Code Enforcement Gone Wild

I was a Deputy City Attorney for the City of San Bernardino and the Assistant City Attorney for the City of Redlands. Along with another Deputy, I advised what was then the Code Enforcement Department in San Bernardino.  The City of Redlands had different code enforcement issues than the City of San Bernardino, but code enforcement was an important part of my job in Redlands.

We were not on the leading edge in San Bernardino (everything we did was pioneered at larger cities), but we tried to employ as many code enforcement tools as possible. We were never successfully sued in a code enforcement case while I was there.

However, now that I represent citizens, I see all kind of ticky-tack things that other entities do.  Here is an article from the Salt Lake Tribune

“Ogden tells dad to take down his kids’ cardboard castle because it’s ‘junk'”

Now, this is in Utah, but most cities and counties in California have a similar ordinance that prohibits junk, trash, and debris in your front yard.  However, just because it’s technically illegal doesn’t mean that the City should cite for it.

Looking at the link from the story, this is the City of Ogden ordinance:

 

12-4-2: WASTE MATERIALS OR JUNK; PROHIBITED ON PREMISES:

A. Prohibition: It is unlawful for any owner, occupant, agent or lessee of real property within the city, to allow, cause or permit the following material or objects to be in or upon any yard, garden, lawn, or outdoor premises of such property:

1. Junk or salvage material;

2. Litter;

3. Any abandoned vehicle or inoperable vehicle.

In California, our ordinances tend not to be as vague as this code section.

Does a cardboard castle even qualify as “junk” or “litter?” If it were in California and I were reviewing a notice (which I believe I did sometimes in Redlands) or a citation (in San Bernardino), I would probably turn it down.

As I teach code enforcement officers in training, just because something can be cited doesn’t mean it should be.

I think the reaction by the resident was the right course of action.

“Had he not received the letter, he was planning on taking the castle down soon anyway. But after receiving it, he now plans to keep it up until just before the penalty.”

A: 300 E. State St. #517, Redlands CA 92373-5235
T: (909) 296-6708

The Joint Meeting of the Inland Empire Chapters of the American Inns of Court, DoubleTree Hotel, Ontario, California February 18, 2015

By Michael Reiter, Attorney at Law

Every year, the Inland Empire Chapters of the American Inns of Court hold a joint meeting.  For the recent past (until last year), there were three local Inns: my Inn, San Bernardino’s The Honorable Joseph B. Campbell Inn, Riverside’s The Honorable Leo A. Deegan Inn, and Palm Spring’s The Honorable Warren Slaughter-Richard Roemer Inn.  Last year, we were joined by The Southwest Inn in Temecula, California.

The joint meeting is rotated amongst the Inns: last year was the Deegan Inn’s turn, and this year the honor went to the Campbell Inn. Next year will be The Southwest Inn’s first opportunity.

Our dinner was at the DoubleTree Hotel in Ontario, a sprawling, well-appointed facility.

Our speaker and honored guest was the Honorable André Birotte Jr., who was recently appointed, unanimously, by the United States Senate to be a United States District Court Judge for the Central District of California.  On that accomplishment, Judge Birotte remarked that he was surprised to hear a litany of yes votes (he mentioned Senator Hatch and Senator Cruz).  He thought it may have been non-controversial because he was appointed unanimously to be the United States Attorney for the Central District of California four years prior.

I asked him about why in the age of CM/ECF and mandatory electronic filing by litigants, why the Court required blue backing on courtesy copies.  He smiled and said he couldn’t speak for other judges, but that he only read the pleadings electronically, but that the clerks used the courtesy copies to make notes. It is good to note that Judge Birotte does not require blue backing for mandatory chambers copies. Judge Birotte’s Proedure and Schedule page says: “ALL EXHIBITS TO CHAMBERS’ COPIES MUST BE TABBED. BLUEBACKS ARE NOT REQUIRED,”

 

Judge Birotte spoke about the necessity of knowing and following the local rules, particularly Local Rule 7-3 requiring meet and confer.  He urged civility among the bar.  He said when he was a Los Angeles County Public Defender and an Assistant United States Attorney, the criminal bar was civil because it was a smaller community.

