capitola that Vieira did not specifically raise an objection to the City Council to the Association’s representation of the affected homeowners. In its initial written opposition to the administrative petition-a letter to the City Council from Vieira’s attorney, Jensen, dated September 20, 2006-Vieira stated no objection that the claim was being presented by the Association. Further, Jensen voiced no objection at the lengthy administrative hearing of February 28, 2007, even though he was given the opportunity to, and did make, introductory comments concerning the claim. In his summation given at the March 22, 2007 hearing, Jensen did raise the question of whether there was an association that, in fact, represented specific park homeowners in connection with the rent reduction petition, because there were no documents in the record signed by homeowners indicating that the Association was representing them. In response, the homeowner speaking on behalf of the Association indicated that the Association possessed “signed designations under [section] 2.18.500 from residents [indicating that the Association is] properly authorized to represent the residents out there.” Jensen made no further comments concerning the Association’s representative status at either the March 22, 2007 hearing, or at the subsequent administrative hearing on April 12, 2007. Therefore, Vieira did not preserve at the administrative level the objection he now asserts: that the City Council permitted the Association itself to make the claim on behalf of the park’s homeowners.
Further, to the extent that under the award, the City Council required the Association to distribute the rent reductions equitably to the homeowners, Vieira did not object at the time-as it does now-that such an award was actually one to the Association. Indeed, at the time the motion was presented on April 12, 2007, and immediately before the City Council’s vote, the mayor opened the matter for comment by the public; no argument concerning the Association’s participation in the award was made by Jensen on behalf of Vieira. It is thus apparent that Capitola was not presented with the opportunity to address the contention made now by Vieira, i.e., that Capitola improperly allowed the Association to in essence act as the claimant. As such, Capitola was not afforded the “ ‘... opportunity to receive and respond to articulated factual issues and legal theories’ ” as required under the administrative exhaustion doctrine. (Park Area Neighbors, supra, 29 Cal.App.4th at p. 1447.) We conclude that Vieira’s claim here was forfeited.
Even were we to address Vieira’s forfeited claim, we would conclude that it is without merit. The ordinance itself permits the designation by mobilehome park homeowners of a representative. (See section 2.18.500 [“homeowners in each [mobilehome] park should designate a representative”]; section 2.18.520(B) [“homeowner[’s] representative shall have the exclusive authority to apportion time amongst the various speakers speaking on behalf of the homeowners’ position”].) Further, section 2.18.250(A) specifically allows for a service reduction petition to be signed by the homeowner-claimants “or [by] the homeowner’s representative.” And we disagree with Vieira’s contention that the City Council allowed “survey testimony to be presented by the Association, as opposed to testimony from individuals purportedly affected by the claimed reductions.” This statement suggests that the City Council accepted the survey in lieu of testimony by individual homeowners. In fact, the survey was considered along with the testimony of 10 homeowners and two other witnesses familiar with the park.
Moreover, it is plain from the record that the City Council-in accepting the sufficiency of the administrative petition, in receiving evidence, and in rendering the award-did not treat the Association as the direct claimant; rather, the Association was treated as the representative of the affected homeowners. The award so indicates. There, the City Council specifically found that the Association “ha[d] the authority to represent all park mobile home owners, and did actually represent all park mobile home owners”; there had been a reduction in particular services (e.g., maintenance of common areas, park management services, clubhouse services, utility services) from the quality of services previously enjoyed by park residents; and “that by their very nature[, ] the service reductions, pertaining to park facilities, infrastructure and services to which all park residents were entitled, constituted a reduction in service to all park residents.” And, also contrary to Vieira’s contention, the City Council did not render a service reduction award to the Association, itself; rather, it made an award to the Association in its representative capacity “for [its] equitable distribution among mobile homeowners in the park.”
Accordingly, we reject Vieira’s contention that Capitola impermissibly allowed the Association, rather than the affected homeowners, to present the administrative claim-both because the claim was forfeited and because it lacks merit.
