Opinion
A147773
05-24-2017
CITY OF OAKLAND, Plaintiff and Respondent, v. MAXINE ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15784637)
I.
INTRODUCTION
Maxine Robinson, representing herself both before the trial court and on appeal, challenges the appointment of a receiver to abate the health and safety violations at her property located at 3411 Chestnut Street in Oakland, California (Chestnut property.) Robinson claims the trial court abused its discretion in finding the property was a nuisance, and that she was not given a reasonable time to abate the nuisance. We affirm. The Chestnut property was a health and safety hazard, and Robinson had more than 18 months to address the violations.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Robinson is the legal owner of the Chestnut property, which is zoned for commercial use, but is currently occupied by a tenant who resides there. Beginning in April 2014, the City of Oakland (the City) endeavored to get Robinson to correct violations of its municipal code, and to address fire hazards as well as other health and safety issues.
A courtesy notice of violation was sent to Robinson on April 30, 2014. It listed violations of Oakland Municipal Code chapters 8.24, 12, 15.08 and 15.64. The notice stated it served as a warning to allow Robinson to correct the violations without any further City action, and listed the alleged violations as trash and debris.
Four months later, the City sent a notice of violation via certified and regular mail on October 16, 2014. The notice included photographs of the violations and a brochure explaining how to correct them. It listed the following violations: open storage of appliances, tools, boxes and assorted items.
Eugene Martinelli, a specialty combination inspector for the Oakland Department of Planning and Building Code Enforcement, inspected the Chestnut property on May 26, 2015. He found an accumulation of trash, debris and discarded items. The property was being used for residential purposes, but was zoned as a commercial building. The water heater was disconnected and needed to be repaired or replaced. Areas of the walls and ceiling were damaged. The building was unsanitary and unsafe. In his declaration, Martinelli stated "this is the worst case of hoarding I have ever seen" in his 11 years as an inspector. "There were piles of personal belongings and garbage up to 8 feet high." There was storage of propane gas that was combustible. The sink was inoperable. There was no space for a bed, so the occupant slept in an office chair. There was a roach infestation. The debris spilled over to the outside of the building including a refrigerator and other appliances that were stored outside the front of the building.
Inspector Martinelli stated that based on his training and experience, "this property is a potential imminent health and safety hazard because there is virtually no egress and the occupants are at risk for death in an emergency situation."
The City sent a second notice of violation on sent on June 16, 2015. The notice listed a detailed series of violations, including: (1) the exterior premises has an accumulation of trash, debris, discarded items, and unapproved storage; (2) the building is not approved for residential use; (3) the water heater is disconnected; (4) the walls and ceilings are damaged; (5) the interior is unsanitary and unsafe with an accumulation of trash and combustibles; and (6) areas were not accessible for inspection. The notice stated that to prevent further enforcement action, Robinson must correct the listed violations.
Inspector Benjamin Lai, also employed by the City, inspected the Chestnut property on July 20, 2015. He saw "a heavy accumulation of personal property from the floor to about 7 feet high throughout the interior, allowing only a narrow path to the back of the property." The property was zoned as a commercial space, but was being improperly used as a residential space including a makeshift kitchen. The water heater was not installed properly and there were "major sanitation issues." Inspector Lai stated in his declaration that, based on his training and experience, "this property is a potential imminent health and safety hazard because the occupants have combustible personal property stored and piled up from the ground to the ceiling, making it very difficult to go in or out of the structure. It is a hazard to the occupants and neighbors because if there is a fire, there is no way out and the fire would spread quickly to neighboring properties." A notice to abate was posted on the property on July 20, 2015.
The City sought appointment of a receiver pursuant to Health and Safety Code section 17980.7, subdivision (c). Robinson filed a declaration opposing the appointment of the receiver on November 13, 2015. She also filed a declaration from the Chestnut property tenant who stated the premises were sanitary.
On February 18, 2016, the court issued an order appointing a receiver. It stated that Robinson had had more than reasonable and ample time to make repairs and to abate the violations. The City had issued notices beginning in April 2014 to repair the property and abate the violations. The violations were so extensive that the health and safety of the occupants and the public is "substantially endangered." The court found nuisance conditions will likely continue unless the court appoints a receiver.
III.
ARGUMENT
We apply a highly deferential standard of review in reviewing the trial court's decision to appoint a receiver. (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 931, 933 (Gonzalez).) We review an order appointing a receiver for abuse of discretion. (City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 466 (Reddy).)
