Harrison v. City and County of San Francisco

Filed 2/28/07 Harrison v. City and County of San Francisco CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

The Department of Public Works (DPW) of the City and County of San Francisco (City) issued three notices of violation to appellant Broderick Harrison for illegally posting signs on City-owned utility poles. Prior to the conclusion of an administrative hearing on these infractions, Harrison filed a petition for writ of mandate, prohibition, and declaratory and injunctive relief in superior court. His petition alleged that the DPW procedures used to assess administrative penalties for certain littering and nuisance violations violated his constitutional rights. The superior court denied Harrisons petition, and he now appeals.

After completion of briefing in this court, the City and Harrison reached a settlement and notified us that all three notices of violation against Harrison had been dismissed. Thus, before we reach the merits of Harrisons contentions, we must determine whether this matter has been rendered moot. We conclude that it has, and accordingly dismiss the appeal.

Factual and Procedural Background

On March 5, 2004, a DPW environmental control officer was dispatched to Castro Street between Market and 18th Streets to investigate reports of the illegal posting of flyers along the block. When the officer arrived at the location, he observed Harrison and another man squeezing something out [of] a drink bottle to a brush, applying it to a Muni pole with a painting motion, and then pasting a flier to the pole. The officer walked up and down the block and found several other Muni poles and walls to which the same flier had been attached.

The officer then issued three notices of violation to Harrison. Each notice cited Harrison for violating sections 184.57, subdivision (b) and 184.60 of the San Francisco Public Works Code.^[1] The next day, DPW sent Harrison three first notice[s] containing the numbers of each citation, the date of the citations, the code provisions violated, and the amount of the fine for each violation. In accordance with San Francisco Police Code section 39-1, the notices also informed Harrison that he would either have to pay the fines by the due date listed on the notices or schedule a hearing within 15 days of the citation date. (See S.F. Police Code,  39-1(c); see also id.,  39-1(d) [procedures for requesting administrative hearing].)

Harrison thereafter requested a hearing, which DPW then set for May 12, 2004. The administrative hearing commenced on that day, but it was continued by mutual consent to July 28, because of the unavailability of the citing officer. The hearing was subsequently continued once again to November 17, 2004.

On November 12, 2004, five days before his continued hearing date, Harrison filed the action below seeking a writ of mandate and/or prohibition from the superior court. The hearing on the citations was then postponed once again until February 9, 2005. On December 9, 2004, Harrison filed a second amended petition for writ of mandate, writ of prohibition, and injunctive relief. The thrust of Harrisons petition was that San Francisco Police Code section 39-1 did not adequately specify the procedures to be followed in proceedings to assess administrative penalties and thus failed to provide him with due process of law. Harrisons petition therefore asked the superior court to declare unconstitutional the Citys ordinances governing the administrative enforcement of the signposting laws. He also asked the superior court to enjoin the City and DPW from seeking to prosecute any citation administratively and to limit the City to enforcement actions in superior court. Harrison further requested that all administrative proceedings and fines against him be stayed or vacated. Finally, he sought an award of attorney fees.

The superior court heard Harrisons petition on January 11, 2005. For reasons not apparent from the record, only the deputy city attorney appeared at the hearing; Harrisons counsel was not present. The superior court adopted its tentative ruling and denied the petition. On February 3, 2005, the law and motion judge signed a written order denying Harrisons petition. The order was filed the next day, and counsel for the City served notice of entry of the order on February 8, 2005. On February 25, 2005, Harrison filed a notice of appeal from the trial courts denial of his petition.

The parties completed briefing in this court on September 22, 2005. On November 29, 2005, counsel for the City filed a notice of settlement with this court. The notice explained that the City and Harrison had reached a settlement and that all three notices of violation issued to Harrison had been dismissed. In return, Harrison acknowledged that he had read Article 5.6 of the San Francisco Public Works Code, which is entitled Posting of Signs on City-Owned Lamp Posts or Utility Poles. He also stated his intention to comply with the law. Specifically, Harrison stated: I intend to comply with Article 5.6. Among other things, I intend to comply with the requirement, stated in Public Works Code Section 184.57(b), that I not paste or otherwise affix any sign or poster on any lamp post, pole, or other building or structure owned or controlled by the City, except as expressly allowed under Article 5.6, as well as with the requirement, stated in Public Works Code Section 184.60, that I not deface or damage any such lamp post, pole, or other building or structure owned or controlled by the City by attaching or affixing anything to it.

In the notice of settlement, counsel for the City suggested that the dismissal of the citations rendered Harrisons claims moot. Harrisons counsel then filed an opposition to the Citys notice of settlement, arguing that his facial constitutional challenges to the Citys administrative enforcement scheme were not moot. On December 22, 2005, we issued an order stating that we would treat the Citys notice of settlement as a motion to dismiss upon receipt of proof that the City had dismissed the notices of violation against Harrison. Our order further stated that we would treat Harrisons opposition to the notice of settlement as an opposition to the Citys motion and would permit the City to file a brief reply. On January 5, 2006, the City filed a declaration executed by a DPW employee stating that all three notices of violation had in fact been dismissed. In its reply, filed January 12, 2006, the City argued that Harrisons as-applied claims were moot but conceded that his facial challenges were not.

