City of Pasadena v. Reynolds

Filed 7/23/07 City of Pasadena v. Reynolds CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed.

Allen Matkins Leck Gamble Mallory & Natsis and Randal Ivor-Smith for Defendants and Appellants.

Michele Beal Bagneris, City Attorney (Pasadena), and Frank L. Rhemrev, Assistant City Attorney, for Plaintiff and Respondent.

Defendants Smooch Reynolds and Jack Reynolds (the Reynolds) remodeled their Pasadena home pursuant to a conditional use permit (CUP) and variance that reduced their side yard setback requirement by almost two feet. In violation of the CUP and variance, however, the Reynolds extended their structure onto the setback area. The City of Pasadena (the City) sued for injunctive relief. The trial court granted the City summary judgment and issued a mandatory injunction requiring the removal of the encroaching portion of the structure. The Reynolds appealed from the judgment, which we affirm.

BACKGROUND

The City issued a CUP allowing the Reynolds to construct a porte-cochere (described as a drive through car port) and second story bedroom above the porte-cochere. The City granted a variance that reduced the side yard setback requirement from 9 feet 1 inch to 7 feet 2 inches.

The porte-cochere was almost finished when the City discovered that the structure partially extended onto the 7-foot 2-inch setback area, in violation of the CUP and variance. After the City issued a stop work notice, the Reynolds applied for another variance to further reduce the setback area to conform to what was built. The hearing officer denied their request and the denial was affirmed by the board of zoning appeals (the board). The matter was then considered by the city council, which conducted a public hearing at which the Reynolds presented testimony. After the city council upheld the boards determination, the Reynolds, despite having exhausted their administrative remedies, did not seek judicial review under Code of Civil Procedure section 1094.5. According to their opening brief, the Reynolds were unable to acquire a lot line adjustment from their neighbor.

Pasadena Municipal Code (PMC) section 17.108.090 states that any structure built in violation of a zoning code, variance, or conditional use permit is an unlawful public nuisance that summarily may be abated.[1] In this case, the City determined the encroachment onto the setback area was both a violation of the variance and CUP, and a public nuisance under PMC section 17.108.090. Accordingly, the City demanded that the Reynolds remove the encroaching portion of the structure from the setback area. When the Reynolds failed to comply, the City filed the present action for injunctive relief.

The City moved for summary judgment, arguing that the Reynolds were collaterally estopped to deny that their encroachment onto the setback area constituted both a violation of the CUP and variance, and a public nuisance. The City contended that as a public nuisance, the encroaching portion of the structure was subject to summary abatement under PMC section 17.108.090 and various decisions such as City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100 (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 courts in such circumstances is limited to determining whether a statutory violation in fact exists, and whether the statute is constitutionally valid), and Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344 (upholding the citys revocation of permits that, based on an erroneous setback calculation, resulted in a home being constructed 14 feet closer to the street than was allowed by the building code).

The Reynolds opposed the motion, but did not dispute that they had failed to seek timely judicial review of the Citys denial of their request for a further variance. They argued in opposition to the motion that because triable issues of fact existed regarding their good faith mistake in building onto the setback area, they should not be made to spend over $150,000 to tear down and re-build the northern portion of their house based on a 17-inch encroachment caused by the alleged errors of others. The Reynolds faulted the City for issuing their permits without collecting the required condition monitoring set-up fee of $687 that would have triggered an inspection before the porte-cochere was almost completed. They claimed that the Citys alleged error was the direct cause of the porte-cochere being built before any condition monitoring inspections took place. They also faulted their contractor for pouring the grade beam footing in the wrong location and, instead of removing it, pouring another footing parallel to the first one, which explains why the extension into the setback area is approximately 17 inches.

The Reynolds disagreed with both the Citys position that the encroachment was a public nuisance and the Citys denial of a further variance. The Reynolds argued, but without any supporting declarations to this effect, that the neighbors had no objection to leaving the structure in place.

Finally, the Reynolds disputed the Citys collateral estoppel theory, arguing that the city councils decision to uphold the boards denial of a further variance was void and of no legal effect, because of the alleged expiration of a board members term. Allegedly, that board members second and final consecutive board term had expired on June 30, 2002. According to section 2.105.030(B) of the PMC, Members shall be appointed [to the board] for a term of 3 years, and shall serve no more than 2 consecutive terms. A term of less than 1 year shall not be considered a full term. Terms expire on June 30 of the applicable years. A member shall continue in office for the term for which he/she was appointed or until his/her successor is appointed. No member who has served 2 consecutive terms shall be eligible for reappointment to the commission prior to the passage of a 2-year interval.

In anticipation of the Citys response that PMC section 2.105.030(B) expressly allowed the relevant board member to continue in office pending the appointment of his successor, the Reynolds argued that a reasonable time limit not exceeding a few weeks must be read into the statute. Otherwise, they stated, the exception swallows the rule and renders the term limitation provisions completely meaningless.

