Rost v. City of Whittier







Filed 12/19/11 Rost v. City of Whittier CA2/7




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOSEPH A. ROST, as Trustee, etc., Appellant, v. CITY OF WHITTIER, Respondent.

B229230 (Los Angeles County Super. Ct. No. VS020033)

APPEAL from an order of the Superior Court of Los Angeles County. Raul A. Sahagun and Yvonne T. Sanchez, Judges. Affirmed.

Anthony A. Sears for Appellant.

Jones & Mayer, Krista MacNevin Jee, Dean J. Pucci and Robert Khuu for Respondent.

Mark S. Adams, as Amicus Curiae, in support of respondent City of Whittier.
______________________

INTRODUCTION
This is an appeal from the trial court’s denial of a defendant’s motion to vacate orders relating to a Health and Safety Code receivership. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On February 4, 2010, the City of Whittier filed an ex parte emergency petition for an order to abate a substandard building and for appointment of receiver. According to the petition, the property owned by the Joseph A. Rost Trust had been damaged by fire in 2004 and had not been rehabilitated or brought into compliance with the Whittier Municipal Code since that time. Instead, Code violations had increased with the passage of time. The property was uninhabitable and constituted a fire hazard. The City had received numerous complaints from neighbors, and the petition recounted the substandard condition of the property dating back to inspections in 2005 and since that time.
According to the City’s petition, a notice of violation was given to Mr. Rost on May 16, 2006. Rost was requested to attend an office conference on June 19, 2007, but did not appear. The City remained in contact with Rost since that time but had been unsuccessful in seeking his cooperation in bringing the property into compliance. As a result, on January 19, 2010, pursuant to Health and Safety Code section 17980.6, the City posted the property with a notice to abate (with photographs attached as exhibits), allowing Rost until January 22, 2010, to fix the violations at the property.^[1]
On February 1, 2010, the petition stated, Code Enforcement Officer Gene Miller posted the property with a notice of hearing on ex parte petition (also attached as an exhibit). The office attempted service on Rost at his Hawthorne residence but no one was there, and notice was left on the door. In addition, the petition recounted, the Code Enforcement Office called Rost and left a message on that same date at 12:30 p.m., and a further message was left for Rost with his nephew Glenn Roberts, an attorney, confirming the hearing. According to the City’s petition, the office had explained the receivership process to Roberts the week before and answered all questions he had on behalf of his great uncle, and Roberts acknowledged that his uncle knew about the hearing.
Rost attended the February 4 hearing, accompanied by his nephew (Michael Edward Wood), and acknowledged he (Rost) was trustee of the Joseph A. Rost Trust. When the court inquired as to the status of the case, counsel for the City indicated, “It’s my understanding, Your Honor, that they’re going to—Joseph Rost wants to consent to the receivership.” Asked if he agreed, Rost said, “No, no.” Then Wood said, “Yes, yes,” and Rost stated: “We agree. We agree with the agreement. . . .” The court signed the proposed order appointing Mark Adams as receiver, ordering Adams (who was present) to post a $10,000 bond. The matter was then continued to February 26 for further status hearing.
On February 26, the receiver filed his first report (bearing proof of service on Rost at the property address, 10905 Valley Home Avenue in Whittier), indicating he had inspected the property with Rost, members of his extended family and a general contractor on February 4 and another date, and Rost and his family had been “very cooperative.” Adams indicated Rost, “although elderly, is alert,” and the family was “particularly upset that over the years they’ve had severe challenges in getting the property attached to either the La Habra or the Whittier sewer systems. [Adams said he had] assured them that such a connection will be made before the end of the receivership.” Adams requested the court’s approval for a $15,000 receivership certificate “to cover the initial cost of fencing and securing the property, initial cleanout of the property and the initial costs of the receivership.” Adams anticipated receipt of the contractor’s estimate by the end of the week, with a request for an increase in the receivership certificate to cover such costs at that time. The matter was continued to May 28 for further status hearing and then continued again to June 30.
