Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. BC355115. Elizabeth A. Grimes and John A. Kronstadt, Judges.
Ernster Law Offices, John H. Ernster, Phil J. Montoya, Jr.; Manatt, Phelps & Phillips, Michael M. Berger for Plaintiffs and Appellants.
Cihigoyenetche, Grossberg & Clouse, Scott J. Grossberg, Raymond M. Mistica, Joseph E. Brick; Pollak, Vida & Fisher, Daniel P. Barer for Defendants and Respondents.
BOREN, P.J.
Plaintiffs Michael and Maria Greenberg (the Greenbergs) own a residence on approximately four acres in defendant City of La Canada Flintridge (the City). The Greenbergs repaired and improved a wall around their property, but did so without a permit, with some structures that exceeded the municipal code’s height limits, and in disregard of stop-work notices by the City. They also maintained the wall despite criminal prosecution and in defiance of the terms of probation, which required remediation of the wall.
The Greenbergs deny the City’s characterization of them as disrespectful, serial lawbreakers; they portray the City as engaging in harassment and malicious conduct. The Greenbergs sued the City and its Director of Community Development (codefendant Robert Stanley) after their misdemeanor prosecution and the denial of their postconstruction approval requests. They asserted causes of action for violations of the federal and state constitutional rights to equal protection, due process, and privacy, as well as violations of the federal civil rights act (42 U.S.C. § 1983, hereinafter, section 1983), the Brown Act (Gov. Code, § 54950 et seq.), inverse condemnation, illegal exercise of police powers, and disparate treatment.
On appeal, the Greenbergs have not framed any discretely defined contentions regarding the causes of action for alleged inverse condemnation, invasion of privacy, and violation of the Brown Act, nor for the purported causes of action labeled “disparate treatment” and “illegal exercise of police powers.” Thus, they have waived any complaints regarding the dismissal of those causes of action by summary judgment. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114; see Cal. Rules of Court, rule 8.204(a)(1)(B).) We also note that the notion of disparate treatment is subsumed in other causes of action addressed by the Greenbergs and is discussed hereinafter.
We find no prejudicial error as to the trial court’s evidentiary rulings and affirm its grant of summary judgment in favor of the City. However, we reverse and vacate the award of approximately $104,000 in attorney fees (pursuant to 42 U.S.C. § 1988, hereinafter, section 1988) to the City.
FACTUAL AND PROCEDURAL SUMMARY
The Greenbergs purchased residential property at 245 Berkshire Avenue in the City in May of 2003. According to Mr. Greenberg, a senior building inspector for the City advised him that he did not need a permit for a fence less than six feet in height. Soon after purchasing the property, the Greenbergs began construction on a wall and pilasters in front and on the sides of the property. They commenced construction without a permit.
The City received complaints from the Greenbergs’ neighbors about construction activities. In response to the complaints, on May 20, 2003, a planning aide for the City, Naoki Shimazu, inspected the property. He discovered an excavation trail one foot wide and two feet deep that ran continuously around the property and within the front and side setbacks. Shimazu reviewed City records and discovered that no permits or approvals had been obtained for the excavation. He wrote to the Greenbergs and asked them to contact the City.
Several weeks later, Shimazu conducted a follow-up inspection. He observed that a wall of concrete and brick blocks was being built along the excavation line, within the front and side setbacks. Pursuant to the City’s Municipal Code, the maximum allowable height for front walls was three feet six inches and for side walls was six feet. Pursuant to the County of Los Angeles Building Code, the bulk of which the City adopted as its Building Code, sections 106.1 and 106.2 forbid constructing, owning, and using structures or portions thereof without first obtaining a permit for the construction, although section 106.3(2) exempts from the permit requirement fences less than six feet high. Shimazu measured the Greenbergs’ wall from the public right of way and determined that is was approximately seven feet six inches high, which exceeded the maximum allowable height.
Section 11.11.050(F)(1)(a) of the City’s Municipal Code, as in effect in 2003, set forth the following height limits for fences and walls around a residence: “Fences or freestanding walls built within required setbacks shall be limited to three feet six inches in height within the required front setback, and to six feet within the required rear setback and within the required side yard setbacks (outside of the required front yard setback).”
As indicated by photographs in the record on appeal, a descending grade slopes a considerable distance down from the side of the street to the front wall on the Greenbergs’ property. Regarding the measurement of the height of the walls at issue here, the City’s Municipal Code in effect in 2003 made no distinction between measuring the height of a wall on flat terrain or measuring one on sloped terrain. The City’s Municipal Code as subsequently revised, however, required measuring the height of a wall from the “adjacent grade on the street side” of the wall (but not from the higher street level, as the Greenbergs claim they were advised).
On June 24, 2003, the City building inspector, Ben Bartlett, issued a stop-work order, requiring the Greenbergs to immediately cease any construction activity on the wall. That same day, Shimazu sent a letter to the Greenbergs about the order. The letter quoted the previously noted Municipal Code section 11.11.050(F)(1)(a), and instructed the Greenbergs to either file a request for a setback modification by July 1, 2003, or agree to reduce the height of the wall to six feet and obtain a decorative fence permit.
