Opinion
F082221
11-15-2022
JHS FAMILY LIMITED PARTNERSHIP et al., Plaintiffs and Appellants, v. CITY OF FRESNO, Defendant and Respondent.
Gilmore Magness Janisse and Timothy V. Logoluso for Plaintiffs and Appellants. Douglas T. Sloan, City Attorney, and Travis R. Stokes, Assistant City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. 17CECG03506, 17CECG04198, 18CECG00394, 18CECG00409, 18CECG00716, 18CECG00790, 18CECG01271, 18CECG01477, 18CECG02953, 18CECG03302, 18CECG03303. D. Tyler Tharpe, Judge.
Gilmore Magness Janisse and Timothy V. Logoluso for Plaintiffs and Appellants.
Douglas T. Sloan, City Attorney, and Travis R. Stokes, Assistant City Attorney, for Defendant and Respondent.
OPINION
DETJEN, J.
INTRODUCTION
JHS Family Limited Partnership, BDHOV, LP, WRHOV, LP, LEHOV, LP, and JDHOV, LP (collectively, petitioners) filed 14 separate petitions for writ of administrative mandate (Code Civ. Proc., § 1094.6 et seq.) in Fresno County Superior Court. The petitions challenged abatement billings or administrative citations respondent City of Fresno (City) issued to petitioners. The charges and citations arose from various ordinances contained in the Fresno Municipal Code (FMC) including (but not limited to), the Blighted Vacant Building Ordinance (FMC, § 10-617), the Fresno Housing Regulations (FMC, § 11-301 et seq.), and the Public Nuisance Abatement Ordinance (FMC, § 10-601).
(<https://library.municode.com/ca/fresno/codes/code_of_ordinances> [as of Nov. 15, 2022].)
The trial court consolidated the 14 separate petitions for resolution and denied all except one.
This appeal concerns 11 of the unsuccessful petitions. With respect to five (identified below), petitioners primarily argue the administrative proceedings before a "hearing officer" as set forth in City's Administrative Hearing Ordinance (FMC, § 1-401 et seq.) conflicts with the State Housing Law (Health & Saf. Code, § 17910 et seq.) and accompanying regulations (in title 24) known as the California Building Code (Cal. Code Regs., tit. 24, § 1.1.1). According to petitioners, state law contemplates administrative hearings before an "appeals board" for housing violations and it supersedes the City's Administrative Hearing Ordinance with respect to these matters. Petitioners direct us to Lippman v. City of Oakland (2017) 19 Cal.App.5th 750 (Lippman) to support this argument. They raise additional arguments that essentially challenge whether sufficient evidence supported these citations.
At the outset, we conclude petitioners forfeited any claim pertaining to 3545 E. Hammond Avenue. Petitioners mention the citation in their brief, but do not substantively discuss it. The City's brief notes this and argues "the appeal of this billing should be disregarded, and the trial court's ruling sustained as to this property." Petitioners offer no response to this on reply. Therefore, we conclude petitioners forfeited any claim of error arising from this citation. (DFS Group, L.P. v. County of San Mateo (2019) 31 Cal.App.5th 1059, 1086 [discussing discretionary rule that unsupported arguments may be treated as forfeited].) Eight of the petitions at issue were filed by JHS Family Limited Partnership; two petitions at issue were filed by BDHOV, LP; and one petition at issue was filed by BDHOV, LP, WRHOV, LP, LEHOV, LP, and JDHOV, LP. For ease of reference, we refer to petitioners as a whole and do not distinguish the petitions by the separate entities that filed them.
With respect to the remaining five citations, petitioners again raise a constitutional argument and challenge the sufficiency of the evidence.
On the first five citations, we determine petitioners forfeited their challenge to the City's Administrative Hearing Ordinance primarily (but not solely) because they insufficiently addressed the legal issue they raise. As explained herein, their argument invokes the "home rule" doctrine contained in article XI, section 5 of the California Constitution. The California Supreme Court describes this as a "sensitive area of constitutional law" (California Fed. Savings &Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16-17 (California Fed. Savings)) that requires courts to utilize a multi-factor "analytical framework" which ultimately "adjust[s] the political relationship between state and local governments in discrete areas of conflict" (id. at p. 18). (See State Building &Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 556-557 (City of Vista).)
Against this backdrop, petitioners inadequately presented or discussed this issue. Petitioners do not cite the applicable constitutional provision. They do not set forth the multi-factor test we must employ and they fail to address at least two prongs of the test (described, post). Their analysis largely consists of block quoting Lippman's discussion of one prong of the home rule framework and supplementing it with conclusory statements such as "the City's appellate process provided and utilized a single hearing officer in violation of Petitioner[s'] due process rights."
Unfortunately, petitioners' argument boils down to citing one portion of Lippman (a highly favorable case for them) and asking us to do the rest. But we cannot serve as "backup appellate counsel." (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546.) Therefore, we conclude petitioners forfeited their primary challenge on appeal.
Petitioners' remaining claims also lack merit. Accordingly, we affirm the trial court's decision in full and award the City costs on appeal.
FACTUAL BACKGROUND
THE BILLINGS AND CITATIONS AT ISSUE
In 2017 and 2018, the City imposed administrative citations and fines related to health and safety violations and nuisance conditions on petitioners' properties in Fresno. They may be organized as follows:
A. Four Abatement Billings Issued Pursuant to The Public Nuisance Abatement Ordinance (FMC, § 10-601 et seq.)
The City issued abatement charges arising from corrective measures it took to summarily abate attractive nuisances (FMC, § 10-605, subd. (f)) on four properties.Each time, the City took corrective action such as securing "[o]pen windows and/or doors . . . using lexan and/or plywood" and then billed petitioners. The abatement billings at issue are:
The Public Nuisance Abatement Ordinance authorizes the City to "remove or otherwise abate" a "public nuisance" that is "imminently dangerous to life, health, safety or adjacent property such that it requires immediate correction or elimination ...." (FMC, § 10-609, subd. (a).) The City may then recover the costs incurred to abate the nuisance. (FMC, § 10-610.)
