Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INC069640, Harold W. Hopp, Judge.
Ann T. Madison, in pro. per., and for Defendant and Appellant James D. Madison.
Green, de Bortnowsky & Quintanilla and Randall Nakashima for Plaintiff and Respondent.
OPINION
McKinster J.
Defendants and appellants Ann T. Madison and James D. Madison (owners) are the owners of a vacant lot in the City of Cathedral City (City). The City obtained an order for a warrant to enter the property to abate a nuisance (vehicles and household property stored on the lot). The owners moved to vacate the order issuing the abatement warrant, and the trial court denied their motion to vacate. The owners’ notice of appeal was untimely as to the ruling issuing the warrant itself; this court ordered on June 16, 2008, that the owners’ only viable appeal was from the ruling on the motion to vacate. It is this ruling that the present appeal challenges. We affirm the order of the trial court.
FACTS AND PROCEDURAL HISTORY
The owners purchased an unimproved lot within the City in approximately 1999. It apparently had a history of being used for “storage,” a euphemism for discarded appliances, vehicles, and other junk.
In August 2007, the City filed a notice of a petition for a warrant to enter the property to abate a nuisance, i.e., removal of unsightly junk and debris, old cars, weed overgrowth, an illegal fence topped with illegal barbed wire, and to prohibit occupancy on the property.
Neighbors of the property complained about the unsightly condition in April 2007. The City’s code enforcement officer went to the location and took a number of photographs, showing “an accumulation of used furniture, appliances, outdoor chairs, tires, furniture parts, boxes and containers, raw lumber, and numerous old vehicles in apparently inoperative condition.” The City mailed a notice of a finding of nuisance, with an order to abate the nuisance, to the owners as the record titleholders of the property.
City ordinances prohibited limit line fences without a conditional use permit. In addition, according to the declaration of a City official, chain link fences and barbed wire were illegal under the municipal code.
The owners did not file a timely appeal after receiving the notice to abate a nuisance. They did file a late appeal. They claimed that the use of the lot for storage predated their ownership, and that such use, and the existence of the chain link fence, was grandfathered in upon their purchase. City officials researched the condition of the lot and its records of permit applications. It found that, after the City had been incorporated, the lot was still vacant and unfenced, with native plants and vegetation. Any later-built fencing would have required a permit after City incorporation, and no such permit was on record. No application for a conditional use permit was on file either. The City sent the owners a blank application for a conditional use permit. The owners informed City officials that they could not afford the costs of the application and the likely improvements that would be required (e.g., remove the chain link fence and install a block wall).
The City had issued a notice to abate a similar nuisance on the property in 2004. The code enforcement officer at that time found someone living illegally on the property in a camper; an illegal electrical hookup taking electricity from another property; improper sewage and sanitation by the occupant; vehicles parked on the bare ground; and trash, refuse, and debris scattered about the property. At that time, as they did later, the owners argued that the fence was grandfathered in, as they believed it had existed before City incorporation. Otherwise, they promised to clean up the lot to abate the nuisance. The 2004 case was closed; at that time, “the Property was bare ground surrounded by the chain link fence.” The owners had removed the occupant, camper, cars and refuse from the property.
The City’s attorney spoke to owner Ann Madison on June 20 and June 21, 2007. He told her that she had waived her right to appeal the notice of abatement by failing to file a timely appeal. The City’s attorney sought an amicable resolution and requested the owners’ consent to enter the property to abate the nuisance. Madison told the City’s attorney that she had already hired someone to remove the junk, debris and overgrown weeds, and believed the abatement would be completed by June 22, 2007. The City’s attorney also raised the issue of the illegal fence; Ann Madison objected and claimed that the fence was grandfathered in, and that she could continue to use the property for outdoor storage according to its previous use.
The City’s attorney informed Madison that her property was not grandfathered in, because the use for outdoor storage had never been an allowed use without a conditional use permit, and no conditional use permit had ever been obtained. Madison also objected on grounds that several of the neighboring lots also had fences, “but that the City was singling her out and discriminating against her and her Property because ‘[the code enforcement officer] had a vendetta against her son.’” Madison further complained that her husband was in the hospital and was unable to address the issues on the property because of financial concerns. The City’s attorney stated that the City could enter and abate the nuisance without current cost to the owners, but be secured by a lien against the property for the costs of abatement; Madison rejected that suggestion.
