Filed 6/10/21 Fratus v. County of Contra Costa CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CLARK FRATUS, et al.,
Plaintiffs and Appellants,
A157397
v.
COUNTY OF CONTRA COSTA, (Contra Costa County
Super. Ct. No. MSN10-
Defendant and Respondent.
1322)
This is the third appeal from a code enforcement dispute between
appellants Clark and Karla Fratus and respondent the County of Contra
Costa (County) that began more than a decade ago. In the first appeal
(Fratus v. Contra Costa County Department of Conservation and Development
(Aug. 23, 2017, A147841) [nonpub. opn.]) (Fratus I)), we reversed the trial
court’s order denying appellants’ motion for attorney fees and remanded with
directions to award attorney fees under Government Code section 800. On
remand, appellants renewed their request for attorney fees under
Government Code section 25845 and other statutory grounds. Believing itself
to be bound by the narrow scope of our prior remittitur, the trial court
awarded fees under Government Code section 800 and otherwise denied their
request. Appellants appealed a second time, arguing that our prior opinion
did not foreclose other bases for recovery of fees. We agreed and reversed,
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remanding the matter to the trial court for further consideration. (Fratus v.
County of Contra Costa (Sept. 28, 2018, A153424) [nonpub. opn.]) (Fratus II).)
On remand, the trial court ruled that appellants are entitled to the
statutory maximum of $7,500 in attorney fees under Government Code
section 800, but are not entitled to additional attorney fees under
Government Code section 25845. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The County Alleges Building and Zoning Code Violations
Appellants own two properties on Dutch Slough Road in Oakley. In
October 2007 and December 2008, a County building inspector issued notices
to comply for the properties, directing appellants to correct certain building
and zoning code violations. The notices asserted that one of the properties
was not permitted for living space in both stories of the dwelling, and the
other property was not permitted for two separate residences. The notices
stated that if the violations were not corrected, the County would pursue one
or more different code enforcement remedies, including an order to abate or
the imposition of administrative penalties. These notices contained no
language regarding the recovery of attorney fees.
The County then issued notices of intent to record notices of pending
nuisance abatement proceedings with respect to the two properties, citing
Contra Costa County Ordinance Code (Ordinance Code) section 14-6.414,
within the “Civil Enforcement” chapter (Chapter 14-6).1 Although appellants
provided various records to the County supporting the lawfulness of the
structures, the County recorded the notices of pending nuisance abatement
proceedings.
All undesignated statutory references are to the Contra Costa County
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Ordinance Code.
2
B. The County Imposes Fines
In May 2009, County code enforcement officers issued three notices of
fines under section 14-12.006, located within the Ordinance Code’s
“Administrative Penalty System” chapter (Chapter 14-12). Each notice
imposed a $4,300 fine for building and zoning violations at appellants’
properties. The three notices had the same reference numbers and detailed
the same alleged violations as the prior abatement notices. The notices of
fines advised that if the fines were not paid, “legal action may be taken to
collect the penalty” and “[i]f a judicial action is required to collect the penalty,
the County will seek to recover its attorney fees and cost from you.” This was
the first time the County had indicated an intent to seek its attorney fees.
Appellants submitted an appeal of the fines to the Building Inspection
Division of the County’s Department of Conservation & Development.
C. Administrative and Judicial Proceedings
The administrative appeal hearing on the three notices of fines was
held in November 2009 before the County’s deputy zoning administrator and
building official. The appeal hearing was held “[p]er the provisions of the
County Administrative Penalty System (Chapter 14-12).”
On December 8, 2009, the County issued a final administrative order,
imposing $12,900 in fines for the violations found on appellants’ two
properties. The order indicated that if legal action was required to collect the
fines, the County would seek to recover its costs under Code of Civil
Procedure section 1033.5. Appellants were advised that judicial review was
available pursuant to Government Code section 53069.4.2
2 Government Code section 53069.4, subdivision (b)(1) provides, in part:
“Notwithstanding Section 1094.5 or 1094.6 of the Code of Civil Procedure,
within 20 days after service of the final administrative order or decision of
the local agency is made pursuant to an ordinance enacted in accordance with
3
On December 28, 2009, appellants filed an appeal from the December 8,
2009 final administrative order in the superior court. The notice of appeal
indicated that the appeal was taken under Government Code section 53069.4.
