Filed 2/26/21 Zuleta v. Hous ing and Community etc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LUIS ZULETA et al.,

Plaintiffs and Appellants,

v.

HOUSING AND COMMUNITY INVESTMENT DEPARTMENT OF LOS ANGELES et al.,

Defendants and Respondents;

ELIZA KIM et al.,

Real Parties in Interest and Respondents. B302939

(Los Angeles County Super. Ct. No. BS175319)

APPEAL from a judgment of the Superior Court of
Los Angeles County, James C. Chalfant, Judge. Affirmed. Los Angeles Center for Community Law and Action

, Noah Grynberg, Tyler Anderson, Gina Hong, and Sarah Walkowicz fo r Plaintiffs and Appellants

.2 Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Assisting City Attorney, Blithe S. Bock, Managing Assistant City Attorney, Matthew A.
Scherb and Shaun Dabby Jacobs, Deputy City Attorney s for Defendants and Respondents

. No appearance for Real Parties in Interest and Respondents

.

_________________________
Eliza Kim and Michael Marzouk own separate residential rental properties in Los Angeles. Luis Zuleta and Jose Luis
Moreno Rios are tenants of Kim. Juan De Dios Garcia is a tenant
of Marzouk. Kim and Marzouk separately applied to the Los Angeles Housing and Community Investment Department (the Department) for a “just and reasonable” increase of the rents they may charge
their tenants. Department hearing officers granted the applications in part and their decisions were approved by an appeals board of
the Los Angeles Rent Adjustment Commission (the Commission). Zuleta, Rios, and Garci a filed a petition for writ of administrative mandamus in the superior court challenging the Department’s and the Commission’s rulings. In November 2019

, the court denied the petition. This appeal followed.
Zuleta and Rios contend that the Department and the Commission erroneously determined that Kim’s “base year” is
1984 for purposes of determining whether Kim is eligible for a rent
increase and the Commission failed to account for income Kim had received from short term rentals through Airbnb. Garcia c ontends that the Department and the Commission erred in determining that Marzouk’s base year is 2011. We affirm.3 LEGAL AND REGULATORY BACKGROUND

The Rent Stabilization Ordinance of the City of Los Angeles (LARSO) regulates the ability of landlords to inc rease the rent charged to tenants. (L .A. Mun. Code, § 151.04 , subd. (A).) A landlord may apply to the Department for a rent increase greater than that ordinarily permitted under the LARSO on the ground
that the increase is necessary to provide the landlo rd with a “ just
and reasonable return ” on the rental property. ( L.A. Mun. Code, §§ 151.01, 151.07 , subd. (B)(1); see Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 165 [rent control ordinance must provide landlords with a “just and reasonable return on their property”] ; Palos Verdes Shores Mobile Estates, Ltd. v. City of Los Angeles (1983) 142 Cal.App.3d 362, 368 [LARSO upheld against constitutional challenge because it ensures “ ‘ a just and reasonable

return ’ ” for landlords] .)
The LARSO established the Commission, which has issued “Just and Reasonable Guidelines” (the Guidelines) for Department hearing officers to use in determining a just and reasonable return. ( L.A. Mun. Code, § 151.03 , subd. (A); L.A. Housing & Community
Investment De pt., Rent Adjustment Commission, Just and Reasonable Guidelines (Sept. 1, 2005) § 240.00 et seq. (Guidelines).) Under the Guidelines, the hearing officer calculates and

compares “ N et O perating I ncome” for the “ C urrent Y ear” with
the “ N et O perating I ncome ” for the “ B ase Y ear,” adjusted for price inflation. ( Guidelines, supra , § § 242.0 5

– 24 3 .0 3 .) For our purposes,

n et o perating i ncome is, generally, the income received from dwelling units minus certain expenses, such as management and administrative expens es, maintenance expenses, taxes, insurance, and operating expenses such as electricity, water, sewer, and gas. (Guidelines, supra , §§ 240.00, 241.0 0

