Opinion
F068679
03-05-2015
CITY OF RIDGREST et al., Plaintiffs and Respondents, v. WILLIAM DALE HOWARD et al., Defendants and Appellants.
Law Office of Rex A. Schroder and Rex A. Schroder for Defendants and Appellants. Jones & Mayer, Dean J. Pucci, Krista MacNevin Jee and Ryan R. Jones for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-277696)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Law Office of Rex A. Schroder and Rex A. Schroder for Defendants and Appellants. Jones & Mayer, Dean J. Pucci, Krista MacNevin Jee and Ryan R. Jones for Plaintiffs and Respondents.
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Defendants appeal from an order granting a preliminary injunction requiring them to abate the nuisance conditions on their properties, appointing a receiver to carry out the abatement, and enjoining defendants from interfering with the receiver's activities. Defendants contend plaintiffs failed to comply with certain technical requirements before requesting the order. Additionally, they contend the trial court abused its discretion by making the order, because it imposed a mandatory injunction that did not preserve the status quo, and because plaintiffs did not demonstrate that they were likely to prevail on the merits or that the balance of the interim harms favored granting the preliminary injunction.
Defendant Betty Joan Whitely also appeals from an order denying her motion for attorney fees and costs, which was based on a claim she was the prevailing party because plaintiffs voluntarily dismissed her from the action.
We conclude defendants have failed to establish any error in the trial court's orders. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2012, the City of Ridgecrest (the city) and the State of California, through the city, filed a complaint against defendants, seeking injunctive and declaratory relief. The complaint alleges causes of action for public nuisance, unlawful business practices (Bus. & Prof. Code, § 17200 et seq.), and declaratory relief. It alleges defendants hold ownership interests in 17 parcels of real property and defendants have maintained the properties in a dilapidated, substandard, and unsafe condition; further, their use of and activities on the property fail to comply with applicable statutes and regulations and constitute unlawful business practices, nuisances, nuisances per se, and violations of law. The complaint alleges defendants have maintained illegal structures on some of the properties, including sea containers, which are not properly permitted, violate set-back provisions and exceed the maximum number allowed, and retaining walls, which were constructed without valid permits and encroach on the public right-of-way. The properties contain abandoned or broken equipment or machinery; abandoned, wrecked, dismantled, or inoperative vehicles; commercial vehicles parked in a residential district; and junk, debris, garbage, hazardous or combustible matter, including oil or fuel from unlawfully stored abandoned, wrecked, or dismantled vehicles. The properties also contain unpermitted or prohibited animals, including numerous peafowl, maintained in a manner that constitutes a nuisance by their number, lack of containment, and the dumping of rotting matter to feed them. The properties are also being used for outdoor storage of personal property in violation of the municipal code. Some parcels are allegedly being unlawfully used as a junkyard.
As to defendant, Martin Mosley, it alleged only that he owned a business called Golden Empire Salvage, which operated on one or more of the parcels. Mosley is not a party to this appeal.
The complaint alleges there have been numerous complaints and code enforcement cases against defendants and the properties regarding these conditions. Further, defendants have a long-standing history of noncompliance with the city's efforts to bring the properties into compliance with applicable law, and the properties are continuing to deteriorate. Plaintiffs allege the illegal conditions have existed for years, and notice of the violations was posted on the properties on June 19, 2011, or August 2, 2012; an inspection was conducted on August 14, 2012, and the conditions remain.
The prayer of the complaint requests defendants be enjoined from operating, conducting, using, occupying, or permitting the use of the properties and structures as public nuisances; it also requests appointment of a receiver to take control of the property and abate the nuisances and unlawful business practices.
In January 2013, plaintiffs filed a motion for preliminary injunction, which was denied without prejudice on technical grounds. On July 26, 2013, they filed a second motion, seeking to enjoin the maintenance of a nuisance on 16 of the properties and seeking a receiver to take control of and abate the nuisance conditions on 14 of the properties. Defendants opposed the motion. The trial court granted the motion, issuing an injunction as to 13 of the properties and appointing a receiver for 12 of them. Defendants appeal from this order.
