Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. CV153406
McAdams, J.
Appellant David Smith challenges the trial court’s order granting the County of Santa Cruz (the County) a permanent injunction, which enjoins Smith from further lumber milling activity on his property in violation of county zoning regulations. Although Smith stipulated to the permanent injunction, he challenges the portions of the court’s order awarding the County its administrative enforcement costs, a civil penalty, and attorney fees. Smith also contends the court denied him his right to a jury trial. We find no error and affirm the order.
Facts and Procedural History
I. First Notice of Violation
Smith owns unimproved real property on West Park Avenue in Boulder Creek, California. The property is zoned “Special Use – Designated Park Site.”
In July 2003, the County received a complaint that Smith was conducting lumber milling on the property, which was not a permitted use. On August 1, 2003, county code compliance investigator Richard Nieuwstad visited the property, observed the illegal milling operation, and issued a notice of violation to Smith. The notice of violation was posted on the property that day and mailed to Smith on August 4, 2003. It cited Smith for violating Santa Cruz County Code (hereafter County Code) section 13.10.275, subdivision (h) by doing “commercial logging in an SU-D zone without a development permit” and directed him to “cease illegal use” and to “apply for required … permits within 30 days.”
II. Smith’s Appeal to Planning Department
Smith appealed the notice of violation as directed on the notice by requesting a meeting with the County Planning Director. On September 19, 2003, Smith met with David Laughlin, code compliance principal planner for the County.
In September 2003 and September 2004, Nieuwstad inspected Smith’s property and found evidence that lumber milling was still being done there.
On October 4, 2004, Laughlin denied Smith’s appeal of the August 2003 notice of violation. Laughlin notified Smith that the County would record the notice of violation and that it would refer the matter for an administrative hearing before the county hearing officer if it confirmed that the violation was continuing.
III. County Records Notice of Violation and Requests Administrative Hearing
On October 20, 2004, after receiving information that lumber milling was still occurring on Smith’s property, the County filed the notice of violation with the county recorder’s office. After recording the notice of violation, the County referred the matter to its administrative hearing officer and requested the following relief: (1) reimbursement of code enforcement costs; (2) a civil penalty of $1,500; and (3) an order requiring Smith to stop milling lumber on his property.
IV. Smith’s Civil Action
In December 2004, Smith filed an action against the County (Case no. CV150556). Styled as both a writ petition and a complaint, the pleading contained nine causes of action. The first cause of action was for administrative mandamus under section 1094.5 of the Code of Civil Procedure; the second cause of action sought traditional mandamus under section 1085 of that code. The pleading also included causes of action for declaratory and injunctive relief, violations of Smith’s civil rights, fraud, and negligence. The gist of Smith’s complaint was that the County’s general plan is unenforceable because it lacks a valid housing element. By way of relief, Smith sought an order expunging the recorded notice of violation; damages, costs, and attorney fees; a declaration of the parties’ rights; an injunction against the use of public funds for zoning and related activities; and exemplary damages.
The administrative hearing officer held hearings in January and February 2005. In February 2005, while the administrative law matter was still pending decision, Smith made a motion in the superior court for an order setting aside the administrative decision. He also sought writs of mandamus commanding the County to cease issuing building permits and to expunge the notice of violation recorded against his property. The County opposed Smith’s motion.
V. Hearing Officer’s Decision and Disposition of Smith’s Civil Action
On February 28, 2005, the administrative hearing officer issued a written decision in which he (1) found Smith in violation of the County Code; (2) ordered him to cease lumber milling at his property within 60 days; (3) ordered him to pay the County’s enforcement costs of $897.90; and (4) ordered him to pay a civil penalty of $1,000, which would be waived upon his timely compliance with the decision.
In April 2005, the trial court denied Smith’s request for writ relief. In June 2005, Smith appealed the trial court order denying his mandamus petitions to this court. We affirmed the trial court decision in an unpublished opinion filed in July 2006 (case no. H028968).
VI. Second Notice of Violation
While his appeal to this court was pending, Smith continued lumber milling on his property. On July 8, 2005, the County posted a second notice of violation on Smith’s property, citing him for violations of County Code section 13.10.275 subdivision (h) for “lumber milling without a development permit” and County Code 13.10.279, subdivision (a) for “allowing continuation of violation of zoning ordinance.” The notice of violation directed Smith to “stop all construction and/or development activity” and to “comply with the conditions of [the] Administrative Decision … which ordered lumber milling to cease.” Three days later, the County mailed Smith a notice of violation and intent to record. The notice advised him that the violations must be corrected within 30 days “to avoid civil penalties” and that the County would seek its enforcement costs. Smith ignored the second notice of violation, telling the County and its counsel that he would not stop milling until a judge ordered him to stop.