The City was apparently willing to consider permitting a front wall higher than the maximum allowed height of three feet six inches, as long as it was no higher than six feet and a permit was obtained.
A week later, the Greenbergs filed with the City an application for a setback modification, to allow them to retain the wall at the excessive height. The application, signed by Mr. Greenberg and architect Christopher Cox, acknowledged that the front wall “partially” exceeded the height limit of six feet and included columns that were 11 feet high.
Meanwhile, the Greenbergs did not stop construction on the wall. On July 29, 2003, Shimazu again inspected the property. He observed that despite the stop-work order, the wall had been modified. From what Shimazu could see, it now appeared that the wall completely surrounded the property. Brick pilasters or columns, approximately 11 feet high, had been built at intervals along the wall. No permits or approvals had been issued for the construction of the pilasters.
On August 1, 2003, Shimazu sent a second letter to the Greenbergs, advising them that a site inspection revealed that the wall had been modified since the order to stop work had been issued. Shimazu warned the Greenbergs, “If the City observes any construction work for the wall from now on, the City will immediately refer this case to the City Prosecutor’s office for further enforcement actions.” The letter also noted that “it came to the City’s attention” that some construction debris had been dumped into a small stream on the property (referred to as the Blue Line Stream, due to its appearance on a topographical map), and that the City therefore contacted the Department of Fish and Game to determine if any corrective action must be taken.
Despite this second letter from Shimazu to the Greenbergs, construction on the wall continued. On November 3 and 13, 2003, Shimazu again inspected the property. On both occasions, he observed construction debris, such as demolished concrete piled about and some debris dumped on the bank of the small stream and in the streambed. Additionally, some grading work had been done on the property.
On November 14, 2003, an assistant prosecutor for the City had a notice of intent to prosecute personally served on the Greenbergs. The letter notified the Greenbergs that their improvements and modifications to the block wall erected at the front setback, without approvals or a permit, were in clear disregard of the June 24, 2003, order to stop work, and that such improvements and modifications “must cease immediately.” In the letter, the assistant prosecutor for the City also warned the Greenbergs that the City would file a misdemeanor complaint against them unless they immediately stopped all unpermitted construction and alterations at their property. The letter further advised the Greenbergs that they must thereafter comply with all City laws regarding approval and permit requirements, including any order to remove or modify the wall if their request for a variance is unsuccessful.
On November 24, 2003, as well as approximately a week later, Shimazu again inspected the property. From a vantage point outside the property, he observed that the wall had again been modified. Stucco was applied to the exterior of the wall, the wall was painted, a wrought iron gate was added, and more of the property was graded.
The City’s Planning Commission staff prepared a report on the Greenbergs’ modification request for the November 25, 2003, meeting of the Planning Commission. The report included a detailed description of the property and photographs of the wall. The report noted that the wall included two pilasters approximately 11 feet tall and two driveway gates approximately 10 feet high. The report recommended denying the Greenbergs’ request for a modification, which would have allowed them to exceed the three-foot six-inch height limit allowed by code and the six-foot height limit allowed as a decorative fence with approval.
The report found that the Greenbergs’ project was not consistent with wall and fence structures on other properties in the immediate area, and thus that the request would constitute the grant of a special privilege inconsistent with other properties in the area. The report further found that strictly applying the code’s height standards would not result in practical difficulties or unnecessary hardships because a six-foot structure, rather than an 11-foot structure, would provide adequate entry definition and buffering from the street. Also, because the existing structures were constructed without permits and proper inspections, they could pose a safety risk to the public.
The Greenbergs did not attend the November 25, 2003, meeting of the Planning Commission. However, their landscape architect, Cox, attended and argued for the modification. Cox argued that the property’s layout and elevation relative to the street justified the height of the walls, gate, and pilasters. An assistant planner for the City informed the commissioners that two orders for the Greenbergs to stop work had gone unheeded, and that work had continued to completion without permits. After lengthy discussion, on November 25, the commissioners adopted a resolution denying the Greenbergs’ request to permit entry gates, pilasters, and walls within the yard setback that exceed the maximum height allowed.
The Greenbergs attempted to file an appeal from the Planning Commission’s denial of the requested variance. However, the required fee for an appeal to the City Council was not timely submitted, and their appeal could not be processed.
On December 5, 2003, Shimazu observed further modifications on the wall at the Greenbergs’ property. On February 12, 2004, Shimazu again inspected the property and observed that the wall had been modified by the installation of new lighting fixtures on the wall’s pilasters. No electrical permits had been obtained for this work.
On May 4, 2004, the City prosecutor sent the Greenbergs a letter requesting access to their property for an inspection and advising them that if they did not consent to access, he would seek a warrant to inspect the property. On June 6, 2004, Shimazu inspected the property from an adjacent horse trail. He observed that windows and stucco had been installed on the rear wall of the property, and that the work had been done without permits. On July 27, 2004, the City obtained an inspection warrant, signed by a superior court judge, permitting City personnel and deputy sheriffs to enter and inspect the front, side, and rear yard areas “and the surrounding areas” of the Greenbergs’ property to inspect, measure, and photograph the wall, pilasters, and wrought iron gates for possible code violations.
