Mohilef v. Janovici

• Court: California Court of Appeals
• Writing for the Court: MASTERSON; ORTEGA, Acting P.J., and MIRIAM A. VOGEL
• Citation: Mohilef v. Janovici, 58 Cal.Rptr.2d 721, 51 Cal.App.4th 267 (Cal. App. 1996)
• Decision Date: 27 November 1996
• Docket Number: No. B096420,B096420
• Parties: , 96 Cal. Daily Op. Serv. 8675, 96 Daily Journal D.A.R. 14,321 David MOHILEF et al., Individually and as Trustees, etc., Plaintiffs and Appellants, v. Robert JANOVICI et al., Defendants and Respondents.

Page 721

58 Cal.Rptr.2d 721

51 Cal.App.4th 267, 96 Cal. Daily Op. Serv. 8675,

96 Daily Journal D.A.R. 14,321

David MOHILEF et al., Individually and as Trustees, etc., Plaintiffs and Appellants, v. Robert JANOVICI et al., Defendants and Respondents.

No. B096420.

Court of Appeal, Second District, Division 1, California.

Nov. 27, 1996.

Review Denied Feb. 26, 1997.

[51 Cal.App.4th 276] Jay S. Bulmash, Seal Beach, for Plaintiffs and Appellants.

James K. Hahn, City Attorney, Los Angeles, Claudia McGee Henry, Senior Assistant City Attorney, and Michael L. Klekner, Deputy City Attorney, for Defendants and Respondents.

MASTERSON, Associate Justice.

This case presents the principal question of whether, in an administrative proceeding brought by a municipality to abate a public nuisance, the due process clauses of the state and federal Constitutions require that the offending property owner receive a full, judicial-type hearing.

We hold that due process is satisfied as long as the property owner receives adequate notice of the nature of the alleged nuisance and a meaningful opportunity to respond to the charges against him. It is not necessary that he receive the full panoply of procedural protections accorded in a judicial trial, such as the ability to cross-examine witnesses under oath, to subpoena witnesses, or to engage in discovery.

BACKGROUND

David and Monica Mohilef own a 7.5-acre ranch located within the gated community of Monteria Estates in the Chatsworth area of the City of Los Angeles (the "City"). The Mohilefs have lived on the property since purchasing it in 1977. ¹ The ranch consists of a single-family dwelling, a barn, bird pens, an aviary shelter, and what the City describes as an "ostrich farm." ² The properties adjoining the ranch are developed with two-story single-family dwellings. ³

For at least four decades, David Mohilef ("Mohilef") has been engaged in the business of importing, buying, and selling domestic and exotic animals. He owns or has an ownership interest in several commercial entities that import, breed, and sell various animals and birds. Mohilef has participated with educational and research institutions throughout the world in researching genetics, the protection of endangered species, and ecological issues such as efficient land use, world hunger, and food production for the next century.

In 1994, Mohilef was involved with businesses related to ostriches and emus--birds belonging to a group known as ratites. ⁴ These business enterprises operated twelve separate facilities throughout Los Angeles County (other than the Mohilef ranch) to house and maintain ostriches and emus for commercial purposes. When birds were either born or brought into one of the commercial establishments with which Mohilef was involved, he sometimes selected the best of them from a genetic viewpoint and brought them to the ranch. There, he would watch their development, looking for traits that would improve the breed.

As of July 1994, Mohilef was attempting to develop a better quality bird and was researching the appropriate density at which ostriches and emus could be raised. Through his research, Mohilef hoped to show that the birds could be raised for food in a high density environment, saving valuable pasture land and rain forests. As Mohilef put it, "I'm trying to see how many I can raise on an acre where I'll get 65 to 75 pounds of prime meat [and] 14 square feet of hide." For that purpose, he maintained approximately 400 ostriches and 400 emus at the ranch. The birds were not owned by Mohilef directly, but by several commercial entities in which he had a minority interest. He received the birds while they were chicks and kept them until they were eight to ten months old, at which time they were shipped to one of his commercial facilities. ⁵ Mohilef did not receive any compensation for keeping the birds at the ranch or for the use of his property. His commercial enterprises paid for the care and feeding of the birds. A staff of 13 people were employed full time at the ranch to keep the property clean and sanitary and to tend to the birds and other animals. ⁶

In May 1994, the Mohilefs received a notice from the office of the City zoning administrator, informing them that on July 11, 1994, a public hearing would be held concerning the operation of the ranch. The notice stated that the zoning administrator "may impose conditions regarding the use of the site as a commercial bird farm in order to mitigate any land use impacts caused by the use." The public was also invited to submit written comments before the hearing.