A receiver was not appointed for the parcel owned by Peter Fai Loy Lam, on which William Howard allegedly has encroached and maintained a nuisance. Neither a preliminary injunction nor a receiver was ordered for the three parcels on which Martin Mosley allegedly operates Golden Empire Salvage.
Betty Joan Whitely was named as a defendant in the complaint because she held interests of record in several of the properties. After negotiations between her attorney, Craig Braun, and plaintiffs' attorney, Whitely quitclaimed her interest in the properties to her brother, defendant William Howard. Plaintiffs dismissed Whitely without prejudice, on the understanding each party would bear its own costs and attorney fees. Through a different attorney, Rex Schroder, Whitely filed a motion for an order deeming her attorney fees to be recoverable costs; she based her motion on a claim she was the prevailing party in the litigation. The trial court denied the motion. Whitely appeals from this order.
DISCUSSION
I. Preliminary Injunction and Receivership
A. Standard of Review
"The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court. [Citations.] ... '[T]he granting or denial of a preliminary injunction on a verified complaint, together with oral testimony or affidavits, even though the evidence with respect to the absolute right therefor may be conflicting, rests in the sound discretion of the trial court, and ... the order may not be interfered with on appeal, except for an abuse of discretion. [Citations.]' [¶] A trial court will be found to have abused its discretion only when it has '"exceeded the bounds of reason or contravened the uncontradicted evidence."' [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion. [Citations.]" (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 (IT Corp)
"'In determining the validity of the injunction, we look at the evidence presented to the trial court to determine if there was substantial support for the trial court's determination that the plaintiff was entitled to the relief granted.' [Citation.] 'Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. "[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts." [Citation.] Our task is to ensure that the trial court's factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. [Citations.]' [Citations.]" (AlliantIns. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300 (Alliant).)
"The rule is well established that the appointment of a receiver rests largely in the discretion of the trial court, and that its action in appointing a receiver will not be disturbed by an appellate court in the absence of a showing of abuse of discretion. [Citations.]" (Goes v. Perry (1941) 18 Cal.2d 373, 381.)
B. Failure to Comply with Municipal Code Provisions
Defendants' first argument is that plaintiffs failed to comply with three requirements set out in the City of Ridgecrest Municipal Code of Ordinances prior to filing the judicial action. They assert plaintiffs were required to (1) give written notice of the alleged nuisance to each owner by regular mail, postage prepaid; (2) post a notice to abate on each property; and (3) advise the property owner of the right to a pre-abatement hearing. (Ridgecrest Ord. No. 4-15.103, subd. (c).) They contend the motion for a preliminary injunction should not have been granted in the absence of compliance with these three requirements.
Defendants failed to raise this issue in the trial court. Generally, issues not raised in the trial court proceedings are forfeited for purposes of appeal. (Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 574 (Woodridge).) Accordingly, we decline to address it.
We note defendants have not cited any provision of the municipal code, any statute, or any other legal authority making compliance with the provisions of Ridgecrest Ordinance No. 4-15.103, subdivision (c), a prerequisite to filing a judicial action for injunctive relief to address conditions of property allegedly constituting a public nuisance.
C. Abuse of Discretion by Granting Mandatory Injunction That Did Not Preserve the Status Quo
Defendants assert the primary function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. In support, they cite preliminary injunction cases that do not involve proceedings brought by governmental enforcement authorities to remedy public nuisances or other statutory violations. Defendants contend the preliminary injunction in this case changed the status quo, and therefore required greater justification, which was not demonstrated by plaintiffs' papers. We disagree.
Some courts have concluded "the proper remedy for abatement of a nuisance is a mandatory injunction," even if the injunction requires a property owner to make alterations to or demolish a building. (City and County of San Francisco v. City Investment Corp. (1971) 15 Cal.App.3d 1031, 1041-1042; People ex rel. Dept. Ind. Rel. v. Morehouse (1946) 74 Cal.App.2d 870, 874-875 (Morehouse).) Others have concluded that an order requiring a party to comply with the law is not a mandatory injunction, but a prohibitory injunction. "The purpose of mandatory relief is to compel the performance of a substantive act or a change in the relative positions of the parties. [Citations.] By contrast, the prohibitive order seeks to restrain a party from a course of conduct or to halt a particular condition. [Citation.] The character of prohibitory injunctive relief, however, is not changed to mandatory in nature merely because it incidentally requires performance of an affirmative act. [Citation.]" (People v. Mobile Magic Sales, Inc. (1979) 96 Cal.App.3d 1, 13 (Mobile Magic).)