V. Alleged Improper Inclusion of Exempt Spaces
Vieira contends that Capitola erred in allowing inclusion of all spaces in the park, including ones that were exempt from the ordinance because of the existence of underlying long-term leases. It asserts that under Civil Code section 798.17 of the Mobilehome Residency Law (Civ. Code, § 798 et seq.; hereafter MRL), spaces that are subject to long term leases were exempt from the service reduction provisions of the ordinance. Therefore, Vieira contends that, to the extent that Capitola included all spaces in its calculation of the award, it erred.
Capitola responds that the claim of error was forfeited, because Vieira never submitted the long-term leases into evidence during the administrative proceeding. Capitola responds further on the merits that Vieira’s argument is based on the incorrect characterization of the award as a rent adjustment for all spaces in park. Instead, Capitola found a reduction in services of at least five percent and the award provided for the Association’s equitable distribution of the award; the award did not compel an equal division to all spaces. Thus, Capitola urges that the possible exemption of certain units could be considered by the Association in connection with its equitable distribution of the award, and the possible exemption of certain spaces thus does not invalidate the award.
We conclude that Vieira forfeited any claim of error by failing to raise the issue in the administrative proceeding. At no time during the proceedings did Vieira assert that certain spaces in the park were exempt from the service reduction provisions of the ordinance. Jensen did not raise the issue in his initial written opposition to the administrative petition, in his introductory comments concerning the claim or in his summation at the conclusion of the evidentiary hearing. Vieira did not afford Capitola the opportunity to consider and act on Vieira’s claim that certain spaces at the park were exempt from the ordinance (Evans, supra, 128 Cal.App.4th at p. 1137); it is therefore barred from making this belated claim under the administrative exhaustion doctrine. (See Manufactured Home Communities, Inc. v. County of San Luis Obispo (2008) 167 Cal.App.4th 705, 716 (Manufactured Home Communities) [county rent control board had authority to determine whether mobilehome leases were exempt from rent control ordinance].)
Further, Vieira makes references in its brief to specific park rental agreements and leases. Although Vieira’s counsel in his summation alluded generally to rental agreements-in the context of asserting that the Association had not shown a breach of any lease provisions because the Association had not presented any leases-he made no attempt to introduce any leases into evidence at the administrative proceedings, either to establish an exemption or for any other reason. Vieira made two motions before the court below to augment the administrative record to include the lease agreements; the court denied both motions. “A court may exercise its discretion to augment an administrative record if the evidence is relevant and if it was either improperly excluded during the administrative process or it could not, in the exercise of reasonable diligence, have been presented before the administrative decision was made. [Citations.]” (Evans, supra, 128 Cal.App.4th at p. 1144.) The exception permitting extra-record evidence “is to be very narrowly construed... [to apply] only in those rare instances in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578.) Vieira offered no explanation for failing to introduce any rental agreements or leases at the administrative level; presumably, they were in its possession at the time of the hearing and therefore could have been produced at that time. Accordingly, this was not a “rare instance” in which it would have been appropriate to allow extra-record evidence (ibid.), and we conclude that the trial court did not abuse its discretion in denying Vieira’s motions to augment. (Evans, at p. 1144.)
VI. Interpretation of the Term “Service” in Ordinance
Vieira argues that the ordinance is vague in that it does not define “service” sufficiently to allow for Capitola to determine whether there has been a reduction in service that justifies a rent reduction award. It contends that the City Council broadly defined “service” to include services that were not among matters specified in lease agreements as being provided by the mobilehome park owner to the tenant, and that such a broad interpretation was “patently unreasonable.” Vieira asserts that since the ordinance provides little guidance, the term “service” should be defined by reference to the MRL, and specifically Civil Code section 798.31, from which it may be inferred that a “service” is one actually rendered by the mobilehome park owner and charged to the tenant. Vieira argues that since a reasonable interpretation of the ordinance “is that a ‘service’ includes only those physical improvements and amenities provided for by the community owner to its residents pursuant to the governing rental agreements, ” and the rental agreements here make it clear that, among the matters claimed, only the clubhouse was a service that was provided, the award was based on a far too expansive definition of “service.”
