Opinion
D076571
02-26-2021
VIRGIL MAGISTRALE, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.
So Cal Realty Law and Shanna Elizabeth Welsh; Law Office of Pauline E. Villanueva and Pauline Erika Villanueva for Plaintiff and Appellant. Mara W. Elliott, City Attorney and Sarah Anne Wigdor-Roberts, Deputy City Attorney for the Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Super. Ct. No. 37-2018-00032764-CU-WM-CTL) APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed. So Cal Realty Law and Shanna Elizabeth Welsh; Law Office of Pauline E. Villanueva and Pauline Erika Villanueva for Plaintiff and Appellant. Mara W. Elliott, City Attorney and Sarah Anne Wigdor-Roberts, Deputy City Attorney for the Defendant and Respondent.
Plaintiff and appellant Virgil Magistrale filed a petition for writ of mandate in the superior court seeking to challenge $61,392.57 in civil penalties and administrative fees imposed upon him by the City of San Diego (City) following an administrative enforcement hearing. The trial court denied the petition, in part finding City properly served Magistrale with its civil penalty notice and order (penalty notice) and rejecting his claim that City had imposed an excessive fine. Magistrale contends: (1) there is no substantial evidence to support a finding he was properly served with City's penalty notice; (2) the administrative law judge (ALJ) abused its discretion by denying Magistrale's request for a continuance of the administrative hearing; and (3) the total fines and fees violate the Eighth Amendment's excessive fines clause. Magistrale contends the cumulative effect of the administrative agency's errors denied him a right to a fair hearing. We affirm the order denying the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, City was made aware of potential Municipal Code violations at Magistrale's San Diego home. A zoning investigator visited the property in March and April 2016 and observed a fence in disrepair and items stored outside, including a car parked in the front yard. At the latter visit, the investigator explained the violations to Magistrale.
In June 2016, City issued the penalty notice, which notified Magistrale he was violating various provisions of the San Diego Municipal Code by maintaining the large amount of incidental storage, a garage no longer available for parking due to stored items blocking access, and the front yard fence in disrepair. Citing the relevant code sections, the penalty notice stated that civil penalties of up to $2,500 per day could be assessed per violation not to exceed $250,000 per parcel, penalties could be assessed for each individual code violation, and penalties could accrue daily for as long as the violations existed. It gave Magistrale until July 11, 2016, to remove the storage, trash and debris from the premises; make the garage available for parking; remove the inoperable vehicles in the front yard; and repair, replace or remove the fence.
Undesignated section references, and general references to the Municipal Code, are to the San Diego Municipal Code.
Inspections conducted in August 2016, February 2017, and March 2018, revealed ongoing violations. In December 2017, City sought an administrative enforcement hearing, and the Office of Administrative Hearings (the Office) noticed a March 2018 hearing date. Thereafter Magistrale moved for a continuance of the March 2018 hearing, filling in the form asking why he could not be there on the date listed by stating: "I will be out of town on business." He represented he learned of those facts in January 2018. According to Magistrale, he had repeatedly tried to phone City's representative but had not heard back from her. The Office denied the motion on grounds it contained insufficient facts that would support a finding of good cause.
In March 2018, the hearing went forward as scheduled, with City represented by a code enforcement coordinator and Magistrale representing himself. City sought penalties of $59,700, representing a $100-per-day fine for 597 days from July 11, 2016, to February 28, 2018, as well as $1,692.57 in administrative costs. It presented its investigator, who testified about her inspections and the continued violations and her preparation of the penalty notice, which she said she sent to Magistrale via certified and regular mail. According to the investigator, the United States Postal Service (USPS) tracking information showed the mail was picked up at a postal facility on July 6, 2016. The court received the proof of service into evidence without any objection by Magistrale.
Magistrale testified that he was unaware of the penalty order, and the investigator never told him civil fines were accumulating. He testified he had "no clue" it was an ongoing matter; he believed as long as he was progressing and cleaning his property he and City could "move on." Magistrale testified he always meant to comply with the order and was not as fast as he liked because of work and other matters, but he had cleaned his property and wanted to move on.
Toward the end of the hearing, the following colloquy took place:
"[Magistrale]: Do I—you know with what they're proposing here as far as the fine and all that, you know, should I consider legal counsel to deal with this situation? I mean, just today is really the first time I'm just realizing that they're—what they're
"[ALJ]: Well, I can't give you legal advice, and you're not entitled to an attorney because these are not criminal matters, they're administrative proceedings. But you're welcome to get an attorney if you want.
