GCP Management v. City of
Filed 11/1/13 GCP Management v. City of Oakland CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
GCP
MANAGEMENT, LLC et al.,
Plaintiff and Appellant,
v.
CITY OF
OAKLAND et al.,
Defendant and Respondent.
A135871
(Alameda
County
Super. Ct.
No. RG10538368)
GCP
Management, LLC, as agent for GCP, Gibraltar Capitol Fund, VI, LLC (GCP),
appeals the summary adjudication of
its action for inverse condemnation as well as the subsequent grant of a
nonsuit with respect to its claim of trespass.
In addition, GCP contends that the trial court’s ruling in favor of the
City of Oakland (City) on the
City’s cross-complaint for damages was error.
We affirm.
BACKGROUND
A. The City’s Abatement Proceedings
GCP
is the owner of real property located at 601 MacArthur Boulevard, 620 Wesley
Avenue, and 620 Hillgirt Circle in the City (collectively, the Property). Substandard conditions on the Property have
been of concern to the City for a number of years. In July 2006, pursuant to its local nuisance
ordinance, the City sent a letter to a prior owner declaring the Property to be
a public nuisance due to a number of deteriorating conditions, including the
fact that the temporary shoring in place on a partially-excavated slope was
“not designed for long-term restraint of the hillside†(2006 Declaration). Deeming the Property dangerous to workers,
visitors and abutting dwellings, the City ordered the owner to fix the
objectionable conditions on the Property within a specified timeframe. Failure to comply with the City’s demands
would result in a number of negative consequences, including the City
“re-accessing your property without further notice and for additional chargeâ€
to remediate the problem.
By
October 2008, the Property—which was in the process of being sold—had not been
rehabilitated. At that time, both the
current owner and the purchaser entered into a Compliance Plan and
Rehabilitation Schedule Work Plan with the City (Compliance Plan) pursuant to
which they agreed, among other things, to install “an approved shoring system
for the length of the slope of the properties.â€
The Compliance Plan expressly acknowledged that the 2006 Declaration was
to remain in effect while the necessary work was being done. In addition, the Compliance Plan required the
owner or new buyer to post a $250,000 performance bond to secure the “faithful
completion†of its requirements. GCP—the
appellant herein—supplied this $250,000 bond, which was to be returned directly
to the appellant upon successful completion of the work. Repayment of the GCP loan was secured by a
Property on October 15, 2008.
In
March 2010, the City notified the then-owner of the Property that it had failed
to comply with the terms of the Compliance Plan and that the Property remained
“a longstanding blight and continuing hazard for the neighborhood.†In February, an exposed City sewer pipe on
the Property had broken during a winter storm requiring a City maintenance crew
to provide a temporary repair for the “inadequately supported pipe†and to pump
raw sewage off the Property. Moreover,
the same winter storm caused the stability of the hillside on the Property to
deteriorate. Specifically, the City
noted that “[t]he temporary shoring and winterization for the hillside has been
ineffective in retaining the sloughing soil.â€
The
City retained Ninyo & Moore, a geotechnical engineering firm, to aid in its
analysis of the Property. It was Ninyo
& Moore’s opinion in early 2010 that “erosion and sloughing of soils from
the steep, partially protected slope†on the Property would continue “if the
slope [was] not protected.†The firm
further opined that the “erosion and sloughing†would “likely lead to larger
failure of the slope.†In a March 2010
letter to the owners of the Property, the City indicated that it would be
contracting with third-parties to complete the sewer extension for the Property
and to install a hillside stabilization system.
Given the owner’s default under the terms of the Compliance Plan, the
City stated that it would be using the monies from the owner’s forfeited
performance bond to defray its costs.
An
additional inspection by the City on April 27, 2010, confirmed the continuing
deterioration of conditions on the Property.
On April 29, 2010, the City recorded a certificate memorializing its
2006 Declaration against the Property.
Then, on May 11, 2010—noting that the dangerous conditions previously
identified in the 2006 Declaration were “endangering upslope properties to the
extent that these conditions have become manifestly unsafe for the public and
imminently hazardous for occupants and visitorsâ€â€”the City notified the owner of
the Property that it was declaring the Property to be an imminent hazard pursuant
to the provisions of its local nuisance ordinance (Imminent Hazard). The City detailed specific abatement work
required to be completed by June 1, 2010, and informed the owner that it had
until May 18, 2010, to appeal the City’s determination. If the owner failed to either successfully
appeal or complete the required work by the stated deadline, the City indicated
that it would enter the Property “without further notice to perform the
mitigation work.†All costs associated
with this work would be charged against the Property and the owner. There is no indication in the record that an
appeal was filed, or that any abatement work was done in response to this
declaration of Imminent Hazard.
Thereafter, on June 9, 2010, GCP became the record owner of the Property
through foreclosure on its deed of trust.
