P. v. Florescu

Filed 8/8/06 P. v. Florescu CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Grigorie Florescu appeals from a summary judgment ordering abatement of a public nuisance on his property. He also purports to appeal from denials of postjudgment motions for a temporary restraining order and relief under Code of Civil Procedure section 473.[1] We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In May 1990, Florescu obtained a permit from the City of Simi Valley (City) to construct a single family residence. Florescu failed to make sufficient progress during the 180 days allowed by the permit. He applied for and was granted a six-month extension. The building was not completed when the permit expired on January 29, 1992.

Between June 1992 and April 30, 1996, Florescu was granted two additional permits and extensions. The building remained substantially incomplete at the end of this period.

In July 1999, the City filed a criminal complaint against Florescu alleging four misdemeanor counts for violation of the City's municipal code. The complaint alleged a dangerous condition of property existed because Florescu failed to complete construction of the building before expiration of the third permit. Florescu pleaded no contest and was ordered to clean up the building site. Florescu failed to comply with the court's order and served six months in jail for contempt of court.

The City issued Florescu a fourth building permit in July 2000 followed by yet another six-month extension. Again, the permit lapsed before Florescu completed the building.

City building inspectors inspected the property in January 2003. They observed a foundation and basement with first floor framing and sheathing. The second floor was framed, but, due to exposure, the wood was deteriorating. Rusted steel reinforcing bars protruded from the unfinished concrete work. The inspectors also saw building materials scattered on the site, creating a fire hazard. The lot was overgrown with weeds and grass and contained abandoned motor vehicles, garbage and offal. The inspectors also found evidence of human habitation in the uncompleted basement, including fresh food, bedding, and a makeshift toilet.[2]

On January 14, 2003, the City issued a notice of noncompliance, notifying Florescu that his property violated the City's municipal code. On January 30, the City issued Florescu a notice and order and statement of building deficiencies, giving him 48 hours to correct the conditions on his property to comply with the City's building and housing codes. The notice also stated that the City would take action "through repair, demolition, rehabilitation or other means" if the violations were not cured in 30 days.

Florescu appealed the order and a hearing was held before the City's building and safety appeals board on May 28, 2003. The board denied Florescu's administrative appeal and issued written findings of fact. On June 5, Florescu was served with notice of the board's action and given 30 days to abate the dangerous conditions on his property.

On July 31, 2003, the City filed a complaint for abatement of dangerous condition and dangerous building. The complaint requested an order authorizing the City to enter Florescu's property and demolish the building and otherwise abate the nuisance. Florescu, through his attorney, filed an answer to the complaint containing a general denial and affirmative defenses. The answer did not deny that the property constituted a public nuisance or allege that Florescu would abate the nuisance.

On March 29, 2004, the City filed a motion for summary judgment asking the court to issue an order authorizing the City to demolish the building. The motion was personally served on the attorney who had filed the answer to the complaint. Florescu, acting in propria persona, substituted in as attorney of record.

Florescu and a newly retained attorney appeared on the date initially set for the summary judgment hearing. The court continued the hearing to give Florescu sufficient time to file responsive papers. The City served notice of the continuance on Florescu's new attorney. On July 15, 2004, Florescu again substituted in as attorney of record in place of his second attorney. The court sua sponte continued the hearing on the motion to September 8 and then to September 17, 2004. The City served Florescu with notices of the continuances by personal and mail service.

Florescu filed no opposition to the motion and did not appear at the September 17 hearing. The court granted the motion and ordered the City serve notice on Florescu.

On November 8, 2004, Florescu filed a motion for temporary restraining order and to set aside default pursuant to Code of Civil Procedure section 473. Florescu was represented by yet another attorney at the hearing on November 12. The court continued the hearing to December 10.

Florescu filed a notice of appeal on December 3, 2004. The notice of appeal states that Florescu appeals from "the judgment entered on or about September 28, 2004, and any orders entered thereafter against the said Defendant. Defendant will amend this notice to specify any subsequent orders to be included in this appeal."

On December 10, 2004, the court denied Florescu's motions for temporary restraining order and relief from judgment. The court rejected Florescu's claim of excusable mistake of fact based on his alleged personal unawareness or confusion that written opposition needed to be filed to the summary judgment motion.

