Preview
1 ANDREW JANZ, City Attorney
CITY OF FRESNO E-FILED
2 4/3/2024 10:27 AM
By: Christina Roberson, Assistant City Attorney (284512) Superior Court of California
3 Sylvia Luna, Deputy City Attorney (345390) County of Fresno
2600 Fresno Street, Room 2031 By: S. Garcia, Deputy
4 Fresno, California 93721-3602
Telephone: (559) 621-7500
5 Facsimile: (559) 457-1084
6 Attorneys for Petitioners City of Fresno Exempt from Filing Fees Pursuant
to Government Code section 6103
and People of the State of California
7
8
9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF FRESNO
11 24CECG01463
In the Matter of the City of Fresno’s Application Case No.:
12 for Issuance of an Inspection and Abatement
APPLICATION FOR FORCED ENTRY
Warrant for the real property located at 2734 INSPECTION AND ABATEMENT
13
West Clinton Avenue, Fresno, California WARRANT UNDER CODE OF CIVIL
14 93705, Assessor's Parcel Number 442-081-22; PROCEDURE SECTIONS 1822.50, ET
owned by Jesus Pineda Hernandez. SEQ.; AND DECLARATION OF
15 MICHAEL DUARTE IN SUPPORT
THEROF
16
17 THE CITY OF FRESNO (City), CALIFORNIA, HEREBY applies to this Court for an
18 Inspection and Abatement Warrant, pursuant to California Code of Civil Procedure sections
19 1822.50 et seq., authorizing the City to enter upon the premises commonly known as 2734 West
20 Clinton Avenue, in the City of Fresno, State of California, County of Fresno; Assessor’s Parcel
21 Number 442-081-22 (the Property). The City has attempted, but has been unable to obtain, the
22 cooperation from Jesus Pineda Hernandez (Owner) to comply with a valid Notice and Order to
23 remove violations issued by the City of Fresno HART Code Enforcement Division on August 18,
24 2023. This Application is based upon the Memorandum of Points and Authorities and the
25 Declaration of Michael Duarte, attached hereto, and upon any oral and documentary evidence which
26 may be presented to the Court.
27 ///
28 ///
1
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 The City of Fresno (City) respectfully requests this Court (1) authorize an Inspection and
4 Abatement Warrant for the commercial real property located at 2734 West Clinton Avenue, Fresno,
5 California 93705, Assessor's Parcel Number 442-081-22, and (2) that the warrant provide for
6 inspection and abatement in Owner’s absence and for the use of reasonable force to enter the Property
7 to effectuate the warrant.
8 II. STATEMENT OF FACTS
9 The property located at 2734 West Clinton Avenue, Fresno, California 93705 (the Property)
10 is comprised of a vacant commercial building on a 1.65-acre lot, zoned for general heavy
11 commercial use, located near the intersection of West Clinton Avenue and North Marks Avenue.
12 (See Declaration of Michael Duarte) (Duarte Decl.) ¶ 7.) Jesus Pineda Hernandez (Owner) holds
13 title to the Property. (Duarte Decl. ¶ 6.) Since the case was opened on August 11, 2023, the City
14 has repeatedly observed multiple violations from the Fresno Municipal Code (FMC) including, but
15 not limited to, the following:
16 i. Junk and rubbish throughout the property. (FMC § 10-605 (a).)
17 ii. Tall and/or dry weeds/grass located throughout the property. (FMC §§ 10-605(d)(6), 10-
18 605(i), 15-2505(C).)
19 iii. Property has a fire hazard: dry, tall grass and weeds, rubbish, waste, or other flammable
20 material likely to become easily ignited. (FMC §§ 10-50304.5, 10-605(d)(6).)
21 iv. Illegal use of land: the fenced area behind the building, and the northwest corner of the
22 property are being used as a transient encampment area and occupied without a
23 certificate of occupancy. (FMC §§ 10-605(j), 10-605(l), 10-611, 15-104(A)(2), 12-
24 5022(B), 15-6304.)
25 Despite the many opportunities and more than reasonable time to correct the violations and
26 abate the risks given to Owner, City has been unable to gain compliance, or even reasonable
27 progress towards compliance. (Duarte Decl. ¶¶ 10-33.) Therefore, the City seeks an order from the
28 Court permitting the City, its employees, and any contractors hired by the City to enter onto all
2
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 exterior areas of the Property, the interior and exterior of any accessory structures present (including
2 any RVs, travel trailers, vehicles, detached garages, tents, and/or sheds), as well as any other
3 improvements on the Property for the purposes of (1) conducting an inspection to determine the
4 extent and nature of municipal code violations, and (2) abating the nuisance conditions and
5 hazardous health and safety violations at the Property.
