Petition for Writ of Certiorari — Daniel James Altstatt, Petitioner v. City of Sacramento, California

App. 1

SUSANA ALCALA WOOD, City Attorney

(SBN 156366)

ANGEL A. SOLIS, Deputy City Attorney

(SBN 308016)

CITY OF SACRAMENTO

915 I Street, Room 4010

Sacramento, CA 95814-2608

Telephone: (916) 808-5346

Fax: (916) 808-7455

Attorneys for the CITY OF SACRAMENTO

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

CITY OF SACRAMENTO, Case No.:

34-2015-00184866

a municipal corporation,

JUDGMENT BY COURT

AFTER DEFAULT

vs.

ISSUING PERMANENT

DANIEL J. ALSTATT, and INJUNCTION AND

DOES 1 - 20 inclusive,

AWARDING CIVIL

PENALTIES

Defendants.

APN: 008-052-0800-0000

Plaintiff,

(Filed Mar. 11, 2020)

In this action, Defendant DANIEL J. ALSTATT

(also known as Daniel J. Altstatt), having been sued

herein for equitable relief and civil penalties, having

been personally served with the summons and complaint, having failed to answer the complaint within

the time allowed by law, and upon application by Plaintiff, default of said Defendant having been entered.

App. 2

I. The Court finds that Defendant DANIEL J.

ALSTATT is the owner of 4432 H Street, Sacramento,

California, County Assessor’s Parcel Number 008-0520800-0000 (“Subject Property”), and is more particularly described as follows:

LOT 93 AS SHOWN ON THE “PLAT OF

MONT CLAIR OR BROOKE REALTY COMPANY’S SUBDIVISION NO. 106” RECORDED

TN THE OFFICE OF THE COUNTY RECORDER OF SACRAMENTO COUNTY, NOVEMBER 28, 1906, IN BOOK 7 OF MAPS,

MAP NO. 31.

II. Judgment is hereby rendered in favor of

Plaintiff CITY OF SACRAMENTO, it is HEREBY ORDERED that:

A. Defendant DANIEL J. ALSTATT pay Plaintiff

CITY OF SACRAMENTO civil penalties pursuant to

Sacramento City Code section 8.04.080(B) of two-hundred and fifty dollars ($250.00) per day commencing on

November 2, 2014, and continuing through December

12, 2017, for a total of $284,000.00.

B. Defendant DANIEL J. ALSTATT pay Plaintiff

CITY OF SACRAMENTO civil penalties pursuant to

Sacramento City Code section 8.100.170(A) of twohundred and fifty dollars ($250.00) per day commencing on November 2, 2014, and continuing through December 12, 2017, for a total of $284,000.00.

III. The Court having found that good cause exists to issue a Permanent Injunction against Defendant

App. 3

DANIEL J. ALSTATT, hereby further orders the following:

DANIEL J. ALSTATT shall be and hereby is permanently enjoined and restrained from:

A. Violating any and all applicable building, health,

fire, and safety codes, regulations, ordinances, and

laws in connection with the Subject Property;

B. Refusing or failing to carry out, in a proper

and workmanlike manner, all corrections needed to

clean and maintain the Subject Property;

C. Storing, causing or allowing to be stored,

parking, causing or allowing to be parked, any vehicles

and/or trailers of any type on any unimproved surface

or portion of any unimproved surface of the Subject

Property, including but not limited to the front, side,

and rear yards of the Subject Property; and

D. Impeding, interfering, hindering, or otherwise

obstructing any investigation undertaken by a law enforcement or regulatory agency.

DANIEL J. ALSTATT shall be and hereby is required and mandated to:

A. Abide by all laws and manage the Subject

Property in a manner that enhances the peace and

quiet of the surrounding neighborhood and discourages nuisance behaviors such as loud noises, visual

blight, and keeping of junk and debris;

App. 4

B. Conduct and perform routine inspections of

the Subject Property to ensure that all nuisance conditions and/or activities are prevented from occurring.

IV. It is further ordered that, in the event Defendant DANIEL J. ALSTATT fails to keep the Subject

Property free of the nuisance conditions, Plaintiff may

lodge a proposed order by which a receiver shall be appointed to take possession, custody, and control of the

Subject Property to remove, repair, and/or abate all violations existing thereon. An appointed receiver shall

have all powers enumerated under California Code of

Civil Procedure section 568 and California Health and

Safety Code section 17980.7.

V. It is further ordered that Defendant DANIEL

J. ALSTATT pay Plaintiff CITY OF SACRAMENTO

reasonable attorney’s fees pursuant to Sacramento

City Code section 1.28.040 in the amount of FIVE

THOUSAND DOLLARS ($5,000.00).

DATED: 3-11-2020

[SEAL] /s/ Christopher E. Krueger

JUDGE OF THE

SUPERIOR COURT

CHRISTOPHER E. KRUEGER

App. 5

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Sacramento)

---CITY OF SACRAMENTO,

Plaintiff and

Respondent,

v.

C092141

(Super. Ct. No.

34201500184866CUMCGDS)

(Filed May 18, 2022)

DANIEL JAMES ALTSTATT,

Defendant and

Appellant.

Defendant Daniel James Altstatt appeals from a

default judgment entered against him in plaintiff City

of Sacramento’s (City) action for civil penalties and injunctive relief based on a public nuisance. The City asserts defendant’s appeal should be dismissed because

he fails to comply with fundamental appellate requirements. Although defendant’s briefing is flawed, we will

nevertheless address his arguments.

App. 6

Defendant, representing himself, now contends (1)

the civil penalties imposed were constitutionally excessive in violation of the Eighth Amendment, (2) reversal

is necessary based on accusations defendant makes

against the City and the trial court, (3) the trial court

violated his due process rights, and (4) the trial court

abused its discretion by not setting aside the default

judgment. Concluding that defendant’s contentions

lack merit, we will affirm the judgment.

