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1 ROBERT H. PITTMAN, #172154
County Counsel
2 DIANA E. GOMEZ, #127417
Deputy County Counsel
3 575 Administration Drive, Room 105-A
Santa Rosa, California 95403
4 Telephone: (707) 565-2421
Fax: (707) 565-2624
5 Diana.Gomez2@sonoma-county.org
6 Attorneys for Plaintiff
County of Sonoma
7
SUPERIOR COURT OF CALIFORNIA
8
COUNTY OF SONOMA
9
10 COUNTY OF SONOMA, Case No. SCV266342
11 Plaintiff/Petitioner, PLAINTIFF COUNTY OF SONOMA’S:
12 v. NON-OPPOSITION TO RECEIVER’S
MOTION FOR DISCHARGE AND FINAL
13 DAVE MAJOR, and DOES 1 to 20, REPORT AND ACCOUNTING;
inclusive,
14 REQUEST FOR ORDER DIRECTING
Defendant/Respondent. PAYMENT OF COUNTY’S FEES AND COSTS
15 FROM DEFENDANT DAVE MAJOR;
MEMORANDUM OF POINTS AND
16 AUTHORITIES IN SUPPORT THEREOF;
DECLARATION OF DEPUTY COUNTY
17 COUNSEL DIANA GOMEZ
18
19 Date: May 4, 2022
Time: 3:00pm
20 Dept: 19
21 Honorable Gary Nadler
__________________________________/
22
23 I. INTRODUCTION
24 COUNTY OF SONOMA (“County”), submits this brief which does not object to Receiver
25 Gerard Keena’s February 8, 2022 request to the Court to be discharged from the case at hand or the
26 Receiver’s request for an order to be paid his identified unpaid fees and costs owed from his
27
28
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1
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 appointment to abate the substandard conditions at the subject property 1.
2 By this brief, County also requests the Court order Defendant Dave Major (“Defendant”) to
3 pay all of County’s reasonable and actual costs incurred in enforcing the County’s municipal code
4 against Defendant and the subject property, including, inspection costs, investigation costs,
5 enforcement costs and all costs of prosecution of this action as required under Health and Safety
6 Code (“H&S”) §17980.7(d)(l), and its reasonable attorney’s fees and court costs as the prevailing
7 party under H&S §17980.7(c)(1l). An order against Defendant Major is required as the proceeds
8 from the sale of the Property were insufficient to pay County’s abatement costs.
9 County and its taxpayers have been forced to expend substantial public funds and use its
10 limited resources to bring the Property into compliance with basic municipal, building and zoning
11 regulations due to Defendant’s failure to maintain his own private property. This case was
12 exacerbated by Defendant’s repeated nonsensical and repeated motions, ex parte applications, and
13 superfluous pleadings, all used as delay and subterfuge tactics. In the span of approximately 6
14 months, Defendant Major filed ten (10) such pleadings which County was forced to respond to and
15 in which attorney fees were expended in doing so. Those motions included:
16 1) Amendment One to Motion to Set Aside Default, Amendment One to Answer
To Complaint, Motion to Waive Fees, Costs and to Terminate Receiver, filed
17 March 4, 2021 and denied in part;
18 2) Ex Parte Application to Submit Amendment One to Motion. filed March 15,
2021 and denied;
19
3) Motion to Request Leave to File Second Amendment to Answer to Complaint,
20 filed April 9, 2021;
21 4) Motion to Waive All Fees and Penalties, Costs, Etc, to Vacate Abstract of
Judgment and Dissolve Permanent Injunction and To Terminate Receiver filed
22 May 7, 2021, and denied;
23 5) Motion for Leave to File a 2nd Amendment to Answer, filed June 9, 2021;
24 6) Motion for Leave to File a 3rd Amendment to Answer filed June 9, 2021;
25 7) Ex Parte Application In Equity to Require Plaintiff to Procure An Inspection by
County Code Enforcement, filed August 11, 2021 and denied;
26
8) Ex Parte Application In Equity Enjoining Plaintiff From Filing an Abatement
27
1
The subject property (“Property”) is located at 18550 Hwy 116, Guerneville, CA (APN: 072-280-15) (“the
28 Property”).
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2
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 Lien filed August 11, 2021, and denied;
2 9) Ex Parte to Reconsider Prior Order, file August 24, 2021, and denied;
3 10) Ex Parte Application for Payment of Work Completed By Defendant Based on
Quantum Meruit and Implied Contract, filed September 22, 2021, and denied.
