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City of Live Oak v. Irene Ann Oliveira


July 15, 2011


(Super. Ct. No. CVCS070412)

The opinion of the court was delivered by: Murray , J.

City of Live Oak v. Oliveira



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Irene Ann Oliveira, as successor trustee for the Herminia S. Oliveira Revocable Trust (Trust), appeals the trial court's imposition of civil penalties, its award of attorney fees and administrative enforcement costs in favor of plaintiff City of Live Oak (City), and its dismissal of defendant's first amended cross-complaint. Defendant asserts the following: (1) There is no statutory authority to impose the daily penalties sought by plaintiff and awarded by the court; (2) Prior to seeking civil penalties, the City did not provide written notice of the proposed level of sanctions and the reasons for the sanctions; (3) The stipulated judgment reserved only the issue of civil penalties, and the award of attorney fees and administrative enforcement costs was "outside" the stipulation and thereby removed from the case; and (4) The trial court erred in sustaining the demurrer and dismissing the cross-complaint because defendant stated a cause of action for a violation of civil rights under section 1983 of title 42 of the United States Code and for inverse condemnation. For the reasons that follow, we affirm.


On November 14, 2006, and again on November 27, 2006, the City served a notice and order to abate nuisance by vacating and demolishing or repair concerning three Trust properties (the Premises) in Live Oak, California. These abatement notices listed numerous code violations.

On March 1, 2007, the City filed a civil complaint entitled Abatement of Nuisance and Damages against defendant concerning the Premises.*fn1 The City's complaint alleged causes of action for: (1) violations of the Health and Safety Code (Health & Saf. Code, § 17910 et seq.), (2) abatement under a number of Uniform Codes adopted by the City, as well as other provisions of the Live Oak Municipal Code (the Municipal Code), (3) public and private nuisance under the Civil Code, and (4) imposition of civil penalties pursuant to the Municipal Code.

On June 15, 2007, defendant answered and filed a cross-complaint against the City alleging an "improper assertion of municipal powers." The City demurred to the cross-complaint, which the trial court sustained with leave to amend. On November 28, 2007, defendant filed a first amended cross-complaint alleging a cause of action under section 1983 of title 42 of the United States Code (section 1983), and a cause of action for inverse condemnation. The City demurred to the first amended cross-complaint, which the trial court sustained, again with leave to amend. Defendant did not amend further and the first amended cross-complaint was dismissed with prejudice.

A. Consent Judgment

During the course of litigation, the parties stipulated to a consent judgment, which the trial court entered on June 26, 2008. In pertinent part, the consent judgment reads:

"On March 1, 2007, Plaintiff commenced the above action for abatement of a nuisance and damages . . . . [¶] Plaintiff's action sought the abatement and demolition of three (3) units . . . located on Defendant's property in the City of Live Oak . . . . [¶] . . . [¶] . . . A building permit was issued on May 27, 2008, for the repair of THE PREMISES (THE BUILDING PERMIT). [¶] THE PARTIES agree to settle and resolve a portion of the above action by entry of a Consent Decree pursuant to the provisions of Code of Civil Procedure § 664.6 and, in that regard, agree and stipulate as follows:

"1. DEFENDANT ACKNOWLEDGES that the structures located on THE PREMISES need to be repaired so as to be brought into conformance with current Codes or, if not so repaired, that said structures need to be demolished.

"2. DEFENDANT AGREES to correct and repair the mechanical, plumbing, electrical and structural problems located on THE PREMISES in conformance with the BUILDING PERMIT. All work will be completed pursuant to the BUILDING PERMIT on or before October 31, 2008. The Defendant may elect to demolish the structures located on the PREMISES in lieu of repairing the structures pursuant to the BUILDING PERMIT. If Defendant elects to demolish the structures, such demolition shall be completed on or before October 31, 2008. . . .

"3. If Defendant defaults in the timeliness or performance of any of the matters set forth above, Plaintiff may proceed to demolish the structures located on THE PREMISES and, upon Motion to the Court, cause such costs of demolition (and any proper costs of suit) to be assessed as a personal Judgment against the Defendant Trust and as a lien against THE PREMISES. . . .

"4. IT IS AGREED that the issue of the imposition of civil penalties is not resolved by this Stipulation and Consent Decree. THE PARTIES AGREE that this issue shall be bifurcated from the issues resolved above and shall be tried separately by the Court at a later date."