BACKGROUND

Defendant owned residential property in Sacramento, which he maintained in a manner that created

a severe public nuisance. In 2014, the City began enforcement efforts to require defendant to remedy multiple code violations, but defendant did not take the

necessary actions. Instead, defendant insisted that the

City cease its code enforcement activities.

After further unproductive enforcement efforts,

the City filed a complaint in 2015 based on public

nuisance, seeking civil penalties and injunctive relief. Defendant was personally served. Defendant filed

numerous requests, demands, objections, motions, and

notices in response to the complaint. Twice, defendant

attempted to remove the action to federal court, and in

each instance the case was remanded to the state trial

court. Despite defendant’s many filings, he never answered the City’s complaint.

On February 1, 2018, defendant’s default was

entered. Twenty months later, on October 29, 2019,

App. 7

defendant filed a motion to set aside the default. He

asserted (1) the default was void because the trial

court lacked personal jurisdiction over him, (2) the City

failed to file a timely request for default, (3) the City

failed to obtain a timely default judgment, (4) there

was extrinsic mistake, and (5) the default was harsh

and unfair under federal law.

The trial court denied defendant’s motion to set

aside the default. It concluded (1) the trial court had

personal jurisdiction over defendant, (2) the rule concerning a timely request for default does not provide

for setting aside a default properly entered, (3) the rule

concerning obtaining a timely default judgment does

not provide for setting aside a default properly entered,

(4) defendant presented no valid argument concerning

extrinsic fraud, (5) defendant’s motion to set aside the

default was untimely, and (6) defendant failed to include a copy of the proposed answer or responsive

pleading. The trial court noted but did not address defendant’s argument that the default was harsh and unfair under federal law.

On March 11, 2020, the trial court entered default

judgment against defendant. The judgment imposed a

total of $568,000 in civil penalties for three years of

continuing violations of the Sacramento City Code

and, in essence, permanently enjoined defendant from

maintaining his residential property as a public nuisance. Sacramento City Code section 8.04.080, subdivision (B) provides for civil penalties for nuisance

violations of between $250 and $25,000 per day. The

trial court imposed the minimum of $250 per day.

App. 8

Further, Sacramento City Code section 8.100.170, subdivision (A) provides the same civil penalties for violations of the Housing Code. The trial court again

imposed the minimum $250-per-day penalty. The judgment also provided that the City may lodge a proposed

order appointing a receiver of the property if defendant

fails to keep the property free of nuisance conditions.

Finally, the judgment required defendant to pay the

City $5,000 for attorney’s fees.

DISCUSSION

I

Defendant contends the civil penalties imposed

were constitutionally excessive in violation of the

Eighth Amendment.

“The Eighth Amendment to the United States

Constitution states: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ (Italics added.) ‘[T]he Due

Process Clause of the Fourteenth Amendment to the

Federal Constitution . . . makes the Eighth Amendment’s prohibition against excessive fines and cruel

and unusual punishments applicable to the States. [Citation.] The Due Process Clause of its own force also

prohibits the States from imposing “grossly excessive”

punishments. . . .” [Citation.] [¶] The California Constitution contains similar protections. Article I, section

17, prohibits ‘cruel or unusual punishment’ and ‘excessive fines’; article I, section 7, prohibits the taking of

property ‘without due process of law.’ ” (People ex rel.

App. 9

Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th

707, 727-728.)

Although a default judgment is reviewable on appeal the same as any other civil judgment (Misic v.

Segars (1995) 37 Cal.App.4th 1149, 1153-1154), a defendant may not contest the merits of the case in an

appeal from a default judgment. (Steven M Garber &

Associates v. Eskandarian (2007) 150 Cal.App.4th 813,

823-824 [a default operates as an express admission

of well-pleaded factual allegations in the complaint].)

Instead, the defendant may contest only whether the

trial court had jurisdiction over the defendant, whether

the pleadings were sufficient, and whether the relief

granted exceeds that sought in the pleadings. Defendant may also assert any procedural issues relating to

the entry of default, the default judgment, or motions

for relief from such default. (Id. at p. 824.)

We review de novo a civil penalty for constitutional excessiveness under the Eighth Amendment. In

doing so, we accept the trial court’s factual findings

unless they are clearly erroneous. (Sweeney v. California Regional Water Quality Control Bd. (2021) 61

Cal.App.5th 1093, 1136-1137.) Defendant’s problem

with raising a constitutional excessiveness claim on

appeal is that he did not provide the trial court an opportunity to conduct an excessiveness inquiry or make

factual findings. Even after he defaulted, defendant

could have, but did not, file a motion for new trial. Instead, he filed a motion for reconsideration. A defendant may attack a default judgment in the trial court by

filing a motion for new trial on the ground of excessive

App. 10

damages. (Misic v. Segars, supra, 37 Cal.App.4th at p.

1154.) On the other hand, the trial court is without jurisdiction to entertain a motion for reconsideration after judgment. (Safeco Ins. Co. v. Architectural Facades

Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)

Additionally, defendant filed his notice of appeal before

the hearing set for the motion for reconsideration.

Therefore, having filed no motion for new trial and

having filed his notice of appeal, defendant did not give

the trial court the opportunity to evaluate whether the

civil penalties were constitutionally excessive. Because

we have no factual findings to consider, defendant’s

only prospect of success is to establish that the civil

penalties imposed were constitutionally excessive as a

matter of law under any circumstances.

But defendant does not make such an argument.

Indeed, similar penalties were upheld in a case involving continuing local housing code violations. (City and

County of San Francisco v. Sainez (2000) 77 Cal.App.4th

1302, 1321-1323 [$663,000 in civil penalties for continuing violations not constitutionally excessive].)