In Mobile Magic, the trial court entered a preliminary injunction requiring, among other things, that the defendants remove their model mobilehomes from a mobilehome park because the display of the models there violated a statute. The defendants challenged the injunction on the ground it was mandatory in nature and had to await determination at trial. (Mobile Magic, supra, 96 Cal.App.3d at pp. 7, 12-13.) The court concluded: "While the act of removal is an affirmative act, it is incidental to the injunction's prohibitive objective to restrain further violation of a valid statutory provision. Thus, [this] provision of the preliminary injunction is prohibitive in character and properly issued to halt continuing violation of the Vehicle Code." (Id. at p. 13.) Consequently, the trial court had not abused its discretion by granting the preliminary injunction. (Ibid.)
In People ex rel. Brown v. iMergent, Inc. (2009) 170 Cal.App.4th 333, the defendants challenged a preliminary injunction which prohibited them from selling their products and services without complying with statutory consumer protection disclosure requirements and false advertising prohibitions. They asserted it was a mandatory injunction that did not meet the requirements for mandatory relief. (Id. at p. 341.) The court rejected the defendants' argument concluding "[a]ny aspects of the injunctions that require defendants to engage in affirmative conduct are merely incidental to the injunction's objective to prohibit defendants from further violating California's consumer protection laws. Accordingly, the injunction is prohibitory in nature. [Citations.]" (Id. at p. 342.)
In Morehouse, the trial court issued a preliminary injunction enjoining the defendants from maintaining a nuisance on the premises of their apartment building. (Morehouse, supra, 74 Cal.App.2d 871-872.) The injunction also ordered the defendants to make certain repairs and improvements to the building. (Id. at p. 872.) The court rejected the defendants' argument that this was a mandatory injunction, and mandatory injunctions are only granted "'in a peculiar class of extreme cases.'" (Id. at p. 875.) The injunction did not try to compel the defendants to do any specific act other than cease violating the law in the operation of their premises; the defendants could have ceased violating the law by terminating the occupancy of any portion of the premises. (Ibid.) Additionally, the court noted the trial court found this was an extreme case. (Ibid.)
The preliminary injunction in this case states that defendants own the properties in issue, and the properties "are currently being maintained in such conditions as to violate the California Health & Safety Code and the Ridgecrest Municipal Code." It identifies the conditions constituting violations of law, and enjoins defendants "from contributing to or permitting the illegal conditions existing on the Properties." The order then describes in detail the conditions that must be removed or otherwise corrected in order to remedy the violations. Thus, as in Mobile Magic, the requirement of affirmative action is incidental to the prohibitory injunction to cease violating the designated statutes and city ordinances.
Defendants also contend the preliminary injunction acted as a summary judgment—a final judgment that denies them a trial on the merits. A ruling on a preliminary injunction, however, "is not an adjudication of the ultimate merits of the dispute." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) It "reflects nothing more than the superior court's evaluation of the controversy on the record before it at the time of its ruling." (Ibid.)
We conclude the trial court did not improperly impose a mandatory injunction, as defendants contend.
D. Defects in Obtaining Search Warrants and Posting Notice to Abate
The declaration of Paul Wheeler, a captain with the Ridgecrest Police Department, states that he executed an inspection warrant on the Mayo and Porter Street properties on August 14, 2012. It also states he conducted exterior inspections of the properties on Ridgecrest Boulevard on numerous occasions, including November 19, 2012. Photographs taken during these inspections were attached to the declaration to illustrate the condition of the properties. Defendants contend that, because Captain Wheeler did not have a warrant to inspect the Ridgecrest Boulevard properties, the photographs and any other evidence regarding these properties were somehow tainted and should not have been relied on by the trial court. Defendants also contend no notice to abate was posted on one parcel of property (1109 S. Mayo Ave., Assessor Parcel No. 081-121-03), so the preliminary injunction should not have been granted.