B. Civil Penalties Bench Trial

On August 18, 2009, a bench trial was held on the "civil penalties" portion of the case. The City filed a trial brief in connection with the matter. At the bench trial, several of the City's exhibits were admitted into evidence, including, among others, certain provisions of the Municipal Code and pictures of the Premises. Among the Municipal Code provisions was Municipal Code section 14.08.030, which outlaws various "public nuisances," such as unmaintained buildings and property conditions that violate City building regulations, and Municipal Code section 14.08.050B (section 14.08.050B),*fn2 which authorizes daily penalties for building and safety code violations.

Allison Schmidt, a City building inspector and code enforcement officer, testified that the pictures of the Premises depicted a number of problems including, but not limited to: vegetation growing into the roof; a shower unit without a floor and a hole in the back wall of the shower; exposed and cut wiring; a flexible gas line visible from a hole in the wall; a rat hole in the wall; an unsecured heater; a heater with no vent to the exterior, allowing carbon monoxide to vent into the dwelling unit; an extension cord and light dangling from the ceiling; abnormal plumbing/hoses flowing into the sink; aluminum foil taped to the ceiling apparently to catch water from a leak; and a bathroom sink falling off the wall.

At the conclusion of the bench trial, after considering various factors, the court orally pronounced that it would impose daily penalties against defendant at $100 per day for 448 days. Among other things, the court stated that "[t]he condition of the property was absolutely deplorable. The defendant and those in charge of managing and benefiting from the trust can only be described as slumlords of the worst degree. It's a crime against humanity that anyone had to live in that property in the condition that it was [in]." The court declared the City the prevailing party and requested that the City prepare a statement of decision.

The City prepared a proposed statement of decision, to which defendant filed written objections. On September 24, 2009, over defendant's objections, the court adopted the statement of decision as submitted by the City. In pertinent part, the statement of decision reads:

". . . At the trial concerning the imposition of civil penalties, Plaintiff, CITY OF LIVE OAK, (CITY) sought penalties of FIVE HUNDRED DOLLARS ($500.00) per day for 453 days, from December 27, 2006, through March 24, 2008, the number of days THE CITY claims Defendant delayed in submitting Plans to the Building Department to repair THE PREMISES. [¶] . . . [¶]

"The uncontroverted testimony of THE CITY's building inspector and Code Enforcement official, ALLISON SCHMIDT, as well as photographs depicting THE PREMISES . . . establish that the condition of the PREMISES was deplorable and unfit for human habitation. The Court finds and determines, pursuant to Health & Safety Code, § 17980.6, that THE PREMISES are in violation of the CITY's Ordinances and that these violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered. From and after the service of the ABATEMENT ORDER, THE PREMISES were managed by MARY OLIVEIRA and her sister, IRENE ANN OLIVEIRA, who are the Trust Beneficiaries, with IRENE ANN OLIVEIRA being the SUCCESSOR Trustee. [¶] . . . [¶]

"The Plaintiff's Complaint sought the imposition of penalties of $500 per day. The Defendant's Answer does not raise any defense of 'excessive fines' or other due process objections to these penalties. Nonetheless, the Court declines to mechanically apply the penalties sought by THE CITY. []Government Code, § 36900(c) authorizes a city to impose a fine from $100.00 to $1,000.00 for a violation of its Ordinances. Government Code, § 36901 also provides authority for cities to impose administrative fines of up to $1,000.00 per violation. The daily penalties sought in this case are analogous to Civil Code § 2929.3(a), which requires a legal owner to maintain vacant residential property purchased at a foreclosure sale. Under that Statute, a governmental entity may impose a civil fine for up to $1,000.00 per day for a violation. The amount of the fine is not automatic and the governmental entity is required to take into consideration any timely and good-faith efforts by the owner to remedy the violation. Additionally, the Court notes that Live Oak Municipal Code, Section 1.17.050, sets forth various factors to be considered in determining the appropriate amount of sanctions for any administrative violation. In this case, a number of factors would suggest that a substantial daily fine, as requested by THE CITY, would be appropriate. These factors would include the deplorable condition of THE PREMISES, the Defendant's awareness of the ABATEMENT ORDER and admitted knowledge that the CITY Building Department required the submission of Plans before anything could occur. Additionally, Defendant had the ability to submit Plans in a matter of weeks had she chosen to do so. Additionally, the Court finds that Defendant's motivation for delays was the fact that she was continuing to collect rents from THE PREMISES. THE PREMISES had been 'red-tagged' after expiration of the time to appeal the ABATEMENT ORDER. It was illegal to rent THE PREMISES after they were posted by THE CITY. Nonetheless, Defendant continued to collect rent from THE PREMISES despite a specific awareness of the ABATEMENT ORDER and what was required to remedy the situation. The Court is convinced and finds that Defendant wanted to delay this matter for as long as possible and was successful to an extraordinary degree.