On August 13, 2010, appellants, acting pro per, filed a separate petition for
writ of administrative mandamus, combined with a complaint for damages.
The complaint was later dismissed. The petition requested the issuance of a
writ to set aside the December 8, 2009 administrative order and sought
attorney fees and costs. The trial court consolidated the appeal and writ
petition under Case No. N10-1322.3
On June 2, 2011, the trial court issued a minute order granting the
petition for administrative mandate. The minute order directed the County
to set aside the December 8, 2009 order imposing fines on appellants’ two
properties. No relief was ordered with respect to abatement. In November
2012, the County recorded releases of the February and March 2009 notices
of pending nuisance abatement proceedings. The recorded notices stated that
the “nuisance abatement proceeding[s]” had been completed and the
properties were “no longer in violation.”
The trial court’s order and judgment granting the petition for writ of
administrative mandate was not filed until July 2015. In October 2015, the
County’s Board of Supervisors (Board) complied with the writ and set aside
the fines.
this section 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. . . .”
3 We grant the County’s September 14, 2020 unopposed request for
judicial notice of the docket relating to appellants’ December 28, 2009 appeal.
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D. Appellants Seek Attorney Fees
In September 2015, appellants filed a motion for attorney fees based on
three separate grounds. Appellants claimed they were entitled to
reimbursement of all their attorney fees under Government Code section
25845, to $7,500 in fees for each plaintiff pursuant to Government Code
section 800, and to “private attorney general” attorney fees under Code of
Civil Procedure section 1021.5. The trial court denied the motion, holding
that appellants were not entitled to attorney fees under Government Code
section 800 or Code of Civil Procedure section 1021.5. The order was silent
on the applicability of Government Code section 25845 and the related
County abatement ordinance provision, section 14-6.426, subdivision (c)
(hereafter section 14-6.426(c)). Appellants appealed the order.
In Fratus I, supra, appellants argued they were entitled to attorney
fees under both Government Code sections 800 and section 14-6.426(c).
(Fratus II at *6.). This Court reversed the trial court’s order and remanded
with instructions to award attorney fees under Government Code section 800.
(Ibid.)4 We did not address appellants’ contention that they can recover
attorney fees under Government Code section 25845.
On remand, the trial court granted appellants’ motion for attorney fees
but limited the award to the maximum of $7,500 under Government Code
section 800. The court declined to consider recovery under Government Code
section 25845 because it believed that our prior remittitur did not permit
4 Government Code section 800 provides for recovery of reasonable
attorney fees, not to exceed $7,500, by a prevailing party in civil actions
challenging arbitrary and capricious administrative determinations by public
entities or officers thereof. (Gov. Code, § 800, subd. (a).) Appellants did not
contest the denial of attorney fees under Code of Civil Procedure section
1021.5. (Fratus II at p. *2, fn. 1.)
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inquiry into this claim. (Fratus II at pp. *2-3.) Appellants appealed a second
time.
In Fratus II, appellants argued that they were entitled to more than
$7,500 in attorney fees under Government Code section 800, contending that
the statutory maximum can be multiplied to cover multiple parties or issues
within a single civil action. (Fratus II, supra, at p *7.). They renewed their
argument that they were separately entitled to attorney fees under
Government Code section 25845. (Id. at p. *3.) We reversed the trial court’s
order on narrow grounds. We upheld the trial court’s determination that
recovery under Government Code section 800 is limited to $7,500. (Id. at p.
*6.) We remanded to allow the trial court to rule on the applicability of
Government Code section 25845 in the first instance, concluding that our
failure to address that provision in Fratus I had been an oversight on our
part. (Id. at p. *5.)
