City of Fairfield v. Dayton CA1/4

Filed 10/30/20 City of Fairfield v. Dayton CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

CITY OF FAIRFIELD et al.,

Plaintiffs, Cross-defendants and

Respondents, A156976

v. (Solano County

EDWARD R. DAYTON, Super. Ct. No. FCS048898)

Defendant, Cross-complainant

and Appellant.

Cross-complainant Edward R. Dayton appeals the judgment entered in

favor of cross-defendants City of Fairfield and the City of Fairfield Police

Department (collectively the city), and individual cross-defendant City

Building Official David Doyle on Dayton’s cross-complaint for damages

arising out of the city’s abatement of a public nuisance on Dayton’s property. 1

We conclude that the trial court properly sustained without leave to amend a

demurrer to the majority of Dayton’s claims, including but not limited to,

those claims based on alleged violations of the United States and California

Constitutions. However, the complaint sufficiently alleges a claim for

Although the cross-complaint also names former City Code

1

Enforcement Supervisor David James as an individual defendant, it does not

appear that he appeared in the proceedings and he is not named in the

judgment.

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conversion under state law against the city. Accordingly, we reverse the

judgment and remand for limited proceedings on Dayton’s conversion claim.

Background

According to the cross-complaint, in June 2016, James issued Dayton a

preliminary order to abate a public nuisance on his residential property. In

July 2016, James inspected the property under a warrant issued by a Solano

County Superior Court judge. Following the inspection, the city held a

nuisance abatement hearing, at which the hearing officer issued an order to

abate the public nuisance. In August 2016, the abatement order was upheld

following Dayton’s appeal to the city council.

In September 2016, the city applied for and obtained an abatement

warrant from the Solano County Superior Court authorizing the city to enter

onto Dayton’s property and “abate any and all violations and hazards,

including but not limited to storage on unimproved surfaces, an accumulation

of trash and debris, an accumulation of solid waste, abandoned furniture, and

encroachment onto city property.”

Over the course of three days in September, James executed the

abatement warrant at Dayton’s property, removing and disposing of Dayton’s

items stored throughout the front, back and side yards of the property.

In December 2016, the city obtained an inspection warrant based on

James’s declaration that during the abatement in September he observed

evidence of a rodent infestation at the property. In January 2017, after the

inspection, Doyle issued a notice of restricted entry. The notice was appealed,

resulting in a stay of enforcement.

In May 2017, the city filed the present action against Dayton seeking

an injunction enjoining him from maintaining his property as a public

nuisance. Thereafter, Dayton filed a cross-complaint alleging 12 causes of

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action for various violations of federal and state law arising out of the city’s

seizure of his personal property during the abatement in September 2016 and

the issuance of the notice of restricted entry in December 2016.

The trial court sustained the city’s demurrer without leave to amend on

the grounds that the cross-defendants are immune from liability for the

alleged violations of federal law and that the cross-complaint fails to allege a

cause of action under state law.

Following trial on the city’s action, the trial court entered judgment in

favor of the city and issued an injunction enjoining Dayton from maintaining

a public nuisance on his property. Dayton timely filed a notice of appeal.

Discussion

On appeal, Dayton challenges only the court’s order sustaining the

demurrer without leave to amend as to causes of action 1 through 8 and 10.2

“The function of a demurrer is to test the sufficiency of the complaint by

raising questions of law. [Citation.] Demurrers are treated as admitting the

truthfulness of all properly pleaded factual allegations of the complaint, but

not of its contentions, deductions or conclusions of law. [Citations.] In ruling

on a demurrer, the court is entitled to consider matters which may be

judicially noticed. [Citation.] [¶] A general demurrer should not be sustained

without leave to amend if the complaint, liberally construed, states a cause of

action on any theory.” (Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1, 6–7.)

2 Dayton’s conclusory statement that “his right to privacy in his

complaint [cause of action 9] was also violated by [Code Enforcement

Supervisor] David James during the abatement by allowing private

contractors to photograph appellant’s curtilage areas without appellant’s

permission” is insufficient to challenge the court’s ruling on the ninth cause

of action. The opening brief includes no arguments regarding the eleventh

and twelfth causes of action.