"In mitigation, the Trust Beneficiaries, MARY OLIVEIRA and IRENE ANN OLIVEIRA, as well as their mother, HERMINIA OLIVEIRA, may not have been the most sophisticated of people. This does not excuse their conduct, but the Court considers this in mitigation. Accordingly, the Court determines that a civil penalty of $100.00 per day is appropriate.

"The Court further determines that this penalty should apply for 448 days. The applicable days in question are from January 2, 2007, through May 24, 2008 (the Court has applied CCP § 1013 to add an additional five days to comply with the ORDER FOR ABATEMENT). Accordingly, $100.00 per day times 448 days results in total penalties of FORTY-FOUR THOUSAND, EIGHT HUNDRED DOLLARS ($44,800.00). Plaintiff, as the prevailing party, is entitled to costs according to proof. In light of the Court's findings, these costs shall include those items as set forth in Health & Safety Code, § 17980.7(d)(1).

"Judgment is hereby Ordered to be entered in favor of Plaintiff and against Defendant in the sum of FORTY-FOUR THOUSAND, EIGHT HUNDRED ($44,800.00) plus costs, including those items set forth in Health & Safety Code, § 17980.7(d)(1)."

On September 24, 2009, the court entered judgment in accordance with the statement of decision.

C. Attorney Fees and Costs

Following the bench trial, the City filed a motion for attorney fees ($23,910.30) and investigative and administrative enforcement costs ($2,058.08), all pursuant to Health and Safety Code section 17980.7, subdivision (d)(1). The City also submitted a separate memorandum of costs that included additional amounts for deposition costs, service of process costs, and court reporter fees, totaling $835.60. Subsequently, defendant filed a motion for a new trial and an opposition to the City's motion for attorney fees and administrative enforcement costs.

On November 30, 2009, the court denied defendant's motion for a new trial. On January 5, 2010, the court entered an order granting the City's motion for attorney fees and administrative enforcement costs. The order allowed these items as costs, as well as the additional items set forth in the memorandum of costs.

D. Defendant's Appeal

Defendant filed an appeal challenging the imposition of daily civil penalties, the City's entitlement to attorney fees and administrative enforcement costs, and the dismissal of her first amended cross-complaint. Defendant has not appealed the denial of her motion for a new trial. We limit our discussion accordingly.


A. Civil Penalties

Defendant's challenge to the civil penalties contains both a substantive and a procedural dimension. Defendant's substantive challenge concerns the municipal law under which the daily penalties were imposed. Defendant's procedural challenge concerns a separate provision of municipal law, Municipal Code section 1.17.030B (section 1.17.030B), which establishes a procedure for imposing administrative fines.

1. Substantive Challenge to the Penalties

To begin with, we recognize that the trial court did not specify in the statement of decision the municipal code section under which the daily penalties could be imposed. From the record, however, it appears reasonably clear that section 14.08.050B served as the basis for the daily penalties.*fn3 Indeed, defendant concedes in her appellate briefing: the "civil penalties were sought under Live Oak Municipal Code Section 14.08.050B. [Defendant] makes no issue of that, because it's clear that the Trial Court was dealing with the latter section [14.08.050B] when it imposed the daily penalties." We agree.*fn4

Defendant argues, however, that the statement of decision, which the City prepared and the court adopted, erroneously indicates that the daily penalties provided under municipal law were "authorized" by Government Code section 36900, subdivision (c) and/or Government Code section 36901.*fn5 The trial court further noted in the statement of decision prepared by the City that the "daily penalties sought in this case are analogous to Civil Code section 2929.3(a)."*fn6 In essence, defendant argues that the Government Code provisions are silent on the issue of daily penalties for municipal law violations and, therefore, do not expressly authorize them. Defendant also argues that Civil Code section 2929.3, subdivision (a) is distinguishable from the Government Code provisions because the Legislature specifically provided for daily civil penalties in Civil Code section 2929.3, subdivision (a). On both points, defendant is correct.

