Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. S-1500-CV-262654, Linda S. Etienne, Commissioner.
Richard Peterson, in propria persona, for Plaintiff and Appellant.
Theresa A. Goldner, County Counsel, and Mark L. Nations, Deputy County Counsel, for Defendants and Respondents.
OPINION
Gomes, J.
Richard Peterson (Peterson), in propria persona, appeals from an order denying his petition for writ of mandamus, which named as respondents Kern County, Board of Supervisors, Code Compliance, Craig Peterson, Rod G. Parker, Charles Lackey, Ricky Bradley, Bernard Barmann and Bruce Divelbiss. By the petition, Peterson sought to invalidate a resolution of the Kern County Board of Supervisors ordering him to abate a public nuisance he is maintaining on property located within a mobile home subdivision. We will affirm.
We note that Peterson has represented himself throughout the proceedings below, both before the Board and on his petition for writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
In February 1968, the Kern County Board of Supervisors (Board) adopted a resolution approving exceptions to tract map 3158, which created a 39-lot subdivision near Inyokern, California. The subdivision is located south of and contiguous to State Route 178 (SR 178). The exceptions were approved subject to two conditions: (1) dedication of vehicular access rights from all lots or portions of lots to SR 178; and (2) construction of a five foot masonry wall “within the road right-of-way” along those lots, or portions of lots, adjacent to SR 178.
The subdivider dedicated to Kern County (County) the north 25 feet of the subdivision property, which abuts SR 178, and abandoned all vehicular access rights from the lots adjacent to the dedicated strip, namely lots 7 through 12 and 39, so the owners of those lots could not access the highway through the north side of their lots. The dedication can be terminated only by a change in the highway’s alignment or width that results in vacation. The County accepted the offer of dedication as well as the abandonment of the right of vehicular ingress and egress in 1970. The required five foot masonry wall was constructed within the right-of-way dedicated to the County.
The subdivision was eventually developed as Sierra Breeze Estates (Sierra Breeze), which is zoned as a mobile home subdivision. Historically, the County has regulated property uses in Sierra Breeze, including lot 12. The lots in Sierra Breeze are individually owned and the streets are dedicated public streets. Lot owners within Sierra Breeze have leased out their lots, and mobile homes on them, to various individuals. The State of California (State) has not regulated Sierra Breeze as a mobile home park and issued an opinion in January 2008 that Sierra Breeze is not a mobile home park within the meaning of Health and Safety Code section 18214 and therefore not under State jurisdiction.
All further statutory references are to the Health and Safety Code unless otherwise noted.
The address of lot 12 in Sierra Breeze is 5234 Agave Avenue. Although record title in lot 12 is vested in the Seaton Trust, Peterson asserts he has an interest in the lot by way of adverse possession beginning in 2000 or 2001. In about 2004, Peterson tore down a portion of the block masonry wall that had been erected as a condition of subdivision approval and installed a gate so he could have vehicular access to lot 12 through the gate. In about 2006, Peterson caused a freestanding large metal structure to be erected on the lot without first securing a building permit.
The Saguaro Street Property
In 2004, the County contacted Peterson about an unpermitted accessory structure located on another lot within Sierra Breeze, 1608 Saguaro Street. During the investigation, Peterson told the inspector that Sierra Breeze was a mobile home park. The inspector advised Peterson to contact the State for permit information. In June 2004, the inspector concluded Sierra Breeze was a mobile home park and told Peterson to send a copy of paperwork proving he had contacted the State. In July 2004, Peterson provided a completed State application for an addition to his mobile home, dated May 20, 2004, and correspondence showing Sierra Breeze was a mobile home park under State jurisdiction. The inspector faxed the completed application to Craig Peterson, assistant to County Supervisor Jon McQuiston.
In March 2005, another County employee determined that $270 in fees was inadvertently assessed on the property because the County did not have jurisdiction in the mobile home park. The employee completed a fee waiver form, which her supervisor signed.
In response to a request by Bernard Barmann, which apparently was precipitated by an e-mail Craig Peterson sent to Barmann, County Counsel Bruce Divelbiss began an investigation into Sierra Breeze’s status by reviewing the relevant codes and information available through Engineering and Survey Services (ESS), a County department. Divelbiss noted the lots had always been individually owned and the County had issued numerous building permits on various lots over the past 30 years. Divelbiss concluded Sierra Breeze did not meet the definition of “mobile home park” contained in section 18214, and therefore was not regulated by the State. Divelbiss concluded the “permit” the State issued to Peterson on May 20, 2004 was issued in error, since the State lacked jurisdiction over the freestanding structure.
On August 30, 2005, the investigator received correspondence showing the lots in Sierra Breeze were individually owned and that while the mobile homes and attached accessory structures were under State jurisdiction, any freestanding structures were under the County’s jurisdiction. The case was reopened in October 2006. In April 2007, a “Declaration of Substandard” was recorded against the property.
The Agave Avenue Property
In February 2006, Peterson received a letter from a deputy district director at the California Department of Transportation (Caltrans) which stated that because Caltrans is responsible for managing access to state highways through authorized, safe locations, it became concerned when a portion of the wall was replaced with a gate along his property even though the property did not directly abut SR 178. The director stated that he hoped the intended use of the gate did not include accessing the highway directly at that location, as that is prohibited. With respect to the gate, the director stated Peterson “may have other issues with your homeowner’s association and with Kern County,” but he declined to address them “as they do not technically involve Caltrans.”
In March 2006, Craig Peterson of Supervisor McQuiston’s office submitted a complaint form to the County Code Compliance Division regarding 5234 Agave, which reported the following violation: “Remove gate and replace block wall along the non-access strip on Hwy 178.” In April 2006, Peterson apparently sent an e-mail to Supervisor McQuiston’s office, in which Peterson claimed Sierra Breeze board members had made “[m]ultiple charges” against his family over the Agave Avenue property, but the property had never been found to be in violation of any law. Peterson stated, “Now they are trying to use your office[,]” and asked for a call. Craig Peterson forwarded the e-mail to Chuck Lackey, Director of the ESS, asking if he would like to respond to it.