VIII. County’s Civil Action
On January 27, 2006, the County filed the instant action in the superior court. The complaint contained a first cause of action for abatement of nuisance by injunction that requested a permanent injunction, enjoining Smith from further milling on his property. The complaint contained a second cause of action for civil penalties, code enforcement costs, and attorney fees pursuant to County Code section 1.12.070. That same day, the court granted the County’s request for a temporary restraining order and issued an order to show cause for a preliminary injunction, ordering Smith to appear for a hearing on February 10, 2006.
Smith filed “opposition” to the complaint, arguing that the court lacked jurisdiction over the matter since the same issue was pending in the Court of Appeal in case no. H028968. Smith argued the County could not state a cause of action against him because the County does not have a general plan, since the trial court had declared the housing element in the County’s existing general plan void in Saldana v. County of Santa Cruz, Santa Cruz County Superior Court case no. CV149432, which was also on appeal. He argued the County’s application to “retry” this case violates the rules of court and that the County’s attempt to prosecute a void zoning ordinance was a violation of his civil rights.
The trial court in Saldana found that County Board of Supervisors Resolution 9-2005, adopting a new housing element for the general plan, was void because it contained substantial modifications that had not been referred to the Planning Commission for review or public comment. In an unpublished opinion, we dismissed the appeal in Saldana because the order appealed from was a non-appealable interlocutory order. (See case no. H028899.)
On February 10, 2006, the court issued an order after hearing, granting the County’s request for a preliminary injunction. Smith answered the complaint on February 28, 2006.
The case was tried before the court on January 30, 2007. At the beginning of trial, Smith told the court the milling had ceased “long ago,” before the restraining order had issued, and stipulated to the issuance of the permanent injunction. He also told the court he had paid the $897.90 in code enforcement costs that had previously been imposed by the county hearing officer. But Smith disputed the County’s entitlement to additional code enforcement costs, civil penalties, and attorney fees. The case went to trial on those issues. Smith also asserted that he had a right to a jury trial. (Smith had demanded a jury trial in his case management statement.)
After trial, the court issued an order granting the County’s request for a permanent injunction. The court held that Smith was not entitled to a jury trial because the case was in equity. It also found that Smith had knowingly and willingly caused and continued the violations. The court awarded the County $343.10 in code enforcement costs, $4,471.25 in attorney fees, and a $2,000 civil penalty. Smith appeals.
Discussion
I. Code Enforcement Costs
Smith challenges the court’s order awarding the County $343.10 in code enforcement costs, which represented the value of Nieuwstad’s time from the posting of the second notice of violation through trial. Citing People v. Minor (2002) 96 Cal.App.4th 29 (Minor), Smith argues that the general civil law does not authorize counties to recover the cost of law enforcement absent authorizing legislation and that no statute authorizes the recovery of such costs in the situation presented here. The County asserts this case is distinguishable from Minor because Minor involved the assessment of enforcement costs in a criminal action whereas this is a civil action. It also asserts that Government Code section 25845, subdivision (b) authorizes the recovery of enforcement costs in this case.
All further statutory references are to the Government Code, unless otherwise stated.
Minor was a criminal action. The defendant in Minor was convicted of infractions of the San Bernardino County Code for accumulating trash on his property, using a storage unit as a residence, and maintaining a hog farm without a conditional use permit. The trial court entered orders requiring the defendant to bring his property into compliance and ordered him to repay the costs of investigating, analyzing, and prosecuting the criminal action (hereafter enforcement costs). (Minor, supra, 96 Cal.App.4th at p. 32.) The Court of Appeal affirmed the judgment of conviction, but held that the trial court erred in ordering the defendant to pay enforcement costs.
The issue in Minor was whether the county could impose recovery of administrative enforcement costs as a criminal penalty. (Minor, supra, 96 Cal.App.4th at pp. 33-34.) The court began by observing that “[a]s a general rule, ‘a government entity may not … recover the costs of law enforcement absent authorizing legislation…. Under the general law, the expense of capture, detention, and prosecution of persons charged with crime is to be borne by the county.’ ” (Id. at p. 34.) The court held that section 25132 and Penal Code section 19, read together, create a default classification of misdemeanors for code violations, authorize counties to classify the violations as infractions if they so choose, and set the respective punishments for both infractions and misdemeanor code violations. The court held that these general laws control criminal penalties in the absence of other legislation authorizing a local entity to fix additional penalties. It concluded that section 36901 explicitly authorizes cities to set the penalties for violations of penal ordinances, but there is no statute conferring such power on counties. (Id. at pp. 38-39.) The court held that “counties – unlike cities – do not presently have the power to ‘fix’ fines, penalties and forfeitures for criminal violations of their ordinances, but are relegated to the fines and penalties set by general statutes, except where the Legislature has expressly bestowed upon the counties the power to impose additional penalties.” (Id. at p. 42.)