Discussion

We must determine whether the settlement reached between Harrison and the City moots Harrisons facial challenges to the Citys administrative penalty scheme.^[2] Because (1) all three notices of violation issued to Harrison have been dismissed and (2) Harrison has expressly agreed that he will comply with the Citys ordinances regarding the posting of signs on City-owned lamp posts or utility poles, we conclude that the settlement deprives Harrison of any beneficial interest in the issuance of the writ he seeks. Accordingly, we hold that this appeal must be dismissed as moot.

A. The Beneficial Interest Requirement.

A writ of mandate under Code of Civil Procedure section 1085 will issue only upon the verified petition of the party beneficially interested. (Code Civ. Proc.,  1086.) Section 1086 has been held to establish a standing requirement. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232.) A partys standing to sue goes to the existence of a cause of action. (Sacramento County Fire Protection Dist. v. Sacramento County Assessment Appeals Bd. (1999) 75 Cal.App.4th 327, 331.) Standing may be raised at any time, and we are obligated to consider whether a party has standing before we may proceed to the merits of a case. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361; McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 90.)

To demonstrate the requisite beneficial interest, a petitioner must show that he will obtain some benefit from issuance of the writ or suffer some detriment from its denial. (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at p. 1233.) The petitioners interest must be both direct and substantial. (Ibid.; see also Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707-708 [writ of mandate will be granted only to protect a   substantial right   and only when it is shown that petitioner will suffer substantial damage if it is denied].) The petitioners beneficial interest must also be specialthat is, the petitioner must have  some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.  (Associated Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at p. 362, quoting Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796.)

Furthermore, the petitioner must maintain the requisite beneficial interest during the entire course of the litigation or the case will become moot. (Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1008.)    The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).    (Ibid.) This is because [a] writ of mandate will not issue to enforce an abstract right, when the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of no practical benefit to the petitioner. (Clementine v. Board of Civ. Ser. Commrs. (1941) 47 Cal.App.2d 112, 114.) If the petitioner lacks standing, then the controversy is one which is outside the jurisdictional purview, [and] it cannot be litigated even if the party seeking relief is intensely interested and even if the dispute is fully ripened. (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 23, fn. 11.)

B. The Dismissal of the Three Notices of Violation Deprives Harrison of the Requisite Beneficial Interest and Moots This Appeal.

Applying these principles to the facts of this case, it becomes apparent that Harrison no longer possesses a cognizable beneficial interest in the issuance of the writ he seeks. All three of the citations initially issued to him have been dismissed, and the City has represented to this court that it is not pursuing, and will not pursue, any of the . . . [n]otices of [v]iolation; and will take no further action of any kind to enforce any of them against Mr. Harrison. There is thus no possibility of any legal action against Harrison arising out of the three notices of violation issued to him. The City will not subject Harrison to further administrative proceedings governed by what Harrison claims are the constitutionally defective provisions of San Francisco Police Code section 39-1, and the dismissal of the proceedings against him therefore deprives him of any beneficial interest. (Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 827-829 [dismissal of disciplinary proceedings against the petitioner left him without beneficial interest].) Because Harrison can show no specific injury that he has suffered or will suffer from the use of the challenged administrative procedures, he lacks standing to seek issuance of a writ of mandate. (See Schmier v. Supreme Court, supra, 78 Cal.App.4th at pp. 707-708 [writ will issue only if it is shown that some substantial damage will be suffered by the petitioner if writ is denied]; accord, County of San Luis Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 292-295 [property owner divested of interest in property had no interest in proceeding to compel county to issue certificates of compliance for property].)

Nor is there any evidence that Harrison might be compelled to suffer any such harm in the future. Harrison has agreed to comply with the Citys ordinances governing the posting of signs on City-owned lamp posts or utility poles. Although his settlement agreement with the City states that this acknowledgment is not intended to create a legally enforceable contract, it is an honest and good-faith statement of [Harrisons] intention. Harrison has thus assured us that his intention is to comply with the law, and there is therefore no basis for assuming that Harrison will be subjected to the allegedly defective administrative procedures at some unknown future date. Given these facts, any decision that we might reach on the merits of Harrisons claims would be purely hypothetical. (See County of San Luis Obispo v. Superior Court, supra, 90 Cal.App.4th at p. 293.)

C. The Public Interest Exception to the Mootness Doctrine Is Inapplicable to This Case.

Harrison argues that we should nevertheless entertain this appeal even if we find it moot because, he contends, it involves a question of [p]ublic [i]mportance. We disagree, for we see no persuasive reason for exercising our discretion to decide what is clearly a moot appeal.

