Warkentine v. Soria
| Decision Date | 21 January 2016 |
| Docket Number | Case No. 1:13-cv-01550-MJS |
| Citation | 152 F.Supp.3d 1269 |
| Parties | Edward Warkentine, Daniel Tankersley, Plaintiffs, v. Hector J. Soria, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
George David Robertson, Michael Cory Mapes, Marilee Breternitz, Robertson, Johnson, Miller & Williamson, Reno, NV, for Plaintiffs.
Abraham Gonzalez, Mendota, CA, pro se.
Felipe Gonzalez, Mendota, CA, pro se.
Gonzalez Towing & Tire Shop, Mendota, CA, pro se.
David Alan Fike, Fike & Boranian, Clovis, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND
GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Michael J. Seng
Plaintiffs Edward Warkentine and Daniel Tankersley (jointly, “Plaintiffs”) initiated this action on September 25, 2013. They are proceeding on a second amended complaint filed on June 2, 2014, alleging, generally, that Defendants searched, seized, and took Plaintiffs' personal property without any compensation in violation of the Civil Rights Act, 42 U.S.C. § 1983
, and the Fourth, Fifth and Fourteenth Amendments. (ECF No. 55.) This matter is before the undersigned for all purposes pursuant to the consent of the parties. (ECF No. 62.)
This action proceeds against the following Defendants1 :
This case is set for a pretrial conference on January 29, 2016, at 1:30 p.m., and a jury trial on March 1, 2016, at 8:30 a.m. (ECF No. 109.)
On September 30, 2015, Defendants the City, Soria, Gosserand, Galvin, Lemus, Amador, and Chojnacki (collectively, “the Mendota Defendants” or “Defendants”) moved for summary judgment on all of Plaintiffs' claims. (ECF No. 84.) Also on September 30, 2015, Plaintiffs moved for partial summary judgment on their procedural due process and taking claims against the City, Gosserand, Soria, and Chojnacki. (ECF No. 87.) Both motions are fully briefed and ready for disposition.
At issue in this case is the Defendants' nuisance abatement activity related to the following properties located in Fresno County, California, and owned by Plaintiffs Edward Warkentine and/or Daniel Tankersley: APN 013-192-09, 013-152-27s, 013-116-13, 013-118-11, and 013-115-10. At the time, three of these properties were located in residential (R-1) zoned districts. Chojnacki Decl. ¶ 2. The other two, APN 013-115-10 and 013-152-27s, were located in M-1 (Light Manufacturing) districts. Id.
Daniel Tankersley has an ownership interest in APN 013-115-10 and APN 013-152-27s. Tankersley Decl. ¶ 5. He inherited his interest in these properties on June 19, 2009, following the final distribution of the Estate of Elbert Davidson.5 Tankersley Decl. ¶ 4. On March 11, 2010, new deeds were prepared and notarized for the transfer of these two properties and on April 26, 2010 they were submitted to the Fresno County Recorder's Office. Id. ¶ 5. Since June 6, 2010, when the deeds were recorded, the property's mailing address has been P.O. Box 29, Nubieber, California 96068. Id. During all times relevant to this action, Tankersley received his tax bills for these properties at the Nubieber address. Id. ¶ 8.
Enforcement of the Mendota Municipal Code (“the Code”) and resolution of any issues related to the manner in which it is enforced is the responsibility of the City Manager. Silva Dep. at 28:15-24; Amador Dep. at 61:6-9.
As relevant here, the City Manager gave guidance on the nuisance abatement procedures to the Code Enforcement Officers. Gosserand Dep. at 20:17-24; Soria Dep. at 46:17-20. The City Manager set a priority list for cleaning up certain properties in Mendota; Plaintiffs' properties were on the priority list and at one point were the top priority. Soria Dep. at 33:9-21.
The City Council members did not get involved in the enforcement of the Code, instead leaving it to the discretion of the City Manager. See Silva Dep. at 26:8—27:11.
On May 15, 2010, Defendant City Code Enforcement Officer Hector Soria mailed five separate public nuisance notices to Edward Warkentine at 1583 Eighth Street, Mendota, California, 93640, regarding the properties at issue in this case (“the Public Nuisance Notices”). Joint Statement of Undisputed Facts (“JSUF”) ¶ 17. These notices were mailed to the names and addresses shown on the last equalized assessment roll in Fresno County.6 Soria Decl. ¶ 2.