• 1240 E. Calwa Avenue (Calwa Property) - The City billed petitioners $1,096 for corrective actions taken on May 1, 2017.
• 3464 E. Floradora Avenue (Floradora Property) - The City billed petitioners $680 for corrective actions taken on October 6, 2017.
• 3018 E. Madison Avenue (Madison Property) - The City billed petitioners $370 for corrective actions taken on April 4, 2018.
• 1376 N. Seventh Street (Seventh Street Property) - The City billed petitioners $220 for corrective actions taken on May 2, 2018.
B. Three Citations Arising From Violations of The Fresno Housing Regulations (FMC, § 11-301 et seq.)
In addition, the City issued administrative citations on the following properties:
• 3028 E. Washington Avenue (Washington Property) - Petitioners received two citations on this property. The citations primarily arose from violations of the Fresno Housing Regulations.
For example, the first administrative citation (issued Oct. 13, 2017) stemmed from the following violations (1) "rubbish or junk" on the property (FMC, § 10-605); (2) a water heater replaced without permits or inspections (FMC, § 11-107); (3) missing window screens (FMC, § 11-324); (4) damaged and unsanitary interior finished surfaces (FMC, § 11-324); (5) hazardous interior staircase (FMC, § 11-324); (6) inadequate weather protection (FMC, § 11-317, subd. (b)); and (7) damaged exterior front staircase and hazardous rear staircase (FMC, § 11-324). The City assessed a fine of $4,250 arising from these violations.
On March 6, 2018, the City issued another citation on this property in the amount of $1,200. This citation arose from the failure to remedy the hazardous staircase conditions set forth in the original citation dated October 13, 2017.
• 440 E. Kearney Boulevard (Kearney Property) - On December 5, 2017, the City cited petitioners for violations of the Fresno Housing Regulations including four violations of FMC section 11-324 and one violation of FMC sections 11-307 and 11-308. The amount of the citation was $3,200.
C. Two citations Arising Under The Public Nuisance Abatement Ordinance (FMC, § 10-601 et seq.)
Petitioner received the following administrative citations for public nuisances:
• 360 N. Roosevelt Avenue (Roosevelt Property) - On October 9, 2017, the City cited petitioners in the amount of $7,500 for a "severely damaged roof" (underlining &capitalization omitted) in violation of the Blighted Vacant Building Ordinance (FMC, § 10-617, subd. (b)(2)).
• 2970 E. Illinois Avenue (Illinois Property) - On December 7, 2017, the City issued a $250 citation arising from "a violation of [FMC] 10605 [sic]." The specific nuisance was "unapproved fencing material on the west side of the front fence" of the property.
D. Remaining Citations
The remaining administrative citation challenged in petitioners' opening brief is as follow:
• 1461 N. Archie Avenue (Archie Property) - On July 26, 2017, the City assessed petitioners a "Public Nuisance Abatement Billing" in the amount of $1,600. This citation arose from "three alleged building violations not having been timely repaired, including 1) water leakage in the garage, 2) illegal room addition to the garage, and 3) a damaged and inoperative evaporative cooler."
With respect to this citation, petitioners only include the writ petition and the administrative hearing transcript. As discussed in part II.D, post, we find any claim of error relating to the Archie Property forfeited for failing to compile an adequate record.
THE ADMINISTRATIVE HEARINGS
Petitioners appealed the penalties discussed above and separate hearings occurred on each of them.
In separate statements of decision, the hearing officer affirmed the summary abatement charges. Each time, the hearing officer found the conditions of the respective properties justified abating the nuisance without prior notice to petitioners.
Similarly, petitioners' administrative challenges pertaining to the Roosevelt,Illinois, and Archie Properties were unsuccessful.
Notably, the hearing officer also held the $7,500 amount did not violate the Eighth Amendment's prohibition against excessive fines.
A hearing officer amended the citation amount for the Kearney Property to $3,200 and consequently affirmed that amount. In addition, an administrative hearing officer affirmed a $4,250 amount for the first Washington Property citation. The second citation related to the Washington Property was affirmed in the amount of $1,200.
The hearing officer dismissed one of the Fresno Housing Regulations violations related to a missing exterior light fixture cover (count 17).
The hearing officer dismissed one of the violations for missing window screens (count 12).
PROCEEDINGS IN THE TRIAL COURT
Petitioners filed separate petitions for writ of administrative mandamus for each of the billings and citations discussed above. They were filed under the following Fresno County Superior Court case numbers (listed in chronological order according to their filing date):
Calwa Property - Case No. 17CECG03506.
Archie Property - Case No. 17CECG04198.
Roosevelt Property - Case No. 18CECG00409.
Washington Property (First Citation) - Case No. 18CECG00394.
Kearney Property - Case No. 18CECG00716.
Floradora Property - Case No. 18CECG01271.
Illinois Property - Case No. 18CECG01477.
Washington Property (Second Citation) - Case No. 18CECG02953.
Seventh Street Property - Case No. 18CECG03303.
Madison Property - Case No. 18CECG03302.
Relevant for purposes of this appeal, every writ petition starting with the Kearney Property onward contained the following allegation:
"Petitioner[s] allege[] herein the manner in which the Respondent hears and decides the appeal hearings is illegal, unconstitutional and in violation of a property owner's 'Due Process' rights, as based on the case of Lippman v. City of Oakland (2018) - recently published."
Ultimately, the trial court consolidated each of petitioners' separate writs into lead case No. 17CECG03498.