4 (See Declaration of Diana Gomez filed herewith, ¶5)
5 The November 23, 2020, Court's Order Granting Ex Parte Application to Appoint a
6 Receiver (the “Appointment Order”) included a finding that County is the prevailing party and is
7 entitled to recovery of its administrative enforcement costs and attorney’s fees. “The amount shall
8 be established at such time as County makes a further application or the Receiver is ordered to
9 pay such costs, or the Receiver is discharged, whichever comes first”. 2
10 Just as the Receiver is entitled to be compensated for his work, County is also entitled to be
11 compensated its costs of enforcement and prosecution in the amount of $11,060.00 ($9,980.00 in
12 County Counsel fees and $1,190.00 of Permit Sonoma Code Enforcement Division (“Permit
13 Sonoma”) abatement costs. Moreover, relevant case law, the Health and Safety Code, the Sonoma
14 County Municipal Code ("SCC"), and equity, all support that the County's taxpayers be reimbursed
15 by Defendant for the expenditure of their tax dollars. (See also, Winslow v. Harold G. Ferguson
16 Corp. (“Winslow”) (1944) 25 Cal.2d 274, 284-85.)
17 Accordingly, the County respectfully requests that the Court order Defendant to pay all
18 reasonable and actual costs of the County including attorney fees and court costs pursuant to H&S
19 §17980.7(d)(1) and §17980.7(c)(11).
20 II. SUMMARY OF PERTINENT FACTS AND PROCEDURAL HISTORY 3
21 A. History of Nuisances Supports the Costs, Fees, and Resources Expended by County.
22 The following pertinent facts are set forth to inform this Court how the County attempted to
23 abate the Property nuisance violations on its own, pre-receiver involvement. During that time,
24 County expended hundreds of hours of staff and counsel time, and only after it became clear that
25
2Appointment Order, page 11, lines 20-25.3 County hereby incorporates, and does not dispute, the
26 Receiver’s Factual Summary of this matter as stated in his Memorandum of Points and Authorities
filed concurrently with the Receiver’s Motion for Discharge.
27 3 County hereby incorporates, and does not dispute, the Receiver’s Factual Summary of this matter
as stated in his Memorandum of Points and Authorities filed concurrently with the Receiver’s
28 Motion for Discharge.
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3
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 neither voluntary compliance by Defendant or County enforced compliance, was going to abate the
2 nuisances, County determined an appointment of a professional receiver was the best, and only,
3 option for final and complete abatement of the outstanding violations. However, once achieved,
4 County was then forced to expend many further additional hours and resources to oppose and
5 respond to Defendant’s numerous and often frivolous motions, pleadings and requests.
6 The Property came to the County’s attention in September 2014 when Notices and Orders
7 were issued for junkyard conditions and non-putrescible garbage. In February 2015, Defendant
8 took ownership of the Property and by October 2015 more violations were observed on the
9 Property. County took multiple actions of its own to abate the substandard and dangerous
10 conditions on the Property including 4:
11 • Issued Notices and Orders in 2014 and 2015 for junkyard conditions and construction
without a permit for a lack of water supply to a single family dwelling;
12 • Issued Notices and Orders in 2018 due to dangerous building, junkyard conditions,
including, old bicycles, unused lumber, and non-putrescible garbage;
13 • Conducted an Administrative Hearing to obtain and Order to remedy the code violations;
• When Defendant failed to meet the provisions in the Order filed a complaint in Sonoma
14 County Superior Court seeking to abate the on-going public nuisances;
• Obtained a Receiver in 2020 to abate the violations;
15 • Defended multiple motions to prevent County’s efforts to compel abatement.
16 The violations were never voluntarily abated by Defendant despite all of these
17 administrative orders to do so, and the Property continued to contain health and safety hazards
18 including junk and a dangerous building, all of which violated with the Sonoma County Code, the
19 CA Building Code and Health and Safety Code.
20 B. Court Orders Receiver Appointed to Abate the Violations and That County Is
Entitled to Recover Its Costs and Fees.
21
22 When it became clear Defendant was not going to voluntarily abate the violations, in
23 November 2020, County filed its petition with this Court to Appoint a Receiver 5 pursuant to
24 H&S §17980.7 to abate the longstanding code violations and public nuisances on the Property. On
25 November 23, 2020, this Court found the Property was substandard and a public nuisance, granted
26
4 County’s actions are more fully set forth in detail in its Petition to Appoint Receiver.
27 5
The Court is requested to take judicial notice pursuant to Evidence Code §452(d), of County’s Petition to
Appoint Receiver; November 23, 2020 Order appointing the Receiver; and Dec. 28, 2021 Order allowing
28 the sale of the Property.
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4
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 County’s petition and appointed Gerard Keena as the Receiver to bring the Property into code
2 compliance. In that Order, the Court already found County is entitled to payment of its fees and
3 costs. (See §3.M, and Pg. 11, lines 20-25)
4 In particular, the Court’s Appointment Order at page 1, lines 20-25 provides “…County is
5 entitled to recover its attorney fees, ordinary costs and administrative costs, inspection costs,
6 investigation costs, and costs to repair and eliminate all substandard conditions. The amount shall
7 be established at such time as County makes a further application or the Receiver is ordered to
8 pay such costs, or the Receiver is discharged, whichever comes first.”