On appeal, the City has apparently recognized that neither Government Code section 36900, subdivision (c) nor 36901 expressly authorize, or even speak to, daily penalties.*fn7 The City contends for the first time on appeal that the daily penalties provided in section 14.08.050B are authorized by its "police power" and are not prohibited by Government Code section 36900, subdivision (c) or 36901.

In reply, defendant argues that the City has not cited any authority to support its newly minted position that it may use its "police power" to "go beyond Government Code section 36900(c) and define a code violation on a daily basis." Defendant further asserts in reply that it does not matter whether section 14.08.050B provides for daily fines since the City asserted in the trial court that "whichever [o]rdinance contained the 'daily civil penalties[,] [the City] asserts it was 'authorized' by Government Code section 36900(c)."

The City's belated invocation of its police power, while perhaps unfortunate, is not problematic. On appeal, we review the ultimate correctness of the trial court's ruling. (People v. Letner (2010) 50 Cal.4th 99, 145.) "[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) Accordingly, if the daily penalties provided in section 14.08.050B are authorized by the City's police power, then we must sustain the trial court's ruling to impose them regardless of whether the trial court believed they were authorized instead by Government Code section 36900, subdivision (c) or 36901.

At oral argument, defendant asserted she had no notice that section 14.08.050B could be the basis of the City's claim for daily penalties when this matter was in the trial court, and applying it now would violate due process. The record demonstrates that defendant had actual notice of this potential theory. As we have noted, section 14.08.050B was one of several code sections the City introduced into evidence at the beginning of the trial. And we further note that in its trial brief, the City asserted, "Under THE CITY's ordinances, each day a Code violation exists is a separate violation." That the City implied section 14.08.050B was authorized by section 36900, subdivision (c) is of no moment now.

We agree with the City that the daily penalties provided in section 14.08.050B are authorized by its police power and are not prohibited by Government Code section 36900, subdivision (c) or 36901. The California Constitution provides that a city "may make and enforce within its limits all local, police, sanitary, and other ordinance and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7.) This provision imparts broad police power to cities pursuant to which they may "regulate land through planning, zoning, and building ordinances." (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1181; see also Sullivan v. City of Los Angeles (1953) 116 Cal.App.2d 807, 810) ["A local legislative body may, in the exercise of its police power, make and enforce ordinances to regulate or prohibit a thing or act which is of such a nature that it may become a nuisance or may be injurious to the public health if not suppressed or regulated"].) A city enjoys "broad discretion to determine what is reasonable in endeavoring to protect public safety, health, morals, and general welfare." (Loska v. Superior Court (1986) 188 Cal.App.3d 569, 575.)

The daily penalties provided under section 14.08.050B are within the City's police power, as they represent a reasonable means by which to enforce its anti-nuisance/building safety legislation. (See City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1315 [addressing a daily penalty provision in the San Francisco Housing Code, stating it "[s]erved . . . the legitimate police power device of 'securing obedience' to the code requirements through penalties"]; see also Dapper v. Municipal Court (1969) 276 Cal.App.2d 816, 819 [addressing a provision in the San Diego Municipal Code that permitted daily penalties for a continued public nuisance, stating "[i]t is reasonable for the Legislature to designate a refusal to act when one should act as an offense and a continued refusal to act as successive offenses. The legislative aim is to compel nuisance abatement by enforcing criminal sanctions, an exercise of the police power we find valid"].) Indeed, absent daily penalties, a chronic violator, such as defendant, may "simply 'buy a license' with a small fine, charge it up to the 'cost of doing business' and continue to violate the . . . ordinance. [Citation.]" (People v. Djekich (1991) 229 Cal.App.3d 1213, 1222.)