"[Magistrale]: Right, because if you make a determination
"[ALJ]: Right, that's what I—I make a decision.
[¶] . . . [¶]
"[Magistrale]: Yeah, once you make a determination, I'm—I'm bound by that and I—I just feel overwhelmed because I'm really not prepared. You know, they—like I said, they've got all the resources here, and if I had known better, maybe I should have got counsel to deal with all this. But
"[ALJ]: Well, a request for continuance for legal counsel is not good cause because you're not
"[Magistrale]: Not a continuance. Not a continuance. I didn't ask for a continuance."
The ALJ asked if there was anything further Magistrale wanted to say, clarifying for him that the matter was indeed a legal matter, but an administrative proceeding. When Magistrale asked if there was other recourse for him, the ALJ asked if he wanted to offer evidence of his ability to pay the fine. Magistrale stated it was an "onerous" and "extraordinary" amount. The ALJ pointed out where City had notified him of the penalty rate in the penalty notice, and reiterated City's fees and costs its representative had requested at the beginning of the hearing. Magistrale explained that he never understood that $100 per day was adding up from July 2016 and that the investigator never mentioned it to him. He concluded: "Like I said, I'm—I wasn't prepared to deal with this. I don't have legal counsel. I don't know how these matters go. They do these every day, every week or every month, and so they are more familiar with how these—how to present the cases, how to go on with this. And so I just really am not fully prepared for this."
On cross-examination, City elicited that Magistrale owned other rental properties within San Diego county. In response, Magistrale stated he rented to "blue collar workers" and was not a rich man.
The ALJ affirmed City's penalty notice, awarding it $59,700 in civil penalties and $1,692.57 in administrative costs for a total award of $61,392.57. The ALJ found Magistrale was served with the penalty notice on June 9, 2016, and that he did not reasonably explain why he was unable to clear his property for almost two years, or why he did not understand the penalty notice that advised him of the necessary cleanup, the date by which to perform it, and the daily penalties that would accrue if he failed to do so. The ALJ found he was on notice of the accruing penalty in the penalty notice for 597 days of violations.
Magistrale, represented by counsel, petitioned the superior court for a writ of mandate. Among other arguments, he asked the court to take judicial notice of USPS tracking information, a USPS website printout for the 92112 zip code, and an <http://www.sdcourt.ca.gov> website printout for the 92112 zip code. Magistrale argued City's investigator's testimony about delivery of the penalty notice was false and incomplete as demonstrated by the tracking information. He further maintained the administrative record did not contain a written proof of service that was compliant with the Municipal Code. He argued the inspector lacked credibility due to omissions in her testimony about the tracking history. Magistrale argued the penalty assessed against him was grossly disproportionate to the gravity of the violation.
In opposition, City argued Magistrale did not present the detailed tracking and post office information in the administrative hearing, though he could have if he had used reasonable diligence because it was readily available. It further argued if Magistrale did not receive the penalty notice, he should have raised such arguments and evidence at the hearing. City argued substantial evidence supported the finding of a Municipal Code violation, Magistrale's proper service with the penalty notice, and the assessment of the penalty.
The parties stipulated to stay the March 2018 administrative enforcement order. In May 2019, the superior court denied the petition. It denied Magistrale's request for judicial notice of the USPS tracking information and website printouts, explaining some lacked foundation and authentication (the <http://www.USPS.com> website printout), but as to all of it he made no showing it could not have been presented and submitted at the hearing in the exercise of reasonable diligence. The court ruled substantial evidence supported the officer's finding that Magistrale was served with the penalty notice. It rejected Magistrale's argument that the hearing officer abused its discretion by denying him a continuance; the court found Magistrale did not ask for a continuance at the hearing, and it found no abuse of discretion when the officer denied his request in February 2018. Finally, the court ruled Magistrale failed to show the civil penalties were excessive or violated the Eighth Amendment.
The court's order states in part: "The record shows that [Magistrale] did not dispute the existence of the violations. Nor did he dispute the duration the violations occurred (597 days) or the severity of the violations. He did not offer any proof of his inability to pay or the financial impact the penalty would have on him although the [administrative hearing officer] told [Magistrale] during the hearing that 'you may offer evidence about your ability to pay the fine that they're seeking, that's something I have to consider when I'm deciding.' . . . Moreover, the [administrative hearing officer's] findings with respect to Petitioner's violations are supported by the record. Therefore, the court finds the [administrative hearing officer] did not abuse her discretion in setting the amount of civil penalties in this matter."
