Opinion
A148672
11-30-2017
COUNTY OF SONOMA, Plaintiff and Respondent, v. THE FIELDS OF THE WOOD, INC., Defendant; TONY AVILA SAMPSON, Movant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-257212)
For months, Tony Sampson, the chief executive officer of defendant The Fields of the Wood, Inc. (TFOW) was aware of a complaint filed by the County of Sonoma (County) regarding alleged code violations on property owned by TFOW on which Sampson lived. Sampson was aware of any impact the complaint and its allegations might pose to his privacy and property interests. He was aware that the superior court awarded the County a temporary restraining order and a preliminary injunction; he was aware that the County requested entry of default; and he was aware of the County's motion for default judgment and permanent injunction. Yet he did not apply to intervene in the action until just days before the County's motion for default judgment was scheduled to be heard. The trial court denied Sampson's application, ruling that Sampson had not established that his attempt to intervene was timely. Sampson appeals, arguing that the trial court erred in denying his application. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, the County filed a code enforcement complaint against defendant TFOW regarding property owned by TFOW in unincorporated County territory. A notice of removal to federal court was filed shortly thereafter in the superior court. The federal district court remanded on the ground that it had no jurisdiction to hear the matter.
The federal court noted in its written order that the notice of removal was filed by Sampson as the chief executive officer of The Fields of the Wood, Inc., and that Sampson included his name in the caption as a defendant even though he was not listed as a defendant in the County's complaint. The federal court further noted that The Fields of the Wood, Inc., could appear in federal court only through licensed counsel, and that it therefore could not appear pro se or be represented by Sampson.
In August 2015 the County filed a First Amended Complaint to Enforce Zoning Code Regulations, to Enforce Building Code Regulations, to Enforce Stormwater Quality and Sewage Disposal Regulations, to Abate a Public Nuisance and for Injunctive Relief. The summons and complaint were duly served on TFOW's agent for service of process (the Agent). On November 10, 2015, the County provided notice to the Agent and to Sampson, as chief executive officer of TFOW, that it would appear on the superior court's November 16, 2015 ex parte calendar to request a temporary restraining order and an order to show cause for preliminary injunction.
The County's ex parte application was not opposed, and Sampson did not seek to intervene. On November 17, 2015, notice of the temporary restraining order and order to show cause was mailed to Sampson, as well as to the Agent and to Daniela Pavone, an attorney who had not appeared as counsel for TFOW, but who had been in contact with the County about the matter.
At a hearing on December 9, 2015, the trial court judge explained to Sampson that he could not represent defendant TFOW, a corporation.
The trial court's minutes reflect that Sampson appeared at the hearing "on behalf of defendant corporation. [He] was informed of the tentative ruling continuing the hearing, which was adopted by the court, and was informed that he could not appear on behalf of the defendant corporation, and that the corporation would have to be represented by an attorney."
On December 30, 2015, with Sampson present, the superior court granted the preliminary injunction. No appearance had been made on behalf of TFOW, and no opposition to the order to show cause had been filed.
On January 15, 2016, request for entry of default was mailed to the Agent, to Sampson, and to Pavone, who had not yet appeared in the matter for TFOW or anyone else. Two months later, in March, the County filed a motion for default judgment and permanent injunction, which was served on the Agent and on Sampson. The motion was scheduled to be heard on April 27, 2016.
On April 22, 2016, just five days before the scheduled hearing, Sampson served written notice that he would file an ex parte application to intervene in the action. His application to intervene as of right under Code of Civil Procedure section 387, subdivision (b), was filed on April 26, along with his declaration, his amended declaration, a request for judicial notice, and a memorandum of points and authorities. Sampson contended that he lived on the premises at issue in the action and that he had personal property on the premises that would be affected by a judgment in the matter. He did not explain how that property would be affected by the judgment. Sampson also contended that his privacy interests were affected by the action, suggesting that he had been subject to warrantless searches in connection with the action, in violation of the Fourth Amendment. He further contended that his interests would not be represented unless he was permitted to intervene. Although Sampson quoted the provision in section 387, subdivision (b) requiring that an application to intervene as of right must be timely, he said nothing about the timeliness of his application in any of his submissions to the court, except for stating that his application was being submitted before the hearing on the County's motion for entry of judgment on the default.
Further undesignated statutory references are to the Code of Civil Procedure.
The County filed a memorandum in opposition, along with a supporting declaration and a request for judicial notice. The County argued that the application was untimely, in view of the fact that Sampson had actual and constructive knowledge of the lawsuit and its allegations as of November 18, 2015.