As indicated by the return on the inspection warrant that was filed with the superior court, on August 6, 2004, while the Greenbergs were present, City personnel and two deputy sheriffs conducted an inspection of the property pursuant to the warrant. They observed unpermitted walls and several other conditions, and Shimazu noted his observations and measurements in the return on the inspection warrant.
In December of 2004, the City filed a misdemeanor complaint against the Greenbergs. Their arraignment was continued for several months. Prior to arraignment, the City prosecutor wrote to the Greenbergs’ counsel and offered “a postponement of the criminal proceedings (which could become permanent)” while the Greenbergs attempted administratively “to retroactively legalize” the walls and gates. Arraignment on the complaint was postponed to July 26, 2005.
Meanwhile, the Greenbergs filed a second request for a modification. At a May 24, 2005, meeting of the City’s Planning Commission, the Greenbergs requested that the City allow their over-height walls, pilasters, and driveway gates. The Planning Commission’s staff believed that code-compliant walls and gates would achieve the Greenbergs’ goals of privacy and security and that the unauthorized excessive height could not be justified.
The Planning Commission members extensively discussed and debated the matter and ultimately approved the modification request, but with certain conditions. On June 14, 2005, the Planning Commission passed a resolution approving the modification, subject to the condition that the Greenbergs file a new decorative fence application with the Planning Department and reduce the height of the front gate and wall to a maximum of six feet.
The Greenbergs appealed to the City Council and argued that the condition imposed should be removed because the gate and wall heights were consistent with adjoining properties, and were reasonable as security and sound barrier measures. In September of 2005, the City Council met and discussed the Greenbergs’ appeal. After extensive discussions, on September 19, 2005, the City Council adopted a resolution upholding the Planning Commission’s decision and thereafter sent notice of its decision.
Meanwhile, on November 7, 2005, Mr. Greenberg pled no contest to three misdemeanor counts, including maintaining the unpermitted and over-height gates, walls, and pilasters on the property. As a result of his plea agreement, Mr. Greenberg received a suspended sentence and 36 months of probation. He agreed, inter alia, that within 180 days of the plea agreement he would either remove the gate, wall, and pilasters in the front yard setback on the property and the electrical wiring therein and pass a City compliance inspection, or obtain all requisite City approvals, permits, and inspections to legalize the front wall and its electrical wiring. Moreover, the 180-day period would be tolled while any timely writ petition challenging the City Council’s resolution was pending.
Pursuant to Penal Code section 1016, neither the plea of nolo contendere nor any admissions made during the plea to a misdemeanor may be “used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” In the present case, we recite the facts of Mr. Greenberg’s plea not to establish an admission of wrongdoing, but as part of the background and procedural facts in this saga.
In December of 2005, the Greenbergs petitioned the superior court for a writ of administrative mandamus, challenging the City Council’s September 19, 2005, resolution. However, the superior court sustained the City’s demurrer to the petition on the ground that service was untimely, and we affirmed the judgment dismissing the petition. (Greenberg v. City of LaCanada Flintridge (Aug. 15, 2007, B191661) [nonpub. opn].)
While the resolution of the writ petition was pending, on March 24, 2006, the City moved the superior court to revoke Mr. Greenberg’s probation, based on his failure to timely satisfy another condition of probation. His terms of probation also required Mr. Greenberg to satisfy by January 31, 2006, other requirements related to deficiencies not involving the front gate, wall, and pilasters (e.g., deficiencies regarding structures at the side and rear yards, the windows, and electrical and gas system upgrades). Probation was not revoked. Nonetheless, on April 21, 2006, Mr. Greenberg admitted he had violated probation by failing to abate those conditions by January 31, 2006, and sentencing was continued to June 9, 2006, to afford him time to abate the violations and thus to have the fine imposed reduced.
By June 9, 2006, many of the conditions covered by January 31, 2006, deadline had in fact been abated-though the Greenbergs still had not obtained permits for the wall on the side of the property. The City unsuccessfully moved to revoke probation.
After our previously noted August 15, 2007, opinion affirming the dismissal of the Greenbergs’ petition for a writ of mandate became final, the 180-day period for remediating issues regarding the front wall was no longer tolled under the terms of Mr. Greenberg’s probation. In a declaration signed on September 23, 2008, in support of his complaint in the present case, Mr. Greenberg proclaimed that he would not take down the wall at his property “until all my remedies are exhausted, and I am compelled to do so.”
Following this appeal, Mr. Greenberg may soon be compelled to do so.
DISCUSSION
I. The standards of review.
We review the record and the trial court’s grant of summary judgment de novo. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) An appellate court considers all the evidence set forth in the moving and opposition papers, except evidence to which objections were properly made and sustained. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) If the order granting summary judgment is correct on any ground, regardless of the trial court’s reasoning, the judgment of dismissal must be affirmed. (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.) Factual disputes that are immaterial will not defeat summary judgment. (Bartlett v. State of California (1988) 199 Cal.App.3d 392, 397.)