These arguments were not raised in the trial court. Issues not raised in the trial court are generally forfeited on appeal. (Woodridge, supra, 130 Cal.App.4th at p. 574.) Further, defendants cite no authority for their apparent contention that a search warrant is required in order to observe or take pictures of the properties to demonstrate the violations of public nuisance law, even where the condition of the property is visible from outside the property. Regarding the notices to abate, Captain Wheeler's declaration states notices to abate were posted on the properties on Mayo Street on June 19, 2011, and he observed that they were posted on the properties. The notices are attached as an exhibit to the declaration; they include a notice for "Property Located at 1109 S. Mayo Ave. Ridgecrest, CA, Assessor Parcel Numbers: 081-121-02-00 and 081-121-03-00." Defendants do not point to any evidence in the record demonstrating that notice was not posted on the property in question. Defendants' argument does not establish an abuse of the trial court's discretion.
E. Considerations in Granting Injunction
"We review an order granting a preliminary injunction, under an abuse of discretion standard, to determine whether the trial court abused its discretion in evaluating the two interrelated factors pertinent to issuance of a preliminary injunction—(1) the likelihood that the plaintiffs will prevail on the merits at trial, and (2) the interim harm that the plaintiffs are likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued. [Citation.] Abuse of discretion as to either factor warrants reversal. [Citation.]" (Alliant, supra, 159 Cal.App.4th at p. 1299.)
1. Likelihood of success on the merits
Defendants' entire argument regarding plaintiffs' showing of a likelihood of success on the merits is a statement that, based on plaintiffs' failure "to comply with the three provisions of RMC 4-15.103," plaintiffs are not likely to prevail on the merits at trial. As discussed in section I.B., ante, however, defendants failed to raise that argument in the trial court and have forfeited it on appeal. Additionally, they failed to establish that compliance with "the three provisions of RMC 4-15.103" was required in this case. We note that Ridgecrest Ordinance No. 4-15.103 and the ordinances following it provide an administrative remedy for nuisance conditions on real property. The code, however, also provides: "A nuisance existing on real property may be abated by the procedures set forth in this Article. Such procedures shall be cumulative and in addition to any other rights, remedies or proceedings available to the City, including commencement of civil proceedings for injunctive or other judicial relief, imposition of civil penalties, and the filing and prosecution of criminal charges." (Ridgecrest Ord. No. 4-15.102, subd. (b).) Thus, the requirements applicable to the administrative remedy are not a prerequisite to a parallel judicial remedy.
Through photographs and the declarations of neighbors and others, plaintiffs demonstrated that defendants' properties are in a condition that violates various statutes and municipal code provisions, including municipal code provisions defining such violations as a public nuisance. Plaintiffs presented evidence that the condition of defendants' properties has continued unabated over a period of years. Defendants presented no contradictory evidence. They did not dispute the condition of the properties or their responsibility for it. Consequently, defendants have not demonstrated the trial court erred in concluding plaintiffs had met their burden of showing the likelihood they would prevail on the merits after trial.
2. Balance of the interim harms
Defendants contend plaintiffs did not discuss interim harm in their motion. Thus, defendants argue, plaintiffs did not demonstrate they would suffer any harm if the preliminary injunction were denied, but defendants demonstrated through William Howard's declaration that defendants would suffer irreparable harm if the preliminary injunction were granted.
"'"[T]he Legislature has the power to declare certain uses of property a nuisance and such use thereupon becomes a nuisance per se." [Citation.]'" (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382 (Soffer).) By ordinance, the legislative body of a city may do the same. (Id. at p. 383.) "'Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.' [Citations.]" (Id. at p. 382.) "A legislatively declared public nuisance constitutes a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury." (People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal.App.3d 507, 511; accord, Soffer, at p. 385; IT Corp, supra, 35 Cal.3d at p. 70.)
