City and County of San Francisco v. Daley

• Decision Date: 16 June 1993
• Docket Number: No. A055696,A055696
• Court: California Court of Appeals Court of Appeals
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. Gertrude C. DALEY, Defendant and Appellant.

Page 256

20 Cal.Rptr.2d 256

16 Cal.App.4th 734

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. Gertrude C. DALEY, Defendant and Appellant.

No. A055696.

Court of Appeal, First District, Division 2, California.

June 16, 1993.

Review Denied Sept. 16, 1993.

Matthew J. Cohen, DuCharme & Cohen, San Francisco, for defendant and appellant.

Louis H. Renne, City Atty., Suzanne A. Tollefson, Deputy City Atty., San Francisco, for plaintiff and respondent.

BENSON, Associate Justice.

Gertrude C. Daley (Gertrude) appeals from an order appointing a receiver to bring property she owns into compliance with the San Francisco Municipal Code. ¹ She contends the trial court lacked the authority to appoint a receiver, abused its discretion by appointing a receiver, and denied her a fair hearing prior to the appointment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The proceedings which ultimately led to the appointment of a receiver in this case were lengthy. In order to evaluate Gertrude's claims on appeal, particularly her claim the trial court abused its discretion by appointing a receiver, we must recount the facts leading up to the appointment in detail.

On August 29, 1988, plaintiff City and County of San Francisco (the City) commenced this action against Gertrude, her daughter Carolyn Daley (Carolyn), and Does 1 through 50. The City's complaint charges them with maintaining their single-family residence in a manner constituting a public nuisance. The residence is located at 45 Cerritos Avenue in the Ingleside Terraces neighborhood of San Francisco. ² The following nine conditions, set forth in Exhibit B to the complaint, are alleged to constitute the public nuisance: (1) downspouts not connected to drainage system; (2) accumulation of debris both inside and outside house; (3) broken rear windows and front windows covered with plywood; (4) missing handrail on house stairs; (5) no landing or steps at basement door and garage door damaged and cannot be closed; (6) deteriorated, unsafe, and hazardous rear stairs; (7) lack of a furnace or heater, water heater, bathroom, and kitchen; (8) improperly installed plumbing system; and (9) main electrical service in a hazardous condition. Each of these conditions is also alleged to violate provisions of the San Francisco Municipal Code. Exhibit B notes "[t]he violations listed herein are those that were observed, and do not include violations which may be concealed and which become evident when work is begun."

On October 3, 1988, Gertrude's son, Ron Daley (Ron), answered the complaint as "Defendant Doe 47" and denied the Property was being maintained in a manner constituting a public nuisance. Ron's answer did not identify the nature of his interest in the Property. Neither Gertrude nor Carolyn answered the complaint. When they failed to answer, the City filed a request for entry of default, which the clerk entered as requested.

On November 22, 1988, the trial court held a hearing on the City's request for injunctive relief. Neither Gertrude nor Carolyn appeared at this hearing. Ron did appear, presenting the City's attorney with "a Xeroxed piece of paper purporting to indicate his unrecorded interest in ownership" in the Property. At the conclusion of the hearing, the court entered judgment in favor of the City, finding the Property to be a public nuisance and ordering Gertrude and Carolyn to remedy the violations listed in the complaint. The judgment gave them 30 days to apply "for any and all building permits required by law to perform all work necessary to cause said premises, and all parts thereof, to conform to law" or "for a permit to demolish the structure at said premises."

Following the judgment in the City's favor, a group of 12 neighboring property owners won a $58,744.16 judgment against Ron in a separate private nuisance action. This judgment included punitive damages. The court in the private nuisance action found "Ron Daley is the party responsible for this nuisance. Mr. Daley at all times has held an equitable ownership interest in the property and is admittedly the person who has controlled the use and condition of the property."

On April 23, 1991, at the City's request, the trial court directed Gertrude, Carolyn, and Ron to appear and show cause why they should not be held in contempt for failing to comply with the terms of the public nuisance judgment. According to the City's attorney, all three Daleys were named in the order to show cause "because of past problems in determining ownership. At one time Gertrude and Carolyn owned the property together. Then Carolyn transferred her interest to Ron Daley in February of 1989. Mr. Daley transferred his interest back to Gertrude Daley back in July of 1990."