E. Current Attorney Fee Motion
In January 2019, appellants filed the motion that is the subject of the
current appeal, seeking attorney fees and costs in the amount of $132,232
pursuant to Government Code section 25845 and section 14-6.426(c), in
addition to the confirmed $7,500 in fees under Government Code section 800.
Appellants argued that the underlying litigation fell under section 14-6.426(c)
because it pertained to nuisance abatement rather than to administrative
fines, noting that the County’s nuisance abatement proceedings “were in
effect throughout the litigation, and were only released because [appellants]
prevailed on their writ of mandamus.”
The County opposed the motion, arguing that because the final
administrative order pertained to administrative fees, and not to abatement,
an award of attorney fees was not authorized under Government Code section
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25845 and section 14-6.426(c). Instead, the matter arose from an appeal of
the County’s administrative fines undertaken pursuant to Government Code
section 53069.4, a statute that does not provide for the recovery of attorney
fees by a prevailing party.
On March 12, 2019, the trial court awarded appellants $7,500 in
attorney fees under Government Code section 800 and otherwise denied their
motion. The court held that appellants were not entitled to section 14-
6.426(c) attorney fees because the abatement ordinance allows recovery of
prevailing party attorney fees only if the County announces it will seek to
recover its attorney fees at the initiation of the abatement proceeding. The
notices to comply that were issued by the County in 2007 and 2008 did not
specify that the County would seek its attorney fees. In addition, the
County’s administrative penalty provisions do not provide for the recovery of
attorney fees by a prevailing party. The notices of fine issued by the County
in 2009 were issued pursuant to the County’s administrative penalty scheme
and were not subject to recovery of attorney fees. This appeal followed.
II. DISCUSSION
Appellants’ assertion that they are entitled to attorney fees under
Government Code section 25845 and the County’s abatement ordinance,
section 14-6.426(c), is without merit. The underlying administrative
proceeding, and judicial review of that final order, indisputably involved an
administrative penalty proceeding carried out under an ordinance provision
that does not authorize the recovery of attorney fees to a prevailing party.
Simply put, appellants cannot recover their attorney fees under an
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abatement ordinance provision when no abatement order was ever issued by
the County or reviewed by the trial court.5
A. Applicable Legal Principles
There are two distinct Government Code and County ordinance
provisions at issue in this appeal that reflect separate avenues for the
enforcement of code violations. One method of enforcement (abatement
order) permits the recovery of attorney fees to a prevailing party under
specified circumstances, and the other (administrative fines and penalties)
does not. We review each of these methods to explain why appellants are not
entitled to recover their attorney fees under Government Code section 25845.
i. Abatement
Government Code section 25845 authorizes local governments to
establish procedures for the abatement of nuisances. (Gov. Code, § 25845,
subd. (a).) Subdivision (c) provides: “A county 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
county if it prevails. The ordinance may limit recovery of attorneys’ fees by
the prevailing party to those individual actions or proceedings in which the
county 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
5 As the Supreme Court recently stated, “ ‘determination of the legal
basis for an attorney fee award is a question of law to be reviewed de novo.’ ”
(Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 751.)
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exceed the amount of reasonable attorneys’ fees incurred by the county in the
action or proceeding.”
Pursuant to this authority, the County adopted an abatement
ordinance under section 14-6.4, located within the Ordinance Code’s “Civil
Enforcement” chapter. To abate a nuisance under this section, a County
abatement officer must first declare a nuisance and issue a notice and order
to abate the nuisance. (§ 14-6.410.) A property owner may appeal the
abatement order to the Board of Supervisors. (§ 14-6.416.) The Board may
reverse, modify or affirm the order of abatement. (§ 14-6.420.)
Section 14-6.426 comes into play when a property owner fails to comply
with an order to abate. Subdivision (a) provides: “Upon the failure, neglect or
refusal to properly comply with the order to abate within the prescribed time
period, the county abatement officer may cause to be done whatever work is
necessary to abate the public nuisance. An account of the cost of abatement
shall be kept for each separate assessor’s parcel involved in the abatement.”
