Opinion
A151828
05-09-2018
COUNTY OF SONOMA, Plaintiff and Respondent, v. ROSEMARY JENSEN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV258993)
Rosemary Jensen and the County of Sonoma (County) have been engaged in protracted litigation regarding certain property owned by Jensen. An abatement hearing found Jensen's property in violation of the Sonoma County Code, and the resulting abatement order was upheld by the Northern District of California, the Ninth Circuit, the Sonoma County Superior Court, and this court.
In the most recent iteration of the parties' dispute, the County filed suit to enforce the abatement order and have Jensen's property declared a public nuisance. Jensen now appeals from a judgment that, in part, finds her in violation of the abatement order, directs her to cease the present unlawful uses and abate the zoning violations, and requires her to pay civil penalties, costs, and attorney fees. She contends the County's claim to enforce the abatement order was required to be filed as a compulsory cross- complaint in her prior actions and is barred by the statute of limitations. We affirm the trial court's judgment.
On February 28, 2018, Jensen filed an unopposed request for judicial notice of four documents from her prior case Jensen v. County of Sonoma (A139466), of which the trial court in this matter took judicial notice. On April 4, 2018, the County submitted an unopposed request for judicial notice of Sonoma County Code section 1-7.3. We grant both requests. (Evid. Code, §§ 459, subd. (a), 452, subd. (a).)
I. BACKGROUND
As described in more detail in a prior opinion of this court (Jensen v. County of Sonoma (May 27, 2015, A139466) [nonpub. opn.] (Jensen I)), Jensen is the record owner of property that houses numerous vehicles, many of which are inoperable, and miscellaneous junk and metal piles. Following an abatement hearing, in April 2008, Jensen's property was found in violation of the Sonoma County Code with respect to junkyard conditions, nonoperative motor vehicle storage, and truck or equipment terminal. Jensen was ordered to abate her property and pay various civil penalties and administrative costs. The decision stated it "is the final decision, subject to judicial review in accordance with California Code of Civil Procedure Sections 1094.5 and 1094.6."
We take judicial notice of our prior decision. (Evid. Code, § 452, subd. (d).)
Jensen challenged the abatement order in federal court, asserting various civil rights violations by the County and seeking relief under Code of Civil Procedure section 1094.5. Among other things, Jensen asserted the County violated her due process right to a fair and impartial hearing, her First Amendment right to free speech and to petition, her right against unreasonable search and seizure, her Fifth Amendment right against excessive fines, her right to equal protection of the law, as well as violated article I, section 1 of the California Constitution, which accords all people the right to life, liberty, and property. She alleged the administrative hearing "was conducted with total disregard of any organized fashion for presenting and rebutting evidence," the County interfered with her right to cross-examine witnesses, and the hearing officer was biased. The federal court granted summary judgment in favor of the County and dismissed without prejudice the state law claims, including Jensen's section 1094.5 claim. (Jensen v. County of Sonoma (N.D.Cal. June 4, 2010, No. C-08-3440 JCS) 2010 WL 2330384, affd. (9th Cir. 2011) 444 Fed. Appx. 156.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Jensen's son, Randy Jensen, was also a plaintiff in the prior federal and state proceedings but is not a party to the current action.
In August 2011, Jensen filed an action in Sonoma County Superior Court, asserting various California civil rights violations and seeking relief under section 1094.5. The trial court granted the County's motion for summary judgment as to Jensen's claims for violations of article I, section 1 of the California Constitution and invasion of privacy. Jensen then voluntarily dismissed the first cause of action and proceeded solely on the petition for writ of administrative mandamus pursuant to section 1094.5. Following a bench trial, the court entered judgment in favor of the County. We affirmed the trial court's judgment in May 2015. (Jensen I, supra, A139466.)
In June 2016, the County filed the present action asserting two causes of action. The first sought enforcement of the 2008 abatement order, and the second requested a finding that Jensen's conduct violated applicable zoning regulations and constituted a public nuisance per se. The County filed a motion for judgment on the pleadings, asserting the issues had previously been adjudicated and multiple courts found the order valid. The trial court denied the motion but concluded Jensen's "affirmative defenses based on the failure to file a compulsory cross-complaint/counterclaim and the running of the statute of limitations are not viable." Following trial, the court adopted this prior holding and incorporated it into the statement of decision. Judgment was entered and Jensen timely appealed.