Based on the Citys alleged failure to appoint the board members successor within a reasonable time, the Reynolds contended that the boards denial of their administrative appeal was invalid and, by extension, the city councils decision to uphold the boards determination was also void and unenforceable. The Reynolds argued that procedural due process requires that their appeal to the [board] must be resubmitted to a duly constituted board for valid consideration and decision.

The trial court rejected the Reynoldss arguments and granted the summary judgment motion for the following reasons:[2] There is no dispute of material fact. It is undisputed that defendants Application to Modify was denied by the Zoning Officer and the Board of [Z]oning Appeals. Plaintiffs failed to seek judicial review of the Citys decision in accordance with Government Code Section 65009. [Fact No. 9] [] Plaintiff City is entitled to a permanent injunction to prohibit and abate the structure herein. [] City to prepare the Order and Judgment thereon.

The trial court issued a permanent injunction requiring the Reynolds to: (1) comply with the 7-foot 2-inch side yard setback variance granted by the CUP; (2) remove the encroaching structure or portion thereof; (3) obtain the necessary permit within 60 days; and (4) complete the removal within 60 days thereafter. This appeal followed.

DISCUSSION

The Reynolds contend, as they did below, that summary judgment is improper because triable issues of material fact exist as to whether: (1) their violation of the setback variance resulted from a good faith mistake; (2) their violation created an actual public nuisance; and (3) the doctrine of collateral estoppel applies to the city councils denial of their request for a further variance, given the alleged expiration of a board members term.

The City argues that these are not material issues of fact because under PMC section 17.108.090, structures built in violation of a variance or conditional use permit are defined as public nuisances that summarily may be abated. The City also contends that the Reynoldss opening brief is fatally deficient because it contains no record citations. California Rules of Court, rule 8.204(a)(1)(C) requires that references to matters in the record must be supported with citations to the volume and page number of the record where the matter appears. When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)

We agree with both of the Citys contentions. The January 24, 2006 summary judgment order shows that the trial court granted the motion based on the collateral estoppel effect of the city councils denial of a further variance. Accordingly, in order for the Reynolds to prevail on appeal, they must show why the collateral estoppel ruling was erroneous. A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . . [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [the appellant must provide an adequate record demonstrating error in order to overcome the presumption on appeal that the order is correct].) Significantly, the Reynolds did not include the January 24, 2006 order in the appellate record or mention the collateral estoppel ruling in the opening brief. They offered no argument, citations to the record, or legal authority to challenge the trial courts determination of the collateral estoppel issue. We will not review the collateral estoppel ruling because we have no obligation to develop or discuss an argument not raised in the opening brief. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

Of the issues that were raised in the opening brief, the Reynolds referred only to four cases, three of which have no bearing on this case,[3] and provided no record references in conjunction with the points raised on appeal. An appellate court will not consider statements of error asserted in a brief which are not supported by the record. (People v. Walker (1967) 247 Cal.App.2d 554, 563; accord, Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

Even if we assume, for the sake of argument, that one of the board members terms had expired, the Reynolds have cited to nothing in the record that shows the administrative ruling is, on its face, void for lack of jurisdiction. It is only if a judgment or order shows on its face that jurisdiction was lacking to make the order, that the order is void and the defect may be raised at any time by any person. (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854.) Accordingly, the collateral attack on the administrative ruling must fail.

DISPOSITION

The judgment is affirmed. The City is awarded its costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

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Analysis and review provided by Chula Vista Property line Lawyers.

[1] Any building or structure set up, erected, built, moved or maintained, and any use of property contrary to the provisions of this title, including the failure to comply with or carry out any condition attached to the grant of any use permit, exception, variance, certificate of appropriateness, or other permit or entitlement granted pursuant to this title, shall be and the same is declared to be unlawful and a public nuisance, and may be summarily abated as such by this city. The city attorney or the city prosecutor, in addition or in lieu of prosecuting a criminal action hereunder, may commence an action or proceeding for the abatement, removal and enjoyment [sic] thereof, in the manner provided by law; and shall take other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate or remove such building, structure or use and restrain and enjoin any person from conducting, operating or maintaining such building, structure or use contrary to the provisions of this title. . . . (PMC, 17.108.090.)

[2] Although the Reynolds did not include the January 24, 2006 order in the appellants appendix, we have taken judicial notice of the order on our own motion. (Evid. Code, 452, subd. (d)(1).)

[3] The three cases in the opening brief regarding the standard of review are not on point because they were not summary judgment cases. Summary judgment is appropriate only where no material issue of fact exists or where the record establishes as a matter of law that none of the causes of action has merit. After examining the facts before the trial judge on a summary judgment motion, an appellate court independently determines their effect as a matter of law. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1664.) Contrary to the assertion in the opening brief, the substantial evidence rule has no application to this appeal.