On April 26, 2016, the trial court denied the ex parte application to intervene. The notice of application was stamped, "Denied on April 26, 2016" with the handwritten notation, "Application declaration does not establish 'TIMELY APPLICATION.' "
On April 27, 2016, at the scheduled hearing on the County's unopposed motion for default judgment and permanent injunction, the trial court would not allow Sampson to argue, either as a representative of the defendant TFOW or as an individual. The trial court adopted its tentative ruling and granted the motion for default judgment and permanent injunction. Notice of entry of judgment was filed on May 11, 2016.
The trial court judge, Honorable Nancy Case Shaffer, noted that Sampson had requested oral argument and asked him, "Were you here when I explained that a corporation has to be represented by an attorney?" Sampson answered, "Yes." Counsel for the County informed the court that Sampson's ex parte application to intervene had been denied the day before by a different judge, and Judge Shaffer said, "Mr. Sampson, I'm sorry. I did everything that I could to make it clear to you that you would need to retain counsel to be represented in this action." Judge Shaffer further explained, "I can't allow a party who can't appear in my case to present arguments to the Court."
Sampson timely appealed the denial of his application to intervene.
Before he filed his opening brief on appeal, appellant requested that we take judicial notice of three separate records: a one-page transmittal letter from the United States District Court, Northern District of California, to the Clerk of the Sonoma County Superior Court; a proposed Complaint in Intervention that appellant presented to the Superior Court on April 26, 2016 and that was not filed or endorsed as received; and an audio recording of part of a telephone conversation between appellant and Holly Rickett, an attorney for the County. We took the requests under submission for decision with the merits. We now grant the request as to the proposed Complaint in Intervention, which is discussed in the County's opposition to Sampson's application to intervene. We deny the requests as to the transmittal letter and the audio recording, because we do not find it necessary, helpful or relevant to take judicial notice of these records. (Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6.)
DISCUSSION
A. Applicable Law
Section 387, subdivision (b) provides that "[u]pon timely application" the trial court shall permit a person to intervene in an action "if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by existing parties."
Section 387, subdivision (b) also requires the trial court to permit a party to intervene, upon timely application "[i]f any provision of law confers an unconditional right to intervene." Sampson does not contend that any such provision of law is at issue in this case.
Whether a motion to intervene is timely is a question of reasonableness, determined by reference to the date on which the potential intervenor knew or should have known that his interests in the litigation were not being adequately represented. (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104; Ziani Homeowners Association v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 2:439, p. 2-97.)
We review a trial court's determination of the timeliness of a motion to intervene for abuse of discretion. (U.S. v. State of Washington (1996) 86 F.3d 1499, 1503 [discussing Fed. Rules Civ. Proc., rule 24(a)(2)]; Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 555-556 [§ 387, subd. (b) is a counterpart to Fed. Rules Civ. Proc., rule 24(a) and is "interpreted consistently with federal cases interpreting [that rule]"].) We will not disturb the trial court's exercise of discretion "unless it appears that there has been a miscarriage of justice. . . . '[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham).) B. Analysis
Sampson raises a host of issues in his opening brief on appeal, but the only issue properly before us is the narrow question whether the trial court abused its discretion in denying Sampson's application to intervene as untimely. Sampson concedes that when default was entered in January 2016 he knew that his interests were not being represented in the action. The record suggests he should have known that months before, certainly by November 2015, when TFOW failed to respond to the County's complaint and application for temporary restraining order. Yet Sampson offered no justification to the trial court for waiting three or five months before his attempt to intervene or for filing his application just days before the scheduled hearing on County's motion for default judgment and permanent injunction. And on appeal, he offers no authority to suggest that the trial court abused its discretion in denying his application.
We ignore arguments, authority and purported facts that were not presented and litigated in the trial court. It is a general principle of appellate practice that issues not litigated in the trial court are waived and cannot be raised for the first time on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) --------
Sampson, who was never named as a defendant in the County's action, argues that his attempt to remove the County's action on defendant TFOW's behalf and his repeated attempts to represent TFOW in the superior court should somehow constitute evidence that he timely sought to intervene in the action as an individual. Sampson also argues that the County's counsel was required to inform him that the County would oppose his ex parte application to intervene but failed to do so, and that the County's failure to inform him that it would oppose his application led him to appear at the April 27, 2016 hearing on the motion for entry, where he "suffered prejudice." He cites no authority that supports his arguments, and we do not find them persuasive.
More generally, Sampson offers no argument or authority to suggest that he was prejudiced by the denial of his application to intervene, or that the denial of his application led to any prejudice or miscarriage of justice. He offers nothing to suggest that if he had been permitted to intervene, the trial court would not have granted the County's motion for default judgment against TFOW or its request for a permanent injunction.
It is Sampson's burden as appellant to show that the trial court erred (Denham, supra, 2 Cal.3d at p. 564) and to show that he was prejudiced by the alleged error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) Because Sampson fails to meet those burdens, we must affirm the trial court's order.
DISPOSITION
The order appealed from is affirmed. The County shall recover its costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.