A. Petitioners' Opening and Reply Briefs
Petitioners filed an opening brief that grouped the separate writs into four categories involving "similar claims and arguments": (1) lack of notice writs; (2) new violation writs; (3) "cleaning tenant storage"; and (4) "weed abatement." (Capitalization omitted.)
None of the properties at issue in this appeal fall within the scope of the latter two categories (cleaning tenant storage and weed abatement).
The "[l]ack of [n]otice" writs encompassed the following properties: (1) Roosevelt; (2) Calwa; (3) Floradora; (4) Illinois; (5) Seventh Street; (6) Madison; and (7) Washington (both writs).
For example, petitioners argued the City summarily abated the attractive nuisances "without any actual notice whatsoever to Petitioner[s]."
Regarding the Roosevelt, Illinois, and Washington Property citations, petitioners argued the City did not honor agreements to extend the time for petitioners to cure violations or that it provided defective notice in some form or fashion. By way of example, petitioners claimed a "previous" inspector "was fully aware of" a lawsuit related to the Roosevelt Property and "allow[ed] Petitioner continued time to complete the roof repairs." Petitioners claimed they did not receive adequate notice of the violation arising from improper fencing materials at the Illinois Property because the City "failed to provide a Proof of Service for the Correction Notice presumably mailed July 14, 2017."
In addition, the Archie Property and the Kearney Property fell within the "[n]ew [v]iolations" category. Generally, petitioners argued the City conducted inspections, identified violations, and petitioners cured them. When the City conducted re-inspections and subsequently issued citations, petitioners claimed they represented "new violations" without prior notice.
Notably, petitioners' opening brief never discussed Lippman despite the allegation in the writ petitions described above.
However, on reply, petitioners argued that the "state housing code and Building Code preempts the [Fresno] city charter and codes relating to hearing procedures." (Boldface &some capitalization omitted.) More specifically, petitioners claimed "[t]he State Building Code and Housing Code refers to an appeal of an 'appeals board' not a single hearing officer."
B. The Trial Court's Order
The record indicates a hearing occurred on the consolidated petitions on September 25, 2020. On November 6, 2020, the trial court issued an order denying each of the writs at issue in this appeal.
There is no reporter's transcript of this hearing.
Regarding the abatement billings, the trial court found "the evidence at the hearings showed that each of the vacant properties constituted a public nuisance and imminent danger to the public, since the properties were open and being used by transients."
There is a slight inconsistency in the record concerning the Calwa Property. The trial court discussed this billing in connection with the weed abatement writs. The order also did not list the Calwa Property under the "lack of notice" writs. However, that portion of the order references a "Case No[]. 18CECG03506." We presume that is a typographical error and references the Calwa Property's case No. 17CECG03506.
The trial court also rejected the remainder of the "lack of notice" writs because sufficient evidence supported the finding that petitioners received notice of the applicable violations.
Finally, the trial court rejected petitioners' claims regarding what they characterized as the "new violation" citations (Archie Property &Kearney Property).
Notably, the trial court's order made no mention of Lippman or the issues petitioners raised in their reply.
Petitioners timely noticed their appeal on January 5, 2021.
DISCUSSION
After setting forth the standard of review, we address the citations related to the Roosevelt, Archie, Kearney, and Washington Properties in part II, post. We conclude petitioners waived their claims with respect to these citations. This includes their argument pursuant to the home rule doctrine described below. When compared to the detailed multi-factored analysis a court must employ to resolve this constitutional issue, petitioners never explicitly state the rule or the applicable constitutional provision, they do not analyze all prongs under the applicable framework, and they fail to discuss other potentially applicable ordinances in the Fresno Municipal Code.
Following this, we turn to petitioners' claims with respect to the Calwa, Seventh Street, Madison, Illinois, and Floradora Properties. We likewise find these arguments lack merit.
In sum, we affirm the trial court's judgment in its entirety.
I. Standard of Review
Code of Civil Procedure section 1094.5 provides for review of"' "quasi judicial" '" public agency decisions through a writ of administrative mandamus. (See Department of Health Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 140.)
The statute limits the scope of a trial court's inquiry to:
"[W]hether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
The trial court employs the substantial evidence test if the administrative decision does not implicate a "fundamental vested right." (Saraswati v. County of San Diego, supra, 202 Cal.App.4th at p. 926.) Under this review, the trial court "will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision." (Inzana, supra, 35 Cal.App.5th at p. 440.)
By contrast, if the administrative decision "substantially affects a fundamental vested right" (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 926), the trial court "exercises its independent judgment on the evidence in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment on the evidence." (Inzana v. Turlock Irrigation Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 441 (Inzana).) The California Supreme Court directs courts to "decide on a case-by-case basis whether an administrative decision . . . substantially affects fundamental vested rights and thus requires independent judgment review." (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) Here, the trial court applied substantial evidence review because it concluded a "fundamental vested right" was not at stake. On appeal, neither party disputes the court's conclusion. We agree with the trial court. We noted in Inzana, that "[a]gency decisions that 'result in restricting a property owner's return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights.'" (Inzana, supra, 35 Cal.App.5th at p. 442.) This principle has been applied to an appeal concerning abatement costs incurred to remediate nuisance conditions on a landowner's property. (Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 284 (Clary) [applying substantial evidence standard].)
The California Supreme Court explains appellate review is "identical to that of the trial court." (Bixby v. Piero, supra, 4 Cal.3d at p. 149 &fn. 22.) Accordingly, "[w]e review the administrative record to determine whether substantial evidence supported the agency's findings ...." (Inzana, supra, 35 Cal.App.5th at p. 441.) This" 'deferential'" standard of review presumes the administrative ruling is correct and resolves all reasonable doubts in favor of it. (Ibid.)
