Filing Late Government Claims (Tort Claims) in California

By Michael Reiter, Attorney at Law

Generally government claims for personal injury and personal property damage are due with a public entity within six months of an incident, with some notable exceptions.

However, if a claimant fails to file a government claim within the sixth months, there is a procedure to file a late claim.

(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.

(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.

(c) In computing the one-year period under subdivision (b), the following shall apply:

(1) The time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted.

(2) The time shall not be counted during which the person is detained or adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if both of the following conditions exist:

(A) The person is in the custody and control of an agency of the public entity to which a claim is to be presented.

(B) The public entity or its agency having custody and control of the minor is required by statute or other law to make a report of injury, abuse, or neglect to either the juvenile court or the minor’s attorney, and that entity or its agency fails to make this report within the time required by the statute or other enactment, with this time period to commence on the date on which the public entity or its agency becomes aware of the injury, neglect, or abuse. In circumstances where the public entity or its agency makes a late report, the claim period shall be tolled for the period of the delay caused by the failure to make a timely report.

(3) The time shall not be counted during which a minor is adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if the minor is without a guardian ad litem or conservator for purposes of filing civil actions. California Government Code section 911.4.

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) 296-6708

Legal word of the day: Prolix

By Michael Reiter, Attorney at Law

Sometimes, you need a five dollar word instead of a five cent word.  The word is “prolix.”  Prolixity, according to Black’s Law Dictionary, Sixth Edition is the “unnecessary and superfluous statement of facts in pleading or in evidence.

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 from a sovereign citizen, what I called a constitutionalists in the past.  Here is a restatement of the Complaint, without the actual prolixity:

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.

I believe I attacked the complaint using either this case, or a similar case, which taught me the word prolixity in context of F.R.C.P. Rule 8:

A heightened pleading standard is not an invitation to disregard’s Rule 8‘s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise averments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action.  McHenry v. Renne (9th Cir. 1996) 84 F.3d 1172, 1178.

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) 296-6708

Friday Aside: A History of In-N-Out Burger in San Bernardino and environs

By Michael Reiter, Attorney at Law

I’ve written about In-N-Out Burger a few times, particularly in relation to trade dress.  Someone reached my blog by asking “when did in n out open first in san bernardino ca.”  If the searcher was seeking when the Fifth Street location  (795 W. Fifth Street, San Bernardino) was built, that location was built in 2011, and opened at the end of 2011 (December 8, 2011).  It replaced the Second Street location (the address was technically 190 Bungalow Court), which closed on December 7, 2011.  The Second Street location was demolished after the State of California took possession on January 1, 2012.  The State of California acquired the parcel through eminent domain for the Interstate 215 widening project.  See Resolution CDC/2011-50 of the Community Development Commission of the City of San Bernardino.

The Bungalow Court location was there as long as I can remember,  and consisted of a double drive through and no inside eating area.  The location in south San Bernardino,was moved slightly to the north to 1065 E. Harriman Place during the creation of the HUB Project.  There was an Owner Participation Agreement between In-N-Out and the Redevelopment Agency of the City of San Bernardino, acknowledged by Resolution 2001-317, approved by Mayor Valles on October 3, 2001. The old In-N-Out in North Loma Linda was also a double drive through.  According to a letter dated January 23, 1997 from then-attorney (and now Judge) Cynthia Ludvigsen, the old In-N-Out was on the northwest corner of Rosewood Drive  and Tippecanoe.  The Highland store  (28009 Greenspot Road, Highland, CA 92346) opened in 2012.
So, when did In-N-Out Burger open in San Bernardino?  The area near Central City Mall was redeveloped in the 1970s.  The Redevelopment Agency of the City of San Bernardino put out a photo survey of the downtown area before redevelopment, and if I recall correctly, the area on 2nd Street had houses in the early 1970s.

The In-N-Out website’s history section gives clues, but no answers.  Obviously, the first one opened in 1948 in Baldwin Park, the same year that McDonald’s converted to a quick serve restaurant from a barbecue restaurant in San Bernardino.  By 1958, there were five locations in the San Gabriel Valley.  By 1973, In-N-Out had 13 locations, all in Los Angeles County, and all with two drive through lanes and no inside eating. In 1979, the first In-N-Out with a dining room opened in Ontario as restaurant number 21.  The website adds that only 13 more no dining room locations were built after that.  By 1988, In-N-Out had 50 stores in total, and in each of the core Southern California counties: Los Angeles, Orange, Riverside, San Bernardino and Ventura.I have In-N-Out Santa glasses from 1982 that I know we bought from the 190 Bungalow Court location, so that probably means that the original downtown San Bernardino In-N-Out Burger was built between 1973 and 1982. [Update: October 17, 2012.  I couldn’t stand it any longer.  According to In-N-Out’s customer service line, the store was opened on February 11, 1982].