In May 2006, the County issued a “30 Day Notice and Order to Abate” which states that an inspection of the property was conducted and it was determined that the following violations of the Kern County Ordinance Code exist: (1) section 17.08.060 for construction without benefit of permits; and (2) section 19.02.060 for the change of land use without planning department approval or development standards being satisfied. The notice further states: “Remove gate and replace block wall along the non-access strip on Hwy 178 that you removed,” and the property’s condition constitutes a public nuisance which must be abated. Peterson admitted he received this notice on July 7, 2006. Peterson did not abate the nuisances and two administrative citations totaling $750.00 were issued to Peterson and the Seaton Trust. Peterson filed a lawsuit against the County in Kern County Superior Court, which he eventually lost in February 2007 due, in part, to his failure to exhaust administrative remedies.
In March 2007, the County issued another “30 Day Notice and Order to Abate” to Peterson, which states that on March 21, 2006, he was notified that County Code Compliance had received a complaint alleging a violation of the County Ordinance Code and the period of time for him to respond or correct the violations had expired. The notice advised that another inspection of the property had occurred and it was determined that the following violations of the Kern County Ordinance Code existed: (1) section 19.02.060 for the change of land use without planning and department approval or development standards being satisfied - “Remove gate and replace block wall along the non-access strip on Hwy 178 that you removed.”; and (2) section 17.08.060 for the construction without benefit of permits - “building not attached to mobile home and larger than 120 sq. ft.”
The Administrative Proceeding
On March 26, 2007, using a form entitled “Request for Appeal of Administrative Citation,” Peterson appealed the March 2007 notice, stating as the reason: “Kern County has no legal authority over Sierra Breeze. Pertinent laws have been cited.” A hearing was scheduled before the Board for November 6, 2007, with notice of the hearing served on October 25, 2007. In a November 6, 2007 staff report signed by Lackey, the Board was requested to declare the modified wall and unpermitted metal building public nuisances and order their abatement. At Peterson’s request, the hearing was continued to November 27, 2007. Notice of the continued hearing was served on November 2, 2007.
A second staff report, dated November 27, 2007, which Lackey signed, was submitted for the continued hearing. The report stated the owner of lot 12 and the responsible party had been cited for violation of Kern County Ordinance Code Titles 17.08.060 and 19.02.060. The report explained the five foot masonry wall, which was required by the 1968 resolution to prevent direct access to the right-of-way and SR 178 and is within the County right-of-way, was modified without permits or County authorization. The report further explained that “the County” had spoken with John Beischel of Caltrans to find out if Caltrans had formally taken over the right-of-way. While Beischel was not aware of any document formally transferring the right-of-way from the County to the State, he stated that Caltrans had accepted the right-of-way by prescriptive use. County staff, however, opined that the County had the authority to regulate the right-of-way because County records do not show any formal transfer of the right-of-way. Accordingly, County staff concluded: (1) the wall was within the County’s right-of-way and therefore was a highway facility; (2) modification of the wall required prior approval and an encroachment permit from the County roads department; and (3) work done on the wall without a permit is a violation of Street and Highways Code section 1460, subdivision (b), and Chapter 17 of the County’s Zoning Ordinance.
With respect to the freestanding metal building, the report stated construction of the building without a permit violated Kern County Ordinance Code section 17.08.060 and constituted a public nuisance pursuant to Ordinance Code section 17.04.200.B. Since the County had not reviewed the plans or inspected the building, ESS was concerned the building could create a hazardous condition. Recent inspections revealed there had not been any attempt to bring the property into compliance and the violations remained.
The report stated that the property owner and Peterson had been “repeatedly and properly notified that public nuisances existed on this property” and two administrative citations totaling $750 issued to them, which remained unpaid. The report explained that Peterson appealed these citations by filing a petition for writ of mandate in Kern County Superior Court, which was denied because he failed to exhaust his administrative remedies before filing suit, and Peterson had waived his administrative penalty appeal by failing to request a hearing in writing within 15 days as printed on the back of the citations.
ESS requested the Board to: (1) find the construction of the metal building a public nuisance, direct Peterson and the property owner to apply for building permits and comply with all requirements and conditions of such permits, and authorize the Director to abate the violation should they fail to comply; and (2) find the opening and gate in the masonry wall a public nuisance under Kern County Ordinance Code chapter 12.16.140 and a violation of Streets and Highway Code section 1460, subdivision (b) (a misdemeanor), and direct Peterson and the property owner to repair the wall and refer the issue to the roads commissioner to take enforcement action should they fail to comply. The estimated cost to abate the nuisances was $15,000.
The report related that Peterson and the property owner had been notified of the hearing. In response to Peterson’s request for a copy of the complete code file, on November 2, 2007 staff e-mailed Peterson that the requested documents would be sent to him and copies of documents in the file that had not been previously sent to him were included with a copy of “this notice.” The report explained that Peterson had requested the hearing be held before Mr. Price, the Resource Management Director, but County staff scheduled the hearing before the Board to allow Peterson to appeal the staff actions directly to the Board.
In the petition for writ of mandate, Peterson alleges he did not receive the notice of continued hearing and staff report until November 24, 2007.
At the November 27, 2007 hearing, Lackey addressed the Board and reiterated the information and requests contained in the staff report. Lackey explained to the Board that Peterson had argued the property is a mobile home park under State, not County, jurisdiction, but County staff disagreed with him, noting the County had issued three other permits for lot 12.
