Filed 6/28/16 Pastore v. County of Santa Cruz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
VINCENT PASTORE, H042688
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. CV179844)
v.
COUNTY OF SANTA CRUZ,
Defendant and Respondent.
In this first of two related appeals, plaintiff Vincent Pastore challenges an order of
the superior court striking without leave to amend a purported “appeal” from an
administrative order affirming a nuisance abatement order. Plaintiff contends that he was
entitled to maintain a direct appeal, rather than proceed by petition for administrative
mandamus, by virtue of Government Code section 53069.4 (§ 53069.4), which authorizes
such appeals from orders by local administrative agencies imposing a “fine or penalty.”
Since no fine or penalty was imposed here, the statute does not apply, and plaintiff’s
remedy lay in administrative mandamus. Since he elected instead to pursue a remedy
which is not available to him, the trial court acted quite correctly in striking the “appeal.”
Accordingly, we will affirm that order.
BACKGROUND
The County of Santa Cruz (County) issued an order on April 9, 2014, to abate a
nuisance on certain property of which plaintiff Pastore was identified as the “current
record owner/property manager/agent of Angela Young,” the “former owner of record.”
Plaintiff apparently filed an administrative appeal, resulting in an order on July 24, 2014,
by an administrative hearing officer, who sustained the finding that a public nuisance
existed on the property “as a result of a violation of Santa Cruz County Code
Chapter 7.126 [cultivation of cannabis without complying with all of the environmental
requirements of Title 16, specifically, Santa Cruz County Code sections 16.20.210(a) and
16.22.160(b)].”1 The officer directed that plaintiff remove all cannabis plants within 10
days, failing which “the County Planning Director, or her designee, is hereby authorized
to cause the abatement of the public nuisance in accordance with Santa Cruz County
Code section 1.14.030 and shall report on the abatement costs pursuant to Santa Cruz
County Code section 1.14.050.” Under the last-cited section of the county code, a special
assessment could be imposed on the property for some or all of the abatement costs
incurred by County. (Santa Cruz County Code, tit. 1, § 1.14.050.)
On August 21, 2014, acting in propria persona, plaintiff filed a “Notice of Appeal
of Administrative Officer Decision and Order” in the superior court. The notice
challenged the July 24 order, which it asserted had been “given . . . pursuant to
Government Code section 53069.4,” and requested the clerk to “set this cause for hearing
1
The first of the cited provisions concerns the cultivation of medical cannabis and
includes a provision stating, “The cultivation of cannabis shall be carried out in
compliance with all requirements of SCCC Title 16, Environmental and Resource
Protection . . . .” (Santa Cruz County Code, tit. 7, § 7.126.040(N).) The second citation
is to an ordinance generally requiring a permit for any grading of property. (Id., tit. 16,
§ 16.20.210.) The third cited ordinance generally requires a permit prior to any “land
clearing.” (Id., tit. 16, § 16.22.160(b).)
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before the above entitled court, where the same shall be heard de novo in accordance with
Government Code Section 53069.4.”
County moved to strike the notice of appeal on the grounds that “the Appeal is not
the proper means to challenge the Administrative hearing Officer Decision and Order and
that the challenge is inadequate and untimely.” County argued that the only available
means to challenge the administrative order was by petition for writ of administrative
mandamus, which had to be filed “within 90 days of the order that is being challenged.”
Plaintiff’s attempted “appeal” pursuant to section 53069.4 was unsustainable because that
section relates only to administrative fines and penalties imposed by local agencies.
County argued that the deadline to bring a proper challenge had expired, that the “appeal”
could not be deemed a petition for administrative mandamus because it lacked several of
the requirements for such a petition—notably, a verification and allegations of fact
sufficient to justify relief—and that any amendment sufficient to cure these defects would
be such a departure from the original allegations that it would not relate back to the
original filing date. County requested that the court dismiss the purported appeal.
In support of the motion to strike, County requested judicial notice of the
July 24, 2014 administrative hearing officer’s decision, and of a later decision finding
that County had incurred $18,962.45 in costs of abatement, costs of enforcement, and
attorney fees, and directing that this sum become a special assessment on the subject
property.2 The latter order is the subject of the related appeal, No. H042521.
Plaintiff filed opposition to the motion to strike in which he contended that (1) a
motion to dismiss, not a motion to strike, was the proper means to reach the defects
asserted by County; (2) direct appeal to the superior court, with de novo review by that
2
Although the two documents are described as exhibits to the request, they do not
appear in the clerk’s transcript on appeal. However the same two documents do appear in
connection with the similar request in the related appeal, No. H042521.