We further agree with the City that the daily penalties provided under section 14.08.050B are not facially prohibited by Government Code section 36900, subdivision (c) or section 36901. These Government Code sections do not address the issue or otherwise purport to preclude a city from deeming a violation of municipal law to occur on each day that a violation continues to exist. These provisions neither expressly prohibit nor expressly authorize daily penalties. (See Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1161 ["when a local ordinance 'does not prohibit what the statute commands or command what it prohibits,' the ordinance is not 'inimical to' the statute. [Citation.]"].)

For these reasons, we reject defendant's substantive challenge to the daily penalties.

2. Procedural Challenge to the Penalties

Defendant contends that the imposition of daily penalties was procedurally improper because the City failed to comply with section 1.17.030B. This section provides: "At the time of issuance of a notice of Administrative Violation pursuant to this title, the enforcement authority shall evaluate in writing the criteria set forth in Section 1.17.050 to determine the appropriate level of sanctions and shall provide written notice to the responsible person of the proposed level of sanction and the reasons thereof as required by Section 1.17.110." (Italics added.) Defendant contends that the City failed to comply with section 1.17.030B because the City did not provide written notice of the proposed level of sanctions and the reasons thereof. We reject defendant's argument.

It is obvious from its text that section 1.17.030B applies to administrative enforcement proceedings, not judicial proceedings. The City did not pursue administrative enforcement proceedings against defendant; instead, it elected to file a civil action seeking civil penalties, a procedure authorized by Municipal Code section 14.08.210.*fn8 And as was pointed out by the City during oral argument, defendant could have invoked the administrative procedures but she waived her right to an administrative hearing and determination by not filing an appeal to the notice of violation and order to abate nuisance.*fn9 Accordingly, defendant's belated reliance on section 1.17.030B is entirely misplaced.

For these reasons, we reject defendant's procedural challenge to the civil penalties.

B. Attorney Fees and Administrative/Enforcement Costs

Defendant contends that the City was not entitled to attorney fees or administrative enforcement costs because the consent judgment removed these matters from the case. We disagree.

A consent judgment is regarded as a contract subject to the rules of contract construction. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 263.) "It '"'is binding only as to the matter consented to by the stipulation'" . . . is confined only to issues within the stipulation . . . and does not cover matters not in the stipulation.' [Citation.]" (Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 471 (Pardee).) When, as here, there is no conflict in extrinsic evidence, the appellate court independently construes the contract. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955.)

By its own terms, the consent judgment covered only a portion of the case between the parties. The consent judgment was silent as to whether the City could pursue attorney fees and costs in connection with any of its causes of action. When a consent judgment is silent on these matters, it "cannot reasonably be interpreted to exclude recovery of fees and costs." (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 184; see also Lanyi v. Goldblum (1986) 177 Cal.App.3d 181, 192-193.)

We recognize that the consent judgment mentions "costs" in paragraph 3; however, these "costs" are tethered to defendant's contractual obligation under the consent judgment, not the City's causes of action. Under paragraph 3 of the consent judgment, in the event defendant defaulted on her contractual obligation to repair or demolish in a timely fashion, the City had the contractual right to demolish the Premises and seek the "costs" of demolition and any "costs" of suit. These prospective demolition and litigation "costs," which are tied to defendant's contractual obligation under the consent judgment, cannot reasonably be interpreted as removing, by implication, the City's ability to pursue costs (or attorney fees) on any cause of action in the case. Defendant does not argue otherwise.

Instead, defendant focuses on the reservation in the consent judgment. Defendant contends that by specifically reserving civil penalties for future adjudication, by implication, the parties removed attorney fees and administrative enforcement costs from the case. Defendant invokes the principle of contract construction expressio unius est exclusio alterius, to express or include one thing implies the exclusion of the other. For several reasons, defendant's argument is unpersuasive.

First, expressio unius est exclusio alterius is a rule of contract construction that applies when a contract is ambiguous. (Steven v. Fidelity & Casualty Co. (1962) 58 Cal.2d 862, 871; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 411.) Here, the consent judgment is not ambiguous with respect to whether the City could pursue attorney fees and costs on any of its causes of action; rather, it is silent on this topic.