In any event, defendant makes no factual argument that the civil penalties were constitutionally

excessive. “ ‘The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle

of proportionality.’ [Citation.] [The principle includes]

four considerations: (1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and (4)

the defendant’s ability to pay. [Citations.]” (People ex

App. 11

rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37

Cal.4th at p. 728.)

Defendant does not attempt to apply these principles to any facts associated with his case. Instead, his

argument concerning excessiveness consists of quoting

various sources concerning excessive fines and then arguing that the civil penalties here are excessive because they are more than the civil penalties imposed

in Timbs v. Indiana (2019) ___ U.S. ___ [203 L.Ed.2d

11]. However, that case does not help defendant because its holding was that the Excessive Fines Clause

of the Eighth Amendment applies to the states. The

United States Supreme Court did not consider whether

the fine in that case violated the Excessive Fines Clause

but instead sent it back to the state court for that determination. (Timbs, at p. ___ [203 L.Ed.2d at pp. 1516, 20].) Accordingly, defendant’s argument that the

civil penalties were unconstitutionally excessive is

without factual or legal support and is without merit.

II

Defendant makes several unfounded and unsupported accusations against the City and the trial court,

contending reversal is therefore necessary. He asserts

the default judgment is a miscarriage of justice and

shocks the judicial conscience. He claims the City’s

code enforcement merely serves to provide revenue for

the City. He argues the City has engaged in predatory

action for unjust enrichment. And he concludes that

App. 12

the trial court is complicit in all of the City’s wrongdoing.

Defendant’s accusations are unfounded because

he fails to cite evidence in the record to support them.

The only evidence he presents is the amount of the

judgment against him. As one example of the failure to

provide supporting evidence, defendant alleges the

judgment will render him “homeless and penniless,”

but he does not provide a citation to the record on appeal to support that allegation. We are not free to accept a party’s assertions of fact on appeal because we

are constrained to review cases based on the appellate

record presented to us. (In re Ketchel (1968) 68 Cal.2d

397, 401.)

Because we must presume the judgment is correct, an appellant bears the burden of overcoming that

presumption by affirmatively demonstrating error and

accompanying prejudice. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) Thus, the appellant must affirmatively show prejudicial error based on citation to

relevant evidence and proceedings in the record. (Keyes

v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)

While we understand that it can be frustrating

for appellants who are self-represented to confine

their arguments to the record on appeal, defendant’s

accusations do not constitute proper argument based

on the evidence in the record and its legal effect. “In

propria persona litigants are entitled to the same, but

no greater, rights than represented litigants and are

presumed to know the [procedural and court] rules.

App. 13

[Citations.]” (Wantuch v. Davis (1995) 32 Cal.App.4th

786, 795.) We reject defendant’s accusations as unfounded on this record.

III

Defendant next contends the trial court violated

his due process rights.

It appears that one of defendant’s specific arguments in this regard is that, because he appeared generally in the actions by making various motions and

other filings, he was not in default. This argument is

without merit because a general appearance is not the

same as an answer to the complaint, and none of defendant’s filings were a substitute for an answer. To

avoid default, a defendant must file either an answer

or a pleading that substitutes for an answer, such as a

demurrer. (Code Civ. Proc., § 585, subds. (a), (b) [authorizing clerk, upon application, to enter the defendant’s default if “no answer, demurrer, [or other

enumerated response] has been filed”].) Defendant did

not make such a filing, so he defaulted on the complaint.

Defendant also argues the default judgment is

void for lack of jurisdiction because the trial court

failed to apply the rules concerning timely requests for

default and for default judgment. Defendant cites California Rules of Court, rule 3.110(g) & (h).

California Rules of Court, rule 3.110(g) provides:

“If a responsive pleading is not served within the time

App. 14

limits specified in this rule and no extension of time

has been granted, the plaintiff must file a request for

entry of default within 10 days after the time for service has elapsed. The court may issue an order to show

cause why sanctions should not be imposed if the

plaintiff fails to timely file the request for the entry of

default.”

In addition, California Rules of Court, rule 3.110(h)

provides: “When a default is entered, the party who requested the entry of default must obtain a default

judgment against the defaulting party within 45 days

after the default was entered, unless the court has

granted an extension of time. The court may issue an

order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment

against a defaulting party or to request an extension

of time to apply for a default judgment within that

time.”

It is undisputed the City did not request entry of

default and obtain a default judgment within the time

prescribed by these rules. However, defendant makes

no argument and cites to no authority for the proposition that the trial court lacks jurisdiction to enter default or default judgment if a plaintiff does not comply

with these rules. An appellate brief must “support each

point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) If a

party fails to cite authority or present argument, the

party forfeits the issue on appeal. (Estate of Cairns

(2010) 188 Cal.App.4th 937, 949.)

App. 15

Finally, defendant argues default judgment was

improper because the City should have filed a motion

for summary judgment. Defendant is mistaken. The

City properly requested entry of default and moved to

obtain default judgment because defendant did not answer the complaint. (Code Civ. Proc., § 585.) Defendant

fails to provide authority for his argument that the

City should have filed a motion for summary judgment.

(Estate of Cairns, supra, 188 Cal.App.4th at p. 949.)

IV

Defendant further contends the trial court abused

its discretion by not setting aside the default judgment.

Defendant’s argument is unfocused and difficult to

discern. He apparently raises anew issues we have already discussed above. We need not discuss them

again.

Defendant also recounts that the trial court

changed its tentative ruling five minutes before the

hearing on the motion for relief from default. He claims

this establishes prejudice, lack of due process, and

abuse of discretion. To the contrary, “[a] tentative ruling is just that, tentative.” (Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1378.) The trial

court may change it before making a final ruling. (In re

Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647.)