Representatives
of GCP met with City officials on August 25, 2010, to discuss the contemplated
work on the Property. At that meeting,
the City agreed to allow GCP an opportunity to assess the situation and to
submit its own proposal, but indicated that work would need to begin in early
September to assure its completion before winter. As of September 8, 2010, the City had not
received a proposal or any permit applications from GCP. It therefore notified GCP that it intended to
move forward with the planned abatement work on September 13. On September 27, 2010, GCP filed an Ex Parte
Application for Temporary Restraining Order and Order to Show Cause re:
Preliminary Injunction in Alameda County Superior Court (TRO), alleging that
the City had entered the Property without permission and was destroying
improvements on the Property. GCP sought
an order stopping the City’s demolition activity and requiring the City to give
GCP a “meaningful opportunity to respond†to the City’s concerns about the
site. The TRO application was denied
that same day after hearing, and the City subsequently completed the abatement
work on the Property, stabilizing the hillside.
B. Proceedings in the Trial Court
On
the same day that it filed its TRO application, GCP also filed a complaint in
Alameda County Superior Court asserting causes of action against the City for
inverse condemnation and trespass based on the City’s abatement activities with
respect to the Property. GCP sought
damages as well as injunctive and declaratory relief. A Second Amended Complaint filed in April
2011 added a cause of action for negligence.
In May 2011, the City filed a cross-complaint seeking damages based on
its unreimbursed abatement costs with respect to the Property.
The
City filed a motion for summary adjudication of GCP’s inverse condemnation
claim in November 2011. On February 17,
2012, the trial court overruled all of GCP’s evidentiary objections with
respect to the requested summary adjudication and granted the City’s
motion. Subsequently, on March 8, 2012,
GCP dismissed its negligence cause of action, and proceeded to trial before the
court on its action for trespass. At the
conclusion of GCP’s opening statement and after an offer of proof, the City
moved for a judgment of nonsuit pursuant to Code of Civil Procedure section
581c, subdivision (a). The trial court
granted the City’s motion.
A
bench trial then commenced with respect to the City’s cross-complaint for
damages. At the conclusion of the
damages to the City in the amount of
$310,315.18. Judgment against GCP
on its action for trespass was entered on May 3, 2012. On that same date, the trial court issued its
Statement of Decision and (Proposed) Judgment in favor of the City on its
cross-complaint for damages. Final
Judgment with respect to the City’s cross-complaint was entered on May 18,
2012.
brought the case before this Court.
SUMMARY ADJUDICATION PROCEEDINGS
We turn first to
GCP’s contention that the trial court erred in granting the City’s motion for
summary adjudication of GCP’s inverse condemnation claim. The trial court granted the summary
adjudication motion by order dated February 17, 2012, finding that the City’s
abatement activity on the Property was a valid exercise of its police power,
that GCP was on notice of the need for immediate remediation of the Property,
and that the City’s actions did not cause GCP to suffer any damage. GCP argues that the Court’s summary
adjudication order was improper because issues of material fact existed with
respect to each of these three findings.
A. Statutory Framework and Standard of Review
The
standards for granting summary adjudication are well-settled and easily
delineated. A trial court must grant a
motion for summary adjudication “if all the papers submitted show that there is
no triable issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.†(Code
Civ. Proc., § 437c, subd. (c); see also id.,
subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural
respects as a motion for summary judgmentâ€].)
Summary adjudication in favor of a defendant such as the City is proper
if (1) the defendant shows that one or more of the elements of a cause of
action cannot be established or that there is a complete defense to it; and (2)
the plaintiff fails to meet his or her burden of showing the existence of a
triable issue of material fact. (
raised through speculation or conclusory assertions. (Lyons
v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014 (
Thus, the plaintiff cannot rely upon “the mere allegations or denials of
its pleadings,†but must instead set forth the “specific facts†supporting the
existence of the material fact. (Code
Civ. Proc., § 437c, subd. (p)(2).)
On
appeal, we undertake de novo review of the trial court’s decision to grant
summary adjudication, “considering all of the evidence the parties offered in
connection with the motion (except that which the court properly excluded) and
the uncontradicted inferences the evidence reasonably supports.†(Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We are not bound by the trial court’s stated
reasons or rationales. (
Inc. (1999) 72 Cal.App.4th 798, 805.)
Rather, we engage anew in “ ‘the same three-step analysis required
of the trial court.’ †(
1012.) First, we “ ‘ “identify
the issues framed by the pleadings since it is these allegations to which the
motion must respond.†’ †(
Next, we “ ‘ “determine whether the moving party’s showing has
established facts which negate the opponent’s claim and justify a judgment in
movant’s favor.†’ †(
Finally—if the moving party has made an initial showing justifying
summary adjudication—we “ ‘ “determine whether the opposition
demonstrates the existence of a triable, material factual
issue.†’ †(
In
the present case, the City moved for and was granted summary adjudication of
GCP’s claim of inverse condemnation. The
City argues that summary adjudication was proper because its actions with
respect to the Property were a valid exercise of its police power. The City also asserts that it is entitled to
summary adjudication because GCP has not shown that the Property has suffered
any actual damage as a result of the City’s abatement activity. Since we conclude that the City has
established that its actions constituted a valid exercise of its police
power—and thus the trial court’s summary adjudication of the matter was
appropriate—we do not reach the issue of actual damage to the Property.