A notice of pendency of action (lis pendens) was filed on April 7, with proof of service on Rost at the Whittier property address.
Rost’s nephew (Wood) attended the continued hearing in June, and Adams advised the trial court the parties had agreed to put the matter over to the following week if the court agreed in order to resolve the sewer issue with the City of La Habra and because Rost’s nephew wanted time to review the construction bid with the contractor.
According to the court’s minute order, Rost appeared on July 12, and at the “request of all parties,” the matter was continued to September 1.
On July 19, the receiver (Adams) filed his second report, requesting an increase in the amount of the receivership certificate (of an additional $178,000, including a “maximum reconstruction cost” of $146,976). According to Adams, “Working through the inter-jurisdictional issues among the Cities of Whittier and La Habra and the Counties of Los Angeles and Orange relating to the connection of the property’s sewer to the La Habra sewer line is by far one of the most time-consuming and complicated tasks I’ve worked on in 10 years of doing health and safety receivership work,” and he described the various “roadblocks.” Adams said he wanted to “highlight that Mr. Rost and his family have been very cooperative.” This second report bears a proof of service on Rost at the Hawthorne address (4836 W. 130^th Street), with “courtesy copies” to “Mitchell Woods [sic]” in Groveland, CA, and Joyce Roberts in San Diego. The trial court’s signed order in this regard was served on Rost and the same relatives on July 23.
On September 1, Rost filed a substitution of attorney dated August 26, indicating that Joseph A. Rost, trustee, had formerly represented himself, but was substituting Anthony A. Sears as counsel. Sears appeared at the status conference set for that date, and Adams indicated the parties would like to continue the matter to September 20 based on Sears’s appearance. Sears indicated he had tried to get a complete copy of the court file “about a month ago” but did not have everything.
At the status hearing on September 20, Sears indicated he was “specially appearing” for Rost and wanted to “object to jurisdiction.” He said he would be filing a “473(d) motion in the future” and requested a hearing on October 27. The matter was continued to that date.
On October 4, Rost (represented by Sears) filed a “motion to set aside void orders and vacate appointment of receiver” pursuant to Code of Civil Procedure section 473, subdivision (d), for lack of jurisdiction and other procedural deficiencies. According to the motion, “From the very start, the circumstances leading to this proceeding have been nothing short of a Kafkaesque nightmare for Mr. Rost.” However, “If there is one good thing that has come from the illegal receivership is that Mr. Adams was, after considerable effort, able to get [a] sewer connection established at Mr. Rost’s property.” The City filed opposition, and Rost filed a reply and evidentiary objections.
At the hearing on October 27, the trial court granted Rost’s request to terminate the receivership because the principal object of the receivership had been accomplished (the sewer connection had been established and rehabilitation was underway), and the receiver was ordered to file a final report. However, to the extent Rost sought to vacate the February 4, 2010 appointment of a receiver on grounds of improper service and notice, and other orders, his motion was denied. The court noted Rost had appeared at the February 4 hearing as reflected in the reporter’s transcript, and his consent to the receivership obviated the need for an additional hearing pursuant to Rule 3.1176 of the California Rules of Court. Rost had appeared at subsequent hearings, and further, the City had presented evidence it had complied with the notice requirements of Health and Safety Code section 17980 et seq.^[2]
On November 24, Rost filed a notice of appeal “from order denying motion to vacate judgment under Code of Civil Procedure section 473[, subdivision] (d).”^[3]