Section 25132 provides: “(a) Violation of a county ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a county ordinance may be prosecuted by county authorities in the name of the people of the State of California, or redressed by civil action. (b) Every violation determined to be an infraction is punishable by (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year.” The text of section 25132, subdivision (a), was amended after Minor was decided, without any substantive change. (Historical and Statutory Notes, 33E West’s Ann. Gov. Code (2007 Supp.) foll. § 25132, p. 15.)
Penal Code section 19 reads: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
This case is distinguishable from Minor, since it does not involve the imposition of criminal penalties. Moreover, applying the general analysis set forth in Minor, we conclude the trial court did have the power to impose enforcement costs in this case, based on the statutory authority set forth in section 25845, subdivision (b), which provides: “In any action to abate a nuisance, whether by administrative proceedings, judicial proceedings, or summary abatement, the owner of the parcel upon which the nuisance is found to exist shall be liable for all costs of abatement incurred by the county, including, but not limited to, administrative costs, and any and all costs incurred in the physical abatement of the nuisance. Recovery of costs pursuant to this section shall be in addition to and shall not limit any prevailing party’s right to recover costs pursuant to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law.” (Italics added.) The County’s first cause of action in this civil action was an action for “abatement of nuisance by injunction.” Thus, unlike the situation presented in Minor, a statute specifically authorizes the County to recover its administrative enforcement costs in this civil proceeding. We therefore conclude the trial court did not err when it awarded the County $343.10 in enforcement costs.
II. Civil Penalty
Smith contends the judgment awarding a $2,000 civil penalty should be reversed because the trial court did not have the authority to impose the penalty because such penalties can only be assessed by a hearing officer under section 53069.4.
Section 53069.4 provides in relevant part: “(a)(1) The legislative body of a local agency, as the term ‘local agency’ is defined in Section 54951, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in subdivision (b) of Section 25132 and subdivision (b) of Section 36900.”
The definition of a “local agency” in section 54951 includes a county.
Smith acknowledges that the County has adopted an administrative structure by ordinance by which it may assess civil penalties pursuant to section 53069.4. He contends the County erred when it chose not to prosecute its request for a civil penalty in that venue and that only a hearing officer, and not a court, may assess the penalties authorized by section 53069.4.
Smith’s contention is without merit. Section 25132 expressly grants counties the option to prosecute ordinance violations by civil action. It provides: “The violation of a county ordinance may be prosecuted by county authorities in the name of the people of the State of California, or redressed by civil action.” (§ 25132, subd. (a).) Section 25845 authorizes a county to enact local enforcement ordinances establishing procedures to abate public nuisances. Pursuant to County Code section 1.12.050, any violation of the County Code “shall be deemed a public nuisance and may be abated as such.” County Code section 19.01.030 sets forth alternative procedures for the enforcement of county land use regulations. It provides in subdivision (a) that “[a]ny violation of a land use regulations [sic] shall be enforced through one or more of” several enumerated remedies. The enumerated remedies include a criminal prosecution (County Code § 19.01.030, subd. (a)(3)); an administrative hearing pursuant to County Code Section 1.12.070, “including the recovery of civil penalties and enforcement costs,” (County Code § 19.01.030, subd. (a)(4); and a “[c]ivil action for injunction, civil penalties, or other appropriate remedies” (County Code § 19.01.030, subd. (a)(5)).
Since both state statutes and the County Code provide for alternative remedies, which include a civil action and the imposition of civil penalties in a civil action, we conclude the trial court had the power to impose the civil penalty at issue here.
III. Attorney Fees
Smith contends the County is not entitled to attorney fees because the County did not comply with the procedure set forth in California Rules of Court, rule 3.1702(b)(1), which requires a motion for attorney fees to be filed after the trial court renders judgment. The County argues that Smith has forfeited this contention by failing to object on this basis in the trial court.
In this case, the County presented evidence regarding the value of its attorney fee claim at trial, rather than in a post-trial motion. Smith did not object to the introduction of evidence related to the County’s claim for attorney fees at trial. Generally, an appellate court will not reverse for procedural defects or erroneous rulings that could have been but were not challenged below. (Doers v. Golden Gate Bridge, Highway & Transportation Dist. (1979) 23 Cal.3d 180, 184-185, fn.1.) We therefore conclude Smith has forfeited any claim of error related to the attorney fees award.
