City of Norco v. Mugar

• Decision Date: 11 December 2020
• Docket Number: E072858
• Citation: 59 Cal.App.5th 786,274 Cal.Rptr.3d 72
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF NORCO, Plaintiff and Respondent, v. Ronald T. MUGAR, Defendant and Appellant.

59 Cal.App.5th 786

274 Cal.Rptr.3d 72

CITY OF NORCO, Plaintiff and Respondent,

v.Ronald T. MUGAR, Defendant and Appellant.

E072858

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

Filed December 11, 2020

Pillsbury Winthrop Shaw Pittman, Thomas V. Loran III, and William T. Palmer ; Institute for Justice, Joshua A. House, and Jeffrey H. Redfern for Defendant and Appellant.

Dapeer Rosenblit & Litvak, William Litvak, and Eric P. Markus, Los Angeles, for Plaintiff and Respondent.

OPINION

RAPHAEL, J.

Plaintiff and respondent City of Norco (City) filed this receivership action to abate what it describes as "nearly 20 life-safety hazards" on a property belonging to defendant and appellant Ronald R. Mugar. During the litigation, Mugar abated the substandard conditions on the property, and the matter was dismissed.

Mugar appeals the trial court's order declaring the City the prevailing party and awarding it attorney fees pursuant to Health and Safety Code ¹ section 17980.7, subdivision (c)(11). Mugar contends that (1) his due process rights were violated because the City was represented by a private law firm with an inappropriate financial interest in the litigation, and without adequate supervision by neutral government attorneys; (2) the award of attorney fees unconstitutionally burdens his First Amendment right to petition by penalizing him for asserting defenses in the action; and (3) the City should not be considered the prevailing party. The City argues that Mugar forfeited his constitutional arguments, and it contests the merits of Mugar's claims.

We disagree with the City that Mugar forfeited his constitutional arguments. On the merits, however, we reject each of Mugar's contentions and affirm the judgment.

I. BACKGROUND

The City and Mugar have been in conflict about substandard conditions on Mugar's property since about 2007, when neighbor complaints brought the property to the City's attention. In 2008, this conflict led to criminal charges against Mugar. Mugar pled guilty to several misdemeanors. He was initially granted deferred entry of judgment, conditioned on his abating various code violations. After failing to satisfy those conditions, he was sentenced to 36 months of supervised probation.

In 2012, the City issued a formal notice ordering Mugar to abate substandard conditions on the property that had again resulted in neighbor complaints. The parties resolved the issue by entering into a Nuisance Abatement Agreement.

Most recently, after more neighbor complaints and a series of inspections, in March 2017 the property was " ‘red tagged’ [...] and declared a ‘substandard building,’ a public nuisance, and unsafe to occupy." Mugar was issued a notice of 19 violations of the City's municipal code and California's Health and Safety Code, and ordered to abate the unlawful conditions.² Mugar failed to comply with the notice's abatement instructions; even after an extension of time, Mugar told the City's code compliance officer that conditions on the property had " ‘gotten worse.’ " The City, acting through outside counsel, initiated this action on May 30, 2017, by filing both a "Petition for Appointment of Receiver, Injunctive and Other Relief Pursuant to Health and Safety Code Section 17980.7, et seq." (petition), and a motion for appointment of a receiver and preliminary injunction.³

On July 6, 2017, the trial court granted the City's motion, after a hearing that Mugar was unable to attend personally because of a health issue that required hospitalization. The court's order appointing the receiver and ordering a preliminary injunction, filed on July 26, 2017, provided that Mugar was permitted "to continue to perform voluntary abatement measures at the Subject Property until such time as the Receiver accepts his appointment and tenders his oath."

The receiver filed his oath on August 3, 2017. In the meantime, however, Mugar (through newly hired counsel) and the City agreed that Mugar would have another opportunity to fix the conditions on the property himself. Mugar had applied ex parte for a stay of the court's order appointing the receiver so he could move to have that order reconsidered or vacated. That ex parte application was heard on August 2, 2017. At the hearing, the parties informed the court that they had reached a stipulation that (1) the receivership would "be held in abeyance until further order of the Court"; (2) Mugar would correct the violations alleged in the City's petition, except for those related to the laundry room on the premises, by August 15, 2017; (3) by the same date, Mugar would "schedule, undergo, and pass final inspection" confirming the corrections had been made; (4) Mugar would "submit to the City all application(s) for any permits required to demolish and/or repair the laundry room no later than August 8, 2017"; and (5) Mugar's motion to reconsider or vacate the order appointing the receiver would be calendared for September 6, 2017. The City expressly reserved its "right to file a motion to be declared the prevailing party in this matter and/or a motion for attorneys' fees and costs." The trial court accepted the parties' stipulation.