9 III. COUNTY’S ABATEMENT COSTS AND FEES SHOULD BE RECOVERED
AGAINST DEFENDANT
10
A. The Discharge Hearing Is the Proper Venue to Determine All Issues Related to the
11 Receivership, Including Payment of County’s Enforcement Costs.
12 Once the work of a receivership is finished, the Receiver is required to submit a motion or
13 stipulation for discharge, and a summary of all accounts, payments, and debts of the receivership.
14 California Rules of Court, Rule 3.1183, 3.1184. Thus, all actions undertaken are subject to final
15 ratification by the Court, and the discharge hearing is the appropriate venue for a court to utilize its
16 discretion on all receivership actions. Hanno v. Superior Court (1939) 30 Cal.App.2d 639, 641.
17 The order discharging the receiver is necessary to fully complete the receivership and end the
18 court’s involvement in the receivership. Jun v. Myers (2001) 88 Cal.App.4th 117, 123-24.
19 The discharge order settling the account is the final judgment in a receivership proceeding.
20 Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 233 citing Schreiber v. Ditch
21 Road Investors (1980) 105 Cal.App.3d 675, 677 fn. 1. The discharge order is binding upon all
22 those with such notice and whose claims are addressed in the discharge. Rule 3.1184(a).
23 Likewise, at this hearing County requests the Court order Defendant to also pay its unpaid
24 abatement costs/attorney fees, currently $9,870.00 6, which are set forth with specifics in the
25 Declaration of Gomez, filed herein. County’s enforcement costs are specifically defined in SCC
26 Section. 1-7(b) as “all costs incurred by the County in pursuing abatement, associated remedies,
27 and civil penalties, including administrative overhead, salaries, attorneys' fees, and expenses
28
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5
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 incurred by any county department or agency.” The Office of the County Counsel is a County
2 department and the attorney’s hours expended by this Office are “Costs”, as defined in the
3 municipal Code.
4 Reimbursing the County for its enforcement costs upon discharge in this receivership
5 action is a settled issue because it is mandated by law and the Court has already awarded it in the
6 Appointment Order. Thus, the Court must order that County’s enforcement costs and fees be paid
7 by Defendant.
8 B. Legal Authority Supports County’s Entitlement for Payment of its Abatement
Costs/Fees
9
10 County brought this action under H&S §17980.7(c) which provides that” “The enforcement
11 agency … may seek and the court may order, the appointment of a receiver for the substandard
12 building pursuant to this subdivision...” The plain statutory language of H&S §17980.7(d)(l)
13 requires this Court order Defendant to pay County’s costs and fees: “… The Court shall… (1)
14 Order the owner to pay all reasonable and actual costs of the enforcement agency including, but
15 not limited to, inspection costs, investigation costs, enforcement costs, attorney fees or costs, and
16 all costs of prosecution.” Further, H&S §17980.7(c)(l1) requires reimbursement of the County’s
17 attorney fees and court costs. The Court has previously found 7 the property and the building were
18 “in a condition which substantially endangers the health and safety of residents” and ordered
19 Defendant Major to pay such costs and fees.
20 Just as Defendant is responsible for the conditions that necessitated the Receiver’s
21 appointment, the burden of repaying the costs of the receivership falls to Defendant. As such
22 County requests that the Court issue a judgment against Defendant for the total amount of unpaid
23 County enforcement costs.
24 In a situation like this, where the receivership Property cannot cover the full amount of
25 costs owed in the enforcement action 8, H&S §17980.7(d)(1) provides the back-up plan which
26
27 6See, Declaration of Gomez, Paragraph 6, filed concurrently herein.
7Appointment Order page 11, lines 20-25.
28 8 See Receiver’s Motion for Discharge
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6
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 authorizes a personal order against Defendant, the Property owner, for all of the costs set forth
2 above, in this provision of the code.
3 The Court has wide discretion in receiverships matters including in apportioning payment
4 of fees and costs among the parties. “Courts are vested with broad discretion in determining who is
5 to pay the expenses of a receivership, and the court's determination must be upheld in the absence
6 of a clear showing of an abuse of discretion.” (Baldwin v Baldwin, (1947) 82 Cal.App.2d 851, see
7 Melikian v. Aquila, Ltd. (1998) 63 Cal.App.4th 1364, 1368; People v. Riverside Univ. (1973) 35
8 Cal.App.3d 572, 587.) See also Southern California Sunbelt Developers, Inc. v. Banyan Limited
9 Partnership (2017) 8 Cal.App.5th 910, 922, 933-934 (Trial court has discretion to award costs.)
10 The H&S code, as well as the case law cited herein, supports a finding that County and its
11 taxpayers should not bear the costs of enforcing the law to rehabilitate the Property and protect the
12 public. Any other result would be tantamount to County paying the costs of the abatement itself, an
13 action the legislature clearly mandated as unacceptable, as specifically set forth in H&S §17984
14 “An enforcement agency (County) is not liable for costs in any action or proceeding that the
15 enforcement agency may commence pursuant to this article.”