II. DISCUSSION
Jensen does not contest the judgment with respect to the County's second cause of action for public nuisance. In fact, Jensen concedes she stipulated to the ongoing zoning violation. On appeal Jensen only argues the County's first cause of action to enforce the abatement order is barred by section 426.30 and various statutes of limitation. We address each argument in turn. A. Section 426.30
Section 426.30, subdivision (a) provides: "Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." Jensen argues section 426.30 required the County to bring its enforcement action as a compulsory cross-complaint at the time it filed its answer in the prior federal and state actions because the abatement order was immediately enforceable. Because the County failed to do so at that time "or at any time thereafter," Jensen contends the County is now barred from bringing this action. In response, the County asserts section 426.30 does not apply to writ petitions.
While a writ petition may fall outside the express "complaint" language of section 426.30, Jensen's 2011 complaint contained both a civil rights cause of action and a petition for writ of administrative mandamus. However, Jensen appears to have voluntarily dismissed the first cause of action—i.e., the "complaint" portion of her lawsuit. Authorities are divided as to whether a voluntarily dismissed complaint may trigger the res judicata effect of section 426.30. For example, in AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, the plaintiff argued its failure to file a cross-complaint in a prior action could not bar its current action because the related claim had been voluntarily dismissed from the prior complaint. (Id. at p. 1313.) The court rejected this argument and concluded, "The critical time period to which section 426.30 looks is that point in time when the complaint has been filed and served against a defendant and the defendant 'fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff.' " (Id. at pp. 1313-1314, italics added by AL Holding Co.; see ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 81, italics added ["Under California's compulsory cross-complaint statute, a party is prohibited from asserting a claim if, at the time the party answered a complaint in a prior suit, it failed to allege in a cross-complaint any related cause of action against the plaintiff."].)
While Jensen also filed a complaint in federal court, she does not argue in her opening brief her federal action triggers section 426.30. As such, we decline to discuss it. (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1511 [" 'Issues not raised in an appellant's brief are deemed waived or abandoned.' "].)
The record indicates Jensen filed a request for dismissal of the first cause of action, which was entered on November 28, 2012, and the trial court's judgment noted Jensen voluntarily dismissed the first cause of action. However, the record also reflects the trial court proceeded with a pending summary judgment motion and ruled on the merits of the first cause of action after the cause of action was voluntarily dismissed.
Conversely, in Great Western Furniture Co. v. Porter Corp. (1965) 238 Cal.App.2d 502, the court concluded the plaintiff's present action was not barred because the defendant had voluntarily dismissed its prior claims, thereby "prevent[ing] [the plaintiff] from filing a counterclaim and thus preclud[ing] [the statutory predecessor to section 426.30] from becoming operative." (Id. at p. 513; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 6:520, p. 6-153 ["If the [compulsory cross-]claim has still not been pleaded by the time the case goes to trial, judgment in the action will bar later recovery by defendant on the 'related' claim."].)
We need not resolve this conflict. Even if section 426.30 is triggered despite a subsequent voluntary dismissal, the County's enforcement claim does not qualify as a compulsory cross-complaint under section 426.30.