A beneficiary of the trust listed as the record owner of the property wrote the Board and stated Peterson had acted without the record owner’s knowledge and consent, Peterson had assumed “‘ownership’” of the property without legal standing, and the modification of the masonry wall and construction of the building was attributable to Peterson, not the record owner. The beneficiary expressed hope that Peterson would be held personally responsible for any costs or that a lien be placed on the property for the actual costs incurred.
After Lackey’s presentation, the Board opened the matter to a public hearing and received Peterson’s testimony. Peterson addressed two issues he felt were determinative of the matters pending before the Board: (1) whether the wall was in a County right-of-way; and (2) whether Sierra Breeze is a mobile home park. Peterson argued by citation to several statutes that the wall was not an encroachment because it did not abut the highway, as the wall is located on the 25-foot strip originally dedicated to the County for public purposes and the 25-foot strip had now gone over to the State “by fiat,” thereby depriving the County of jurisdiction over the right-of-way. Peterson admitted driving down the strip to access the gate, but denied driving from the gate directly onto the highway. Peterson also argued Sierra Breeze is really an unlicensed mobile home park under the State’s sole jurisdiction. Peterson lodged 77 pages of documents with the Board, some of which he commented on directly.
Phyllis Dame, a resident who lives on five acres adjacent to Sierra Breeze, addressed the Board. Dame explained that she has a gate that is not far from where Peterson installed his gate and she was required to get an encroachment permit for her driveway, which she has to keep updated. She expressed her dislike of Peterson’s gate because it is close to her gate, and she is startled when she comes down her driveway and he has a vehicle “set there.” Dame questioned why she needed an encroachment permit and he did not. She also asserted that Peterson did, in fact, drive off the highway because she had seen tire tracks in the dirt through his gate.
The Board’s chairman, seeing no one else desiring to address the Board, closed the public hearing and returned to staff for final comment. Lackey explained the block wall and 25-foot right-of-way dedicated to the County remain under County jurisdiction because the State did not accept the additional right-of-way into the State’s maintained system. He also expressed his opinion Sierra Breeze is not a mobile home park as it was established as a subdivision with parcels owned by individual owners and was not set up or operated as a mobile home park.
After the Board’s chairman thanked Lackey and turned to Supervisor McQuiston, Peterson interrupted: “But, Mr. Chairman may I comment on that just one more second?” The chairman responded that Peterson was limited to one presentation. Supervisor McQuiston then asked Chief Deputy County Counsel Bruce Divelbiss whether he agreed with the legal analysis presented. Divelbiss explained that he had issued an opinion some years before as to Sierra Breeze’s status and nothing he heard at the hearing changed his view on the matter. Divelbiss believed Peterson was incorrect in his assessment of the State law with respect to Sierra Breeze’s status. With respect to the right-of-way, Divelbiss stated his understanding of the facts as presented by staff are that the wall is within the County’s right-of-way, therefore State law requires an encroachment permit, and failure to have such a permit is a misdemeanor as well as a general violation of State law, which is sufficient grounds to declare it a nuisance per se and illegal.
The Board voted unanimously to adopt staff’s recommendation and declare the violations public nuisances. On November 27, 2007, the Board adopted Resolution 2007-462 declaring the wall modification and unpermitted building to be public nuisances and ordered their abatement. That same day, the Clerk of the Board issued a Notice of Determination of Public Nuisance to Peterson and the record owner.
The Petition for Writ of Mandate
Peterson filed a petition for writ of mandamus in the superior court on December 27, 2007, in which he requested: (1) a finding that the Board exceeded its authority in issuing the resolution; (2) a writ directing the County to vacate its acts and attachments with respect to the property; and (3) an award of his costs of suit. Peterson challenged the Board’s decision on a variety of grounds, most notably that the Board lacked jurisdiction over Sierra Breeze and he had been denied due process both before the Board hearing and at the hearing itself. The County filed its responsive pleadings and an appendix of legal authorities. Peterson filed exhibits and points and authorities in response to the opposition, as well as an amended response.
The hearing on the petition was held on June 4, 2008. Following oral argument, the court took the matter under submission. The court issued its minute order on September 5, 2008, denying the petition. The court noted that Peterson asserted three bases for relief: (1) violation of due process; (2) lack of jurisdiction; and (3) res judicata. With respect to due process, the court found: (1) there was no evidence to support a finding that either the County employees or County attorneys acted in an inappropriate dual capacity, engaged in some type of conflict of interest, or acted in violation of law; (2) accepting as true Peterson’s contention that he did not receive notice of the violations until November 24, 2007, the Kern County Code of Ordinances does not set forth a notice period and there was no evidence Peterson objected to the notice given or was unprepared at the hearing; and (3) Peterson was given an adequate opportunity to be heard at the hearing, as there was no evidence either party was deprived of the right to be heard on the issues.
With respect to lack of jurisdiction, the court rejected Peterson’s interpretation of section 18214, finding that the statute applies “to a tract where the lots are rented for the purpose of renting them to people who will put mobile homes on them” while Sierra Breeze is a subdivision that sold lots that happen to have mobile homes on them. The court also rejected his claim that the State had jurisdiction over the wall, as Peterson did not offer any evidence to show the wall is not located within the portion dedicated to the County. Finally, the court found the County’s fee waiver in 2004 did not bar the County’s actions with respect to the property under the theories of res judicata or judicial estoppal.
Peterson filed a motion for reconsideration, which the County opposed and the trial court denied after a hearing. Peterson timely appealed.
DISCUSSION
Peterson raises four issues on this appeal: (1) whether Sierra Breeze is a mobile home park within the meaning of section 18214; (2) whether the County may regulate the right-of-way adjacent to SR 178; (3) whether his due process rights were violated; and (4) whether he had the power to issue subpoenas duces tecum.
