Judge: Layne H. Melzer, Case: 2022-01280840, Date: 2022-12-22 Tentative Ruling

Petitioner City of Westminster

Motion - Other (Petition for Order to Abate Substandard Building and Appointment of Receiver)

 

The Petition brought by the City of Westminster, pursuant to Health & Safety Code §17980.6 and Health & Safety Code §17980.7 is GRANTED.  The Court appoints Richardson C. Griswold as receiver for the property located at 13931 Milan Street, Westminster, California (Assessor’s Parcel Number 203-181-05.)

 

The instant Petition was appropriately personally served on Diana Webb, Bank of America, N.A., Kin’Ole Hawaii Kai Solar, LLC and Sunrun, Inc. (ROA Nos. 20, 22, 24 and 26; See also ¶3 of Moy Declaration and Exhibit 1 thereto).  The Court notes that it previously questioned the interest of Sungevity Development, LLC; however, Petitioner has established that this entity was not, in fact, an interest holder in the subject property, entitled to notice. (¶3 and ¶4 of Pope Declaration and Exhibit 2 thereto; See also Public Utilities Code §2869(c)(1).)

 

Additionally, the Court finds compliance with Health & Safety Code §17980.7(c).  Petitioner offers the Declaration of Lois Moy, who attaches true and correct copies of the Notice of Intent and its Proofs of Service. (¶6 of Moy Declaration and Exhibits 4 and 5 thereto.) A review of these documents confirms that on August 31, 2022, more than 3-days prior to the initiation of this action, the City had a Notice of Intent to File a Petition conspicuously posted on the door of the property. (¶6 of Moy Declaration and Exhibits 4 and 5 thereto.)  Similarly, the Notice of Intent was mail served that same day, on Dianna E. Webb, Bank of America, Kina’ole Hawaii Kai Solar, LLC and Sunrun, Inc. (Id.)

 

The notice is dated August 31, 2022 and communicates Petitioner’s intent to file an action for the appointment of a receiver. (¶6 of Moy Declaration and Exhibit 4 thereto.)  The instant action was subsequently initiated on September 13, 2022. (ROA No. 2).

 

Based on the above, Petitioner sufficiently complied with the requirements of Health & Safety Code §17980.7(c).

 

Thereafter, to demonstrate the condition of the property and the history of code enforcement, Petitioner offers the Declaration of Rene Ramirez, a Code Enforcement Officer for the City of Westminster. (¶1 of Ramirez Declaration.)  Officer Ramirez declares that he is the Code Enforcement Officer assigned to the subject property. (¶2 of Ramirez Declaration.)  Officer Ramirez identifies several code violations which were observed on June 2, 2022 and which continue to exist as of the date of the Declaration. (¶20-¶22 of Ramirez Declaration.) Further, Officer Ramirez declares that the violations pose a serious risk to the health and safety of the residents and the public. (¶22 and ¶24 of Ramirez Declaration.) 

 

The Court finds that the Declaration of Officer Ramirez sufficiently establishes that the conditions articulated in Health & Safety Code §17980.6 exist, to support a Notice of Repair/Abate.  Specifically, the above demonstrates the existence of violations of building standards which are “so extensive and of such a nature that the health and safety of residents or the public is substantially endangered…” (Health & Safety Code §17980.6.)

 

Moreover, the declaration of Officer Ramirez demonstrates the building suffers from “[g]eneral dilapidation or improper maintenance,” which, pursuant to Health & Safety Code §17920.3(a)(14) renders the property a “substandard building.”

 

The Court notes that Respondent does not dispute the condition of the property.

 

Additionally, the Court finds that Petitioner complied with the notice requirements articulated in Health & Safety Code §17980.6 and Respondent was provided a reasonable opportunity to correct the identified defects, as required by Health & Safety Code §17980.7(c)(1).

 

On July 26, 2022, the City issued a Notice to Abate, which Officer Ramirez posted on the Subject property on that same day. (¶22 of Ramirez Declaration.)  A Copy of the Notice to Abate is attached as Exhibit 3 to the Declaration of Lois Moy. (¶5 of Moy Declaration and Exhibit 3 thereto.)  The Notice includes a list of fifteen violations and orders abatement within 14 days (i.e. by August 9, 2022). (Id.)  The Notice includes the name, address and telephone number of the agency that issued the order. (Id.; See also Health & Safety Code §17980.6(a).)  Additionally, the Notice includes information addressing retaliation pursuant to Section 1942.5 of the Civil Code, as required. (Health & Safety Code §17980.6(c).)

 

In opposing the instant Petition, Respondent asserts the identified Notice failed to include information necessary pursuant to Health & Safety Code §17980.6(b).  This provision indicates the Notice shall include “[t]he date, time, and location of any public hearing or proceeding concerning the order or notice.” (Health & Safety Code §17980.6(b).)  Significantly, however, the record does not indicate that any public hearing or proceeding was then in progress, regarding the notice. (Health & Safety Code §17980.6(b).)  Moreover, to the extent Respondent is asserting a right to a public hearing in addition to or beyond the hearing on this Petition, Respondent cites no authority to support the same.

