Filed 9/6/19 County of Santa Cruz v. Carrick CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

COUNTY OF SANTA CRUZ,

Plaintiff, Cross-defendant and Respondent,

v.

PAUL M. CARRICK,

Defendant, Cross-complainant and Appellant.

H045188

(Santa Cruz County

Super. Ct. No. CV158731)

Defendant Paul M. Carrick appeals from a judgment for abatement and enforcement of costs. Carrick contends the trial court erred when it awarded $32,515.02 to the plaintiff County of Santa Cruz (County) to abate the structures on his property as nuisances. We affirm.

I. Statement of the Case and Facts
II.
A. Background
B.
Carrick owned two parcels of land near Summit Road in Los Gatos, California. There were eight structures on this 20-acre property that had been constructed without the requisite permits and in violation of various sections of the Santa Cruz County Code. In April 2006, the County posted a notice of violation on the property. Carrick requested a “ ‘Protest Meeting,’ ” which was held in May 2006. (County of Santa Cruz v. Carrick, supra, H035505.)

In September 2006, Carrick conducted grading and filling and failed to prevent erosion on the property. A second notice of violation was posted on the property.

Following the Protest Meeting, it was determined that the County Code violations in the April 2006 notice were valid. In December 2006, the County recorded the notice of violation against the property.

In November 2007, the County filed a complaint for injunctive relief, civil penalties, code enforcement costs, and attorney’s fees against Carrick for the illegal structures and grading. The County sought a permanent injunction that would, among other things, mandate the demolition of the illegal structures or require Carrick to obtain the required permits as well as require Carrick to either stabilize the grading or restore the property. The County also sought civil penalties, “ ‘illegal rents,’ ” enforcement costs, and attorney’s fees. (County of Santa Cruz v. Carrick, supra, H035505.)

In February 2008, Carrick filed an answer and a cross-complaint. In September 2008, he filed a “ ‘Verified Amended Cross Action For Petition For Writ of Mandate And Complaint For Declaratory Relief.’ ” The first cause of action alleged that the County failed to provide an administrative hearing. The second cause of action alleged that the “ ‘main residential dwelling unit’ ” on his property was “ ‘a legal nonconforming structure and use.’ ” (County of Santa Cruz v. Carrick, supra, H035505.) The third cause of action alleged that the County’s policies and procedures were “ ‘preempted by the Uniform Building Code regulations and the provisions of the State Housing Law.’ ” It was also alleged that the structures on his property were “ ‘exempt from having to be improved to comply with all of the current building code standards.’ ” The fourth cause of action alleged that state law preempted “ ‘the County’s definition of nuisance’ ” and that the County “ ‘acted outside the scope of its jurisdiction.’ ” (County of Santa Cruz v. Carrick, supra, H035505.) The fifth and sixth causes of action alleged that the County was precluded from requiring him to obtain a building permit under the doctrines of laches and equitable estoppel. Carrick sought a judicial determination regarding the County’s policy and its collection of fees and civil penalties.

In November 2009, the trial court found that Carrick failed to comply with an order to produce relevant rental information and to appear at an order to show cause hearing without justification. The trial court imposed a monetary sanction and struck his answer to the complaint. A default was then entered against Carrick on the County’s complaint.

A few days later, the trial court held a prove-up hearing on the County’s complaint. Following this hearing, a court trial was held on Carrick’s amended cross-complaint.

In February 2010, the trial court found that Carrick had “ ‘wrongfully and unlawfully constructed, maintained, and/or converted eight illegal units without permits and in violation’ ” of the County Code. It also found that Carrick “ ‘wrongfully and unlawfully conducted grading and filling, failing to prevent erosion, all without permits and in violation’ ” of the County Code. (County of Santa Cruz v. Carrick, supra, H035505.) The trial court issued a permanent injunction restraining Carrick from continuing to “ ‘unlawfully maintain the illegal units and illegal grading . . . .’ ” (County of Santa Cruz v. Carrick, supra, H035505.) The trial court also ordered Carrick to pay a civil penalty, code compliance enforcement costs, and attorney’s fees.

On the same day, the trial court issued a tentative statement of decision on Carrick’s amended cross-complaint. The trial court concluded that the County’s code enforcement procedures were proper and not preempted by state law and denied Carrick’s writ of mandate.

On April 9, 2010, the trial court issued an amended judgment and adopted its tentative statement of decision. The trial court issued permanent injunctions prohibiting Carrick from maintaining the illegal structures and requiring him to vacate the structure and either demolish them or obtain the required permits, inspections, and approvals from the County. The trial court also ordered Carrick to submit applications to correct the violations on or before June 30, 2010, and retained jurisdiction to enforce the amended judgment. Carrick appealed from the amended judgment in County of Santa Cruz v. Carrick, supra, H035505.

On April 18, 2011, this court reversed the amended judgment on the ground that the County was not entitled to record the April 2006 notice of violation and ordered the County to expunge it. This court rejected Carrick’s remaining contentions regarding his entitlement to a hearing before an appeals board, the County’s policies as to County Code violations, and preemption.

C. The Present Appeal
D.
In January 2013, the County filed a motion for appointment of a receiver to legalize or demolish the eight illegal structures and correct the grading violation. Carrick filed opposition to the motion. Following a hearing held in March 2013, the trial court appointed a receiver and ordered Carrick to deposit $25,000 with the receiver by April 5, 2013.

A hearing was held on April 12, 2013. Carrick had failed to comply with the order to deposit $25,000 with the receiver. At the County’s request, the trial court set an order to show cause hearing regarding contempt in May 2013. Carrick failed to appear at this hearing and to deposit $25,000 with the receiver. The trial court declared him to be in contempt.