Florescu did not file an appeal from denial of the motion or amend the first notice of appeal to include the order denying the motion.

In this appeal, Florescu argues that the summary judgment violates his rights to due process and constitutes a taking of property without just compensation because the judgment orders demolition without giving him a right to repair the building. He also argues the summary judgment should be reversed because he was not given a meaningful opportunity to respond to the motion.

DISCUSSION

The Court Has No Jurisdiction to Review the Postjudgment Orders

Florescu did not file a separate appeal from the order denying his postjudgment motions. He argues that his first appeal was sufficient to confer jurisdiction on the court. He is incorrect.

Appellate courts have no discretion to review an appealable judgment or order from which a timely appeal was not taken. (§ 906; In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219.) Both a temporary restraining order (TRO) and an order denying a section 473 motion are separately appealable orders. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 [TRO]; Garcia v. City etc. of San Francisco (1967) 250 Cal.App.2d 767, 770 [section 473 order].) The appealable judgment and postjudgment order must be expressly specified in either a single notice of appeal or multiple notices of appeal to be reviewable on appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) Simply including unspecified orders in a notice of appeal from the judgment, as Florescu did here, is insufficient to confer jurisdiction on the court. (See Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1075 [notice of appeal specifying appeal from "'the judgment . . . and certain other rulings and orders . . . entered in the above-referenced action'" inadequate to challenge later decision regarding amount of attorney fees].)

Moreover, the trial court acted in excess of its authority in adjudicating the postjudgment motions. The perfecting of an appeal stays proceedings in the trial court. (§ 916, subd. (a).) The trial court's power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending. (Gold v. Superior Court (1970) 3 Cal.3d 275, 280.) "Further trial court proceedings in contravention of the section 916 stay are in excess of the court's jurisdiction, including motions under section 473 . . . ." (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)

Accordingly, our review is limited to the order granting summary judgment.

Standard of Review

An order granting summary judgment is reviewed de novo on appeal. The appellate court looks "only to the allegations in the pleadings themselves in a summary judgment motion to determine whether any triable issue of fact remains in the case after a consideration of the declarations filed by the parties." (Cochran v. Linn (1984) 159 Cal.App.3d 245, 250.) "It is well settled that in reviewing a summary judgment, '". . . the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal."'" (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 661.)

An appellate court must presume that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) Appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct de novo review.

Does the Order of Abatement Violate Florescu's Constitutional Rights?

Florescu argues the order of abatement violates his right to due process and constitutes a taking of property without just compensation. We disagree.

A city may declare, by ordinance, 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 (id., § 38773). The City's nuisance abatement ordinance provides: "Buildings or structures or portions thereof which are regulated by this Code and which are determined by the Building Official to be unsafe or not provided with adequate egress or which constitute a fire hazard, or which are determined substandard under the provisions of the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the State Housing Law, or which are otherwise dangerous to human life, or which constitute a hazard to health, safety or public welfare by reason of inadequate maintenance, dilapidation, damage[,] obsolescence or abandonment as specified in this code or any other effective ordinance, shall be declared unsafe buildings and shall be declared a public nuisance and shall be ordered abated by repair, rehabilitation, removal or demolition pursuant to the provision of this Code." (Simi Valley Mun. Code, § 8‑2.07.)

Civil Code section 3491 provides three remedies for a public nuisance: (1) A criminal proceeding; (2) a civil action: or (3) abatement. The public entity may choose any of the three options. (Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244-245.) Summary abatement of a public nuisance may be ordered after an administrative hearing. (Flahive v. City of Dana Point, supra, 72 Cal.App.4th at p. 245, fn. 5; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 286-301.)

Due process requires that the city provide the property owner and other interested parties with notice, with the opportunity to be heard, and with the opportunity to correct or repair the defect before demolition. (See, e.g., Friedman v. City of Los Angeles (1975) 52 Cal.App.3d 317, 321 ["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"]; see also Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1072 [due process exists "to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner"].) When a city threatens demolition of structures, due process also requires the city to give a property owner the opportunity to correct defects or repair a structure constituting a nuisance before demolition. (Health & Saf. Code, § 17980, subd. (b); Hawthorne Savings & Loan Assn. v. City of Signal Hill (1993) 19 Cal.App.4th 148, 158-160; Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1358.)