Plaintiffs' motion for a preliminary injunction was brought pursuant to various provisions of the Ridgecrest Municipal Code and the California Health and Safety Code. Provisions of the Ridgecrest Municipal Code expressly designate conditions present on defendants' properties as conditions constituting a public nuisance and authorize abatement as a remedy. (Ridgecrest Ord. No. 4-15.101.) The Health and Safety Code prohibits specified conditions, including conditions constituting a nuisance, and authorizes proceedings to prevent, restrain, correct, or abate the nuisance. (Health & Saf. Code, §§ 17920.3, subds. (a)(12) & (13), (j), 17960, 17980, 17980.6, 17980.7, 17982, 17983.) Because a local legislative body has designated the conditions and violations in issue in this case as a public nuisance, it has determined as a matter of law that they are harmful to the public. Consequently, in seeking injunctive relief, plaintiffs were only required to demonstrate that defendants' property was in violation of those statutes or ordinances; they were not required to separately demonstrate that the statutory or municipal code violations were causing irreparable injury to the public.
Substantial evidence supports the trial court's conclusion plaintiffs met their burden of demonstrating statutory and municipal code violations constituting a public nuisance on defendants' properties. The declarations of neighboring homeowners and the photographs depicting the condition of the properties amply support that conclusion. Neighbors declared there had been an increase in the amount of junk, garbage, and debris on defendants' properties in recent years; they described "piles" of junk and garbage on defendants' properties. They stated defendants maintain peafowl on their property, which are noisy night and day, roam the neighborhood leaving droppings on the street and sidewalk, and attack neighborhood children; defendants feed them by loading a trailer with food and parking it on the street for the peafowl to hop on and feed. Neighbors and a local realtor discussed the numerous sea containers on the properties, and described them as unsightly and an eyesore. One neighbor had observed "a large amount of mice emanating from" defendants' lots and bothering her on her property a thousand feet away. Defendants did not challenge plaintiffs' substantive evidence of the condition of their properties. They presented no evidence contradicting plaintiffs' evidence or showing that the condition of their properties did not constitute a nuisance or violate the cited statutes and municipal code provisions.
Defendants contend they demonstrated through declarations that they would suffer irreparable injury if the injunction were granted. They cite William Howard's declaration that he and his wife "may be displaced from our longtime home and lose possession of our property," and that he is over 78 years old and has health conditions that will be exacerbated by stress if the injunction is granted. Plaintiffs' motion, however, did not request any remedy that would displace defendants from their home. Plaintiffs made this clear in their reply to defendants' opposition to the motion for preliminary injunction and at the hearing. The trial court also stated at the hearing that "it is not an eviction of persons order, it is a clean up the property, abate the nuisance order."
The preliminary injunction requires that defendants do what the law requires they do: maintain their property in a clean, safe condition. It requires them to do what their neighbors and other real property owners in the city are required to do. Any stress resulting from being compelled by local authorities to comply with their legal obligations, which results from defendants' recalcitrance in the face of the city's notices of violation, is not the type of harm the trial court is to consider in balancing the harm to the public against the potential harm to defendants. Substantial evidence supports the trial court's finding that defendants "failed to show irreparable injury sufficient to overcome the public's interest in the immediate abatement of such nuisances and nuisances per se."
In light of the trial court's findings, which are supported by substantial evidence, we find the trial court did not abuse its discretion by granting plaintiffs' motion and issuing a preliminary injunction requiring defendants to abate the nuisance conditions on their properties.
F. Appointment of Receiver
When a property owner has been given a notice to abate conditions on his or her property constituting a nuisance and has failed to comply with the order within a reasonable time, "[t]he enforcement agency ... may seek and the court may order, the appointment of a receiver." (Health & Saf. Code, § 17980.7, subd. (c).) Appointment of a receiver rests in the sound discretion of the court; however, "because the remedy of receivership is so drastic in character, 'Ordinarily, if there is any other remedy, less severe in its results, which will adequately protect the rights of the parties, a court should not take property out of the hands of its owners. [Citations.]' [Citation.]" (Alhambra-etc. Mines v. Alhambra G. Mine (1953) 116 Cal.App.2d 869, 873.) "[T]he availability of other remedies does not, in and of itself, preclude the use of a receivership. [Citation.] Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership." (City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 745.)
Defendants assert a receivership should not be used unless other remedies are inadequate. Defendants, however, do not suggest any alternative remedy that would have been effective in this case.