However, if "the administrative decision rests on an interpretation or application of a statute or ordinance, a question of law is presented for our independent review." (Inzana, supra, 35 Cal.App.5th at p. 441.)
II. Petitioners Forfeit Their Claims Regarding The Roosevelt, Archie, Kearney and Washington Properties
With respect to the above citations, petitioners primarily claim "[t]he City's" use of a "single hearing officer" as set forth in Fresno Municipal Code section 1-401 et seq. violates section 1.8.8.1 of the Building Code because that law contemplates an "appeals board" arising from housing violations. (Boldface omitted.) Consequently, petitioners claim the administrative proceedings before a "single hearing officer" violated "Petitioner[s'] due process rights." Again, petitioners rely on Lippman for this argument.
Petitioners also half-heartedly raise an Eighth Amendment challenge to the Roosevelt Property. Additionally, petitioners raise other arguments with respect to the Archie and Kearney Properties that essentially challenge the sufficiency of the evidence.
Our analysis of petitioners' claims begins with the applicable constitutional provision and Supreme Court precedent on the home rule doctrine. We then move to Lippman, followed by setting forth the state and municipal laws relevant to this appeal. Following this, we explain why - despite this case's facial similarity to Lippman - we consider petitioners' claims forfeited for providing insufficient and selective legal analysis and lodging an incomplete record for review.
A. The Home Rule Doctrine and Applicable Supreme Court Test
"Under the state Constitution, the ordinances of charter cities supersede state law with respect to 'municipal affairs' [citation], but state law is supreme with respect to matters of 'statewide concern.'" (City of Vista, supra, 54 Cal.4th at p. 552, citing California Fed. Savings, supra, 54 Cal.3d at p. 17.)
Fresno is a charter city and section 200 of the "Charter of the City of Fresno" entitled "General Powers" (some capitalization omitted) states, in part, "[t]he City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter and in the Constitution of the State of California."
Article XI contains the applicable constitutional provision, and states, in relevant part:
"It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution shall supersede any existing charter, and with respect to municipal affairs shall supersede all laws inconsistent therewith." (Cal. Const., art. XI, § 5, subd. (a).)
In City of Vista, the Supreme Court described the "analytical framework" a court employs to determine "whether or not a matter falls within the home rule authority of charter cities." (City of Vista, supra, 54 Cal.4th at p. 556.) It stated:
Later in the opinion, the high court described the framework as the California Fed. Savings's "[f]our-part [t]est" - referring to its "1991 decision in California Fed. Savings, supra, 54 Cal.3d at pages 16 to 17 ...." (City of Vista, supra, 54 Cal.4th at p. 558, italics omitted.) The Supreme Court has also described the framework in three parts that begins with step two in City of Vista. (See Johnson v. Bradley (1992) 4 Cal.4th 389, 401 (Johnson).) In Johnson, the Supreme Court described the California Fed. Savings test as follows: "As we explained in [California Fed. Savings], the first step in a reviewing court's inquiry is to determine whether there is an 'actual conflict' between general state law and charter city authority." (Johnson, supra, 4 Cal.4th at p. 400.) We note these alternate formulations are present in appellate decisions. For example (and as described in the body of this opinion), Lippman began its analysis by evaluating whether an actual conflict existed between the applicable state and local law. (Lippman, supra, 19 Cal.App.5th at p. 757.) Alternatively, other Court of Appeal decisions have described the home rule analysis in four parts. (See, e.g., Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 795 ["Our Supreme Court has explained we engage in four steps in evaluating whether a charter city's law may contradict a state statute."]; see also Anderson v. City of San Jose (2019) 42 Cal.App.5th 683, 699 [home rule analysis requires assessing "four criteria, ultimately forcing a choice 'between conflicting state and municipal enactments when both stem from concerns rooted in their respective spheres of government.' "].)
"First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a 'municipal affair.' [Citation.] Second, the court 'must satisfy itself that the case presents an actual conflict between [local and state law].' [Citation.] Third, the court must decide whether the state law addresses a matter of 'statewide concern.' [Citation.] Finally, the court must determine whether the law is 'reasonably related to . . . resolution' of that concern [citation] and 'narrowly tailored' to avoid unnecessary interference in local governance [citation]. "If . . . the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution [and not unduly broad in its sweep], then the conflicting charter city measure ceases to be a 'municipal affair' pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.' [Citation.]" (Ibid.)
With the above test in mind, we turn to Lippman, which addressed a fact pattern similar to ours.
B. Lippman Employs the Home Rule Framework in The Context of Administrative Citations Arising From Municipal Violations
In Lippman, the City of Oakland (Oakland) cited the appellant for "blight and substandard living conditions" on his rental property. (Lippman, supra, 19 Cal.App.5th at p. 754.) His appeal of those citations came before a "hearing officer" from Oakland's building services department. (Ibid.) The hearing officer denied the appeals and the appellant petitioned for a writ of mandate in the superior court contending "his appeals should have been heard before the city council or an appeals board instead of a single hearing examiner." (Id. at p. 755.) The trial court denied the writ. (Ibid.)
Division Four of the First Appellate District reversed the trial court. (Lippman, supra, 19 Cal.App.5th at p. 767 ) It first concluded the applicable state law - section 1.8.8.1 of the 2010 Building Code - conflicted with the Oakland municipal code's "administrative hearing procedures used for building maintenance code violations." (Lippman, at p. 759; see id., at pp. 757-762.) On this point, the court explained the plain language of section 1.8.8.1 "establish[ed] an appellate process, which may be satisfied in one of three ways: (1) by creating a local appeals board for new construction and a housing appeals board for existing buildings; (2) by creating an agency authorized to hear such appeals; or (3) by having the governing body of the city serve as the local appeals board or housing appeals board." (Lippman, at p. 760.) The court deemed Oakland's administrative hearings "inconsistent with the mechanism mandated by the Building Code and State Housing Law." (Id. at p. 762.)