16 C. County is the Prevailing Party and Entitled to Recover It’s Attorney Fees
17 H&S §17980.7(c)(11) provides that “the prevailing party in an action pursuant to this
18 section shall be entitled to reasonable attorney’s fees and court costs as may be fixed by the court.”
19 Additionally, SCC §1-7(f)(3) provides that if County seeks recovery of its own attorney fees in an
20 individual judicial action, such as a receivership action, an award of attorneys' fees may be made to
21 the prevailing party. See also, Southern California Sunbelt Developers, Inc. v. Banyan Limited
22 Partnership, supra, 8 Cal.App.5th 910. (Trial court has discretion to award costs of receivership to
23 prevailing party under CCP § 1033.5(c)(4), which provides “Items not mentioned in this section
24 and items assessed upon application may be allowed or denied in the court’s discretion.”)
25 County counsel, as attorneys for the County, successfully prosecuted this abatement
26 action, sought the appointment of a receiver and now seeks payment of its attorney hours spent
27 taking those actions. County is the prevailing party in this case and, like the Receiver, County’s
28 attorney’s fees shall be reimbursed at the conclusion of the receivership.
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7
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 D. Fundamental Fairness And Public Policy Demands County Be Reimbursed Its
Costs/Fees In Abating This Public Nuisance And That Those Costs/Fees Not Be Paid
2 From Tax Payer Dollars.
3 There is strong public policy to encourage public agencies to abate nuisances in their
4 communities for health and safety reasons. That policy would be thwarted if agencies could not
5 recover their costs in doing so. From a policy perspective, reimbursing public agencies when they
6 must bring nuisance abatement actions furthers the public policy of supporting cities and counties
7 in seeking abatement of nuisances, thereby, protecting the community. Courts have recognized the
8 important role of cities and counties in enforcing the law and abating nuisances upon substandard
9 properties and held, "[t]here is a strong public policy to encourage cities to abate nuisances and
10 provide attorney fees to help defray the costs of such actions." (City of Santa Paula v. Narula
11 (2003) 114 Cal.App.4th 485, 493.)
12 In City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 403 the Court
13 acknowledged that H&S §17984, which precludes County’s from paying for the costs of a
14 receivership, evidences the Legislature’s strong public policy preference that local enforcement
15 agencies not be discouraged from pursuing public nuisance actions. To disallow County’s cost
16 recovery would discourage public agencies from pursing receiverships if taxpayer monies were not
17 recovered from the very party who forced County to expend these funds. In this case, County was
18 forced to seek appointment of the Receiver due to the long-standing refusal of Defendant to
19 comply with code regulations. Case law makes it clear that County should be made whole; not be
20 made to suffer the costs of obtaining compliance with the law.
21 E. County’s Costs/Fees are Fair and Reasonable.
22 Of the total amount of costs claimed by the County as outstanding, $1,190.00 are the
23 code enforcement hard costs for multiple inspections and noticing of the myriad of violations on
24 the Property. The remaining amount of $9,870.00 is County Counsel attorney hours. (Gomez Decl.
25 ¶6) The billable rate for attorneys in the Sonoma County Counsel’s Office is based on a formula in
26 Gov. Code §26520 and the County Board of Supervisor’s Resolution No. 52450, which require
27 that the rate charged be based on the total cost to the County for the services provided. It is
28 computed by the Auditor’s Office, pursuant to direction from the Board, and is established for each
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8
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
1 Fiscal Year-July-June. The established hourly County Counsel rate for FY 2020/2021 and FY
2 2021/2022 is $282. This hourly rate is objectively reasonable within the local Sonoma County
3 legal community and Statewide for similar services provided. (See Gomez, Decl. ¶7.)
4 Just like the County Counsel hourly rate, the total number of hours expended on this matter is
5 objectively reasonable. The time requested only includes attorney time spent on the underlying code
6 enforcement action in the trial court and in drafting this cost recovery brief. No independent paralegal
7 or legal staff time is included in the demand. County Counsel carefully reviewed its attorney billing
8 reports and did not include any attorney fees for time expended in Defendant Majors’ other
9 current code enforcement cases that involved other properties owned by Defendant. (Gomez
10 Decl. ¶9) Attorney time spent on securing the abatement of the violations only, is as follows:
11 35 hours @ $282/hour - total $9,870.00. (Gomez Decl. ¶9)
12 IV. CONCLUSION
13 For the reasons stated above this Court should order Defendant to pay County’s unpaid
14 enforcement fees and costs in the amount of $11,060.00 within 30 days of the hearing on this
15 matter which is set for May 4, 2022.
