Filed 6/24/20 County of Humboldt v. Garth CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

COUNTY OF HUMBOLDT,

Plaintiff and Respondent,

v.

CHARLES GARTH,

Defendant and Appellant.

A157878

(Humboldt County

Super. Ct. No. 180688)

Charles Garth filed a petition in the trial court seeking to appeal abatement and civil penalties orders imposed upon him by the County of Humboldt (County) in a zoning code enforcement proceeding. Before setting the case for trial, the court ruled on certain procedural questions that arose at a status conference, including the question of whether it had jurisdiction to review the abatement order under Government Code section 53069.4, subdivision (b).

The County took the position that while the civil penalties order is subject to review under the de novo review procedure established by Government Code section 53069.4, subdivision (b), the abatement order may only be reviewed by traditional writ of administrative mandate under Code of Civil Procedure section 1094.6. The court ruled for the County on this procedural issue, concluding that it had no jurisdiction to review the abatement order under Government Code section 53069.4, subdivision (b).

Rather than proceed to the merits of his civil penalties appeal and obtain a final judgment, Garth filed a notice of appeal in this court, seeking review of the trial court’s jurisdictional ruling pertaining to the abatement order under Government Code section 53069.4, subdivision (b). For reasons explained below, we will dismiss the appeal.

I.

On August 24, 2017, the County issued two zoning code violation notices against property owned by Garth. These were, (1) a Notice to Abate Nuisance (Abatement Order), and (2) a Notice of Violation and Proposed Administrative Civil Penalty (Civil Penalty Order). The Abatement Order and the Civil Penalties Order were issued in response to long-standing Humboldt County Code (HCC) violations on Garth’s property, including junk vehicles, solid waste, and dangerous building conditions. The Abatement Order directed Garth to fix the issues causing the public nuisance on his property. The Civil Penalties Order directed Garth to correct the violations or pay fines.

These two enforcement orders came with forms that, when filed, allow for one to request an administrative hearing to contest the factual basis for their issuance. Garth filed the forms in a timely manner, invoking his right to administrative review. For efficiency’s sake, the County scheduled hearings on the notices to be held together in one combined proceeding, as they concerned the same property and code violations. The hearing resulted in an “Administrative Hearing Finding of Nuisance and Order of Abatement and Finding of Violation and Order Imposing Administrative Civil Penalty” (Administrative Order).

The Administrative Order included findings and conclusions separately upholding the Abatement Order and the Civil Penalties Order. Citing provisions in the County’s administrative code, the Administrative Order provided clear direction to Garth as to how he should proceed if he wished to appeal in a judicial proceeding. Paragraphs 16 and 17 of the Administrative Order stated as follows:

16. A Finding of Violation and Order Imposing Administrative Civil Penalty may be reviewed as set forth in California Government Code section 53069.4(b)(1)–(2) (HCC section 352–12(c)).

17. A Finding of Nuisance and Order of Abatement issued by the Hearing Officer shall be final in all respects. Any appeal of the Hearing Officer’s Finding of Nuisance and Order of Abatement shall be governed by California Code of Civil Procedure section 1094.6, as such section may be amended from time to time. (HCC section 351–12(b)).

Garth was provided with a copy of both named statutes.

On August 10, 2018, Garth filed a petition in the trial court seeking review of the Administrative Order. His petition purported to appeal both the Civil Penalties Order and the Abatement Order under Government Code section 53069.4, subdivision (b). At a case management conference on March 8, 2019, a dispute arose between the parties as to whether the statutory review procedure set forth in Government Code section 53069.4, subdivision (b), is an appropriate procedural vehicle for Garth’s appeal of the Abatement Order. The court directed the parties to submit briefs on this and other procedural matters that arose at the case management conference, and subsequently addressed these issues in an order entered July 13, 2019, entitled “Ruling on Procedural Issues and Requests for Judicial Notice.”

In its July 12, 2019 order, the court ruled for the County on the issue of whether the Abatement Order is amenable to review under Government Code section 53069.4, subdivision (b), explaining as follows: “Pursuant to Humboldt County Code § 352–2(c), an Administrative Hearing Officer’s Finding of Violation can be appealed by way of Government Code § 53069.4(b), or challenged by way of writ (Code of Civil Procedure §§ 1094.5–1094.6). However, pursuant to Humboldt County Code § 351–12(b), a challenge to an Administrative Hearing Officer’s Findings of Nuisance and Orders of Abatement may only be brought by way of writ.”

This appeal followed.

II.

A.

“The right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Thus, “ ‘[n]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . . .’ ” (City of Gardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595, 601 (City of Gardena), quoting Lavine v. Jessup (1957) 43 Cal.2d 611, 613, italics in original.)