Captain Wheeler's declaration states that he reviewed the records of the code enforcement history related to the properties in issue; since 1998, the city received 35 complaints regarding accumulation of junk and debris, wild farm animals, attractive nuisances, and general disrepair. He has inspected the properties on numerous occasions and noted an increase in the accumulation of junk over the years. In 2006, there were only a few sea cargo containers on the properties; in June 2013, there were approximately 20, apparently being used as a fence or fortification around the properties. The containers violate zoning ordinances and require a permit, which was not obtained. Aerial photographs from 2006, 2008, and 2010 also showed the progressive accumulation of sea cargo containers and junk on the properties.
Notices to abate the nuisances were posted on all but one of the properties listed in the injunction on June 19, 2011, and on the remaining property on August 2, 2012. The notices included an order to abate all violations within 30 days, and a warning that failure to do so would result in further legal proceedings, including an application for appointment of a receiver and an injunction against a public nuisance. The motion for a preliminary injunction and appointment of a receiver in this action was heard on September 25, 2013. Thus, as to one of the properties that is the subject of the preliminary injunction, defendants had more than one year in which to take steps to rectify the condition of the property; as to the remaining properties, they had more than two years. Yet the conditions persisted and remained present when Captain Wheeler inspected the properties in August and November 2012 and in June 2013.
The comments of defendants' attorney at the hearing of the motion indicate defendants lacked an appreciation of the need to remedy the conditions on their properties. For example, defendants' attorney argued that "Mr. Howard has put forth measurable effort in lining the sea vans up around his property and saving the public from any possible harm that may occur to them." Defendants misapprehend the nature and scope of the unhealthful and prohibited conditions if they believe using sea cargo containers to screen the junk and debris on their properties from public view equates to abating the nuisance. The nuisance includes the piles of garbage and debris on the properties, which may attract vermin that affect neighboring properties. It includes the sea cargo containers themselves, which are unsightly and violate municipal ordinances and permit requirements. It also includes unlawfully keeping peafowl, allowing them to roam the neighborhood, where they bother the neighbors with noise and droppings and scare children, and feeding them by parking a trailer with food in it on the street.
We conclude the trial court did not abuse its discretion in determining a preliminary injunction alone would not adequately remedy the conditions on defendants' properties and appointment of a receiver was necessary to effectively abate the nuisance.
II. Whitely's Attorney Fees
When attorney fees are awarded, the amount is left to the sound discretion of the trial court. (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522.) A determination of the legal basis for an attorney fee award, however, and whether the criteria for an award of attorney fees and costs have been satisfied, involve construction of the statute or contract authorizing the award; they present questions of law, which we review de novo. (Ibid.)
Defendants contend Whitely, as the prevailing party, is entitled to an award of attorney fees based on Civil Code section 3496 and Health and Safety Code section 17980.7, subdivision (c)(11). Civil Code section 3496 authorizes recovery of attorney fees and costs by the prevailing party in cases in which the government seeks to enjoin sale, distribution, or public exhibition of obscene matter (subd. (a)), use of a building for illegal gambling, lewdness, human trafficking, or prostitution (subd. (b)), use of a building for unlawful sale, manufacture, storage, or giving away of any controlled substance (subd. (c)), or unlawful sale, service, storage, or giving away of alcoholic liquor (subd. (d)). This case does not fall within any of those categories; the statute does not apply to the injunction sought in this case, and does not authorize an award of attorney fees or costs to Whitely.
Erroneously identified by defendants in their opening brief as Health and Safety Code section 17980.7, subdivision (b)(11).
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Health and Safety Code section 17980.6 provides that, "[i]f any building is maintained in a manner that violates any provisions of this part, ... or any provision in a local ordinance that is similar to a provision in this part, 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 and Safety Code section 17980.7, provides that, if the owner fails to comply within a reasonable time with the terms of a notice issued pursuant to section 17980.6, "[t]he enforcement agency ... may seek and the court may order, the appointment of a receiver." (Health & Saf. Code, § 17980.7, subd. (c).) "The prevailing party in an action pursuant to this section shall be entitled to reasonable attorney's fees and court costs as may be fixed by the court." (Health & Saf. Code, § 17980.7, subd. (c)(11).)