If a building violates a provision of the Health and Safety Code or similar local ordinance "and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the enforcement agency may issue an order or notice to repair or abate pursuant to this part." (Health & Saf. Code, § 17980.6.) If the owner fails to comply within a reasonable time, the enforcement agency may seek appointment of a receiver. (Health & Saf. Code, § 17980.7, subd. (c); Gonzalez, supra, 43 Cal.4th at p. 921.)
Robinson describes the City's notices as "delicacy of taste" orders and contends her property is not a nuisance. She argues she was not given a reasonable time to abate the violations and the court should not have appointed a receiver.
We recently reviewed the appointment of a receiver in Reddy. (Reddy, supra, 9 Cal.App.5th 458. Reddy owned a motel in Crescent City, California. He was served with notice to remedy various code violations and failed to make the repairs. (Id. at pp. 461-462.) We concluded: "We find no abuse of discretion in the trial court's appointment of a receiver under section 17980.7. In May 2013, the city issued a notice and order pursuant to Health and Safety Code section 17980.6, listing 76 separate code violations found by the city. The notice and order appears on its face to comply with the statutory requirements, and Reddy does not contend otherwise." (Id. at p. 466.) The notice and order required abatement within 30 days, but the city did not actually seek appointment of a receiver until 18 months later. (Ibid.) "This is unquestionably a reasonable time within which to bring the property into compliance." (Ibid.)
We further held the trial court was entitled to rely on the evidence presented in the declarations of the inspectors. (Reddy, supra, 9 Cal.App.5th at p. 466.) "Evidence of the existence of code violations is found throughout the declarations of the inspector and code enforcement officer, and both of them opined that the conditions posed a threat to the health and safety of the occupants and the public in general. The trial court was entitled to rely on this evidence and these opinions, which constitute substantial evidence to support the findings necessary for the appointment of a receiver under section 17980.7." (Reddy, supra, at p. 466.)
Like Reddy, Robinson disputes the declarations of the inspectors and repeatedly contends her property did not present health or safety violations. She argues the refrigerator chained to the front of the house and the planters filled with trash were not a violation. She contends nothing the inspectors saw would start a fire "on its[] own." She repeatedly argues that the tenant had permission to live on the property. In fact, Robinson had permission to use the property for storage, but she has provided no evidence she was granted a residential use permit. The evidence provided by the City demonstrates just the opposite. The building was zoned as a commercial building.
Inspector Martinelli stated in his declaration that this was the worst case of hoarding he had seen in 11 years on duty. Both he and Inspector Lai described piles of belongings and trash that were more than seven feet high throughout the interior. There was storage of propane gas that was combustible. The debris spilled over to the outside of the building, including a refrigerator and other appliances that were stored outside at the front of the building.
Both inspectors stated that based on their training and experience, the Chestnut property was a potential "imminent health and safety hazard," and the inhabitants and neighbors were at grave risk in the event of a fire. "The trial court was entitled to rely on this evidence and these opinions, which constitute substantial evidence to support the findings necessary for the appointment of a receiver under section 17980.7." (Reddy, supra, 9 Cal.App.5th at p. 466.)
Robinson's next argument is she was not given a reasonable time to abate the violations. She argues that she could handle the tasks assigned to the receiver and she had already begun the process. Robinson was provided courtesy notice in April 2014, and notices of violations in October 2014 and June 2015. Notices were posted on the property in July 2015. The court did not appoint the receiver until February 2016. Robinson had 22 months to address the violations before the receiver was appointed, and she failed to do so. As we held in Reddy, this is "unquestionably a reasonable time within which to bring the property into compliance." (Reddy, supra, 9 Cal.App.5th at p. 466.)
Finally, Robinson argues the trial court abused its discretion in setting a $25,000 bond. As the City argues, Robinson failed to include the amount of the bond in her notice of appeal. The notice of appeal, filed on March 1, 2016, states Robinson appeals the order appointing a receiver. It attaches the court's February 18, 2016 order. There is no information in the record before this court about the bond hearing or the setting of the bond amount. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [judgments and orders are presumed correct on appeal, and the appellant bears the burden of overcoming that presumption by affirmatively demonstrating reversible error].) The City contends that the bond amount is not properly before this court. We agree.
IV.
DISPOSTION
The trial court's order appointing the receiver is affirmed. The City may recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.