The City’s attorney asked if the owners would be willing to allow the City to enter to abate the nuisance. Madison stated that she had hired someone who was already in the process of abating the conditions on the property, and she guessed that the process would be complete in a few days. Seeking assurance that the nuisance conditions really would be abated, the City’s attorney asked if the owners would agree to allow the City to enter if all nuisance conditions were not removed by a certain date. Madison was so sure that the property would be cleaned up that she stated, the City “‘could come in and bulldoze the whole place for all [she] care[d].’” When the City’s attorney informed Madison that the fence, as well as the debris, would need to be removed, Madison again objected, stating that the side and back fences belonged to her neighbors, and she could do nothing about them. The owners would agree, however, to having the City remove just the front fence.
The parties reached an agreement in principle that the owners would execute an agreement “providing that [the owners] would: (a) remove all junk, trash, debris, vehicles, and temporary and unpermitted structures from the property; (b) submit a completed application for a CUP [conditional use permit] to the planning department for the construction of a block wall fence. These conditions would be completed within 14 days of execution of the agreement. If these conditions were not met within 14 days, the City may, without further notice, enter the property and remove all trash, debris, etc., and remove the fencing that fronts [the street].” The agreement was never finalized or executed, however. In the meantime, the owners also discovered the costs of obtaining a conditional use permit.
In a later conversation with the City’s attorney, on July 11, 2007, Madison again was unwilling to allow the City to enter the property to abate the nuisance and place a lien for the abatement costs, because she feared the City would charge an excessive amount. Neither would Madison agree to such a plan, if they could come to an agreement on a limit to the amount of the City’s lien. Madison responded no, and said she was done speaking to the City about the problem; she would take the City to court if she had to. On or after July 11, 2007, the owners filed their appeal of the abatement notice, well after the 10-day appeal time.
Accordingly, the City filed its petition for a warrant to enter the property to abate the nuisance, having failed to obtain the owners’ consent or cooperation to do so without a warrant.
The owners’ belated administrative appeal contested the validity of the citation on several grounds. Among other things, Ann Madison averred that her husband had undergone a serious medical operation and that she had left a message with the code enforcement officer requesting more time to comply. The owners averred that their son had begun hauling away the items stored on the property, but “the temperatures were in the triple digits at the time and it was difficult to get help to haul the items away.” Madison discussed the matter with another City employee. Madison explained that she “would be willing to put in a block wall fence facing [the street], but that [they] would not agree to removing the chain link fence between subject property and the adjoining property as the fence was a community fence.” Madison also raised her claim of preexisting use, and noted that other fenced properties existed along the street, and were used for vehicle storage. Madison stated, in addition, that she wanted more time, “because of my husband’s situation as he was in no condition to make decisions of this nature. After our conversation, I understood we had additional time to comply.... Also, we were abating the problem as quickly as the weather would permit.”
Madison had a somewhat different version of her exchange with the City’s attorney. According to Madison, the City’s attorney “demand[ed] that all fencing be torn down and all items and weeds be removed,” even though, Madison claimed, all the weeds and most of the physical property items had been removed by then. The City’s attorney allegedly informed Madison that her use of the property for storage had been lost at the time of purchase, and told Madison that she must apply for a conditional use permit within two weeks after the parties executed an agreement for the abatement, “or the City would come in and bull-doze all items left on the property and all fencing.” Although the City’s attorney kept promising to deliver a contract agreement to Madison, no contract was ever sent to her. Madison also found out that the cost of a conditional use permit “was to be over $2,100, plus all the other costs added on and that we just could not afford it at this time due to my husband’s medical condition; that I had understood that there was a mini procedure that we could go through (at a cost of $200.00, the same that was offered to our former tenants....)”
The owners repeated their claim that their use of the property for storage was grandfathered in as a preexisting use, and that they had the same right as others in the neighborhood to maintain their chain link fence. Madison would agree to apply for a conditional use permit at a reasonable cost, but deemed the costs at present unreasonable. Therefore, the owners intended to forgo applying for a conditional use permit at that time, and intended to store a boat and a few old cars on the property, covered and located in the back corner; the owners claimed these vehicles would not be “visible from the street,” and would not pose a nuisance “unless someone puts their nose over the fence to take pictures.”