Capitola responds, again, that Vieira’s claim of error was forfeited. Vieira did not object to the interpretation of “service” implicitly utilized by the Association in presenting the administrative claim. Instead, Vieira addressed the merits of the service reduction claims asserted by the Association in Vieira’s written opposition and arguments at the hearing.
We agree with Capitola that Vieira failed to raise its interpretation claim before the City Council. Nothing in the written opposition to the administrative petition could be construed as presenting the argument that the claim should be rejected based upon the vagueness of the term “service” in the ordinance or because the matters the homeowners alleged to have been reduced were not “services.” Instead, the grounds stated in the opposition were that (1) there had been a meeting with the residents in mid-2006 to resolve matters raised by park residents and Vieira had subsequently performed the items agreed upon; (2) claims concerning inadequate management were as much as six years old and were stale; (3) Vieira agreed to and did provide additional management for the park; (4) the clubhouse had never been completely unavailable to residents, and the concerns raised by the residents in the middle of 2006 had been addressed by Vieira; (5) any delays in the upgrades to the cable television system were caused by Charter Cable, not by Vieira; and (6) the other utility services were “up to code and in good working order and condition... [and t]here has been no reduction in services with regard to the utilities.” Similarly, Vieira’s counsel did not raise the question of the interpretation of the term “service” in the ordinance in either his opening comments or in his closing argument.
Where an “administrative decision rests on the hearing officer’s interpretation or application of the [o]rdinance, a question of law is presented for our independent review. [Citation.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219 (MHC Operating).) Upon review, an agency’s interpretation of an ordinance “is entitled to deference.” (Ibid.) The failure to address questions of interpretation or construction of a statute to an administrative agency may result in their forfeiture (Walnut Creek, supra, 101 Cal.App.3d at p. 1021), and Vieira failed here to apprise the City Council of its belated interpretation argument, thereby precluding Capitola from having the opportunity to specifically address the legal issue. (Park Area Neighbors, supra, 29 Cal.App.4th at p. 1447.) But since the award here involved an implicit application and interpretation of the ordinance subject to our independent review, we will address the merits of Vieira’s contention notwithstanding its failure to raise it before the City Council.
The thrust of Vieira’s position is that “service” in section 2.18.250 is undefined and Capitola’s implicit interpretation of the term in the award was unreasonable. We disagree.
Section 2.18.250 permits homeowners to seek a rent adjustment based upon a reduction in service. Although “service” is not completely defined, section 2.18.250(A) provides that “ ‘[s]ervice’ as used in this section also includes physical improvements or amenities.” Nowhere in the ordinance is there a limitation of the term given. The use of the phrase “also includes” in section 2.18.250(A) is indicative that “service” may consist of, but is not limited to, physical improvements or amenities. “ ‘Includes’ is ‘ordinarily a term of enlargement rather than limitation.’ [Citation.] The ‘statutory definition of a thing as “including” certain things does not necessarily place thereon a meaning limited to the inclusions.’ [Citation.]” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774; see also Black’s Law Dict. (9th ed. 2009) p. 831, col. 1: “include, ... To contain as part of something....”) Therefore, the language of the ordinance does not support Vieira’s restrictive definition of “service” as constituting “only those physical improvements and amenities provided for by the community owner to its residents pursuant to the governing rental agreements.”
Further, we reject Vieira’s argument that we should look to the MRL to supply a definition of the term “service.” There is nothing in the ordinance to suggest that “service” in section 2.18.250 was intended to be defined by reference to the MRL. Further, “[c]ourts have held that the [MRL] does not ‘occupy the field’ so as to preempt the enactment of local rent control ordinances, even though the statutory scheme governs many aspects of the landlord-tenant relationship. [Citation.]” (Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1513.)