 

As noted by the Court in City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, “due process requires that ‘the government provide notice and an opportunity to be heard before it deprives a person of property.” (Id. at 927.)  The Court in Gonzalez, however, found sufficient notice and due process, where a property owner was served a “Notice and Order to Comply,” informed an inspection would occur to determine compliance and then subsequently served with a Petition to Appoint Receiver. (Id. at 927-928.)

 

This situation is analogous.

 

Further, Officer Ramirez posted the Notice to Abate on the property. (¶22 of Ramirez Declaration and Exhibit D thereto.)  The attached photos appear to indicate the notice was posted on the door of the property. (Compare Exhibit D to Ramirez Declaration with Exhibit 5 of Moy Declaration.)  Further, per the Declaration of Lois Moy, the Notice to Abate was served by her office on July 26, 2022. (¶5 of Moy Declaration and Exhibit 3 thereto).  Exhibit 3 includes a Proof of Service, demonstrating mail service of the same on all Respondents.  

 

Based on the above, the Notice to Abate was sufficiently served.

 

Finally, while the Notice to Abate provided only two-weeks to correct multiple violations, the Court is inclined to find this was a sufficiently reasonable opportunity to correct.  Initially, the Court notes that Respondent does not dispute having a reasonable opportunity to correct the identified conditions.

 

Additionally, the undisputed Declaration of Officer Ramirez indicates that Respondent was provided notice of the identified violations, well in advance of the Notice to Abate.  Further, the Declaration of Officer Ramirez indicates that, as of August 25, 2022 (the date of the Declaration), “no one responsible for the Subject Property has taken any action to abate any of the violations of law cited in the Notice to Abate.” (¶23 of Ramirez Declaration.)  Respondent, similarly, does not dispute this showing.

 

At the time of the Declaration of Officer Ramirez, a month had passed without progress.

 

Additionally, the Court in City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, found that an owner was provided a “reasonable opportunity to correct,” based on the date the Petitioner therein sought the appointment of a receiver: “Although the notice and order required the abatement to be completed within 30 days, the city did not actually seek appointment of a receiver until 18 months later, after entry of the judgment requiring compliance.  This is unquestionably a reasonable time within which to bring the property into compliance.” (Id. at 466.)

 

At the time of this hearing, it will have been approximately 4 months since issuance of the Notice to Abate and there has been no indication given by Respondent, that efforts to correct the violations have commenced.

 

Lastly, the Court finds that Richardson C. Griswold is qualified, pursuant to Health & Safety Code §17980.7(c)(2), to serve as receiver.  (¶1-¶7 of Griswold Declaration.)

 

Mr. Griswold is an attorney with 15 years-experience, as well as a licensed Real Estate Broker with 13 years-experience. (¶1 of Griswold Declaration.)  Additionally, Mr. Griswold declares that he has been appointed as a receiver for more than 120 properties in more than one hundred civil matters in California. (¶2 of Griswold Declaration.)  Mr. Griswold declares that he has “substantial experience acting as a receiver for the purpose of curing substandard conditions and curing entitlement defects.” (Id.) This experience includes single family homes and properties in the City of Westminster. (Id.)

 

Based on all of the above, the Petition is GRANTED.

 

The Court notes that Respondent opposed the instant Petition, citing to Health & Safety Code §17980.1; however, the same is inapplicable herein.

 

Health & Safety Code §17980.1 applies “[i]f a building is identified by a city…as being potentially hazardous to life in the event of an earthquake or is identified for any other reason to be hazardous to life in the event of an earthquake, or is identified as being in a condition that substantially endangers the health and safety of residents pursuant to Section 17980.6…”

 

Notably, while the provision references §17980.6, it is nonetheless the case that a prerequisite for issuing an order pursuant to Health & Safety Code §17980.1 is that “[t]he hazardous condition is of a nature that would endanger the immediate health and safety of residents or the public in the event of an earthquake.”  (Health & Safety Code §17980.1(a)(1).)

 

In opposing the instant Petition, Respondent asserts the notices provided by Petitioner did not comply with Health & Safety Code §17980.1(c)(4) and (e).  Additionally, Respondent asserts that Petitioner should have requested an Order to Show Cause, as outlined in Health & Safety Code §17980.1(c).

 

These arguments are unavailing to Respondent, as the instant Petition was not brought pursuant to Health & Safety Code §17980.1.  The hazardous conditions identified by Petitioner herein are not limited to the context of an earthquake.

 

Consistent with Health & Safety Code §17980.7(c)(3), “the owner and the owner’s agent of the substandard building shall be enjoined from collecting rents from the tenants, interfering with the receiver in the operation of the substandard building, and encumbering or transferring the substandard building or real property upon which the building is situated.”

 

Additionally, Mr. Griswold shall have the powers articulated in Health & Safety Code §17980.7(c)(4).