2017-00206453-CU-PO

People of the State of Ca. vs. Jack A. McGuire

Nature of Proceeding: Motion for Instruction and for Order on Receiver’s Certificate

Filed By: Adams, Mark S.

This tentative ruling concerns the status of Margaret McGuire’s (the Property owner) efforts to abate the nuisance conditions at 2530 Queenwood Drive, Rancho Cordova, California (the “Property”). For the reasons that follow, the Court will continue the stay of the receivership until April 12, 2019.

The Court is well familiar with the instant litigation and does not repeat its lengthy procedural history here. (See Oct. 31, 2018 Minute Order, ROA # 194, for a detailed procedural history.)

At the October 31, 2018 hearing, the Court continued the stay of the receivership through January 11, 2019, to give Mrs. McGuire additional time opportunity to remedy the Property’s nuisance violations herself. The October 31, 2018 Minute Order stated in relevant part:

“[T]he Court remains of the opinion that Mrs. McGuire and the City’s interests are best balanced by continuing the stay of the receivership to

January 11, 2019, to allow Mrs. McGuire additional time to take concrete steps to remedy the Property’s nuisance violations herself. However, the Court notes it shall entertain a motion to lift the stay and authorize the Receiver to market and sell the Property to a third party with the ability and funds to remedy the nuisance conditions if Mrs. McGuire does not demonstrate to the Court by that time the following:

· Any and all front and rear landscaping work necessary to abate code violations is completed;

· Any code violations concerning the subject vehicle are abated;

· Work on the Property’s interior is firmly scheduled to commence by a licensed contractor (either Paul Smith/Smith’s Home Repair License # 682570 or an alternative contractor) no later than January 2019;

· The fire hazard posed by the electrical lines in the rear yard is abated (by SMUD or otherwise); and

· The weekly lawn maintenance is continued.

The Court recognizes Mrs. McGuire’s advanced age and the fact that she and her son live in the Bay area may make it more difficult to complete the above tasks. However, those continuing circumstances will not excuse a failure to comply with this order.

Accordingly, a further hearing is scheduled for January 11, 2019, at 2:00 p.m. in this Department to discuss the status of Mrs. McGuire’s renovations/nuisance abatement efforts. Mrs. McGuire shall file a supplemental brief no later than January 4, 2019, informing the Court of the progress made. Her brief shall be accompanied by admissible evidence demonstrating the nature and extent of work done, such as declarations, invoices, and/or photographs. Conclusory/vague averments are insufficient; detail is required. Further, specifically concerning the interior renovations, Mrs. McGuire shall file with her supplemental brief a revised estimate and/or declaration from the licensed contractor chosen to do the repairs, providing: cost estimates for the proposed work, the date the work is scheduled to commence, and an estimated completion date. The scope of repairs/renovations must encompass any and all work necessary to abate the code violations. Further, the Court notes to the extent Michael McGuire intends to perform some of the abatement efforts himself, alternative arrangements must be made if he is unable to do so within the referenced time limits, due to his knee injury or otherwise.

The City may also file a response with similar evidentiary support no later than January 4, 2019. Further, the City can move to lift the stay earlier, if it deems necessary.”

(Oct. 31, 2018 Minute Order, ROA # 194.)

Filings since the October 31, 2018 Hearing

On January 4, 2019, Mrs. McGuire filed a declaration with exhibits concerning the status of the Property. She declares in relevant part:

“2. Pursuant to the Court’s Order of October 31, 2018,I hereby declare the following update as to each of the violations and/or concerns:

A. Any and all front and rear landscaping work necessary to abate code violations is completed.

I am informed and believe and thereon allege that the alleged landscaping code violations at 2530 Queenwood [D]rive pertain to high weeds, overgrown shrubs and trees; and when a lawn becomes high weeds is described at Rancho Cordova Municipal Code (hereinafter RCMC) 23.716.100(B)(4) and overgrown with regard to bushes, shrubs, hedges and the like is described at RCMC 23.716.100(B)(5). RCMC

23.716.100(B)(4) provides that ‘grass must be maintained below eight inches’. RCMC 23.716.100(B)(5) provides that ‘bushes, shrubs, hedges and the like shall not project into the street, alleyway or sidewalk’. The lawn is being mowed every week at about two inches by AV Landscaping so it is in compliance with the code. There are no shrubs, hedges and the like that project into the street, alleyway or sidewalk and there never have been.

B. The subject vehicle was allegedly in violation of [RCMC] 23.719.130(A).

RCMC 23.719.130 states ‘[S]tandards for off-street parking for private residences. Off-street parking and driveways for detached dwellings, manufactured homes, single-family attached dwellings, and two-unit attached dwellings shall meet the following requirements: A. Any vehicle, trailer, or vessel which is inoperable or vehicles that are Certified as Non-Operation or Planned Non-Operation Certified with the Department of Motor Vehicles shall be stored entirely within an enclosed structure, where it is not visible from the street or other public or private property and shall not be parked or stored in any yard within a residential zoning district or neighborhood.’

The subject vehicle is not certified as Non-Operation or Planned Non-Operation and never has been and is currently registered and insured.

Furthermore, RCMC 23.719.020 indicates that 23.719.130(A) does not apply to 2530 Queenwood Drive. RCMC 23.719.020 provides ‘Applicability. Off-street parking and loading provisions of this chapter shall apply as follows:

A. New Development. For all buildings or structures erected and all uses of land established after the effective date of the ordinance codified in this title, parking for vehicles and bicycles and loading facilities shall be provided as required by this chapter.