6 III. LEGAL ARGUMENT
7 A. Warrant Requirement
8 The Fourth Amendment of the United States Constitution requires a city to obtain a warrant
9 to enter into private property without the consent of the occupant to inspect and abate a public
10 nuisance. Camara v. Municipal Court of City and County of San Francisco (1967) 378 U.S. 523,
11 524; Gleaves v. Waters (1985) 175 Cal.App.3d 413,418; See also Connor v. City of Santa Ana (9th
12 Cir. 1990) 897 F.2d 1487, 1490.) Government officials engaged in the abatement of a public
13 nuisance, in the absence of consent or exigent circumstances, must have a warrant to enter any
14 private property where such entry would invade a constitutionally protected privacy interest.
15 (Gleaves v. Waters, supra, 175 Cal.App.3d at 419-20; see also Flahive v. City of Dana Point (1999)
16 72 Cal. App. 4th 241, 246.)
17 B. This Court has Authority to Issue an Inspection Warrant
18 Pursuant to the Code of Civil Procedure section 1822.50, an inspection warrant can be issued
19 to a local official to conduct an inspection authorized by state or local law. Code of Civil Procedure
20 section 1822.50 provides the following:
21 “An inspection warrant is an order, in writing, in the name of the people, signed by a
judge of a court of record, directed to a state or local official, commanding him to
22 conduct any inspection required or authorized by state or local law or regulation
23 relating to building, fire, safety, plumbing, electrical, health, labor, or zoning.”
24 In City and County of San Francisco v. Municipal Court (1985) 167 Cal.App.3d 712, 719, the
25 court stated that a civil inspection warrant must be justified by reasonable governmental interests.
26 Where the governmental interest at stake is to enforce building standards and thereby prevent
27 conditions that are hazardous to public health and safety, the test for determining reasonableness may
28 vary with the particular municipal program being enforced. (Id.) “Enforcement, obviously, cannot be
3
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 accomplished without inspection and Camara permits an inspection with a warrant to enforce building
2 codes.” (Id. at p. 720.) Thus, the court authorized an inspection warrant to allow redevelopment officers
3 to enter private property to determine whether that property complied with redevelopment standards.
4 (Id.)
5 HART Code Enforcement Inspectors for the City are authorized to enforce the FMC. (FMC §
6 1-302.) The FMC incorporates by reference the standards of the California Building, Residential,
7 Electrical, Mechanical, Plumbing, and Fire codes. (FMC §§ 10-501, 11-101, 11-103-105, 11-107.)
8 Here, as evidenced in the numerous incorporations and adoptions within the FMC, the City has
9 adopted standards to prevent conditions that are hazardous to public health and safety. Thus, the City
10 has a reasonable interest, public health and safety, in enforcing the standards of its municipal code.
11 Therefore, in order to enforce these standards, the warrant should provide for a thorough inspection
12 of all exterior areas of the Property, the interior and exterior of any accessory structures present
13 (including any RVs, travel trailers, vehicles, detached garages, tents, and/or sheds), as well as any
14 other improvements on the Property. (Duarte Decl. ¶ 35.) An inspection of this scope is necessary to
15 address the City’s reasonable interest in assessing the level of danger to the public posed by conditions
16 on the Property.
17 C. This Court has Authority to Issue an Abatement Warrant
18 Cities are expressly authorized to declare what constitutes a nuisance (Gov. Code, § 38771),
19 and provide for summary abatement of the nuisance. (Gov. Code, § 38773.) While there is no
20 statutory procedure for issuance of a warrant authorizing entry into private property specifically to
21 abate a public nuisance, there are numerous cases that clearly establish the validity of an abatement
22 warrant and have authorized the court to issue such a warrant. In Conner v. City of Santa Ana, the
23 court held, “California courts have rejected, for purposes of the warrant requirement, any distinction
24 between inspection and abatement of a declared public nuisance.” (Connor v. City of Santa Ana,
25 supra, 897 F.2d at p. 1491.) The Courts in Gleaves and Flahive held that an abatement warrant
26 procedure that follows the statutory requirements of an inspection warrant is sufficient to pass
27 constitutional muster. (Flahive v. City of Dana Point, supra, 72 Cal. App. 4th at p. 246; Gleaves v.
