Opinion
G060824
08-23-2023
CITY OF GARDEN GROVE, Plaintiff and Respondent, v. HERNAN PINA OBANDO et al., Defendants and Appellants; RICHARDSON C. GRISWOLD, Real Party in Interest and Respondent.
Douglas Obando et al., in pro. per., for Defendants and Appellants. Woodruff, Spradlin & Smart, Jason M. McEwen and Nicholas J. Hutchins for Plaintiff and Respondents. Griswold Law, Richardson C. Griswold, and Neil R. Sheaffer for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2018-00985627 Stephanie George, Judge. Affirmed.
Douglas Obando et al., in pro. per., for Defendants and Appellants.
Woodruff, Spradlin & Smart, Jason M. McEwen and Nicholas J. Hutchins for Plaintiff and Respondents.
Griswold Law, Richardson C. Griswold, and Neil R. Sheaffer for Real Party in Interest and Respondent.
OPINION
GOETHALS, J.
Hernan Pina Obando, Douglas Obando, Pauline Weldon and Dorian Weldon-Obando (Defendants) challenge the trial court's order terminating the receivership over a home they claimed an interest in. The order approves and ratifies the receiver's status report and the actions therein, terminates the receivership, approves the receiver's financial report, terminates the receivership bond and exonerates the surety, and discharges the receiver.
Defendants have filed two notices of appeal, one of which states it is from the "[j]udgment of dismissal" entered on August 24, 2021, and the other of which states it is from "[a]n order after judgment" also entered on August 24, 2021.
Defendants appear to be arguing the receivership was improperly imposed due to procedural flaws, it amounted to unlawful discrimination on the basis of mental and physical disability, and it was poorly and illegally managed. To the extent Defendants are challenging the establishment of the receivership, that challenge was required to be brought in a direct appeal from the order appointing the receiver. As for the assertion that the receivership was improperly conducted, none of the contentions are developed factually, nor are they supported by any citations to the record or by legal authority related to the circumstances of this case. As a consequence, all such contentions are waived.
Finally, although we agree with Defendants' contention the court erred by signing the challenged order on the day before the status conference at which it was scheduled to be considered, we conclude that error was harmless. We therefore affirm the order.
FACTS
This case involves a home in the City of Garden Grove (the City), owned by Hernan and occupied by his son, Douglas, and Douglas's family, Pauline and Dorian.
Because the individual Defendants have identical or similar last names, we refer to them by their first names for the sake of clarity. No disrespect is intended.
On April 12, 2018, after years of efforts to encourage and assist Defendants with clean-up of the cluttered and dilapidated property, the City filed a complaint for abatement of a public nuisance. The City thereafter filed an ex parte application for appointment of a receiver to oversee the property's rehabilitation pursuant to Health and Safety Code section 17980.7; the ex parte was set for hearing on April 30, 2018.
On April 30, 2018, Hernan and Douglas filed an opposition to the ex parte application for appointment of a receiver.
Hernan and Douglas appeared at the April 30 hearing without counsel; the court continued the hearing to May 14 to allow them to retain counsel. Counsel appeared at the May 14 hearing on behalf of Defendants; Hernan and Douglas were also present. Defendants requested another continuance which was granted, and the ex parte was moved to May 24, 2018. On May 17, the City lodged a proposed order with the court, appointing Richardson Griswold to act as receiver.
At the May 24 hearing, counsel again appeared on behalf of Defendants. Hernan was also present. The court granted the City's application for a receiver and appointed Griswold. The court ordered the parties to meet and confer on an order granting Defendants' ex parte application for an order requiring the receiver to "work[] in conjunction with Defendant Douglas Obando's Guardian Ad Litem." The City lodged a new proposed order with the court on May 25, 2018, including a provision appointing a guardian ad litem "on behalf of all Defendants . . . to protect[] the interests [of] Defendants as it relates to the rehabilitation of the Property and to address[] the[ir] wellbeing . . . related to an underlying hoarder disorder ...."
On June 11, 2018, the court signed the order appointing Griswold as receiver. The order retained the guardian ad litem provision as proposed by the City, and included specific factual findings: (1) Defendants were given notices of the violations and orders for repair; (2) they were given an opportunity to challenge the notices and orders for repairs; and (3) they were afforded notice of the City's petition for appointment of a receiver over the property.
On that same day, the court also signed a separate order appointing the same guardian ad litem to protect the interests of all Defendants.
On May 3, 2021, the court granted Griswold's ex parte application for approval of the sale of the property.