Second, the reservation language states that the issue of civil penalties "shall be bifurcated from the issues resolved above," not bifurcated from all the issues in the case. (Italics added.) The issue of attorney fees and administrative enforcement costs was not "resolved above." For this additional reason, expressio unius est exclusio alterius is of no help to defendant. Moreover, in the complaint, the issue of "civil penalties" was pled as a separate cause of action -- the City's fourth and final cause of action. On the other hand, attorney fees and costs were not pled in this manner -- they were included in the prayer for relief. For this reason too, an application of expressio unius est exclusio alterius would not remove attorney fees and costs from the case, as these were not causes of action.

Third, defendant's construction of the consent judgment is belied by her own admission. Defendant admits that she raises no objection to the $835.60 in ordinary costs the City received. These costs, however, were not expressly reserved in the consent judgment. Thus, under defendant's logic, they were impliedly excluded.

Finally, interpreting the consent judgment as removing attorney fees and costs would violate the rule that a consent judgment "'does not cover matters not in the stipulation.' [Citation.]" (Pardee, supra, 37 Cal.3d at p. 471.) "[W]e cannot rewrite the agreement for the parties; we can only interpret the agreement" to which they assented. (Ritzenthaler v. Fireside Thrift Co. (2001) 93 Cal.App.4th 986, 991.) That agreement does not preclude attorney fees and administrative enforcement costs. Therefore, we reject defendant's challenge to the attorney fees and administrative enforcement costs.

C. Defendant's First Amended Cross-Complaint

Defendant was given leave to amend her first amended cross-complaint but declined. When a party declines an opportunity to amend, a "'strict construction of the complaint is required and it must be presumed that the [party] has stated as strong a case as [it] can.' [Citation.]" (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 251.) In this context, we determine only whether defendant stated a cause of action under section 1983 or for inverse condemnation, not whether she might have been able to do so. (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 312.) The trial court's dismissal must be affirmed if the unamended pleading is objectionable on any ground raised by the demurrer. (Soliz v. Wiliams (1999) 74 Cal.App.4th 577, 585.)*fn10

1. Section 1983

In order to sufficiently plead a cause of action under section 1983, defendant must allege that a person acting under color of state law caused a deprivation of her constitutional or federally protected rights. (Higginbotham v. King (1997) 54 Cal.App.4th 1040, 1043-1044.) The pleading must contain more than the "constitutional 'buzzwords' to survive demurrer." (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) Rather, it must allege nonconclusory factual content showing the deprivation at issue. (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 406.) In addition, when a section 1983 claim is asserted against a municipality, the pleading must allege that the deprivation was caused by official municipal policy of some nature. (Ballard, supra, at pp. 406-407; Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569.)

Here, defendant's section 1983 claim against the City is woefully inadequate. Defendant's pleading essentially alleges that the City has refused to let her erect a residential unit on certain "property" until the City "gets its way with respect to its complaint in chief." The "complaint in chief" is unspecified. The pleading asserts conclusory allegations of "due process" and "equal protection" violations. The pleading does not explain whether defendant is alleging a procedural or substantive due process violation, let alone assert the requisite elements for such claims. (See Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 268.) The pleading also does not explain how defendant has been denied equal protection under the law. Finally, the pleading does not allege that the City, or any of its members, were acting under color of state law or pursuant to official municipal policy of some nature.

The first amended cross-complaint was insufficient to state a cause of action against the City under section 1983 and this cause of action was properly dismissed.

2. Inverse Condemnation

"A property owner may bring an action for inverse condemnation if his real or personal property has been taken or damaged for public use without just compensation. [Citations.] The complaint must allege plaintiff's ownership and a description of the property, the defendant condemnor's taking or damaging, and the nature of the injury and substantial damage to the property right." (First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 635-636.)

Here, defendant filed her first amended cross-complaint in her capacity as trustee. The pleading does not specify, however, whether defendant or the trust owned the "property" at issue. Nor does the pleading provide any description of this "property." The pleading also failed to allege that the property was taken or damaged for "'a public use.'" (See Barham v. Southern Cal. Edison Co. (1999) 74 Cal.App.4th 744, 751-752; Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160, 165-166.) Strictly construed, defendant's cross-complaint fails to state a cause of action for inverse condemnation and it was properly dismissed.*fn11


For the reasons stated, defendant has not demonstrated error in the imposition of civil penalties, the award of attorney fees and enforcement costs, and the dismissal of defendant's first amended cross-complaint. Accordingly, we affirm. The City shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

We concur: RAYE , P.J. NICHOLSON , J.

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