Filed 9/5/18 Fitzsimmons v. County of Kern CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| WILLIAM C. FITZSIMMONS, Individually and as Trustee, etc.
Plaintiff and Appellant,
v.
COUNTY OF KERN et al.,
Defendants and Respondents.
|
F074233
(Super. Ct. No. BCV-15-100705)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge.
Craig Sterling Elkin for Plaintiff and Appellant.
Mark L. Nations, County Counsel, and Charles F. Collins, Deputy County Counsel, for Defendants and Respondents.
-ooOoo-
Plaintiff William Fitzsimmons and his C&A Living Trust sued the County of Kern (County), the Kern County Code Compliance Department, and Amanda Raber, a code compliance officer, for damages resulting from a nuisance abatement action, where the County removed various items of personal property from plaintiffs’ real property. Plaintiffs appealed the trial court’s ruling to sustain a demurrer without leave to amend. We affirm.
STATEMENT OF FACTS
William Fitzsimmons has owned property located at 15707 and 15711 M Street (one APN number) in Mojave, California since 1969 (Property). The Property contains adjoining two units. Fitzsimmons resides in one unit and rents the second unit to a third party. He used the front area of the property as a “working area” for his “on going recycling business and county food distribution businesses.”
On October 16, 2009, the Kern County Code Compliance Division (Code Compliance) issued Fitzsimmons a citation alleging his Property was a public nuisance and demanding that he remove “inoperable vehicles” and “trash, debris, and junk.” In March 2010, Code Compliance issued another citation to abate the nuisance and alleged the same violations as it had in the previous citation. In June 2011 and October 2013, similar citations were issued to Fitzsimmons by Code Compliance.
Fitzsimmons failed to comply with any of the notices and orders. Six administrative penalties were issued to Fitzsimmons to encourage him to abate the violations: $250 on December 9, 2009, and August 9, 2011; $500 on January 19, 2010, and September 30, 2011; and $1,000 on March 10, 2010, and November 11, 2011.
In November 2013, Code Compliance issued another citation alleging the Property constituted a public nuisance due to “blocking public access to adjacent sidewalk, lack of adequate egress from occupied dwellings; inoperable vehicles; accumulation of trash, debris, junk and miscellaneous items; combustibles stored against dwellings; failure to keep premises in a sanitary condition; and failure to keep premises free from creating a public nuisance.” Fitzsimmons responded to the citation by writing a letter to Code Compliance denying all allegations.
In February 2014, Code Compliance served Fitzsimmons with a “Notice of Hearing” for March 18, 2014, for a determination of a public nuisance and abatement order for the clean-up of the Property. The notice stated that the “Director of the Engineering, Surveying and Permit Services Department” (Permit Services) requested that the Board of Supervisors of Kern County (Board) determine that the Property was a public nuisance and order the abatement of the nuisance.
The notice stated that the Property was “in violation of the following sections of the Kern County Ordinance Code: Section 19.02.060 for blocking public access to the adjacent sidewalk; Section 17.16.020 for lack of adequate egress from occupied dwellings; Section 10.28.040 for inoperable vehicles; Section 8.44.050 for failure to keep premises free from creating a public nuisance; and section 8.28.110 for accumulation of trash, debris, junk, miscellaneous items, combustibles stored against the dwellings and failure to keep premises in sanitary condition.” Fitzsimmons wrote a letter in response to the notice objecting to the allegation that his Property was a nuisance.
On March 18, 2014, the Board held a hearing in which Permit Services presented its position paper requesting the Board to declare the conditions of the property a public nuisance. The paper stated that, “There has been no progress toward the clean-up of solid waste, the abatement of the inoperable vehicles on the property or the removal of the inoperable recreational vehicle blocking public use of the sidewalk. Inspections of the subject property have revealed that the property has continued to deteriorate due to neglect and the elements.” Fitzsimmons was present at this hearing.
At the conclusion of the hearing, the Board issued a “Notice of Determination of Public Nuisance” declaring, “the real property and conditions and uses thereon to be a public nuisance.” This notice of determination gave Fitzsimmons 30 days to abate the nuisance and explained that upon failure to do so, the nuisance would be abated by authorized County agents, and any costs associated with the abatement could be assessed against Fitzsimmons.
On July 14, 2014, the Kern County Superior Court issued an inspection and abatement warrant authorization and Amanda Raber posted a “24-HOUR NOTICE OF PUBLIC NUISANCE ABATEMENT BY FORCIBLE ENTRY.” The Inspection and Abatement Warrant stated: “YOU ARE HEREBY COMMANDED to enter the premises described above within fourteen (14) days from the effective date of this Warrant, and you are directed to abate the nuisances existing thereon as follows: [¶] 1. Remove trash, junk, debris, and miscellaneous items from exterior premises. [¶] 2. Take photographs for use in Return of Abatement Warrant and for recording of an Abatement Lien.”
On July 16, 2014, Raber led a team in the abatement of the property. Deputies from the Kern County Sheriff’s Department accompanied Raber and told Fitzsimmons not to interfere with the procedure. During the abatement, Raber and her team removed seven truckloads from the property. Fitzsimmons protested the taking of his property, but Raber did not consult with him during this time.