Subdivision (c), the fee shifting provision at issue in this appeal, provides as
follows: “Attorneys’ fees may be recovered in a proceeding under this article if
the county elects, at the initiation of the proceeding, to seek recovery of its
own attorneys’ fees. If the county so elects, attorneys’ fees will be recovered
by the prevailing party. In no proceeding shall an award of attorneys’ fees
exceed the amount of reasonable attorneys’ fees incurred by the county in the
proceeding.”
Thus, a prevailing party may recover their attorneys’ fees under section
14-6.426(c) in any action or proceeding which involves a property owner’s
failure or refusal “to properly comply with the order to abate within the
prescribed time period” (subd. (a), italics added), and in which the County
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“elect[ed], at the initiation of the [abatement] proceeding, to seek recovery of
its own attorneys’ fees.” (subd. (c), italics added).
ii. Administrative Fines and Penalties
Government Code section 53069.4 separately “authorizes local
governments to enact an administrative process to enforce violations of any
ordinance through the imposition and collection of administrative fines and
penalties.” (County of Humboldt v. Appellate Division of Superior Court
(2020) 46 Cal.App.5th 298, 305.) It provides that “[t]he local agency shall set
forth by ordinance the administrative procedures that shall govern the
imposition, enforcement, collection, and administrative review … of those
administrative fines [and] penalties.” (Gov. Code, § 53069.4, subd. (a)(1).) It
also authorizes local agencies to “collect the penalty pursuant to the
procedures set forth in its ordinance.” (Id., subd. (d).)
Article 14-12 of the Ordinance Code, which implements Government
Code section 53069.4, imposes fines for various code violations. (§ 14-
12.002(a).) It is located within the Ordinance Code’s “Administrative Penalty
System” chapter, Chapter 14-12. Fines under this article are imposed by
issuing a notice of fine. (§ 14-12.006(f).) A notice of fine may be appealed to a
hearing examiner. (§ 14-12.008.) An appeal to a hearing examiner is the
final administrative level of appeal. (§ 14-12.010.) The ordinance provisions
prescribing the imposition of administrative fines or penalties for code
violations do not allow for recovery of attorney fees to a prevailing party.
B. Analysis
The record does not support appellants’ contention that the
administrative fines at issue in this appeal were based, at least in part, on an
“ ‘action, administrative proceeding, or special proceeding to abate a
nuisance’ ” within the meaning of Government Code section 25845. While the
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fines were prompted by the same alleged building code violations that were
the subject of the County’s abatement proceeding, the administrative fines
were imposed under Chapter 14-6, the chapter pertaining to the County’s
“Administrative Penalty System.” Moreover, the fines were appealed under
the County’s administrative process for review of fines and penalties and
heard by a hearing examiner. The final administrative order reflected that
the appeal hearing was held “[p]er the provisions of the County
Administrative Penalty System (Chapter 14-12).” The final order affirmed
the $12,900 in assessed fines, and did not purport to order abatement of any
conditions on the properties. This administrative process differs markedly
from review of an abatement order, which determination is reviewed by the
Board of Supervisors. (§ 14-6.416). In short, nothing in the record supports
the assertion that the administrative hearing may have served as a
combination review of administrative fines and abatement.6
The record is also clear that judicial review of the final administrative
order was limited to a review of the propriety of the County’s imposition of
fines. The underlying litigation could not have been based on a challenge to
an abatement order because the record contains no evidence that an
abatement order ever issued. The County notes that its abatement officer
never issued a notice and order to abate against appellants’ properties.
Because no abatement order issued, the Board of Supervisors never had
occasion to “reverse, modify or affirm the determination of the county
abatement officer” by issuing a final administrative order (§ 14-6.420), which
6 We need not entertain appellants’ speculation that the Board of
Supervisors may have delegated review of the abatement proceedings to the
hearing officer or delayed its review of abatement because there is no
evidence that an abatement order was ever issued, a necessary precondition
to review by the Board of Supervisors.