Moreover, we must reject Vieira’s claim that the term “service” in Section 2.18.250 should be restricted here to “physical improvements and amenities” supplied to park homeowners as specified in their rental agreements for an additional reason. Acknowledging the business reality that any lease agreements between Vieira and park homeowners were in all likelihood prepared by Vieira, applying Vieira’s restrictive definition of “service” would effectively permit mobilehome park owners to supply their own definition of the term and thereby reduce their exposure under section 2.18.250 to service reduction claims. Such a construction of the ordinance would appear to defeat the apparent intent of section 2.18.250 to permit mobilehome park residents to be compensated where they have received a reduction in service without a corresponding rent reduction. (See Carson Mobilehome Park Owners' Assn. v. City of Carson (1983) 35 Cal.3d 184, 195, fn. 8 (Carson Mobilehome): “ ‘Rent control would be self-defeating were landlords permitted to reduce maintenance expenditures and allow buildings to deteriorate because their profits have been regulated downward.’ [Citation.]”)
In making this argument, Vieira cites to particular provisions of Park lease agreements that were the subject of its two motions to augment the administrative record. As noted, the court denied those motions and did not abuse its discretion in so ruling. (See pt. V., ante.) Since those agreements were not part of the record before the City Council, we will not consider them here. (City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 771-772 [evidence beyond administrative record generally not considered by court in administrative mandamus proceeding].)
We conclude therefore that Vieira failed to present at the administrative level its contention concerning the interpretation of “service” in section 2.18.250. Further, even were the merits of this forfeited claim considered, after giving “ ‘considerable deference’ ” to the City Council’s implied interpretation of the ordinance (MHC Operating, supra, 106 Cal.App.4th at p. 220), we conclude that the award was not improper due to an erroneous interpretation by Capitola of its ordinance.
VII. Sufficiency of Administrative Petition
Vieira argues that the Association’s administrative petition was fatally defective in that it did not contain all of the information required under section 2.18.250. It contends that the Association failed to allege for each of the claims, as required under section 2.18.250(B), the particular spaces affected, the prior level of service established by the park owner, the specific changes in the prior level of service, and the date the homeowner first became aware of the service reduction. Vieira asserts that because of these pleading deficiencies, Capitola should not have allowed the matter to proceed to an evidentiary hearing. Capitola responds that the contention was forfeited and that in any event there was no error in allowing the claim to proceed to hearing.
We conclude-as did the trial court-that Vieira forfeited the argument by not raising it at the administrative level. The record shows that Vieira, through his attorney, Jensen, submitted written opposition to the administrative petition on September 20, 2006. In that letter, Jensen noted Vieira’s objection to the claim proceeding to hearing. That objection, however, was based, inter alia, upon Vieira’s position that it had resolved the homeowners’ complaints following a meeting in mid-2006; it had provided additional park management; the clubhouse had never been completely unavailable to residents; and it was not responsible for any delays in upgrades to the cable television system. Vieira did not raise an objection to the sufficiency of the pleading in the administrative petition. Therefore, since it did not afford Capitola the opportunity to consider any such pleading-sufficiency objection, the administrative exhaustion doctrine bars the making of this belated claim. (Evans, supra, 128 Cal.App.4th at p. 1137.)