It did so here.

App. 16

Any other arguments defendant makes on the issue of abuse of discretion are not sufficiently raised

and supported by authority to merit consideration on

appeal. (People v. Freeman (1994) 8 Cal.4th 450, 482,

fn. 2.)

DISPOSITION

The judgment is affirmed. The City is awarded its

costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/ Mauro

MAURO, J.

We concur:

/s/ Blease

BLEASE, Acting P. J.

/s/ Hoch

HOCH, J.

[Mailing List Omitted]

App. 17

IN THE

Court of Appeal of the State of California

IN AND FOR THE

THIRD APPELLATE DISTRICT

CITY OF SACRAMENTO,

Plaintiff and

Respondent,

v.

DANIEL JAMES ALTSTATT,

Defendant and

Appellant.

C092141

Sacramento County

No.

34201500184866CUMCGDS

(Filed Jun. 10, 2022)

BY THE COURT:

Appellant’s petition for rehearing is denied.

/s/

Mauro

MAURO, Acting P.J.

--------------------------------cc: See Mailing List

[Mailing List Omitted]

App. 18

Court of Appeal, Third Appellate District No. C092141

S275246

IN THE SUPREME COURT OF CALIFORNIA

En Banc

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

CITY OF SACRAMENTO, Plaintiff and Respondent,

v.

DANIEL JAMES ALTSTATT, Defendant and Appellant.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(Filed Aug. 17, 2022)

The petition for review is denied.

CANTIL-SAKAUYE

Chief Justice

App. 19

JAMES SANCHEZ, City Attorney (SBN 116356)

ADRIAN CARPENTER, Deputy City Attorney

(SBN 283316)

CITY OF SACRAMENTO

915 I Street, Room 4010

Sacramento, CA 95814-2608

Telephone: (916) 808-5346

Telecopier: (916) 808-7455

Attorneys for the CITY OF SACRAMENTO

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO

CITY OF SACRAMENTO, Case No.:

a Municipal Corporation, APN: 008-0052-008-0000

Plaintiff,

vs.

DANIEL J. ALSTATT

and DOES 1 through 20,

inclusive,

Defendants.

COMPLAINT FOR PRELIMINARY INJUNCTION, ABATEMENT,

CIVIL PENALTIES,

AND OTHER

EQUITABLE RELIEF

1. PUBLIC NUISANCE,

CAL. CIVIL CODE

§§ 3479, 3480;

2. SUBSTANDARD

HOUSING, SACRAMENTO CITY CODE

§8.100, et seq.

3. GENERAL BLIGHT,

SACRAMENTO CITY

CODE § 8.04, et. seq.

(Filed Sep. 29, 2015)

App. 20

The CITY OF SACRAMENTO, a municipal corporation, alleges:

I.

JURISDICTION AND VENUE

1. The City of Sacramento is a municipal corporation organized and existing under a Charter adopted

and from time to time amended pursuant to Article XI,

Section 3, of the Constitution of the State of California.

2. Pursuant to Code of Civil Procedure Section

392, venue is proper in the Sacramento County Superior Court, because the real Subject Property which is

the subject of this action is located in the City and

County of Sacramento.

3. Plaintiff brings this action pursuant to Section

731 of the California Code of Civil Procedure and Sacramento City Code (“SCC”) §§ 8.04.080 and 8.100.170,

on behalf of itself to abate a public nuisance.

II.

DEFENDANT DANIEL J. ALSTATT

4. Defendant DANIEL J. ALSTATT is now and

at all times herein mentioned, is the record owner, tenant, occupant, visitor and/or person responsible for and

in control of the real Subject Property and all buildings, including the single-story, single family residence

and other improvements located at 4432 H Street,

App. 21

Sacramento, California (hereafter referred to as the

“Subject Property”), and more particularly described

as:

Lot 93 as shown on the “Plat of Mont Clair or

Brooke Realty Company’s Subdivision No.

106” recorded in the office of the County Recorder of Sacramento County, November 28,

1906, in Book 7 of maps, Map No. 31.

A.

A copy of the deed is attached hereto as Exhibit

5. Defendant DANIEL J. ALSTATT is and has

been living within the City of Sacramento, is a resident

of the City of Sacramento and owner of the Subject

Property. The violations hereinafter described have

been carried out within the City of Sacramento. The

actions of Defendant and each of them, jointly and severally as set forth below, are in violation of the law and

public policy of the State of California, and are inimical

to the rights and interests of the general public.

6. Plaintiff is informed and believes and thereupon

alleges that, at all times relevant hereto Defendant

was and .currently is responsible for the maintenance,

repair, operation, direction, and control of all or portions of the Subject Property.

7. Plaintiff is informed and believes and, therefore, alleges upon such information and belief that

commencing on or about June 4, 2014, a public nuisance existed on the Subject Property and continues to

be unabated.

App. 22

8. Plaintiff does not know the true names or capacities, whether individual, corporate, associate, partnership, or otherwise of those named herein as DOES

1 through 20, inclusive, and when the true names of

these defendants so fictitiously named are ascertained,

Plaintiff will ask leave of the court to amend this complaint and to insert the true names of the fictitiously

named Defendants.

9. Each Defendant and each Defendant DOE

named herein has some substantial interest, financial,

and/or otherwise direct and/or indirect, in the Subject

Property, and/or has participated in each of the complained of acts specifically set forth in this complaint,

and/or were the beneficial owners, tenants, occupants

and/or persons in control of the Subject Property.