– 241. 19 .)4 The “ C urrent Y ear” is the most recent calendar or fiscal year prior to the date of the landlord’s application. (Guidelines, supra , § 240.00.)
T he “ B ase Y ear shall be 1977 when the financial information for that year is available.” ( Guidelines, supra , § 242.01.) 1 If the landlord did not own the property in 1977 and records for that

year “are not available from a previous landlord, the present landlord may, when the unavailability of the 1977 records can
be substantiated by clear and convincing evidence, substitute

as a B ase Y ear the first year following 1977 for which a previous
landlord’ s records are available.” (Guidelines, supra , § 243.02.)
If the c urrent y ear n et o perating i ncome is less than the
inflation

- adjusted b ase y ear n et o perating i ncome , the landlord
is eligible for a rent increase

. (Guidelines, supra , § 243.07.) The
incr ease is allocated equally among the rental units. (Guidelines,

supra , § 245.02.) The Department must give notice of the landlord’s application to the tenants and set an evidentiary hearing. (L.A. Mun. Code, § 151.07 , subd. (B)(3)(b) & (c); Guidelines, supra , § § 247.0 1

– 247.05.)

1 The rationale for a 1977 base year is explained in the Guidelines: “ In most cases the automatic increases allowed by the [LARSO] and the property tax savings resulting from Proposition 13 provide sufficient additional operating income to landlords to maintain at least the same net operating income they experienced in 1977 adjusted by an inflation factor. However [,] in some cases landlords may have incurred reasonable operating expenses which excee d the rent increases allowed by the [LARSO] and the tax savings resulting from Proposition 13. Therefore, landlords who have had such reasonable increased operating expenses shall be able to maintain the same level of net operating income as they experien ced in 1977, plus a P rice L evel A djustment as determined by the [Commission] from time to time. ” (Guidelines,

supra , § 240.03.)5

The hearing officer must issue a “determination with written findings in support thereof,” and may grant an application for a rent increase less than the amount requested. (L.A. Mun. Code, § 151.07 , subd. (B)(3) (d); Guidelines, supra , § 247.09.) The landlord or the tenant may appeal the hearing officer’s
decision to the Commission on the grounds that “there was an error or abuse of discretion by the hearing officer.” ( L.A. Mun. Code

, § 151.07 , subd. (B)(4) (a); s ee also Guidelines, supra , § 248.02 .)
The appellant may rely “on new, relevant information which

was not submitted to the hearing officer at the time of the
initial determination due to mistake, surprise, inadvertence, or
excusable neglect, and which info rmation would have affected
the determination of the hearing officer if it had been submitted earlier.” ( L.A. Mun. Code , § 151.07 , subd. (B)(4) (a); see also Guidelines, supra , § 248.02(C) .) The appeals board may affirm, modify, or reverse the decision of the hearing officer. ( L.A. Mun.
Code , § 151.07 , subd. (B)(4) (d); Guidelines, supra , § 248.16 .)

FACTUAL AND PROCEDURAL SUMMARY

A. Kim’s Application for a Just and Reasonable Rent Increase

Kim owns a four

- unit apartment building in Los Angeles (the Kim property). In January 2016, Kim inherited the building from her father, who purchased it in July 2006 from Yasutake
Takushi. In 2016, Kim live d in one unit and rent ed the other three
units . Zuleta and Rios rent one of the units. In October 2018,
Zul eta and Rios were paying rent of $1,169.11 per month. On October 18, 2017, Kim submitted to the Department

an application for a just and reasonable rent increase , seeking

a n increase in the amount of $1,247.74 per unit per month. The6

application is supported by a compar ison of a “base year” of 1984 with a “current year” of 2016.
Kim explained that she selected 1984 as the base year based
on the following. She found among her “father’s boxes” a lease containing Takushi’s address and then drove to the address. Takushi had died several years earlier and his son was then living in the residence. She explained to the son why she needed records regarding the property and “earnest ly asked him to look for all papers,” including “the earliest he could find.” The son initially
told her “there was no chance” of finding such records. Eventually, however, he provided Kim with a 1984 tax return schedule regarding the property and, a few days later, called Kim to tell
her he had found an amended schedule for that tax year. Kim explained to the Department , “I could not get 1977 tax forms because I did not get that from Mr. Takushi’s son. I did not want