A hearing was held in June 2013. Carrick had again failed to deposit funds with the receiver. The trial court set another order to show cause hearing regarding contempt. Following the July 2013 hearing, the trial court heard argument and continued the matter.

In September 2013, the County filed a motion for an order confirming the County’s authority to abate the nuisances on the property and to assess costs. Carrick filed opposition to the motion. Following a hearing on October 7, 2013, the trial court granted the motion. The trial court ordered the County to abate all violations, including demolition of unpermitted structures, by December 1, 2013, and to assess the costs of abatement against Carrick.

On October 17, 2013, Carrick filed a notice of appeal. On May 26, 2015, this court affirmed the order in Carrick v. County of Santa Cruz, supra, H040261.

On June 1 and 2, 2017, the County caused the abatement of two of the eight illegal structures. However, the County did not have sufficient funds to abate all of the structures.

On August 23, 2017, the County filed a motion for judgment for abatement and enforcement costs. The demolition company charged $26,848. The County staff time amounted to $5,636.25 and there were costs of $30.77. The total amount sought was $32,515.02. Carrick filed opposition to the County’s motion. On September 19, 2017, a hearing was held. Following argument, the trial court granted the motion in favor of the County for the requested amount.

On September 21, 2017, Carrick filed a motion to disqualify Judge Paul Burdick. The motion was denied. Carrick filed a timely notice of appeal.

III. Discussion
IV.
We first consider the issues that may be considered in the present appeal. In October 2013, the trial court issued an order directing the County to abate all violations, including demolition of unpermitted structures, and to assess the costs of abatement against Carrick. Carrick appealed from the order, which was affirmed in Carrick v. County of Santa Cruz, supra, H040261. As this court explained: “ ‘Where an order after an appealable judgment simply leaves the judgment intact and neither adds to nor subtracts from it, the order is not appealable.’ [Citation.] In other words, ‘the issues raised by the appeal from the [postjudgment] order must be different from those arising from an appeal about the judgment.’ [Citation.] . . . [¶] Therefore, to the extent the order appealed from here—the order confirming the County’s authority to abate the nuisances and to assess costs—relates to the enforcement of the April 9, 2010 amended judgment, it is appealable. However, Carrick is prohibited from making collateral attacks on the amended judgment. His arguments that the trial court erred in declaring the structures on his parcels nuisances and requiring him to obtain permits, which are based on various legal theories such as the Homestead Act, Civil Code section 3482, and Health and Safety Code section 17922, are forfeited. These claims could have been raised in his prior appeal from the amended judgment. [Citation.]” (Carrick v. County of Santa Cruz, supra, H040261.) Relying on Government Code section 25845, subdivision (b) and Thain v. City of Palo Alto (1962) 207 Cal.App.2d 173, this court also rejected Carrick’s contention that the County’s costs of abatement could not be assessed against him as a personal obligation or assessed against the property. (Carrick v. County of Santa Cruz, supra, H040261.)

Similarly, here, Carrick’s present claims based on the Homestead Act and Civil Code section 3482 are also a collateral attack on the April 2010 amended judgment and have been forfeited. To the extent that Carrick is arguing that the County had no authority to abate the nuisances and to assess the costs of abatement, these arguments have also been forfeited.

Relying on Code of Civil Procedure section 430.10, subdivision (a), Carrick appears to be arguing that the trial court did not have subject matter jurisdiction of the present action. “[S]ubject matter jurisdiction is the court’s power to hear and resolve a particular dispute or cause of action . . . .” (Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503, 512, italics omitted.) Since the California Constitution confers broad subject matter jurisdiction on the superior court (Cal. Const., art. VI, § 10), and Carrick has failed to identify any circumstance that would have deprived the trial court of subject matter jurisdiction, we reject Carrick’s argument.

Carrick argues that Government Code section 53069.4 limits the County to the recovery of the costs of attorney’s fees and fines. Carrick is mistaken. The judgment from which he appealed awarded costs to the County for the abatement of the nuisance pursuant to Government Code section 25845. This statute provides that “the owner of the parcel upon which the nuisance is found to exist shall be liable for all costs of abatement incurred by the county, including, but not limited to, administrative costs, and any and all costs incurred in the physical abatement of the nuisance.” (Gov. Code, § 25845, subd. (b).) Thus, the County was entitled to recover the costs of abatement.

Carrick challenges “the charging of $21,303.74 for asbestos disposal when no asbestos had ever been detected in either of the two demolished buildings.” He did not object on this ground at the hearing. Accordingly, this issue has been forfeited. (Evid. Code, § 353.)

Carrick also appears to be arguing that Judge Burdick should have been disqualified from the present case. He claims that he brought a disqualification motion on September 19, 2017, pursuant to Code of Civil Procedure section “170.3 (c)(iii)” on the ground that the judge’s comments established that he was biased. First, there is no Code of Civil Procedure section “170.3(c)(iii).” Second, the record establishes that Carrick filed his motion to disqualify Judge Burdick on September 21, 2017, which was two days after he had ruled in the County’s favor on its motion for judgment for abatement and enforcement of costs. Third, assuming Code of Civil Procedure section 170.3 applies to the present case, subdivision (b)(4) of that statute provides: “If grounds for disqualification are first learned of or arise after the judge had made one or more rulings in a proceeding, but before the judge had completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.” Since Carrick has failed to establish good cause, his argument has no merit.

V. Disposition
VI.
The judgment is affirmed.

 

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Elia, Acting P. J.

______________________________

Grover, J.

County of Santa Cruz v. Carrick

H045188