10. Plaintiff is informed and believes and thereupon alleges that, at all times pertinent to this complaint, all the acts and omissions alleged herein were

duly performed by and attributable to all defendants,

each acting as agent, employee, or under the direction

and control of the others. Said acts and failures to act

were within the scope of said agency or employment,

and each defendant ratified the acts and omissions by

the other defendants. Whenever reference is made in

this complaint to any act or omission of a defendant,

such allegation shall be deemed to mean defendant, or

his, her or its officers, agents, managers, representatives, employees, or defendants named herein as DOES

1 through 20, did or authorized such acts while actively

engaged in the operation, management, direction or

control of the affairs of such defendant while acting

App. 23

within the course and scope of their duties, and further

shall be deemed to mean the acts by each defendant

herein acting individually, jointly, or severally.

III.

GENERAL ALLEGATIONS

11. Beginning on or about June 4, 2014 and

continuing to the present, Plaintiff, the CITY OF

SACRAMENTO, has had an open and pending Code

Enforcement case as a result of the conditions and violations that have existed and continue to exist at the

Subject Property at 4432 H Street, Sacramento, CA, in

violation of the Sacramento City Code.

12. The Subject Property is located within the

City and County of Sacramento. The Subject Property

contains a single family residence.

13. On or about October 1, 2014, the City of

Sacramento caused to be filed in the County Recorder’s

Office of the County of Sacramento a Notice of Pending Enforcement Proceeding or Action for the Subject

Property, in order to place the public and any successor

in interest on notice of the nuisance conditions at the

Subject Property pursuant to Sacramento City Cade

Chapter 8. This Notice of Pending Enforcement Proceeding or Action was recorded on the Subject Property

on November 25, 2014. Said Notice of Pending Enforcement Proceeding or Action still remains in full force

and effect and has never been withdrawn. A recorded

App. 24

copy of the Notice of Pending Enforcement Proceeding

or Action is attached hereto as Exhibit B.

14. On September 30, 2014, the City issued a Notice and Order to clean, remove, or repair the Subject

Property because of the numerous City Code violations that existed on the Subject Property. Defendant

DANIEL J. ALSTATT was personally served with this

Notice and Order on or about December 10, 2014. Defendants failed to appeal this Notice and Order, and it

became final on October 30, 2014. A copy of this Notice

and Order to repair or demolish and the Proof of Service is attached hereto as Exhibit C.

15. Sacramento City Code sections 8.04.110 and

8.100.700 through 8.100.770, of the Sacramento City

Code set forth the procedures concerning Notice and

Orders. Sections 8.04.170, 8.100.760 and 8.100.770 of

the Sacramento City Code together state that any person wishing to appeal a Notice and Order must do so

within thirty (30) days of service thereof, and if no such

appeal is filed within that time such failure constitutes

a waiver of all rights to an administrative hearing and

shall be a final determination and adjudication of the

matter of the Notice and Order.

16. Sacramento. City Code sections 8.04.290 and

8.100.850(ii) state that after any Notice and Order has

become final and any person(s) to whom such order has

been directed fails, neglects or refuses to obey such an

order, Plaintiff may institute any appropriate action to

abate such a building and Subject Property as a public

nuisance.

App. 25

17. As no appeal was received from Defendant,

or anyone else claiming to be an heir or beneficiary,

Plaintiff ’s determinations became final and binding as

the record owner, has failed to exhaust their administrative remedy by seeking to administratively appeal

Plaintiff ’s determinations that the violations existing

at the Subject Property constituted a public nuisance.

18. The Subject Property continues to be left in a

state of complete disrepair, with junk and debris overtaking the Subject Property. The aforementioned lack

of maintenance and rehabilitation of the Subject Property by Defendant constitutes a public nuisance within

the meaning of Section 3479 of the Civil Code, Sacramento City Code Section 8.04.100 (general nuisance)

and 8.100.110 (substandard buildings).

19. Defendant has had ample opportunity to

correct the substandard, dangerous conditions on the

Subject Property; but, despite knowledge of the conditions and their opportunities to correct them, Defendant has failed and refused, and continues to fail and

refuse, to make all repairs necessary to bring the Subject Property into compliance with all applicable building, health, fire, safety codes, regulations, ordinances,

and laws. Therefore, Plaintiff is informed and believes

that the Defendant will continue to maintain the Subject Property in the above-described condition, thereby

causing irreparable injury and harm to the public’s

health, safety and welfare.

20. Plaintiff is informed and believes that the

Defendant will not correct these violations or abate the

App. 26

nuisance within a reasonable time. If it becomes necessary for Plaintiff to correct the violations or abate

the nuisance, Plaintiff will incur substantial costs. As

part of its prayer, Plaintiff requests recovery of its costs

to correct these violations or abate the nuisance and

establish a prior lien on the Subject Property for such

costs.

IV.

FIRST CAUSE OF ACTION PUBLIC NUISANCE

(Civil Code Section 3480)

21. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 20, inclusive, as if fully set

forth in this paragraph.

22. Defendant DANIEL J. ALSTATT has caused

and is maintaining a continuing public nuisance on or

about the Subject Property since on or about June 4,

2014, and most likely longer than that. Conditions

which render the Subject Property a public nuisance

include but are not limited to:

A. Keeping, storage, depositing, and accumulation of junk and debris (SCC 8.04.100A);

B.

Parking on Unimproved Surface (SCC

10.44.010B);

C.

Storing Inoperable Vehicles (SCC 8.04.100A);

and,

D. Hazardous or unsanitary premises (SCC

8.100.650).

App. 27

23. Maintenance of the Subject Property in the

condition described above is a continuing public nuisance as defined in Civil Code sections 3479 and 3480.

It is injurious to the health, offensive to the senses, and

obstructs the free use of public and private Subject

Property, so as to interfere with the comfortable enjoyment of life or Subject Property. Defendants’ conduct

affects an entire community or neighborhood.