Regarding the trial court’s ruling on evidentiary objections in the context of summary judgment, we generally review evidentiary issues for abuse of discretion. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) Similarly, abuse of discretion is the standard for appellate review of the grant of defense attorney fees under section 1988. (Pyne v. Meese (1985) 172 Cal.App.3d 392, 408.)
II. No reversible or prejudicial error as to the trial court’s evidentiary rulings.
The Greenbergs contend that the trial court prejudicially erred in several of its evidentiary rulings and thus unfairly handicapped them in presenting their case. In reviewing the Greenbergs’ various evidentiary complaints, we note that if any objection raised was proper, the other objections raised are of no consequence, even if the trial court relied on one of the other objections. (Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.) “If the exclusion [of evidence] is proper upon any theory of law applicable to the... case, the exclusion must be sustained.” (Ibid.) Also, even the improper exclusion of evidence will not warrant a reversal of the judgment unless the ruling complained of “resulted in a miscarriage of justice.” (Evid. Code, § 354; see Cal. Const., art. VI, § 13.)
Mr. Greenberg’s pre-construction conversation with Mr. Bartlett.
The Greenbergs complain principally about the trial court’s ruling sustaining the objection to that portion of Mr. Greenberg’s declaration in which he related a conversation in early 2003 with Ben Bartlett of City’s Planning Department. According to Mr. Greenberg, Bartlett told him that he did not need any permits to construct a fence six feet high on his property, as long as it was not in the public right of way. The City objected on the grounds of hearsay, lack of foundation, irrelevance, and improper lay opinion. The trial court sustained the objection without specifying the grounds.
The Greenbergs assert that what Bartlett stated was relevant because it “set the stage for the entire sequence of events that led up to this litigation, ” establishing Mr. Greenberg’s belief that the notices from the City to stop work were erroneous, and that he had done nothing wrong in his dealings with the City. First, the statement by Bartlett that no permit would be needed for a wall under six feet in height was irrelevant because the wall, gate, and pilasters are indisputably higher than six feet in height. That portion of Mr. Greenberg’s declaration thus was not relevant and was properly excluded. (Evid. Code, §§ 210, 350.)
Second, the record contains the minutes of the Planning Commission meeting of May 24, 2005, wherein Mr. Greenberg made essentially the same assertion concerning Bartlett’s statement to him, proclaiming that the senior building inspector had advised him that he did not need a permit for a fence (i.e., a wall) less than six feet high. Thus, even if the trial court had erred in precluding that portion of Mr. Greenberg’s declaration, the same evidence was revealed in another exhibit. Any error thus could not have been prejudicial. (Evid. Code, § 354; see Cal. Const., art. VI, § 13.)
Mr. Greenberg’s speculation about the visibility of his side yards from a public right of way was irrelevant.
The Greenbergs also contend that the trial court erred in sustaining an objection to that portion of Mr. Greenberg’s declaration in which he asserted that his side yards were not visible from the street “to the extent described by Shimazu in his Declaration attached to the City’s Inspection Warrant, ” and that Shimazu must therefore have entered onto his property. Because no independent Fourth Amendment claim is raised, the evidence complained of is irrelevant. (Evid. Code, §§ 210, 350.) An immaterial factual conflict will not defeat summary judgment. (Bartlett v. State of California, supra, 199 Cal.App.3d at p. 397.)
Also, Mr. Greenberg’s surmise about where Shimazu stood lacked personal knowledge and foundation. (Evid. Code, §§ 403, 702.) Mr. Greenberg may have been aware of the terrain on his property, but he was not present when Shimazu inspected. He simply lacked sufficient information about the details of Shimazu’s observations. Shimazu, for example, may have used visual aids (such as a ladder, etc.), or observed from other than the public right of way. In fact, Shimazu revealed in his declaration in support of the inspection warrant that his observations were made not only from a public right of way, but also “from adjacent properties, with the consent of the owners.” Thus, Shimazu’s declaration itself completely undermined Mr. Greenberg’s speculation of supposed improper entry on his property.
Other evidentiary complaints.
The Greenbergs also complain about excluding from Mr. Greenberg’s declaration that portion in which he declares the date on which construction was completed. The Greenbergs fail to explain how any different date was in any way relevant, and how it could have affected the outcome of the summary judgment motion. An irrelevant and immaterial factual dispute, as previously noted, is insufficient to defeat summary judgment.
Nor is there any merit to the complaint that the court erred in precluding that portion of Mr. Greenberg’s declaration in which he stated that the Department of Fish and Game eventually concluded that his construction in the stream (which the City had reported to the State as apparent dumping of debris) “had not adversely affected the stream.” However, the trial court did not preclude the actual letter from the Department of Fish and Game, which revealed as follows: that Mr. Greenberg had conducted “unauthorized work” in the stream bed without a permit, in violation of law and the Department’s policy, but because the work would have been authorized if permission had been sought, the Department decided to close the file on the matter. Since the letter reveals that the Greenbergs indeed committed misconduct at the stream (though it was excused), there were no false charges for Mr. Greenberg to refute. Also, no prejudice could have ensued from the exclusion of Mr. Greenberg’s statement about the letter, because the letter itself was admitted. (Evid. Code, § 354; see Cal. Const., art. VI, § 13.)