Moving to the next part of the framework, the First District wrote the "Building Code and related provisions in the State Housing Law are general laws of statewide concern that are applicable to [Oakland]." (Lippman, supra, 19 Cal.App.5th at p. 764.) On this prong, the appellate court noted" '[i]n 1970, the Legislature . . . declar[ed] a statewide interest in uniform building codes (Stats. 1970, ch. 1436, § 7, p. 2785) and otherwise express[ed] an intent to generally preempt the field.'" (Id. at p. 763, quoting ABS Institute v. City of Lancaster (1994) 24 Cal.App.4th 285, 288.)
Finally, the First District concluded the Building Code's appellate procedures were "narrowly tailored to ensure uniform application of state law." (Lippman, supra, 19 Cal.App.5th at p. 764, italics omitted.) The court acknowledged the underlying bases for the citations were a "local issue" but also stated "the procedure used to resolve citations generally is a matter of statewide concern." (Id. at p. 766.) Elaborating on this, the court wrote, "it is a' "sensible and appropriate"' allocation of state power to require compliance with the Building Code's appeals board requirement." (Ibid.)
Ultimately, the First District directed the trial court to "issue a writ of mandate compelling [Oakland] to establish an appeals board or authorized agency to hear appeals . . . as required by section 1.8.8 of the Building Code." (Lippman, supra, 19 Cal.App.5th at p. 767.)
C. Applicable State and Local Law
We discuss the following laws and ordinances (1) the State Housing Law (Health &Saf. Code, § 17910 et seq.); (2) the California Building Standards Code (Cal. Code Regs., tit. 24, § 1.8.8); (3) City's Administrative Hearing Ordinance (FMC, § 1-401 et seq.); and (4) Chapter 11 of the Fresno Municipal Code, including (i) the Fresno Housing Regulations (FMC, § 11-301 et seq.); and (ii) the "Appeals Code" (FMC, § 11-501 et seq.).
1. State Law
As Lippman noted, "[t]he State Housing Law (Health &Saf. Code, § 17910 et seq.) provides statewide construction and occupancy standards for buildings used for human habitation. The State Housing Law incorporates into state law the Building Code, as well as various uniform codes, including the Uniform Housing Code. (Health &Saf. Code, § 17922.) The State Housing Law, the building standards published in the Building Code, and rules and regulations promulgated therein 'apply in all parts of the state' to apartment houses, hotels, motels, and dwellings, and buildings and structures accessory thereto. (Health &Saf. Code, § 17950.)" (Lippman, supra, 19 Cal.App.5th at p. 757.)
The 2016 version of the California Building Code contained a section entitled "APPEALS BOARD," which provided as follows:
As it states in the preface to the Code, "[t]he California Building Standards Code is published in its entirety every three years by order of the California [L]egislature, with supplements published in intervening years." Petitioners never specify, but we presume they refer to the 2016 Building Code (eff. Jan. 1, 2017) because the citations related to this issue all occurred after 2017.
"1.8.8.1 General. Every city, county, or city and county shall establish a process to hear and decide appeals of orders, decisions and determinations made by the enforcing agency relative to the application and interpretation of this code and other regulations governing construction, use, maintenance and change of occupancy. The governing body of any city, county, or city and county may establish a local appeals board and a housing appeals board to serve this purpose. Members of the appeals board(s) shall not be employees of the enforcing agency and shall be knowledgeable in the applicable building codes, regulations and ordinances as determined by the governing body of the city, county, or city and county.
"Where no such appeals boards or agencies have been established, the governing body of the city, county, or city and county shall serve as the local appeals board or housing appeals board as specified in California Health and Safety Code Sections 17920.5 and 17920.6.
"1.8.8.2 Definitions. The following terms shall for the purposes of this section have the meaning shown.
"HOUSING APPEALS BOARD. The board or agency of a city, county, or city and county which is authorized by the governing body of the city, county, or city and county to hear appeals regarding the requirements of the city, county, or city and county relating to the use, maintenance and change of occupancy of buildings and structures, including requirements governing alteration, additions, repair, demolition and moving. In any area in which there is no such board or agency, 'Housing appeals board' means the local appeals board having jurisdiction over the area.
"LOCAL APPEALS BOARD. The board or agency of a city, county, or city and county which is authorized by the governing body of the city, county, or city and county to hear appeals regarding the building requirements of the city, county, or city and county. In any area in which there is no such board or agency, 'Local appeals board' means the governing body of the city, county, or city and county having jurisdiction over the area.
"1.8.8.3 Appeals. Except as otherwise provided in law, any person, firm or corporation adversely affected by a decision, order determination by a city, county, or city and county relating to the application of building standards published in the California Building Standards Code, or any other applicable rule or regulation adopted by the Department of Housing and Community Development, or any lawfully enacted ordinance by a city, county, or city and county, may appeal the issue for resolution to the local appeals board or housing appeals board as appropriate.
"The local appeals board shall hear appeals relating to the new building construction and the housing appeals board shall hear appeals relating to existing buildings." (Italics omitted.)
2. Local Law
The Fresno Municipal Code includes the following ordinances relevant for purposes of this appeal:
a) Administrative Hearing Ordinance (FMC, § 1-401 et. seq.)
The Fresno Municipal Code authorizes the recipient of an administrative citation to appeal it pursuant to the Administrative Hearing Ordinance. (FMC, § 1-308, subd. (f).) The ordinance states that "[e]xcept where specifically provided otherwise in this Code, this article shall provide the procedures, rules and standards for all administrative hearings provided under this Code or administrative hearings provided under rules or regulations promulgated pursuant to this Code." (FMC, § 1-403.)