Magistrale filed this appeal from the order.
DISCUSSION
I. Standard of Review
When a party files a petition for writ administrative mandamus challenging an adjudicatory decision, the inquiry by the trial court is limited "to the questions whether the [administrative agency] 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 [administrative agency] 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).) "Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).)
Magistrale makes no claim that his case involves a fundamental vested right. In cases not involving such rights, the Court of Appeal reviews the administrative decision, not the superior court's decision. (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 418-419; Kolender v. San Diego County Civil Service Com. (2007) 149 Cal.App.4th 464, 470.) " 'Our role [on appeal] is to consider whether the administrative agency committed a prejudicial abuse of discretion by examining whether the findings support the agency's decision and whether substantial evidence supports the findings in light of the whole record.' " (Young, at p. 419.)
" '[T]he petitioner in an administrative mandamus proceeding has the burden of proving that the agency's decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty. When the standard of review is the substantial evidence test . . . it is presumed that the findings and actions of the administrative agency were supported by substantial evidence. [Citations.] Thus, since the same standard of review applies now on appeal as it did in the trial court, the burden is on appellant to show there is no substantial evidence whatsoever to support the findings of the Board.' " (Young v. City of Coronado, supra, 10 Cal.App.5th at p. 419.) In applying that test, we uphold the findings of the trier of fact unless they are so lacking in evidentiary support as to render them unreasonable. (Jaramillo v. State Bd. For Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 888-889.) Administrative mandamus is used to ensure the administrative body did not abuse its discretion, thus "[i]t is for the agency to weigh the preponderance of conflicting evidence, 'as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it.' " (Young, at p. 419.)
For questions of law raised on appeal, we apply a de novo or independent standard of review. (Danser v. Public Employees' Retirement System (2015) 240 Cal.App.4th 885, 890; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742, 88.)
II. Service of the Penalty Notice
Magistrale contends City's evidence was "legally insufficient" to establish it properly served the penalty notice on him. He maintains City's documents pertaining to delivery of the penalty notice "were not complete, misled the trier of fact as to the conclusions to be drawn, and thus, should not have been admitted into evidence . . . ." He argues that even if the court properly admitted the documents, they do not provide a sufficient basis for concluding he had been properly served. Specifically, Magistrale challenges City's tracking information indicating the penalty notice had been delivered and picked up at a postal facility; he argues City did not provide information on who picked up the package, or offer any "other information about the tracking history." Magistrale asks this court to take judicial notice of the USPS "full tracking information" for the package containing the penalty notice, which assertedly shows the penalty notice had been returned to the sender and was never actually delivered to him. He points out the full tracking information shows the penalty notice was picked up at a different zip code than to which it was sent, and the return receipt was not signed by either Magistrale or his agent. A. Request for Judicial Notice
We begin with Magistrale's request for judicial notice of what he asserts is the full tracking information for the penalty notice. Magistrale acknowledges that he did not present the documents at the enforcement hearing, but argues this court nevertheless has discretion to consider it when justified by "exceptional circumstances." According to Magistrale, such circumstances constitute the fact he was not represented by counsel below, he was unaware it was a "legal" proceeding and did not understand its true nature, and his requests for continuances were denied. City opposes the motion.
Magistrale is correct that appellate courts decline to take judicial notice of matters not before the trial court, as the tracking information is here, absent exceptional circumstances. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2; Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 673, fn. 4.) Magistrale does not explain what courts consider to be exceptional circumstances, other than to point out the question has been discussed in dependency cases, which he cites without further reasoned argument. Such is not adequate to preserve the issue. (See Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 [failure to support statement with reasoned argument a forfeiture].)
We are not persuaded even if we reach the merits of Magistrale's request. Here, the trial court denied Magistrale's request to take judicial notice of this information on grounds it was available to Magistrale but not presented at the administrative hearing. The trial court implicitly found no exceptional circumstances existed to warrant granting Magistrale's request as to those documents. Magistrale has not demonstrated the court erred in that finding. An exception to the rule stated above may be found when new facts can supply a court with information about proceedings that postdate the order on appeal such as legislative changes subsequent to a judgment, events making issues moot, or the postjudgment insolvency of an insurer (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; County of Los Angeles v. Glendora Redevelopment Project (2010) 185 Cal.App.4th 817, 830); postjudgment court proceedings (In re Marina S. (2005) 132 Cal.App.4th 158, 166 [granting judicial notice of postjudgment minute order showing home study of prospective adoptive parents was completed and approved by juvenile court]); or other postjudgment evidence for purposes of determining whether a child should be permitted to abandon a challenge to a trial court ruling. (See discussion in In re Josiah Z. (2005) 36 Cal.4th 664, 665-668.) In Josiah Z., the California Supreme Court emphasized that an appellate court should not use postjudgment evidence in order to reopen and reconsider trial court findings and to reverse the trial court's judgment. (Id. at p. 676 ["an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court's judgment"; but appellate courts in juvenile matters could consider limited postjudgment evidence in a motion to dismiss].) Magistrale's request does not involve postjudgment developments, and nothing about the tracking information falls within any exceptional circumstance.