to bother him anymore.”
Kim also su pported the application with a property report and copies of deeds indicating that Takushi transferred the property to Kim’s father in 2006, and Kim’s father transferred the property to
Kim in 2016. The report also indicates a transfer of the property in September 1982, presumably to Takushi. On January 18, 2018, the Department staff issued its analysis and recommendation regarding Kim’s application, which concluded that Kim was “ not receiving a just and reasonable return on the property and is entitled to a monthly rent increase of $543.72 per unit per month .” The staf f ’s analysis was based on a base year of 1984 and a current year of 2016. The staff reduced the amount of the requested rent increase in part because it divided the total rent increase for the building among four units , including the unit Kim lived in, instead of the three units rented to tenants.7 On February 9, 2018, a Department hearing officer held

a hearing on Kim’s application. Zuleta and Rios did not appear

at the he aring personally or through counsel. On March 23, 2018, the hearing officer issued his decision approving Kim’s application as modified in accordance with
the Department’s recommendation. Regarding the base year determination, the hearing officer stated t hat Kim “ provided documentary evidence to the Department indicating that 1984

was the first year for which a full record of income and expenses

was available from the previous landlord. Accordingly, for this application the base year was deemed to be 1984 and the current year is 2016. ”
Zuleta and Rios filed an appeal to the Commission.
Zuleta and Rios moved to augment the record in the appeal to
the Commission to include documents showing that Kim had rented the unit she had been living in to third parties through Airbnb and
that she had converted a garage on the property and was living
in that unit. They also submitted their declarations stating that
the building has four apartment units and that Kim is living in a separate garage unit “so that she could rent out” the unit she had been living in. 2 Prior to the hearing on the appeal, the Department submitted

a report stating that Kim began renting her unit through Airbnb
in March 2017 and, because the “current year” for purposes of the application is 2016, the Airbnb income is irrelevant

. At the hearing before the Commission

, Zuleta and Rios

, through counsel, argued, among other arguments, that the

2 Our record does not disclose whether the Commission appeals board granted the motion to augment the record. Its ruling on th e appeal, however, implies that it considered the additional evidence.8

Department and the hearing officer im properly failed to consider
the undisclosed Airbnb income

. They also asserted that the rent increase for the building should be divided among five apartments, not four, because Kim was living in the converted garage unit on the property.
In a written deci sion issued on July 6, 2018, the Commission

a ppeals b oard affirmed the hearing officer’s decision to grant in part
Kim ’s requested rent increase. The panel rejected the argument that the rent increase should be divided among five units because the alleged fifth unit was based on hearsay. The panel deemed
evidence of Airbnb rental income to be immaterial because there
was no evidence of such income in 2016. The panel concluded
that there was “ no reason to reverse the H earing O fficer’s decision
because the re is insufficient evidence that the H earing O fficer
abused [his] discretion or made an error .”

B. Marzouk’s Application for a Just and Reasonable Rent Increase

In October 2017

, Marzouk acquired a four

- unit apartment building in Los Angeles. He rents three of the units and lives in
the fourth. Garcia is one of Marzouk’s tenants. On November 14, 2017, Marzouk submitted an application

to the Department for a “just and reasonable” increas e in the rent. The Department determined that the application was incomplete and requested further information. Marzouk filed a new application on February 5, 2018, seeking increases of $1,153.59

per unit. At the time of the application, Garcia’s rent w as $645.30. Marzouk’s application was based on a base year of 2011 and

a current year of 2017. He initially supported the 2011 base year claim with evidence that he acquired the property from his father