Importantly, the ordinance calls for the city manager to appoint either a permanent or temporary hearing officer. (FMC, § 1-405, subds. (a)-(b).) The "hearing officer's decision shall be a final agency action for purposes of writ review." (FMC, § 1-410, subd. (d).)
FMC section 1-407 governs filing a notice of appeal. The notice must be filed within 15 calendar days after service of a citation and contain several items, including (but not limited to) a description of the order, statement of the relief sought, and the reasons why relief should be granted. (FMC, § 1-407, subd. (b).)
b) Chapter 11 - Building Permits and Regulations
Chapter 11, article 1 incorporates the California Building Code into the Fresno Municipal Code. (FMC, § 11-101.) Section 11-102 is entitled "amendments to the California Building Code." (FMC, § 11-102, some capitalization omitted.) This provision also discusses appeals, and states, in relevant part:
"113.1. General. In order to hear and decide appeals of orders, decisions or determinations by the Building Official relative to the application and interpretation of the Fresno Building Code, there shall be and is hereby created a board of appeals (hereafter referred to as the 'Building Standards Appeals Board') consisting of members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the City of Fresno. The Building Standards Appeals Board shall perform the following appeal duties: [¶] . . . [¶]
"c) Hear and decide appeals from the orders of the Building Officials directing the vacation, repair, rehabilitation or demolition of dangerous buildings under the provisions of Chapter 11, Article 3 of the Fresno Municipal Code as applicable to compliance to the provisions set forth in the Fresno Building Code and other relevant codes. [¶] . . . [¶]
"The Building Official shall serve as an ex officio member of and shall act as secretary to said board but shall have no vote on any matter before the board. The Building Standards Appeals Board shall be appointed by the Mayor and shall hold office at the pleasure of the Mayor. [¶] The Building Standards Appeals Board shall adopt rules of procedure for conducting its business, and shall render all decisions and findings in writing to the appellant with a duplicate copy to the Building Official." (FMC, § 11-102.)
The Fresno Housing Regulations authorizes a "Building Official" to "commence any of the following proceedings, to cause the repair, rehabilitation, vacation or demolition of the building": (1) issue a notice of violation; (2) issue a Notice and Order; or (3) issue an administrative citation. (FMC, § 11-325, subds. (a)-(b), (d).) A "notice of violation" is not appealable. (FMC, § 11-326, subd. (a).) An administrative citation may be appealed pursuant to the general Administrative Hearing Ordinance. (FMC, § 11-329; see FMC, § 1-401 et seq.) By contrast, a Notice and Order from the "Building Official" may be appealed "pursuant to [FMC section] 11-501 within 15 days of service of the Notice and Order." (FMC, § 11-330.)
FMC section 11-501, in turn, is entitled the "Appeals Code." The section pertaining to a "Building Commission" states in relevant part:
"General. In order to hear and decide appeals of orders, decisions or determinations made by the Building Official relative to the application and interpretations of the Housing Regulations (Chapter 11, Article 3) or the Dangerous Building Ordinance (Chapter 11, Article 4), there shall be and is hereby created a Building Commission consisting of members who are qualified by experience and training to pass upon matters pertaining to building construction and who are not employees of the jurisdiction. The Building Official shall be an ex officio member and shall act as secretary to said Commission but shall have no vote upon any matter before the Commission. The Building Commission shall be appointed by the governing body and shall hold office at its pleasure. Appeals to the Commission shall be processed in accordance with the provisions contained in Section 11-505 of this Article. If appointments to the Building Commission have not been made or the Building Commission is deemed to be inactive, all appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretations of the Housing Regulations (Chapter 11, Article 3) or the Dangerous Building Ordinance (Chapter 11, Article 4) shall by heard by the Hearing Officer pursuant to Chapter 1, Article 4." (FMC, § 11-504.)
A notice of appeal under the Appeals Code must state in a header: "Before the Building Commission of the City of Fresno." (FMC, § 11-505, subd. (a)(1).)
D. Analysis
We now turn to petitioners' claims regarding the above five citations.
Starting with our conclusion petitioners forfeited their home rule claim, the" 'constitutional doctrine of reversible error'" and "a fundamental principle of appellate procedure" means a trial court's judgment is presumed correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson), citing Cal. Const., art. VI, § 13.) Accordingly, the California Supreme Court consistently declares an appellant must affirmatively demonstrate a trial court's error but" '[a]ll intendments and presumptions are indulged to support'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) the court's decision. (Jameson, supra, 5 Cal.5th at p. 609.)
As a corollary to this, "an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record." (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 895 [the appellant forfeited various arguments, in part, because the appellant submitted an argument section "just over one page in length" without legal analysis].) A point urged on appeal may be deemed forfeited when it features "conclusory arguments" or the appellant fails to provide an adequate record. (Id. at p. 894.)
Appellate courts regularly treat as forfeited issues where there is insufficient legal analysis or where the appellant fails to lodge a complete record for review. (See, e.g., Ables v. A. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828 [Court of Appeal deemed "undeveloped" arguments without adequate record citations forfeited]; Herrera v. Doctors Medical Center of Modesto, Inc. (2021) 67 Cal.App.5th 538, 546-547 [preemption argument forfeited because the appellant "d[id] not provide an adequate record on appeal or d[id] not comply with certain briefing requirements in California Rules of Court, rule 8.204"]; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179-181 [the appellant forfeited his argument in part, because he failed to specify "the precise reason we must reverse the trial court's action"].)
