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City of Live Oak v. Irene Ann Oliveira

July 15, 2011

CITY OF LIVE OAK, PLAINTIFF, CROSS-DEFENDANT AND RESPONDENT,
v.
IRENE ANN OLIVEIRA, AS SUCCESSOR TRUSTEE, ETC., DEFENDANT, CROSS- COMPLAINANT AND APPELLANT.



(Super. Ct. No. CVCS070412)

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

City of Live Oak v. Oliveira

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BACKGROUND

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 ...


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