B. General Principles Governing Inverse Condemnation and the Police Power
“Inverse
condemnation, like eminent domain, ‘rest[s] on the constitutional requirement
that the government must provide just compensation to a property owner when it
takes his or her private property for a public use.’ †(City
of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 220 (
(1986) 186 Cal.App.3d 897, 902 (Beaty);
see also Cal. Const., art. I, § 19.) “To
state a cause of action for inverse condemnation, the property owner must show
there was an invasion or appropriation (a ‘taking’ or ‘damaging’) of some
valuable property right which the property owner possesses by a public entity
and the invasion or appropriation directly and specially affected the property
owner to his injury.†(
903.) Generally speaking, in inverse
condemnation, “the government is obligated to pay for property taken or damaged
for ‘ “public use†’ or damaged in the construction of ‘public
improvements.’ †(
p. 221, quoting Customer Co. v. City of
Sacramento (1995) 10 Cal.4th 368, 379–380.)
Thus, “[m]ost inverse condemnation actions arise out of unintentional or
negligent damage to an owner’s property or property interests arising out of
the construction of public works.†(
Cal.App.3d 1627, 1633-1634 (Rose);
see, e.g., House v. L.A. County Flood
Control Dist. (1944) 25 Cal.2d 384, 386 [flood damage to property caused by
poorly constructed flood control project].)
In
the present case, however, the City’s abatement actions were taken pursuant to
its police power rather than its power of eminent domain. While proof of compensable damages under such
circumstances is possible (see Rose,
supra, 190 Cal.App.3d at p. 1634), it is important not to confuse the
two types of situations because the standards for recovery are different and—in
the context of the police power—much more limited. Specifically, as a general matter, “the constitutional guaranty of just compensation attached
to an exercise of the power of eminent domain does not extend to the state’s
exercise of its police power, and damage resulting from a proper exercise of
the police power is simply damnum absque
injuria [damage without actionable injury].†(Lees
v. Bay Area Air Pollution Control Dist. (1965) 238 Cal.App.2d 850, 856 (
(1975) 46 Cal.App.3d 816 825 (Fallen Leaf),
citing Gray.) Put another way,
“[w]here the police power is legitimately exercised, uncompensated submission
is exacted of the property owner if his property be either damaged, taken, or
destroyed.†(Gray, supra, 174 Cal. at p. 640.)
Accordingly, if the City’s actions in this case constituted a valid
exercise of its police power, a complete defense exists to GCP’s inverse
condemnation claim and summary adjudication of that claim in favor of the City
was appropriate.
In reviewing the
legitimacy of the City’s actions pursuant to its police power, we are mindful
of the broad discretion vested in the legislative branch to adopt regulations
advancing the public health and safety.
Indeed, “[t]he police power is one of the most essential powers
of government and one that is least limitable.â€
(Fallen Leaf, supra, 46
Cal.App.3d at p. 825.) As our Supreme
Court has opined in the nuisance context: “ ‘Where
the Legislature has determined that a defined condition or activity is a
nuisance, it would be a usurpation of the legislative power for a court to
arbitrarily deny enforcement merely because in its independent judgment the
danger caused by a violation was not significant. The function of the court in such
circumstances is limited to determining whether a statutory violation in fact
exists, and whether the statute is constitutionally
valid.’ †(Id. at p. 826, quoting City
of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100.) We consider each of these questions in turn.
C. Existence of Statutory Violation
GCP
disputes the existence of a statutory violation in this case, arguing that the
nuisance conditions on the Property identified by the City and its geotechnical
engineers did not constitute either an emergency or an Imminent Hazard in
violation of the City’s abatement ordinance.
The City, however, offered significant evidence that an Imminent Hazard
did, in fact, exist on the Property, justifying its remediation efforts. According to the evidence presented by the
City in support of its motion, the stability of the partially-excavated hillside
on the Property was an issue as early as July 2006, when the Property was first
declared to be a public nuisance. The
then-owner of the Property, as well as a subsequent purchaser, apparently
concurred with this assessment as they both executed the Compliance Plan in
October 2008, agreeing to install an approved shoring system on the
hillside. By March 2010, however,
nothing had been done to fix the problem, the existing temporary shoring and
winterization was found to be ineffective, and the stability of the hillside
had deteriorated due to a recent winter storm.
The City’s geotechnical engineers —who had been tracking the worsening
conditions on the Property for some time—informed the City that the hillside would
continue to deteriorate if not protected before the onset of winter, likely
leading to a larger failure of the slope.