Finally, even if we elected to take judicial notice of the tracking information document, only its existence may be judicially noticed, not the matters asserted therein. (Adams v. Bank of America, N.A., supra, 51 Cal.App.5th at pp. 673-674.) We therefore deny Magistrale's request. B. The Record Contains Evidence of Municipal Code-Compliant Service and Substantial Evidence Support's the ALJ's Finding of Proper Service
The ALJ found that City served Magistrale with the penalty notice on June 9, 2016. The ALJ found that the penalty notice notified Magistrale of the various Municipal Code violations and instructed him that he was to remedy the violations by July 11, 2016. It found the penalty notice advised Magistrale that there was a reinspection fee for additional inspection services, and that his failure to comply would result in the assessment of civil penalties assessed at $100 per day, which would be ongoing until the violations were corrected.
Magistrale does not challenge the adequacy of the penalty notice itself, which would be a question subject to our independent review. (Tafti v. County of Tulare (2011) 198 Cal.App.4th 891, 896.)
Magistrale contends the documents on which City's investigator based her testimony do not prove proper service was effectuated. He argues the question whether City complied with the statutory requirements for proper service is one of law that this court should review de novo. We independently determine the requirements of the Municipal Code (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 78); whether City met those requirements is a question of fact subject to substantial evidence review.
The parties agree the applicable service rules are contained in section 11.0301. That section permits several different methods of service when notice is given under the code for enforcement purposes. (§ 11.0301, subd. (a).) Notice "shall be served by any of the following methods unless different provisions are otherwise specifically stated to apply:
"(1) Personal service; or
"(2) Certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.
"(3) Posting the notice conspicuously on or in front of the property. The form of the posted notice shall be approved by the City Manager. (§ 11.0301, subd. (a).)
The section provides that "[s]ervice by certified or regular mail in the manner described above shall be effective on the date of mailing." (§ 11.0301, subd. (b).) The Municipal Code defines "shall" to mean "mandatory." (§ 11.0209 subd. (b).)
Section 11.0301 further provides: "The failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this Code." (§ 11.0301, subd. (c).) The code requires compliant service, not proof of actual receipt by the interested person.
Here, City's investigator testified without objection she served the notice both by regular and certified mail. The administrative record contains the certified mail receipt, and the proof of service was admitted into evidence without Magistrale's objection. In general, issues not presented at an administrative hearing forfeits the issue for review. (Duea v. County of San Diego (2012) 204 Cal.App.4th 691, 701.) We in any event conclude that the plain language of section 11.0301, subdivision (a) permits the option of service by certified mail, thus, the investigator's testimony by itself establishes as a matter of law compliance with the requirements. On appeal, we presume the City regularly performed its official duty (Young v. City of Coronado, supra, 10 Cal.App.5th at p. 419) and Magistrale has not rebutted that presumption.
Magistrale argues that because he was a self-represented litigant, the court had a duty to bring out facts and see that "a cause is not defeated by mere inadvertence." But as City points out, the trial court "is not . . . required to act as counsel for a litigant in the presentation of his evidence." (Lombardi v. Citizens National Trust and Savings Bank (1955) 137 Cal.App.2d 206, 208.) "A litigant has a right to act as his own attorney [citation] 'but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.' [Citations.] . . . 'A layman with resources who insists upon exercising the privilege of representing himself must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.' . . . The fact that a layman elects to represent himself 'certainly does not excuse him from a failure of proof' of his cause of action." (Lombardi, at pp. 208-209.) In response to the plaintiff's argument that "the judge knew he was a layman unlearned in legal procedure and the technical rules of evidence, [and] should have helped him out," the court said, "[t]hat would have been an unjust reward for ignorance . . . ." (Id. at p. 209; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984 ["mere self-representation is not a ground for exceptionally lenient treatment"]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958 [self-represented litigant " 'is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys' "].)