Only Ron appeared at the June 12, 1991, hearing on the order to show cause, although he stated he was appearing on behalf of Gertrude as well pursuant to a recorded power of attorney. When the commissioner expressed her concern that this power of attorney was set to expire on August 21, 1991, Ron assured the commissioner that it would be extended. The commissioner also expressed her concern that Ron was denying inspectors for the City access to the Property while simultaneously representing Gertrude under a power of attorney. ³ After the commissioner ascertained that Carolyn held no current interest in the Property, the City stipulated to her dismissal from the action. The actual hearing on the order to show cause was continued when Ron declined to stipulate to have the matter heard by a commissioner.

On June 19, 1991, the date set for the continued hearing on the order to show cause, Ron once again appeared without Gertrude. The trial court expressed its inclination to jail Ron for contempt but continued the hearing to enable him to retain an attorney.

On June 27, 1991, the date of the next hearing, Ron appeared without Gertrude and without counsel. At the outset of this hearing, Ron attempted to exercise a peremptory challenge against the trial judge, which the court denied as untimely. The City then called its inspector, Torres-Gil, as a witness. Torres-Gil testified he believed the majority of the conditions set forth in Exhibit B to the complaint still existed but admitted he was not sure because Ron and Gertrude had refused him access to the Property. (See ante, fn. 3.) Thereupon, the trial court continued the hearing for another month, ordering Ron to provide the inspector with access to the Property. Torres-Gil then wrote Ron and Gertrude a letter suggesting three possible dates for the inspection; they never responded to his letter. Instead, near the end of the month-long continuance, Ron called the City's attorney and "indicated that he would not allow an inspection of the Property, because he felt it was 'not necessary.' [She] reminded him that he was under court order. He still refused to provide for inspection and indicated he would take up the matter with [the trial court] on July 30."

On July 30, 1991, Ron appeared for the continued hearing on the order to show cause. The City's attorney advised the trial court that Ron had refused to provide access to the Property as previously ordered by the court. The court again ordered Ron to make the Property available for inspection, setting an inspection for August 13, 1991, at 2 p.m., and continuing the hearing on the order to show cause to August 22, 1991. The court again advised Ron to consult with an attorney.

On August 12, 1991, the day before the scheduled inspection, Ron filed a document entitled "Motion to Set Aside Denial of Defendant's Motion for Peremptory Challenge." He noticed the motion for hearing in the department of the presiding judge, not the department of the judge hearing the pending order to show cause. The same day, Ron personally delivered a copy of the motion to the City's attorney and advised her he would not permit the inspection set for the next day. She "reminded him that he was under court order to provide the inspection and he insisted that the inspection was not going to happen." The City's attorney and Torres-Gil went to the Property at the scheduled inspection time, but Ron did not show up. On August 15, 1991, Torres-Gil called Ron to try to reschedule the inspection before the next hearing, but Ron refused to permit the inspection.

On August 22, 1991, the date set for the continued hearing on the order to show cause, Ron failed to appear. After being advised of Ron's failure to permit the scheduled inspection, the trial court held him in contempt, issued a general arrest warrant for him, and set bail at $5,000. On August 27, 1991, Ron appeared in the department of the presiding judge for the hearing on his motion to set aside the denial of the peremptory challenge, which the presiding judge denied. After this hearing, the City's attorney provided a bailiff with a copy of the outstanding arrest warrant, and Ron was taken into custody. Two bailiffs brought Ron to the judge assigned to the order to show cause, who ordered Ron jailed for five days for contempt of court.

On September 6, 1991, Ron appeared at the next hearing on the order to show cause. When the trial court asked him to explain why he had refused to permit an inspection of the Property on August 13, 1991, as ordered, Ron replied, "[t]he power of attorney that I had to handle this matter ran out as of the 21st [of August] according to the recording, but it was revoked as of August the 3rd, your honor. This property is owned by Gertrude Daley." In light of the alleged revocation of Ron's power of attorney to act on behalf of Gertrude, the court once again continued the hearing on the order to show cause, ordering both Ron and Gertrude to appear personally at the next hearing.

On September 13, 1991, both Ron and Gertrude appeared in court. Gertrude confirmed she owned the Property, that Ron had been repairing it for her, that she had authorized Ron to appear for her at the...