As noted, however, the owners’ appeal from the notice to abate the nuisance was untimely, and the City filed its petition for a warrant to enter. The owners opposed the petition, contending that (1) the notice of hearing was untimely (did not allow the owners 30 days to respond to the petition); (2) the petition was meritless because the owners had already arranged to remove the property items, debris, trash and weeds; (3) the City’s interpretation of the code was incorrect, as the prohibition against chain link fencing applied only to front yard fences; (4) the owners had requested more time from the City to comply because of the husband’s medical condition and expenses; (5) there was no “public nuisance” because all the items were behind a screened fence; and (6) the owners had hired a hauler to remove the items but the hauler failed to do so in a timely manner, and other issues. The owners also challenged the declarations of the City officials, and accused the City officials of relentlessness, harassment, and being “tough on business.” The owners accused the City’s attorney of lulling them into a false security that their time to appeal or to comply was extended by the proposed arrangement to enter into a contract. The contract was never presented, and thus the owners’ appeal was late. In addition, the owners questioned “how items that were once a public nuisance and blight could suddenly be ignored if [the owners] paid the City $2,100 [i.e., applied for a conditional use permit].”
The owners argued that the City should have followed through on its commitment to provide a contract, and to permit the owners more time to comply. Finally, the owners argued that there was no authority to allow a warrant to enter to abate a nuisance, but that the only authority granted would be for an inspection warrant, not an abatement warrant.
The City replied to the owners’ opposition to its petition and objected to evidentiary matters in the owners’ responding papers. The City also noted that the owners had failed to dispute the fundamental issue: “[U]sing the Property for storage is a non-conforming use that requires a Conditional Use Permit (CUP). By refusing to apply for a CUP due to the cost, [the owners] have left the City no choice but to bring the instant action.”
In partial answer to the owners’ claims that their use was grandfathered in, the City pointed out that the owners had not maintained the same level as the preexisting use, but had substantially expanded the intensity and square footage of their property dedicated to “storage.” To the owners’ complaint that the City never proffered them a contract, the City responded that the owners “do not realize that they foreclosed the procedure themselves by failing to proceed with the Application.” The owners complained that, “‘without a contract, [the owners] would not know what the City would agree to....’ However, [the owners] refuse to pay the costs to obtain a CUP.”
At the hearing on the City’s petition, held September 24, 2007, the parties informed the court that they had “reached a stipulation, and we have stipulated on two points and would ask the Court to continue this hearing for 60 days. The sides have stipulated that, while the matter is continued, that the Madisons apply for a conditional use permit and remove the barbed wire from the fence on the property and that we will revisit this matter with the Court’s permission in 60 days.” The court continued the matter to November 27, 2007.
The City filed a notice of ruling with respect to the hearing that had been continued and the owners took issue with the characterization of the stipulation that was to be carried out during the period of continuance. The owners asserted that the stipulation consisted of four points: 1) the owners would apply for a conditional use permit to use the property for outdoor storage; 2) the owners could keep the remaining personal property on their lot while the conditional use permit application was pending; 3) the owners would remove barbed wire from any of the fencing on the property; and 4) only the front chain link fence bordering on the street would require removal and replacement with a block wall. The owners asserted that they “would not have entered into... a stipulation... had Item 4[ n]ot been stipulated to during the brief recess....” Rather, the owners would have “waited for the Court to issue a ruling at the hearing as the big issue had revolved around the removal of all of the chain link fencing which is allowed in the rear and side yards by the City’s own code.”
As the City’s attorney had responded, however, he had made no such binding stipulation or commitment with respect to all the fencing. The conditions to be placed on a conditional use permit were within the discretion of the planning commission, as the legislative body charged with the authority to do so: “In other words, only the Planning Commission can legally determine the conditions of the permit, although some negotiation is normal during the permitting process. You have the right to address the Commission and may even raise the personal issues you have brought before the court without anyone raising a relevancy objection.” The City’s attorney encouraged the owners to continue with the permitting process “if [you] wish to store personal property on the lot. However, [the owners] cannot have it both ways: they cannot maintain a front fence and store property without a permit. They must either obtain a permit, or remove the front fence and leave the property vacant.”
