Fratus v. Cnty. of Contra Costa

CLARK FRATUS, et al., Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Defendant and Respondent.

A157397

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

June 10, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. MSN10-1322)

This is the third appeal from a code enforcement dispute between appellants Clark and Karla Fratus and respondent the County of Contra Costa (County) that began more than a decade ago. In the first appeal (Fratus v. Contra Costa County Department of Conservation and Development (Aug. 23, 2017, A147841) [nonpub. opn.]) (Fratus I)), we reversed the trial court's order denying appellants' motion for attorney fees and remanded with directions to award attorney fees under Government Code section 800. On remand, appellants renewed their request for attorney fees under Government Code section 25845 and other statutory grounds. Believing itself to be bound by the narrow scope of our prior remittitur, the trial court awarded fees under Government Code section 800 and otherwise denied their request. Appellants appealed a second time, arguing that our prior opinion did not foreclose other bases for recovery of fees. We agreed and reversed, remanding the matter to the trial court for further consideration. (Fratus v. County of Contra Costa (Sept. 28, 2018, A153424) [nonpub. opn.]) (Fratus II).)

On remand, the trial court ruled that appellants are entitled to the statutory maximum of $7,500 in attorney fees under Government Code section 800, but are not entitled to additional attorney fees under Government Code section 25845. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The County Alleges Building and Zoning Code Violations

Appellants own two properties on Dutch Slough Road in Oakley. In October 2007 and December 2008, a County building inspector issued notices to comply for the properties, directing appellants to correct certain building and zoning code violations. The notices asserted that one of the properties was not permitted for living space in both stories of the dwelling, and the other property was not permitted for two separate residences. The notices stated that if the violations were not corrected, the County would pursue one or more different code enforcement remedies, including an order to abate or the imposition of administrative penalties. These notices contained no language regarding the recovery of attorney fees.

The County then issued notices of intent to record notices of pending nuisance abatement proceedings with respect to the two properties, citing Contra Costa County Ordinance Code (Ordinance Code) section 14-6.414, within the "Civil Enforcement" chapter (Chapter 14-6).¹ Although appellants provided various records to the County supporting the lawfulness of the structures, the County recorded the notices of pending nuisance abatement proceedings.

B. The County Imposes Fines

In May 2009, County code enforcement officers issued three notices of fines under section 14-12.006, located within the Ordinance Code's "Administrative Penalty System" chapter (Chapter 14-12). Each notice imposed a $4,300 fine for building and zoning violations at appellants' properties. The three notices had the same reference numbers and detailed the same alleged violations as the prior abatement notices. The notices of fines advised that if the fines were not paid, "legal action may be taken to collect the penalty" and "[i]f a judicial action is required to collect the penalty, the County will seek to recover its attorney fees and cost from you." This was the first time the County had indicated an intent to seek its attorney fees. Appellants submitted an appeal of the fines to the Building Inspection Division of the County's Department of Conservation & Development.

C. Administrative and Judicial Proceedings

The administrative appeal hearing on the three notices of fines was held in November 2009 before the County's deputy zoning administrator and building official. The appeal hearing was held "[p]er the provisions of the County Administrative Penalty System (Chapter 14-12)."

On December 8, 2009, the County issued a final administrative order, imposing $12,900 in fines for the violations found on appellants' two properties. The order indicated that if legal action was required to collect the fines, the County would seek to recover its costs under Code of Civil Procedure section 1033.5. Appellants were advised that judicial review was available pursuant to Government Code section 53069.4.²

On December 28, 2009, appellants filed an appeal from the December 8, 2009 final administrative order in the superior court. The notice of appeal indicated that the appeal was taken under Government Code section 53069.4. On August 13, 2010, appellants, acting pro per, filed a separate petition for writ of administrative mandamus, combined with a complaint for damages. The complaint was later dismissed. The petition requested the issuance of a writ to set aside the December 8, 2009 administrative order and sought attorney fees and costs. The trial court consolidated the appeal and writ petition under Case No. N10-1322.³

On June 2, 2011, the trial court issued a minute order granting the petition for administrative mandate. The minute order directed the County to set aside the December 8, 2009 order imposing fines on appellants' two properties. No relief was ordered with respect to abatement. In November 2012, the County recorded releases of the February and March 2009 notices of pending nuisance abatement proceedings. The recorded notices stated that the "nuisance abatement proceeding[s]" had been completed and the properties were "no longer in violation."

The trial court's order and judgment granting the petition for writ of administrative mandate was not filed until July 2015. In October 2015, the County's Board of Supervisors (Board) complied with the writ and set aside the fines.

D. Appellants Seek Attorney Fees

In September 2015, appellants filed a motion for attorney fees based on three separate grounds. Appellants claimed they were entitled to reimbursement of all their attorney fees under Government Code section 25845, to $7,500 in fees for each plaintiff pursuant to Government Code section 800, and to "private attorney general" attorney fees under Code of Civil Procedure section 1021.5. The trial court denied the motion, holding that appellants were not entitled to attorney fees under Government Code section 800 or Code of Civil Procedure section 1021.5. The order was silent on the applicability of Government Code section 25845 and the related County abatement ordinance provision, section 14-6.426, subdivision (c) (hereafter section 14-6.426(c)). Appellants appealed the order.

In Fratus I, supra, appellants argued they were entitled to attorney fees under both Government Code sections 800 and section 14-6.426(c). (Fratus II at *6.). This Court reversed the trial court's order and remanded with instructions to award attorney fees under Government Code section 800. (Ibid.)⁴ We did not address appellants' contention that they can recover attorney fees under Government Code section 25845.

On remand, the trial court granted appellants' motion for attorney fees but limited the award to the maximum of $7,500 under Government Code section 800. The court declined to consider recovery under Government Code section 25845 because it believed that our prior remittitur did not permitinquiry into this claim. (Fratus II at pp. *2-3.) Appellants appealed a second time.

In Fratus II, appellants argued that they were entitled to more than $7,500 in attorney fees under Government Code section 800, contending that the statutory maximum can be multiplied to cover multiple parties or issues within a single civil action. (Fratus II, supra, at p *7.). They renewed their argument that they were separately entitled to attorney fees under Government Code section 25845. (Id. at p. *3.) We reversed the trial court's order on narrow grounds. We upheld the trial court's determination that recovery under Government Code section 800 is limited to $7,500. (Id. at p. *6.) We remanded to allow the trial court to rule on the applicability of Government Code section 25845 in the first instance, concluding that our failure to address that provision in Fratus I had been an oversight on our part. (Id. at p. *5.)

E. Current Attorney Fee Motion

In January 2019, appellants filed the motion that is the subject of the current appeal, seeking attorney fees and costs in the amount of $132,232 pursuant to Government Code section 25845 and section 14-6.426(c), in addition to the confirmed $7,500 in fees under Government Code section 800. Appellants argued that the underlying litigation fell under section 14-6.426(c) because it pertained to nuisance abatement rather than to administrative fines, noting that the County's nuisance abatement proceedings "were in effect throughout the litigation, and were only released because [appellants] prevailed on their writ of mandamus."

The County opposed the motion, arguing that because the final administrative order pertained to administrative fees, and not to abatement, an award of attorney fees was not authorized under Government Code section25845 and section 14-6.426(c). Instead, the matter arose from an appeal of the County's administrative fines undertaken pursuant to Government Code section 53069.4, a statute that does not provide for the recovery of attorney fees by a prevailing party.

On March 12, 2019, the trial court awarded appellants $7,500 in attorney fees under Government Code section 800 and otherwise denied their motion. The court held that appell...