Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV 028754
DAVIS, J.
Plaintiff Dominga Flores unsuccessfully sought injunctive relief in an abatement proceeding to prevent the execution of a warrant issued in the proceeding that authorized demolition of a building she owned on East Main Street in downtown Stockton. She appealed from the orders denying the preliminary injunction and rehearing, and petitioned this court for a writ of supersedeas. We denied the writ in March 2003. The demolition took place thereafter as scheduled. We later dismissed her appeal in August 2003 for her failure to file an opening brief.
The abatement proceeding in which the trial court issued the warrant and denied injunctive relief was entitled In the Matter of the Inspection/Abatement at: 926, 928, 930 and 932 East Main Street, Stockton, California (Stockton Super. Ct. No. CV017888); the appeal was entitled Flores v. City of Stockton (C043450).
The plaintiff commenced the present action in March 2006, and filed an amended pleading two months later. She sought damages under theories of inverse condemnation, a violation of her civil rights, and a failure to follow abatement procedures that complied with constitutional and statutory requirements. The trial court sustained the demurrer of defendant City of Stockton (City) without leave to amend “on the issue of res judicata” and entered a judgment of dismissal. The plaintiff filed a timely notice of appeal.
The judgment names the City’s redevelopment agency as a defendant. However, the record does not indicate whether this is an independent entity, and the City refers to itself in the singular as the defendant/respondent, so we will disregard the agency as a party on appeal.
The plaintiff disputes the application of res judicata. We conclude that the present claim is indeed precluded. We decline to address the other bases for the demurrer. We will therefore affirm the judgment of dismissal.
FACTS
A
We assume the truth of the factual allegations of the complaint. (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 540; Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 455.) We may also take into consideration anything properly subject to judicial notice, which includes the existence of documents in a court file but not the truth of their contents. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865.) However, it is proper to take judicial notice of the factual contents of orders, findings, judgments, or opinions for the nonhearsay purpose of deciding whether there had been an earlier determination of a factual issue that--whether resolved correctly or not--gives rise either to claim or issue preclusion in a later action. (Bach, supra, at p. 865; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.)
Defendant City requested the trial court to take judicial notice of a number of matters outside the four corners of the pleadings, including the petition and exhibits in the writ proceeding and the clerk’s transcript in the dismissed appeal (along with our orders denying the writ and dismissing the appeal). The plaintiff appended additional matters to her opposition. Both parties rely on the contents of various of these materials in violation of the principles we have explained above. Our summary of the material allegations will interweave the additional materials only to the extent that we may properly do so.
B
Once we skip lengthy recitations alleging the existence of a covert strategy on the part of defendant City to bring about urban renewal more inexpensively through the exercise of its police power rather than eminent domain (through abatement procedures that make any attempt to avoid demolition futile), we reach the acts at issue. The plaintiff purchased the East Main Street property in November 2000. Over a century old, it had retail space on the ground floor and residential space on the second and third floors, and had been posted with an order to vacate since May 1998. At the time of purchase, the plaintiff was aware of a notice to the seller that repairs restoring the building to occupancy had a deadline of April 2001, after which the status of the building’s residential component as a legal nonconforming use would terminate. The plaintiff obtained a building permit and made efforts to remediate the substandard conditions. Over the course of 20 inspections during the next year, defendant City’s building department continued to identify additional problems requiring repair. The plaintiff alleged that as of December 2001, remodeling efforts were 90 percent complete. However, in a code inspection that month, defendant City found “[n]umerous housing and fire code violations . . . as would be expected while premises are still under renovation.” The police also cited the plaintiff and her husband for living in a building subject to an order to vacate.
The last building inspection of the property occurred in September 2001. Unbeknownst to the plaintiff, her building permit required reinspection at least every six months. While defendant City calculated for itself that this deadline would occur in March 2002, it did not notify the plaintiff until after it had passed, at which point it sent a notice of the permit’s cancellation and posted a notice on the property of its intent to initiate an abatement proceeding to demolish the structure. The notice identified 20-odd substandard or hazardous conditions from the December 2001 inspection. The notice gave her the option of repairing the structure, but asserted that the nonconforming residential use had terminated. This would require her to apply for a use permit supported with a renovation plan before she could acquire a new building permit. Alternatively, she could demolish the building herself. She had 10 days to appeal the notice.