16 Respectfully submitted,
17 Dated: April 21, 2022 ROBERT H. PITTMAN, County Counsel
18
By: ________________________________
19 DIANA E. GOMEZ
Deputy County Counsel
20 Attorneys for Petitioner
COUNTY OF SONOMA
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9
County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s
Fee’s and Costs From Defendant Dave Major
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1 ROBERT H. PITTMAN, #172154 County Counsel 2 DIANA E. GOMEZ, #127417 Deputy County Counsel 3 575 Administration Drive, Room 105-A Santa Rosa, California 95403 4 Telephone: (707) 565-2421 Fax: (707) 565-2624 5 Diana.Gomez2@sonoma-county.org 6 Attorneys for Plaintiff County of Sonoma 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF SONOMA 9 10 COUNTY OF SONOMA, Case No. SCV266342 11 Plaintiff/Petitioner, PLAINTIFF COUNTY OF SONOMA’S: 12 v. NON-OPPOSITION TO RECEIVER’S MOTION FOR DISCHARGE AND FINAL 13 DAVE MAJOR, and DOES 1 to 20, REPORT AND ACCOUNTING; inclusive, 14 REQUEST FOR ORDER DIRECTING Defendant/Respondent. PAYMENT OF COUNTY’S FEES AND COSTS 15 FROM DEFENDANT DAVE MAJOR; MEMORANDUM OF POINTS AND 16 AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF DEPUTY COUNTY 17 COUNSEL DIANA GOMEZ 18 19 Date: May 4, 2022 Time: 3:00pm 20 Dept: 19 21 Honorable Gary Nadler __________________________________/ 22 23 I. INTRODUCTION 24 COUNTY OF SONOMA (“County”), submits this brief which does not object to Receiver 25 Gerard Keena’s February 8, 2022 request to the Court to be discharged from the case at hand or the 26 Receiver’s request for an order to be paid his identified unpaid fees and costs owed from his 27 28 ______________________________________________________________________________________________________________________ 1 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 appointment to abate the substandard conditions at the subject property 1. 2 By this brief, County also requests the Court order Defendant Dave Major (“Defendant”) to 3 pay all of County’s reasonable and actual costs incurred in enforcing the County’s municipal code 4 against Defendant and the subject property, including, inspection costs, investigation costs, 5 enforcement costs and all costs of prosecution of this action as required under Health and Safety 6 Code (“H&S”) §17980.7(d)(l), and its reasonable attorney’s fees and court costs as the prevailing 7 party under H&S §17980.7(c)(1l). An order against Defendant Major is required as the proceeds 8 from the sale of the Property were insufficient to pay County’s abatement costs. 9 County and its taxpayers have been forced to expend substantial public funds and use its 10 limited resources to bring the Property into compliance with basic municipal, building and zoning 11 regulations due to Defendant’s failure to maintain his own private property. This case was 12 exacerbated by Defendant’s repeated nonsensical and repeated motions, ex parte applications, and 13 superfluous pleadings, all used as delay and subterfuge tactics. In the span of approximately 6 14 months, Defendant Major filed ten (10) such pleadings which County was forced to respond to and 15 in which attorney fees were expended in doing so. Those motions included: 16 1) Amendment One to Motion to Set Aside Default, Amendment One to Answer To Complaint, Motion to Waive Fees, Costs and to Terminate Receiver, filed 17 March 4, 2021 and denied in part; 18 2) Ex Parte Application to Submit Amendment One to Motion. filed March 15, 2021 and denied; 19 3) Motion to Request Leave to File Second Amendment to Answer to Complaint, 20 filed April 9, 2021; 21 4) Motion to Waive All Fees and Penalties, Costs, Etc, to Vacate Abstract of Judgment and Dissolve Permanent Injunction and To Terminate Receiver filed 22 May 7, 2021, and denied; 23 5) Motion for Leave to File a 2nd Amendment to Answer, filed June 9, 2021; 24 6) Motion for Leave to File a 3rd Amendment to Answer filed June 9, 2021; 25 7) Ex Parte Application In Equity to Require Plaintiff to Procure An Inspection by County Code Enforcement, filed August 11, 2021 and denied; 26 8) Ex Parte Application In Equity Enjoining Plaintiff From Filing an Abatement 27 1 The subject property (“Property”) is located at 18550 Hwy 116, Guerneville, CA (APN: 072-280-15) (“the 28 Property”). ______________________________________________________________________________________________________________________ 2 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 Lien filed August 11, 2021, and denied; 2 9) Ex Parte to Reconsider Prior Order, file August 24, 2021, and denied; 3 10) Ex Parte Application for Payment of Work Completed By Defendant Based on Quantum Meruit and Implied Contract, filed September 22, 2021, and denied. 4 (See Declaration of Diana Gomez filed herewith, ¶5) 5 The November 23, 2020, Court's Order Granting Ex Parte Application to Appoint a 6 Receiver (the “Appointment Order”) included a finding that County is the prevailing party and is 7 entitled to recovery of its administrative enforcement costs and attorney’s fees. “The amount shall 8 be established at such time as County makes a further application or the Receiver is ordered to 9 pay such costs, or the Receiver is discharged, whichever comes first”. 2 10 Just as the Receiver is entitled to be compensated for his work, County is also entitled to be 11 compensated its costs of enforcement and prosecution in the amount of $11,060.00 ($9,980.00 in 12 County Counsel fees and $1,190.00 of Permit Sonoma Code Enforcement Division (“Permit 13 Sonoma”) abatement costs. Moreover, relevant case law, the Health and Safety Code, the Sonoma 14 County Municipal Code ("SCC"), and equity, all support that the County's taxpayers be reimbursed 15 by Defendant for the expenditure of their tax dollars. (See also, Winslow v. Harold G. Ferguson 16 Corp. (“Winslow”) (1944) 25 Cal.2d 274, 284-85.) 