Even were we to consider this forfeited claim, we would not find it to have merit. The rules of pleading for civil actions are inapplicable to administrative proceedings. (1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2010) § 6.90, p. 226.) “Fair notice to the respondent is more important than compliance with technical pleading rules. [Citations.]” (Cal. Administrative Hearing Practice (Cont.Ed.Bar 2d ed. 2009) § 3.8, p. 156.) A review of the administrative petition shows that it gave fair notice to Vieira of the nature of the claims for service reduction. Further, since section 2.18.250(B) provides merely that each service reduction allegation “should” include specified matters, even if the administrative petition here did not contain each allegation identified in the ordinance, this would not be a ground for granting mandamus relief, since the contents of the service reduction allegations as stated in the ordinance were advisory, not mandatory. (See Cuevas v. Superior Court (1976) 58 Cal.App.3d 406, 409 [statute indicating suppression motion “should” first be heard by magistrate issuing warrant was persuasive, not mandatory].)
VIII. Whether Award was Improper
Vieira argues that the award was improper in that it was based upon an across-the-board five percent rent reduction for 79 months; as such, it was effectively an award to the Association, not to “affected homeowners, ” as required under section 2.18.250(D). It asserts further that the calculation of the award was irrational, because it was based upon the faulty premise that every space sustained a five percent service reduction, even though some spaces were vacant, some were owned by Vieira, some units had residents who did not move in until after December 2006, and some residents resided at the park for only a fraction of the 79 months upon which the award was based. Capitola responds that Vieira did not make these specific objections to the award. It argues further that, in any event, the award was not in favor of the Association and was not improper, and Vieira’s contentions are based upon an inaccurate characterization of the nature of the award.
Vieira’s counsel did not raise an objection to the prospective award announced by the City Council at the time of the hearing on April 12, 2007. In light of the fact that the formal award occurred after the April 12 hearing through the City Council’s adoption of a May 10, 2007 resolution, and in view of the fact that Vieira did raise the issue of the propriety of the award in its memorandum in support of the writ petition below, we will not find the matter forfeited.
Vieira’s claim, however, lacks merit. Contrary to Vieira’s contention, the City Council did not render a service reduction award to the Association, itself, but instead made the award for the Association to make an “equitable distribution among mobile homeowners in the park.” As we have indicated, the ordinance specifically permitted homeowners to be represented in the service reduction process. (See §§ 2.18.250(A); 2.18.500; 2.18.520(B).) Further, the ordinance does not call for a set award procedure, and we do not find it improper that Capitola provided in the award that the Association, in its representative capacity, should distribute the service reduction award amount to the homeowners in an equitable manner. Moreover, contrary to Vieira’s assertion, the City Council did not “determine[] that every space in the community had suffered a [five percent] reduction in services....” Instead, Capitola concluded that the park homeowners “sustained reduced enjoyment of their tenancies during the [79-month period] in a minimum amount of [five percent].” The City Council did not in its award direct that the total amount be apportioned equally to each of the spaces in the park; instead, as noted, it left it to the Association to equitably apportion and distribute the award. And since the ordinance does not specify a fixed formula or procedural mechanism for rendering a service reduction award, we do not find that the City Council abused its discretion in structuring the award as it did in this case. (Cf. Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 772 [“state and federal Constitutions do not mandate a particular administrative formula for measuring fair return” under rent control laws]; Carson Mobilehome, supra, 35 Cal.3d at pp. 190-191 [same]; Cotati Alliance for Better Housing v. City of Cotati (1983) 148 Cal.App.3d 280, 294 [rent control board not constrained by particular formula, but “must consider a variety of factors” in determining adjustments under rent control ordinance, balancing “the interests of both the renting public and the landlord”].) Accordingly, we reject Vieira’s claim of error based upon the alleged impropriety of the award.
IX. Claimed Deprivation of Due Process
Vieira contends that Capitola deprived Vieira of due process in connection with the City Council’s consideration of the administrative petition. It argues that “[t]he [C]ity [C]ouncil allowed a quasi-representative action to be brought by the Association” and allowed proof of the claim “based essentially on a survey presented without proper foundation.” Vieira asserts that by doing so, Capitola in essence precluded Vieira from cross-examining witnesses who were the homeowners supposedly affected by service reductions. Vieira characterizes this claim as “[t]he overriding question to be answered in this appeal.”