Clary, supra, 11 Cal.App.5th 274 applied forfeiture to a case similar to ours. There, a lot owner appealed a municipality's decision to abate a public nuisance on his property. (Id. at p. 277.) On appeal, the owner raised "a plethora of issues" (id. at p. 283) including that the municipality did not "comply with constitutional requirements governing special assessments" such as notice prior to the imposition of an assessment (id. at pp. 293-294, capitalization omitted). Division Two of the First Appellate District deemed this argument forfeited, in part because the appellant "failed to discuss either of the two key issues his argument raises" or "the many cases" addressing the matter. (Id. at p. 294.)
Accordingly, we see where petitioners are going with their citation to Lippman but nonetheless deem the home rule argument forfeited. Petitioners have not squarely presented the issue or analyzed all the required prongs. They also inaccurately describe the Fresno Municipal Code. Effectively, petitioners ask us to assume the role as cocounsel and complete the analysis. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 546 [the appellant waived argument because "it is not this court's function to serve as . . . backup appellate counsel.") We cannot do this.
For example, petitioners' analysis of this issue largely block quotes the first portion of Lippman's conflict discussion. It then briefly states the Fresno Municipal Code "authorizes the City Manager to appoint persons to serve as hearing officers . . . [and] describes the appeal process and procedures for conducting the hearing by 'the hearing officer.'" Next, petitioners incorrectly assert "[n]o provision of the FMC details or requires the use of an appeals board." After that, petitioners provide headers for each citation related to this issue and repeat conclusory statements such as "the City's appellate process provided and utilized a single hearing officer in violation of Petitioner[s'] due process rights."
More importantly, petitioners' limit their conflict analysis to the City's Administrative Hearing Ordinance (FMC, § 1-401 et seq.) (which appears similar to the local ordinance in Lippman), but ignores the Appeals Code in FMC section 11-501 et. seq. As mentioned above, this portion of the Fresno Municipal Code creates a "Building Commission" "[i]n order to hear and decide appeals . . . relative to the application and interpretations of the Housing Regulations ...." (FMC, § 11-504.) We note that, at least with respect to the Kearney Property, it appears petitioners could have elected to appeal to the "Building Commission" because the record indicates they received a "Notice and Order" which is appealable to the Building Commission pursuant to FMC sections 11-329 and 11-503. Petitioners' failure to discuss this portion of the Fresno Municipal Code (which petitioners' might have been eligible for and might comply with the Building Code) underscores their argument on this point is incomplete.
Again, this refutes petitioners' claim that "[n]o provision of the FMC details or requires the use of an appeals board."
Petitioners have also lodged an incomplete record. Importantly, the record does not include the actual citations or any notices they received from the City. They also fail to include the reporter's transcript from the hearing before the trial court. This is another important item because it would help shed light on whether and to what extent petitioners raised Lippman in the trial court. We reiterate that an appellant must "present a complete record for appellate review, and in the absence of a required reporter's transcript and other documents, we presume the judgment is correct." (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.) Therefore, we deem the home rule argument forfeited.
Finally, petitioners' remaining contentions unrelated to the home rule doctrine are also forfeited or otherwise lack merit. First, with respect to the Roosevelt Property, petitioners appear to contest the propriety of the $7,500 fine on Eighth Amendment grounds. However, petitioner only states "[t]he fine was excessive and improper" and "[t]he hearing officer's analysis of the factors set forth in Hale v. Morgan (1978) 22 Cal.3d 388 is flawed in light of the testimony and conditions on the ground and therefore the fine of $7,500.00 was an exorbitant penalty that violated Petitioner[s'] constitutional rights." This argument is forfeited for the reasons discussed above.
With respect to the Archie Property, petitioners complain their citation for a" 'leak'" "concerned an entirely separate violation which required notice and a reasonable time to correct." Again, petitioners failed to provide a complete record on this citation so the argument is forfeited.
Finally, with respect to the Kearney Property, petitioners assert - without citation to the record - that "the hearing regarding this property is based entirely on hearsay and speculative testimony" and "[a]ny testimony allegedly countering Petitioner[s'] direct testimony is pure hearsay." This argument is also forfeited, but to the extent petitioners attempt to paint an evidentiary conflict in the record, those conflicts are resolved in favor of the judgment on substantial evidence review. (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281 (Benetatos).)
Therefore, the trial court's denial of the writ petitions pertaining to the (1) Roosevelt Property (case No. 18CECG00409); (2) Archie Property (case No. 17CECG04198); (3) Kearney Property (case No. 18CECG00716); and (4) both Washington Property citations (cases Nos. 18CECG00394, 18CECG02953) are affirmed.
III. Abatement Citations and Claim Regarding Illinois Property
Petitioners next raise various arguments concerning the abatement charges related to the Calwa, Seventh Street, Madison, and Floradora Properties. Petitioners again posit a conflict exists between the City's summary abatement procedures and state law. At its crux, they argue the abatement charges "violated their right to notice and a reasonable opportunity to correct" the condition. Petitioners also contend they did not receive sufficient notice concerning the Illinois Property citation.
Petitioners' arguments lack merit. The Government Code authorizes a municipality to declare what constitutes a nuisance and to charge the property owner the costs of summarily abating it. (Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241, 244.) The statute states, "[b]y ordinance the city legislative body may declare what constitutes a nuisance." (Gov. Code, § 38771.) Moreover, "[t]he legislative body may provide for the summary abatement of any nuisance at the expense of the persons creating, causing, committing, or maintaining it ...." (Gov. Code, § 38773.) Indeed, in Flahive, Division Three of the Fourth Appellate District succinctly explained:
"Civil Code section 3491 provides three remedies for a public nuisance: (1) a criminal proceeding; (2) a civil action; or (3) abatement." (Flahive v. City of Dana Point, supra, 72 Cal.App.4th at p. 244.)