Magistrale complains in reply that the certified mail label and return receipt only show the notice at the time of mailing, and there is no evidence it was signed and returned, nor is there evidence the penalty notice sent via regular mail was returned. He asserts the "mere fact that the [penalty notice] was mailed in accordance with [the Municipal Code] does not end the inquiry" but "the plain language of the last sentence of that subdivision seems to suggest that the return receipt must be returned signed; otherwise, an alternative method of service must be followed." Section 11.0301, subdivision (c) belies that argument; the validity of the proceedings are not affected by an interested person's failure to receive notice. In sum, we will not disturb the ALJ's finding of proper service of the penalty notice on Magistrale.
III. Magistrale's Requests for a Continuance
Magistrale contends the ALJ abused its discretion by denying his requests for a continuance, prejudicing him as a result. He maintains his first request, made over a month before the hearing, should have been granted. Magistrale argues his "initial unavailability, when considered in light of the time it was made and the lack of any prejudice to the parties involved, constituted good cause for a continuance, notwithstanding respondent's objection to such." He argues his second request—which he asserts occurred at the conclusion of the administrative hearing—should have been granted in part because he "did not understand the nature of the hearing and was not familiar with the practice and proceedings"; told the ALJ he was "not prepared" and "did not realize that the hearing was a legal matter." He characterizes his remarks at the hearing as an "implicit request to continue the hearing in order for [him] to hire an attorney . . . ." Magistrale contends the rulings prejudiced him because they prevented him from adequately responding to the allegations against him, and the ALJ "violated its duty to ensure that the hearing was conducted according to the requirements of due process."
City responds that Magistrale forfeited the argument by failing to raise it below. It argues the ALJ did not abuse its broad discretion because Magistrale's first request was not accompanied by a showing of good cause, and the hearing transcript shows Magistrale did not make a request for a continuance at its conclusion. It points out that Magistrale had no constitutional right to counsel at his administrative hearing. We need not reach City's forfeiture argument, because we agree Magistrale has not demonstrated an abuse of discretion in any event.
Magistrale mentioned his request for continuance, the reason for it, and the ALJ's denial of the continuance in the body of his petition and not only in its conclusion as City maintains.
Magistrale correctly concedes that he was required to demonstrate good cause for a continuance, and that the hearing officer's ruling on such request is subject to the officer's sound discretion. (See Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 518; Ring v. Smith (1970) 5 Cal.App.3d 197, 201; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) There is no absolute right to a continuance in this kind of proceeding. (Ring, at p. 201 ["there is no absolute right to a continuance in a proceeding such as this, hence, unless the refusal of the hearing officer to grant a continuance was an abuse of discretion, there was no denial of due process"]; see Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448 ["There is no policy in this state of indulgence or liberality in favor of parties seeking continuances"].) He acknowledges that in exercising this discretionary power, an ALJ is to be guided by the same principles applicable to continuances generally in adjudicative settings. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864.) Discretion is abused only when a ruling is " ' "so irrational or arbitrary that no reasonable person could agree with it." ' " (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187.)
Magistrale cites Government Code section 11524 and California Rules of Court, rule 3.1332. Government Code section 11524 governs continuances in state department or agency administrative hearings, and provides in part: "When an administrative law judge of the Office of Administrative Hearings has been assigned to the hearing, no continuance may be granted except by him or her or by the presiding judge of the appropriate regional office of the Office of Administrative Hearings, for good cause shown." (Gov. Code, § 11524, subd. (a).) California Rules of Court, rule 3.1332 addresses continuances for trial. In part, it provides each request must be considered on its own merits, and may only be granted "on an affirmative showing of good cause requiring the continuance," which includes "[t]he unavailability of a party because of death, illness or other excusable circumstances" or "[a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial." (Cal. Rules of Court, rule 3.1332(c)(2), (7), italics added.)
These standards compel us to conclude Magistrale has not demonstrated error. In support of his 2018 request, Magistrale simply stated he would be "out of town on business" on March 5, 2018; he did not detail what sort of business was involved, why the business event could not be rescheduled, or how its importance prevented him from attending the hearing. Absent such information to assess the basis for Magistrale's request, the Office's decision was not irrational or arbitrary, and we conclude it did not abuse its discretion but reasonably denied Magistrale's request on grounds it lacked good cause.