Capitola, once again, argues that the claim is forfeited. It responds that Vieira did not object at the administrative proceeding or at the trial level that the survey evidence violated its due process right to cross-examination; rather, it objected to the survey as lacking foundation. Capitola responds further that, in any event, Vieira was not deprived of due process in connection with the administrative proceeding.
Vieira did not raise a due process challenge in the administrative proceedings. No such claim-namely, that it was deprived of due process in connection with the hearing by the introduction of the survey and by the Association being allowed to proceed in a “quasi-representative” capacity-was made on behalf of Vieira in its written opposition, introductory remarks, or closing argument before the City Council. Although Vieira did raise an objection to the survey on the basis that it lacked foundation or probative value this did not include an objection that admission of the survey would deprive Vieira of due process. Further, although the writ petition included causes of action for alleged violations of procedural and substantive due process, Vieira did not raise a due process concern either in its two memoranda in support of the writ petition or in counsel’s argument at the hearing on the writ petition. Accordingly, we find that Vieira forfeited its constitutional challenge under both the administrative exhaustion doctrine (Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 787-788 [due process challenge forfeited because of failure to raise it at administrative hearing]; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1219-1220 [same]), and due to its failure to raise the claim at the trial level (Baychester Shopping Center, Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2008) 165 Cal.App.4th 1000, 1007-1008 [appellate due process challenge to rent control ordinance forfeited because it was not raised at trial level]).
There is a one-line reference made by Vieira’s counsel at the hearing that as a result of “the irrationality and the arbitrariness of allowing an award to be issued to a home owners [sic.] association, ” Vieira’s “due process rights are violated.” This minimal statement without explanation or citation to authority is insufficient to preserve the constitutional challenge now presented on appeal.
Even were we to find Vieira’s constitutional challenge not to have been forfeited, it appears to lack merit in any event. As we have discussed, ante, the ordinance expressly permitted homeowners to be represented in connection with service reduction claims, and the survey, the potential consideration of which was within the City Council’s discretion, was only a portion of the evidence submitted to the City Council in support of the claim. (See § 2.18.520(D): “The hearing need not be conducted according to technical rules of evidence.... Any relevant evidence shall be considered if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, ... Unduly repetitious or irrelevant evidence shall be excluded upon order by the mayor.”) Further, the case upon which Vieira relies exclusively in support of its due process argument-Manufactured Home Communities, Inc. v. County of San Luis Obispo (2008) 167 Cal.App.4th 705-is of no assistance. There, a due process violation was found to have occurred where the rent review board precluded the park owner from cross-examining homeowner witnesses. (Id. at pp. 711-712.) In marked contrast to the circumstances in Manufactured Home Communities, here, Vieira was allowed to cross-examine all witnesses, including the person who was responsible for compiling the survey.
X. Statute of Limitations and Laches
A. Statute of Limitations
Vieira contends that the service reduction claim-or at least a large portion of it-was time-barred. To conclude otherwise, it asserts, would be “fundamentally unfair” in light of the fact that Capitola in this instance calculated the amount of the award by utilizing a 79-month period that extended back more than six years prior to the filing of the administrative claim. Vieira argues that because the ordinance does not include an explicit provision that service reduction claims are not governed by a period of repose, a statute of limitations must apply. It asserts that, at the longest, the three-year limitations period under Code of Civil Procedure section 338, subdivision (a), applies. At the shortest, Vieira argues that the period of limitations was one year.
Capitola responds that the claim was forfeited because it was not raised at the administrative level. It contends that, although Vieira in its written opposition to the City Council in September 2006 raised an objection “to the lateness of the [administrative p]etition with regard to claims going back to June 2000, ” this nonspecific protest was insufficient; there was no particular limitations period asserted by Vieira, and it made no objection on the basis of statute of limitations at the administrative hearing. On the merits, Capitola responds that the three-year limitations period under Code of Civil Procedure section 338, subdivision (a) does not apply to administrative claims such as the one at issue here, and that the limitation periods governing judicial proceedings have no application.