Based on this expert opinion, the City concluded in May 2010 that
conditions at the site were endangering upslope properties and therefore
constituted an Imminent Hazard requiring immediate remediation.
In
May 2010, the Oakland Municipal Code (OMC) defined geotechnical instability as
“[s]ubsidence or lateral displacement of real property which is a hazard to
buildings, structures, or portions thereof, to adjacent properties, to the
public right-of-way, to a public easement, or to publicly maintained
infrastructure.â€
title="">[4] (2008 OMC, § 15.08.340, subd. (P)
[identical to current version].) An
Imminent Hazard was defined to include “immediately dangerous conditions†due
to geotechnical instability that constituted “a clear and certain endangerment
to property, or a manifestly unhealthy or unsafe environment for the public . .
. .†(Id., § 15.08.380, subd. (C)(1) [identical to current
version].) The existence of an Imminent
Hazard authorized City officials to proceed with the “immediate abatement†of
the dangerous condition. (
In our view, the situation described by the City in its motion falls
squarely within the definition of Imminent Hazard contained in the City’s abatement
ordinance.
Indeed,
GCP did not dispute the existence of geotechnical instability on the Property
as identified by the City. Rather, in
its opposition to the City’s motion it argued only that the instability had not
risen to the level of an emergency for purposes of the abatement statute. The basis for GCP’s assertion was a single
statement by its geotechnical expert indicating that, in his opinion, “[t]here
was no emergency or imminent hazard at the site any time from 2006 to the time
the City of Oakland began its work at the site in September 2010.†Such a conclusory assertion, however, with no
specific facts to support it, is wholly inadequate to suggest the existence of
a material fact for purposes of blocking an otherwise valid motion for summary
adjudication. (Code Civ. Proc., § 437c,
subd. (p)(2); Lyons, supra, 40
Cal.App.4th at p. 1014; see also
Inc. (2003) 114 Cal.App.4th 1108, 1117 [“when an expert’s opinion is purely
conclusory because unaccompanied by a reasoned explanation connecting the
factual predicates to the ultimate conclusion, that opinion has no evidentiary
valueâ€].) We therefore conclude that no
triable issue of material fact was raised with respect to the existence of a
statutory violation on the Property.
(Compare Rose, supra, 190
Cal.App.3d at pp. 1630-1631, 1635 [finding an issue of material fact as to the
existence of an emergency justifying demolition of a building in the wake of an
earthquake where plaintiff’s contractor, plaintiff’s architect and the state
Office of Emergency Planning all concluded that the building was not a hazard;
the building was fenced off; the city waited 57 days to effect the demolition;
and the City appears not to have provided any evidence of hazard specific to
the building in question].)
D. Constitutionality of the City’s Abatement Process
With
respect to the constitutionality of the City’s abatement ordinance, it is well
established that a municipality may exercise its police power to protect the public
health and safety through the abatement of nuisances. (Fallen
Leaf, supra, 46 Cal.App.3d at p. 825; see also Thain v. Palo Alto (1962) 207 Cal.App.2d 173, 187 (
Thus, “[a] city council may, by ordinance, declare what constitutes a
nuisance (Gov. Code, § 38771),
and may provide for summary abatement of the nuisance at the expense of the
person who created it. (
v. City of Dana Point (1999) 72 Cal.App.4th 241, 244.) Indeed, GPC does not argue here that the City’s
abatement ordinance is unconstitutional as drafted or that it is an improper
expression of the City’s police power.
Rather, it maintains that the City’s abatement process as applied to GCP
violated due process, a contention with which we deal at length below.
1. Compliance
with the Oakland Municipal Code (OMC)
GCP argues strenuously that the
City did not follow the terms of its own abatement ordinance and failed to
notify GCP of the abatement proceedings with respect to the Property as
required by the OMC. Several cases have
considered the failure of a governmental entity to follow its own stated
process as one factor to consider when determining whether the requirements of
due process have been satisfied in the abatement context. (See D
& M Financial Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165,
180-182 (D & M Financial);
52 Cal.App.3d 317, 320 (Friedman).) Our review of the record, however, discloses
that the City did substantially comply with the requirements of its abatement
ordinance throughout its abatement proceedings with respect to the
Property. Thus, GCP’s argument is
unavailing.
title="">[5]
The
City first declared the property to be a public nuisance in July 2006. At that time, the OMC required that any
related “Declaration of Public Nuisance—Substandard†(Declaration) issued by
the City be directed to the record owner of the property and contain: (1)
information sufficient to identify the property at issue; (2) a statement that
the City has found the site to be substandard with a “brief and conciseâ€
explanation; (3) a statement of the action required from the property owner;
(4) a statement that, if the required work is not done, the City may proceed to
cause the work to be done and “charge the costs thereof against the property
and the record ownerâ€; (5) a statement advising that any person with record
title in the property can request a hearing, along with the timeframes and
procedures for making such a request; and (6) a statement that failure to request
a hearing in a timely manner (within 14 days in this case) “will constitute a
waiver of all right to an administrative
hearing and determination of the matter.â€
(2002 OMC, § 15.08.350 [substantially similar to current version].)