24. Plaintiff is are informed and believe that Defendants will continue to maintain the Subject Property in the above-described condition, thereby causing

irreparable injury and harm to the public health, safety,

and welfare.

25. Plaintiff has no plain, speedy, or adequate

remedy at law to prevent Defendants from continuing

to maintain the above-described public nuisance. The

public nuisance will be maintained, unless restrained

and enjoined by this court.

26. Defendants have not taken any meaningful

measures to permanently correct these violations and

even after numerous notices to do so, the Subject Property continues to maintain the public nuisance activity.

Plaintiffs are informed and believe that Defendants’

will not correct these violations within a reasonable

time. If it becomes necessary for Plaintiffs to correct

the violations or abate the nuisance, the City will incur

substantial costs. Plaintiffs request recovery of its costs

to correct these violations or abate the nuisance and

establish a priority lien against the Subject Property

App. 28

and/or a personal obligation against each of the Defendants for such costs.

V.

SECOND CAUSE OF ACTION

SUBSTANDARD HOUSING – NUISANCE

PER SE, VIOLATION OF SACRAMENTO

CITY CODE CHAPTER 8.100

27. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 26, inclusive,

of this Complaint.

28. Defendants have caused, permitted and

maintained a public nuisance in violation of Sacramento City Code section 8.100.100.

29. Sacramento City Code section 8.100.110 provides that any building that is determined to be dangerous/ substandard is declared to be a public nuisance

and shall be abated by repair, rehabilitation, demolition, board-up, fencing or removal.

30. Defendants have caused, permitted and maintained a public nuisance in violation of Sacramento City

Code section 8.100, et seq., including, but not limited to

the following violations:

A. SCC 8.100.650 – Hazardous or unsanitary

premises.

31. Sacramento City Code section 8.100.170, provides that any person who maintains a dangerous

building shall be liable for civil penalties of not less

than two hundred and fifty ($250) dollars or more than

App. 29

twenty-five thousand ($25,000) dollars for each day the

violation continues.

32. Pursuant to Sacramento City Code section

8.100.170, the City Attorney’s Office is authorized to

pursue an action for civil penalties.

33. Plaintiff requests that civil penalties be assessed against Defendants commencing on and from

October 30, 2014, which date the Notice and Order issued against the Subject Property became final.

VI.

THIRD CAUSE OF ACTION

GENERAL NUISANCE - BLIGHT

VIOLATION OF SACRAMENTO

CITY CODE CHAPTER 8.04

34. Plaintiff realleges and incorporates by reference paragraphs I through 33, inclusive, as if fully set

forth in this paragraph.

35. Defendant has caused, permitted and maintained a public nuisance in violation of Sacramento

City Code section 8.04.100 – General Nuisance.

36. Sacramento City Code section 8.04.100 provides that it is declared a public nuisance for any person owning, leasing, occupying or having charge or

possession of any premises in this city to maintain

such premises in such a manner that any one or more

of the conditions or activities described thereafter are

found to exist and allowed to continue:

App. 30

37. Defendant has caused, permitted and maintained a public nuisance in violation of Sacramento

City Code section 8.04.100, et seq., including but not

limited to the following violations:

A. SCC 8.04.100(A) – The keeping, storage, depositing, or accumulating trash, junk, and debris.

B.

SCC 8.04.100(A)- The keeping, storage, depositing or acclamation of inoperative, abandoned, dismantled or wrecked vehicles.

38. Sacramento City Code section 8.04.080(B)

provides that any person violating Chapter 8.04 shall

be liable for civil penalties of not less than two hundred

and fifty ($250) dollars or more than twenty-five thousand ($25,000) dollars for each day the violation continues.

39. Pursuant to Sacramento City Code section

8.04.290, the City Attorney’s Office is authorized to

pursue an action for civil penalties.

40. Plaintiff requests that civil penalties be assessed against Defendant commencing on and from

October 30, 2014, the date on which the original Notice

and Order issued against the Subject Property became

final.

App. 31

VII.

PRAYER

WHEREFORE, Plaintiff prays judgment against

Defendant as follows:

1. For an order requiring Defendant to show

cause why he should not be enjoined as hereinafter set

forth during the pendency of this action.

2. For a preliminary injunction and permanent

injunction, each enjoining and prohibiting Defendant

and his agents, servants, employees, and all persons

acting under, in concert with, or for him from:

A. Violating any and all applicable building, fire,

health, and safety codes, ordinances regulations, and

laws in connection with the Subject Property; and,

B. Refusing or failing to carry out, in a proper and

workmanlike manner, pursuant to a building permit,

all repairs needed to correct conditions of the structure which rendered it untenable, uninhabitable, unsafe, or unhealthy, in connection with the Subject

Property; or, in lieu thereof, to forthwith seek and obtain from the Sacramento City Building Inspections

Division a sewer and demolition permit and to demolish the structures on the Subject Property pursuant to

Sacramento City Codes.

3. For a preliminary injunction and permanent

injunction, each enjoining and mandating Defendant,

his agents, servants, employees, and all persons acting

under, in concert with, or for him to:

App. 32

A. Abide by all laws and manage the Subject

Property in a manner that enhances the

peace and quiet of the surrounding neighborhood and discourages social nuisances

such as loud noises, visual blight, and

keeping of junk and debris;

B.

Clean, remove, clear, all junk, debris, trash,

rubbish and vegetation from the Subject

Property;

C.

Secure all buildings, dwellings, structures

and fixtures at the Subject Property, in order to prevent unauthorized individuals

from gaining access and/or entry;

D. Defendants shall conduct and perform

routine inspections of the Subject Property to ensure it remains secure and all

nuisance conditions and/or activities are

prevented from occurring;

E.

Defendants shall not impede, interfere,

hinder or otherwise obstruct any investigation(s) undertaken by law enforcement

or regulatory agency;

F.