The standard of review of these issues is essentially de novo, regardless of whether Peterson’s petition was one for traditional mandate (Code Civ. Proc., §§ 1084-1094) or administrative mandate (id., § 1094.5). The first two issues involve the interpretation of statutes, which involves a pure question of law, which we resolve de novo. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108; Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1349-1350.) In considering whether Peterson was deprived of a fair hearing, the trial court’s foundational findings of fact are conclusive if supported by substantial evidence, but the ultimate question of whether in view of those factual findings the proceeding before the County was procedurally unfair is a question of law which we review de novo. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170.)
Sierra Breeze is Not a “Mobilehome Park”
It is a violation of the Kern County Ordinance Code to construct a building in the County without obtaining all necessary County building permits. It is undisputed that Peterson built the large metal structure on lot 12 without such permits. Peterson, however, contends he has not violated a County ordinance because Sierra Breeze is under State, not County, jurisdiction, as it is a “mobile home park” within the meaning of the California Mobile home Parks Act (MPA) (§§ 18300 et seq.). We disagree.
As explained by the Office of the Attorney General in an opinion Peterson relies upon: “The MPA regulates the construction and operation of mobile home parks. It requires each park owner to obtain a permit to operate the park on an annual basis (§§ 18500-18518) and prescribes in detail health and safety requirements with respect to maintenance, occupancy, and use (§§ 18550-18607). It sets building construction, plumbing, and electrical standards. (§§ 18620-18670.)” (77 Ops. Cal. Atty. Gen. 214, 215 (1994).)
The State Department of Housing and Community Development (Department) administers the MPA (§ 18253), although cities and counties may, at their option, assume responsibility for its enforcement. (§ 18300, subd. (b).) The Department has adopted extensive administrative regulations for mobile homes, whether such homes are inside or outside a mobile home park. (Cal. Code Regs., tit. 25, §§ 1000-2860.)
As stated in section 18254, subdivision (a), the MPA’s purpose is to: “(1) Assure protection of the health, safety, and general welfare of all mobile home park residents. [¶] (2) Allow modifications in regulations adopted pursuant to this part in a manner consistent with the criteria established in this part.” In enacting the MPA, the Legislature has declared “that increasing numbers of Californians live in … mobile homes and that most of those living in such … mobile homes reside in mobile home parks. Because of the high cost of moving … mobile homes, most owners of … mobile homes reside within mobile home parks for substantial periods of time. Because of the relatively permanent nature of residence in such parks and the substantial investment which a … mobile home represents, residents of mobile home parks are entitled to live in conditions which assure their health, safety, general welfare, and a decent living environment, and which protect the investment of their … mobile homes.” (§ 18250.)
The MPA fully occupies the area of mobile home regulation. Accordingly, the MPA generally preempts local regulation of mobile homes and mobile home parks. (County of Santa Cruz v. Waterhouse (2005) 127 Cal.App.4th 1483, 1489-1491 (County of Santa Cruz).) The MPA provides, however, that counties may require a building permit to construct an accessory structure for a mobile home when the mobile home is located outside a mobile home park. (§ 18300, subd. (g)(4).)
Section 18300, subdivision (g)(4) provides: “(g) This part shall not prevent local authorities of any city, county, or city and county, within the reasonable exercise of their police powers, from doing any of the following: [¶] …[¶] (4) From requiring a local building permit to construct an accessory structure for a … mobilehome when the … mobilehome is located outside a mobilehome park, under circumstances when this part or Part 2 (commencing with Section 18000) and the regulations adopted pursuant thereto do not require the issuance of a permit therefor by the department.”.) Peterson does not contend that the MPA or its regulations require the issuance of a permit by the Department for the freestanding metal building on lot 12.
The issue here is whether Sierra Breeze is a “mobile home park” within the meaning of the MPA. If it is, then the County does not have authority to require a building permit for the metal structure built on lot 12 and consequently no basis to cite Peterson; if it is not, then the County has such authority and Peterson is in violation of County ordinances for causing the metal building to be constructed without a County permit.
For purposes of the MPA, section 18214, subdivision (a), defines a “mobile home park” as follows: “‘Mobile home park’ is any area or tract of land where two or more lots are rented or leased, held out for rent or lease, or were formerly held out for rent or lease and later converted to a subdivision, cooperative, condominium, or other form of resident ownership, to accommodate manufactured homes, mobile homes, or recreational vehicles used for human habitation. The rental paid for a manufactured home, a mobile home, or a recreational vehicle shall be deemed to include rental for the lot it occupies....” Section 18210 defines a “lot” as “any area or tract of land or portion of a mobile home park designated or used for the occupancy of one manufactured home, mobile home, or recreational vehicle.”
Thus, as applicable here, a mobile home park is an area where two or more lots are rented to accommodate mobile homes. (See 77 Ops. Cal. Atty. Gen. 214, 217 (1994) [concluding that a “mobile home park” under the MPA “is any area where two or more mobile home lots are rented, and any rental paid for a mobile home is deemed to include the rental for the lot it occupies.”] In this case, Sierra Breeze was subdivided and the lots sold, not rented, to individual owners who then placed mobile homes on them; therefore, Sierra Breeze is not a “mobile home park” within the definition of section 18214.