In
the present case, the City’s letter of July 13, 2006, to the then-record owner
of the Property fully complied with these requirements. The OMC further required that any such
Declaration be served on the property owner by personal delivery, certified
mail and/or certain methods of constructive public notification. (Id.,
§§ 15.08.110, subd. (B), 15.08.350, subd. (C) [substantially similar to
current version].) Again, the City’s
July 13 letter fulfilled this obligation, indicating that it was mailed by
certified mail. Finally, while the OMC
also required that a copy of the Declaration be mailed to holders of any
mortgage, deed of trust, lease, or other legal interest of record “known to the
Building Official or disclosed from official public records†(
§ 15.08.350, subd. (C) [substantially similar to current version]), GCP’s deed
of trust was not recorded against the Property until October 2008, and thus no
notice to GCP was required at the time the public nuisance was initially
declared over two years earlier.
Pursuant to the City’s abatement ordinance, if
a property owner has not complied with the abatement requirements set forth in
a Declaration and the time for appeal has expired, the Building Official must
record a “certificate†with the Alameda County Clerk-Recorder. (2008 OMC, § 15.08.360 [identical to current
version]; see also 2002 OMC, § 15.08.360 [substantially similar].) This certificate need not meet the
requirements of a full-blown Declaration, but must instead only describe the
property and indicate that a public nuisance exists and that the record owner
of the property has been notified. (
Here, the documents recorded by the City in April 2010 fulfill these
requirements. While it is true that, by
April 2010, GCP’s deed of trust had been recorded against the Property, there
is no requirement in section 15.08.360 that notice of the recording of such a
certificate be provided to any party. (
Thus, once again, the City was in compliance with its code
provisions.
Finally,
on May 11, 2010, the City declared the Property to be an Imminent Hazard
pursuant to subdivision (C)(1) of OMC section 15.08.380. As discussed above, the existence of an
immediately dangerous condition based on geotechnical instability authorized
the City to declare the existence of an Imminent Hazard and proceed with the
immediate abatement of the problem.
(2008 OMC, § 15.08.380, subd. (C)(1) [identical to current
version].) Under such circumstances, no
previous declaration that the property at issue was substandard or a public
nuisance is required. (
Further, recognizing the time-sensitive nature of such abatement
proceedings, the statute provided for a more streamlined notice and hearing
process than that required for the general declaration of a public nuisance,
stating: “Whenever the Building Official will cause . . . the immediate
abatement by the City or its contractors of all dangerous and perilous
conditions or defects or both, reasonable measures shall be taken to notify the
record owner of the property of the pending abatement actions, including, but
not limited to, visual communication by posting of the premises and oral
communication by telephone or in person and written communication by personal
delivery or telegraph or facsimile, unless circumstances and time do not
otherwise warrant and permit.†(2008
OMC, § 15.08.380, subd. (C)(2).)
In the present case, the City’s May
11, 2010, letter to the then-owner of the Property satisfied this notice
requirement. At that point, GCP was the
holder of a deed of trust with respect to the Property, but was not the record
owner. Thus, no notice to GCP was
required. Similarly, subdivision (C)(3)
of OMC section 15.08.380, which provided for an expedited hearing process with
respect to the declaration of imminent hazard, was only available to the
then-record owner of the Property, not to holders of deeds of trust such as
GCP. Here, the City notified the record
owner of the Property regarding its appeal rights in the May 2010 letter, and
no appeal was filed. At that point, the
City had complied with all relevant provisions of the OMC and was authorized by
statute to effect the immediate abatement of the Property.
GCP’s argument in this case, in
effect, amounts to a claim that the City must restart the notice and hearing
process under its abatement statute for every succeeding owner of a substandard
property. The statute, however, contains
no such obligation, and we decline to interpret it to require multiple
notifications. In reaching this
conclusion, we find Hawthorne Savings
& Loan Association v. City of Signal Hill (1993) 19 Cal.App.4th 148 (
the city had noticed a previous owner of that owner’s right to repair or
demolish a substandard building as required by section 17980 of the Health and
Safety Code, but had not similarly noticed Hawthorne, who had acquired the
property through foreclosure during the pendency of the abatement process. (Hawthorne,
supra, 19 Cal.App.4th at pp. 153, 161-162.)