Vieira did not allege before the City Council-either in its written response to the administrative petition or in the subsequent hearing-the particular statute upon which it relied in contending that the claim was time-barred. Further, although Vieira did object generally to the “lateness” of the administrative petition in its written response, it did not specifically assert that the claim was time-barred under any potentially applicable limitations periods. “ ‘It is well established that the statute of limitations is a personal privilege which is waived unless asserted at the proper time and in the proper manner, whether it be a general statute of limitations or one relating to a special proceeding. [Citations.] This general rule applies to proceedings before an administrative tribunal. [Citations.]’ [Citations.]” (Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382, quoting Bohn v. Watson, supra, 130 Cal.App.2d at pp. 36-37.) Under the circumstances presented here, since Vieira did not assert a statute of limitations defense before the Capitola City Council, we find that such defense was forfeited.
Even were we to consider the merits of Vieira’s defense, we would reject it. Code of Civil Procedure section 338, subdivision (a)-the statute upon which Vieira relies-provides for a three year limitations period for “[a]n action upon a liability created by statute, other than a penalty or forfeiture.” Vieira’s reliance upon this statute is misplaced, insofar as it is asserting that the administrative petition here is time-barred. As our high court has explained, “the statutes of limitations set forth in the Code of Civil Procedure, including the three-year period in section 338(a), do not apply to administrative proceedings. [Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1088-1089 (Coachella Valley).) As further explained by the court in City of Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29, 48, “ ‘An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ (Code Civ. Proc., § 22.) ‘The word “action” as used in this Title [re: statutes of limitation] is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature.’ (Id., § 363.) An administrative proceeding is neither a ‘civil action’ (id., §§ 22, 312) nor a ‘special proceeding of a civil nature’ (id., §§ 23, 363), ‘to the commencement of which the statute of limitations relates. Such provision... relates only to actions or special proceedings in courts, and not hearings before boards. [Citations.] Respondent board is not a “court” [citation], even though it exercises a power judicial in its nature.’ [Citation.]” (See also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 430, p. 546.)
The Supreme Court cited the City of Oakland case with approval for this proposition in Coachella Valley, supra, 35 Cal.4th at page 1088.
Vieira argues that a three-year statute of limitations should apply because if it does not, parties involved in a court action or special proceeding would be governed by a three-year limitations period under the Code of Civil Procedure, while parties to municipal administrative proceedings would have no statute of limitations protection. In urging that Code of Civil Procedure section 338, subdivision (a) applies here to bar the service reduction claim, Vieira is asking us to disregard the Supreme Court’s directive in Coachella Valley. This we cannot and will not do. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
Vieira contends further that it may be inferred from a reading of the ordinance that there is a one-year limitations period of service reduction claims. Vieira argues that under the ordinance, a mobilehome park owner must submit a proposed rent increase for review within one year or else lose the ability to seek a rent increase for that year. Vieira asserts that by inference a one-year limitations period should govern applications by mobilehome park tenants for a decrease in rents based upon reductions in service. We do not read the ordinance to impose such a one-year limitations period on service reduction claims, and we are loath to imply such a limitations period, particularly here where Capitola-because of Vieira’s failure to properly assert the defense-was not afforded the opportunity to interpret its own ordinance.
B. Laches
Vieira makes an alternative argument concerning the timeliness of the administrative petition. Citing Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1158-1159, Vieira contends that if no formal statute of limitations is applicable, an outer limit of three years should be found to constitute a reasonable delay by the homeowners in asserting the claim for purposes of applying the doctrine of laches. Capitola responds that Vieira forfeited any defense of laches and that in any event it should not be applied here.