The notice further stated: "There have been allegations that commercial bird farming activities are being conducted at the subject location which ... constitut[e] a public nuisance. The location has generated numerous complaints from residents of surrounding properties regarding the commercial raising and keeping of animals such as ostriches, emus, and llamas. These complaints include that there are approximately 600 ostriches at the location and that the animal waste generated has an overwhelming odor which permeates the area. Further, there is concern that the dried animal feces when pulverized become airborne and are deposited on adjacent properties which has resulted in physical damage and may harbor organisms which may cause illness in humans and/or animals."

Finally, as authority for the hearing, the notice stated, "[t]he Office of Zoning Administration has the authority to impose additional conditions on the operation of the commercial bird farm under Section 12.21-A, 15 (nuisance by any commercial or industrial use) of the Los Angeles Municipal Code." ⁷

In a staff report dated June 6, 1994, the office of zoning administration described the complaints against the Mohilefs' bird farming activities and the nature of the surrounding properties. In addition, the report noted that the office had received 11 letters opposing the presence of ratites on the Mohilef ranch. The report also commented that "[w]hen staff investigated the subject site the farm was relatively clean and well maintained ... [and] the odor did not seem as pervasive as was stated in the complaint letters in the file."

Among the letters received by the office of zoning administration, one stated in part: "As a physician who lives in the area ..., I am concerned about the stench and dust raised by 600 crowded ostriches on a small parcel of land. This fine dust can carry particles that will aggravate asthma and spread fungal illnesses such as coccidioidomycosis...." Another letter commented that "the presence of these birds has changed my back yard from a pleasant garden and pool retreat into what looks like the bottom of a bird cage that hasn't been cleaned in weeks. No amount of daily care can keep the many thousands of feathers which blow my way from blanketing my yard, gardens, and pool." One couple wrote the zoning administrator, saying, "We cannot tolerate the outrageous stench from the animal waste that permeates our noses and throats, and causes us considerable discomfort and health risks."

On June 17, 1994, in connection with the upcoming public hearing before the zoning administrator, the Mohilefs filed a petition for writ of mandate in the trial court, ⁸ seeking to compel the City to issue witness subpoenas and to permit prehearing discovery. ⁹ The Mohilefs alleged that the due process clauses of the state and federal Constitutions (Cal. Const., art. I, § 7, subd. (a); U.S. Const., Amend. XIV) required such prehearing procedures. The trial court denied the petition for failure to exhaust administrative remedies.

On July 11, 1994, a public hearing was held before Associate Zoning Administrator Daniel Green (the "AZA"). At the beginning of the hearing, the AZA told the audience:

"Your job is to tell me what you think about the issues that are raised regarding the Mohilef Farms property. The purpose of the hearing is to get your input so that I can make a proper decision. If you're speaking in favor or in opposition to what's going on, you'll each have a chance to speak.

"We have a court reporter to my left. Please for the benefit of the court reporter speak loudly enough so that she can hear you, and slowly and distinctly so she can report properly what's being said today. I'll ask each person that speaks today to come to the podium here, state your name, either your home address, your business affiliation, attorney affiliation, at least so we'll know who you are.

"There will be no swearing in, there will be no oaths.... To the extent we can keep this more informal than formal, I would appreciate it. I would appreciate if people did not repeat themselves. So if somebody says what you were going to say, you don't need to say it again. When it's your turn to speak, you can indicate that it's basically been said.

"... You all got copies of the hearing notice, I presume, or have heard from neighbors who have received copies. I've reviewed the file, what's in here to date. And I know various parties have also reviewed the file. There are letters from attorneys on both sides of this issue. There are many letters from residents of Monteria Estates or adjoining Monteria Estates.

"I have photographs of the site. I have been to the site this morning.... There has also been a formal request that there be cross-examination of certain statements that people make to determine the validity or the veracity of those statements. And generally speaking, that's not done in these quasi-judicial hearings....

"However, because of the level of emotion and economics that are at stake, I will try to provide an avenue for questions to be asked. They will not be asked as you see in a trial court where questions are posed to witnesses who sit in a box near the judge and so forth. But those questions can be asked by those persons who wish to ask them, direct to me. And if those persons who would have the answers...