As for Magistrale's claim that he made a second request for continuance at the administrative hearing's conclusion, the superior court found as a factual matter that he did not seek a continuance. That finding is supported by the transcript of the hearing in the excerpt set out above, in which Magistrale stated, "I didn't ask for a continuance," denying he sought to put off the hearing so as to hire counsel. We see nothing in the context of Magistrale's remarks that allows us to characterize them as an implied request for a continuance, as Magistrale argues. And Magistrale's supporting authority, Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160, does not stand for the proposition that a tribunal must grant, or even liberally consider, a self-represented litigant's request for a continuance to obtain counsel. That personal injury case involved claims of instructional error and insufficiency of the evidence, as well as a claim that the court erred by appointing counsel for the defendant to assist the self-represented plaintiff. (Id. at pp. 157, 162-164.) The appellate court merely observed that the plaintiff had represented herself despite the court's offer to arrange a continuance to enable her to obtain an attorney. (Id. at p. 160.) Cases do not stand for propositions not considered by the reviewing court. (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 332.)
Magistrale argues that by denying him continuances, the ALJ violated its duty to ensure the administrative hearing was conducted according to due process. Magistrale cites Roa v. Lodi Medical Group (1985) 37 Cal.3d 920, in which the California Supreme Court recognized the right to due process in civil litigation embraces a civil litigant's right to be represented by retained counsel. His argument is in effect that the failure of the ALJ to grant a continuance was tantamount to denying him his right to counsel.
When an administrative agency conducts adjudicative proceedings, the constitutional due process guarantee requires only a fair tribunal, that is, one in which the decision maker is free of bias for or against a party. (Hall v. Superior Court (2016) 3 Cal.App.5th 792, 808-809.) Here, the hearing officer did not deny Magistrale's right to be represented by counsel of his choosing. Magistrale chose to represent himself, then questioned his decision to do so during the hearing. He confirmed he was not asking for a postponement to obtain counsel. Magistrale does not cite authority for the proposition that the otherwise proper exercise of discretion to deny a continuance, which has an incidental effect on a litigant's choice of counsel, infringes the litigant's due process rights. Magistrale had months of notice before the hearing in this matter. A last minute request for a continuance, even if we could interpret Magistrale as making one at the hearing, would warrant the inference that it was sought as a delay tactic in the face of an adverse ruling. (Accord, Ring v. Smith, supra, 5 Cal.App.3d at p. 202 [there is no absolute right to be represented by a particular attorney when this is made the basis for a motion for a continuance; when a litigant had months of prior notice of the hearing date, a last minute oral motion for continuance "reasonably warranted the inference that dilatory tactics had been adopted which would needlessly delay the hearing at hand" thus the hearing officer did not abuse his discretion in finding no good cause for the request].) We reject the suggestion that the ALJ under these circumstances failed to conduct a fair hearing or denied Magistrale his right to retained counsel.
IV. Eighth Amendment Claim
Magistrale contends the total fines and penalty assessments imposed on him ($59,700 for 597 days of violation multiplied by $100) violated the Eighth Amendment prohibition against excessive fines. He argues courts have extended Eighth Amendment protections to civil penalties imposed by an administrative agency, the touchstone of which is proportionality. Magistrale asserts he sought to comply with City's orders, the violation was based on items stored on his property and the manner in which they were stored, but there was no evidence of actual harm to anyone or a hazard to nearby persons. He asserts he referred at the hearing to his inability to pay the penalties given the extent of his rental income, but the ALJ cut him off and did not allow him an opportunity to provide more detail. He argues that if we apply the four factors relevant to this inquiry—his culpability, the relationship between the harm and the penalty, the penalties imposed in similar statutes, and his ability to pay—we should reduce the fines or remand the matter for the ALJ to conduct a hearing on the matter. Magistrale asks us to conduct de novo review of the question.
The superior court's order indicates City imposed the fines pursuant to sections 12.0803 and 12.0805. Section 12.0803 provides: "(a) Any person violating any provision of the Municipal Code or applicable state code may be subject to the assessment of civil penalties pursuant to the administrative procedures provided in Sections 12.0804 through 12.0810 of this Division. [¶] (b) Each and every day a violation of any provision of the Municipal Code or applicable state code exists constitutes a separate and distinct violation. [¶] (c) Civil penalties may be directly assessed by means of a Notice and Order issued by the Director or affirmed by a City Manager's Enforcement Hearing Officer. Civil penalties may be recovered by assessment of a Code Enforcement Lien pursuant to Division 2 of Article 3 of Chapter 1 or subsequent legal action brought by the City Attorney. [¶] (d) Civil penalties for violations of any provision of the Municipal Code or applicable state codes shall be assessed at a daily rate determined by the Director or Enforcement Hearing Officer pursuant to the criteria listed in Section 12.0805 of this Division. The maximum rate shall be $10,000 per violation. The maximum amount of civil penalties shall not exceed $400,000 per parcel or structure for any related series of violations."