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1. Causes of Action 1 through 7

The first seven causes of action allege that during the execution of the

abatement warrant, the city’s contractor, while under James’s supervision

and direction, unlawfully removed and permanently disposed of certain items

of personal property that were stored within the curtilage of his property “not

in public or private view and stored on an improved surface.” The cross-

complaint alleges that James did not use “due care” in execution of the

abatement warrant and that the removal of the identified personal property

was not authorized by the warrant as these items were not stored in violation

of the city’s nuisance statute.

The cross-complaint appears to allege three theories of liability based

on James’s failure to use “due care” in executing the warrant: a state law

claim for conversion; a claim for violation of his federal civil rights (42 U.S.C.

§ 1983)3; and a claim for unlawful search and seizure and violation of the

right to due process under sections 7 and 13 of Article 1 of the California

Constitution.

a. Conversion

“ ‘ “ ‘The elements of a conversion claim are: (1) the plaintiff’s

ownership or right to possession of the property; (2) the defendant’s

conversion by a wrongful act or disposition of property rights; and

(3) damages.’ ” ’ ” (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 551.)

The city may be held vicariously liable for injury proximately caused by

James acting within the scope of his employment. (Gov. Code, § 815.2,

subd. (a).)

On appeal, the city argues, “[T]the warrants issued by Solano County

Superior Court judges were all valid. The City abated nuisances under these

3 All references to section 1983 are to title 42 of the United States Code.

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lawful warrants. Dayton cannot establish that Respondents’ disposal of his

junk and trash was wrongful.” While Dayton’s cross-complaint is undoubtedly

confusing, reasonably understood, it faults James not merely for executing

the warrant, but for failing to distinguish between items that were properly

subject to abatement as a nuisance under the terms of the warrant and items

that should have been left behind.4

The cross-complaint alleges that specific items were wrongly removed

because those items were not stored in a manner that violated the city’s

public nuisance code, the removal of which therefore was not authorized by

the abatement warrant. As relevant here, the city’s public nuisance statute

declares the following to be a public nuisance: “[a]n accumulation of lumber,

junk, garbage, trash, debris, salvage materials which are visible from public

or private property or otherwise in violation of this code” (Fairfield Mun.

Code, § 27.401, subd. (f)); “[a]bandoned, discarded or unused furniture,

appliances, sinks, toilets, cabinets or other fixtures or equipment stored in a

place visible from public or private property” (Fairfield Mun. Code, § 27.401,

subd. (g)); and “[p]arking of a vehicle, trailer, camper, or storage of other

personal property on private property on other than a surface of asphalt,

concrete, inter locking paving stones, brick, flagstone or other similar all

weather material which would prevent the accumulation of weeds and other

conditions which constitute a hazard” (Fairfield Mun. Code, § 27.401,

subd. (n)). The cross-complaint alleges that each of the listed items were “not

in public or private view” and were “stored on an improved surface.”

4Dayton confirmed in the trial court that the validity of the warrant “is

not what is at issue here. The issue here is David James . . . not ‘exercising

due care’ in his execution of the warrant.”

5

The city’s argument on appeal does not meaningfully address the

conversion theory.5 In Ogborn v. City of Lancaster (2002) 101 Cal.App.4th

448, 462, the court recognized a claim for conversion under similar facts. In

that case, tenants sued the city and individual city officials for conversion

after the city demolished their rental home and its contents as part of a

nuisance abatement program. (Id. at p. 453.) The court held that the city

employee who issued the abatement warrant was immune for liability under

Government Code section 820.2, but that the employee who executed the

warrant was not. (Id. at p. 461.) The court further rejected the city’s

argument that it was immune under section 820.4 which provides, “A public

employee is not liable for his act or omission exercising due care, in the

execution or enforcement of any law.” The court explained that “a question of

fact exists as to whether [the employee’s] reliance on the warrant constituted

‘due care’ with respect to the handling of the Ogborns’ personal property. The

Ogborns presented evidence that [the employee] stymied their efforts to save

their personal property, and a trier of fact could find he failed to exercise due

care when he ordered the bulldozers to go ahead without giving the Ogborns

a chance to retrieve their belongings.” (Id. at p. 462.)

Here, Dayton’s complaint alleges a lack of due care sufficient to defeat

the city’s demurrer. Accordingly, the trial court erred in sustaining the city’s

5 The city’s failure to do so is curious because this is not the first

litigation between the parties arising out of the abatement of a nuisance on

Dayton’s property. In Dayton v. James (June 5, 2014, A134881), a

nonpublished opinion, another division of this court upheld rulings

sustaining a demurrer to most of the causes of action in a similar cross-

complaint against the city and affirming summary judgment in favor of the

city on a conversion cause of action. The court noted that the conversion

cause of action was not dismissed on demurrer because of the allegation that

items were removed “from an area not specifically covered by the abatement

warrant.”