Finally, equally unavailing is the assertion that the trial court erred in excluding that portion of Mr. Greenberg’s declaration in which he indicated that his modification application was pending when the City prosecutor wrote to him about his violation of the law. That statement by Mr. Greenberg merely reiterated what the documentary evidence (i.e., the letter and the hearing notice) already established, and was thus cumulative and of no consequence to the outcome of the summary judgment motion.
III. There are no viable equal protection, due process, or section 1983 claims.
A. No viable equal protection claim under the federal Constitution (first cause of action) or the state Constitution (second cause of action).
Both the federal equal protection clause (U.S. Const., 14th Amend.) and its California counterpart (Cal. Const., art. I, § 7, subd. (a)) require that persons similarly situated with respect to the legitimate purpose of a law must be treated alike under the law. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439; Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 857 (Las Lomas).) The constitutional right to equal protection applies not only to groups, but to individuals who constitute a “‘class of one’” (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564), if the individual “has been intentionally treated differently from others similarly situated and... there is no rational basis for the difference in treatment.” (Ibid.)
To prove a class of one claim under the federal or state Constitution, a plaintiff must establish that the treatment complained of was different from the treatment of others similarly situated, that the unequal treatment was intentional, and that the unequal treatment was not rationally related to a legitimate governmental purpose. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1174.) A city may not, for example, arbitrarily and irrationally extract a more onerous easement from one landowner than from others as a condition for providing a requested municipal service. (Village of Willowbrook v. Olech, supra, 528 U.S. at pp. 563-564.) “It is well established that a city may not enforce its zoning and land use regulations arbitrarily.” (Armendariz v. Penman (9th Cir. 1996) 75 F.3d 1311, 1327.)
When a defendant moves for summary judgment in a class of one claim, the plaintiff bears the burden of raising an issue of fact, by showing that similarly situated owners were treated differently. (Cordi-Allen v. Conlon (1st Cir. 2007) 494 F.3d 245, 251.) To carry the burden of proving “substantial similarity, ” the plaintiff must show an extremely high degree of similarity with the individual to whom the comparison is made. (Id. at p. 251.) This is a “‘very significant burden.’” (Ibid.) The plaintiff must submit sufficient proof on the relevant aspects of the comparison to warrant a reasonable inference of “substantial similarity.” (Ibid.)
The persons compared must be “‘similarly situated’” for the purposes of the law challenged. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) The plaintiff must show that the persons compared engaged in the same activity vis-à-vis the government entity that the plaintiff engaged in, without any distinguishing or mitigating circumstances that would render the comparison useless. (Cordi-Allen v. Conlon, supra, 494 F.3d at p. 251.) A city may treat different projects in a disparate fashion without raising constitutional concerns. (Ibid.) The disparate treatment may be based on different factual traits, circumstantial nuances, and peculiarities that set the projects apart. (Id. at pp. 251, 252.)
Thus, for example, different treatment may be warranted when there are different degrees of nonconformity with zoning rules, when a project involves a new use versus an expanded existing use, when there is a difference in environments, and when there is a passage of time between projects. (Id. at pp. 252-253.) A city’s discretionary approval of a construction request ordinarily involves “numerous public policy considerations and the exercise of discretion based on a subjective, individualized determination.” (Las Lomas, supra, 177 Cal.App.4th at p. 860.) Thus, successfully establishing the lack of any rational basis by the city may be an “insurmountable” burden. (Id. at p. 859.)
In the present case, contrary to their contention, the Greenbergs failed to show the court sufficient evidence to establish an equal protection violation and to avoid summary judgment. The several comparative examples cited, to purportedly establish unconstitutionally disparate treatment, are not compelling.
The Sardos
First, the Greenbergs point to the situation involving Louis and Jeanie Sardo. Both the Greenbergs and the Sardos received notices from Shimazu stating that their walls and pilasters did not conform to the law, and that they should either reduce the height of the structures, or apply for a setback modification subject to Planning Commission approval. However, as the trial court aptly stated: “[T]here is no evidence that the Sardos, once informed that they were in violation of the applicable zoning ordinance regarding wall height, violated any stop-work orders or persisted, despite denial of a zoning variance, to construct or modify the offending wall. In fact, [the Greenbergs’] own evidence shows that the Sardos, once informed of the violation, applied for a variance, appealed the denial of that variance, and eventually secured an approval from the Planning Commission. As a result, the evidence regarding the Sardos does not create a triable issue of fact as to dissimilar treatment.”
