Li v. City of Hayward CA1/2

Filed 3/26/25 Li v. City of Hayward CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

HONG LI,

Plaintiff and Appellant, A168862

v. (Alameda County

CITY OF HAYWARD, Super. Ct. No. 22CV017530)

Defendant and Respondent.

Hong Li appeals from the judgment of dismissal of her action after the

trial court sustained the City of Hayward’s demurrer to her first amended

complaint without leave to amend. We reverse.

BACKGROUND

In September 2022, Li filed a complaint for money damages alleging

the City “wrongfully charged” her $4,970.22 for a “no show” inspection fee

and a “lien/special assessment” on her property. Li alleged that a City

inspector knew no one lived in the property after a fire damaged the property;

that the inspector had her phone number and email address but never

contacted her via call or email “for the inspection on February 08, 2022”; and

that the inspector sent a notice to the fire-damaged property, which Li never

received. Li alleged that Hayward City Hall was “closed to public and shut

down for years” until May 2022, so she was “not surprised” that she did not

hear from the inspector during January and February 2022. Her complaint

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concluded “since I never received any kinds of inspection notices, I should not

have been charged” $4,970.22.

On February 14, 2023, the City filed a demurrer to the complaint.1 The

City argued that Li failed to state any facts sufficient to constitute a cause of

action (Code Civ. Proc., § 430.10, subd. (e)) on multiple grounds: she failed to

exhaust her administrative remedies, waived any opportunity to challenge

the alleged fines and penalties by failing to appear at an administrative

hearing regarding the fees, the claims were barred by res judicata, and she

failed to plead any statutory basis for the lawsuit. The City also contended

that the complaint was uncertain (Id., subd. (f).), and that to the extent Li’s

allegations appeared to be based on actions taken by code enforcement

officers, it was immune because the actions were discretionary decisions

made by City employees.

Li did not file a written opposition to the demurrer nor did she contest

the tentative ruling.

On March 16, 2023, the trial court sustained the demurrer with leave

to amend because the complaint failed to adequately identify what cause(s) of

action were being brought against the City, and failed to state sufficient facts

to constitute a cause of action. The order explained that Li “will need to

clearly identify the causes of action in any amended complaint and the

alleged facts that support those causes of action,” and she will “also need to

allege facts that establish liability outside of governmental immunity based

on discretional decisions,” citing Government Code sections 820.4, 815.2, and

1 In connection with its demurrer, the City filed a request for judicial

notice that included many documents providing additional background on

this matter. The trial court did not rule on the request for judicial notice and

did not rely on it in ruling on the demurrer. Nor do we in this appeal.

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821.6, and Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 461. The

court gave Li 30 days from the date of the order to file and serve an amended

complaint. Li filed a written request for an extension of time to May 14,

which the trial court granted. The request was made by Li, in her words,

“[d]ue to plaintiff’s lack of knowledge of laws and language barrier, plaintiff

has a difficult time to write an amended complaint, which was ordered by

Judge . . . on [date] . . . .”2

On May 16, Li filed a first amended complaint with 11 enumerated

causes of action. The essential factual allegation that can be gleaned from

the amended pleading is that Li did not receive notice from the City of a code

enforcement inspection on February 8, 2022, and that because of the lack of

notice she was assessed improper fees, fines and penalties, and suffered

$200,000 in “ damages and injury; emotional distress.” The 11 causes of

action were identified as: “violation of Gov. Code 843.17 – failure to give

notice and lack of information”;3 “a taking” in violation of Article I, section 19

of the California Constitution; “deprivation of property” in violation of Article

I, section 7 of the California Constitution; conversion; unjust enrichment;

negligence; accounting; “Gov Code Section 818.4, 821.2”4; “due process

2 At the initial case management conference, Li requested the

assistance of a Mandarin interpreter at the next case management

conference. The minutes from the next case management conference on May

23, 2023, show that Li appeared and was assisted by a Mandarin interpreter.

3There is no such section in the Government Code. Li may have been

referencing 30 Code of Federal Regulations section 843.17, entitled “Failure

to give notice and lack of information,” which has no relevance here.