On June 23, 2021, the court issued a preliminary injunction requiring Douglas, Pauline, and Dorian to vacate the property. The court also set a status conference re: discharge and approval of final accounting for August 25, 2021. At the July 14 status conference, the City's counsel confirmed the premises had been vacated; the court confirmed the August 25, 2021 status conference was to remain on calendar.
On July 27, 2021, Griswold filed an ex parte application for a modified sale order, which represented that "[t]he court scheduled a hearing for August 25, 2021 to discuss the discharge of the Receiver. The Receiver requests that this hearing be continued for 60 days to allow sufficient time for the sale of the Property to close and so that the Receiver can file his motion for discharge pursuant to the noticed motion briefing schedule." The court granted the application for a modified sale order, but it did not alter the August 25 hearing date.
On August 20, 2021, Griswold filed a status report containing his final accounting and request for discharge. He also concurrently lodged a proposed order granting his requested relief. The proposed order was filed with a "cover sheet" stating the proposed order relates to a "Status report re sale of property and discharge of receiver" on "8/25/2111:00 a.m." The caption pages of both the status report and the proposed order reflect a date, time, and department consistent with the scheduled status conference: August 25, 11:00 a.m., in Department C24.
Griswold's report represents that "[t]he sale is scheduled to close by Monday, August 23, 2021. The Receiver's certificate will be paid in full through escrow. Upon the close of escrow, the Receiver will distribute the funds as previously ordered by the Court: The Receiver's outstanding fees and costs are to be paid in full, a $5,000.00 reserve will be held back by the Receiver and the balance of funds will [be] paid to CitiMortgage."
On August 24, 2021, the court signed the proposed order approving and ratifying Griswold's Status Report and the actions set forth therein, approving Griswold's financial report, terminating his bond and discharging his surety, and terminating the receivership and discharging Griswold.
On August 25, 2021, the parties appeared via Zoom for the scheduled status conference. The court set an order to show cause hearing for September 1, 2021, regarding dismissal of the remainder of the case. Later that day, the City filed a request for dismissal of the entire case, without prejudice.
On September 1, 2021, Defendants filed an application to vacate the dismissal. The application included numerous factual assertions and conclusory complaints of impropriety and "[c]riminal behavior," none of which was supported by evidence. The resolution of that application is not reflected in our record.
Defendants filed two notices of appeal. The first states the appeal is from the judgment of dismissal entered August 24, 2021, and the second states the appeal is from an order after judgment (unspecified), which was also entered August 24, 2021.
DISCUSSION
1. Underlying Law an Appealability
"Sections 17980.6 and 17980.7 of the Health and Safety Code compose a statutory scheme providing certain remedies to address substandard residential housing that is unsafe to occupy. Pursuant to section 17980.6, an enforcement agency may issue a notice to an owner to repair or abate property conditions that violate state or local building standards and substantially endanger the health and safety of residents or the public. Section 17980.7 provides that, if the owner fails to comply with the notice despite having been afforded a reasonable opportunity to do so, the enforcement agency may seek judicial appointment of a receiver to assume control over the property and remediate the violations or take other appropriate action." (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 912, fn. omitted (Gonzalez).)
"[S]ection 17980.7 contemplates that two different types of notice must be given to the property owner before a receiver may be appointed. The first type of notice . . . refers to the enforcement agency's notice to repair [and] makes clear that if the owner fails to comply with the notice to repair within a reasonable time, an enforcement agency, a tenant, or a tenant association or organization may seek an order from the trial court appointing a receiver. [Citation.] . . . [¶] The second type of notice, reflected in section 17980.7(c), addresses the particular notice required when a receivership is sought: the party seeking appointment of a receiver 'shall include proof [in the petition] that notice of the petition was served not less than three days prior to filing the petition' to all persons with a recorded interest in the property. (§ 17980.7(c).)" (Gonzalez, supra, 43 Cal.4th at pp. 920-921.)
When the court appointed Griswold to act as receiver, it was required to determine that proper notice was given. The court explicitly made those findings in its appointment order. That order was directly appealable. (Code Civ. Proc., § 904.1, subd. (a)(7); Gonzalez, supra, 43 Cal.4th at p. 926 ["There is . . . no question an owner may contest a section 17980.7 receivership if fair notice of a claimed substandard condition was lacking or if a reasonable opportunity to correct the cited condition was not afforded"].)
Thus, an appeal from the order appointing the receiver would have been Defendants' opportunity to argue proper notice had not been served, or to otherwise challenge the propriety or legality of the order establishing the receivership. Their failure to pursue such an appeal operated as a waiver of any such challenge. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"].) Consequently, Defendants have forfeited any right to challenge the propriety of the receivership order itself by failing to pursue an appeal from that order.