The Department’s opinion supports this conclusion regarding Sierra Breeze’s status. In that opinion, the Department pointed out that Sierra Breeze: (1) was approved and constructed under County jurisdiction as a form of resident ownership where the lots and structures are privately owned; (2) had never been in the Department’s system as a mobile home park and was under County jurisdiction for regulatory purposes; and (3) the Department had never issued permits for construction or taken any regulatory action against Sierra Breeze or its residents. Citing section 18214, the Department concluded a mobile home park “is a tract of land constructed for the purpose of renting or leasing the lots,” and “[a] tract of land is not a mobile home park when it is constructed for the purpose of having privately owned lots with mobile homes on them.” This interpretation of section 18214 is not unreasonable or clearly contrary to the statutory language or purpose. Accordingly, as the County points out, the Department’s opinion, while not binding on this court, is entitled to a high degree of deference. (Dix v. Superior Court (1991) 53 Cal.3d 442, 460 [“Unless unreasonable or clearly contrary to the statutory language or purpose, the consistent construction of a statute by an agency charged with responsibility for its implementation is entitled to great deference.”]; Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Board (1999) 70 Cal.App.4th 281, 290.)
Peterson contends Sierra Breeze is a “mobile home park” because the individual owners later rented their mobile homes to others. We disagree, as in those situations the lots are not being rented for the purpose of accommodating mobile homes. Peterson contends an Attorney General opinion supports his position that the mere fact that individual owners rent out their mobile homes makes Sierra Breeze a mobile home park as defined in section 18214. (77 Ops. Cal. Atty. Gen. 214 (1994).) There, a property owner planned to merge four adjoining lots into two subdivision lots and place one mobile home on each lot for rental; the question presented was whether placement of the two mobile homes on the subdivision lots would subject the owner to the MPA’s requirements. The Attorney General concluded the MPA applies to the placement and rental of mobile homes when “four adjoining subdivision lots are merged into two subdivision lots for the purpose of placing a mobile home on each for rental.” (Ibid.) In contrast here, the lots in Sierra Breeze were sold, not rented. That some individual owners are renting out their mobile homes now does not make Sierra Breeze a mobile home park because the lots are not rented for the purpose of accommodating mobile homes.
Peterson’s reliance on County of Santa Cruz, supra, 127 Cal.App.4th 1483, is also misplaced, as that case did not involve the issue presented here, namely whether the development in question was a “mobilehome park” within the meaning of section 18214.
Relying on a statement of Legislative intent made when section 18214 was amended to add to the definition of “mobile home park” those developments which were formerly held out for rent or lease and later converted to subdivisions, cooperatives, condominiums, or other forms of resident ownership, Peterson contends that Sierra Breeze is a “mobile home park” because it has a homeowner’s association. The existence of a homeowner’s association, however, does not have any bearing on whether a development is a mobile home park under section 18214, as section 18214 itself does not refer to such associations when defining the phrase “mobile home park.” While the section 18214 definition includes any area or tract of land where two or more lots “were formerly held out for rent or lease and later converted to a subdivision, cooperative, condominium, or other form of resident ownership,” there is no evidence that Sierra Breeze falls within that definition, as lots in the subdivision were not first rented or leased; instead, the property was subdivided first and the lots sold.
In making this amendment, the Legislature stated: “It is the intent of the Legislature that enforcement agencies regulate mobilehome parks which were formerly held out for rent or lease and later converted to subdivisions, cooperatives, condominiums, or any other form of resident ownership, in the same manner as all other mobilehome parks are regulated pursuant to the Mobilehome Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code). It is also the intent of the Legislature that enforcement agencies confer with homeowner associations or other designated governing bodies of resident-owned mobilehome parks whenever it is appropriate to do so.” (Stats. 1989, ch. 721, § 2, p. 2363.)
Four days before oral argument in this case, Peterson filed a Request for Judicial Notice of an April 21, 2008 Information Bulletin from the California Department of Housing and Community Development regarding the validity of local ordinances relating to mobilehome parks. The Request is denied, as the Bulletin is irrelevant to the issue presented here, namely whether Sierra Breeze is a mobilehome park within the meaning of the MPA. (Evid. Code, § 350; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.)
Finally, Peterson argues that because an inspector concluded in 2004 that Sierra Breeze is a mobile home park while determining whether there was a violation of a County ordinance at the Saguaro Street property and the County waived a fee that had been assessed against that property, the doctrines of judicial estoppal or res judicata preclude the County from regulating land uses within Sierra Breeze. Peterson characterizes these acts as a negotiated “settlement” or “agreement” which he asserts has the same effect as a judicial decision. But judicial estoppal, which “‘“prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding[,]’”’” requires that the two positions be taken in a judicial or quasi-judicial administrative proceeding. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468, 1474.) Here, the inspector’s assessment of Sierra Breeze as a mobile home park and the fee waiver did not occur in a judicial or administrative proceeding. Accordingly, judicial estoppal is inapplicable here.
Since there was not an administrative proceeding, Peterson’s citation to Government Code section 11521, which pertains to an agency’s ability to reconsider cases heard under the Administrative Procedure Act (Govt. Code, §§ 11400 et seq.), and the cases construing it, do not apply. (See Govt. Code, §§ 11512, 11513, 11519 [stating procedures for administrative hearings]. Moreover, Government Code section 11521 does not apply to local agencies. (Govt. Code, § 11410.30)
Since there was not a prior court proceeding that resulted in a final judgment, res judicata, which “‘precludes parties or their privies from re litigating a cause of action that has been finally determined by a court of competent jurisdiction[,]’” is also inapplicable. (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 972.)
In sum, Sierra Breeze is not a mobile home park within the meaning of section 18214. Accordingly, the County had the authority to order Peterson to abate the metal structure he caused to be built on lot 12.
The Wall is Within the County’s Right-of-Way
Peterson contends the County did not have authority to order abatement of the modifications he made to the block wall because the wall is located within a State, not County, right-of-way. We disagree.
No one may alter an encroachment located within the County’s right-of-way without a permit. (Sts. & Hy. Code, §§ 1460, subd. (b), 1480.5, 1481; Kern County Ord. No. 12.16.020.) Peterson does not dispute that the wall is located within the right-of-way dedicated to the County (the dedicated strip). He asserts, however, that the dedicated strip the wall is located on is not a “public highway” within the meaning of Kern County Ordinance No. 12.16.020, which makes it unlawful for anyone to “disturb or change any part of the portion of any public highway in the county... without first obtaining a permit therefor,...” because the dedicated strip is not identified on a map as a highway and the resolution accepting the dedicated strip does not mention a County highway.