Moreover, the Greenbergs’ assertion that the Sardos’ appeal to the City Council was granted even though it was 46 days late is simply not borne out by the record. Within 15 days of the Planning Commission’s resolution, the Sardos appealed in a timely fashion. Mr. Sardo signed the notice of appeal and paid the filing fee. The City Council then approved the Sardos’ modification request, subject to conditions. But, the Greenbergs failed to present any evidence of the City Council’s reasons for approving the application, or of the conditions the City Council required. Accordingly, the Greenbergs failed to show that the Sardos were situated similarly to them in regard to the law.
Robert Grossman
The Greenbergs did not contend that Grossman obtained a permit under similar circumstances. They did not even present any evidence that Grossman’s appeal was ultimately successful. Rather, the Greenbergs complain that although both notices of appeal lacked the homeowner’s signature and a filing fee from the homeowner, the City treated Grossman’s defective appeal differently than it treated their defective appeal.
Grossman personally sent a typed letter to the City stating simply, “I would like to Appeal the decision made on May 8, 2001 by the Planning Commission.” The senior planner for the City advised Grossman that the City would “preserve your appeal request based on the unsigned letter, ” but that he had to provide his signature on an appeal letter, a statement regarding the nature of the appeal, a brief statement of reasons for the appeal, and a filing fee.
In contrast to the situation there, however, the Greenbergs did not personally submit an appeal letter at all. Instead, their landscape architect (Cox) attempted to file an appeal letter for them and to pay the filing fee for them. Significantly, there was no document from the Greenbergs, for example, granting the architect authority to act as an agent for them for the purposes of filing an appeal. Under the circumstances and in view of the traditional discretion accorded an administrative body, it was not unreasonable to deny a third party (who is not the attorney) the ability to file an appeal on behalf of someone else.
Angelo La Bruna
The Greenbergs complain that while their architect was not permitted to file an appeal and submit the required fee, Angelo La Bruna was treated differently by the City. La Bruna sought to build a Little League-type baseball practice field, and his attorney drafted an appeal letter and submitted the required fee for the appeal.
However, the Greenbergs did not offer any evidence of how the City responded to La Bruna’s appeal, or even if it allowed him to file through his attorney. In any event, filing such a notice of appeal and paying the filing fee through one’s attorney is obviously part of the practice of administrative law (see Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 69-70), and is quite different than having a third party architect perform such tasks. An attorney is traditionally permitted to file and sign a client’s notice of appeal. (See Cal. Rules of Court, rule 8.1(a)(1).)
In fact, an attorney who signs a notice of appeal is presumed to have the client’s authority to do so; this presumption prevails unless the appellant objects or there is a clear showing of lack of authority. (United States of Mexico v. Rask (1930) 109 Cal.App. 497, 500.) No such authority applies to a client’s architect. The Greenbergs’ comparison to the La Bruna situation is thus unavailing.
Thomas Jeffers
The Greenbergs assert that the most similar litigation involved Thomas Jeffers. The City filed a misdemeanor complaint against Jeffers for maintaining a wrought iron fence and gates that were too tall, although he had obtained permission for them from Caltrans and had cleared with the county road department the construction for the fence. The City’s Planning Commission noted that the fence might be encroaching on the right of way at a major street, possibly requiring an encroachment permit. Jeffers filed a complaint for damages and a restraining order, alleging violation of his “rights.” A settlement ensued, with the City agreeing that Jeffers could maintain his oversized fence.
However, the Greenbergs failed to show that the situation with Jeffers was sufficiently similar to theirs. The Jeffers case occurred approximately 25 years ago (the settlement was in 1986). Over the course of time, as the nature and development of a city evolves, its enforcement of zoning and building requirements may also evolve and change. The passage of time thus defeats the Greenbergs’ reliance on the Jeffers case as a completely parallel situation. Also, the Jeffers case involved different factors, including an “inter-agency” political situation between the state (Caltrans) and the City, as well as an encroachment issue. Thus, the Greenbergs’ reliance on the Jeffers situation is unpersuasive.
Accordingly, the Greenbergs failed to set forth sufficient evidence of disparate treatment to show an unconstitutional denial of equal protection. Moreover, the Greenbergs’ reliance on Valley Outdoor, Inc. v. City of Riverside (9th Cir. 2006) 446 F.3d 948, is misplaced. In that case, the municipal code required the city to process permits sought after construction began, and the city refused to do so, allegedly stalling until the passage of a new ordinance banning the project. (Id. at pp. 950-951, 954-955.) The allegation of stalling for improper purposes could easily state a class of one equal protection claim. (Id. at p. 955.)
In contrast, the situation here involves a discretionary approval typically entailing a “vast array of subjective, individualized assessments.” (Las Loma, supra, 177 Cal.App.4th at p. 859.) Nor is the present case one where the basis for a regulation is a malicious and arbitrary pretext (e.g., Lockary v. Kayfetz (9th Cir. 1990) 917 F.2d 1150, 1155-1156), or where there is evidence of disparate treatment premised on an impermissible animosity (see Squaw Valley Development Co. v. Goldberg (9th Cir. 2004) 375 F.3d 936, 948).
The Greenbergs have failed to set forth facts sufficient to establish disparate or invidious treatment or selective enforcement. Thus, they failed to implicate constitutionally protected equal protection concerns.