B. Change in Use. When the use of any building, structure, or premises is changed, resulting in an increase of more than 10 percent in the required number of off- street parking spaces, additional off street parking shall be provided consistent with Table 23.719-1 (Required Minimum Vehicle Ratios) and required bicycle parking, and the parking lot design shall comply with the requirements of this code.

C. Change of Occupancy. Where a new business license is required, additional parking spaces shall be provided if the new occupancy would result in an increase of more than 10 percent in the required number of off-street parking spaces. The director or his/her designee shall review the parking requirements of the proposed use and must approve the parking plan before a new business license is issued.

D. Modification to Existing Structures. Whenever an existing building or structure is modified such that it creates an increase of more than 10 percent in the number of off-street parking spaces required, additional off-street parking spaces shall be provided in accordance with the requirements of this chapter. [Ord. 4-2017 § 3 (Exh. B); Ord. 12-2011 § 3 (Exh. A); Ord. 27-2008 § 1 (Exh. A § 4.7.020)].’

Ord. 27-2008 which includes 23.719 was codified in 2008. 2530 Queenwood was built in 1970 and has had no change in use, change of occupancy or modification that makes 23.719.130(A) applicable.

The car has new tires and engine is mechanically complete.

Pictures are attached in Exhibit A.

C. The fire hazard posed by the electrical lines in the rear yard is abated (by SMUD or otherwise).

SMUD is responsible for maintaining power line clearance in its right of way[,] not the homeowner. SMUD does not want homeowners hiring their own tree trimmers to clear the power lines. SMUD inspected the lines last spring but has not yet been in this neighborhood to clear the lines. The homeowner has a responsibility to give SMUD access but does not have control of when SMUD chooses to clear the power lines. SMUD has our contact information and has contacted us in the past when they needed access. SMUD so far has not attempted to contact us to gain access and we have been in residence at 2530 for the past three weeks and have seen no SMUD tree trimming activity in the neighborhood.

On January 3, 2019 my son Michael McGuire inquired with a representative (Tia) at SMUD regarding the status of SMUD clearing the power lines. She indicated that SMUD services have been rerouted to clean up efforts at the Carr and Camp fires. The representative indicated SMUD would be in the area of the residence in the ‘next few weeks’.

D. Work on the Property’s interior is firmly scheduled to

commence by a licensed contractor (either Paul Smith/Smith’s Home Repair License # 682570 or an alternative contractor) no later than January 2019.

I hired Andrew Hammond of Element Engineering who is a licensed structural engineer and licensed contractor to do a structural inspection on the residence. On December 15, 2018, Mr. Hammond completed the inspection to ensure the alterations at the residence as proposed were structurally sound. Additionally, Mr. Hammond will do drawings and calculations required to obtain a building permit. A copy of his invoice is attached as Exhibit B.

On January 2, 2019, my son and I met with Paul Smith at the residence to discuss the project and moving forward. He indicated he should be able to begin in the very near future. Attached hereto as Exhibit C is communication with Mr. Smith.

The only interior code violation named by the City of Rancho Cordova was in the Sept 15, 2017 declaration of Officer Duchanne in which he stated that the interior work was done without obtaining a prior permit. He does not state any code violations beyond that so it is not really possible to state the work to be done to clear any and all code violations which can be subjective in a situation like this. The scope of work in Paul Smith’s estimate includes getting a permit so that will clear any and all code violations the city perceives.”

(McGuire Decl., Jan. 4, 2019, ¶ 2, ROA # 201.) The attached exhibits include a receipt from Element Engineering/Andrew Hammond, PE dated December 31, 2018, evincing payment of $290.00 for a structural inspection at the Property. (McGuire Decl., Jan. 4, 2019, Ex. B.)

On January 8, 2019, Mrs. McGuire filed an additional declaration to which she attached a revised contract with Smith’s Home Repair/Paul Smith. The Contract is dated January 5, 2019, and discusses, inter alia, the scope of work to be performed on the Property’s interior, payment terms, and time of performance. (McGuire Decl., Jan. 8, 2019, Ex. A, ROA # 206.) The Contract states work “shall begin in January 2019,” and is expected to last “2 months.” (Ibid.) The Contract also includes the following statement: “Homeowner understands that because there is a previously started remodel which was not permitted there may be a necessity to add to or change this estimate based on what is uncovered during the progression of the work and what is required by the City of Rancho Cordova to meet code requirements and that added expense is a likely possibility.” (Ibid.)

The City filed a Memorandum on January 4, 2019, in which it requests the Court lift the stay and reinstate the Receiver because Mrs. McGuire “has failed to take the ‘concrete steps’ that were so carefully and specifically spelled out by the Court.” (City’s Mem. of P.&A. ISO Lifting the Stay 3:24-4:3.)

Continuance of the Stay

After considering the parties’ respective filings, the Court remains of the opinion that Mrs. McGuire and the City’s interests are best balanced by continuing the stay of the

receivership to April 12, 2019, to allow Mrs. McGuire additional time to remedy the Property’s nuisance violations herself. Accordingly, a further hearing is scheduled for April 14, 2019, at 2:00 p.m. in this Department to discuss the status of Mrs. McGuire’s renovations/nuisance abatement efforts.

Mrs. McGuire shall file a monthly supplemental brief no later than the 1st of every month between now and the April 11, 2019 hearing informing the Court of the progress made. Her monthly briefs shall be accompanied by admissible evidence demonstrating the nature and extent of work done, such as declarations, invoices, and/or photographs. Conclusory/vague averments are insufficient; detail is required. Further, regular lawn maintenance is required to continue.

The City may file a response with similar evidentiary support no later than April 5, 2019. Further, the City can move to lift the stay earlier, if it deems necessary.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)