17 Accordingly, the County respectfully requests that the Court order Defendant to pay all 18 reasonable and actual costs of the County including attorney fees and court costs pursuant to H&S 19 §17980.7(d)(1) and §17980.7(c)(11). 20 II. SUMMARY OF PERTINENT FACTS AND PROCEDURAL HISTORY 3 21 A. History of Nuisances Supports the Costs, Fees, and Resources Expended by County. 22 The following pertinent facts are set forth to inform this Court how the County attempted to 23 abate the Property nuisance violations on its own, pre-receiver involvement. During that time, 24 County expended hundreds of hours of staff and counsel time, and only after it became clear that 25 2Appointment Order, page 11, lines 20-25.3 County hereby incorporates, and does not dispute, the 26 Receiver’s Factual Summary of this matter as stated in his Memorandum of Points and Authorities filed concurrently with the Receiver’s Motion for Discharge. 27 3 County hereby incorporates, and does not dispute, the Receiver’s Factual Summary of this matter as stated in his Memorandum of Points and Authorities filed concurrently with the Receiver’s 28 Motion for Discharge. ______________________________________________________________________________________________________________________ 3 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 neither voluntary compliance by Defendant or County enforced compliance, was going to abate the 2 nuisances, County determined an appointment of a professional receiver was the best, and only, 3 option for final and complete abatement of the outstanding violations. However, once achieved, 4 County was then forced to expend many further additional hours and resources to oppose and 5 respond to Defendant’s numerous and often frivolous motions, pleadings and requests. 6 The Property came to the County’s attention in September 2014 when Notices and Orders 7 were issued for junkyard conditions and non-putrescible garbage. In February 2015, Defendant 8 took ownership of the Property and by October 2015 more violations were observed on the 9 Property. County took multiple actions of its own to abate the substandard and dangerous 10 conditions on the Property including 4: 11 • Issued Notices and Orders in 2014 and 2015 for junkyard conditions and construction without a permit for a lack of water supply to a single family dwelling; 12 • Issued Notices and Orders in 2018 due to dangerous building, junkyard conditions, including, old bicycles, unused lumber, and non-putrescible garbage; 13 • Conducted an Administrative Hearing to obtain and Order to remedy the code violations; • When Defendant failed to meet the provisions in the Order filed a complaint in Sonoma 14 County Superior Court seeking to abate the on-going public nuisances; • Obtained a Receiver in 2020 to abate the violations; 15 • Defended multiple motions to prevent County’s efforts to compel abatement. 16 The violations were never voluntarily abated by Defendant despite all of these 17 administrative orders to do so, and the Property continued to contain health and safety hazards 18 including junk and a dangerous building, all of which violated with the Sonoma County Code, the 19 CA Building Code and Health and Safety Code. 20 B. Court Orders Receiver Appointed to Abate the Violations and That County Is Entitled to Recover Its Costs and Fees. 21 22 When it became clear Defendant was not going to voluntarily abate the violations, in 23 November 2020, County filed its petition with this Court to Appoint a Receiver 5 pursuant to 24 H&S §17980.7 to abate the longstanding code violations and public nuisances on the Property. On 25 November 23, 2020, this Court found the Property was substandard and a public nuisance, granted 26 4 County’s actions are more fully set forth in detail in its Petition to Appoint Receiver. 27 5 The Court is requested to take judicial notice pursuant to Evidence Code §452(d), of County’s Petition to Appoint Receiver; November 23, 2020 Order appointing the Receiver; and Dec. 28, 2021 Order allowing 28 the sale of the Property. ______________________________________________________________________________________________________________________ 4 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 County’s petition and appointed Gerard Keena as the Receiver to bring the Property into code 2 compliance. In that Order, the Court already found County is entitled to payment of its fees and 3 costs. (See §3.M, and Pg. 11, lines 20-25) 4 In particular, the Court’s Appointment Order at page 1, lines 20-25 provides “…County is 5 entitled to recover its attorney fees, ordinary costs and administrative costs, inspection costs, 6 investigation costs, and costs to repair and eliminate all substandard conditions. The amount shall 7 be established at such time as County makes a further application or the Receiver is ordered to 8 pay such costs, or the Receiver is discharged, whichever comes first.” 9 III. COUNTY’S ABATEMENT COSTS AND FEES SHOULD BE RECOVERED AGAINST DEFENDANT 10 A. The Discharge Hearing Is the Proper Venue to Determine All Issues Related to the 11 Receivership, Including Payment of County’s Enforcement Costs. 12 Once the work of a receivership is finished, the Receiver is required to submit a motion or 13 stipulation for discharge, and a summary of all accounts, payments, and debts of the receivership. 