B. No viable due process claim under the federal Constitution (third cause of action) or the state Constitution (fourth cause of action).
Procedural due process requires “‘an opportunity... granted at a meaningful time and in a meaningful manner... for [a] hearing appropriate to the nature of the case.’” (Boddie v. Connecticut (1971) 401 U.S. 371, 378.) Substantive due process violations involve actions that are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” (Euclid v. Ambler Co. (1926) 272 U.S. 365, 395.) The Greenbergs have failed to set forth facts sufficient to show any violations of procedural or substantive due process.
Specifically, the Greenbergs assert a denial of procedural due process because their architect was not permitted an opportunity to appeal the Planning Commission’s 2003 denial of their application, and then Mr. Greenberg himself was not allowed to file a late notice of appeal. As previously discussed in the equal protection context, there was no impropriety or inexplicably disparate treatment of the Greenbergs in comparison to the treatment of others (i.e., the Sardos and Mr. Grossman).
Further, absent evidence of intentional discrimination-and there is no such evidence-mere laxity in enforcing procedural rules as to some people and not others does not violate due process. (Cilderman v. City of Los Angeles (1998) 67 Cal.App.4th 1466, 1471.) Apart from the City’s assertion that the Greenbergs have no cognizable property right in obtaining permission to maintain their wall and gate (see Las Lomas, supra, 177 Cal.App.4th at pp. 852-855; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1180-1184), the City’s enforcement of procedural rules did not deny them procedural due process.
Regarding the Greenbergs’ substantive due process claim, they contend that the City violated their rights by continuing to enforce its zoning laws against them after they applied for a modification, and thus the City purportedly harassed and intimidated them. However, only an “outrageous or egregious abuse of power of constitutional dimension” would violate substantive due process. (Las Lomas, supra, 177 Cal.App.4th at p. 857.) Only the most egregious misconduct that “shocks the conscience” and “violates the ‘decencies of civilized conduct’” would meet this standard. (County of Sacramento v. Lewis (1998) 523 U.S. 833, 846.)
In the present case, the City merely enforced its zoning ordinance to protect aesthetic concerns and public welfare, which is a proper exercise of its police power. (Landgate, Inc. v. California Coastal Com. (1998) 17 Cal.4th 1006, 1023.) Faced with the Greenbergs’ recalcitrance, the City acted properly in prosecuting to ensure enforcement. The City did not violate any substantive due process rights.
Finally, the Greenbergs argue that the City violated their due process rights through purportedly “invalid use of the search warrant.” “Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth.” (Conn v. Gabbert (1999) 526 U.S. 286, 293.) Apart from whether the City’s personnel properly inspected not only the Greenbergs’ yards but also their house because the warrant permitted inspection of “the surrounding areas” of the yards, the issue is not cognizable as a due process matter.
No viable section 1983 claim (eighth cause of action).
Section 1983 is a “‘species of tort liability’” (Heck v. Humphrey (1994) 512 U.S. 477, 483), which is enforceable in either federal or state court (Williams v. Horvath (1976) 16 Cal.3d 834, 837). To state a federal civil rights cause of action under section 1983, a plaintiff must plead and prove specific facts showing the defendant deprived the plaintiff of rights, privileges, or immunities secured by the federal Constitution and laws. (Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1360.)
As discussed above in the context of the Greenbergs’ equal protection and due process claims, they failed to show there was a material dispute as to any facts sufficient to demonstrate a violation of their constitutional rights. Therefore, their cause of action under section 1983 is without merit.
We note that in view of the above analysis, it is unnecessary to address whether (1) defendant Stanley is entitled to qualified immunity against section 1983 claims, and (2) Government Code provisions immunize Stanley and the City from all unwaived state law causes of action.
IV. The trial court erred in awarding attorney fees to the City under section 1988, because the action, although unavailing, was not frivolous, unreasonable, or groundless.
State courts have concurrent jurisdiction with federal courts not only to hear a civil rights claim under section 1983 (Williams v. Horvath, supra, 16 Cal.3d at p. 837), but also to hear a subsequent petition for an award of attorney fees under section 1988. (Maine v. Thiboutot (1980) 448 U.S. 1, 10-11; EWAP, Inc. v. City of Ontario (1986) 177 Cal.App.3d 1108, 1113.) California state courts equate section 1988 to its state law analogue (Code Civ. Proc., § 1021.5) and follow the federal rules regarding fee awards. (Serrano v. Unruh (1982) 32 Cal.3d 621, 638-639 & fns. 27-29; Coalition for Economic Survival v. Deukmejian (1985) 171 Cal.App.3d 954, 960-961.)
In a civil rights action under section 1983, the court has “discretion” to award reasonable attorney fees to the prevailing party. (42 U.S.C. § 1988(b).) Nonetheless, under section 1988, as interpreted by the United States Supreme Court, fees are routinely awarded to a prevailing plaintiff who obtains some significant measure of relief, but are not so readily available to a prevailing defendant. A prevailing civil rights defendant should be awarded attorney fees only where the plaintiff’s action is found to be “frivolous, unreasonable, or without foundation.” (Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421 (Christiansburg)[applying standard to prevailing defendant in Title VII case]; Hughes v. Rowe (1980) 449 U.S. 5, 14-16 [applying Christiansburg standard to a prevailing defendant under § 1988].)