In advance of the continued hearing date (November 27, 2007), the owners filed an “update of events.” The owners removed barbed wire from the fencing. They obtained a licensed architectural contractor to prepare a site plan for the property as “R.V. storage.” The owners applied for a conditional use permit and paid $2,170 to the City with the application. The City planning department sent a letter outlining conditions that would be placed on the conditional use permit, including a block wall on all sides and asphalt paving, rather than gravel, for the surface.
The owners urged the Court to “dismiss [the City’s] Petition as frivolous as there were no grounds to file the Petition in the first place nor has it shown that the Court has authority to grant their petition for a warrant to enter property and remove all items and fencing as requested....”
The continued hearing proceeded on November 27, 2007. The City submitted photographic evidence that the chain link fence was still present along the front of the property, and that several vehicles were still stored on the property. The owners argued that the City had agreed to let them keep the front fence in place and store the vehicles on the property until the conditional use permit had been granted; the conditional use permit would specify where and what kind of front wall would be required, as well as other elements of the construction or development as a storage lot. The process of granting a conditional use permit could take up to two years. The City’s attorney objected that the owners could not use the permit application process as a means to delay code compliance. The owners admitted that the chain link front fence was still in place, and that vehicles were still stored on the property. The City wanted “the fence down and the personalty removed.”
The court took the matter under submission and, on December 17, 2007, ruled: “The Court finds that [the City] has proved that a public nuisance exists on the property... and that [the City] has demonstrated sufficient cause for the issuance of the warrant requested in the petition. [¶] The Court notes that the parties apparently reached a temporary agreement by which [the owners] would take certain actions, including removing barbed wire from the front of the property and would apply for a conditional use permit. It appears that [the owners have] undertaken at least some of the actions to which they agreed and that the City... has requested additional information or documents in connection with the application for a conditional use permit. However, because it appears that at present there is no agreement to delay the hearing and decision on the petition, the Court GRANTS the petition and has signed the proposed order.”
On December 28, 2007, the owners filed a notice of motion and motion to vacate the order granting the petition for a warrant of entry. The owners argued that the court’s ruling was inconsistent with the facts and the law cited by the parties. Specifically, the owners argued that the case authorities cited by the City—Gleaves v. Waters (1985) 175 Cal.App.3d 413 (Gleaves), and Flahive v. City of Dana Point (1999) 72 Cal.App.4th 241 (Flahive)—granted courts authority only to issue an inspection warrant, not a warrant to enter to abate a nuisance. The owners also claimed that the City had misrepresented the terms of the stipulation of September 24, 2007, and that the City had reneged on its agreement under the stipulation (i.e., that the front fence and cars could remain in place while the owners sought their conditional use permit).
The City opposed the motion to vacate the judgment. First, the City argued that the owners’ motion was moot, as the City had already acted on the warrant to clear the property. The City notified the owners that it would abate the nuisance by December 27, 2007, and found upon inspection that the owners had removed the front fence and the stored vehicles from the lot. The City also contested the owners’ interpretation of Gleaves and Flahive. Those cases did not stand for the proposition that a court lacked authority to issue an abatement warrant; rather, those cases held that, even though there was no statutorily provided procedure for such a warrant, the means used by the public entities in those cases, which were based on the procedures for obtaining an inspection warrant, were sufficient to meet constitutional requirements for a warrant. The City further argued that the owners had waived their right to contest the court’s authority by intentionally deciding to go ahead with the hearing on the City’s petition. The City’s attorney averred that the owners had indeed applied for a conditional use permit, but that the owners’ application was incomplete. The City’s attorney offered to stipulate with the owners to continue the hearing on the petition for 90 days to allow the owners to complete their application, but the owners replied that they wished the hearing to go forward.