or an entity (Mar Mena Properties, LLC) in which his father is

a partner or principal. His father submitted a statement that his9

company had purchased the property in 2009 “as a foreclosure,” and that the foreclosing bank did not provide him with any documents. According to Marzouk, his father “did not ke ep proper records for 2010 as it was his first year owning real estate,” and his father “could only provide [him] information dating back to 2011.” In a subsequent writing, Marzouk stated that there is no data available prior to 2011 “due to multiple fore closures /short sales and not being able to track down the current addresses of previous owners.” The Department staff issued a report, which accepted 2011

as the base year and recommended that Marzouk be granted a rent increase of $364.55 per unit per mont h. Prior to the hearing on the application, Marzouk obtained

a title report for the property and copies of deeds concerning the property. These documents showed that the property was owned by Karl and Louise Duus in 2001, who transferred the property
that year to Mei and Effendi Fendi

. In 2006, the Fendis deeded
the property to Mariano Galvan, who transferred it to Marzouk’s parents and uncle in 2009. At the hearing before the Department hearing officer in June 2018, Marzouk testified that the only addre ss he had for Galvan (the owner from 2006 to 2009) was the apartment building that
is the subject of this proceeding, and Marzouk “couldn’t track
him down.” Marzouk obtained an address for the Fendis (the owners from 2001 to 2006), and mailed them a lette r, which was
returned to him undelivered. He then drove to the address in
South Pasadena, but no one answered his knock on the door. A neighbor on that street informed him that the Fendis no longer
lived at that address. Marzouk further testified that, a lthough his parents and uncle bought the property in August 2009, they “didn’t have the books in order” and did not prepare the tax form used for reporting10

rental real estate income and loss in 2010. 2011 was the first year
for which he had such a form.
T he hearing officer issued his decision on July 6, 2018. He found that “the previous owners’ records were available beginning in 2011. Accordingly, the base year was deemed to be 2011 because it was the earliest possible year of record that could be secur ed
from the previous owner.” The hearing officer agreed with the Department’s recommendation and approved Marzouk’s application
as modified. Garcia appealed to the Commission. At the hearing before the Commission appeals board
in September 2018, a Department representative explained
that although the Department “request[s] clear and convincing evidence,

. . . it’s impossible for owners to [prove] a negative. Therefore, we have to go with evidence submitted to show that they’ve made their best effor t. And having documentation of the title report going to the last known address of a previous owner
that wasn ’ t listed as the property address and taking a picture
that he actually went there, I don ’ t see how much else he could
have done. ” Upon further in quiry from the appeals board panel, Marzouk
testified that he had found online the obituaries of the Duuses,
who owned the property from 1954 until they transferred it to the Fendis in 2001. According to the title company he retained to prepare the title report, “there was no address on record” for the Duuses. The Department representative added: “I don’t see what else [Marzouk] could have done beyond spending thousands of dollars for a private investigator to investigate records that don’t
exist because the county said they don’t have them.” On September 26, 2018, the Commission’s appeals board affirmed the hearing officer’s decision , stating that “ there was11

insufficient evidence that the Hearing Officer abused [his]
discretion or made an error .”

C. Proc eedings in the Superior Court In October 2018, Zuleta

, Rios , and Garcia filed a petition
for writ of administrative mandamus , among other relief, against
the Department and the Commission

. The court severed the individual’s claims for trial, but maintaine d a single case number and issued a single judgment denying the petitions. Zuleta, Rios, and Garcia appealed.