DISCUSSION
In this appeal, Rost repeats the arguments in his motion to vacate.^[4] More particularly, he says, the City’s failure to prepare, file and serve the summons form he says was mandated by the Judicial Council under Health and Safety Code section 17990 renders the entire proceeding void for want of jurisdiction.^[5] (All further undesignated statutory references are to the Health and Safety Code.)
Furthermore, Rost argues, the trial court was required to vacate the receivership for the City’s failure to comply with Rule 3.1176 of the California Rules of Court by presenting the trial court with a valid order to show cause. He says Code of Civil Procedure section 418.11 protects a party who shows up to court in response to an ex parte notice from being deemed to have made a general appearance. He says there is no way he could have known what he was purportedly agreeing to because he was never personally served with the petition; because he was acting as the trustee of his trust, he could not appear without an attorney; he did not attend all of the subsequent appearance dates; and when his attorney substituted in, he (Sears) contested jurisdiction after “learning of the gross violations of Mr. Rost’s due process rights.” “Thus, it cannot be said that Mr. Rost made any ‘general’ appearance in this case until October 4, 2010, when he filed the motion to vacate” so the order denying his motion must be reversed. In addition, Rost says the February 26, 2010 order was never served on him as required under Code of Civil Procedure section 465 so he had no notice a property he owned, free and clear, “was about to be encumbered by a deed of trust in favor of usurious lenders procured by the receiver.”^[6]
We disagree.
In City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, our Supreme Court explained in the context of challenges to orders pursuant to another Health and Safety Code receivership based on procedural deficiencies, “‘Traditionally, the question of whether a public official’s failure to comply with a statutory procedure should have the effect of invalidating a subsequent governmental action has been characterized as a question of whether the statute should be accorded “mandatory” or “directory” effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory.’ (People v. McGee (1977) 19 Cal.3d 948, 958 [140 Cal. Rptr. 657, 568 P.2d 382] (McGee).)
“The ‘mandatory-directory’ dichotomy is linguistically similar but analytically distinct from the ‘mandatory-permissive’ (or ‘obligatory-permissive’ dichotomy. (McGee, supra, 19 Cal.3d at pp. 958–959.) For purposes of the mandatory-permissive dichotomy, the word ‘mandatory’ refers to an obligatory procedure that a governmental entity is required to follow, as opposed to a permissive procedure that the entity may follow or not, as it chooses. (Ibid.) Here, the City appears to acknowledge that section 17980.6 is obligatory to the extent it calls for posting and/or mailing of a notice to repair and reference to the retaliation prohibition.
“In the mandatory-directory context, however, the ‘mandatory’ or ‘directory’ designation does not refer to whether a particular statutory requirement is obligatory or permissive, but instead denotes ‘“whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.”’ (McGee, supra, 19 Cal.3d at p. 959.) In California, it is not uncommon for obligatory statutory provisions to be accorded only directory effect. (Morris v. County of Marin (1977) 18 Cal.3d 901, 908–909, fn. 4 [136 Cal. Rptr. 251, 559 P.2d 606] (Morris).)
“Courts determine whether an obligatory statutory provision should be given mandatory or directory effect by ascertaining the legislative intent. (McGee, supra, 19 Cal.3d at p. 962, citing Morris, supra, 18 Cal.3d at pp. 909–910.) Of course, when the Legislature imposes particular statutory requirements, it generally does not intend for them to be disregarded. (Cox v. California Highway Patrol (1997) 51 Cal.App.4th 1580, 1587 [60 Cal. Rptr. 2d 159].) But where, as here, ‘“the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them.”’ (Ibid., quoting 3 Sutherland, Statutory Construction (5th ed. 1992) § 57.01, p. 2.)
“There is ‘“no simple, mechanical test”’ for making this determination. (McGee, supra, 19 Cal.3d at pp. 961–962.) Invariably, ‘courts look to the procedure’s purpose or function. If the procedure is essential to promote the statutory design, it is “mandatory” and noncompliance has an invalidating effect. If not, it is directory.’ (Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 673 [26 Cal. Rptr. 2d 703].) In this regard, ‘“‘the construction of particular provisions must be left for determination in such light as the obvious purpose they were intended to accomplish may afford. . . . No one should be at liberty to plant himself upon the nonfeasances or misfeasances of officers . . . which in no way concern himself, and make them the excuse for a failure on his part to perform his own duty. On the other hand, he ought always to be at liberty to insist that directions which the law has given to its officers for his benefit shall be observed.’”’ (McGee, supra, 19 Cal.3d at p. 962, first italics added; see, e.g., People v. Gonzales (1986) 188 Cal. App. 3d 586, 590 [233 Cal. Rptr. 204] [because negotiated plea statutes were designed to benefit the public and not criminal defendants, the defendant lacked standing to raise the issue of statutory noncompliance].)” (City of Santa Monica v. Gonzalez, supra, 43 Cal.4th at pp. 923-924.)