3
tribunal, was an available remedy under the authority of Martin v. Riverside County
Department of Code Enforcement (2008) 166 Cal.App.4th 1406 (Martin); (3) contrary to
County’s position, the rule of Martin was not limited to review of fines and penalties but
applied to any attempt to obtain judicial review of “ ‘an administrative decision like a
ruling on a code violation’ ”; (4) in any event, the assessment here constituted or effected
a “penalty”; and (5) withholding the remedy of appeal would lead to absurd results.3 In
the alternative, plaintiff requested that his appeal “be treated as a defective petition for
administrative mandamus that was timely filed and permit him to amend such petition to
conform to a style that would not invite an appropriate motion to strike.”
In reply County contended that the Martin decision and the statute on which it
relied had no bearing on the July 24 order, which imposed no fines or penalties but
merely affirmed an order abating a nuisance. It reiterated its argument that the time to
file a petition for administrative mandamus had passed, and argued further that if the
court were to treat the “appeal” as such a petition, it should deny it without leave to
amend in view of its manifest deficiencies.
After a hearing at which the parties elaborated to some extent upon their
respective arguments, the court granted the motion to strike without leave to amend. It
ruled that (1) plaintiff had “no right to appeal the Administrative Order pursuant to
California Government Code section 53069.4 because the Administrative Order did not
award fines or civil penalties”; (2) plaintiff had been duly notified of his right to seek
review by administrative mandamus, but had failed to exercise that right; and (3) the
appeal was “deficient and defective as a petition for writ of mandate” in that it was
3
This at any rate is what he argued in a similar memorandum in the related
appeal, No. H042521. Two pages are missing from the copy of the opposition
memorandum in the clerk’s transcript here.
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unverified, the administrative record was not made available to the court, and the “notice
of appeal” was submitted on information and belief.
County served notice of the order granting the motion to strike on June 10, 2015.
Plaintiff filed a notice of appeal to this court on August 10, 2015. Because the preceding
day was a Sunday, the appeal is timely.
DISCUSSION
I. Appealable Order
Plaintiff discusses at some length the question whether the order granting the
motion to strike is appealable. Since this discussion casts doubt on our jurisdiction, we
must address it at the threshold. The gist of the argument seems to be that the court’s
written order was ambiguous with respect to leave to amend. If it allowed leave to
amend, it was not a final disposition of the action and thus not an appealable judgment.
(See Continental Cas. Co. v. Rizzio Truck Co. (1963) 217 Cal.App.2d 771.) Plaintiff
finds a possibility of amendment in the court’s statement that the motion was granted
“without leave to amend the appeal.” (Italics added.) According to plaintiff, this
wording raised the possibility that he could have filed a new petition for administrative
mandamus without violating the court’s written order. In that view, he suggests, the
order may not have effected a complete and final disposition of the action. If that is true,
the order is not a de facto judgment and a direct appeal from it will not lie.
Intriguing as plaintiffs ruminations on this point may be, any suggestion of lack of
appellate jurisdiction is defeated by the fact, which he readily acknowledges, that the
court’s oral statement of its ruling was free of the ambiguity plaintiff detects in the
written order. As orally pronounced, the order was, in relevant part, to “deny the request
to file an amended writ petition because . . . it would be untimely . . . based upon the fact
that the notice of appeal didn’t include those allegations that you’re including here
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today . . . and therefore . . . I’m going to grant the motion to strike without leave to
amend.”
It is no longer the invariable rule that the court’s oral remarks prevail over
conflicting statements in the clerk’s transcript. (People v. Pirali (2013) 217 Cal.App.4th
1341, 1346, citing People v. Smith (1983) 33 Cal.3d 596, 599, and People v. Harrison
(2005) 35 Cal.4th 208, 226.) Here, however, there is little if any real conflict, and the
two statements are easily reconciled by understanding both of them to mean that leave
was denied to amend plaintiff’s pleading, which he had styled an “appeal,” and which the
court therefore referred to as such in the written order. The court plainly intended that its
order would terminate all further proceedings in this matter. Accordingly, the order was
in substance a final judgment, and thus appealable.4
II. Viability of “Appeal” from Affirmance of Nuisance Abatement Order
Plaintiff’s only argument on the merits is a reiteration of his argument below that
his “appeal” from the administrative order affirming the nuisance abatement order
entitled him to de novo review of that order in the superior court. The argument depends
on a blinkered reading of both the judicial decision he cites and the statute on which that
decision rests.
Section 53069.4, subdivision (a)(1), provides, “The legislative body of a local
agency . . . may by ordinance make any violation of any ordinance enacted by the local
4
It might be argued that the order striking the pleading did not effect a dismissal
of the action—although County had prayed for such dismissal—and thus did not
constitute a de facto judgment. In comparable situations involving orders sustaining a
demurrer without leave to amend, we have sometimes deemed the order to incorporate a
judgment of dismissal. (E.g., Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th
1386, 1396.) To dismiss the appeal creates a risk that the appellant may secure entry of
judgment—however belated—and file a second, duplicative appeal. To avoid the delay
and expense of such an approach, we will deem the present order to incorporate a
judgment of dismissal.