Neither party cites any California cases addressing whether a government enforcement action could qualify as a compulsory cross-complaint under section 426.30. Nor are we aware of any. We thus look to federal authority for guidance. (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777 [noting § 426.30 is a parallel provision to rule 13(a), Fed. Rules Civ. Proc., 28 U.S.C.].) In Audubon Life Ins. Co. v. F.T.C. (M.D.La. 1982) 543 F.Supp. 1362, 1363 (Audubon), the Federal Trade Commission (FTC) adopted a resolution authorizing it to investigate whether certain companies were engaged in unfair or deceptive practices. The plaintiffs refused to comply with the civil investigative demands (CID's) issued by the FTC pursuant to this resolution and filed a lawsuit challenging the legitimacy of those CID's. (Id. at pp. 1363-1364.) The plaintiffs claimed rule 13(a) of the Federal Rules of Civil Procedure (28 U.S.C.) required the FTC to bring any contemplated enforcement proceedings in connection with the CID's as a compulsory counterclaim to its lawsuit. (Audubon, at p. 1364.) The court disagreed, noting "the cases which have discussed this issue have unanimously rejected it." (Id. at p. 1370.) Specifically, the court noted Congress created a statutory scheme that allowed the timing and venue of enforcement proceedings to rest within the FTC's discretion. (Id. at p. 1370, fn. 12, quoting § 20(e) of the FTC Act, 15 U.S.C. § 57b-1(e) [" 'Whenever any person fails to comply with any civil investigative demand . . . the Commission . . . may file, in the district court of the United States . . . .' " (bold and italics added)].) In light of such statutory discretion, the court concluded requiring enforcement actions to be filed as compulsory cross-complaints would "force the premature assertion of the enforcement claim" and "fly in the face of the very objective of Rule 13(a)" by "encourag[ing] the filing of pre-enforcement actions." (Audubon, at pp. 1370, fn. 12, 1371.) Similarly, in Gustin v. U.S. I.R.S. (5th Cir. 1989) 876 F.2d 485, the court concluded Federal Rules of Civil Procedure, rule 13(a) did not apply to government tax enforcement actions, holding, "If the timing and forum are not to the government's liking, the government need not bring the counterclaim." (Gustin, at p. 490, fn. 1; see Hemmings v. Commissioner (1995) 104 T.C. 221, 234 ["The courts that have considered the issue have uniformly rejected the contention that the claim of the United States for unassessed additional taxes in a refund action is a compulsory counterclaim."]; accord Benjamin v. Magens Point Resort Hotel (V.I. Super. 2007) Civil No. 360/2004, 2007 WL 4874774, p. *2 [Department of Labor's "Petition for Enforcement" not a compulsory counterclaim because "statute provides that the Commissioner may request the Court to enforce [Department of Labor]'s order" but is not required to do so].)
We find the reasoning adopted by our federal colleagues sound and in harmony with California law. When a statute defers to the government's discretion regarding whether or when to bring an enforcement action, it makes little sense to interpret section 426.30 as requiring the premature filing of such actions. (Salazar v. Eastin (1995) 9 Cal.4th 836, 857 ["To the extent a specific statute is inconsistent with a general statute potentially covering the same subject matter, the specific statute must be read as an exception to the more general statute."].)
Here, Sonoma County Code section 1-7.3, subdivision (k) provides: "If the property owner does not comply with an order of the hearing officer, the enforcing officer or his or her designee shall be authorized to request that county counsel seek judicial enforcement of the administrative order." (Italics added.) This section allows the County to request judicial enforcement of the order, but does not require that the County do so. (Sonoma County Code, § 1-7.3, subd. (k).) Nor does Jensen contend such an enforcement action is necessary for the County's abatement order to take effect. To the contrary, Jensen repeatedly argues the abatement order was "final and enforceable." Thus, once the hearing officer issued the decision it was "final," and the County did not need to take any further steps to litigate the merits of that order. Aside from defending the order in the event of a timely challenge, the County had nothing further to do as a prerequisite to enforcement. Jensen's argument, therefore, that the County needed to seek enforcement of the order as a compulsory cross-complaint is misplaced. The County was entitled to first assess whether Jensen would comply with the order once her judicial challenges were unsuccessful. Upon her continued noncompliance, the County was then entitled to exercise its statutory discretion and determine whether to pursue judicial enforcement of its order.
Accordingly, the County's first cause of action is not barred by section 426.30. B. Statute of Limitations
Jensen next contends the trial court improperly concluded the statute of limitations as to the first cause of action to enforce the abatement order was tolled pending resolution of the related state and federal cases. Because the administrative order was not stayed, Jensen argues tolling is inapplicable and the County was free to pursue its enforcement action. Jensen claims the County's action is thus barred by either the three-year statute of limitations for an action upon a liability created by statute (§ 338, subd. (a)), the four-year catch-all statute of limitations (§ 343), or the one-year statute of limitations for civil penalties (§ 340, subd. (a)). The County responds, in part, that no statute of limitations applies because the matter involves a continuing nuisance. We agree.
Under Civil Code section 3490, no lapse of time can legalize a public nuisance. Courts construing this section have uniformly held "there is no statute of limitations in an action brought by a public entity to abate a public nuisance." (See, e.g., Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.) Accordingly, any claim by the County for public nuisance cannot be time-barred.