The city argued that being required to give notice to each succeeding
purchaser of a right to repair or demolish would frustrate the city’s code
enforcement program “because it would subject enforcement to indefinite delay
where . . . the property is continuously transferred from one owner to
another.†(Id. at pp. 161-162.) The
appellate court agreed, stating: “We see no reason why, under the statute or
the dictates of due process, a new time period has to be extended each time the
property changes ownership.†(
recorded notice of the commencement of abatement proceedings, the appellate
court concluded that due process was satisfied so long as succeeding owners
were put on notice that an option to repair or demolish had been offered and
told the timeframe within which that option had to be exercised. (Ibid.)
not required by the terms of its abatement ordinance to notify GCP of the existence
of the 2006 Declaration when GCP became the holder of a deed of trust with
respect to the Property in 2008. Nor was
the City required by the OMC to notify GCP of its May 2010 decision to declare
the Property an Imminent Hazard once GCP became record owner of the Property in
June 2010.
2. General
Notions of Due Process
Our
conclusion that the City complied with the relevant provisions of its abatement
ordinance throughout its proceedings with respect to the Property does not,
however, end our inquiry. Rather, even
though the City acted pursuant to both State law and local ordinance providing
for the summary abatement of nuisances, all such enactments are subject to
constitutional requirements of due process.
(People ex rel. Camil v. Buena
Vista Cinema (1976) 57 Cal.App.3d 497, 502 [discussing additional due
process requirements necessary prior to the abatement of allegedly obscene
films]; Leppo v. City of Petaluma (1971)
As the Second District stated in Friedman: “Under its police power to protect public
health and safety a city may destroy private property without liability to the
property owner, but when it does this it must afford the owner due process of
law.†(Friedman, supra, 52 Cal.App.3d at p. 321.) Absent an emergency, due process in the
abatement context generally requires notice and an opportunity to be
heard. (Ibid.; see also Thain, supra,
207 Cal.App.2d at p. 189.)
Moreover, where, as here, property has changed hands during abatement
proceedings, due process may require some form of notice and/or opportunity to
be heard for the new owner over and above that required by the express terms of
the abatement statute. (Friedman, supra,
52 Cal.App.3d at p. 322 [reliance on tax rolls for notice purposes as permitted
by local ordinance does not satisfy due process for subsequent owner; use of
16-month old title search also inadequate; “city cannot reasonably rely on
former property owners to give notice of prospective demolition to present
ownersâ€].)
We
believe, however, that the requirements of due process were satisfied under the
facts of this case. First, once GCP
became the record owner of the Property on June 9, 2010, it had constructive
notice of the existence of the abatement activities on the Property based on
the City’s April 29, 2010, recordation of its abatement certificate. (Civil
Code, §§ 1213 [“conveyance†of real property “acknowledged or proved and
certified and recorded as prescribed by law from the time it is filed with the
recorder for record is constructive notice of the contents thereof to
subsequent purchasersâ€], 1215 [defining “ ‘conveyance’ †to include
written instruments encumbering an interest in real property or affecting title
to real property]; Gov. Code, §§ 27279, subd. (a) [definition of
“ ‘[i]nstrument’ â€], 38773 [authorizing local ordinances for the
summary abatement of nuisances], 38773.5, subd. (e) [authorizing recordation of
abatement notices]; 2008 OMC, § 15.08.360 [local requirements for
recordation of abatement certificate].)
This certificate told GCP as new owner that—as recently as six weeks
prior to its purchase—there was a “nuisance or substandard or hazardous or
injurious condition†on the Property; that the owners had not corrected the
problem; that the City had commenced abatement proceedings; and that the City
had a “lawful claim of an accumulating dollar amount†against the Property to
reimburse it for its abatement costs.
Clearly, GCP was on notice that a prompt investigation of conditions on
the Property was warranted. (Compare
Cal.App.2d 372, 376-377 [notice of completion of demolition recorded two months
prior to purchase at a trustee’s sale adequate notice of special assessment for
the costs of such demolition].)
Further,
“[a] party to a real estate conveyance is not entitled to ignore any
information pertinent to title that comes to him or her, even from outside the
recorded chain of title, to the extent such information puts him or her on
reasonable inquiry notice of information that may bring into question the state
of title.†(In re Marriage of Cloney (2001) 91 Cal.App.4th 429, 441-442; see
also Civil Code section 19 [“Every person who has actual notice of
circumstances sufficient to put a prudent man upon inquiry as to a particular
fact, has constructive notice of the fact itself in all cases in which, by
prosecuting such inquiry, he might have learned such factâ€].) Here, as early as October 2008, when GCP
loaned money to the then-owner of the Property and recorded its deed of trust,
it had knowledge that the City had some kind of performance issue with respect
to the Property. Specifically, GCP
provided the money for a $250,000 performance bond and these funds were to be
returned directly to GCP “ ‘once the terms of the Compliance Plan have
been satisfied.’ †Since the money
was never returned to GCP and GCP subsequently received title to the Property
from a trustees’ deed of sale, it is reasonable to assume that GCP was aware
that the prior owner had never performed as required by the City and that
issues remained with respect to the Property.
(Compare Whiting v. Pasadena,
supra, 255 Cal.App.2d at pp. 376-377 [where property on which house was
demolished was foreclosed on default, notice of demolition was recorded, and
the city was the only potential demolisher other than the defaulting owner,
prospective buyer “should have examined the city’s assessment rolls†to protect
his interests].)