There are three discretionary exceptions to the rules regarding mootness. (EnvironmentalCharterHigh School v. CentinelaValleyUnionHigh School Dist. (2004) 122 Cal.App.4th 139, 144 [listing exceptions].) Harrison invokes the exception for cases presenting  an issue of broad public interest that is likely to recur[.]  (Ibid., quoting Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) A number of factors militate against the application of this exception in this case. First, courts generally will not hear moot appeals that involve factual issues that require resolution on a case-by-case basis. (See Giles v. Horn (2002) 100 Cal.App.4th 206, 228.) In this case, Harrisons central claim is that DPWs hearing procedures deny him due process of law. But because Harrison filed his petition for writ of mandate before his hearing was completed, we cannot say as a matter of fact that he would have been denied due process.^[3] Rather than pronounce upon constitutional questions in a moot appeal, we think it wiser to await a case in which we have the benefit of a fully developed factual record. Second, the issues raised in this case do not resemble those that California courts have found to be questions of broad public interest. (Compare Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172 [election issues]; In re Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159 [expedited juvenile dependency proceedings].) We fail to discern any broad public interest in an immediate resolution of Harrisons claim that DPWs procedures violate due process. This issue should await decision in a later case upon a full factual record. Accordingly, we decline to exercise our discretion to hear this moot appeal.

D. Harrison Has Failed to Show That He Lacks an Adequate Remedy at Law.

A decision on the merits of Harrisons claims would be improper for an additional reason. A writ of mandate will be issued in all cases where there [is] not a plain, speedy, and adequate remedy, in the ordinary course of law. (Code Civ. Proc.,  1086.) Harrison asserts that the DPWs administrative procedures deny him minimal due process of law. But because Harrison filed his petition for writ of mandate before commencement of his hearing, there is nothing in the record to establish that the procedures would actually have been unfair. As a result, Harrison cannot establish [that] he lacks an adequate remedy at law with respect to this argument[.] (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 625 [in challenge to hospitals bylaws for failure to provide right of voir dire, the appellant could not establish lack of adequate remedy at law where he filed petition for writ of mandate prior to voir dire commencing; record contained no evidence that opportunity to conduct voir dire would in fact have been denied].) Thus, even if Harrison possessed a beneficial interest in issuance of a writ of mandate, he would not be entitled to the writ because he has failed to show that he lacks an adequate remedy at law.

Disposition

For the foregoing reasons, we conclude that Harrisons appeal is now moot. The appeal is therefore dismissed.^[4]

SIMONS, J.

We concur.

JONES, P. J.

GEMELLO, J.

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^[1] San Francisco Public Works Code section 184.57, subdivision (b) provides: Prohibited Acts. Except as expressly provided in this Article, no Person, except a duly authorized public officer or employee, or a contractor with the City, the State of California, or the United States Government acting to promote the purposes of that contract, shall erect, construct or maintain, paste, paint, print, nail, tack or otherwise fasten or affix any Sign, or cause or suffer the same to be done, on any Lamp Post, Utility Pole, traffic control sign or signal, curbstone, bench, hydrant, wall, span wire, sidewalk, bridge, tree, fence building or structure owned or controlled by the City.

Section 184.60 of the San Francisco Public Works Code provides: No person shall deface, mar, disfigure, or damage any traffic control sign or signal, curbstone, bench, hydrant, wall, span wire, sidewalk, bridge, fence, building or any other structure belonging to the City or any tree located in any public property or place, by painting, cutting, scratching or breaking the same, or attaching, posting, or in any way affixing anything thereto.

^[2] The Citys apparent concession that Harrisons facial claims are not moot is not dispositive. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128 [An agreement of the parties does not bind the court if it is contrary to law.]; DeCelle v. City of Alameda (1960) 186 Cal.App.2d 574, 579 [parties stipulation cannot bind the court on issue of law].)

^[3] For example, Harrison complains that the DPWs procedures denied him adequate discovery. Yet it appears that DPW voluntarily provided him with most of the documents that he requested. It is thus unclear as a factual matter that the allegedly deficient procedures actually impeded Harrisons discovery in any significant way.

^[4] Harrison mistakenly asserts that he has invoked this courts original jurisdiction by seeking a writ of prohibition under Code of Civil Procedure section 1102. This contention suffers from the same infirmity as the rest of his argument, for a writ of prohibition under section 1102 may issue only upon the verified petition of the person beneficially interested. (Code Civ. Proc.,  1103, subd. (a).) We note first that Harrison has filed no such verified petition in this court. Second, as we have explained, he lacks the requisite beneficial interest in the issuance of a writ. In any event, a writ of prohibition ordinarily will not issue to enjoin administrative proceedings that have yet to take place merely because a party alleges a potential denial of due process. (Agricultural Labor Relations Bd. v. Superior Court (1994) 29 Cal.App.4th 688, 695-696.)