“[T]he legislative history of section 17980.6 as originally enacted discloses the Legislature’s substantial concern over the ‘inadequate enforcement of State Building Codes in regard to substandard housing’ and its intent to provide ‘new enforcement measures to rehabilitate and maintain existing housing that currently endangers the health and safety of residents or the public.’ (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 2799 (1987–1988 Reg. Sess.) as amended Aug. 29, 1988, p. 3; see Assem. Com. on Housing and Community Development, Analysis of Sen. Bill No. 2799 (1987–1988 Reg. Sess.) as amended June 27, 1988, p. 3.) Hence, the present version of section 17980.6 serves to enhance the ability of local enforcement agencies to require owners to remediate substandard housing conditions that pose an immediate health and safety threat and to improve the notice given to tenants regarding matters that may directly affect them.” (City of Santa Monica v. Gonzalez, supra, 43 Cal.4th at pp. 925-926.)
“[W]e remain mindful that sections 17980.6 and 17980.7 were enacted to provide meaningful enforcement mechanisms in situations where the substandard condition of a residential building is found to substantially endanger the health and safety of the occupants or the public.” (City of Santa Monica v. Gonzalez, supra, 43 Cal.4th at p. 926.) “Nonetheless, the statutory scheme clearly seeks to ensure that property owners are afforded due process before judicial appointment of a receiver. As section 17980.7 declares, ‘[n]othing in this section shall be construed to deprive an owner of a substandard building of all procedural due process rights guaranteed by the California Constitution and the United States Constitution, including, but not limited to, receipt of notice of the violation claimed and an adequate and reasonable period of time to comply with any orders which are issued by the enforcement agency or the court.’ (§ 17980.7, subd. (c)(14).) There is thus no question an owner may contest a section 17980.7 receivership if fair notice of a claimed substandard condition was lacking or if a reasonable opportunity to correct the cited condition was not afforded. (§ 17980.7, subd. (c)(1), (14).)” (Ibid.)
Here, according to the record, there is no dispute that the property was in substandard condition, that Rost was on notice of the circumstances and had a considerable period of time to remedy the outstanding violations, but in fact had failed to do so. Indeed, he acknowledged that it was only through the appointment of the receiver that he was able to obtain a sewer connection to his property because of its location on the border of two different cities in two different counties. Rather, his objection is to the absence of particular means to communicate the required notice. The applicable Health and Safety Code provisions impose no such requirement, the City substantially complied with sections 17980.6 and 17980.7, Rost participated in the proceedings, accepted the benefits of the receivership as it proceeded, and in any event, just as in City of Santa Monica v. Gonzalez, supra, 43 Cal.4th 905, “In view of all the circumstances, we cannot say the trial court appointed the receiver in derogation of [Rost’s] due process rights . . . .” (Id. at p. 928.)
Finally, Rost says the trial court was required to vacate the receivership because the receiver was ordered to post a $10,000 bond on February 4, 2010, but the receiver did not post his bond until October 7, 2010. Again, we disagree. Although the receiver did not file notice he had posted his bond until October 7, 2010, when Rost raised the issue, the record reflects the bonding company issued the required undertaking on March 2, 2010, within 30 days of the February 4, 2010 order. (Code Civ. Proc., § 567, subd. (b) [“Before entering upon the duties of a receiver: . . . (b) The receiver shall give an undertaking to the State of California, in such sum as the court or judge may direct . . . .”]; and see Title Ins. & Trust Co. v. California Dev. Co. (1915) 171 Cal. 227, 231.) As Rost has identified no prejudicial error, the trial court’s order denying his motion to vacate is affirmed.^[7]

DISPOSITION

The order is affirmed. The City is entitled to its costs of appeal.



WOODS, Acting P. J.

We concur:



ZELON, J. JACKSON, J.

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