“[U]nder the ‘one final judgment’ rule, [an] appeal lies only from final judgments in actions or proceedings, or from orders after judgment that affect the judgment or its enforcement; it does not lie from interlocutory judgments or orders unless specifically made appealable by statute.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 560 (Lennane); Code Civ. Proc., § 904.1, subd. (a); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740–741 & fn. 9; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651–656.)

“This court cannot entertain an appeal taken from a nonappealable judgment or order. ‘[T]he question of whether an order is appealable goes to the jurisdiction of an appellate court, which is not a matter of shades of grey but rather of black or white.’ ” (Howeth v. Coffelt (2017) 18 Cal.App.5th 126. 130; Farwell v. Sunset Mesa Property Owners Ass’n., Inc. (2008) 163 Cal.App.4th 1545, 1550.)

Where we are not convinced our jurisdiction is clear based on the appellant’s statement of appealability, we are “dutybound” to address the question as a threshold matter. (City of Gardena, supra, 192 Cal.App.4th at pp. 599 & fn. 3, 604.) We do so here, and we conclude we must dismiss this appeal without reaching the merits.

B.

In his statement of appealability, Garth relies on Code of Civil Procedure 904.1, subdivision (a)(6), which authorizes appeals from orders “granting or dissolving an injunction, or refusing to grant or dissolve an injunction.” According to him, the court’s order of July 12, 2019, is a refusal to dissolve an injunction. We do not agree with that characterization. The order does not deal with the merits of the County’s Abatement Order. All it does is find that the court has no jurisdiction to address the merits of the Abatement Order under the particular statutory procedure Garth invokes.

The County argues that because the trial court’s July 12, 2019 order is dispositive of only some of the issues in the case, Garth seeks review of an unappealable interlocutory order. In support, the County cites Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, for the proposition that “a judgment . . . dispos[ing] of fewer than all of the causes of action framed by the pleadings . . . is necessarily ‘interlocutory’, and not yet final, as to any parties between whom another cause of action remains pending.” (Id. at p. 741, citations omitted.)

By way of reply, Garth brings up the collateral order exception to the one final judgment rule. That exception applies “[w]here the trial court’s ruling on a collateral issue ‘is substantially the same as a final judgment in an independent proceeding’ [citation], in that it leaves the court no further action to take on ‘a matter which . . . is severable from the general subject of the litigation’ [citation], an appeal will lie from that collateral order even though other matters in the case remain to be determined.” (Lennane, supra, 84 Cal.App.4th at p. 561.) In determining whether an order is collateral, “the test is whether an order is ‘important and essential to the correct determination of the main issue.’ If the order is ‘a necessary step to that end,’ it is not collateral.” (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1227.)

The foundational case for the collateral order exception is Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (Sjoberg), where, over seventy years ago, our Supreme Court stated the minimum conditions for the appealability of a collateral order: “It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.” (Ibid.; see In re Marriage of Skelley, 18 Cal.3d 365, 368; Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal.App.4th 1656, 1661; Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235; Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 155.)

The order of July 12, 2019, does not meet the criteria for application of the collateral order exception. Although, as we have noted, the court’s declination of jurisdiction over the Abatement Order appeal does not address that appeal on the merits, we are not prepared to say that this procedural ruling is so distinct from the merits of the proceeding as a whole that it qualifies as collateral for purposes of appealability. More fundamentally, not only is the court’s July 12, 2019 order insufficiently discrete from the main action to qualify as collateral, but it does not direct the payment of money or the performance of an act.

The County correctly points out that, having been unequivocally advised of the proper procedure to seek review in court, Garth chose not to proceed under Code of Civil Procedure section 1094.6—even in the alternative. That may have been a risky choice. When a final judgment is entered in the action as a whole, Garth can seek review at that point of the court’s jurisdictional ruling pertaining to his appeal of the Abatement Order. In the meantime, he is not remediless should he wish to seek interim judicial protection from the consequences of any failure to comply with the Abatement Order. Such relief, in theory, could be available on a discretionary basis, from the trial court or from this court. But what we hold here is that Garth is not entitled to appeal as of right.

C.

The County takes the position that Garth is not only wrong to have pursued this appeal, and wrong on the merits, but he was so wrong that he should be sanctioned under In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Marriage of Flaherty) for bringing a frivolous appeal. We do not agree. Neither the Government Code section 53069.4, subdivision (b) issue Garth has raised, nor the manner in which he has raised it, is so wholly lacking in merit that sanctions are warranted under Marriage of Flaherty.

DISPOSITION

The appeal is dismissed. The request for sanctions is denied. Respondent to recover costs on appeal.

STREETER, Acting P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.