Defendant City later notified her that she would also need to remedy the nonconforming lack of off-street parking before making use of the commercial component of the building.
The plaintiff did not file an administrative appeal of the notice of intent to abate by demolition. She made efforts through the remainder of the year to obtain a new building permit, although she never filed an application for a new use permit. In the meantime, defendant City initiated the abatement proceeding in July 2002 with an ex parte application for a warrant to enter onto the property for purposes of inspection and demolition. Initially set to expire in two weeks, the court extended the expiration date to October 2002.
The supporting affidavit noted the existence of the violations identified in the December 2001 code inspection, the cancellation of the building permit, the expiration of the legal nonconforming residential use, the failure to file an administrative appeal of the notice to repair or demolish, the failure to file an actual application for a new building or use permit, and the continued existence of code violations during a June 2002 inspection (during which the police again cited the plaintiff, her husband, and an employee for residing in a building subject to an order to vacate).
In September 2002, the plaintiff filed an application ex parte in the abatement proceeding for a temporary restraining order and a preliminary injunction against demolition of the building. The court issued the temporary restraining order pending a hearing on the preliminary injunction in December 2002. Following the hearing, the court issued its order denying injunctive relief, “plaintiff having failed to establish the likelihood that she would prevail on the merits . . . and . . . failed to exhaust her administrative remedies.” The plaintiff moved for reconsideration. The court denied the motion, but issued a stay of demolition on the condition that the plaintiff post a bond. When the plaintiff failed to post a bond, the court dissolved the stay. After we denied her petition for a writ of supersedeas, defendant City demolished the building the next day. Considering it moot, the plaintiff abandoned her appeal from the court’s orders.
After the plaintiff filed her original complaint in the present action, defendant City demurred on various grounds, among which were the preclusive effect of the abatement proceeding. A week after defendant City served its reply brief, the plaintiff filed the amended pleading at issue in this appeal. Defendant City renewed its demurrer on the same grounds. As noted at the outset, the court sustained the demurrer without leave to amend on the ground of preclusion.
Although the superior court initially assigned the case for all purposes to a different judge, Judge McNatt ruled on the demurrer.
DISCUSSION
There are two species of preclusion. To use the modern terminology, claim preclusion prohibits subsequent litigation between the same parties (or persons in privity with them) on the same cause of action after the entry of a final judgment on the merits. Issue preclusion operates to estop a losing party from relitigating issues fully and fairly tried in a prior final judgment on the merits. (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 242 (Knickerbocker); Rest.2d Judgments, Introduction, pp. 1, 4; 7 Witkin, Cal. Procedure, supra, Judgment, §§ 281-282, pp. 821-822.) Although the plaintiff confuses the two, we are concerned solely with the former in this appeal.
This is the term as used for purposes of the pleading theory of primary rights, not in the colloquial sense that confuses the term with “counts,” id est, alternative theories of liability. (See Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 735, fn. 2; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 24-26, pp. 85-88.)
I
Before we begin our analysis of claim preclusion, we first address the nature of the prior litigation. Entirely apart from any applicable statute or local ordinance, a municipality has the power both to define when a building’s condition constitutes a public nuisance, and to demolish an offending structure if this is the only means to abate it. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100, 103; City & County of San Francisco v. Meyer (1962) 208 Cal.App.2d 125, 131; Stoetzner v. City of Los Angeles (1959) 170 Cal.App.2d 394, 396; Civ. Code, §§ 3491, subds. (2), (3), 3494; Code Civ. Proc., § 731; Gov. Code, §§ 38660, subd. (d), 38771, 38773.)