The owners responded that, “Whether or not the Court had the authority to issue a warrant to abate subject property is only one issue here. The paramount issue is whether [the City] breached its promise with [the owners] to leave the front fencing and the personal property on the premises if [the owners] applied for a conditional use permit.” The owners argued that the matter was not moot, “as [the owners] had the worry and expenses of disposing personal property and removing the fencing even though [the owners] performed their end of the bargain.” The owners wanted the court to set aside the judgment because they did not want to be liable for the City’s attorney fees and costs, as ordered, and because, “even though it will be impractical for [the owners] to go back to their original position, but at least they won’t have a judgment against them.” The owners, in their turn, requested that the City pay their costs.
The trial court denied the owners’ motion to vacate the judgment on the City’s petition.
The owners filed their notice of appeal on May 12, 2008, purporting to appeal both from the trial court’s ruling granting the petition (Dec. 17, 2007) and from the denial of the owners’ motion to vacate (Mar. 7, 2008).
This court dismissed the owners’ purported appeal from the judgment of December 17, 2007. We permitted the appeal from the ruling on the motion to vacate as an appeal from an order denying a statutory motion to vacate, i.e., as an order after final judgment.
We have also been presented with several requests to augment the record. We have already deemed the missing “notice of ruling” describing the stipulation for continuance of the September 24, 2007, hearing a part of the record on appeal.
The City has also filed a motion to augment the record to include photographs of the property. The owners oppose the motion to augment on the ground that copies of these photographs are already included in the record. We reserved ruling on the City’s motion for augmentation for consideration with the appeal. Inasmuch as copies of the same photographs are already included in the record, no party will be prejudiced by consideration of the copies submitted with the augmentation; the copies submitted with the request to augment the record on appeal are somewhat clearer than the copies included in the clerk’s transcript. At this time, we therefore grant the motion to augment the record to include the slightly clearer copies of the photographs.
We turn next to a consideration of the merits of the appeal.
ANALYSIS
I. Standard of Review
A notice of appeal filed after denial of a motion to vacate a judgment confers no jurisdiction to review the merits of the judgment. It presents only the propriety of the order refusing to set aside the judgment. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109, 117.)
“The trial court’s factual determinations are reviewed under the substantial evidence standard and are not disturbed if supported by substantial evidence. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427 [45 P.2d 183].) Issues concerning the application of statutory authority present questions of law subject to independent review of the trial court’s rulings. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071 [258 Cal.Rptr. 721].) Finally, issues relating to the exercise of discretion on a motion to reopen a case are subject to an abuse of discretion standard. (Shimpones v. Stickney (1934) 219 Cal. 637, 642 [28 P.2d 673].)” (Howard Contracting, Inc. v. G. A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 49.)
Here, the key issues that the owners discuss are: (1) whether the trial court lacked authority to issue a warrant of entry to abate the nuisance, and (2) whether the trial court erred “in not finding a valid stipulation.” The second issue asks this court to revisit matters concerning the stipulation the parties entered into in September 2007, when they agreed to continue the hearing on the City’s petition. That was a matter that occurred before judgment and related to conditions to prevail while the hearing on the City’s abatement petition was continued. At the continued hearing date, the owners declined any further continuance and expressly desired the court to rule on the City’s petition. The matters of the stipulation for continuance preceded the judgment, and the judgment itself is not properly before this court for review.
Accordingly, the sole issue, reviewable on this appeal, which is raised by the owners’ brief, is the validity of its interpretation of certain cases concerning the authority of the trial court to issue a warrant of entry, in the absence of a concomitant warrant of inspection. This presents a question of law, which we review de novo.
II. The Trial Court Had Authority to Issue a Warrant to Enter to Abate a Nuisance
The owners brought their motion to vacate under Code of Civil Procedure section 663. Code of Civil Procedure section 663 permits a court to vacate a judgment on showing of an incorrect or erroneous legal basis for the judgment. Here, the “incorrect or erroneous legal basis” consists of the court’s purported lack of authority to issue a warrant of entry to abate a nuisance. The owners argue that two cases cited by the City, Gleaves, supra, 175 Cal.App.3d 413, and Flahive, supra, 72 Cal.App.4th 241, did not provide the trial court with authority to issue a warrant of entry.
The owners’ argument is not well taken. The cited authorities support, rather than denigrate, the authority of a trial court to issue a warrant to enter property to abate a nuisance.