28
4
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 Waters, supra, 175 Cal.App.3d at p. 420.) Therefore, the procedure for obtaining the abatement
2 warrant mirrors the procedure for an inspection warrant.
3 D. Abatement is Authorized Under the City’s Authority Under State and Local
Law
4
Both California Civil Code section 3494 and FMC sections 10-606, 11-328, and 11-333
5
authorize the City to abate a public nuisance. Specifically, a public nuisance may be abated by any
6
public body or officer authorized thereto by law (Civ. Code § 3494) and local code allows
7
abatement of public nuisances by instituting legal action such as a warrant. (FMC §§ 10-606, 11-
8
328, 11-333.)
9
In the present case, in order to enforce the aforementioned standards, the warrant should
10
provide the abatement of any FMC violations located at any exterior area of the Property, the interior
11
and exterior of any accessory structures present (including any RVs, travel trailers, vehicles,
12
detached garages, tents, and/or sheds), any improvements on the Property, and any and all public
13
nuisances found at the time of warrant execution, in order to prevent injury to the public health,
14
safety, and welfare of the surrounding community, and prevent deterioration of the neighborhood.
15
(Duarte Decl. ¶ 36.) These violations may include, but are not limited to, junk and rubbish, tall grass
16
and weeds, fire hazards, and illegal use of land. (Duarte Decl. ¶ 10.) An abatement of this scope is
17
necessary to address the City’s reasonable interest in preventing injury to the public health, safety and
18
welfare of the surrounding community, and preventing deterioration of the neighborhood.
19
E. Requirements to Issue an Inspection and Abatement Warrant
20
Under the Code of Civil Procedure section 1822.51, the procedural requirements for the
21
issuance of an inspection warrant are an affidavit particularly describing the property to be searched,
22
the purpose of the inspection, and the absence of consent. Code of Civil Procedure section 1822.51
23
provides:
24
“An inspection warrant shall be issued upon cause…An inspection warrant shall be
25 supported by affidavit, particularly describing the place, dwelling, structure,
premises, or vehicle to be inspected and the purpose for which the inspection is to
26
be made. In addition, the affidavit shall contain either a statement that the consent
27 to inspect has been sought and refused or facts or circumstances reasonably
justifying the failure to seek consent.”
28
5
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 The following sections will show that all requirements for issuance of an inspection and
2 abatement warrant in this case have been met and that this court would be proper to grant the City’s
3 request to abate the nuisance at the Property.
4 F. The Declaration of Inspector Duarte Meets the Requirements of Code of Civil
5 Procedure section 1822.51.
6 a. Particular Description: The Declaration of Inspector Duarte describes with particularity
7 the exact physical location of the Property within the City of Fresno, the areas to be
8 searched, and the areas and expected violations to be abated. (Duarte Decl. ¶¶ 1, 7,
9 and 35-36.)
10 b. Purpose for Inspection and Abatement: The purpose for which the abatement must be
11 done is to comply with the FMC. Specifically, FMC section 10-602. FMC section 10-
12 602 states the goal of the public nuisance abatement article is to safeguard, remedy and
13 prevent the decay and deterioration of our community by elimination of public
14 nuisances. The conditions at the Property are injurious and inimical to the public health,
15 safety and welfare of the residents of the City, contribute substantially to the
16 deterioration of the neighborhood and community, and some pose a significant fire
17 hazard. (Duarte Decl. ¶ 34.)
18 c. Continued Efforts to Seek Consent Would Be Futile: The City has attempted to work
19 with Owner to abate nuisances at the Property multiple times but has been
20 unsuccessful. (Duarte Decl. ¶ 33.) The City issued a Notice and Order, three
21 Administrative Citations, spoke with Owner on multiple occasions and left many
22 voice messages. (Duarte Decl. ¶¶ 10, 12, 15, 17-18, 20-22, 24, 27, and 31-33; see
23 also Exhibits 4-7.) Owner has failed to abate the nuisance conditions at the Property
24 despite repeated directives from the City. (Duarte Decl. ¶ 33.) Moreover, Owner did
25 not respond when the City offered to schedule a cleanup. (Duarte Decl. ¶ 28.) Based
26 upon the foregoing, any continued efforts to seek consent would be futile.