The court in City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, interpreted the language of this attorney fees provision in a nuisance abatement action in which the defendants prevailed after a court trial. The court considered "both the clear language of the statute and the placement of the attorney fees provision in section 17980.7. The attorney fees provision is not placed as its own subdivision in this section. [Citation.] Rather, subdivision (11)—the provision regarding attorney fees to the prevailing party—is under (c). Subdivision (c) is limited solely to receivership proceedings. Ballard completely ignores this placement of the attorney fees and prevailing party provision. It is true that subdivision (11) uses the language of 'section'; it is therefore authorizing attorney fees to the prevailing party in an action under section 17980.7. Thus, subdivision (c)(11) of section 17980.7 provides that the prevailing party in a claim pursuant to section 17980.7 shall be awarded attorney fees in the receivership proceedings." (Id. at p. 401.) Because there had been no receivership proceedings in that case, the defendants were not entitled to attorney fees under this provision.
At the time the complaint in this action was filed, Whitely was an owner of record of some of the properties in issue, although her attorney stated she was unaware her name was on the title. She did not wish to be involved in the litigation; after her attorney negotiated with plaintiffs around the time the complaint was filed, Whitely quitclaimed her interest in the properties to her brother, William Howard. Plaintiffs learned in late August 2013 that Whitely had conveyed away her interest in the property. They dismissed her from the action without prejudice on September 5, 2013. The motion for preliminary injunction and appointment of a receiver was heard on September 25, 2013; the order granting the motion was issued on October 29, 2013.
Whitely was not a party to the receivership proceedings at the time the request for appointment of a receiver was heard and decided. She had conveyed away her interest in the properties in issue at some point after the complaint in this action was filed. The motion for preliminary injunction and appointment of a receiver was filed on July 26, 2013, and opposition was filed on September 12, 2013. Plaintiffs determined in late August 2013 that Whitely had already quitclaimed her interest in the property to her brother. Thus, at the time defendants' opposition to the motion was filed, Whitely had no interest in the property and no reason to oppose the appointment of a receiver. Consequently, it is questionable whether she had any "reasonable attorney's fees" arising out of the receivership proceedings to recover. (Health & Saf. Code, § 17980.7, subd. (c)(11).)
A receiver was appointed to investigate and report on the condition of the properties in which Whitely formerly held an interest and, with court approval, to take action to abate any verified nuisance conditions. The order for a receiver was not entered against Whitely because she had conveyed away her interest in the property and was dismissed from the case prior to the time the trial court ruled on plaintiffs' request for appointment of a receiver. Whitely was dismissed from the action as a whole because she conveyed away her interest in the properties. Thus, she did not prevail on the substantive issues presented by the motion for appointment of a receiver or by the nuisance complaint. Rather, she rendered the claim against her moot by divesting herself of any interest in the real property in issue. Under these circumstances, we conclude the trial court did not abuse its discretion by denying Whitely's motion to recover attorney fees, implicitly finding she was not a "prevailing party" for purposes of recovering her attorney fees in the receivership proceedings, pursuant to Health and Safety Code section 17980.7, subdivision (c)(11).
Whitely contends she was the prevailing party as that term is defined in Code of Civil Procedure section 1032, and that definition should be used to determine the prevailing party for purposes of an award of attorney fees under Health and Safety Code section 17980.7, subdivision (c)(11). Code of Civil Procedure section 1032, after defining the term "prevailing party" to include "a defendant in whose favor a dismissal is entered," provides that "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Code Civ. Proc, § 1032, subds. (a)(4), (b).) California courts, however, have uniformly rejected the use of the definition of "prevailing party" found in Code of Civil Procedure section 1032 to determine the prevailing party for purposes of attorney fees statutes. (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572 (Heather Farms).) Code of Civil Procedure section 1032 expressly states it is defining "'prevailing party'" only as the term is used in that section. (See Code Civ. Proc., § 1032, subd. (a).) "It does not purport to define the term for purposes of other statutes." (Heather Farms, at p. 1572.)
Where a statute authorizing recovery of attorney fees applies, courts "have taken the approach that attorney fees recovery is governed by the fee-shifting statute itself .... Under this analysis, if the particular fee-shifting statute does not define prevailing party, then the trial court should simply take a pragmatic approach to determine which party has prevailed. That is, the trial court would determine which party succeeded on a practical level, by considering the extent to which each party realized its litigation objectives." (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.)
In Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124 (Galan), for example, the plaintiffs sued the owner of a substandard building based on habitability problems. When a new owner, Wolfriver, purchased the building, it was added as a defendant in the action. The plaintiffs settled with the prior owner; as part of that settlement, the plaintiffs agreed to dismiss Wolfriver. The prior owner wanted Wolfriver dismissed because Wolfriver had claims against it for fraud in the transfer; the plaintiffs agreed to dismiss because Wolfriver was uninsured and it was questionable whether any judgment against it would be collectible. (Id. at p. 1126.) After Wolfriver was dismissed, it sought an award of attorney fees pursuant to Civil Code section 1942.4. The trial court denied the motion, finding Wolfriver was not the prevailing party under that section, and the appellate court affirmed.
The court declined to use the definition of prevailing party in Code of Civil Procedure section 1032, because it defined the term as used in that section and not for all purposes. Civil Code section 1942.4 did not define the term. "Therefore, it would appear the determination of which party, if either, prevailed in an action brought under section 1942.4 is a matter left to the discretion of the trial court." (Galan, supra, 80 Cal.App.4th at p. 1128.) The trial court acted within its discretion in finding there was no prevailing party on a practical level. (Id. at p. 1129.) The plaintiffs' settlement with other defendants did not exonerate Wolfriver. "Further, having settled, plaintiffs made a practical determination that it was not worth pursuing Wolfriver through what would have been a costly trial." (Ibid.) The merits of the plaintiffs' claims against Wolfriver were never resolved. (Id. at pp. 1129-1130.) Consequently, the trial court did not abuse its discretion in finding Wolfriver was not the prevailing party for purposes of an award of statutory attorney fees. (Id. at p. 1130.)
In Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168 (Donald), a disabled plaintiff sued a restaurant for violating handicap access requirements. The plaintiff's claim for injunctive relief was denied because, during the litigation, the restaurant became insolvent and went out of business. The trial court awarded the restaurant its attorney fees on the cause of action for injunctive relief. (Id. at p. 172.)
The appellate court reversed the award of attorney fees. There was no dispute the restaurant was in violation of the handicap access requirements. (Donald, supra, 218 Cal.App.3d at p. 174.) The plaintiff's complaint sought to enjoin the restaurant from operating "'as an eating facility open to the public, so long as handicapped persons are not provided full access to the accommodations, including entry to the restaurant as required by law.'" (Id. at p. 184.) The request for injunctive relief was moot, however, because "the precise relief requested in the complaint was achieved by the time of trial." (Ibid) While the trial court properly denied injunctive relief as moot, it abused its discretion by finding the restaurant was the prevailing party for purposes of an attorney fees award on the cause of action for injunctive relief. (Id. at p. 185.) "Injunctive relief was denied for the express reason that the restaurant was no longer in business, not because access violations had not been demonstrated. Furthermore, evidence in the record indicates and the court determined that Cafe Royale ceased operation due to the fact that the costs of compliance with access requirements would not have permitted operation of a profitable restaurant." (Ibid.) Neither party prevailed for purposes of an award of attorney fees on the cause of action for injunctive relief. (Ibid)
Plaintiffs brought this action, seeking to enjoin defendants' maintenance of nuisances on their properties and to have a receiver appointed to abate the nuisances. At the time the complaint was filed, Whitely was an owner of some of the properties, with potential liability for their condition. During the pendency of the action, Whitely divested herself of her interests in the properties at issue, rendering the claim for injunctive relief and appointment of a receiver moot as to her. She was dismissed from the action. Her dismissal did not reflect on the merits of plaintiffs' claims. It reflected a recognition that much of the relief sought was moot as to her because she no longer held an interest in the subject properties. Consequently, the trial court did not abuse its discretion by making a determination on a practical level that Whitely was not the prevailing party. The trial court did not err in denying Whitely's motion for attorney fees.
DISPOSITION
The order granting the preliminary injunction and appointing a receiver and the order denying Whitely's motion for attorney fees are affirmed. Plaintiffs are entitled to their costs on appeal.
/s/_________
HILL, P.J.
WE CONCUR: /s/_________
CORNELL, J.
/s/_________
FRANSON, J.