In Gleaves, the public entity wanted to enter property to eradicate a Japanese beetle infestation. The plaintiff property owners filed an action for injunctive relief, to quash administrative inspection warrants. “Plaintiffs do not contest the Department of Food and Agriculture’s authority summarily to abate a public nuisance. Rather, they maintain that abatement officers cannot enter their private, enclosed yards without first obtaining consent or a warrant. Defendants rejoin that, once a public nuisance has been established and declared, summary abatement measures may be taken under the state’s police power without an administrative warrant authorizing entry into plaintiffs’ private yards. Defendants’ position is predicated on alternative theories that (1) summary abatement of a declared public nuisance does not constitute a search in any constitutional sense or, if it does, (2) there are exigent circumstances here which justify the intrusion into plaintiffs’ private yards without a warrant.” (Gleaves, supra, 175 Cal.App.3d 413, 417-418.)
The Court of Appeal rejected the arguments that no warrant was required: “Underlying defendants’ position is the assertion that treatment of the infested area with pesticides constitutes ‘abatement’ as distinguished from ‘inspection.’ The significance of this distinction resides in the fact the statutory scheme for administrative warrants provides only for inspection warrants. Code of Civil Procedure section 1822.50 authorizes issuance of ‘An inspection warrant... signed by a judge... directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor or zoning.’ [¶] However, the record shows that where consent to enter cannot be obtained, inspection and abatement activities are conducted at the same time.” (Gleaves, supra, 175 Cal.App.3d 413, 418.) Thus, “where pretreatment inspection occurs, it is conducted with the consent of the property owner; where consent is refused or cannot otherwise be obtained, defendants obtain an inspection warrant authorizing entry into the property to inspect; all inspections carried out pursuant to warrants occur simultaneously with the actual treatment. The trial court’s finding ‘that the application of chemicals on private residential property does not constitute an inspection requiring an inspection warrant’ may be correct as a generalization. However, because the state relies on inspection warrants simultaneously to enter, inspect and abate, it is irrelevant to the disposition of this case.” (Ibid.) Entry into private yards to abate the beetle nuisance, even though it would not require entry into a residence, was subject to Fourth Amendment warrant requirements. (Id. at pp. 418-419.) The court therefore held that, “in the absence of consent or exigent circumstances, government officials engaged in the abatement of a public nuisance must have a warrant to enter any private property where such entry would invade a constitutionally protected privacy interest.” (Id. at p. 419.)
The owners here seize upon the recitation that “the statutory scheme for administrative warrants provides only for inspection warrants,” and does not directly provide for abatement warrants, to argue that the abatement warrant was improper. (Gleaves, supra, 175 Cal.App.3d 413, 418.)
Flahive followed Gleaves: Flahive involved a property owner who rented an illegal garage conversion unit to a tenant. The city held an abatement hearing; the property owner had notice but did not attend. The hearing officer ordered the property owner to allow city staff to inspect the premises or to produce valid permits for the garage apartments. The property owner did not comply and the city sought a nuisance abatement warrant from the municipal court. The property owner did attend the warrant proceeding. (Flahive, supra, 72 Cal.App.4th 241, 243.)
The municipal court (commissioner) issued a warrant ordering the city to abate the nuisance. The city notified the tenants of imminent abatement, and they moved out. The city’s hired contractor entered the premises and restored the garage. The property owner sued the city and the contractor, for negligence, trespass and inverse condemnation. The property owner lost. (Flahive, supra, 72 Cal.App.4th 241, 243.)
On appeal, the property owner argued that the court issuing the warrant lacked subject matter jurisdiction and jurisdiction over the property. “Flahive’s argument regarding the purported lack of subject matter jurisdiction is premised on her assumption the warrant application was a de facto action in equity for an injunction, over which the superior court has exclusive jurisdiction.... She errs in her premise. The City did not proceed by way of a judicial action; it used abatement. [¶] A city council may, by ordinance, declare what constitutes a nuisance (Gov. Code, § 38771), and may provide for summary abatement of the nuisance at the expense of the person who created it. (Gov. Code, § 38773.) The Dana Point Municipal Code prohibits converting off-street residential parking facilities to other uses, and a violation of that provision constitutes a nuisance.” (Flahive, supra, 72 Cal.App.4th 241, 244.)