4 The entire text of this cause of action is “Building official has no

mandatory duty to issue any particular fees, fines, and penalties at all, so

that building official retained no further discretion to withhold the money

from the homeowner.”

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rights”; retaliation – “violations of California Civil Code Section 1942.5”5; and

intimidation. (Capitalization omitted.)

In her Ninth Cause of Action for due process, the substance of Li’s

allegation was that the City “did not send the plaintiff a notice of intent to do

an inspection, and the notice did not reach the plaintiff. Plaintiff’s ‘NO

SHOW’ caused damages of $5,054.72; Under these circumstances, the city

violated the plaintiff’s Due Process Rights by failing to provide adequate

notice prior to the inspection. Plaintiff received no notice from the city had

commenced any proceeding to the property.”

In her Tenth Cause of Action for “Retaliation,” Li alleged that

“Plaintiff’s property and neighbor’s property got big fire on 08-05-2021,” and

the “subject property got fired damages.” She “made requests for

administrative hearing and asked for the refund of the fees and penalties;

Plaintiff never refused any administrative hearing; The hearing letter was

mail out to a Postal Annex Mail Box, the worker might misplaced the letter

to other customer’s P.O. Box; This matter always happened in the past since

the worker is almost eighty years old guy. In particular, Plaintiff

consistently exercised her right to request another administrative hearing,

but the administrative hearing request was denied.”

On July 21, the City demurred to the first amended complaint on

multiple grounds: Li’s claims were outside the scope of a permissible

amended complaint, barred by res judicata, failed to state sufficient facts to

constitute a cause of action, and the City was immune because the actions

taken by code enforcement officers were discretionary decisions made by City

5 Civil Code section 1942.5 addresses retaliatory eviction and a lessor’s

unlawful retaliation against a lessee. Li does not allege anything in the First

Amended Complaint about a lessor or lessee.

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employees. Once again, Li did not file any written opposition to the

demurrer.

The trial court issued a tentative ruling sustaining the demurrer with

leave to amend. The tentative ruling was contested (the record does not

make clear by whom); Li did not appear at the hearing, but the City did. The

trial court heard argument from the City and then the court affirmed the

tentative ruling but modified it to deny leave to amend. After recounting the

procedural history of the case, the trial court wrote: “The First Amended

Complaint filed on May 16, 2023, alleges eleven (11) causes of action.

Plaintiff generally alleges that Hayward failed to give Plaintiff proper notice

regarding inspections at the residential property located . . . in Hayward,

California, and improperly imposed monetary penalties. However, the First

Amended Complaint still fails to allege facts to establish liability outside of

governmental immunity based on discretional decisions.” Li now appeals

from the judgment of dismissal after the demurrer was sustained.

DISCUSSION

In reviewing a trial court’s order sustaining a demurrer, “we examine

the complaint de novo to determine whether it alleges facts sufficient to state

a cause of action under any legal theory.” (McCall v. PacifiCare of California,

Inc. (2001) 25 Cal.4th 412, 415.) “We construe the complaint in a reasonable

manner and assume the truth of properly pleaded factual allegations that are

not inconsistent with other allegations, exhibits, or judicially noticed facts.

[Citation.] We need not accept as true, however, contentions, deductions, or

conclusions of fact or law.” (State ex rel. Edelweiss Fund, LLC v. JPMorgan

Chase & Company (2023) 90 Cal.App.5th 1119, 1134 (Edelweiss Fund).) The

appellant “must demonstrate the court erroneously sustained the demurrer

and ‘must show the complaint alleges facts sufficient to establish every

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element of each cause of action.’ ” (Liapes v. Facebook Inc. (2023) 95

Cal.App.5th 910, 919, quoting Rakestraw v. California Physicians’ Service

(2000) 81 Cal.App.4th 39, 43.) Where the trial court has sustained a

demurrer without leave to amend, we review that determination for abuse of

discretion. (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) An abuse

of discretion is established if we find “there is a reasonable possibility the

plaintiff could cure the defect with an amendment.” (Schifando v. City of Los

Angeles (2003) 31 Cal.4th 1074, 1081.) Under both of these standards, the

appellant “bears the burden of demonstrating that the trial court erred.”