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agency subject to an administrative fine or penalty. The local agency shall set forth by
ordinance the administrative procedures that shall govern the imposition, enforcement,
collection, and administrative review by the local agency of those administrative fines or
penalties. Where the violation would otherwise be an infraction, the administrative fine
or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth
in subdivision (b) of Section 25132 and subdivision (b) of Section 36900.” (Italics
added.) The statute then declares that, in specified situations, the agency’s procedures
must “provide for a reasonable period of time . . . for a person responsible for a
continuing violation to correct or otherwise remedy the violation prior to the imposition
of administrative fines or penalties.” (Id., subd. (a)(2).) This is followed by the provision
upon which plaintiff relies: “Notwithstanding the provisions of Section 1094.5 or 1094.6
of the Code of Civil Procedure, within 20 days after service of the final administrative
order or decision . . . regarding the imposition, enforcement or collection of the
administrative fines or penalties, a person contesting that final administrative order or
decision may seek review by filing an appeal to be heard by the superior court, where the
same shall be heard de novo, except that the contents of the local agency’s file in the case
shall be received in evidence. A proceeding under this subdivision is a limited civil case.
A copy of the document or instrument of the local agency providing notice of the
violation and imposition of the administrative fine or penalty shall be admitted into
evidence as prima facie evidence of the facts stated therein. A copy of the notice of
appeal shall be served in person or by first-class mail upon the local agency by the
contestant.” (Id., subd. (b)(1).)
As we read this provision it is solely concerned with the imposition of
“administrative fines or penalties.” The order under scrutiny here did not impose any
monetary exaction, let alone a fine or penalty. It directed that plaintiff himself abate,
within 10 days, the nuisance County had found to exist on his property, and that if he
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failed to do so the planning director could “cause the abatement of the public nuisance in
accordance with Santa Cruz County Code section 1.14.030 and shall report on the
abatement costs pursuant to Santa Cruz County Code section 1.14.050.” The order
alluded to a possible future monetary imposition for “abatement costs,” but the order
itself did not impose anything other than an obligation to abate the identified nuisance.
Such an order falls outside the sweep of the statute.
Plaintiff contends that a contrary conclusion flows from Martin, supra, 166
Cal.App.4th 1406. That case involved a $500 fine imposed by a local agency based upon
a landowner’s violation of an ordinance prohibiting grading without a permit. The
landowner sought administrative review, contending that the ordinance, as applied to
him, was preempted by state and federal law. This challenge was rejected and the
landowner, acting in pro per, petitioned the superior court for a writ. The trial court,
treating the matter at least in part as a trial de novo pursuant to section 53069.4, denied
the petition. In the passage emphasized by plaintiff, the reviewing court wrote,
“Government Code section 53069.4 provides for alternative procedures for challenging
an administrative decision like a ruling on a code violation, either by a de novo appeal to
the superior court to be heard by a judge or a subordinate judicial officer or by a petition
for writ of mandate under Code of Civil Procedure sections 1094.5 and 1094.6.” (Id. at
p. 1412, italics added.)
Plaintiff seizes upon the language we have italicized to contend that
section 53069.4 extends beyond orders imposing fines or penalties. While it is
regrettable that the court did not take greater pains to confine its language to the issues
actually before it, the case can hardly be viewed as a warrant to extend the statute beyond
its terms. “ ‘ “It is axiomatic that language in a judicial opinion is to be understood in
accordance with the facts and issues before the court. An opinion is not authority for
propositions not considered.” ’ [Citation.] ‘An appellate decision is not authority for
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everything said in the court’s opinion but only “for the points actually involved and
actually decided.” ’ [Citation.]” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.)
There was no occasion in Martin to decide whether section 53069.4 applied to orders not
imposing fines or penalties. It was undisputed there that the challenged order, which
“imposed a fine of $500,” was subject to the statute. (Martin, supra, 166 Cal.App.4th at
p. 1409.) The order at issue here, in contrast, did not impose a fine or any other monetary
exaction. There is no reason to suppose—loose language notwithstanding—that the court
even considered the possibility of applying the statute to such an order.
Plaintiff has failed to persuade us that section 53069.4 applies to orders not
imposing fines and penalties. The order here therefore fell well outside the purview of
the statute, which conferred no right on plaintiff to judicial review by direct appeal. The
only vehicle by which plaintiff could have secured judicial review is the one of which he
was explicitly notified by County, namely, a petition for a writ of administrative
mandamus. The trial court acted quite properly in striking his purported appeal.
DISPOSITION
The order appealed from is affirmed.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
MÁRQUEZ, J.
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