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demurrer to the first through seventh causes of action insofar as they purport

to allege a claim for conversion against the city. However, because these

causes of action include no allegation regarding alleged misconduct by Doyle,

the court properly sustained the demurrer to these claims as against him.

b. Section 1983

Section 1983 provides: “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to

be subjected, any . . . person . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress . . . .” To state a claim under section 1983, “ ‘ “a plaintiff must allege

the violation of a right secured by the Constitution and laws of the United

States, and must show that the alleged deprivation was committed by a

person acting under color of state law.” ’ ” (Julian v. Mission Community

Hospital (2017) 11 Cal.App.5th 360, 384.)

As set forth above, the complaint does not allege any specific

wrongdoing by Doyle under these causes of action. While the cross-complaint

alleges that James failed to exercise due care in executing the abatement

warrant, the city “ ‘cannot be held vicariously liable under section 1983 for

[its] subordinate officers’ unlawful acts.” (Julian v. Mission Community

Hospital, supra, 11 Cal.App.5th at p. 384.) While a city can be sued directly

under section 1983 where “ ‘ “ ‘the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted,’ ” ’ ” the complaint does not allege

that the harm was caused by an official city act. (Ogborn v. City of Lancaster,

supra, 101 Cal.App.4th at pp. 463-464, citing Monell v. New York City Dept.

of Social Services (1978) 436 U.S. 658, 690.) Dayton is correct that the city’s

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resolution upholding the determination that the property constituted a

nuisance is a “decision officially adopted.” As discussed above, these causes of

action do not challenge the validity of that decision, only the manner in which

it was executed. Accordingly, the trial court correctly determined that the

first seven causes of action fail to allege a section 1983 claim against the

city.6

2. Cause of Action 8

The eighth cause of action alleges that on January 19, 2017, Doyle

issued a “Notice of Restricted Entry” and thereafter, on February 8, 2017,

James posted the notice on Dayton’s property. Although the notice was

stayed on February 16 after Dayton filed an appeal, Dayton allegedly was

prevented from entering his home for eight days between February 8 and 16.

The complaint alleges that the notice was issued in violation of Health and

Safety Code section 17980, subdivisions (a) and (c)(1), and that the unlawful

issuance of the notice amounted to an abuse of process and violation of his

right to due process under the federal and state Constitutions. On appeal,

Dayton clarifies that the eighth cause of action seeks to assert a section 1983

claim against Doyle based on his unlawful interference with his “right to

‘Liberty’ as guaranteed by the 5th and 14th Amendments to the United States

Constitution.”7

Dayton’s conclusory statement in his opening brief that James’s

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actions are also actionable under the California Constitution is insufficient to

preserve the issue on appeal. Accordingly, we affirm the trial court’s finding

that Dayton’s first through seventh causes of action fail to state a claim for

violation of his rights under the California Constitution.

Dayton offers no argument regarding any purported liability of the

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city under section 1983. To the contrary, he acknowledges that “no

administrative hearing nor any judicial hearing on the need to issue the

8

“Government officials enjoy qualified immunity from civil damages

unless their conduct violates ‘clearly established statutory or constitutional

rights of which a reasonable person would have known.’ ” (Mitchell v.

Washington (9th Cir. 2016) 818 F.3d 436, 443.) “To be clearly established, a

right must be sufficiently clear ‘that every “reasonable official [would have

understood] that what he is doing violates that right.” ’ ” (Reichle v. Howards

(2012) 566 U.S. 658, 664.)

Here, the cross-complaint alleges that Doyle violated his right to

“liberty” by issuing the notice in violation of requirements of the Health and

Safety Code. As discussed below, the notice itself demonstrates compliance

with the statutory requirements.8 Accordingly, Doyle is entitled to immunity

because a reasonable official would not have understood that issuing the

notice would violate Dayton’s rights.

Subdivision (a) of Health and Safety Code section 17980 authorizes a

city to abate a nuisance. Subdivision (c) authorizes the city to require

vacating a building which it has determined to be a nuisance if it

concurrently requires expeditious repair or abatement of the nuisance.9 Here,

Restricted Entry Notice was held prior to the issuance of the notice (nor

afterwards).”