The City's Public Nuisance Abatement Ordinance complies with this statutory directive. In FMC section 10-605, the city council declares several conditions constituting a public nuisance, including "[a]ny attractive nuisance." (FMC, § 10-605, subd. (f).) The Public Nuisance Abatement Ordinance empowers the "Director" to summarily abate the nuisance without prior notice to the owner if it is determined the nuisance is "imminently dangerous to life, health, safety or adjacent property such that it requires immediate correction or elimination ...." (FMC, § 10-609, subd. (a).)
The Public Nuisance Abatement Ordinance defines "attractive nuisance" as "any condition, instrumentality or machine which is or may be unsafe or dangerous to children by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children to the premises and risk injury by playing with, in, or on it, whether in a building or on the premises." (FMC, § 10-603, subd. (b).)
Petitioners, on the other hand, cite Government Code section 53069.4, subdivision (a)(2). However, petitioners do not quote the language of the statute, or provide any substantive argument as to how it conflicts with the City's abatement ordinance and so we consider it forfeited. (Clary, supra, 11 Cal.App.5th at p. 294.)
Furthermore, a brief review of the plain language underscores it does not preclude the City's summary abatement procedures:
"The administrative procedures set forth by ordinance adopted by the local agency pursuant to this subdivision shall provide for a reasonable period of time, as specified in the ordinance, for a person responsible for a continuing violation to correct or otherwise remedy the violation prior to the imposition of administrative fines or penalties, when the violation pertains to building, plumbing, electrical, or other similar structural or zoning issues, that do not create an immediate danger to health or safety." (Gov. Code, § 53069.4, subd. (a)(2)(A), italics added.)
Indeed, on reply, petitioners acknowledge the City "appears to have complied with Government Code § 53069.4 (a) [sic] in enacting its ordinances ...." That ends the inquiry. We conclude the Public Nuisance Abatement Ordinance does not conflict with the Government Code.
Petitioners' remaining arguments essentially challenge the City's decision to remedy the nuisances at issue without prior notice to petitioners. Applying a highly deferential standard of review, we conclude substantial evidence supports the administrative decision with respect to each abated property. (Benetatos, supra, 235 Cal.App.4th at p. 1281 ["If the superior court reviewed the administrative decision for substantial evidence because no fundamental vested right was involved, then our review is the same as the trial court's-we review the administrative record to determine whether substantial evidence supports the agency's findings."].)
Starting with the Calwa Property, the decision and order found the two "unsecured openings" created an "imminent danger" justifying summary abatement. At the administrative hearing, Inspector Robinson testified he went to the Calwa Property because the Fresno Police Department reported it was unsecured and "squatters" were present. In fact, when Robinson arrived, he observed a person leaving the property who told him "a dog chased him into the property." Moreover, Robinson personally observed two "open and unsecure" entryways- including at the front door. This supports the finding that the condition of the Calwa Property "was within the summary abatement requirements of FMC section 10-609."
With respect to the Seventh Street Property, Inspector Xiong testified he arrived at the property in response to "an additional complaint." He observed a damaged rear door that indicated forced entry because half the door was missing. He noted an open door to a shed, which he then secured. Xiong further testified regarding the condition of the property as follows:
"[I]t was one of the situations and circumstances where it being on the vacant building team, sometimes we get called out for Fresno P.D. calls or additional complaints coming from neighbors. So that day was, again, my first time going out to that site and being able to assess the situation and the -- with the property being open, I had to make sure that it was secured so that it wouldn't stand out as a public nuisance."
Xiong's testimony provides ample support for the finding that "the Property contained a condition that constituted a public nuisance that was an immediate and imminent health and safety hazard . . . and which did not require notice to the property owner prior to the abatement."
We reach the same result regarding the Madison Property. Inspector Lyons testified at the administrative hearing he went to the property because the City received a complaint. He observed "the rear entry door had been pried open and was damaged." He announced his presence as a city code enforcement inspector and then saw two individuals leave through the damaged rear entry door. Inspector Lyons contacted his supervisor to "request a contractor to resecure the rear entry door with a new piece of plywood." Accordingly, substantial evidence supports the hearing officer's decision that the condition of the property required" 'immediate correction or elimination' without notice to the property owner as provided under FMC 10-609(a)."
At the hearing regarding the Floradora Property, Inspector Becerril testified there were two police calls to the property between September 29 and October 6, 2017. He arrived at the property on October 6, and witnessed police removing "transients" from the dwelling. He noted the front door was "breached," the underfloor was "not secured" and that someone had "melted the plexiglass" on one window so that "they could flip it up and get in the house that way ...." This testimony provides substantial evidence for concluding the City was authorized in summarily abating the nuisance conditions at this property.
Finally, the Illinois Property presents a slightly different fact pattern because it involved an administrative citation for the fencing material rather than a summary abatement charge. Petitioners claim this citation "is invalid due to lack of notice."
We again conclude substantial evidence supports the hearing officer's decision to affirm the citation. Inspector Figueroa testified he first noticed the material in July 2017. He recalled multiple conversations with petitioners' agents (identified as Jovanna and Miguel) over the course of months regarding the material. Inspector Figueroa further testified:
"I went back on the 1st of December, and the -- the material was still there. So I figured at this time, you know, I had talked to them. I had talked to Jovanna. I sent a letter. I talked to Miguel about it. And it was still there. So at this time, I actually decided to send a -- a -- a citation and -- for the -just the fencing material."
Petitioner alludes to "conflicting testimony" and insists they "created a dispute" at the administrative hearing regarding the sufficiency of notice. However, on substantial evidence review, "we resolve all conflicts in the evidence and draw all inferences in support of the agency's findings." (Benetatos, supra, 235 Cal.App.4th at p. 1281.) Therefore, this argument lacks merit.
DISPOSITION
The trial court's judgment is affirmed. The City shall recover its costs on appeal.
WE CONCUR: HILL, P. J., PENA, J.