Patel v. Penman, 95-55213

• Citation: 103 F.3d 868
• Decision Date: 26 December 1996
• Docket Number: No. 95-55213,95-55213
• Parties: 96 Cal. Daily Op. Serv. 9430, 96 Daily Journal D.A.R. 15,503 Amrut N. PATEL; Sita Patel, Plaintiffs-Appellants, v. James F. PENMAN, City Attorney; Community Redevelopment Agency of the City of San Bernardino; Building and Safety Department of the City of San Bernardino; Housing and Community Development Department of the City of San Bernardino, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 868

103 F.3d 868

96 Cal. Daily Op. Serv. 9430, 96 Daily Journal

D.A.R. 15,503

Amrut N. PATEL; Sita Patel, Plaintiffs-Appellants, v. James F. PENMAN, City Attorney; Community Redevelopment Agency of the City of San Bernardino; Building and Safety Department of the City of San Bernardino; Housing and Community Development Department of the City of San Bernardino, Defendants-Appellees.

No. 95-55213.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1996.

Decided Dec. 26, 1996.

Frank A. Weiser, Los Angeles, CA, for plaintiffs-appellants.

Robert L. Simmons, Senior Deputy City Attorney, Cynthia Ludvigsen, San Bernardino, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California, Richard A. Gadbois, Jr., District Judge, Presiding. D.C. No. CV-91-01420-RG.

Before: FLETCHER, BEEZER and KLEINFELD, Circuit Judges.

OPINION

FLETCHER, Circuit Judge:

Amrut and Sita Patel appeal the jury verdict against them on their § 1983 claim alleging that the City of San Bernardino violated their procedural due process rights by not affording them notice and an opportunity for a hearing after the City closed down their motel as a nuisance. The Patels also appeal the district court's summary judgment for the City on their § 1983 claims of alleged violations of substantive due process and equal protection, as well as the district court's decision declining to exercise supplemental jurisdiction over their inverse-condemnation claim based on the California constitution. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and affirm in part and reverse in part.

FACTUAL BACKGROUND ¹

The Patels purchased the Super-7 Motel in downtown San Bernardino in 1984. The motel apparently contains approximately 40 rooms, and appears to have been occupied primarily by short- and medium-term residents rather than by transient travelers. ² The City alleged in moving papers below that in the three years before 1990 the City's police department reported over 300 calls to the motel for assistance with illegal activity and that the motel had been the site of "numerous drug and narcotic busts and prostitution arrests".

Since at least 1987, the Patels had leased the motel to various lessees. In June of 1990, the lease was assigned to Mahendra and Minaxi Desai.

In 1990, the City designed and implemented a program to inspect all motels within its boundaries. ³ In March of that year, the City issued a "Notice of Violation" regarding the motel, specifying numerous violations and indicating that four units had been "abated" and posted as "dangerous." The Notice stated that the violations had to be corrected within ten days and that permits were required for the work needed to bring two units into compliance. A second Notice of Violation was issued the following month.

In May 1990 another Notice of Violation was issued, apparently regarding violations on the grounds of the motel rather than in the rooms. This Notice included a note directing that rooms not be rented until the violations were corrected because the motel was in violation of its "conditions of approval."

A "Notice to Abate Nuisance" was issued on August 27, 1990 and listed at least 14 code violations at the motel. The Notice, which identified Mahendra Desai as the property owner, indicated that the "nuisance(s)" must be corrected by September 10th, and stated that if the owner objected to the determination of a nuisance, he "must file a written protest to the City Clerk no later than 10 days from the date of this notice." The Notice also stated that four units were closed due to unfit conditions and could not be rented until corrections were made. Mr. Patel stated in a sworn declaration that he received a copy of this Notice in the mail from Mr. Desai. On August 29, 1990, Mr. Desai apparently obtained building permits to conduct repairs.

On September 4, 1990, pursuant to an administrative warrant, the City inspected the motel. City Attorney James Penman, investigators from the City Attorney's office, Code Compliance Supervisor Debra Daniel, several code compliance officers, and a fire department inspector were present at the inspection. The inspection found code violations including faulty plumbing, illegally installed kitchens, exposed electrical wiring, roach infestation, and missing smoke detectors. The City officials concluded that the motel constituted an extreme health and safety hazard to the residents and ordered it closed immediately. Residents were apparently provided with relocation assistance by the City.