Although attorney fees are routinely awarded to prevailing plaintiffs, there are “two strong equitable considerations” that “are wholly absent” when a defendant prevails. (Christiansburg, supra, 434 U.S. at 418.) First, “the plaintiff is the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority.’” (Ibid.) “Second, when a [trial] court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law.” (Ibid.)
Thus, “[t]he fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees” in favor of the defendant. (Hughes v. Rowe, supra, 449 U.S. at 14; see Coverdell v. Dept. of Social & Health Services (9th Cir.1987) 834 F.2d 758, 770.) To avoid chilling the initiation and prosecution of meritorious civil rights actions, fees cannot be awarded to a prevailing defendant unless the plaintiff’s action was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” (Christiansburg, supra, 434 U.S. at p. 422; see Hughes v. Rowe, supra, 449 U.S. at p. 14 [“The plaintiff’s action must be meritless in the sense that it is groundless or without foundation”].)
Furthermore, in applying this standard, courts must take care not to “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” (Christiansburg, supra, 434 U.S. at pp. 421-22.) The determination as to whether a claim was frivolous, unreasonable, or groundless requires an evaluation of the allegations and the proof in light of the controlling principles of substantive law. Thus, such a determination is ordinarily reviewed for abuse of discretion. And, if the trial court awards attorney fees to a prevailing defendant, it should make findings of fact and conclusions of law supporting its decision so that there is a basis for appellate review. (Cohn v. Papke (9th Cir.1981) 655 F.2d 191, 195, fn. 3; accord, Munson v. Friske (7th Cir.1985) 754 F.2d 683, 697; White v. South Park Independent School Dist. (5th Cir.1982) 693 F.2d 1163, 1170.)
In the present case, the trial court awarded the City and Stanley $103,893.30 of the $174,733.30 sought for attorney fees. The City and Stanley argued the correct legal standard in their motion for attorney fees, urging that the Greenbergs’ action was retaliatory and “brought in subjective bad faith, [and] was frivolous, unreasonable, and without foundation.” However, although the court (Hon. John A. Kronstadt) reviewed the extensive summary judgment ruling of the prior court (Hon. Elizabeth A. Grimes), it made no findings that the Greenbergs’ claims were frivolous, unreasonable, or groundless.
We reject the notion of relying on implied findings that the Greenbergs’ claims were frivolous, unreasonable, or groundless. This was not a situation where the court was silent regarding its findings or reasoning. Rather, after the motion for attorney fees clearly articulated the proper standard to apply, the court merely reiterated at some length the issues litigated and the rulings of the prior judge, essentially emphasizing the obvious fact that the Greenbergs did not prevail in their claims. Because of the absence of any finding that the claims were frivolous, unreasonable, or groundless, it is not apparent that the court properly exercised its discretion in deciding to award attorney fees. (Compare Pyne v. Meese, supra, 172 Cal.App.3d at p. 408 [no abuse of discretion in awarding attorney fees where the trial court specifically found that inclusion of certain parties was “frivolous”].)
Moreover, it appears from the thrust of the Greenbergs’ claims that they pursued this case because of multiple examples of wall and gate variances granted to other City residents and the rarity of criminal prosecution for violating the City’s ordinance. Although the Greenbergs argued that other residents were treated differently, as we previously discussed, the other situations cited were sufficiently distinguishable and did not result in disparate treatment of any constitutional magnitude. Hence, summary judgment was warranted.
Even though summary judgment was warranted, it does not follow that the case was frivolous, unreasonable, or without foundation. We decline to find the result “obvious” or the claims “wholly without merit.” (Vernon v. City of Los Angeles (9th Cir. 1994) 27 F.3d 1385, 1402.) Indeed, the Greenbergs’ complaint survived a substantive demurrer by the City. (Cf. Sussman v. Bank of Israel (2d Cir. 1995) 56 F.3d 450, 457 [district court’s imposition of sanctions could not be upheld on the ground that the complaint was frivolous, in light of that court’s ruling that the dismissal of the complaint should be without prejudice].)
Accordingly, the court’s award of attorney fees must be reversed.
DISPOSITION
The judgment in favor of the City and Robert Stanley is affirmed. The order awarding them attorney fees is reversed and vacated.
The City and Robert Stanley are entitled to recover costs (but not attorney fees) on appeal.
We concur: DOI TODD, J.CHAVEZ, J.
Section 11.11.050(F)(1), as revised in 2006 and in 2008, required in pertinent part that side and rear fences and walls “shall be subject to building permits, and shall be limited to six feet in height as measured from adjacent grade within the required rear setback and within the required sideyard setback.” (Italics added.) Section 11.11.050(F)(2), as revised in 2006 and in 2008, required in pertinent part that front facing fences and walls may not exceed “a height of three feet six inches above adjacent grade on the street side.” (Italics added.)