14 California Rules of Court, Rule 3.1183, 3.1184. Thus, all actions undertaken are subject to final 15 ratification by the Court, and the discharge hearing is the appropriate venue for a court to utilize its 16 discretion on all receivership actions. Hanno v. Superior Court (1939) 30 Cal.App.2d 639, 641. 17 The order discharging the receiver is necessary to fully complete the receivership and end the 18 court’s involvement in the receivership. Jun v. Myers (2001) 88 Cal.App.4th 117, 123-24. 19 The discharge order settling the account is the final judgment in a receivership proceeding. 20 Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 233 citing Schreiber v. Ditch 21 Road Investors (1980) 105 Cal.App.3d 675, 677 fn. 1. The discharge order is binding upon all 22 those with such notice and whose claims are addressed in the discharge. Rule 3.1184(a). 23 Likewise, at this hearing County requests the Court order Defendant to also pay its unpaid 24 abatement costs/attorney fees, currently $9,870.00 6, which are set forth with specifics in the 25 Declaration of Gomez, filed herein. County’s enforcement costs are specifically defined in SCC 26 Section. 1-7(b) as “all costs incurred by the County in pursuing abatement, associated remedies, 27 and civil penalties, including administrative overhead, salaries, attorneys' fees, and expenses 28 ______________________________________________________________________________________________________________________ 5 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 incurred by any county department or agency.” The Office of the County Counsel is a County 2 department and the attorney’s hours expended by this Office are “Costs”, as defined in the 3 municipal Code. 4 Reimbursing the County for its enforcement costs upon discharge in this receivership 5 action is a settled issue because it is mandated by law and the Court has already awarded it in the 6 Appointment Order. Thus, the Court must order that County’s enforcement costs and fees be paid 7 by Defendant. 8 B. Legal Authority Supports County’s Entitlement for Payment of its Abatement Costs/Fees 9 10 County brought this action under H&S §17980.7(c) which provides that” “The enforcement 11 agency … may seek and the court may order, the appointment of a receiver for the substandard 12 building pursuant to this subdivision...” The plain statutory language of H&S §17980.7(d)(l) 13 requires this Court order Defendant to pay County’s costs and fees: “… The Court shall… (1) 14 Order the owner to pay all reasonable and actual costs of the enforcement agency including, but 15 not limited to, inspection costs, investigation costs, enforcement costs, attorney fees or costs, and 16 all costs of prosecution.” Further, H&S §17980.7(c)(l1) requires reimbursement of the County’s 17 attorney fees and court costs. The Court has previously found 7 the property and the building were 18 “in a condition which substantially endangers the health and safety of residents” and ordered 19 Defendant Major to pay such costs and fees. 20 Just as Defendant is responsible for the conditions that necessitated the Receiver’s 21 appointment, the burden of repaying the costs of the receivership falls to Defendant. As such 22 County requests that the Court issue a judgment against Defendant for the total amount of unpaid 23 County enforcement costs. 24 In a situation like this, where the receivership Property cannot cover the full amount of 25 costs owed in the enforcement action 8, H&S §17980.7(d)(1) provides the back-up plan which 26 27 6See, Declaration of Gomez, Paragraph 6, filed concurrently herein. 7Appointment Order page 11, lines 20-25. 28 8 See Receiver’s Motion for Discharge ______________________________________________________________________________________________________________________ 6 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 authorizes a personal order against Defendant, the Property owner, for all of the costs set forth 2 above, in this provision of the code. 3 The Court has wide discretion in receiverships matters including in apportioning payment 4 of fees and costs among the parties. “Courts are vested with broad discretion in determining who is 5 to pay the expenses of a receivership, and the court's determination must be upheld in the absence 6 of a clear showing of an abuse of discretion.” (Baldwin v Baldwin, (1947) 82 Cal.App.2d 851, see 7 Melikian v. Aquila, Ltd. (1998) 63 Cal.App.4th 1364, 1368; People v. Riverside Univ. (1973) 35 8 Cal.App.3d 572, 587.) See also Southern California Sunbelt Developers, Inc. v. Banyan Limited 9 Partnership (2017) 8 Cal.App.5th 910, 922, 933-934 (Trial court has discretion to award costs.) 10 The H&S code, as well as the case law cited herein, supports a finding that County and its 11 taxpayers should not bear the costs of enforcing the law to rehabilitate the Property and protect the 12 public. Any other result would be tantamount to County paying the costs of the abatement itself, an 13 action the legislature clearly mandated as unacceptable, as specifically set forth in H&S §17984 14 “An enforcement agency (County) is not liable for costs in any action or proceeding that the 15 enforcement agency may commence pursuant to this article.” 16 C. County is the Prevailing Party and Entitled to Recover It’s Attorney Fees 17 H&S §17980.7(c)(11) provides that “the prevailing party in an action pursuant to this 18 section shall be entitled to reasonable attorney’s fees and court costs as may be fixed by the court.” 