Duffy v. City of Long Beach

• Decision Date: 09 June 1988
• Docket Number: Nos. B018926,B029685,s. B018926
• Citation: 201 Cal.App.3d 1352,247 Cal.Rptr. 715
• Court: California Court of Appeals Court of Appeals
• Parties: Ralph T. DUFFY, Jr., Plaintiff and Appellant, v. CITY OF LONG BEACH, et al., Defendants and Respondents. Ralph T. DUFFY, Jr., Plaintiff and Appellant, v. Eugene J. ZELLER, et al., Defendants and Respondents. Civ.

Page 715

247 Cal.Rptr. 715

201 Cal.App.3d 1352

Ralph T. DUFFY, Jr., Plaintiff and Appellant, v. CITY OF LONG BEACH, et al., Defendants and Respondents.

Ralph T. DUFFY, Jr., Plaintiff and Appellant, v. Eugene J. ZELLER, et al., Defendants and Respondents.

Civ. Nos. B018926, B029685.

Court of Appeal, Second District, Division 5, California.

June 9, 1988.

Review Denied Sept. 14, 1988.

[201 Cal.App.3d 1355] Bruce M. Stark, Long Beach, for plaintiff and appellant.

John R. Calhoun, City Atty. and Arthur Y. Honda, Sr. Deputy City Atty., for defendants and respondents.

ASHBY, Acting Presiding Justice.

In 1985 appellant Ralph T. Duffy, Jr. filed this action against the City of Long Beach (the City) and certain City employees for "damages for denial of constitutional and civil rights [42 U.S.C. §§ 1983, 1985]." ¹ He appeals from orders of dismissal following the sustaining of demurrers to his complaint against the City and third amended complaint against the individual employees. ² We hold the trial court properly sustained the demurrers on grounds of res judicata and failure to state a cause of action, since the main issues involved in this case were previously decided against appellant in an action he filed in United States District Court in 1983, Duffy v. City of Long Beach, No. CV 83 2034 LTL, C.D.Cal.

Appellant had ambition to construct a house with his own efforts. ³ In June 1968 he obtained permits to build a house on his lot at 370 Flint Avenue in Long Beach. Fifteen years later, at the time of the federal court suit, appellant still had managed to build only a partial structure, a deteriorating open frame shell, which had been declared a nuisance under city ordinances defining nuisance to include buildings left unreasonably in a state of partial construction. ⁴

Between 1976 and 1982 the City attempted through administrative proceedings and misdemeanor prosecution to compel appellant either to complete the structure or to abate the nuisance. In October 1978 appellant was cited for maintaining a nuisance and given one year to complete the structure. In 1979 he pleaded nolo contendere to a criminal charge of maintaining a nuisance, and despite a probation period of three years, in which he was twice found in violation of probation, he failed to complete the structure. In an administrative hearing in October 1982 the structure was found to be a nuisance and appellant was ordered to complete the structure or destroy it by December 1982.

After receiving notice in December 1982 that he had not complied with the prior order and that the structure would be demolished, appellant on April 4, 1983, filed in United States District Court a complaint against the City "for damages and injunctive relief under 42 U.S.C. § 1983 and the 14th Amendment of the United States Constitution for a taking of property without due process of law." (Duffy v. City of Long Beach, No. CV 83 2034 LTL, C.D.Cal.) He sought from the federal court a temporary restraining order, preliminary and permanent injunction to restrain the City and its employees from "interfering with plaintiff's rights to hold and improve his real property without providing due process of law ... and to further enjoin the City from demolition of plaintiff's property;" compensation for the taking and demolition of his property; a declaration that the nuisance ordinance was unconstitutional on its face and as applied; and damages of $1,025,000 for lost time and emotional distress. In July 1983, while the In December 1984, the City demolished the structure as a nuisance. In December 1985 appellant filed the present action in Los Angeles Superior Court. Alleging various violations of his constitutional and civil rights, he sought actual and punitive damages for the demolition of the structure, from the City of Long Beach and from three individual city building inspectors, Zeller, Stump and Sauter. The trial court sustained, without leave to amend, the City's demurrer to appellant's complaint on the ground of res judicata. After appellant was given several additional opportunities to amend as to the individual employees, the court sustained, without leave to amend, their demurrer to appellant's third amended complaint on grounds of res judicata and failure to state a cause of action.

federal action was pending, the City held another administrative hearing, finding the property to be a nuisance and ordering appellant to complete or demolish it by September 6, 1983. On August 31, 1983, the federal court entered summary judgment against appellant, dismissing appellant's complaint, concluding: that appellant had been deprived of no federally protected rights; that appellant was given a fair due process hearing by the city council on July 5, 1983; that appellant had been given ample time and opportunity to complete the building but had failed to do so; that the structure had been in a state of partial construction for over 15 years, an unreasonable period of time, and was a public nuisance in violation of the Long Beach Municipal Code; that the ordinance was a valid and constitutional police power measure declaring a statutory public nuisance, and was not vague; that the City did not engage in invidious selective enforcement of the ordinance; and that in light of these findings the City Council's order requiring completion or demolition by September 6, 1983, was reasonable and appropriate. The federal district court's judgment was subsequently affirmed by the Ninth Circuit Court of Appeals, and certiorari was denied by the United States Supreme Court.