Pursuant to this inherent authority, a municipality may bring an action at law to declare that a substandard building is a nuisance subject to abatement, or it may develop its own administrative abatement procedure. (Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244 (Flahive).) In these administrative proceedings, the owner must have an opportunity to contest the initial designation of the property as a public nuisance, because a municipality cannot merely deem a property ex parte to be a nuisance if it is not so in fact. (Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 717-718 (Leppo).) If the municipality sustains the designation of the property as a public nuisance subject to abatement, it must then provide a reasonable opportunity for the owner’s exercise of the right to remedy or abate the nuisance (which does not run anew upon transfer of the property). (D & M Financial Corp. v. City of Long Beach (2006) 136 Cal.App.4th 165, 174-175 (D & M); Hawthorne Savings & Loan Assn. v. City of Signal Hill (1993) 19 Cal.App.4th 148, 162.) If the owner is unwilling or unable to take action, the municipality may seek authorization from a court to abate the nuisance itself, in the form of a court order or an abatement warrant. Although there is no specific statutory procedure for the issuance of an abatement warrant, the common law has adopted the process for obtaining an inspection warrant as the most germane, as it was directed at the regulation of governmental intrusions onto private property to inspect for nuisances. (Flahive, supra, 72 Cal.App.4th at pp. 246-247 & fn. 8; Gleaves v. Waters (1985) 175 Cal.App.3d 413, 420 [eradication of Japanese beetles on private property]; 2 Cal. Land Use Practice (Cont.Ed.Bar 2007) § 20.25, p. 984.) Because this is not a civil action, Flahive suggested that neither a summons nor notice to the landowner is required in applying for the warrant, though it did not expressly reach the issue because the city gave notice and the homeowner in fact appeared at the proceeding. (Flahive, supra, at pp. 245-247 & fns. 7, 9.)
As Flahive notes, an administrative abatement procedure is generally called “summary” abatement. This is misleading because it incorporates provisions for predemolition notice and hearing, in contrast with a demolition without due process in an emergency situation. (72 Cal.App.4th at p. 245, fn. 5.) We will follow Flahive’s suggestion that an abatement after providing some sort of administrative due process should be called an “‘administrative abatement.’”
The process due a property owner in these administrative proceedings does not extend beyond notice and an opportunity to be heard. For example, it does not include a need for sworn testimony, the right to cross-examine witnesses, or the right to discovery. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 294, 301-302.)
See Code of Civil Procedure section 1822.50 et seq.
II
A
The substance of a cause of action in a primary rights analysis is based on the nature of the injury to a plaintiff, not a particular theory of liability. (Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 487; 4 Witkin, Cal. Procedure, supra, Pleading, § 26, p. 88.) It derives from the factual basis of the prior litigation. (4 Witkin, Cal. Procedure, supra, Pleading, § 24, p. 85.) Neither newly discovered evidence relating to this factual context (whether previously existing or stemming from events after trial) nor a new theory of liability will allow a plaintiff to avoid the bar of claim preclusion. (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 640 [learned of new theory of negligence after previous trial]; Quirk v. Rooney (1900) 130 Cal. 505, 510-511 [cannot bring new probate action on new theory based on new evidence]; Zimmerman v. Stotter (1984) 160 Cal.App.3d 1067, 1071-1074 (Zimmerman) [may not relitigate landlord’s motive based on inferences from events subsequent to unlawful detainer action]; Rest.2d Judgments, § 25, com. a, p. 210.)
The plaintiff correctly notes that Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 68, uses the formulation from the Restatement Second of Judgments, which casts the issue as determining the existence of a “transaction” that involves a “nucleus” of facts. However, our Supreme Court adheres to the primary rights formulation (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904 (Mycogen)), and we must follow its lead.
The right to possession of real property is among the most basic of these primary rights. (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 625.) In seeking redress for a violation of this primary right, one (for example) cannot split actions for recovery of real property and for damages from the wrongful possession, as both stem from the right to possession of the real property. (McNulty v. Copp (1954) 125 Cal.App.2d 697, 703-706; Rest.2d Judgments, § 25, com. (j), pp. 221-222.)
If the present litigation derives from the same cause of action as the abatement proceeding, then it is immaterial that the plaintiff did not actually raise the issue of damages (as she repeatedly points out). (Craig v. County of Los Angeles (1990) 221 Cal.App.3d 1294, 1299; Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155 (Allied).) That is relevant only in issue preclusion.
Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352 (Duffy) is similar to the present case. The owner of a decrepit structure initially brought a federal action in response to a notice of demolition, seeking injunctive relief, damages for his time and emotional distress in responding over the course of six years to abatement efforts, a declaration that the abatement procedures were unconstitutional, and just compensation for the taking of his property in violation of his right to due process. The federal court denied all relief, and the city demolished the structure. The owner then filed an action in state court that sought damages for the demolition of the structure. (Id. at pp. 1356-1357.) Duffy concluded that claim preclusion barred the action because it involved the same property and arose out of the same set of operative facts; while the plaintiff asserted that avoiding an anticipated demolition involved rights distinct from seeking damages for a completed demolition, the court rejected this reasoning, noting that the owner could and did raise the argument in the prior action that any demolition would be a taking for which he would be entitled to compensation. (Id. at pp. 1358-1359.)