27 ///
28 ///
6
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 Based on the evidence above, the declaration of Inspector Duarte clearly meets all requirements
2 set forth in Code of Civil Procedure section 1822.51 and supports the issuance of the Inspection and
3 Abatement Warrant requested by the City.
4 G. Cause to Issue an Inspection and Abatement Warrant
5 There is sufficient cause to issue an inspection warrant if there is reason to believe a condition
6 of nonconformity exists on a particular property. Code of Civil Procedure section 1822.52 provides:
7 “Cause shall be deemed to exist if…there is reason to believe that a condition of
nonconformity exists with respect to the particular place, dwelling, structure,
8 premises, or vehicle.”
9 Reasonable cause exists to believe that violations are present on the Property as described in
10 detail above and evidenced by the attached declaration of Inspector Duarte. It is apparent in Exhibit 1
11 that the noticed violations previously observed by the City, as recently as March 6, 2024, have
12 continually been present at the Property, and there has been no significant attempt at compliance with
13 the FMC since the City opened the case in December 2022. The City has actual knowledge of non-
14 conformities existing at the Property which continue to be present in violation of the FMC and Notices
15 issued to Owner.
16
H. The Warrant Should Not Require Owner to be Present and Should Authorize
17 the Use of Reasonable Force to Enter the Property
18 Code of Civil Procedure section 1822.56 provides the requirements for the conduct of an
19 inspection pursuant to a warrant. This section does not allow an inspection to occur in the absence
20 of an owner or occupant unless doing so is specifically authorized by a judge “upon a showing that
21 such authority is reasonably necessary to effectuate the purpose of the regulation being enforced.”
22 (Code Civ. Proc. § 1822.56.) Furthermore, a judge “may expressly authorize forcible entry where
23 facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law…
24 which, if such a violation existed, would be an immediate threat to health or safety”. (Ibid.)
25 The purpose of the Fresno Public Nuisance Abatement article of the FMC is to safeguard,
26 remedy and prevent the decay and deterioration of our community by emphasis on property
27 maintenance and sanitation and elimination of public nuisances. (FMC § 10-602.) In the present matter,
28
7
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
1 Owner has failed to cooperate or take any action to abate the nuisance conditions at the Property,
2 despite notice and ample time to correct the violations. (Duarte Decl. ¶ 33.) Thus, it is impractical to
3 allow the inspection to occur only if Owner is physically present. Requiring Owner’s presence would
4 only give Owner additional power to delay and control the City’s necessary actions. (Duarte Decl. ¶
5 38.) Additionally, the effectuation of the warrant will require the coordination of multiple agencies
6 at public cost, and it is irresponsible to risk wasting those resources if Owner is not present. (Ibid.)
7 To ensure the successful completion of the inspection, authorization is requested in the use of
8 reasonable force (i.e., cutting locks and/or removing physical barriers) to enter all areas of the Property
9 to be inspected or abated, to ensure public resources will not be wasted due to unnecessary delays, and
10 that the inspection will not be frustrated by any occupants, or physical barriers to entry. (Duarte Decl.
11 ¶ 39.) Reasonable force will allow for a more organized and rapid inspection and abatement because
12 it helps to avoid or minimize unnecessary delays. (Ibid.)
13 IV. CONCLUSION
14 Based upon the foregoing, the Declaration of Inspector Michael Duarte, and all documentary
15 evidence attached hereto, the City of Fresno respectfully requests that this Court issue an Inspection
16 and Abatement Warrant to permit the City of Fresno to enter onto the Property. The warrant should
17 provide for inspection and abatement in the absence of Owner or any occupant and the use of
18 reasonable force as necessary to execute the warrant. The purpose of the warrant is to ensure
19 compliance with all applicable laws including, but not limited to, the FMC, to determine the extent of
20 damage and any danger posed to public health and safety, and to take appropriate action to abate the
21 nuisance and hazardous conditions at the Property.
22 3 2024
DATED: April ___, Respectfully submitted,
23 ANDREW JANZ
City Attorney
24
25 By:
26 Sylvia Luna
Deputy City Attorney
27 Attorneys for CITY OF FRESNO
28 SL:th
8
CITY ATTORNEY
CITY HALL
Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave.