DISCUSSION

The trial court properly sustained the demurrers primarily on the ground of res judicata, which precludes parties or their privies from relitigating a cause of action which has been finally determined in a prior judgment. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593; Safeco Insurance Co. v. Tholen (1981) 117 Cal.App.3d 685, 696, 173 Cal.Rptr. 23.) To prevent piecemeal litigation, the doctrine of res judicata also applies to bar a second suit arising out of the same factual situation, involving matters which were relevant and within the scope of the first action, which thus could have been raised in the first suit. (Kronkright v. Gardner (1973) 31 Cal.App.3d 214, 217, 107 Cal.Rptr. 270.)

The instant suit is for alleged violation of federal constitutional rights during the City's 15-year dispute with appellant over appellant's maintenance of a nuisance on his real property, the same factual situation and issues which were determined against appellant in the prior federal lawsuit, which had become final. The federal court determined that no triable issues of fact had been raised as to deprivation of any federally protected rights; that the City's nuisance ordinance was a valid and constitutional police power measure which was not unconstitutionally vague; that the City did not engage in invidious selective enforcement of the ordinance; and that the July 5, 1983 hearing resulting in the order requiring abatement of the nuisance was a fair due process hearing. The Los Angeles Superior Court properly concluded, therefore, that the prior federal judgment bars the present action.

In the present lawsuit appellant offers various theories to avoid the res judicata bar, none of which has merit. Appellant's main argument is that in the prior federal suit he sought to enjoin the demolition of the structure, whereas the present suit was filed after its actual demolition which, he claims, now entitles him to constitutional "just compensation" for the "taking" of his property. This does not distinguish the two lawsuits. A mere change in the form of relief requested does not avoid the res judicata bar. ( Kronkright v. Gardner, supra, 31 Cal.App.3d at 216, 107 Cal.Rptr. 270.) The theory that the impending demolition would constitute a "taking" was clearly raised and rejected in the prior federal suit. The claim that the actual demolition now entitles appellant to a new cause of action for compensation is without merit. When a property owner has been given ample notice and opportunity to correct or repair a structure constituting a nuisance, but has failed to do so, demolition of the structure by the government to abate the nuisance is a regulatory action within the police power, not a taking of property which requires compensation of the owner. (Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 716, 97 Cal.Rptr. 840; Friedman v. City of Los Angeles (1975) 52 Cal.App.3d 317, 321, 125 Cal.Rptr. 93; People v. Wheeler (1973) 30 Cal.App.3d 282, 295-296, 106 Cal.Rptr. 260; City, etc. of San Francisco v. City Investment Corp. (1971) 15 Cal.App.3d 1031, 1042, 93 Cal.Rptr. 690; Mugler v. Kansas (1887) 123 U.S. 623, 668-669, 8 S.Ct. 273, 300-301, 31 L.Ed. 205.) Appellant misplaces reliance on First English Evan. Luth. Ch. v. Los Angeles Cty. (1987) --- U.S. ----, 107 S.Ct. 2378, 96 L.Ed.2d 250. Due to the procedural posture of that case, the Supreme Court assumed, but did not decide, that a temporary flood control regulation deprived the landowner of all use of the property and was a "taking" rather than a noncompensable regulatory action. (Id., 107 S.Ct. at 2384-2385, 2389; Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, 867-868, 241 Cal.Rptr. 787.) There was no "taking" here, because appellant is still free to make any lawful use of his land and is merely prohibited from maintaining a nuisance on it. ( Mugler v. Kansas, supra, 123 U.S. at 668-669, 8 S.Ct. at 300-301; see also Keystone Bituminous Coal Ass'n v. DeBenedictis (1987) --- U.S. ----, 107 S.Ct. 1232, 1242-1247, 94 L.Ed.2d 472; Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 135-137, 98 S.Ct. 2646, 2664-2666, 57 L.Ed.2d 631.)

Appellant next contends the City should be estopped to assert res judicata as a defense, on the ground that the City urged the ...