Each of these notices indicated that the property was in violation of the Mendota Municipal Code, , Sections 8.28.030 (public nuisance) and 8.24.020 (trash and junk). Soria Decl. Ex. A. The notices summarily referred to the following subsections: 6 (accumulation of trash and junk), 8 (attractive nuisance to children), 12 (an unpermitted obstruction of or encroachment on public property), 13 (abandoned, inoperative or dismantled vehicle), and 15 (vacant lots not maintained free of weeds, trash, etc.). Defs.' Req. Judicial Notice (“DRJN”), Ex. A; see also Soria Decl. ¶ 3, Ex. A.
Warkentine received at least 4 of the 5 notices.7 Soria Decl. ¶ 2; Warkentine Dep. at 26:2-10. Tankersley did not receive these notices and has never received mail at the 1583 Eighth Street address. Tankersley Decl. ¶¶ 6, 10.
On August 3, 2010, Defendant Soria mailed to both Plaintiffs at 1583 Eighth Street, Mendota, California 93640, a “Notice of Intention To Abate and Remove An Abandoned, Wrecked, Dismantled, Or Inoperative Vehicle of Parts Thereof as a Public Nuisance” (“the Abatement Notice”) identifying 10 allegedly abandoned, wrecked, dismantled, or inoperative vehicles on APN 013-152-27s and notifying the Plaintiffs that they had 10 days to abate the alleged nuisance or request a public hearing. JSUF ¶ 18; Soria Decl. Ex. B.
In response to the Abatement Notice, Plaintiffs' attorney, Diane Anderson, requested a public hearing. JSUF ¶ 19.
On November 6, 2010, the City of Mendota mailed five notices—again to 1583 Eighth Street, Mendota, California 93640—titled “Notice of Administrative Hearing to Determine the Existence of Public Nuisance and to Abate In Whole Or Part” (“the Notices of Administrative Hearing”). These notices were addressed to:
JSUF ¶¶ 20-24. Each of these notices indicated that a hearing would be held on November 16, 2010. See Soria Decl. Ex. C.
Tankersley did not receive any of these notices. Tankersley Decl. ¶ 11. Instead, he heard third-hand about a possible hearing on one parcel (865 Naple Street) for a non-nuisance issue. Id.
On November 16, 2010, an administrative hearing was held before Defendant Kristal Chojnacki, the City Manager who was acting as the Hearing Officer. JSUF ¶ 25, Pls.' Sep. Statement of Undisputed Facts (“PSSUF”) ¶ 1.
Both Plaintiffs appeared at the hearing with their attorney. JSUF ¶ 25. The nuisance conditions on all of the properties were considered at the hearing, and both Tankersley and Defendant Soria testified; Warkentine did not testify.
Tankersley testified that he cleaned up all oils and tires from the properties and obtained an EPA number for removal of these items. Tankersley Decl. ¶ 14. He stated that he spent a large amount of money cleaning up the properties, demolishing houses, and relocating personal property in reliance on a prior agreement with the City of Mendota that the properties would be rezoned to M-2. Id. He testified that he is the record owner of APN 013-115-10 and APN 013-010-27s and presented a tax bill with his name and proper address on it. Id.
Defendant Soria also testified at the hearing regarding the nuisance conditions on the properties. Soria Decl. ¶ 6. His testimony was based on photographs of the properties. Id. Ex. D.
At the conclusion of the hearing, Chojnacki gave Tankersley until December 6, 2010, to submit additional evidence or documentation in support of his position. Chojnacki Decl. ¶ 5. No additional documents or evidence was submitted by Tankersley following the hearing. Id. ¶ 8.
After the hearing, Chojnacki, Soria and Tankersley drove by each of the properties to observe their present condition. Soria Decl. ¶ 7. Tankersley showed Soria and Chojnacki the conditions on the properties that verified his testimony, including the removal of hundreds of tires as well as the oils from the oil barrels. Tankersley Decl. ¶ 20. Notwithstanding the removal of the tires, Soria and Chojnacki determined that the properties remained in substantially the same condition as shown in the photographs submitted by Soria. Soria Decl. ¶ 7; Chojnacki Decl. ¶ 7.
On March 30, 2011, Chojnacki issued “Findings Regarding Appeal of Notice of Nuisance and to Abate Vehicles” (“the Abatement Decision”) in which nuisance conditions were found to exist on all five parcels. JSUF ¶ 26; Chojnacki Decl. Ex. A. The Abatement Decision ordered that Edward Warkentine (and not Daniel Tankersley) remedy the alleged violations claimed therein, including, to “remove all accumulated materials, junk and trash” and “remove all inoperative vehicles” from certain parcels within thirty days. JSUF ¶ 27. Each of the Plaintiffs received a copy of the Abatement Decision. Warkentine Dep. at 28:19-22; Tankersley Dep....
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