Even if we were to review this contention on the merits, we would conclude that the purported rule violation was not prejudicial. Rule 3.1702 sets time limits for claiming attorney fees, with separate time limits for fees incurred “up to and including the rendition of judgment in the trial court” and fees incurred “on appeal.” (Cal. Rules of Court, rule 3.1702 (b)(1), (c)(1).) It provides that the parties may extend the time for filing a motion for attorney fees by stipulation and that the court may extend the time for filing the motion for “good cause.” (Cal. Rules of Court, rule 3.1702(b)(2), (c)(2), (d).) The County sought recovery of attorney fees at trial as an element of its damages pursuant to section 1.12.070, subdivision (C) of the County Code. The County did not violate any of the limitations periods set forth in rule 3.1702. If anything, its claim for attorney fees was premature. In addition, Smith does not claim he was misled or prejudiced by the County’s presentation of its attorney fee claim as part of its damages. For these reasons, we reject Smith’s claims of error related to the award of attorney fees.
County Code section 1.12.070, subdivision (C) provides: “A person violating any provisions of this code which would otherwise be a misdemeanor shall be liable to pay the county’s total cost of enforcement, including charges for reasonable attorney fees.”
IV. Right to Jury Trial
Smith contends the trial court erred when it denied his request for a jury trial. In ruling on Smith’s request, the trial court observed that the complaint was “for temporary restraining order, preliminary injunction, permanent injunction, civil penalties, costs, and attorneys fees.” The Court held, “given the manner in which the Complaint is framed, it’s an action in equity by which the County seeks civil penalties and costs flowing from its efforts to obtain the preliminary injunction and the permanent injunction and therefore it is not a complaint for money damages. And so Mr. Smith … does not have a right to jury trial.”
The right to a jury trial is guaranteed by our State Constitution. (Cal. Const., art. I, § 16.) “[T]he right so guaranteed, however, is the right as it existed at common law in 1850, when the Constitution was first adopted, …. [Citations.] As a general proposition, ‘[T]he jury trial is a matter of right in a civil action at law, but not in equity.’ [Citations.] [¶] … ‘ “If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case — the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.” ’ [Citation.] On the other hand, if the action is essentially one in equity and the relief sought ‘depends upon the application of equitable doctrines,’ the parties are not entitled to a jury trial. (E.g., Hartman v. Burford (1966) 242 Cal.App.2d 268, 270 … [enforcement of promise to make a will]; Tibbitts v. Fife (1958) 162 Cal.App.2d 568, 572 … [establishment of constructive trust].) Although [our State Supreme Court has] said that ‘the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded’ [citation], the prayer for relief in a particular case is not conclusive [citations]. Thus, ‘The fact that damages is one of a full range of possible remedies does not guarantee ... the right to a jury....’ ” (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8-9.)
The essence of an action to abate a nuisance and for injunctive relief is equitable. Consequently there is no right to a jury trial. (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1245.) In Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353 (Wolford) the gist of the complaint was to abate a public and private nuisance and for injunctive and declaratory relief. In concluding the plaintiffs were not entitled to a jury trial, the court stated, “the bulk of the relief sought here, under both the nuisance and easement claims, was equitable. In addition to the prayer for abatement, the Wolfords requested that the Thomases be enjoined from maintaining the penthouse addition and that the City of San Francisco be authorized to demolish it if the Thomases did not. Also, the Wolfords prayed for a declaration that they possessed an easement for air, light, heat, ventilation and view over the Thomases’ roof. The fact that the Wolfords’ complaint also sought ‘damages according to proof’ does not convert this essentially equitable action into a legal one.” (Id. at pp. 353-354.) The court observed that it was infeasible to sever the legal claim from the equitable claims and that the damage claims were incidental to the equitable claims. (Id. at p. 354.)
A similar analysis applies here. The gravamen of the County’s complaint was its request for abatement and injunctive relief. It requested a temporary restraining order and a preliminary injunction. The parties went to trial on the County’s request for a permanent injunction. The County’s requests for civil penalties, enforcement costs and attorney fees were all incidental to its efforts to enjoin Smith’s milling activity. There were no claims for damages that did not arise out of the County’s efforts to abate Smith’s illegal use of his property. The fact that Smith ultimately stipulated to the permanent injunction does not convert this equitable action into an action for damages at law. For these reasons, we conclude the trial court did not err when it held that the action was equitable in nature and denied Smith’s request for a jury trial.
Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.