(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.)

Leave to amend may be requested for the first time on appeal in the

reviewing court if a party demonstrates how the amendment would permit

her to state a cause of action or cure a complaint’s defects. (Denny v. Arntz

(2020) 55 Cal.App.5th 914, 920.) But this requires the party to “clearly and

specifically set forth the ‘applicable substantive law’ [citation] and the legal

basis for amendment, i.e., the elements of the cause of action and authority

for it,” and all specific factual allegations for the claim. (Rakestraw v.

California Physicians’ Service, supra, 81 Cal.App.4th at p. 43.)

“ ‘[T]o demonstrate error, an appellant must supply the reviewing court

with some cogent argument supported by legal analysis and citation to the

record.’ ” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)

Further, “ ‘[w]e are not obliged to make other arguments for [appellant]

[citation], nor are we obliged to speculate about which issues [appellant]

intend[ed] to raise.’ ” (Ibid.) We treat a party who represents herself on

appeal the same way we would treat any represented party or attorney.

(Denny v. Arntz, supra, 55 Cal.App.5th at p. 920.)

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From the argument headings in her opening brief, Li appears to raise

four points on appeal: (1) the City violated her due process rights by failing

to provide adequate notice; (2) the City’s notice practices violate state and

federal law for violation of California’s Bilingual Services Act and potential

violation of Title VI of the Civil Rights Act; (3) the trial court erred in

sustaining the demurrer without leave to amend; and (4) the administrative

hearing does not bar Ms. Li’s claims. Li did not file a reply brief on appeal.

Causes of action not addressed in Li’s opening brief

At the outset, we note that of the 11 causes of action in the first

amended complaint, on appeal Li addresses only one of them—the ninth

cause of action for violation of due process. Although she asserts that the

trial court erred in sustaining the demurrer without leave to amend, as to the

10 unaddressed causes of action, she does not specifically discuss any of them

or explain what facts she can allege to state a cause of action in the face of

the trial court sustaining the demurrer as to each of them. Accordingly, we

find that Li has abandoned her claims to these 10 unaddressed causes of

action and forfeited any argument that the court erred in sustaining the

demurrer without leave to amend as to them. (Alborzi v. University of

Southern California (2020) 55 Cal.App.5th 155, 184 [where “a demurrer is

sustained without leave to amend, the appellant’s failure to address certain

causes of action in the complaint is deemed an abandonment of those causes

of action”].) Because she has waived any argument as to these 10 causes of

action, we will not address them further. (Badie v. Bank of America (1998)

67 Cal.App.4th 779, 784–785 [“When an appellant fails to raise a point, or

asserts it but fails to support it with reasoned argument and citations to

authority, we treat the point as waived”].)

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Ninth Cause of Action for Due Process

As to Li’s first argument on appeal—her due process claim—she raises

three points: (1) that the City improperly sent the notice to a post office box

instead of Li’s primary residence; (2) that the City failed to provide any

notices or communications in her native language, effectively denying Li

meaningful access to the code enforcement process; and (3) that Li never

received notice regarding the inspections despite the City’s claims to the

contrary.

“Both the United States and the California Constitutions guarantee

that government may not deprive an individual of ‘life, liberty, or property,

without due process of law.’ (U.S. Const., 5th & 14th Amends.; Cal. Const.,

art. I, § 7.) To determine whether a governmental deprivation implicates the

requirements of due process, ‘we must look to see if the interest is within the

Fourteenth Amendment’s protection of liberty and property.’ ” (Traverso v.

People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1160 (Traverso),

quoting Board of Regents v. Roth (1972) 408 U.S. 564, 571.) “ ‘The

Fourteenth Amendment speaks of “property” generally.’ (Fuentes v. Shevin

(1972) 407 U.S. 67, 90.) In interpreting this term, the United States Supreme

Court has consistently recognized that due process concerns are implicated

whenever the state acts to deprive an individual of an interest in the use of

real or personal property, using that term in its ‘colloquial sense.’ ”

(Traverso, at p. 1160.) The California Supreme Court has “likewise

recognized a protectible interest in tangible personal property, including

property subject to seizure and/or destruction pursuant to local ordinance or

statute.” (Ibid.) Indeed, in its respondent’s brief, the City acknowledges

that, “[g]enerally, the City is obligated to give notice reasonably calculated

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under all the circumstances. [Citations]. If reasonable efforts to provide

notice are made then due process is satisfied, even if notice is not received.”