Section 12.0805 provides in part: "(a) In determining the date when civil penalties started to accrue, a Director may consider the date when the Department first discovered the violations as evidenced by the issuance of a Notice of Violation or any other written correspondence. [¶] (b) The assessment of civil penalties shall end when all action required by the Notice and Order has been completed." That section sets forth factors that may be considered in determining the daily rate of the civil penalty, including the violation's duration, frequency or recurrence, nature and seriousness, and history; the responsible person's willfulness and conduct after issuance of the notice and order; that person's good faith effort to comply; the economic impact of the penalty on the responsible person; the impact of the violation on the community; and "[a]ny other factors that justice may require." (§ 12.0805, subd. (c).) Magistrale does not challenge the facial constitutionality of these provisions.
We decide de novo whether the fine is excessive, but must accept factual findings unless clearly erroneous. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731; People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1091; see also City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1313.) We agree with Magistrale that to decide whether the fine is unconstitutionally disproportionate, we consider "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (R.J. Reynolds, supra, 37 Cal.4th at p. 728; People v. Overstock.com, Inc., at p. 1091.)
Magistrale does not address penalties imposed in similar statutes, so we confine our analysis to the other factors. Doing so, we cannot conclude the $59,700 in fines imposed on Magistrale is unconstitutionally excessive or disproportionate. Magistrale argues—without citation to the record—that his violations were harmless and he sought to comply with City's demands "[t]hroughout the relevant time period." But this is contradicted by the City investigator's testimony that his violations continued to March 2018 even after a City representative first met with and notified him about them in April 2016. City gave Magistrale opportunities to remedy the violations through the remainder of 2016 and 2017, but he did not.
These circumstances are unlike those in Hale v. Morgan (1978) 22 Cal.3d 388 (Hale), in which the California Supreme Court held the assessment of a $100 daily penalty on a landlord was unconstitutional, and imposed under a statute (Civ. Code, § 789.3 ) that permitted the assessment of "arbitrary, excessive and unreasonable penalties . . . ." (Id. at p. 518; see discussion in Kinney v. Vaccari (1980) 27 Cal.3d 348, 352-356; City and County of San Francisco v. Sainez, supra, 77 Cal.App.4th at p. 1322 [proportionality review for Eighth Amendment challenge duplicates the due process analysis in part reflected in the Hale court's analysis].) In Hale, a man sued his landlord for damages and statutory penalties after moving his mobile home into the landlord's mobile home park without the landlord's knowledge or consent, then failed to make later-negotiated rental payments. (Hale, at p. 393; Kinney v. Vaccari, at p. 353.) The landlord disconnected the water and electricity lines in late May and utility service was interrupted until November of that year, while the tenant lived there and elsewhere. (Hale, at p. 393.) The trial court found the termination of services willful, and assessed $17,300 in penalties at $100 per day for 173 days. (Ibid.)
A year after Hale was decided, the Legislature amended the statute to provide a landlord would be liable to the tenant in a civil action for an amount "not to exceed $100" for each day the landlord remained in violation, but required a minimum award of $250 for each cause of action. (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 521, fn. 7.)
The California Supreme Court held the statute was unconstitutional as applied to the landlord in that case. (Hale, supra, 22 Cal.3d at p. 404.) In part, it observed the statutory penalty was mandatory in amount, fixed without discretion by the trier of fact, and had a "potentially unlimited" duration "even though the landlord has done nothing after the initial wrongful termination of utility service except fail to restore it." (Id. at p. 399.) Thus, "a single wrongful act by the landlord, if not corrected, will subject him to potentially infinite penalties, regardless of the circumstances of the violation, the offender, the victim, or the damage caused." (Id. at p. 402.) It was more severe than that provided in other more serious landlord transgressions. (Id. at pp. 400-401.) Finally, the statute "permit[ted] the occasional experienced and designing tenant to ambush an unknowing landlord converting the single wrongful act of the latter into a veritable financial bonanza" and allowed a landlord who quickly evicts a tenant to be subject to a lesser penalty than one who allowed a more obstinate tenant to remain, which "may well dilute the deterrent effect sought by the daily penalty." (Id. at p. 404.)