Therefore, as in Duffy, when the plaintiff applied for injunctive relief in the prior proceeding, she certainly could have raised her current claims regarding procedural deficiencies in defendant City’s abatement procedures, and alternatively could have sought damages pursuant to her present theories of inverse condemnation or a violation of her civil rights in the event the court denied her application. She does not provide any authority for her bare assertion that her right to damages did not accrue until after the demolition of her building. The primary right involved is possession and use of property; that the remedy may differ (forestalling the interference with this right versus compensation for the interference) does not change the nature of the violated right. (See Leppo, supra, 20 Cal.App.3d at p. 717 [owner may forego preventative remedy of injunction and bring action for damages after demolition]; Rest.2d Judgments, § 25, com. (f), p. 214 [“fair to hold” that after judgment plaintiff is precluded from seeking any other remedies deriving from same grouping of facts].) In roughly analogous circumstances, Mycogen reaffirmed that one cannot seek a decree of specific performance of a contract and thereafter seek damages from the failure to comply with the decree; it held that a plaintiff must assert the right to damages provisionally in the action in anticipation of their accrual in the event of noncompliance with the decree. (28 Cal.4th at pp. 906-907.) The application for an injunction called into question whether the demolition was a proper exercise of defendant City’s police power to abate a nuisance after due process, which is central to a claim for compensation. (D & M, supra, 136 Cal.App.4th at p. 174; Leppo, supra, 20 Cal.App.3d at p. 716.) The demolition’s completion without any further invasion of her property interest (or other primary right) was consequently an anticipated result for which she could and should have sought damages in that litigation. As she has once had the occasion to litigate all the issues that would underlie the present action, she may not pursue a second opportunity with allegedly different evidence.
To quote the venerable case that Mycogen reaffirmed, “In such a case it is no warrant for a second action that . . . in the first action . . . all the damage may not then have been actually suffered.” (Abbott v. The 76 Land and Water Co. (1911) 161 Cal. 42, 48.)
That she expanded the abatement proceeding by seeking injunctive cross-relief rather than filing an independent action should not affect the analysis through an elevation of form over substance. Even assuming the statutory principles governing the bar of unpled compulsory cross-claims are not implicated (Code Civ. Proc., § 426.30, subd. (a)), cross-claims generally cannot be split where successful prosecution of a second action on a theory not raised in the first would nullify the initial judgment by impairing rights that it established. (Rest.2d Judgments § 22(2)(b) & com. (f), pp. 185, 189.) She does not argue anywhere that her choice to file in the abatement proceeding prevented her from addressing the anticipatory remedy of damages. (Compare Rest.2d Judgments, § 26(1)(c) & com. (c), pp. 233-234, 236-238 [claim preclusion not applicable where initial tribunal lacked power to award relief].) That her quest for an injunction or damages might have been doomed to failure because she never pursued an appeal in the administrative proceedings is a consequence of litigation strategy, not the tribunal.
Her argument that defendant City’s administrative procedures do not allow for raising the issue of compensation is immaterial. In a judicial challenge to the administrative finding that her property constituted a nuisance, she could have raised the issue of damages for an improper exercise of defendant City’s police power.
The question of whether (or not) her failure to file the administrative appeal prevented her from challenging the finding of nuisance in any subsequent judicial proceeding as a function of the failure to exhaust either administrative or judicial remedies (see Knickerbocker, supra, 199 Cal.App.3d at pp. 240-242) was an issue in the abatement proceeding, as reflected in that court’s order. The plaintiff contests its invocation in the present action through the vehicle of issue preclusion. As we find her present claim entirely precluded, we do not need to address any of her arguments regarding exhaustion.