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would then be subject to judicial review (§ 14-6.424). Thus, the record
discloses that the abatement proceedings never advanced beyond service of
the initial notices to comply. Appellants have not cited any authorities
suggesting that these notices are reviewable in an administrative mandamus
proceeding in the absence of a final administrative order to abate. Finally,
the only relief ordered by the trial court when it granted appellants’ petition
for administrative mandamus was to require the County to set aside the
December 8, 2009 order imposing fines on appellants’ properties. Nothing
about this order suggests that the court reviewed and adjudicated an
abatement proceeding.
Appellants’ contention that their petition for administrative writ of
mandamus “was not a duplicative judicial challenge of the fine, but rather
was a separate proceeding concerning abatement” is belied by the record.7
Their writ petition requested, among other things, that “[a] Writ be issued
under the seal of the Court commanding the Respondent to set aside the
order or decision (December 8, 2009) pursuant to Code of Civil procedure §
1094.5(f).” In any event, however the writ petition was styled, the evidence is
uncontested that the trial court had no occasion to adjudicate an abatement
matter that had not ripened to a final administrative order to abate.
Appellants point out that the County asserted a right to recover its
attorney fees when it issued the May 2009 fine notices. They contend these
7 Appellants’ opening brief asserted that Government Code section
53069.4, subdivision (b)(1), precluded the trial court “from exercising its
general administrative mandamus review authority pursuant to Code of Civil
Procedure section 1094.5 to review so much of a final administrative decision
that is limited to the determination of the validity of a local agency fine.” In
their reply brief, they withdraw this argument, acknowledging that this
contention was repudiated in Martin v. Riverside County Department of Code
Enforcement (2008) 166 Cal.App.4th 1406.
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notices “necessarily coupled the fine proceeding with the abatement
proceeding for purposes of recovery of attorney fees, for only with such
coupling could the County recover attorney fees in a proceeding to collect a
fine.” Respondent counters that its ability to recover attorney fees from a
civil action to collect unpaid fines arises from the administrative penalty
ordinance, not the abatement ordinance. (Citing § 14-12.016(a) [in civil
action to recovery unpaid fines, county may “recover all costs associated with
the collection of the fine, including those costs set forth in Code of Civil
Procedure Section 1033.5”]; Code Civ. Proc., § 1033.5, subd. (a)(10)
[recoverable costs include attorney fees].) Appellants dispute the County’s
ability to recover attorney fees under this provision. They argue that Code of
Civil Procedure section 1033.5 permits the recovery of attorney fees when
authorized by contract, statute, or law, and there is no state law that allows
the recovery of attorney fees for any civil action of a County to recover a fine.
Appellants misapprehend the relevant law. “A city ordinance may
authorize an award of attorney fees.” (City of Santa Paula v. Narula (2003)
114 Cal.App.4th 485, 492-493 [rejecting contention that “a local ordinance is
not a state statute and not authority for an award of attorney fees” under
Code of Civil Procedure 1033.5].) We need not resolve whether the County is
correct that it can recover attorney fees in a civil action for unpaid fines
under section 14-12.016(a), because what is clear is that the County asserted
its right to recover attorney fees under its administrative penalty scheme, not
the abatement ordinance. As explained above, the County had several
options to enforce the alleged code violations, and its pursuit of
administrative fines did not depend on the commencement or resolution of an
abatement proceeding.
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We conclude that the final administrative order in this matter pertains
only to administrative fees, and the County’s administrative penalty
ordinance does not authorize the recovery of attorney fees under its
provisions. (See §§ 14-12.006 – 14-12.010 [no provision for recovery of
attorney fees to a prevailing party; Gov. Code, § 53069.4 [same].) No
evidence supports the claim that the final administrative fee order arose
under the County’s abatement ordinance. Accordingly, appellants are not
entitled to recover attorney fees under Government Code section 25845 and
section 14-6.426(c) of the Ordinance Code. In light of our conclusions, we
need not address the parties’ remaining contentions.
III. DISPOSITION
The order is affirmed.
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SANCHEZ, J.
We concur.
HUMES, P.J.
MARGULIES, J.
(A157397)
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