DISCUSSION

A. Standards of Review When, as here, the underlying petition for writ of
administrative mandamus does not involve fundamental rights,

our review of a denial of the petition is identical to the trial court’s review of the administrative ruling. ( Hoag Memorial Hospital Presbyterian v. Kent (2019) 36 Cal.App.5th 413, 421.) We review the record of the administrative pro ceeding to determine whether the agency “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 [agency] has not proceeded in t he manner required by law, the order or decision is not supported by the findings, or the findings are not supported by substantial evidence.” (Code Civ. Proc., § 1094.5, subd. (b).) We review legal issues and conclusions of law de novo. ( Hoag Memorial Hospital Presbyterian

, supra , at p. 4 21 .)12 B. Zuleta and Rios’s Challenge to Kim’s Just and Reasonable Rental Increase

1. Clear and Convincing Standard R egarding Unavailable Documents in Determining the 1984 Base Year

Zuleta and Rios contend that the hearin g officer erred by failing to properly apply a clear and convincing evidence standard to Kim’s evidence that pre

- 1984 financial records concerning the property were unavailable to her. We disagree. Under Guidelines, supra , section 243.02, a landlord who d id not own the property in 1977 may “ substitute as a B ase Y ear the first year following 1977 for which a previous landlord’s records

are available ” “ when the unavailability of the 1977 records can be substantiated by clear and convincing evidence .”
A clear and convincing evidence standard of proof

“ demands a degree of certainty greater than that involved with
the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate
standard ‘ requi res a finding of high probability. ’ ” ( Conservatorship of O.B. (2020) 9 Cal.5th 989, 998 .) Where clear and convincing proof is required, the party bearing that burden of proof “ ‘ must do more than show that the facts are probably true ’ ”; he or she

must convince the trier of fact “ ‘ that it is highly probable that the
facts

. . . are true. ’ ” ( Id. at p p

. 998

– 999.) In the context in which that standard is to be applied here, the question for the hearing officer is whether Kim has shown that it is highly p robable that the records necessary to calculate the n et

o perating i ncome of the property for years between 1977 and 1984
are unavailable to her. Zuleta and Rios contend that the hearing officer failed to apply the clear and convincing standard. They point out correctly that the hearing officer did not explicitly refer to this standard in13

his written ruling. He stated that Kim “ provided documentary evidence to the Department indicating that 1984 was the first year for which a full record of income and expe nses was available from the previous landlord. Accordingly, for this application the base

year was deemed to be 1984 and the current year is 2016. ” Although the hearing officer did not explicitly recite the
clear and convincing standard in his ruling, he did introduce
his discussion of the issue by referring to the applicability of
section 243.02 of the Guidelines , which mandates the clear and convincing evidence standard

. The reference to that guideline implies that the hearing officer applied that standard. Further,

t he hearing officer did not indicate that he had applied a different standard of proof and neither the Guidelines nor the LARSO require the hearing officer to recite the cl ear and convincing standard in the officer’s ruling. In the absence of a contrary indication in the record, we presume that the hearing officer regularly performed his duty (see Evid. Code, § 664) and that he

“ ‘ applied the correct standard of proof. ’ [C itation.] ” ( Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 929 .) We therefore reject the argument that the hearing officer failed to apply the correct standard.
Zuleta and Rios further assert that the hearing officer incorrectly applied a c lear and convincing evidence standard

to them . They refer to the following statement s in the hearing officer’s decision: “ After due consideration of the testimony and
documentation submitted by all parties, the Hearing Officer hereby
finds that the incom e and expenses claimed by the owners for
the base and current years are supported by clear and convincing
evidence. Although the tenants and their attorney expressed some subjective concerns about the amount of the proposed rent increase
and voiced their objections to same, they failed to proffer any clear and convincing evidence to rebut the owner ’ s claims or demonstrate14

that the income or expenses reported in the application lacked credibility in any way. ” Th ese statement s relate solely to issue s concerning Kim’s evidence of income and expenses, not to her selection of the base year

