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Jones v. City of Orange Cove

June 8, 2010

SUE JONES, PLAINTIFF,
v.
CITY OF ORANGE COVE, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ORDER GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT (Documents 21 and 24)

Plaintiff Sue Jones ("Plaintiff") filed a motion for summary judgment on March 12, 2010. Defendant City of Orange Cove ("Defendant" or "City") filed a cross-motion for summary judgment/summary adjudication on March 23, 2010. The motions were heard on May 28, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. H. Ty Kharazi appeared on behalf of Plaintiff. James McBrearty appeared on behalf of Defendant.

BACKGROUND

Plaintiff filed this civil rights action against Defendant on May 2, 2008, in the Fresno County Superior Court. Defendant removed the action to this Court on June 4, 2008, based on federal question jurisdiction.

Plaintiff filed a motion for summary judgment on March 12, 2010. Defendant opposed the motion on April 8, 2010, and Plaintiff filed a reply on May 12, 2010. Defendant filed a cross-motion for summary judgment on April 8, 2010. Plaintiff opposed the motion on May 12, 2010.*fn1 Plaintiff also filed objections to the declaration of Ray Hoak. Defendant filed a reply on May 20, 2010.

FACTUAL ALLEGATIONS IN THE COMPLAINT

In her verified complaint, Plaintiff alleges that Manuel Ferreira campaigned for the City's November 7, 2006, mayoral election. Plaintiff supported Ferreira's campaign. The incumbent, Mayor Victor Lopez, was unhappy with her support. Mayor Lopez hired building inspector Ray Hoak to conduct code inspections on properties owned by Plaintiff in the City.

Mr. Hoak found that the foundation of a building located at 449 "G" Street, Apt. 11 ("Apt. 11"), was substandard under the California Health & Safety Code. After making this finding, Mr. Hoak was "rewarded" with a newly created full-time position as the City's building inspector.

Plaintiff made the requested repairs to Apt. 11. Plaintiff did not repair the foundation. Mr. Hoak found that the public nuisance had not been abated and instituted proceedings before the Board of Review pursuant to the City's municipal code. Plaintiff and the City stipulated to an arbitrator, Dale Bacigalupi, to serve as the Board of Review. The Board of Review issued its findings on January 31, 2007. The Board found that the building did not have an undersized and incomplete concrete foundation. The findings were served on counsel for the parties on January 31, 2007.

On February 21, 2007, Mr. Hoak appealed the Board's decision. The City Council held an appeal hearing on April 19, 2007. The City Council reversed the Board's decision, finding the building to be a nuisance and a substandard dwelling pursuant to the municipal code.

Plaintiff "did not place much stock" in the City Council's reversal. Verified Complaint, ¶ 22. Even Mayor Lopez "admitted the trial was a farce, jokingly saying 'we gave you your day in court, if you want to call it that' at the end of the hearing." Verified Complaint, ¶ 23.

In or around April 2008, a local radio station owner, who had been providing free access to Mayor Lopez, decided to move his station out of the City. Mayor Lopez believed that Plaintiff instigated the move and took other efforts to exact revenge on Plaintiff.

On April 18, 2008, almost a year after the hearing, the City posted its ruling that the building must be repaired or would be razed within thirty days. Plaintiff contends that the City cannot proceed because it lacked subject matter jurisdiction over the hearing and decision. Plaintiff claims she was damaged in the sum of $25,000, because she has been unable to rent the unit for nearly two years and has incurred attorney's fees and costs to defend against the City's wrongful actions.

Based on these facts, Plaintiff alleges causes of action for (1) violation of 42 U.S.C. § 1983; (2) inverse condemnation; and (3) trespass and taking. An additional cause of action involving water billing was settled prior to the Settlement Conference in this case. The resolution was placed on the record.*fn2

UNDISPUTED MATERIAL FACTS*fn3

Hired in April 2006, at all times relevant to this action, building inspector Ray Hoak acted on behalf of the City. Exhibit E to Declaration of H. Ty Kharazi ("Kharazi Dec."); Deposition of Ray Hoak, Vol. 1, p. 23:24-25; Answer, ¶ 9; Exhibit B to Request for Judicial Notice. Since his hiring, Ray Hoak has posted notices of uninhabitability only on buildings owned by Plaintiff. Deposition of Ray Hoak, Vol. 1, p. 32:21-24.

Plaintiff is a citizen of the State of California and a resident of the City of Orange Cove. Declaration of Sue Jones ("Jones Dec.") ¶ 3. Plaintiff is the owner of the property at issue in this litigation. Jones Dec. ¶ 5.

The property was inspected by the City on March 18, 2006.*fn4 Affidavit of Ray Hoak ("Hoak Aff.") ¶ 3. A further inspection of the property was conducted on July 24, 2006. The inspection revealed, among other things, in the building inspector's opinion, an undersized and incomplete concrete foundation. Hoak Aff. ¶ 4.

The City issued a Notice and Order to vacate on August 4, 2006, due to an alleged dangerous condition of the building.*fn5 Hoak Aff. ¶ 5. Plaintiff appealed the notice and order to vacate on August 7, 2006. Hoak Aff. ¶ 6.

Plaintiff and Defendant mutually agreed on arbitrator Dale E. Bacigalupi to sit as the reviewing board ("Board of Review") for the City of Orange Cove. Exhibit A to Kharazi Dec. The Board of Review made its decision and served it on all parties on January 31, 2007. The decision found that Sue Jones was not obligated to make remedial measures to the foundation.*fn6

Exhibit B to Kharazi Dec. (Board of Review Decision, p. 5:25-6:1).

Municipal Code ยง 15.17.070 of the City of Orange Cove provides for filing an appeal "within ten days of such final decision of the Board of Review." Exhibit A to Request for Judicial Notice. Ray Hoak filed his appeal of the Board's adverse decision on February 21, 2007. Exhibit E to Kharazi Dec. Plaintiff did not object to the City's failure to file its appeal to the City Council within the ten ...


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