2. Appeal from Judgment Terminating Receivership and Dismissing Receiver
Defendants make various assertions of error or impropriety in the management of the receivership, including that "[Griswold] has entered into illegal contracts[,] overcharging and paying for services not rendered" and that he hired contractors who were not licensed to perform various services, including moving belongings, painting, asbestos abatement and HVAC work. Defendants also contend, "The city attorney, Nick Hutchins, had been allowed to approve or deny some of the Court's orders after they were written."
However, because none of those conclusory assertions is supported by any citation to evidence supporting them, Defendants have failed to sustain their burden of showing error.
a. Standards of Review
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) As a consequence of that presumption, the burden is on Defendants to affirmatively establish the trial court erred.
"To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.); see Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 [on appeal "the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised"].)
California Rules of Court, rule 8.204(a)(1)(C), requires parties to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Absent such citations, we are entitled to disregard unsupported factual assertions and to treat the arguments relating to them as waived. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1267; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["'[i]t is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations'"]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [an appellate court "'is not required to discuss or consider points . . . which are not supported by citation to authorities or the record'"].)
b. Application
It is not the responsibility of the reviewing court to search the record to ascertain whether it does or does not contain evidence that will support a claim of error, or to develop arguments for an untutored litigant connecting the facts to the law. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
In this case, the record of trial court proceedings is substantial, including more than 2,800 pages of clerk's transcript, spanning proceedings from April 2018 to September 2021. It is Defendants' duty to direct this court's attention to evidence in that record which supports their claims. Unfortunately, it appears Defendants themselves abandoned any effort to discharge this duty as at several points in their opening brief there are blank spaces where it appears relevant dates might have been added, but never were. Without those dates we can only speculate about where some of those claimed events or rulings might be found.
Moreover, "the appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited." (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656; Cal. Rules of Court, rule 8.204(a)(1)(B).) Such forfeiture has occurred here.
It is well-settled that Defendants' decision to proceed in propria persona does not relieve them of the obligation to follow these rules. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [self-represented parties must meet same standards as lawyers].)
3. Timing of Court's Order
Defendants also assert "[t]he Court erred in . . . cancelling a motion hearing to address [the alleged errors of Griswold and the City's attorney]." We agree.
Health and Safety Code section 17989 (section 17989) requires that "[e]xcept under conditions immediately affecting health or safety, every notice or order issued pursuant to this part shall be served five days before the time for doing or refraining from doing the thing to which it pertains." Griswold attempted to comply with that requirement by filing and serving his final status report containing his final accounting, and his request for discharge and exoneration of the receiver's surety, five days before it was scheduled to be heard at the August 25th status conference. However, the court signed the receiver's proposed order on August 24, 2021, the day before the status conference. That was clear error. Based on section 17989, the earliest date the court could give Griswold his requested relief was at the August 25th status conference.
The City seems to argue that no error occurred because "[t]he noticed motion was heard by the Court on August 25, 2021, at which point Appellants were heard regarding their objections." It further asserts that "[t]he timing of the Court's signature on the August 24, 2021, discharge order is insignificant." We disagree.
The due process concept of a "right to be heard" is not satisfied by a showing that a court physically heard an argument. Instead, the court must be willing and able to consider all arguments offered during any hearing with an open mind. It is beyond dispute that the court erred by ruling before the scheduled hearing.
Nonetheless, not all errors-even one as obvious as the one at issue here- are grounds for reversal. Article VI, section 13 of the California Constitution sets forth applicable ground rules: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." We find in this record no evidence of such a miscarriage of justice.
As explained by our Supreme Court in In re James F. (2008) 42 Cal.4th 901, 915, a procedural error in a non-criminal matter-even a failure to give a party proper notice or a meaningful opportunity to be heard on an issue-can be evaluated as harmless error. The high court explained that harmless error can be assessed in cases where "[d]etermining prejudice . . . does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe.'" (Ibid.) This is such a case.
Because Defendants set forth their objections to the trial court's ruling a week after it was made in their written application to vacate the order, we need not speculate about what arguments they would have made if given a meaningful opportunity to do so at the status conference. None of their factually intensive arguments, which include attacks on Griswold's character, assertions of misconduct by the City's attorney, and claims of racism and potential hate crimes by the City, are supported by any evidence. We therefore conclude it would have made no difference if Defendants had been given the opportunity to present those contentions before the court signed the order. The court's error in signing the order prematurely, while significant, was harmless.
DISPOSITION
The order is affirmed. In the interest of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: BEDSWORTH, ACTING P. J., MOTOIKE, J.