When asked about whether he spoke to the President upon confirmation, he stated that in both appointments, while he was vetted by Sentor Feinstein, he never spoke to President Obama. He said the older District Court judges told him that they spoke to their appointing-Presidents, but that was no longer the case.

The Mission of the American Inns of Court is to foster excellence in professionalism, ethics, civility, and legal skills.  If you are interested in joining The Joseph B. Campbell American Inn of Court, which normally meets at the Castaway Restaurant in San Bernardino, please contact me.

A: 300 E. State St. #517, Redlands CA 92373-5235
T: (909) 296-6708

More On Constitutionalist Nonsense

By Michael Reiter, Attorney at Law

One of the more relatively popular posts on this website is this post on  Constitutionalists.

From time to time, I run across them in either my Code Enforcement or my Civil Rights practices.

However, I don’t wish to debate the issues.  If you have a code enforcement issue, you must realize that the government has police powers to deal with code enforcement issues. The police powers are in the California Constitution:

“A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI, § 7.) Often referred to as the “police power,” this constitutional authority of counties and cities to adopt local ordinances was described by the Supreme Court in Candid Enterprises, Inc. v. Grossmont Union High School District (1985) 29 Cal.3d 878, 885, as having the following broad scope
“Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. Apart from this limitation, the police power of a county or city under this provision is as broad as the police power exercisable by the legislature itself.” 85 Cal. Op. Att’y Gen. 21 (2002).

This is not up for debate. 

That does not mean that the police powers are unlimited. In particular, code enforcement often does not follow the law, whether it is the City’s own processes in the municipal code, a charter provision, California law when applicable, or the California or United States Constitution.

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State Street, Suite 517

     Redlands, CA 92373
T: (909) 708-6055

Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 708-6055

 

HIPPA Creates No Private Right of Action for Violation of the Privacy Rule

By Michael Reiter, Attorney at Law

When I was Assistant City Attorney for the City of Redlands, I had the unenviable task of making sense of the HIPAA Privacy Rule, which is found at 45 CFR Part 160 and Subparts A and E of Part 164. One thing that should be mentioned is this:

HIPAA itself does not provide for a private right of action, see 65 Fed.Reg. 82601 (Dec. 28, 2000)(“Under HIPAA, individuals do not have a right to court action.”)   Webb v. Smart Document Solutions, LLC (9th Cir. 2007) 499 F.3d. 1078, 1082.

There may be some relief in state unfair competition law, but not in federal law, and not as the basis for a 42 U.S.C. section 1983 case.  Therefore, it may be difficult to find an attorney, outside of a class action, to take a case if someone violates the HIPAA privacy rule.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517

     Redlands CA 92373-5235
T: (909) 708-6055

Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

Fictitious defendants in Federal U.S. District Court for the Central District of California

By Michael Reiter, Attorney at Law

 

California Code of Civil Procedure allows fictitious defendants, that is, naming unknown defendants, which you will commonly see in a caption (such as “Doe 1″ or “Does 1-50, inclusive”).  See California Code of Civil Procedure § 474.

The use of Doe (fictitiously named defendants) in federal questions cases is permissible when the complaint alleges why the defendant’s real name was not known. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390, fn. 2, 91 S. Ct. 1999, 2001, 29 L. Ed. 2d 619 (1971). Central District of California Local Rules Rule 19-1 limits the Complaint to no more than ten Doe or fictitiously named parties.

Though there is an easy way to add fictitiously named defendants in California Superior Court, the way to do it in U.S. District the Central District of California is by Federal Rule of Civil Procedure Rule 15(a)(2), and Rule 21:

Federal Rule of Civil Procedure Rule 15(a)(2) reads:

          (a) Amendments Before Trial.

. . .

(2) Other Amendments. In all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The

court should freely give leave when justice so requires. Fed. R. Civ. P.

15(a)(2)

Federal Rule of Civil Procedure Rule 21 provides, in pertinent part, that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party. . . .” Fed. R. Civ. P. 21.

“Fed.R.Civ.P. 15 places leave to amend, after a brief period in which a party may amend as of right, within the sound discretion of the trial court. [Citations omitted]. In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities. [Citations omitted]. Accordingly, Rule 15’s policy of favoring amendments to pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given’.”  Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

 

 

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