Jensen asserts such authority is inapplicable because the first cause of action is not one for public nuisance but rather to enforce specified duties in the administrative order. In this context, however, we find this distinction meaningless. "To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the 'gravamen' of the cause of action. [Citations.] '[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.' " (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23.) Here, the gravamen of the County's first cause of action is to enjoin and abate Jensen's ongoing violations of the County's zoning regulations. The cause of action recounts the applicable zoning regulations and notes the administrative order concluded Jensen was in violation of these zoning regulations. It then notes Jensen has failed to abate the "continuing nuisance and use violations on the Property," and asserts Jensen "will continue to violate [the applicable zoning regulations] unless restrained and enjoined from doing so by the Court." The cause of action then requests Jensen be enjoined from continuing to violate the zoning regulations and seeks penalties and fees available under the County code.
At least one other court has considered an action to enforce an administrative decision as equivalent to one seeking to enforce and abate a zoning violation. In People v. Gates (1974) 41 Cal.App.3d 590, the board of supervisors determined an auto wrecking operation constituted a nonconforming use under county zoning ordinances. (Id. at p. 597.) The County of Santa Cruz subsequently filed suit against the business to enjoin and abate operations on the ground that it constituted a public nuisance. (Id. at p. 606.) In describing the nature of the action, the court concluded both "[t]he action to enjoin a public nuisance . . . pursuant to the principle that a municipal corporation has the right to seek enforcement of its zoning ordinance" and "[t]he action to abate a public nuisance . . . pursuant to [the county code] . . . . were original actions brought by the county to enforce an administrative decision." (Ibid.) As such, we see no distinction between an action to enjoin and abate a public nuisance arising from zoning violations and one seeking to enforce an administrative order finding such zoning violations.
Our conclusion is in accord with general principles governing zoning violations. The California Supreme Court has long held "[n]o vested right to violate an ordinance may be acquired by continued violations." (Acker v. Baldwin (1941) 18 Cal.2d 341, 346.) In City of Fontana v. Atkinson (1963) 212 Cal.App.2d 499, the city passed a zoning ordinance permitting limited nonconforming use. (Id. at p. 501.) The property owners then expanded their nonconforming use over the course of multiple years. (Id. at p. 505.) In assessing whether the four-year statute of limitations applied under section 343 to bar the city's action, the court concluded: "The mere fact that, without more, city officials fail to enforce a zoning ordinance against a violator will not estop the city from subsequently enforcing it against him [or her]. [Citations.] [¶] Since the violation charged was a continuing violation, the statute of limitations does not run." (City of Fontana, at p. 509; see Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1369 [commission's years of inaction do not justify estopping it from enforcing the easement and permit restrictions].)
Conversely, those cases in which the government has been prohibited from enforcing zoning regulations involve delay that unjustly harmed property owners. For example, in City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, the defendants purchased a two-family building that had been zoned only for single-family use. (Id. at pp. 640-641.) The defendants pursued their administrative remedies, and the board of permit appeals ultimately ordered the zoning administrator to legalize the two-family building. (Id. at p. 641.) The city delayed challenging the board's decision for eight and a half years. (Id. at p. 644.) As a result, the court concluded the city's action was barred by the doctrine of laches, concluding it would be "unjust to allow the city and county to attack the Board's decision upon which the [defendants] have been relying for eight and a half years." (Id. at p. 647.) The court emphasized the defendants believed their use was lawful and the dispute was resolved by the board's decision. (Id. at p. 646.) Here, however, Jensen never expected the County to excuse her noncompliance with the abatement order or its zoning regulations, despite the delay. In fact, she explicitly argues the opposite in her briefs, stating, "Jensen had every reason to expect the County to enforce the order against her."
Jensen fails to cite a single case applying the limitation periods in sections 338, 340, and 343 to a similar action. Nor are we aware of any. In the absence of such authority, we conclude the County has broad leeway regarding when it may seek to enforce its zoning regulations and administrative orders related thereto, and its first cause of action is not barred by the statute of limitations.
III. DISPOSITION
The judgment is affirmed. Plaintiff County of Sonoma may recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.