. Zuleta and Rios have not, however, challenge d on appeal the hearing officer’s determination regarding income and expenses (other than the Airbnb income discussed
belo w) and n othing in the hearing officer’s ruling suggests that he required the tenants to make any showing, by clear and convincing evidence or otherwise, as to the base year issue. Zuleta and Rios next contend that, even if the hearing officer applied the c lear and convincing standard, he did so erroneously. 3 The challenge is to the sufficiency of the evidence supporting
the hearing officer’s implied finding. Our Supreme Court has recently clarified that, “ when presented with a challenge to the
sufficienc y of the evidence associated with a finding requiring
clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high

pro bability demanded by this standard of proof. ” ( Conservatorship of O.B. , supra, 9 Cal.5th at p. 1005 .) Zuleta and Rios argue that the only evidence Kim presented to support her selection of 1984 as the base year is the tax form supplied by Takushi’s son and her statement regarding her efforts to locate the son and her request that he provide her with “the

e arliest ” records he could find. Because Takushi appears to have

3 The Department and the Commis s ion argue that Zuleta and Rios waived this argument by failing to raise it below. As Zuleta and Rios point out, however, they raised the issue in their motion
to augment before the appeals board and the issue was addressed by the Department’s representative, the appeals board panel, and counsel for Zuleta and Rios. We therefore reject the waiver argument.15

owned the property since 1982, such evidence, Zuleta and Rios argue, “ did not establish anything about the availability of financial
records between 1977 and 1982, or even who owned the [Kim] [p] roperty between those dates. ” Even in the absence of evidence that Kim attempted to locate the person who owned the property prior to Takushi, we cannot conclude that the hearing officer erred in determining, implicitly, that it was highly probable tha t earlier records would not be available to Kim. At the time of Kim’s application, it had been
35 years since someone other than Kim , her father, and Takushi owned the property. That passage of time is itself a fact that weighs heavily on the probability that the necessary documents would never be available to Kim. In evaluating that probability,
the hearing officer could reasonably consider that the former owner of the property or other custodian of the owner’s records, if still living and locatable, ha d probably long since discarded any records concerning the rental income and operating expenses for the property. Even if the necessary records still exist and could be found, the likelihood that the owner or other custodian would
decline to turn them ove r to Kim further reduces the probability
of their availability to her. Kim would have no ability to compel production of the records and would need to resort, as she did in this case, to “ earnestly ask [ing]” the former owner or custodian for
such records. Although Kim was fortunate that Takushi’s son was willing to search for and provide her with his father’s records from 1984, the kindness of strangers cannot be assumed, particularly when that kindness involves turning over one’s financial, property,

or tax records. We do not suggest that a landlord never needs to attempt

to track down those who owned the property many years earlier. But here, the question is whether there was sufficient evidence, including the passage of 35 years, for the hearing offi cer to16

reasonably conclude that it was highly probable that pre

- 1984 records were unavailable to Kim. For the foregoing reasons, we
conclude that there was sufficient evidence

.

2. Failure to Adjust Current Year Income Based

on Airbnb Income

Zuleta and Rio s contend that the appeals board erred by failing to adjust upward the current year’s income by the income Kim received from Airbnb rentals. We reject the argument. In determining whether Kim was eligible for a just and reasonable rent increase, the Guide lines direct the hearing officer

to compare the base year net operating income with the current year net operating income. (Guidelines, supra , § 243.07.) The current year is defined as “[t] he most recent calendar or fiscal

year prior to the date of the Just and Reasonable application. ” (Guidelines, supra , § 240.00.) Kim submitted her application in October 2017. The current year was therefore 2016. The evidence Zuleta and Rios submitted regarding Kim’s
Airbnb rentals indicates that such rentals occurred in 2017. This
is consistent with Kim’s statement that she began Airbnb rentals
in March 2017. Because only income received in 2016 is relevant

to Kim’s application, the evidence of 2017 Airbnb rental income is
irrelevant. Zuleta and Rios rely on Kim’s testimony at the appeals board hearing where she stated: “ I ’ m a full

- time student at Los Angeles City College. I don ’ t know how much time I have, but I ’ m trying to
make the means

— the mortgage means [ sic ]

. That ’ s all and I can ’ t

even remodify it because my income doesn ’ t meet and I can ’ t even lower the payments because I ’ m a student and nobody would talk

to me. And I have records of people who try to help me

. . . . After this, after we bought it I

— I have so many things to do, but I ’ m
very happy that I got up to here. Very grateful. I have no family,17

no boyfriend.