Contrary to Peterson’s position, the dedicated strip functions as a highway. Streets and Highways Code section 25, subdivision (b) defines a “county highway” as any highway which is “[l]aid out... by others and dedicated or abandoned to... the county[,]” which is precisely what happened here when the original owner laid out a 25-foot right-of-way for public use, dedicated it to the County, and abandoned any right of egress or ingress across it. The County expressly accepted the offer of dedication. The wall was constructed within the road right-of-way as required. In the proceedings below, Peterson admitted to using the dedicated strip as a road and referred to it as a road. Nothing in the County’s ordinances requires that a highway be identified on a map or that the resolution dedicating the highway to the County state that it is a highway to be considered a public highway for purposes of the ordinances pertaining to highway encroachments. (See Kern County Ord., ch. 12.16.) Moreover, section 18300, subdivision (g)(1) of the MPA specifically authorizes local authorities to adopt rules and regulations by ordinance or resolution prescribing park perimeter walls or enclosures on public street frontage.
Peterson also contends the County does not have jurisdiction over the wall because the dedicated strip is actually within the State’s right-of-way. As the County points out, this position ignores the following facts: (1) Sierra Breeze was not developed within SR 178 -- allowances were required due to the existence of SR 178 including erecting the wall and abandoning rights of egress and ingress from lots on the same side as SR 178; (2) the developer made a public dedication of the north 25 feet of Sierra Breeze to the County, not the State, from developer-owner property; (3) the County required the wall to be built “within the road right-of-way,” which it had no authority to require if the wall was being built within the State’s right-of-way; (4) the dedicated strip is located between the subdivision and SR 178; (5) the wall is located within the dedicated strip; (6) Peterson conceded in one of his letters to Caltrans that lot 12 did not “touch” SR 178, but was separated from SR 178 by a “20 foot utility road then a line of telephone poles before a large bare earth shoulder of the highway even begins.”; (7) the utility road Peterson referred to is the County’s right-of-way; and (8) Caltrans ultimately declined to exercise jurisdiction over the wall, noting that Peterson’s property “does not directly abut State Highway 178,” but warned Peterson that he might have other issues regarding the gate with his homeowner’s association or Kern County, which it declined to address because “they do not technically involve Caltrans.”
There is no evidence that the wall or right-of-way on which it is built has ever been part of the state highway system. The facts show the wall was built on property the developer owned but dedicated to the County, and which is located between the subdivision and SR 178. Streets and Highways Code section 233, which Peterson cites, does not operate to somehow turn the County’s right-of-way into part of the state highway, as that section vests in the name of the people of this State all properties acquired by the public or by any governmental agency to real property interests “used for rights of way of any highway heretofore or hereafter constituted a State highway.” As the facts demonstrate, the real property interest the developer dedicated to the County did not “heretofore or hereafter” constitute a State highway. The right-of-way also is not a “highway” as defined in Streets and Highways Code section 660, subdivision (a), which defines a “highway” as including “all, or any part, of the entire width of the right-of-way of a state highway, whether or not the entire area is actually used for highway purposes[,]” since there is no evidence the dedicated strip is part of the State’s right-of-way.
In sum, the County has jurisdiction over the wall and the unauthorized modifications to the wall that Peterson made.
Peterson’s Due Process Rights Were Not Violated
Peterson contends he was denied a fair hearing before the Board (i.e. his procedural due process rights were violated) because (1) the hearing was held before the Board instead of a hearing officer, (2) the Board did not allow him to refute statements made by County employees and Dame, (3) County Counsel acted as both advocate of ESS’s position and advisor to the Board, and (4) Craig Peterson’s involvement as complainant and in the investigation of the matter influenced the Board’s decision. We find no due process violation.
The trial court found there was no evidence to support a finding that either County employees or County Counsel acted in either an inappropriate dual capacity, engaged in some type of conflict of interest, or violated the law. Accepting as true Peterson’s claim that he did not receive notice of the violations until November 24, 2007, the trial court found there was no evidence Peterson objected to the notice given or was unprepared for the hearing; to the contrary, Peterson had sufficient time to assemble more information than he was able to present in the time allowed. The trial court also found Peterson was given adequate opportunity to be heard, as there was no evidence either party was deprived of the right to be heard on the issues and the hearing actually exceeded the time originally allotted, with Peterson being given additional time to comment.
We first address Peterson’s contentions regarding the conduct of the hearing, i.e. that the hearing was held before the Board, as opposed to a hearing officer, that the hearing was not held within 90 days of being given the notice to abate, and he was not given an opportunity to rebut the statements by County employees and Dame. Since Peterson was issued a notice to abate the nuisances, as opposed to an administrative citation, pursuant to Kern County Ordinance No. 8.54.080 he was entitled to a hearing before the Board, which is what he received. While Peterson suggests the County intentionally issued a notice to abate, as opposed to an administrative citation, to avoid having the matter heard before a hearing officer, there is no evidence to support his suspicion. Although the hearing was held eight months after the notice to abate was served, the ordinance does not articulate any time frame within which the hearing must be held. Significantly, Peterson did not object to a delay at the hearing and does not state on appeal how he was prejudiced by any delay in holding the hearing.
The record of the hearing shows that it lasted 28 minutes and Peterson was given the opportunity to articulate his arguments to the Board without interruption. While Peterson contends he was not given an opportunity to challenge Dames’s statement that he drove to and from lot 12 onto SR 178, whether he actually drove through the gate is irrelevant to whether installation of the gate without a permit constituted a public nuisance. Peterson also contends he was deprived of the right to challenge what he calls the County’s false statements. Devices employed in judicial proceedings, however, such as testimony under oath and the full rights of confrontation and cross-examination of witnesses, are not required to meet due process standards in administrative nuisance abatement hearings. (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 301-302; E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 323-324.)