Vieira did not assert a laches defense before the City Council. Further, it did not make a particular assertion-nor did it submit evidence supporting an assertion-that it was prejudiced as a result of any unreasonable delay in the presentation of the service reduction claim. As our high court has observed, “the affirmative defense of laches requires unreasonable delay in bringing suit ‘plus either acquies[c]ence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.] Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain [its] burdens of proof and the production of evidence on the issue. [Citation.] Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained. [Citations.]” (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)
Under the circumstances, any defense of laches was forfeited due to Vieira’s failure to present the defense to the City Council. Since the defense involves a factual inquiry (Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at p. 624), it would be particularly inappropriate to address the defense here where Vieira failed to afford the Capitola City Council the opportunity to consider it in the first instance at the administrative hearing.
XI. Sufficiency of the Evidence Supporting Administrative Award
Vieira argues that there was no substantial evidence to support the service reduction award that was rendered by the City Council. It asserts that the survey did not support the award, in that it (a) acknowledged that there were two vacant spaces and a few spaces controlled by Vieira, and (b) involved responses from only 30 residents, thereby making it impossible to extrapolate service reductions for the entire community. Vieira also contends that the claim related to cable television service should not have been considered, because Vieira did not supply the service and the problem was not a reduction in service but rather a delay in a desired upgrade of the service. Further, it claims that the award was not supported by substantial evidence because management problems and neighbor problems alleged in the administrative petition did not involve “service[s]” under the ordinance.
Capitola responds that Vieira’s contention is based on the misstatement that the award was based primarily on the survey, which ignores the substantial testimony by homeowners and others that was presented at the administrative hearing. It responds further that in viewing the administrative record as a whole, there was substantial evidence to support the award.
In reviewing a sufficiency-of-the-evidence claim, we presume that the administrative decision is correct (Patterson Flying Service, supra, 161 Cal.App.4th at p. 419); the agency’s findings are presumed to have been supported by the administrative record (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1062); and we consider the whole record in determining whether there is substantial evidence in the record to support the findings (Young v. Gannon (2002) 97 Cal.App.4th 209, 225). It is Vieira’s burden as the party challenging the administrative decision to establish that Capitola abused its discretion by rendering a decision not supported by substantial evidence. (Ibid.) “This burden is a ‘daunting’ one. [Citation.] ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.] ‘[W]hen an appellant urges the insufficiency of the evidence to support the findings it is [its] duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. [It] cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked [its] responsibility in this respect.’ [Citation.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
In this instance, Vieira has devoted less than one-twentieth (two pages) of the text of its opening brief in discussing its contention that there was no substantial evidence to support the award. Most of its short argument is devoted to the survey. Vieira again states that the award was based “primarily” on the survey, a premise that, as noted above, is a faulty one. It acknowledges in a footnote that “approximately 12 individual residents testified” at the administrative hearing. But Vieira does not discuss that testimony in any respect in connection with its sufficiency-of-the-evidence argument.
We acknowledge that Vieira, in its reply brief, attempts to correct its failure to discuss fully and fairly the evidence presented at the administrative hearing in connection with its sufficiency-of-the-evidence challenge. We will not consider this belated attempt to address matters that should have properly been presented in the opening brief. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.)
As noted, a party challenging sufficiency of evidence must set forth all material evidence, including evidence harmful to the party’s position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Failure to do so results in the claim being deemed waived. (Ibid.; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) After completing a thorough review of the entire administrative record, we readily conclude that Vieira failed “ ‘to set forth in [its] brief all the material evidence on the point and not merely [its] own evidence.’ ” (Foreman & Clark Corp., at p. 881.) Accordingly, we find that it waived the claim of error. (Ibid.)
Although we find that Vieira waived its sufficiency-of-the-evidence challenge, our review of the administrative record nonetheless discloses that there was substantial evidence, including the testimony of a number of homeowners and the submission of the survey, supporting the service reduction award.
DISPOSITION
The judgment entered on the order denying the petition for writ of mandate is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.