Finally,
at its meeting with City officials on August 25, 2010, GCP received actual
notice of the City’s pending abatement plans with respect to the Property. At that meeting, the City agreed to allow GCP
an opportunity to assess the situation and submit its own proposal, but
indicated that work would need to begin “in early September to assure that the
excavated site would be substantially restored in advance of the winter
inclement weather season.†As of
September 8, 2010, the City had not received a proposal or any permit
applications from GCP. It therefore
notified GCP that it intended to move forward with the planned abatement work
on September 13. While the timeframe
allowed by the City for GCP’s response was short, we do not find it
unreasonable under the circumstances and given the nature of the Imminent
Hazard existing on the Property.
name="_ftnref8" title="">[8] Moreover, GCP never requested administrative
review of the City’s decision to proceed.
It did, however, request judicial review when it filed its application
for a temporary restraining order on September 27, 2010. The application—which alleged many of the
same issues raised in this appeal—was denied on the same day after GCP received
a hearing in which it was able to air its concerns with respect to the City’s
abatement actions. Based on all of these
circumstances, we conclude that the notice and opportunity to be heard afforded
GCP in this case was sufficient for purposes of due process.
GCP’s
reliance on Friedman and
analysis. In Friedman, a subsequent purchaser had no notice of the
demolition of a building on his property.
(Friedman, supra, 52
Cal.App.3d at pp. 320-321.) Also, the
court found that the provisions of the local abatement ordinance, themselves,
violated due process by allowing notice to the owner listed on the tax rolls,
which are “not an accurate and timely source of information.†(Id.
at p. 322.) Additionally, the city
failed to follow its own customary inter-departmental procedures. (Id.
at p. 320.) Finally, and most
importantly, the court opined that recordation of a notice to demolish would
have taken care of the due process issue with respect to new owners: “A new owner would then have notice of the
city's projected action and could take appropriate steps to avoid loss. Had a proper notice been recorded, Friedman
might never have purchased the property or might have acted promptly to repair
the building and forestall the need for its demolition.†(Id. at
p. 322.) Similarly, in
its own notice statutes and policies with respect to the demolition of a
substandard building such that the holder of a deed of trust on the property
received no notice until the day before the scheduled demolition. (D
& M Financial, supra, 136 Cal.App.4th at pp. 172-173, 181.) In addition, the court found the recorded
notice in the case to be defective because it failed to indicate that
demolition was a possibility. (
Financial dealt with a situation involving an Imminent Hazard. Here, in contrast, the City followed the
provisions of its abatement ordinance, which was not constitutionally infirm,
and GCP had actual and constructive notice of the proposed abatement
proceedings with respect to the Property and of the need to proceed quickly
with the proposed remediation. There was
no violation of due process.
NONSUIT ON ACTION FOR TRESPASS
GCP
also appeals from the trial court’s grant of a nonsuit in favor of the City
with respect to GCP’s cause of action for trespass. As discussed above, the trial court
determined in connection with the summary adjudication of GCP’s inverse
condemnation claim that the City’s entry onto the Property was a valid exercise
of its police power. Since the City’s
actions were authorized by law, the trial court concluded that the City was
also immune from liability for trespass.
It therefore granted the City’s motion for nonsuit at the conclusion of
GCP’s opening statement with respect to the trespass claim.
“A
defendant is entitled to nonsuit after the plaintiff's opening statement only
if the trial court determines that, as a matter of law, the evidence to be
presented is insufficient to permit a jury to find in the plaintiff’s
favor.†(Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th
1289, 1296.) “We independently review
the ruling on a motion for nonsuit, guided by the same rules that govern the
trial court.†(Ibid.) Thus, we will not
sustain the judgment “ ‘unless interpreting the evidence most favorably to
plaintiff’s case and most strongly against the defendant and resolving all
presumptions, inferences and doubts in favor of the plaintiff a judgment for
the defendant is required as a matter of law.’ †(Carson
v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, quoting
587, 588.)
We
agree with the trial court’s conclusion in this case that the City was entitled
to a nonsuit on GCP’s claim of trespass.
Trespass is the unlawful entry onto property in another’s possession
without consent. ( Rest.2d Torts, §§
158, 167; see also Martin Marietta Corp.
v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) Since, to be actionable, any such entry must
be unlawful, it stands to reason that “[a] public employee is not liable for an
injury arising out of his entry upon any property where such entry is expressly
or impliedly authorized by law.†(Gov.
Code, § 821.8.) Further, independent
contractors are treated as if they are public employees for purposes of this
immunity provision. (
the Government Code states: “Except as otherwise provided by statute, a public
entity is not liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from
liability.†Thus, the City is immune
from liability for trespass in this case if its entrance onto the Property
(through its employees and independent contractors) was “expressly or impliedly
authorized by law.†As the trial court
concluded—and as we have previously affirmed—the City’s actions in this case
constituted a valid exercise of its police power and were therefore authorized
by law. Consequently, we find no error
in the trial court’s judgment of nonsuit against GCP with respect to its trespass
claim.