FRESNO, CA 93721 Application for Inspection and Abatement Warrant
Preview
1 ANDREW JANZ, City Attorney CITY OF FRESNO E-FILED 2 4/3/2024 10:27 AM By: Christina Roberson, Assistant City Attorney (284512) Superior Court of California 3 Sylvia Luna, Deputy City Attorney (345390) County of Fresno 2600 Fresno Street, Room 2031 By: S. Garcia, Deputy 4 Fresno, California 93721-3602 Telephone: (559) 621-7500 5 Facsimile: (559) 457-1084 6 Attorneys for Petitioners City of Fresno Exempt from Filing Fees Pursuant to Government Code section 6103 and People of the State of California 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF FRESNO 11 24CECG01463 In the Matter of the City of Fresno’s Application Case No.: 12 for Issuance of an Inspection and Abatement APPLICATION FOR FORCED ENTRY Warrant for the real property located at 2734 INSPECTION AND ABATEMENT 13 West Clinton Avenue, Fresno, California WARRANT UNDER CODE OF CIVIL 14 93705, Assessor's Parcel Number 442-081-22; PROCEDURE SECTIONS 1822.50, ET owned by Jesus Pineda Hernandez. SEQ.; AND DECLARATION OF 15 MICHAEL DUARTE IN SUPPORT THEROF 16 17 THE CITY OF FRESNO (City), CALIFORNIA, HEREBY applies to this Court for an 18 Inspection and Abatement Warrant, pursuant to California Code of Civil Procedure sections 19 1822.50 et seq., authorizing the City to enter upon the premises commonly known as 2734 West 20 Clinton Avenue, in the City of Fresno, State of California, County of Fresno; Assessor’s Parcel 21 Number 442-081-22 (the Property). The City has attempted, but has been unable to obtain, the 22 cooperation from Jesus Pineda Hernandez (Owner) to comply with a valid Notice and Order to 23 remove violations issued by the City of Fresno HART Code Enforcement Division on August 18, 24 2023. This Application is based upon the Memorandum of Points and Authorities and the 25 Declaration of Michael Duarte, attached hereto, and upon any oral and documentary evidence which 26 may be presented to the Court. 27 /// 28 /// 1 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 The City of Fresno (City) respectfully requests this Court (1) authorize an Inspection and 4 Abatement Warrant for the commercial real property located at 2734 West Clinton Avenue, Fresno, 5 California 93705, Assessor's Parcel Number 442-081-22, and (2) that the warrant provide for 6 inspection and abatement in Owner’s absence and for the use of reasonable force to enter the Property 7 to effectuate the warrant. 8 II. STATEMENT OF FACTS 9 The property located at 2734 West Clinton Avenue, Fresno, California 93705 (the Property) 10 is comprised of a vacant commercial building on a 1.65-acre lot, zoned for general heavy 11 commercial use, located near the intersection of West Clinton Avenue and North Marks Avenue. 12 (See Declaration of Michael Duarte) (Duarte Decl.) ¶ 7.) Jesus Pineda Hernandez (Owner) holds 13 title to the Property. (Duarte Decl. ¶ 6.) Since the case was opened on August 11, 2023, the City 14 has repeatedly observed multiple violations from the Fresno Municipal Code (FMC) including, but 15 not limited to, the following: 16 i. Junk and rubbish throughout the property. (FMC § 10-605 (a).) 17 ii. Tall and/or dry weeds/grass located throughout the property. (FMC §§ 10-605(d)(6), 10- 18 605(i), 15-2505(C).) 19 iii. Property has a fire hazard: dry, tall grass and weeds, rubbish, waste, or other flammable 20 material likely to become easily ignited. (FMC §§ 10-50304.5, 10-605(d)(6).) 21 iv. Illegal use of land: the fenced area behind the building, and the northwest corner of the 22 property are being used as a transient encampment area and occupied without a 23 certificate of occupancy. (FMC §§ 10-605(j), 10-605(l), 10-611, 15-104(A)(2), 12- 24 5022(B), 15-6304.) 25 Despite the many opportunities and more than reasonable time to correct the violations and 26 abate the risks given to Owner, City has been unable to gain compliance, or even reasonable 27 progress towards compliance. (Duarte Decl. ¶¶ 10-33.) Therefore, the City seeks an order from the 28 Court permitting the City, its employees, and any contractors hired by the City to enter onto all 2 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 exterior areas of the Property, the interior and exterior of any accessory structures present (including 2 any RVs, travel trailers, vehicles, detached garages, tents, and/or sheds), as well as any other 3 improvements on the Property for the purposes of (1) conducting an inspection to determine the 4 extent and nature of municipal code violations, and (2) abating the nuisance conditions and 5 hazardous health and safety violations at the Property. 