Obtain all required permits and comply

with all previously issued orders issued

by the building inspectors and code enforcement officers in connection with the

Subject Property within thirty (30) days

of any order or judgment; or in the alternative to seek and obtain, within thirty

(30) days of the order or judgment, a sewer

disconnect and demolition permit and

to thereafter demolish the structure(s)

App. 33

within a reasonable time to be set by the

court following issuance of the permit.

G. To comply with and to proceed with due

diligence to obtain approval from any

City of Sacramento board or commission

which may require to improve, repair or

demolish any structure on the Subject

Property.

4. For an order permitting the Plaintiff to inspect

the Subject Property upon twenty-four (24) hours’ notice. Such notice shall be made by way of posting notice

on the Subject Property.

5. In addition to the issuance of a preliminary

injunction, for an abatement order as authorized by

Health and Safety Code section 17982, that the Plaintiff, as the enforcement agency, is authorized to remove

any violations and abate any nuisance specified in the

Plaintiff ’s Notices and Orders by entering upon the

Subject Property in the absence of a warrant and between the hours of 8 a.m. to 6 p.m., in the event Defendant fails to abate the nuisance conditions as ordered by

the preliminary injunction, order, or judgment. Such

abatement shall include demolition of the structures in

non-compliance upon the Subject Property. Any costs

associated with demolition of the Subject Property

shall be the responsibility of the Defendant.

6. For an order that should Defendant fail to obtain all required permits and comply with all previously issued orders issued by the building inspectors

and code enforcement officers in connection with the

App. 34

Subject Property within thirty (30) days of any order

or judgment, that a Receiver may be appointed to enforce the terms of the order or judgment and who shall

take possession, custody, and control of the Subject

Property in order to remove, repair, and/or abate all violations existing thereon at the Subject Property. An

appointed receiver shall have all powers as enumerated pursuant to Code of Civil Procedure section 568

and Health and Safety Code section 17980.7.

7. For civil penalties pursuant to SCC § 8.100.170(A),

in the court’s discretion, of no less than two hundred

and fifty dollars ($250.00) and not more than twentyfive thousand ($25,000.00) dollars per day commencing

on October 30, 2014 and continuing through the date

of judgment or the date Defendant complied, whichever is sooner.

8. For civil penalties pursuant to SCC § 8.04.080(B),

in the court’s discretion, of no less than two hundred

and fifty dollars ($250.00) and not more than twentyfive thousand ($25,000.00) dollars per day commencing

on October 30, 2014 and continuing through the date

of judgment or the date Defendant complied, whichever is sooner.

9. For payment of the outstanding Community

Development Department fees, costs and penalties

outstanding on the Subject Property, in an amount no

less than $7,470.00.

10. That the Subject Property be declared a public nuisance and for a declaration that each and every

App. 35

condition described in the First, Second, and Third

Causes of Action constitutes a public nuisance per se.

11.

For costs of suit.

12. For recovery of reasonable attorney’s fees as

authorized pursuant to Sacramento City Code section

1.28.040;

13. For such other and additional relief as the

court may deem proper and just.

DATED:

September 29, 2015

JAMES SANCHEZ,

City Attorney

By: /s/ Adrian Carpenter

ADRIAN CARPENTER

Deputy City Attorney

Attorneys for the

CITY OF SACRAMENTO

[Exhibits Omitted]

App. 36

[SEAL]

CITY OF SACRAMENTO

CALIFORNIA

CODMMUNITY

DEVELOPMENT

DEPARTMENT

Neighborhood Code

Compliance Division

915 I STREET, MC 20000

SACRAMENTO, CA

95814-2996

PH: 916-808-5404

FAX: 916-808-6633

www.cityofsacramento.org/code

14-009810 Julie Mason 4432 H ST N&OIIB

ALTSTATT DANIEL J

4432 H ST

SACRAMENTO, CA 95819

09/30/2014

Subject: Property located at 4432 H ST

Assessor’s Parcel Number: 00800520080000

Enclosed is a Notice and Order to Clean, Remove, Repair or Cease Illegal use on the property of which you

are the owner of record and/or beneficiary. A fee of

$970.00 has been charged against this property. Additionally, a Title fee of $100.00 for Residential or

$650.00 for a Commercially zoned property is

due per parcel. All charges are pursuant to Chapter

8 of the Sacramento City Code and are due and payable. This fee is to recover enforcement costs and does

not include permits or other related fees if applicable.

A Declaration of Public Nuisance regarding this property has been recorded with the County Recorder.

When all violations have been corrected and when all

fees are paid, and a $100.00 Termination fee paid,

App. 37

the Declaration of Public Nuisance will be cleared with

the County Recorder.

If you disagree with the requirements of the Notice

and Order, you have the right to appeal. Your appeal

must be in writing and must be filed with the Code Enforcement Department within 30 days of such Notice

and Order.

If you need clarification of the Notice and Order, or any

information provided herein, it is recommended that

you contact the code enforcement officer shown below.

Sincerely,

/s/ Linda Douglas/2B

Linda Douglas

Code Enforcement Officer

(916) 808-8099

Case #:14-009810

[Bar Code]

App. 38

[SEAL]

CITY OF SACRAMENTO

CALIFORNIA

COMMUNITY

DEVELOPMENT

DEPARTMENT

Neighborhood Code

Compliance Division

915 I STREET, MC 20000

SACRAMENTO, CA

95814-2996

PH: 916-808-5404

FAX: 916-808-6633

www.cityofsacramento.org/code

14-009810 Julie Mason 4432 H ST N&OIIB

ALTSTATT DANIEL J

4432 H ST

SACRAMENTO, CA 95819

09/30/2014

NOTICE AND ORDER TO CLEAN,

REMOVE, REPAIR AND/OR

CEASE A PUBLIC NUISANCE

1. YOU ARE BEING NOTIFIED AS Record Owner

and/or Beneficiary that the Code Enforcement Manager, Neighborhood Code Compliance Division of the

Code Enforcement Department, has caused to be inspected and has determined that the property(s) at:

4432 H ST

County Assessor’s Parcel Number: 00800520080000

(See Attachment A for legal description of property)

(is) (are) in a public nuisance conditions under the provisions of Title 8 of the Sacramento City Code.