The plaintiff adverts in passing to a separate cause of action for injuries to her person from the denial of her civil rights. As these personal injuries stem from the alleged denial of her civil rights only in the form of the destruction of her property, it is not an independent cause of action. Agarwal v. Johnson (1979) 25 Cal.3d 932 is inapposite. The separate cause of action for a violation of federal statutory rights against discriminatory employment practices addressed aspects of the defendants’ course of conduct (the impact of employment practices on racial minorities and a statistical analysis of the racial makeup of the employer’s workforce) separate from a defamatory reference to potential employers or the infliction of emotional distress through use of racial epithets, and the federal statutes were not intended to protect the same interests as the state causes of action for damages to reputation or the person. (Id. at pp. 941-42, 944, 947, 954-955.)
Also unavailing is her argument that she did not learn of supposedly new facts (the covert strategy of defendant City to demolish rather than condemn) to support a different theory of a violation of her civil rights until after the destruction of her building. This is nothing more than after-discovered evidence of mala fides on the part of defendant City, as in Zimmerman, which simply would provide additional support for her claim that the demolition was not a proper exercise of police power after due process. The present litigation therefore arises out of the same primary right.
She cites the inapposite situation of the accrual of a cause of action for fraud (in inducing a settlement of a contractual dispute) on discovery of the fraud after bringing an action for other breaches of the contract. (Allied, supra, 127 Cal.App.4th at pp. 152, 155-156; accord, Rest.2d Judgments, § 26, com. (j), p. 244.)
B
The plaintiff alternately asserts that the denial of an application for a preliminary injunction is a provisional ruling without preclusive effect. This is ordinarily correct unless it appears that the court’s ruling on the application is intended to be a final adjudication of the disputed issues. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248-1249.)
In the peculiar procedural posture of the prior proceeding, the only issue before the court was whether to allow execution of the abatement warrant. After issuing its order denying both the application for a preliminary injunction and the reconsideration motion, no further judicial action was necessary--any further litigation over an entitlement to a permanent injunction was moot once defendant City could proceed to execute the warrant. As a result, the court’s order has sufficient finality for purposes of applying claim preclusion.
In any event, this argument is not of any benefit to the plaintiff. If indeed the abatement proceeding is still pending, frozen in time for want of a final judgment (like Miss Havisham’s wedding banquet), then a demurrer to the present action would be proper on the ground of another action pending on the same cause of action between the same parties (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856), resulting in an order of abatement (5 Witkin, Cal. Procedure, supra, Pleading, § 1075, p. 523). We would therefore affirm the judgment on a different basis.
We do not express any opinion on whether the plaintiff would be entitled to pursue damages at this point in the abatement proceeding.
C
The plaintiff expends considerable effort in arguing that defendant City did not follow abatement procedures contained in the State Housing Law (SHL) and its implementing regulations for violations of the SHL’s building standards. (Health & Saf. Code, §§ 17910, 17920 et seq., 17960, 17980 et seq.; Cal. Code Regs., tit. 25, § 50 et seq.) However, she does not acknowledge at any point the independent source of municipal authority to abate substandard buildings as a nuisance that we have described above.
Although the standards contained in the SHL are binding on local agencies (Building Industry Assn. of Northern California v. City of Livermore (1996) 45 Cal.App.4th 719, 726), the SHL does not impose any mandatory duty to bring abatement proceedings to enforce them (Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1245). The plaintiff does not identify any statutory command (or judicial authority) or develop any cogent argument that a local entity may abate substandard buildings only pursuant to the SHL, or that the SHL procedures are mandatory in any administrative proceeding or action that a local entity brings pursuant to its independent authority to abate substandard buildings, such that the SHL divested the trial court of jurisdiction over the prior abatement proceeding.
More significantly, the plaintiff fails to identify any manner in which the order denying preliminary injunctive relief was void on its face, thereby allowing her to bypass the appeal from the prior order and raise these purported jurisdictional defects (including her claims that the administrative procedures of defendant City do not satisfy constitutional minimums for due process) for the first time in the present action. (7 Witkin, Cal. Procedure, supra, Judgment, § 286(c), p. 828 [void judgment lacks preclusive effect]; 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 11(2), p. 518 [presumption of jurisdiction in final judgment is conclusive absent facial defect]; Rest.2d Judgments, § 12, com. c, illus. 1, p. 120, com. d, pp. 120-122 [implicit assumption of jurisdiction implicates principles of claim preclusion regarding issues not raised and will bar relitigation absent extraordinary circumstances].)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., ROBIE, J.