Date: 04-27-2007

Case Style: City of Monte Sereno v. Darla Padgett, et al.

Case Number: H029631

Judge: Elia

Court: California Court of Appeal, Sixth Appellate District on appeal from the Superior Court of Santa Clara County

Plaintiff's Attorney: Kirsten Powell and Leigh Prince of Logan & Powell, San Jose, California

Defendant's Attorney:

James McManis, Michael Reedy and Christine Peek of McManis, Faulkner & Morgan

Description:

The City of Monte Sereno ("City") sued defendants Darla and Joseph Padgett for abatement of a public nuisance and violations of the Monte Sereno Municipal Code (MSMC). The parties settled before trial, with an agreement that the action would be "deemed dismissed" upon defendants' compliance with the City's demands, and that the City could thereafter seek its attorney fees. The trial court awarded the City its fees based on two provisions of the MSMC. On appeal, defendants challenge the validity of these provisions. Defendants further contend that the City should not have received any award because they were prevented from complying with the City's demands, the City used the lawsuit to harass them and selectively enforce its ordinances, and the amount of the award was excessive. We agree with defendants that the MSMC provisions on which the City relied were not a proper basis for attorney fees. Accordingly, we must reverse the judgment.

Background

The dispute between the City and defendants arose from Darla Padgett's plans to improve defendants' property with new structures and remodeling of an existing structure. In March 1999 she obtained a site development permit (SDP), which included a landscaping plan. The following October she obtained a building permit covering construction, plumbing, mechanical, and electrical improvements. The building permit was to expire, however, if the work was abandoned for more than 180 days, or if defendants failed to arrange for a final inspection of the work within 180 days of completion.

During construction defendants removed a eucalyptus tree, contrary to the landscape plan. The City then imposed an additional "mitigation" condition on the SDP: Defendants were required to plant six evergreen trees along the property line. They did not plant those trees at that time, however. According to Darla Padgett, defendants could not plant the trees because of pending utility easements and because the driveway had not been completed. She further stated that she could not complete the requirements of the building permit because of an existing injunction related to litigation initiated by her neighbors. As for the fence, Padgett expressed willingness to lower it "if the City could assure [her] that it would enforce the fence law equally."1

The City filed a suit in abatement in February 2003, alleging building code violations, violations of the MSMC, and public nuisance. In its first amended complaint in March 2004, the City specifically alleged that defendants' removal of the eucalyptus tree and their failure to plant the "Mitigation Trees" violated the SDP. The City further alleged that defendants had failed to schedule their final inspection as required by the applicable building code, resulting in expiration of their building permit. Finally, the City alleged that defendants had constructed and maintained a fence that exceeded the maximum height allowance under the MSMC. In addition to requesting an injunction and abatement, the City sought costs of suit, including "the attorney's fees and costs authorized pursuant to section 6.17.170 of the MSMC."

The parties settled the case on January 12, 2005, six days before the scheduled trial. The remedial terms of the settlement called for lowering of the fence to six feet, the planting of six trees, and an independent final inspection by January 18, 2005. If the final inspection produced "a sign-off, everything's approved," then the matter would be "deemed dismissed on that date, [January 18]."2 The parties further agreed that the City had the right to file a request for costs, including attorney fees, but that defendants were entitled to oppose both entitlement to and amount of those fees. The City was claiming attorney fees of about $175,000.

On February 14, 2005 a "Notice of Dismissal" was filed, stating that the action was "deemed dismissed on February 11, 2005." The City filed a memorandum of costs on February 24 and a motion for costs and attorney fees on March 2, 2005. According to the City, attorney fees were recoverable under Code of Civil Procedure section 1033.5, subdivisions (a)(10)(B) and (a)(10)(C), because they were authorized under the MSMC, by sections 6.17.170 and 5.05.010. Defendants moved to strike or tax costs. The City eventually submitted a revised fee claim of $158,646.00.

On October 7, 2005, after receiving extensive written and oral argument from both parties, the trial court denied defendants' motion and granted the City's, awarding it attorney fees of $153,842.00. The court entered judgment on both motions on October 24, and on November 14, 2005, the City voluntarily dismissed the action.

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MSMC section 6.17.170 describes the penalties to which a Monte Sereno property owner may be subjected for maintaining a nuisance in the City. In addition to providing for imposition of a fine and imprisonment, the ordinance states: "[S]hould the City commence a civil or criminal proceeding to abate a public nuisance, the costs of abatement which may be recorded shall include all legal costs including reasonable attorneys' fees incurred by the City in commencing and pursuing civil or criminal remedies."

Defendants contend that this provision is invalid because it conflicts with section 38773.5(b), which requires an ordinance allowing attorney fees to permit their recovery by the "prevailing party, rather than limiting recovery of attorneys' fees to the city if it prevails." (Emphasis added.) The trial court agreed with the City that section 38773.5(b) was intended to apply specifically to "recovery of fees as a special assessment in connection with summary abatement administrative proceedings." In those procedures, the City and the court reasoned, reciprocity provides an essential procedural safeguard, whereas judicial proceedings already afford the property owner procedural and substantive protections. The court also agreed with the City that permitting a city alone to recover its fees furthered the public policy to encourage the pursuit of abatement actions by reducing the costs of such actions. (Cf. City of Santa Paula v. Narula, supra, 114 Cal.App.4th at p. 493.)

We disagree with the City and trial court's construction of section 38773.5(b) limiting its application. It is true that Government Code section 38773 permits summary abatement of a nuisance at a property owner's expense. That statute also allows a city to make the expense of abatement a lien against the property as well as a personal obligation of the property owner, "in accordance with Section 38773.1 or 38773.5." But there is no indication in section 38773.5 that it is, in effect, a subdivision of section 38773. Subdivision (a) of section 38773.5 allows abatement procedures as an alternative to the procedure established in section 38773.1, which permits liens on property as a means of collecting nuisance abatement costs. (§ 38773.5, subd. (a).) Section 38773.5(b) then provides for attorney fees as follows: "A city may, by ordinance, provide for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance. If the ordinance provides for the recovery of attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party, rather than limiting recovery of attorneys' fees to the city if it prevails. The ordinance may limit recovery of attorneys' fees by the prevailing party to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding."

In the plain language of its terms, the attorney fees provision applies to any action to abate a nuisance, not just a summary administrative or special proceeding. The statute does not impose reciprocity of fees on a city's ordinance as does Civil Code section 1717, but instead simply requires that the ordinance provide for recovery by the prevailing party and forbids the unilateral recovery by the city. The City's ordinance in this case therefore violates section 38773.5, and its application cannot be upheld. 2. MSMC Section 5.05.010

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Outcome: The judgment awarding attorney fees is reversed. Costs on appeal are awarded to appellants.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None