19 Additionally, SCC §1-7(f)(3) provides that if County seeks recovery of its own attorney fees in an 20 individual judicial action, such as a receivership action, an award of attorneys' fees may be made to 21 the prevailing party. See also, Southern California Sunbelt Developers, Inc. v. Banyan Limited 22 Partnership, supra, 8 Cal.App.5th 910. (Trial court has discretion to award costs of receivership to 23 prevailing party under CCP § 1033.5(c)(4), which provides “Items not mentioned in this section 24 and items assessed upon application may be allowed or denied in the court’s discretion.”) 25 County counsel, as attorneys for the County, successfully prosecuted this abatement 26 action, sought the appointment of a receiver and now seeks payment of its attorney hours spent 27 taking those actions. County is the prevailing party in this case and, like the Receiver, County’s 28 attorney’s fees shall be reimbursed at the conclusion of the receivership. ______________________________________________________________________________________________________________________ 7 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 D. Fundamental Fairness And Public Policy Demands County Be Reimbursed Its Costs/Fees In Abating This Public Nuisance And That Those Costs/Fees Not Be Paid 2 From Tax Payer Dollars. 3 There is strong public policy to encourage public agencies to abate nuisances in their 4 communities for health and safety reasons. That policy would be thwarted if agencies could not 5 recover their costs in doing so. From a policy perspective, reimbursing public agencies when they 6 must bring nuisance abatement actions furthers the public policy of supporting cities and counties 7 in seeking abatement of nuisances, thereby, protecting the community. Courts have recognized the 8 important role of cities and counties in enforcing the law and abating nuisances upon substandard 9 properties and held, "[t]here is a strong public policy to encourage cities to abate nuisances and 10 provide attorney fees to help defray the costs of such actions." (City of Santa Paula v. Narula 11 (2003) 114 Cal.App.4th 485, 493.) 12 In City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 403 the Court 13 acknowledged that H&S §17984, which precludes County’s from paying for the costs of a 14 receivership, evidences the Legislature’s strong public policy preference that local enforcement 15 agencies not be discouraged from pursuing public nuisance actions. To disallow County’s cost 16 recovery would discourage public agencies from pursing receiverships if taxpayer monies were not 17 recovered from the very party who forced County to expend these funds. In this case, County was 18 forced to seek appointment of the Receiver due to the long-standing refusal of Defendant to 19 comply with code regulations. Case law makes it clear that County should be made whole; not be 20 made to suffer the costs of obtaining compliance with the law. 21 E. County’s Costs/Fees are Fair and Reasonable. 22 Of the total amount of costs claimed by the County as outstanding, $1,190.00 are the 23 code enforcement hard costs for multiple inspections and noticing of the myriad of violations on 24 the Property. The remaining amount of $9,870.00 is County Counsel attorney hours. (Gomez Decl. 25 ¶6) The billable rate for attorneys in the Sonoma County Counsel’s Office is based on a formula in 26 Gov. Code §26520 and the County Board of Supervisor’s Resolution No. 52450, which require 27 that the rate charged be based on the total cost to the County for the services provided. It is 28 computed by the Auditor’s Office, pursuant to direction from the Board, and is established for each ______________________________________________________________________________________________________________________ 8 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major 1 Fiscal Year-July-June. The established hourly County Counsel rate for FY 2020/2021 and FY 2 2021/2022 is $282. This hourly rate is objectively reasonable within the local Sonoma County 3 legal community and Statewide for similar services provided. (See Gomez, Decl. ¶7.) 4 Just like the County Counsel hourly rate, the total number of hours expended on this matter is 5 objectively reasonable. The time requested only includes attorney time spent on the underlying code 6 enforcement action in the trial court and in drafting this cost recovery brief. No independent paralegal 7 or legal staff time is included in the demand. County Counsel carefully reviewed its attorney billing 8 reports and did not include any attorney fees for time expended in Defendant Majors’ other 9 current code enforcement cases that involved other properties owned by Defendant. (Gomez 10 Decl. ¶9) Attorney time spent on securing the abatement of the violations only, is as follows: 11 35 hours @ $282/hour - total $9,870.00. (Gomez Decl. ¶9) 12 IV. CONCLUSION 13 For the reasons stated above this Court should order Defendant to pay County’s unpaid 14 enforcement fees and costs in the amount of $11,060.00 within 30 days of the hearing on this 15 matter which is set for May 4, 2022. 16 Respectfully submitted, 17 Dated: April 21, 2022 ROBERT H. PITTMAN, County Counsel 18 By: ________________________________ 19 DIANA E. GOMEZ Deputy County Counsel 20 Attorneys for Petitioner COUNTY OF SONOMA 21 22 23 24 25 26 27 28 ______________________________________________________________________________________________________________________ 9 County’s Non Opposition to Receiver’s Motion for Discharge; Request For Order Directing Payment of County’s Fee’s and Costs From Defendant Dave Major