"No discretion is permitted the trier of fact in fixing the penalty. The acts prohibited by the [legislation] potentially encompass a broad range of culpable activity and conduct on the part of the landlord, and a widely divergent injury resulting in damage to the tenant. The fixed penalties are imposed upon potential defendants who may vary greatly in sophistication and financial strength." (Hale, supra, 22 Cal.3d at p. 399; see Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 11.)
Nevertheless, the California Supreme Court recognized that in the proper factual context, the penalty formula of the statute could withstand constitutional challenge. (Hale, supra, 22 Cal.4th at p. 404; Kinney v. Vaccari, supra, 27 Cal.3d at p. 353 [upholding penalty against a landlord of over $36,000 as justified in circumstances presented there, including repeated tender of rent by tenants].) "The imposition of the $100 daily penalty over a limited period may indeed, in a given case, be a perfectly legitimate means of encouraging compliance with law. Furthermore, there are doubtless some situations in which very large punitive assessments are both proportioned to the landlord's misconduct and necessary to achieve the penalty's deterrent purposes." (Hale, at p. 404; Kinney, at p. 353.)
Here, City's penalty is "both proportioned to [Magistrale's] misconduct and necessary to achieve the penalty's deterrent purposes." (Hale, supra, 22 Cal.3d at p. 404.) In Hale, the court found the statute troubling in part because its mandatory nature did not take into account the culpability of the person paying it. (Hale, at pp. 399, 404-405.) Here, the civil penalties are not mandatory. (§ 12.0803, subd. (a) ["Any person violating any provision of the Municipal Code . . . may be subject to" civil penalty assessment], italics added.) The rate is not fixed. (§ 12.0803, subd. (d) ["The maximum rate shall be $10,000 per violation" and maximum penalty amount "shall not exceed $400,000 per parcel . . . for any related series of violations"]; accord, Ojavan Investors, Inc. v. California Coastal Commission (1997) 54 Cal.App.4th 373, 397 [distinguishing Hale on grounds civil fines in that case were not fixed, and trial court considered factors in determining the fine amount].) The ALJ found City considered all of the relevant factors in assessing them, including the "willfulness of [Magistrale's] conduct," and his "good faith effort . . . to comply" (§ 12.0805, subd. (c)(8)), so that his culpability was taken into account. The ALJ found his Municipal Code violations continued for 597 days, and that Magistrale had notice of the accruing penalty, factual findings that we have upheld (as to notice) and Magistrale has not meaningfully challenged (as to the continued violations). We are bound to accept those findings. City's conduct did not present the potential for converting a single wrongful act "into a veritable financial bonanza." (Hale, at p. 403; Kinney v. Vaccari, supra, 27 Cal.3d at pp. 352-353.) To the contrary, here, Magistrale had control over the time period but allowed the penalties to accumulate. (Accord, City and County of San Francisco v. Sainez, supra, 77 Cal.App.4th at p. 1316, citing Ojavan, supra, 54 Cal.App.4th at p. 398 [reasoning that $9.5 million in fines was large "only because [defendants] violated the Coastal Act 73 times and refused to remedy the violations"], italics added.) The conditions on Magistrale's property, depicted in photographs in the record, posed a danger to others who might encounter them, such that the deterrent effect of penalties further the health and safety protection of the public. (§ 121.0201 [purpose of enforcement codes is "to ensure the protection of the public health, safety, and welfare by providing enforcement authority and remedies"].) The concerns compelling the California Supreme Court in Hale to invalidate the penalty as applied to the defendant there are not present here.
Finally, Magistrale maintains he was not provided a full opportunity to present evidence of his ability to pay the fines, but the record demonstrates otherwise. After the ALJ asked Magistrale if he wanted to address his ability to pay and Magistrale responded with his statements and questions, the ALJ said, "Okay, anything further, sir, you want to argue or point out or say?" Magistrale responded in part: "I guess, I covered it all at this point." The ALJ asked if there was "[a]nything further," and Magistrale said, "That's it." City then presented evidence that Magistrale received income from other rental properties within San Diego County, to which Magistrale protested it was unfair to raise the 16 properties he owned and he was not "rich." Magistrale had abundant opportunity to address his ability to pay the penalty, and did so.
For the foregoing reasons, we cannot conclude the unconstitutionality of the penalty as applied here "clearly, positively and unmistakably appears." (City and County of San Francisco v. Sainez, supra, 77 Cal.App.4th at p. 1321.) We thus reject Magistrale's contention that the civil penalties imposed on him are unconstitutionally disproportionate or excessive.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.