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.

Copyright 2012 Michael Reiter, Attorney at Law

 

Michael Reiter, Attorney at Law

A: 300 E. State St., Suite 517

Redlands, CA 92373-5235
T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

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

Gophers Can Cause Trip and Falls

By Michael Reiter, Attorney at Law.

I went out for another walk today, in the late afternoon.  I love to see California native wildlife, like a California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma.  I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get a picture of his head.  Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.

Gophers can cause damage to lawns.  They can also damage parks.  When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park.  Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of  public property cause of action, but with a private landowner, the standard is typically negligence.  The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization.  If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

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.

Michael Reiter, Attorney at Law

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

W: http://michaelreiterlaw.com

When Should You Contact A Lawyer For A Code Enforcement Problem?

By Michael Reiter, Attorney at Law.

Many California cities have departed from filing misdemeanor or infraction citations or complaints in their local Superior Court.  The reason why is that the Government Code provides a more efficient process with administrative citations.  For many situations, such as leaving your garbage cans out too long, it makes more sense to pay an administrative citation then to be arraigned on a criminal citation.   Further, with the ever-increasing amount of penalties piled upon criminal citations, it is also beneficial to the violator to only have to pay $100 for a ticket.  The city or town benefits because they get the entire fine, minus any processing fee from a third party administrator, versus getting roughly half of the base fine for the criminal citation.  In most cases, the alleged violator does not need an attorney.  Even when it is a criminal case, unless your time is exceedingly valuable or you will be out of the area at the time, it does not make sense to pay an attorney to appear on your behalf.

The number one way to get rid of a code enforcement problem is to come into compliance with the ordinance.  Sometimes that is not possible for financial, logistical, or other reasons.  However, an attorney is often the wrong tool to deal with financial problems, as the attorney’s fee will increase the cost to remedy the situation.  Sometimes an attorney can help with the process and explain the situation, and work with the agency to come up with a compliance plan.

However, with administrative civil penalties cases, where the city wants to charge the property owner up to a thousand dollars a day for a continuing violation, it may make sense to speak to an attorney sooner than later.  Once the citation becomes a lien against the property, depending on the implementing ordinance, it may be impossible for anyone — including a skilled attorney, to do anything about the situation.  Also, attorneys will not guarantee results, because with code enforcement,  the same City that cited the alleged violator that must be convinced to change their course.

Alleged code enforcement violators like to think that they are being singled out for selective enforcement, or some kind of discrimination is at hand.  Though that may be the case, having hundreds of junked cars on a property makes a selective enforcement case difficult to win.  Though code enforcement departments sometimes very technical interpretations of vague municipal codes that are problems, the majority of code enforcement cases are not based on animus towards the property owner.

For out-of town landlords and property holders, it sometimes helps to have an attorney who has dealt with a code enforcement department in the past.  Each code enforcement situation is different, and property owners and tenants should consult with an attorney about their particular situation.

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-
T: (909) 296-6708

How To Act In Front of A Code Enforcement Hearing Officer

By Michael Reiter, Attorney at Law.

Many cities in California have shifted away from hearing boards for administrative hearings and hired hearing officers to hear appeals of administrative citations, administrative actions, and administrative civil penalties.  Here are some general, common sense rules to follow when appearing before a hearing officer.

1. Be prepared.  Bring all the relevant information, including current photographs, and any witnesses on your behalf.  Draft an outline of remarks before the hearing.

2. Be respectful.  There’s no point in being bombastic.  When I was a Deputy City Attorney for the City of San Bernardino, I had the occasion to observe hundreds of hearings in front of a few different hearing officers.  One well-known unlawful detainer attorney argued his way into a higher fine for his client.

3. If you are challenging any aspect of the hearing, make a record.  Submit any objections to the process or hearing officer in writing.

4. As a corollary to be prepared, show up early, watch how the hearing is conducted, and obtain any rules  adopted by the hearing officer or City in advance.

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-
T: (909) 296-6708