App. 39

2. That the conditions which render the property as

a public nuisance under are set forth on the attached

list of existing violations.

3. The Code Enforcement Manager has determined

that the violations on subject property(s) must be corrected.

4. If you elect to correct the violations, the work

therefore shall commence within 14 days from the date

of this Order and completed within 30 days from the

date of this order.

5. YOU ARE FURTHER NOTIFIED that if the corrections are not commenced and/or completed within

the specified time; the Code Enforcement Manager: (1)

may assess Administrative Penalty; (2) may seek an

Inspection/Abatement Warrant to bring the property

into compliance; and (3) may submit this matter to Superior Court for injunctive relief. All costs shall be

charged against the property or against you as the

owner.

6. YOU ARE FURTHER NOTIFIED that any person

having any record title or legal interest in the property may appeal this Notice and Order or any action of

the Code Enforcement Manager to the Code Enforcement Appeals Hearing Examiner*; the appeal must be

filed with the Code Enforcement Manager within 30

days from the date of this Notice and Order, and that

* Forms for Appeal may be obtained from the Public Assistance Counter of the Code Enforcement Department, 300 Richards Blvd., 3rd Floor, Sacramento, CA 95811

App. 40

failure to appeal will constitute a waiver of all

right to an administrative hearing and determination of the matter. An appeal fee of $400.00 is

required at the time of the appeal request. Unless

an appeal is filed, the Code Enforcement Manager will

proceed to an inspection/abatement warrant and/or injunctive relief without further notice to you.

Dated: 09/30/2014

By /s/ Linda Douglas/2B

Linda Douglas

Code Enforcement Officer

(916) 808-8099

COMMUNITY DEVELOPMENT DEPARTMENT

NEIGHBORHOOD CODE COMPLIANCE DIVISION

Correction List

Case #: 14-009810 Address: 4432 H ST

Code: 013: SCC 8.04.100 A

Description: CODE - Storing Trash, Junk, Debris

Full Violation: Cease the keeping, storage, depositing or accumulation of trash, junk and debris.

Comments: REMOVE OR ENCLOSE ANY AND ALL

JUNK, TRASH AND DEBRIS LOCATED ON YOUR

PROPERTY INCLUDING BUT NOT LIMITED

TO:JUNK AND DEBRIS CONSISTS OF BUT IS NOT

LIMITED TO: SCRAP WOOD, SCRAP METAL, ELECTRONICS, TARPS, HOSES, BUCKETS, ENGINE PARTS,

FUSES, GENERATORS, PROPANE TANKS, LADDERS,

SATELITE DISH, WINDOWS, TIRES, FURNITURE,

CAMP TOILETS, PLASTIC BINS, PLASTIC BARRELS/

App. 41

DRUMS, METAL BINS, FIRE EXTINGUISHERS(2),

ROTTING FRUIT, GLASS BOTTLES, VACUUM.

Code: C07: SCC 10.44.010 B

Description: CODE - Parking Unimproved Surface

Full Violation: Cease parking of vehicles on unimproved surface.

Comments: CEASE PARKING ANY AND ALL VEHICLES ON UNIMPROVED SURFACE, IMPROVED

SURFACE IS CEMENT OR ASPHALT ONLY.

Code: C14: SCC 8.04.100 A

Description: CODE - Storing Inoperable Vehicles

Full Violation: Cease the keeping, storage, depositing or accumulation of inoperative, abandoned, dismantled or wrecked vehicle(s). Remove, repair or put

in enclosed structure.

Comments: BLACK VW JETTA- NO PLATE VISIBLE, A RED/WHITE VW VAN- 530GZS, A VW BUG

LIGHT COLORED 006 LDK. WHITE LINCOLN

TOWNCAR- 1KFN831

TAN AUDI, 4 DOOR, 5ARG468

DODGE VAN TAN/BROWN, FULL OF DEBRIS- 455

UHN

VW PASSAT- 2WKG464

Code: B22: 8.100.650

Description: BUILDING – Hazardous/Unsanitary

Premises

Full Violation: Hazardous or unsanitary premises:

Accumulation of weeds, vegetation, Junk, dead organic matter, debris, garbage, offal, rat harborage,

stagnant water, combustible materials and similar

materials, causing a safety hazard.

App. 42

Comments: OVERGROWN AND UNMAINTANED

LAWN, BUSHES, TREES IN THE REAR YARD

CONTRIBUTE TO RODENT HARBORAGE.

PLEASE MOW/CUT DOWN TALL GRASS, REMOVE FRUIT THAT IS LAYING ON THE GROUND.

[SEAL]

CITY OF SACRAMENTO

CALIFORNIA

COMMUNITY

DEVELOPMENT

DEPARTMENT

Neighborhood Code

Compliance Division

915 I STREET, MC 20000

SACRAMENTO, CA

95814-2996

PH: 916-808-5404

FAX: 916-808-6633

www.cityofsacramento.org/code

NOTICE AND ORDER TO CLEAN, REMOVE,

REPAIR AND/OR CEASE A PUBLIC NUISANCE

Attachment A

09130/2014

Legal Property Description for 4432 HST

County Assessors Parcel Number: 00800520080000

Legal Description:

MONT CLAIR TRACT

Case #: 14-009810