In her first amended complaint, Li alleges her due process rights were

violated because the City did not send her a notice of the February 8, 2022

inspection, she never received any notice regarding the inspection, and that

she never received notice that the City had commenced any proceedings

against the property such that her “no show” at the inspection caused her

damages of over five thousand dollars. The monetary damages (i.e. the fines

and fees for failure to show at the inspection) alleged by Li constitute a

sufficient property interest to trigger due process protections. To adequately

plead a claim, a plaintiff must allege ultimate facts that apprise a defendant

of the claim’s factual basis. (Davaloo v. State Farm Ins. Co. (2005) 135

Cal.App.4th 409, 415.) Li has articulated additional specific allegations in

her opening brief, consistent with her theory of the case, sufficient to permit

her leave to amend this cause of action. We will reverse the judgment to

allow her to do so.

We note that the City’s response on appeal to Li’s due process cause of

action, as currently plead, is unpersuasive. First, the City claims that the

first amended complaint is contradictory as to whether Li received notice,

comparing the allegations of paragraph 39 (the due process claim) and

paragraph 42 (the retaliation claim described above). Although we conclude

that it was not error to sustain the demurrer as to the retaliation claim

because it was not raised in Li’s opening brief on appeal, we do not discern at

this stage that the paragraphs are necessarily contradictory. Second, as is

the case with most of the City’s brief on appeal, the City’s argument

regarding due process is premised on its view of the merits, based on what it

describes as the “judicially noticed record provided in Respondent’s

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demurrer,” which, as we have noted, was never ruled on nor relied on by the

trial court, and not properly before us. At this stage of the proceeding, we

must accept as true the material facts alleged in the first amended complaint,

as best we understand them: namely that Li did not receive notice of the

inspection or the hearing and did not have the opportunity to be heard. (See

Edelweiss Fund, supra, 90 Cal.App.5th at p. 1134.)

Li’s Arguments for Leave to Amend

Li’s second argument on appeal addresses her request to this court for

leave to amend the first amended complaint to allege apparently new causes

of action. She asserts for the first time that the City’s “notice practices

violate state and federal law” for “violation of California’s Bilingual Services

Act” and “potential violation of Title VI of the Civil Rights Act.”

(Capitalization omitted, italics added.) She does little more than name the

statutes (and in the case of the California statute, fails even to provide a

citation) and assert that she is “a limited English proficient (LEP) Mandarin

speaker.” This is the sum of the argument. It is insufficient to demonstrate

how Li’s complaint may be amended to state these causes of action.

(Rakestraw v. California Physicians’ Service, supra, 81 Cal.App.4th at p. 43.)

Li’s third argument on appeal reiterates that it was error to sustain the

demurrer without leave to amend and focuses on her due process cause of

action. We have already addressed this by our ruling that Li should be

permitted to amend her ninth cause of action.

We need not address Li’s final argument that the administrative

hearing, apparently held on December 8, 2022, does not bar her claims under

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principles of res judicata and collateral estoppel, in light of our ruling

permitting her leave to amend the due process cause of action.6

DISPOSITION

The judgment of dismissal is reversed. The matter is remanded with

instructions to vacate the order sustaining the demurrer without leave to

amend and to enter a new order sustaining the demurrer with leave for Li to

amend her complaint to allege, if she is able, a cause of action against the

City for violation of due process. The parties shall bear their own costs of

appeal, if any.

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P. J.

_________________________

Richman, J.

6 Nor do we address the City’s claim about governmental immunity for

discretionary acts of City employees, since the City did not raise that

argument on appeal in connection with Li’s ninth cause of action for due

process based on the claim that she did not receive any notice at all.

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