Trial Court Proceedings
In August 2015, Fitzsimmons filed his initial complaint against the County, Code Compliance and Raber. In January 2016, Fitzsimmons filed a second amended complaint (SAC), which is the operative pleading in this appeal. In his SAC, Fitzsimmons alleges that: (1) his property never maintained any trash, debris, or junk that could be considered a nuisance; (2) Code Compliance did not define the terms of the citation so he could comply with them; and (3) that Raber and her assistants took away personal property that was not trash, junk, or debris during the abatement of his property.
On March 21, 2016, defendants filed a demurrer to the SAC on the grounds the plaintiffs failed to state facts sufficient to constitute a cause of action for conversion, since they failed to plead facts showing Raber did anything “wrongful” during the abatement proceedings. The demurrer also contended that the causes of action against Raber and County were barred due to statutory immunities. Fitzsimmons filed an opposition.
Following a hearing on the demurrer, on May 5, 2016, the trial court filed an order sustaining the County’s demurrer to the SAC without leave to amend. The trial court concluded that the County’s ordinance was not vague and that the proper procedure to challenge the nuisance determination of the Board was to file a petition for writ of mandate under Code of Civil Procedure section 1094.5, within 90 days, and Fitzsimmons failed to do this. Additionally, the ruling stated that Raber was immune from liability under Code of Civil Procedure section 262.1 and this immunized the County of Kern pursuant to Government Code section 815.2, subdivision (b).
DISCUSSION
Standard of Review
Appellate courts independently review the ruling on a general demurrer and make a de novo determination of whether the pleading “alleges facts sufficient to state a cause of action under any legal theory.” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) The demurrer is treated as admitting all material facts properly pleaded, but does not admit the truth of contentions, deductions or conclusions of law.[1] (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 (Dinuba); see Code Civ. Proc., § 452 [pleading “must be liberally construed, with a view to substantial justice between the parties”].) In a lawsuit brought against a public entity or public employee under the Government Claims Act the cause of action must be plead with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)
Fitzsimmons contends in his SAC that “at no time did [he] believe [he] maintained any trash, debris, or junk that could be considered a nuisance.” He also asserted that after the Board had ruled in favor of the County to abate the nuisance they “did not further define any of the terms in the County’s citations or position paper so that plaintiffs could comply.” The basis for Fitzsimmons conversion suit is that Raber took items that did not constitute trash, junk, or debris during the abatement of his property and the removal of these items were not authorized by any list or explanation by the Board or any other government entity.
Defendants contend that if Fitzsimmons wished to challenge the determination of the Board of Supervisors then he was required to file an administrative mandamus action under Code of Civil Procedure section 1094.5 within 90 days of the ruling. As Fitzsimmons did not file a writ of mandate, defendants argue his conversion claim should be barred.
Administrative mandamus is the proper procedure for judicial inquiry “into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer ….” (Code Civ. Proc. § 1094.5, subd. (a).) A proceeding under Code of Civil Procedure section 1094.5 is the exclusive remedy for judicial review of adjudicatory administrative actions of local agencies. (City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718, fn. omitted)
Fitzsimmons’s failure to seek judicial review of the Board of Supervisors discretionary administrative action now bars any further actions challenging the resulting order. The “[f]ailure to obtain judicial review of a discretionary administrative action by a petition for a writ of administrative mandate renders the administrative action immune from collateral attack … by any other action.” (Patrick Media Grp., Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 608.)
There are several examples of property owners filing a petition of writ of mandate under Code of Civil Procedure section 1094.5 to challenge the determination that their property constituted a public nuisance, as illustrated in Clary v. City of Crescent City (2017) 11 Cal.App.5th 274 and Mohilef v. Janovici (1996) 51 Cal.App.4th 267. Also, administrative mandamus is the exclusive remedy for similar issues involving building and zoning permits (City of Santee v. Superior Court, supra, 228 Cal.App.3d 713), determinations of unsafe or substandard conditions in buildings (Health & Saf. Code, § 17980.8), and inverse condemnation cases (Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405).
“The courts have repeatedly held that administrative writ of mandate provided for in section 1094.5 is the appropriate remedy for the purpose of inquiring into the validity of any final administrative agency decision made as the result of a proceeding which by law requires a hearing, evidence to be considered, and a discretionary determination of fact vested in an inferior tribunal.” (Logan v. S. Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 123.) Therefore, the appropriate procedure for Fitzsimmons to challenge the Board’s determination that his property constituted a nuisance was to petition for a writ of mandate. His failure to seek judicial review bars any further attacks that result from the discretionary decision.
It follows that the trial court correctly determined Fitzsimmons’s SAC failed to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) When an order sustaining a demurrer without leave to amend is valid on any one ground, the judgment of dismissal must be affirmed on appeal and it is unnecessary to discuss the remaining grounds relied upon by the trial court. (Webb v. Youmans (1967) 248 Cal.App.2d 851, 855.)
DISPOSITION
The judgment is affirmed. Defendants shall recover all their costs on appeal.
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FRANSON, J.
WE CONCUR:
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HILL, P.J.
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DETJEN, J.
[1] The pleader’s contentions or conclusions of law are not controlling because appellate courts must independently decide questions of law without deference to the legal conclusions of either the pleader or the trial court. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 413.) Legal questions that arise at the pleading stage include the interpretation of a statute or the application of a statutory provision to facts assumed to be true for purposes of the demurrer. (Ibid.)