CROSS-COMPLAINT FOR DAMAGES
As
a final matter, GCP urges reversal of the trial court’s allowance of damages to
the City, arguing that the award of $310,315.18 was not supported by “anyâ€
evidence and was improper because the City failed to follow the procedural
requirements of its nuisance abatement ordinance. We have previously concluded that the City
did, in fact, follow the procedural requirements of its abatement ordinance,
that its abatement of the Property was appropriate, and that the City did not
violate GCP’s due process rights.
name="_ftnref9" title="">[9] We therefore turn to GCP’s contention that
the trial court’s damages ruling was not supported by the evidence.
A
trial court’s resolution of disputed factual questions is reviewable for
substantial evidence. (
Coastal Com. (2011) 196 Cal.App.4th 1577, 1584.) When findings of fact are challenged on
appeal for lack of such evidence, our power begins and ends with a
determination of whether there is any substantial evidence, contradicted or
uncontradicted, to support the trial court’s findings. (Thompson v. Tracor Flight Systems, Inc.
(2001) 86 Cal.App.4th 1156, 1166.) “We
must therefore view the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference and resolving all
conflicts in its favor . . . .†(Ibid., quoting Jessup Farms v.
Baldwin (1983) 33 Cal.3d 639, 660.)
In
the present case, the City sought damages pursuant to its local abatement
ordinance, which provides in relevant part: “The fees and costs incurred and
the penalties assessed and the interest accrued in . . . repairing, cleaning,
remediating, removing, or demolishing a building, structure, or real property,
including costs incurred . . . in ascertaining violations or
affecting abatement thereof and in collecting such fees, costs, penalties, and
accruing interest shall be charged against the property and owners.†(2008 OMC, § 15.08.130, subd. (A) [identical
to current version].) The statute goes
on to state that the City’s Master Fee Schedule shall be used as a basis for
establishing fees, costs, penalties and interest in such cases. (Ibid.) Finally, these charges may be recovered by
the City through “all appropriate legal means,†including a civil court action
brought by the City. (
To
prove its damages claim for $310,315.18, the City presented evidence in the
form of a summary invoice showing all funds received and charges incurred by
the City with respect to its abatement activities on the Property. The summary invoice included credits for use
of bond proceeds, amounts payable to contractors, costs for project-related
City staff time, and applicable fees. In
addition, Diana Rex—the City employee responsible for the preparation of this
summary invoice—testified regarding how the invoice was compiled, how charges
for City staff time were calculated, and how fees were determined in accordance
with the City’s Master Fee Schedule. At
trial, GCP conceded that $203,492.94 claimed by the City for payments to its
independent contractors was “established by competent evidence.†It’s quarrel was with the costs charged for
City staff time and with the fees for general overhead included in the invoice
pursuant to the City’s Master Fee Schedule.
We believe that substantial evidence substantiates the charges allowed
by the trial court for City staff time.
Moreover, the City’s abatement statute expressly allows for the recovery
of fees as set forth in the City’s Master Fee Schedule. Absent specific evidence of its invalidity,
we will assume that the City’s Master Fee Schedule was properly adopted and
adequately justifies the imposition of the administrative fees assessed in this
case. We therefore conclude that the
trial court’s damages award was supported by substantial evidence.
DISPOSITION
The
judgment is affirmed. Respondent is
entitled to its costs on appeal.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
name="_ftn1" title="">[1]
Other than in connection with our consideration of the City’s cross-complaint
for damages, we adopt the facts set forth in this opinion from the supporting
papers filed by both parties in connection with the City’s motion for summary
adjudication of GCP’s inverse condemnation claim. Although GCP interposed numerous blanket
objections with respect to the majority of the City’s material facts, the trial
court overruled all of these objections, and we see no abuse of discretion in
that decision. (See People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77
Cal.App.4th 619, 639-640.)
Although the record does not reflect that judgment was ever entered with
respect to appellant’s inverse
condemnation claim, we note that, on appeal from a superior court judgment,
“the reviewing court may review the verdict or decision and
or decision which involves the merits or necessarily affects the judgment or
order appealed from or which substantially affects the rights of a party . . . .†(Code of Civ. Proc., § 906 [italics added];
see also Jennings v. Marralle (1994)
8 Cal.4th 121, 128 [“an order . . . granting summary adjudication of certain claims
. . . is generally reviewable on appeal from the final judgment in the
actionâ€].) Here, the trial court’s
summary adjudication of GCP’s inverse condemnation claim clearly substantially
affected both the court’s judgment on GCP’s trespass claim as well as its
judgment on the City’s cross-complaint for damages. We therefore review the merits of all three
decisions.