The property owner argued that the warrant was invalid because it had been issued by a commissioner. “Flahive waived this issue as well by agreeing to have a commissioner consider the warrant application. To reach this conclusion, we examine [Gleaves]. [¶] The Gleaves court held, ‘[I]n the absence of consent or exigent circumstances, government officials engaged in the abatement of a public nuisance must have a warrant to enter any private property where such entry would invade a constitutionally protected privacy interest.’ ([Gleaves].) The court noted there was no statutory procedure for obtaining a warrant to abate a nuisance, but because the public entity was simultaneously engaged in an inspection, the court relied on statutes dealing with inspection warrants. ([Gleaves, supra, 175 Cal.App.3d] at p. 420.) [¶] We are faced with an entry only to abate a nuisance, not for an inspection. In the 14 years since Gleaves, no statutory procedure has been enacted. We have examined the commentators and treatises listed above... and have found no discussion of common or suggested procedures. But because Flahive only challenges the commissioner’s power to issue the warrant, we need only address that point.” (Flahive, supra, 72 Cal.App.4th 241, 246.)
The owners here again seize upon the language that, “there was no statutory procedure for obtaining a warrant to abate a nuisance,” and that “[i]n the 14 years since Gleaves, no statutory procedure has been enacted,” to argue that “in the instant case, there was no request for an inspection warrant, but just a warrant to abate a public nuisance, and pursuant to [Flahive and Gleaves], there were no statutory procedures in place at the time to allow the court to issue an abatement warrant to enter [the owners’] property and abate a nuisance.” The owners contend that Code of Civil Procedure section 1822.51, the inspection warrant procedures, required “an affidavit particularly describing the place, dwelling, structure, premises, or vehicle to be inspected and the purpose for which the inspection is made. In addition, the affidavit shall contain either a statement that consent to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent.” The owners argue that the City “will not be able to show by affidavit or any other means that consent to inspect was ever sought or refused, or facts or circumstances reasonably justifying the failure to seek such consent.”
The owners’ argument proves too much. First, Flahive and Gleaves each involved circumstances in which inspection was coupled with simultaneous abatement procedures. Even if there was no separate warrant procedure for abatement, as distinct from inspection, the inspection warrant, as granted, also permitted the public entity to actively abate the nuisance at the same time. Second, whatever procedures were utilized were sufficient to satisfy the constitutional requirements of probable cause and due process. (See Flahive, supra, 72 Cal.App.4th 241, 245, fn. 6.) Third, the case law actually supports a single warrant requirement, rather than separate warrants. As noted, Flahive and Gleaves each involved simultaneous inspection and abatement procedures. The law does not require idle acts. (Civ. Code, § 3532.) The trial court here recognized the futility of requiring the City to obtain an inspection-and-abatement warrant when it had already “inspected” the property to the extent necessary to determine that the visible blighted conditions on the property constituted a nuisance. The conditions constituting the nuisance were patent. The court remarked, “You can see the supposed nuisance without entering the property, why do you have to have an inspection just to find out what you can see from the street?” and, “[w]hat you are telling me is I should have told the City is you may enter the property to confirm what you already know and then come back and ask me for a warrant to abate the nuisance?” To the owners’ contention that the warrant application was inadequate for failure to show lack of consent, the supporting papers and the entire history of the dispute demonstrate the owners’ lack of consent and refusal to permit entry onto their property for any purpose: inspection, abatement, or otherwise.
In view of the admitted nuisance that the owners maintained on their property, and the lack of an approved conditional use permit, as well as the observation of constitutional procedural requirements to obtain a warrant, the owners have failed to show that the trial court erred in denying their motion to vacate the earlier ruling. The gist of the owners’ motion to vacate was to require an idle act—to apply for a simultaneous inspection and abatement warrant, where inspection was patent and had already been accomplished. We decline to require the trial court to engage in futile exercises.
DISPOSITION
The order denying the owners’ motion to vacate is affirmed. In the interests of justice, the City is awarded its costs on appeal.
We concur: Hollenhorst Acting P.J., King J.