. . . It ’ s like two, three bedrooms. I mean, it’s

— and I knew this would take like six

— five months and it did take
six months and I couldn ’ t meet the mortgage so I had Airbnb. ” Zuleta and Rios argue that the last sentence of this testimony shows that Kim “turned to Airbnb” six months from the date she acquired the property in January 2016. This statement is at best ambiguous about when Kim turned to Airbnb. Thus, the appeals
bo ard was free to adopt an interpretation in favor of the evidence
of Kim’s unambiguous statement to Department personnel that
she began using Airbnb in 2017. We therefore reject the tenants’ argument.

C. Garcia’s Challenge to Marzouk’s Just and Reasonable Rental Increase Garcia contends that the hearing officer and appeals board erred in applying the clear and convincing evidence standard in determining that the base year for Marzouk’s application is 2011. In ruling on Marzouk’s application, the hearing officer stated that “the previous owners’ records were available beginning in 2011. Accordingly, the base year was deemed to be 2011 because
it was the earliest possible year of record that could be secured
from the previous owner.” As with the ruling on Kim’s application, the hearing officer referred to section 243.02 of the Guidelines, which requires the application of the clear and convincing standard

, but failed to explicitly state that he was applying the clear and convincing standard to the question whether earlier property records were unavailable. As we explained above, however, the
failure to refer to that standard is not error and we presume that the hearing officer was aware of and applied the correct standard. As discussed above, the clear an d convincing evidence standard in this context requires Marzouk, as the proponent of
the fact that financial records of the property prior to 2011 were18

unavailable, to establish that the unavailability of such records
is highly probable. ( Conservatorship of O.B.

, supra , 9 Cal.5th

at pp. 998

– 999.) On review, we must determine whether there is
substantial evidence in the record from which the hearing officer
could have made that finding of high probability. ( Id. at p. 1005 .) Here, Marzouk obtained the earliest records available from the prior owner

— his father’s company. He obtained from a title company a title report and copies of deeds reflecting ownership of the property since 1954. Through online research, he determined that the couple who owned the property until 2001, the Duuses,
had passe d away. Marzouk attempted to contact the couple that owned the property from 2001 to 2006, the Fendis, but learned that they had moved from the only address he had for them. Garcia focuses his argum ent on the lack of evidence regarding
Marzouk’s efforts to locate Galvan, the individual who owned the property between the Fendis and Garcia’s father’s company

. According to Garcia, Marzouk did no more than observe that
Galvan listed the subject property as his address on the 2006 deed to the property and thereby concluded that he was unreachable

. Marzouk did produce the deed to Galvan showing the subject property as Galvan’s address, but Marzouk did not state that
he stopped there. He explained in a wr iting in support of his application that he was “not

. . . able to track down the current addresses of previous owners

, ” and that he “attempted to reach out to the previous banks” but “ they would not release the names of the previous owners nor contact information.” He also testified before the hearing officer that he “couldn’t track [Galvan] down .” He later explained to the appeals board that he asked the city and his escrow agent how to contact prior owners and was advised to obtain a title

r eport. He did so and used the information the report provided; but, “[w]ithout a phone number and an email address [he did not] know what other methods are really out there.”19 Although our record is not clear as to what, precisely,
Marzouk did to “track do wn” Galvan, his statements imply some action beyond merely reading Galvan’s deed

. His attempt to “ reach out to the previous banks, ” for example, implies that he contacted
Galvan’s lender or lender s , who would have been disclosed on deeds
of trust identified in the title report Marzouk obtained

. Together
with the evidence of his efforts to locate the Fendis and the passing
of the Duuses

, the hearing officer could reasonably conclude that
there was a high probability that financial records concernin g the property earlier than 2011 were unavailable to Marzouk.

DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur.

BENDIX, J.

FEDERMAN, J. *

* Judge of the San Luis Obispo County Superior C ourt, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.