6 III. LEGAL ARGUMENT 7 A. Warrant Requirement 8 The Fourth Amendment of the United States Constitution requires a city to obtain a warrant 9 to enter into private property without the consent of the occupant to inspect and abate a public 10 nuisance. Camara v. Municipal Court of City and County of San Francisco (1967) 378 U.S. 523, 11 524; Gleaves v. Waters (1985) 175 Cal.App.3d 413,418; See also Connor v. City of Santa Ana (9th 12 Cir. 1990) 897 F.2d 1487, 1490.) Government officials engaged in the abatement of a public 13 nuisance, in the absence of consent or exigent circumstances, must have a warrant to enter any 14 private property where such entry would invade a constitutionally protected privacy interest. 15 (Gleaves v. Waters, supra, 175 Cal.App.3d at 419-20; see also Flahive v. City of Dana Point (1999) 16 72 Cal. App. 4th 241, 246.) 17 B. This Court has Authority to Issue an Inspection Warrant 18 Pursuant to the Code of Civil Procedure section 1822.50, an inspection warrant can be issued 19 to a local official to conduct an inspection authorized by state or local law. Code of Civil Procedure 20 section 1822.50 provides the following: 21 “An inspection warrant is an order, in writing, in the name of the people, signed by a judge of a court of record, directed to a state or local official, commanding him to 22 conduct any inspection required or authorized by state or local law or regulation 23 relating to building, fire, safety, plumbing, electrical, health, labor, or zoning.” 24 In City and County of San Francisco v. Municipal Court (1985) 167 Cal.App.3d 712, 719, the 25 court stated that a civil inspection warrant must be justified by reasonable governmental interests. 26 Where the governmental interest at stake is to enforce building standards and thereby prevent 27 conditions that are hazardous to public health and safety, the test for determining reasonableness may 28 vary with the particular municipal program being enforced. (Id.) “Enforcement, obviously, cannot be 3 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 accomplished without inspection and Camara permits an inspection with a warrant to enforce building 2 codes.” (Id. at p. 720.) Thus, the court authorized an inspection warrant to allow redevelopment officers 3 to enter private property to determine whether that property complied with redevelopment standards. 4 (Id.) 5 HART Code Enforcement Inspectors for the City are authorized to enforce the FMC. (FMC § 6 1-302.) The FMC incorporates by reference the standards of the California Building, Residential, 7 Electrical, Mechanical, Plumbing, and Fire codes. (FMC §§ 10-501, 11-101, 11-103-105, 11-107.) 8 Here, as evidenced in the numerous incorporations and adoptions within the FMC, the City has 9 adopted standards to prevent conditions that are hazardous to public health and safety. Thus, the City 10 has a reasonable interest, public health and safety, in enforcing the standards of its municipal code. 11 Therefore, in order to enforce these standards, the warrant should provide for a thorough inspection 12 of all exterior areas of the Property, the interior and exterior of any accessory structures present 13 (including any RVs, travel trailers, vehicles, detached garages, tents, and/or sheds), as well as any 14 other improvements on the Property. (Duarte Decl. ¶ 35.) An inspection of this scope is necessary to 15 address the City’s reasonable interest in assessing the level of danger to the public posed by conditions 16 on the Property. 17 C. This Court has Authority to Issue an Abatement Warrant 18 Cities are expressly authorized to declare what constitutes a nuisance (Gov. Code, § 38771), 19 and provide for summary abatement of the nuisance. (Gov. Code, § 38773.) While there is no 20 statutory procedure for issuance of a warrant authorizing entry into private property specifically to 21 abate a public nuisance, there are numerous cases that clearly establish the validity of an abatement 22 warrant and have authorized the court to issue such a warrant. In Conner v. City of Santa Ana, the 23 court held, “California courts have rejected, for purposes of the warrant requirement, any distinction 24 between inspection and abatement of a declared public nuisance.” (Connor v. City of Santa Ana, 25 supra, 897 F.2d at p. 1491.) The Courts in Gleaves and Flahive held that an abatement warrant 26 procedure that follows the statutory requirements of an inspection warrant is sufficient to pass 27 constitutional muster. (Flahive v. City of Dana Point, supra, 72 Cal. App. 4th at p. 246; Gleaves v. 28 4 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 Waters, supra, 175 Cal.App.3d at p. 420.) Therefore, the procedure for obtaining the abatement 2 warrant mirrors the procedure for an inspection warrant. 