Moreover, Peterson has not shown how he was prejudiced by the lack of rebuttal as he does not list the statements he considers to be false or what evidence he would have presented in response to those false statements. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 272 [“Neither petitioner claims prejudice based on inadequate notice or the absence of an opportunity to respond or be heard on the jurisdictional-amount issue. Accordingly, we conclude that... no denial of due process resulted in either case.”]; Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1932-1933; Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d477, 495.)
Peterson’s claim that he was not provided adequate notice of the alleged violations, both by late receipt of the final staff report and the failure of earlier reports to state the nuisances violate Streets and Highways Code section 1460, subdivision (b), also fails, as he failed to object to these alleged deficiencies at the Board hearing, and has not shown prejudice. As noted in Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d931, “‘A variance between the allegations of a pleading and the proof will not be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits, and a variance may be disregarded when the action has been as fully and fairly tried on the merits as though the variance had not existed.’” (Id. at p. 942.) Even if Peterson was not notified of all of the code sections the County asserted he violated, Peterson was apprised fully though prior notices of the alleged violations, i.e. the unpermitted gate in the wall and metal structure. Peterson does not explain how he was misled, what evidence he would have presented, or how the result of the hearing would have been different had he received the notice earlier or been advised of the code section allegedly violated.
Peterson also claims Bruce Divelbiss and Craig Peterson had conflicts of interest that resulted in a biased hearing. The Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution guarantee that no one may be deprived of his or her property without due process of law. (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d568, 575 (Burrell).) When, as here, due process requires a hearing, the decision maker must be impartial: “[D]ue process requires fair adjudicators in courts and administrative tribunals alike.” (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1024-1025 (Haas).) “The right to a fair trial by a fair tribunal is a basic requirement of due process applying to administrative agencies which adjudicate, as well as to courts.” (Burrell, supra, 209 Cal.App.3dat p. 577.)
Unless adjudicators have a financial interest in the outcome, they are presumed to be impartial. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737 (Morongo).) A due process violation may be demonstrated, however, “not only by proof of actual bias, but also by showing a situation ‘in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’” (Ibid., citing Withrow v. Larkin (1975) 421 U.S. 35, 47.) Peterson presented no evidence that the Board, or any of its members, was actually prejudiced against him. Instead, he essentially argues that because Divelbiss, as County Counsel, advised the Board during the hearing about the legal issues involved therein and previously had served as a “finder of fact” in the Saguaro Street matter, the risk that the Board would be biased in favor of ESS, the County department prosecuting the notice of abatement, is of a magnitude sufficient to overcome the presumption of impartiality. We disagree.
Peterson’s argument is premised on two cases finding an adequate showing by a plaintiff of likely bias on the part of the decision maker (hence a due process violation) when the public agency’s legal counsel acted in a dual role as prosecutor and advisor. In Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81 (Nightlife Partners), an adult entertainment business applied to the city for renewal of its regulatory permit. The court concluded the business owner’s due process rights were violated because the assistant city attorney who made the initial decision to deny the renewal application subsequently acted as legal adviser to the supposedly impartial hearing officer reviewing that denial. (Id. at p. 98.) In Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810 (Quintero), the city fired a public employee. The city’s personnel board upheld the termination after a hearing. The appellate court concluded the employee’s due process rights were violated because the deputy city attorney who represented the city before the personnel board had also acted as counsel for the personnel board on other occasions. Although there was no evidence the city attorney acted in a dual role in the case before the court (i.e., acted as both prosecutor for the city and legal adviser for the personnel board on the particular termination matter), the attorney’s ongoing relationship with the personnel board “[gave] the appearance of bias and unfairness and suggest[ed] the probability of his influence on the [b]oard.” (Id. at p. 814.)
Peterson also cites to Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1 (Department of Alcoholic Beverage Control), which held that procedures of the Department of Alcoholic Beverage Control which permitted the prosecutor of violations of a licensee’s alcoholic beverage license to provide a summary of the evidentiary hearing and resolution recommended by the administrative law judge, which the prosecutor prepared, ex parte to the ultimate decision maker or the decision maker’s adviser, violated the Administrative Procedure Act’s (APA) bar against ex parte communications. (Department of Alcoholic Beverage Control, supra, at pp. 4-5.) The court explained that under the APA, a prosecutor cannot communicate off the record with the agency decision maker or the decision maker’s advisers about the substance of the case. (Department of Alcoholic Beverage Control, supra, at p. 17.) In so holding, the court specifically stated that it was not expressing any opinion concerning how the requirements of due process might apply, as the limited internal separation of functions is required as a statutory matter. (Id. at p. 17, fn. 13.) As we have previously noted, the APA does not apply to hearings before local administrative agencies.
The parties also cite to Morongo, which disapproved of Quintero on an unrelated point. (Morongo, supra, 45 Cal.4th at p. 740, fn. 2.) In Morongo, our Supreme Court held that a license holder’s constitutional right to due process of law in an administrative proceeding to revoke a water license was not violated when an agency attorney prosecuting the matter before the State Water Resources Control Board simultaneously served as an adviser to that board on an unrelated matter. (Id. at p. 734.) In so holding, the court explained that “in the absence of financial or other personal interest, and when rules mandating an agency’s internal separation of functions and prohibiting ex parte communications are observed, the presumption of impartiality can be overcome only by specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.” (Id. at p. 741.)