The property passed inspection on August 15, 2017; as contemplated by the stipulation, the violations identified in the City's petition had been "satisfactorily abated," with the exception of those relating to the laundry room. Mugar also applied for a permit to repair the laundry room. The City, however, rejected Mugar's application, explaining—not for the first time—that an " ‘over the counter’ " permit could be issued for demolition, but " ‘any other technical permit would require plan review and approval.’ "

A lengthy dispute ensued between Mugar and the City regarding a repair permit. Mugar contended that a permit from 1969 should be "reopened" and the repairs completed to the building standards applicable in 1969; the City disagreed. The hearing on Mugar's motion was continued several times during this conflict. After some back-and-forth, on October 16, 2017, Mugar was granted a permit to demolish the laundry room. In April 2018, however, the laundry room still had not been demolished, and Mugar continued, unsuccessfully, to try to get the City to renew the 1969 permit.

On April 30, 2018, the trial court held a hearing on Mugar's motion to reconsider the appointment of the receiver the preceding July. The court did not rule on the motion, however, continuing the matter until November 5, 2018. The court ordered Mugar to either repair or demolish the laundry room by no later than October 16, 2018. The court commented that it was "not going to get involved and try to say that the City must accept an application for repair"; rather, the permitting process, "in terms of what needs to be given with that type of application ... just has to run its normal course."

After another unsuccessful attempt to have the City renew the 1969 permit, on July 5, 2018, Mugar applied for a new permit authorizing repair of the laundry room. The City granted the application on July 10, 2018, issuing a "combination building permit" for " ‘completion of work originally permitted on 12/17/1969, which was expired without inspections.’ " The new permit was subject to conditions, which required repairs to bring the laundry room into compliance with current standards, as modified pursuant to the discretion of the City's building official. Mugar completed repairs pursuant to the new permit, and on August 9, 2018, the property passed its final inspection.

After another continuance, the court heard Mugar's reconsideration motion on November 13, 2018. The court stated that it "did not find that there was legal reason for granting a reconsideration of the 7-26-17 order on grounds of [ Code of Civil Procedure section 1008 ] or to set aside the order pursuant to [ Code of Civil Procedure 473 ]." During the hearing, however, the City requested that the court terminate the receivership in light of the completed repairs. The court therefore ordered the July 26, 2017, order appointing the receiver vacated on the ground that "there are no reasons to continue the receivership as all of the nuisance issues have been resolved."

The City brought a motion seeking, among other things, to be declared the prevailing party in the litigation and an award of $60,798.94 in attorney fees and costs. The court granted the motion, finding the City to be the prevailing party and awarding the amount requested.

II. DISCUSSION

A. Forfeiture

The City contends that Mugar forfeited his due process and First Amendment arguments by failing to raise them in the trial court. Not so.

In Mugar's trial court briefing in opposition to the City's fee motion, the first of four argument sections was entitled "Awarding Fees Would Violate Due Process Because the Critical Decisions in This Case Were Not Made by Neutral, Disinterested Government Attorneys." This section makes many of the same arguments and cites many of the same authorities as Mugar's briefing on appeal. The second of Mugar's argument sections was entitled "The Prosecution Fees Ordinance Unconstitutionally Burdens [Mugar's] First Amendment Right to Petition and Access the Courts." No doubt, therefore, Mugar raised both due process and First Amendment issues in the trial court.

The City proposes that Mugar's trial court constitutional challenges were "limited to a single provision of the City's municipal code." Mugar's trial court due process arguments, however, do not mention the municipal code at all. Rather, as he does on appeal, Mugar contended more generally that awarding attorney fees and costs to the City's outside counsel would run afoul of due process principles. Mugar's First Amendment arguments reference the City's prosecution fees ordinance, but they are not focused on the specific terms of the ordinance but rather on the burden of the award (whatever its basis) on Mugar's exercise of his First Amendment rights.

We therefore do not deem any of...