3 D. Abatement is Authorized Under the City’s Authority Under State and Local Law 4 Both California Civil Code section 3494 and FMC sections 10-606, 11-328, and 11-333 5 authorize the City to abate a public nuisance. Specifically, a public nuisance may be abated by any 6 public body or officer authorized thereto by law (Civ. Code § 3494) and local code allows 7 abatement of public nuisances by instituting legal action such as a warrant. (FMC §§ 10-606, 11- 8 328, 11-333.) 9 In the present case, in order to enforce the aforementioned standards, the warrant should 10 provide the abatement of any FMC violations located at any exterior area of the Property, the interior 11 and exterior of any accessory structures present (including any RVs, travel trailers, vehicles, 12 detached garages, tents, and/or sheds), any improvements on the Property, and any and all public 13 nuisances found at the time of warrant execution, in order to prevent injury to the public health, 14 safety, and welfare of the surrounding community, and prevent deterioration of the neighborhood. 15 (Duarte Decl. ¶ 36.) These violations may include, but are not limited to, junk and rubbish, tall grass 16 and weeds, fire hazards, and illegal use of land. (Duarte Decl. ¶ 10.) An abatement of this scope is 17 necessary to address the City’s reasonable interest in preventing injury to the public health, safety and 18 welfare of the surrounding community, and preventing deterioration of the neighborhood. 19 E. Requirements to Issue an Inspection and Abatement Warrant 20 Under the Code of Civil Procedure section 1822.51, the procedural requirements for the 21 issuance of an inspection warrant are an affidavit particularly describing the property to be searched, 22 the purpose of the inspection, and the absence of consent. Code of Civil Procedure section 1822.51 23 provides: 24 “An inspection warrant shall be issued upon cause…An inspection warrant shall be 25 supported by affidavit, particularly describing the place, dwelling, structure, premises, or vehicle to be inspected and the purpose for which the inspection is to 26 be made. In addition, the affidavit shall contain either a statement that the consent 27 to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek consent.” 28 5 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 The following sections will show that all requirements for issuance of an inspection and 2 abatement warrant in this case have been met and that this court would be proper to grant the City’s 3 request to abate the nuisance at the Property. 4 F. The Declaration of Inspector Duarte Meets the Requirements of Code of Civil 5 Procedure section 1822.51. 6 a. Particular Description: The Declaration of Inspector Duarte describes with particularity 7 the exact physical location of the Property within the City of Fresno, the areas to be 8 searched, and the areas and expected violations to be abated. (Duarte Decl. ¶¶ 1, 7, 9 and 35-36.) 10 b. Purpose for Inspection and Abatement: The purpose for which the abatement must be 11 done is to comply with the FMC. Specifically, FMC section 10-602. FMC section 10- 12 602 states the goal of the public nuisance abatement article is to safeguard, remedy and 13 prevent the decay and deterioration of our community by elimination of public 14 nuisances. The conditions at the Property are injurious and inimical to the public health, 15 safety and welfare of the residents of the City, contribute substantially to the 16 deterioration of the neighborhood and community, and some pose a significant fire 17 hazard. (Duarte Decl. ¶ 34.) 18 c. Continued Efforts to Seek Consent Would Be Futile: The City has attempted to work 19 with Owner to abate nuisances at the Property multiple times but has been 20 unsuccessful. (Duarte Decl. ¶ 33.) The City issued a Notice and Order, three 21 Administrative Citations, spoke with Owner on multiple occasions and left many 22 voice messages. (Duarte Decl. ¶¶ 10, 12, 15, 17-18, 20-22, 24, 27, and 31-33; see 23 also Exhibits 4-7.) Owner has failed to abate the nuisance conditions at the Property 24 despite repeated directives from the City. (Duarte Decl. ¶ 33.) Moreover, Owner did 25 not respond when the City offered to schedule a cleanup. (Duarte Decl. ¶ 28.) Based 26 upon the foregoing, any continued efforts to seek consent would be futile. 