The distinction between these cases and the present one is that Divelbiss did not act as a prosecutor or advocate with respect to the Saguaro Street property and then as an adviser with respect to the Agave Avenue property. Instead, in both instances he acted as a legal adviser, first to a member of Supervisor McQuiston’s staff and later to the Board, as in both instances he rendered a legal opinion regarding the County’s jurisdiction over construction within Sierra Breeze. That Divelbiss asked Craig Peterson what ESS should do after his August 2005 opinion about Sierra Breeze’s status does not mean that he advised ESS about what action should be taken with respect to a particular property within Sierra Breeze. ESS’s reliance on Divelbiss’s legal opinion issued with respect to the Saguaro Street property in determining whether it had authority to issue a notice of abatement on the Agave Avenue property does not mean that Divelbiss prosecuted the complaints with respect to either property or acted as a fact finder.
Moreover, there is nothing to suggest Peterson was denied a fair hearing due to Divelbiss’s participation. As Divelbiss advised the Board, whether Peterson was required to obtain County permits was a question of “legal disagreement” between Peterson and the County, which could be taken up before the superior court. On that basis, Supervisor McQuiston voted to approve staff’s recommendation, stating the issues were “more appropriate for a courtroom than a boardroom.” Even if the Board was biased against him, since the issues are legal ones, requiring our independent review, Peterson cannot show prejudice.
Peterson also contends that Craig Peterson had a conflict of interest since he filed the original complaint about the wall. Peterson argues that in filing the complaint, Craig Peterson violated Kern County Ordinance No. 2.02.010, subdivision (A)(5), which provides that no County employee shall engage in any activity which results in “[p]erformance of an act in other than his capacity as a county officer or employee knowing that such act may later be subject, directly or indirectly, to the control, inspection, review, audit or enforcement by the officer or employee or by the department or agency by which he is employed.” Peterson asserts Craig Peterson violated this section when he filed the complaint, as he was acting outside the capacity of his office and on behalf of Charles R. Peterson and Ron C. Peterson, who are apparently officers in Sierra Breeze’s homeowners’ association.
When Craig Peterson filed the complaint, however, he signed it and identified himself as being with Supervisor McQuiston’s office. There is no evidence to suggest he acted in any capacity other than as Supervisor McQuiston’s assistant. That Craig Peterson might have filed the complaint on behalf of the homeowners’ association does not mean that he was not doing so in his capacity as a County employee. Peterson also contends that because Craig Peterson is not a “public official” as defined in Kern County Ordinance No. 8.44.030, which pertains to public nuisances and defines a “public official” as a “building official, the health officer, the chief of the fire department or designers,” he did not lodge the complaint as a County employee. Kern County Ordinance No. 8.44.040, however, provides that the “public official” shall make a reasonable investigation of the facts “upon receipt of information leading him/her to believe that a public nuisance exists upon private property in the unincorporated area of the county.” Here, Craig Peterson provided the information that led the building official to believe a public nuisance existed; he was not the public official who investigated the complaint. This section does not suggest that Craig Peterson was not acting as a County employee. Having filed the complaint as a County employee, he could not have run afoul of Kern County Ordinance No. 8.44.030, subsection (5).
Peterson alleges the County employees involved here are “intertwined like spaghetti.” Specifically, he alleges Craig Peterson had numerous “ex parte communications” with the ESS department regarding the investigation into the violations, which turned the County administrative process into a “kangaroo court.” Again, Peterson does not assert the decision maker, i.e. the Board or its members, were actually biased against him. Even if Craig Peterson’s communications somehow biased Supervisor McQuiston against Peterson, he was only one vote on the Board. There is nothing to suggest that the other supervisors also were biased. Finally, as noted above, the issues involved in the case are purely legal ones, namely whether Sierra Breeze and the right-of-way are under County jurisdiction. Therefore, even if bias is shown, Peterson cannot show prejudice or a due process violation.
The Subpoenas Duces Tecum
During the pendency of the writ proceeding in the trial court, Peterson mailed to the County six subpoenas duces tecum, which were directed to four named parties, a member of the County Board of Supervisors, and an attorney from County Counsel’s office. By these subpoenas, Peterson sought the production of documents pertaining to Sierra Breeze, and the Saguaro Street and Agave Avenue properties. The County informed Peterson that it would not honor the subpoenas, as they had not been issued by the clerk of the court or a judge as required by Code of Civil Procedure section 1985, subdivision (c), and Code of Civil Procedure section 2020.210, but did state it would treat them as requests for production of documents under Code of Civil Procedure section 2031.030. The County subsequently produced some documents in response to the requests.
Peterson filed a motion to compel production of documents pursuant to the subpoenas. The County opposed the motion, primarily on procedural grounds. After a hearing on the motion, the trial court denied it. The trial court found the subpoenas were unenforceable because they were not properly issued. The trial court further found that if the subpoenas were treated as requests for production of documents, there was no evidence Peterson attempted to meet and confer regarding the dispute, as required by the Code of Civil Procedure, and to the extent the documents sought were not part of the administrative record, they were irrelevant to the trial court’s review of that record.
Peterson contends on appeal the trial court erred in rejecting the subpoenas because they were not issued by a court clerk or the court itself. Code of Civil Procedure section 1985, subdivision (c), however, specifically states that such subpoenas must be issued by the clerk, a judge, or an attorney at law. Peterson asserts that because Government Code sections 68500.1 and 68511 authorize the Judicial Council to prescribe the contents of forms, including the form for the subpoenas, and the Judicial Council form subpoena states that it has been adopted for mandatory use, he must have the authority to personally issue the subpoenas. Peterson contends that these Government Code sections conflict with Code of Civil Procedure section 1985 and on that basis asks us to “overturn this horse and buggy era law.” We decline to do so, however, as the statutes do not conflict and Peterson has not pointed to any constitutional defect in the law.
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: Cornell, Acting P.J., Hill, J.