The City appears to have acted pursuant to Chapter 15.28 of the San Bernardino Municipal Code on "Dangerous Buildings." Section 15.28.140(A) gives the City building official the "summary power to secure from entry any structure which in his discretion he determines to be immediately dangerous or hazardous, or in any other manner injurious to public health or safety ... using methods at his discretion to accomplish the purpose which are most appropriate under the circumstances." Section 15.28.150 allows the building official to use the same procedures "in connection with the summary abatement of all other nuisances upon private property which the building official determines in his discretion to constitute an immediately dangerous or hazardous condition." Section 15.28.140(C) requires the building official, "immediately after" securing a dangerous building, to "mail a notice to the owners" of the property informing them:

(1) that he has secured the structure;

(2) the cost incurred by the City thereby;

(3) that he has posted signs as provided by this section;

(4) the reasons why he has taken the action;

(5) that an appeal may be made within ten days to the Board of Building Commissioners, to be set for hearing at the next regular meeting;

(6) that if his action is not annulled by the Board of Building Commissioners, the cost of securing the property shall become a lien upon the real property unless the cost is paid to the City within thirty days of the mailing of the notice.

Section 15.28.140(D) governs appeals to the Board.

A.L. Williams, a code compliance officer for the City, issued a "Notice to Abate Nuisance" on September 4th. The Notice identified "Mahendra B. Desai (agent for Patel)" as the owner and stated that the motel's units were closed "due to safety violations, operating a business without a business license or a proper [certificate of occupancy, and] substandard conditions in this complex." The Notice stated that the owner or his agent could not repair or improve the premises without a proper permit and that rooms could not be occupied until the motel passed an inspection by the building and safety department, the fire and police departments, and the city attorney's office. The Notice stated that the owner had until September 14, 1990 to apply for permits to make repairs and that the owner had 10 days from the date of the notice to file a written protest with the City Clerk's office if the determination of a nuisance was contested. Desai, in a sworn declaration, stated that he immediately sent a copy of the notice to Mr. Patel. Mr. Patel stated in a sworn declaration that he received a copy of this notice from Mr. Desai, though Patel testified at trial that he had never received the document.

On September 26, 1990, Williams wrote a letter to the Patels, addressed to them at their address in Upland, California, which stated that it constituted service of a "Correction Notice" as to the motel. Attached to the letter was a two-page "Unit Inspection Report", prepared on September 10, 1990, that detailed the code violations at the motel found during the September 4, inspection. The report indicated that the violations had to be corrected in 10 days and that permits were required for the repairs; the letter stated the same instructions and requested that the Patels "contact this office within ten (10) calendar days from the date of this notice to make arrangements to correct [the] violations." The report indicates that a copy was mailed to the owner by certified mail on September 26, 1990. Although Mr. Patel testified at trial that he had never received this letter, he stated in his sworn declaration that he received the letter on or about September 27, 1990.

In his sworn declaration, Mr. Patel stated that within the ten-day period specified in the September 26th letter he went to the City's planning and building department to apply for building permits to repair the motel and that he was told by Daniel that building permits would not be issued at that time. At trial, under cross-examination, Mr. Patel testified that he had never applied for building permits to rehabilitate the motel.

On October 29, 1990, Larry Reed, the director of the City's Department of Planning and Building Services, wrote the Patels and notified them that the motel had been determined to be a public nuisance in violation of city ordinances. It is unclear whether this determination refers to the violations cited in the September 4 and September 26 notices or whether it is a new determination based on the unoccupied state of the motel after the closure. Reed stated that an emergency abatement of the property had been made in order to protect the health and safety of the community and that the costs of the abatement amounted to $598.34, which the Patels should remit to the city clerk's office within 30 days. Mr. Patel testified at trial that he had never received this letter personally or by mail, but in his sworn declaration he stated that he received the letter on October 29.

The October 29 letter also stated that a hearing on the matter had been scheduled before the Board of Building Commissioners on December 7, 1990 at 9:00 a.m. and informed the Patels that they had the right to present evidence challenging the abatement at the hearing. On December 7, the Board met but immediately...