27 /// 28 /// 6 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 Based on the evidence above, the declaration of Inspector Duarte clearly meets all requirements 2 set forth in Code of Civil Procedure section 1822.51 and supports the issuance of the Inspection and 3 Abatement Warrant requested by the City. 4 G. Cause to Issue an Inspection and Abatement Warrant 5 There is sufficient cause to issue an inspection warrant if there is reason to believe a condition 6 of nonconformity exists on a particular property. Code of Civil Procedure section 1822.52 provides: 7 “Cause shall be deemed to exist if…there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, 8 premises, or vehicle.” 9 Reasonable cause exists to believe that violations are present on the Property as described in 10 detail above and evidenced by the attached declaration of Inspector Duarte. It is apparent in Exhibit 1 11 that the noticed violations previously observed by the City, as recently as March 6, 2024, have 12 continually been present at the Property, and there has been no significant attempt at compliance with 13 the FMC since the City opened the case in December 2022. The City has actual knowledge of non- 14 conformities existing at the Property which continue to be present in violation of the FMC and Notices 15 issued to Owner. 16 H. The Warrant Should Not Require Owner to be Present and Should Authorize 17 the Use of Reasonable Force to Enter the Property 18 Code of Civil Procedure section 1822.56 provides the requirements for the conduct of an 19 inspection pursuant to a warrant. This section does not allow an inspection to occur in the absence 20 of an owner or occupant unless doing so is specifically authorized by a judge “upon a showing that 21 such authority is reasonably necessary to effectuate the purpose of the regulation being enforced.” 22 (Code Civ. Proc. § 1822.56.) Furthermore, a judge “may expressly authorize forcible entry where 23 facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law… 24 which, if such a violation existed, would be an immediate threat to health or safety”. (Ibid.) 25 The purpose of the Fresno Public Nuisance Abatement article of the FMC is to safeguard, 26 remedy and prevent the decay and deterioration of our community by emphasis on property 27 maintenance and sanitation and elimination of public nuisances. (FMC § 10-602.) In the present matter, 28 7 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant 1 Owner has failed to cooperate or take any action to abate the nuisance conditions at the Property, 2 despite notice and ample time to correct the violations. (Duarte Decl. ¶ 33.) Thus, it is impractical to 3 allow the inspection to occur only if Owner is physically present. Requiring Owner’s presence would 4 only give Owner additional power to delay and control the City’s necessary actions. (Duarte Decl. ¶ 5 38.) Additionally, the effectuation of the warrant will require the coordination of multiple agencies 6 at public cost, and it is irresponsible to risk wasting those resources if Owner is not present. (Ibid.) 7 To ensure the successful completion of the inspection, authorization is requested in the use of 8 reasonable force (i.e., cutting locks and/or removing physical barriers) to enter all areas of the Property 9 to be inspected or abated, to ensure public resources will not be wasted due to unnecessary delays, and 10 that the inspection will not be frustrated by any occupants, or physical barriers to entry. (Duarte Decl. 11 ¶ 39.) Reasonable force will allow for a more organized and rapid inspection and abatement because 12 it helps to avoid or minimize unnecessary delays. (Ibid.) 13 IV. CONCLUSION 14 Based upon the foregoing, the Declaration of Inspector Michael Duarte, and all documentary 15 evidence attached hereto, the City of Fresno respectfully requests that this Court issue an Inspection 16 and Abatement Warrant to permit the City of Fresno to enter onto the Property. The warrant should 17 provide for inspection and abatement in the absence of Owner or any occupant and the use of 18 reasonable force as necessary to execute the warrant. The purpose of the warrant is to ensure 19 compliance with all applicable laws including, but not limited to, the FMC, to determine the extent of 20 damage and any danger posed to public health and safety, and to take appropriate action to abate the 21 nuisance and hazardous conditions at the Property. 22 3 2024 DATED: April ___, Respectfully submitted, 23 ANDREW JANZ City Attorney 24 25 By: 26 Sylvia Luna Deputy City Attorney 27 Attorneys for CITY OF FRESNO 28 SL:th 8 CITY ATTORNEY CITY HALL Application for Inspection and Abatement Warrant at 2734 W. Clinton Ave. FRESNO, CA 93721 Application for Inspection and Abatement Warrant