The record reflects the City gave Florescu an administrative hearing and at least three opportunities to abate the nuisance on his property prior to filing the civil complaint. Florescu had actual notice of the City's intent to demolish the building if he did not repair it, and he had more than a reasonable time within which to challenge the City's findings or abate the nuisance. Here, more than minimum due process protections were provided. The trial court did not err in issuing the order.

Florescu's claim that the order of abatement constitutes a taking without due process of law also lacks merit. "When a property owner has been given ample notice and opportunity to correct or repair a structure constituting a nuisance, but has failed to do so, demolition of the structure by the government to abate the nuisance is a regulatory action within the police power, not a taking of property which requires compensation of the owner." (Duffy v. City of Long Beach, supra, 201 Cal.App.3d at p. 1358.) There is no taking because Florescu is still free to make any lawful use of his land and is merely prohibited from maintaining a nuisance upon it. (Id. at p. 1359.)

Did the Trial Court Err in Granting Summary Judgment

With No Response or Appearance by Florescu?

Florescu argues the trial court erred in granting summary judgment because he was not present at the hearing and was not given an opportunity to file a response to the motion. The argument is without merit.

The record shows that Florescu was given ample opportunity to file a response to the summary judgment motion. On March 29, 2004, the City personally served Florescu's attorney with the motion. Florescu and a new attorney appeared in court on June 10, the date initially set for hearing. The court continued the hearing until August 30. At that time, the court stated that it was continuing the hearing "so that the responsive papers could be filed." The City served timely notice of the continuance on Florescu's attorney.

On July 15, 2004, Florescu substituted himself as attorney of record. The court sua sponte continued the hearing on the motion to September 8 and then to September 17, 2004. The City served Florescu with notices of the continuances by personal and mail service. Although Florescu had almost six months' notice of the motion, he failed to file any response.

Florescu urges this court to reverse the trial court's judgment because his failure to timely file responsive pleadings and to appear were a result of his lawyer's indifference, the City's insouciance and the court's insensitivity. The record paints a very different picture. Two lawyers were hired and fired by him prior to or during the events leading up to the motion for summary judgment. The City gave him more than a decade to abate a patent nuisance and the court continued the summary judgment motion twice to enable him to file appropriate documents. These courtesies were not reciprocated. Rather, the trial court found that he deliberately misled it when stating that he tried to enter the courtroom when he was late to the hearing only to find the doors were locked. Though not entitled to special treatment because he represented himself, he did receive every opportunity to appear at the scheduled hearings and was specifically instructed what he needed to do and when he needed to do it. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1285.) It was for naught. The record portrays appellant as one who is utterly unresponsive to the rule of law.

Florescu attempts to shift blame to the city attorney. He argues the city attorney saw him outside the courtroom after the hearing and failed to inform him that summary judgment had been granted. Florescu cites no authority for his implied assertion that defense counsel had a duty to advise him of the court's ruling at that time. Defense counsel had no such obligation.

Florescu does not deny that the conditions on his property constitute a public nuisance.[3] The trial court did not err in determining that Florescu was given an adequate opportunity to repair the building and abate the nuisance. He did not do so. No triable issue of fact remained as to the City's authority to exercise its police power to demolish the structure and summary judgment was appropriate.

It is apparent from the record that Florescu's troubles are not a result of any wrongdoing by the City, but were the result of his own deliberate action and inaction. The order of abatement was predictable and appropriate.

The judgment is affirmed. Respondent shall recover costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

Nordman Cormany Hair & Compton LLP, Susan M. Seemiller, Meghan Clark for Defendant and Appellant.

David H. Hirsch, City Attorney, Mitchell E. Green, Assistant City Attorney; Engle & Bride, Benjamin J. Engle, Andrew H. Covner for Plaintiff and Respondent.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Real Estate Attorney.

[1] All statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] We attach a copy of a photograph of the property in lieu of another thousand words.

[3] Florescu is precluded from making such argument because he is bound by the prior unappealed administrative determinations of public nuisance which are res judicata. (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 644-649.)