8 The city requested the trial court take judicial notice of the notice of

restricted entry. Dayton did not oppose the request in the trial court and has

not raised any argument regarding judicial notice on appeal.

9 Health and Safety Code section 17980, subdivision (c) reads in

relevant part: “(1) Whenever the enforcement agency has inspected or caused

to be inspected a building and has determined that the building is a

substandard building or a building described in Section 17920.10, the

enforcement agency shall commence proceedings to abate the violation by

repair, rehabilitation, vacation, or demolition of the building. The

enforcement agency shall not require the vacating of a residential building

unless it concurrently requires expeditious demolition or repair to comply

with this part, the building standards published in the California Building

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the notice states that entrance was being restricted because it had been

determined that the house constituted a substandard building under Health

and Safety Code section 17920.3, subdivision (a)(12) due to a rodent

infestation. The notice indicates the city’s intent to summarily abate the

infestation pursuant to section 27.901 of the city’s Municipal Code, which

authorizes summary abatement if there exists a condition on the premises

that poses an imminent threat to public health. Because the notice was

issued in conformity with the governing statutes, Doyle is entitled to

qualified immunity. Accordingly, the trial court properly found that the

eighth cause of action fails to state a claim for relief under section 1983.10

3. Cause of Action 10

The tenth cause of action is largely incomprehensible. It alleges, “The

[city’s] application for and execution of ‘Abatement Warrant 2275’ was

unlawful and was therefore a violation of [Dayton’s] civil rights. [Fairfield

Municipal Code] section 27.507(e) requires the hearing examiner to state the

results of an inspection of . . . the property in the record and then give [the

owner] the opportunity to rebut the facts and conclusions. This was not done

as part of the ‘Inspection Warrant 2230’ and hearing conducted on 11 July

2016 . . . . The hearing examiner relied upon the facts of the inspection in

order to draw his conclusions [on] which of the ‘Preliminary Notice to Abate’

violations were present, so as to issue an ‘Order to Abate Nuisance’ such

nuisances. The facts and conditions used in the [housing enforcement]

decision could not be lawfully used by him to make a determination as to the

Standards Code, or other rules and regulations adopted pursuant to this

part.”

10 As with the prior causes of action, Dayton has waived his claims for

violation of the California Constitution or other state law by failing to provide

sufficient argument in his opening brief.

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condition of [the] real property. This is a violation of due process under the

United States Constitution Amendment 5 and 14. This is also actionable

under the California Constitution Article 1 section 7.” On appeal, Dayton

clarifies that his claim is that the abatement order was issued in violation of

his right to due process because (1) the hearing officer relied on inadmissible

evidence and (2) he was not given notice and an opportunity to be heard with

respect to the items at issue in the first seven causes of action which he

asserts were not stored in violation of the city’s nuisance statute.11

To maintain an action under section 1983 based on a violation of

procedural due process, Dayton must allege that: (1) his property interest at

stake is a protected property right under the Fourteenth Amendment, (2) the

deprivation of the interest contravened notions of due process, and (3) state

or administrative processes and remedies to redress the alleged violation are

inadequate. (Jefferson v. Jefferson County Pub. Sch. Sys. (6th Cir.2004) 360

F.3d 583, 588 [“Plaintiff may not seek relief under Section 1983 without first

pleading and proving the inadequacy of state or administrative processes or

remedies to redress her due process violations.”].) Dayton’s cross-complaint

does not allege, and cannot be amended to allege, that the administrative

processes and remedies to redress the alleged violation are inadequate. The

hearing officer’s order was appealed to and affirmed by the city council.

Dayton’s failure to further challenge that decision precludes his section 1983

11 Neither the allegations of the cross-complaint nor Dayton’s argument

on appeal suggest that Dayton was attempting to allege a section 1983 claim

against Doyle. Accordingly, we consider the tenth cause of action as seeking

relief against the city only.

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claim. Accordingly, the trial court properly sustained without leave to amend

the demurrer to the tenth cause of action.12

Disposition

The judgment is reversed insofar as it dismissed Dayton’s cross-claim

for conversion against the city. On remand, limited proceedings should be

permitted to resolve only Dayton’s claim that James failed to exercise due

care in the execution of the abatement warrant.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

12 Therefore it is unnecessary to address whether other elements of a

section 1983 claim could properly be alleged under the circumstances.

12